<div align="left">Delalic & others Case n° IT-96-21-T 23 July 1996</div>


Case No. IT-96-21-T Tuesday, 23rd July 1996


(The Presiding Judge)




MS TERESA McHENRY and MS ELLES VAN DUSSCHOTEN appeared on behalf of the Prosecution

MS EDINA RESIDOVIC and MR. GALIJATOVIC appeared on behalf of the accused Delalic

(Open Session)

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1   (10.00 a.m.)


3   THE REGISTRAR: Hearing on provisional release on the case IT-96-21-T, the Prosecutor of

4   this Tribunal against Mr. Delalic.

5   THE PRESIDING JUDGE: Good morning. May I have appearances for the Prosecutor,

6   please?

7   MS McHENRY: Good morning. Teresa McHenry appearing for the Office of the

8   Prosecutor; with me is Ms. Elles Van Dusschoten who will be assisting me. Thank you.

9   THE PRESIDING JUDGE: For the Defence, please, appearances?

10   MS. RESIDOVIC [In translation]: Edina Residovic, lawyer from Sarajevo. I am the Defence

11   counsel of Mr. Zejnil Delalic.

12   MR. GALIJATOVIC [In translation]: My name is Ekrem Galijatovic. I am a lawyer from

13   Sarajevo.

14   THE PRESIDING JUDGE: You will be appearing for the Defence as well, sir, is that correct?


16   THE PRESIDING JUDGE: Very good, thank you. This is a hearing on the motion for

17   provisional release filed by the Defence pursuant to Rule 65(B) of the Rules of Procedure

18   and Evidence of the Tribunal. Rule 65(B) provides that release may be ordered by a Trial

19   Chamber only in exceptional circumstances after hearing the host country and only if it is

20   satisfied that the accused will appear for trial and, if released, will not pose a danger to any

21   victim, witness or other person.

22   The Trial Chamber has received a document dated July 18th 1996 from the government

23   of the Netherlands which sets forth its views regarding this motion for provisional release.

24   Has the Prosecutor received a response of this statement from the Minister of Foreign

25   Affairs of the Netherlands, and has the Defence received it?

26   MS McHENRY: I received a copy this morning, your Honour.

27   THE PRESIDING JUDGE: Has the Defence received it?

28   MS. RESIDOVIC: I received it yesterday.

29   THE PRESIDING JUDGE: Very good. Thank you. Who will present the motion for

30   provisional release? Ms. Residovic, will you present that for the accused?

31   MS. RESIDOVIC: Yes.

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1   THE PRESIDING JUDGE: Very good. You may proceed.

2   MS. RESIDOVIC: Your Lordships, your Honour, before I explain in more detail our motion

3   for the provisional release, I should also like to take the liberty and mention several facts

4   which I believe are of relevance for this motion.

5   THE PRESIDING JUDGE: Yes, you may.

6   MS. RESIDOVIC: Thank you. On 14th May, the Defence submitted several motions to the

7   Court and then on May 28th, with some additions on June 5th and the 9th, it has

8   submitted further motions relative to Rule 73 of the Court. So far, very few of these

9   motions have been deliberated about, although their deliberation is directly related to

10   today's motion. On May

14  th the Defence submitted a motion requesting that the Court

11   rule about the forwarding of the documents in the language of the accused. However, the

12   Court has not yet ruled on this motion, nor have we received any answer.

13   Whether my client may use his mother tongue in speech and writing depends also on

14   whether he has already received the documents which are the subject of today's hearing

15   received in that language. I must say that our client has not yet received in Bosnian

16   language neither the ruling of this Court, nor the decision of the Dutch government in that

17   tongue. We, therefore, are already faced with a situation which is a discrepancy with Rule

18   21 of the Tribunal.

19   On June 5th and 9th, the Defence requested that evidence be exempted when it was

20   found or taken away from the accused and the disclosure of the evidence, because on the

21   29th we suggested the reciprocal production of evidence under 65(B). The Prosecutor

22   was, therefore, bound to present to us all evidence that is at its disposal which we believe

23   are of interest to the Defence, that is, that have been received or taken away from our

24   client.

25   Regrettably, I must say that even though the Court with regard to one of these motions,

26   and that the statement by the accused Zdravko Music be delivered to the client within 14

27   days, I only received this motion on July 2nd, that is, after 14 days and in English, even

28   though I already stated that I speak the other official language of the Court, and the request

29   that we be submitted these documents in Bosnian language so that my client could also get

30   acquainted with it. We have not received it to this day.

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1   This, I believe, is also relevant to this case because 66(B) is thus converted into 66(A),

2   and that the Prosecution decides when the Defence will be acquainted with some evidence

3   rather than under Rule 66(B), which means that we have to be informed about that

4   particular evidence immediately.

5   Evidently, it appears that the Prosecution believes that something has to be hidden from

6   the Defence and this is an infringement of my client's right. The Prosecutor has informed

7   me in writing that as of yesterday other evidence will be presented to me now, but I must

8   say that already two months have elapsed since I have been entitled to this evidence.

9   We also have moved that the Prosecutor exclude some of the evidence and the provisional

10   release could not use the evidence submitted by the client, and that is an ID card of Stjepan

11   Kozul which was among the documentation found with him and taken away from him. We

12   are not saying this because we might deny the existence of this identity card or that we

13   deny that my client used that, but because for more than two months the Defence has been

14   faced with a situation in which it cannot avail itself of the right it is entitled to. In addition

15   to our other motions, we have submitted a large number of material evidence.

16   THE PRESIDING JUDGE: Let me interrupt you one moment, if I may, Miss Residovic, just

17   so that we can have some order to the hearing. What you are telling me is there are other

18   motions that are outstanding that have either not been resolved or the Prosecutor has not

19   complied with. You were just beginning to tell the Chamber that with respect to the

20   identity card that it was your position that should not be made a part of the evidence or

21   the material that the Chamber should use in considering your motion for provisional

22   release.

23   So it appears that you are now beginning to address the motion for provisional release

24   which is the purpose of the hearing. I do not want to cut you off. We have a status

25   conference set for -- when? I am mistaken. The status conference is for two of the other

26   accused in this case. We have had a status conference in your case.

27   I can respond to your concerns, perhaps, or I can attempt to respond to some of your

28   concerns, but we have allotted an hour this morning to hear argument on the motion for

29   provisional release. So, unless it is your position that these matters somehow impact or

30   relate to your motion for provisional release, I would prefer that we set a date -- we can do

31   it as soon as possible even though we are in trial in another matter -- to consider all of

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1   these matters, for example, the request that you have documents in the language of the

2   accused. It is my understanding that the Registry has responded to you. I see Mr. Marro

3   shaking his head. We certainly discussed it and we thought that it had been resolved.

4   As far as the statement of Mucic, you said you received that on July 2nd and then it was

5   in English and not in the language of the accused. That is something we can follow up on.

6   You did make a request for discovery under 66(B), as I recall from our earlier status

7   conference. There is no way really in the present setting for the Chamber to resolve your

8   concerns about the Prosecutor not fully complying with that. That is something that

9   really should be resolved in a more informal setting where we can discuss back and forth.

10   So, since we have alloted a certain amount of time for this motion for provisional release,

11   I would appreciate it if you would address that and if there are other matters that are

12   pending, or if you feel the Prosecutor is not fully complying with its obligation, then you

13   should advise the Trial Chamber.

14   It would be preferable if you would write a note to the Trial Chamber, a letter to the

15   Registry, and the Registry would then deliver it to us, listing your concerns. We would

16   then have an informal conference, a status conference, and try to resolve that as quickly as

17   possible. I understand you might feel you are here and you want to have all those things

18   resolved but, for efficiency sake, I would ask that you move to the motion for provisional

19   release.

20   MS. RESIDOVIC: Thank you very much. I can only be concerned, your Lordships, by what

21   can affect the rights and interests of my client. That is why I drew attention to some of

22   the previous questions for which I had asked to discuss, and I shall proceed immediately to

23   the motion for provisional release.

24   If the Court believes that today it cannot decide without previous deliberation about

25   other matters which I have only indicated, then I should like to ask your Lordships to

26   notify us of the date when we shall be able to clarify those matters. I also beg you to

27   inform both us and the Prosecution about that.

28   THE PRESIDING JUDGE: We have the status conference for two of the other accused

29   tomorrow evening. Could we meet Ms. Residovic this evening at between either 5.30 or

30   6.00? We normally conclude the trial for the day at 5.30. Could you remain today and

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1   then meet and see if we can resolve all of these outstanding matters regarding material that

2   the Prosecutor was to provide and whether it is in the language of the accused or not?

3   MS. RESIDOVIC: Yes, of course, as far as the Defence is concerned, we can come and discuss

4   those matters, but in view of the Defence's view that the decision on this motion depends

5   on some of those questions, then I should like to ask you to hold another conference and

6   that is on the motion for provisional release.

7   THE PRESIDING JUDGE: We cannot go forward and hear your argument on provisional

8   release and then just reserve ruling until we resolve these other matters, is that a

9   possibility, or are you saying you are not ready to present argument on your motion for

10   provisional release until these other matters are resolved?

11   MS. RESIDOVIC: I can present our arguments, but they presume some comments on the

12   previous motions, since part of the material, evidence and other documentation relative to

13   my client were submitted along with those motions, so that I can present some of the

14   arguments if you like right now, or perhaps we could envisage it for later today or

15   tomorrow or whenever your Lordships find it convenient?

16   THE PRESIDING JUDGE: I think we would like to hear from you and you can indicate

17   which portions of your argument you cannot fully present without a resolution of the

18   other matters. In your motion you do make reference to an earlier motion for a separate

19   trial, but I do not see the Prosecutor is involved in that, in that there is no material that I

20   understand they are to provide you that relates to that motion.

21   You have just mentioned the ID, identification document, of the accused, and that may

22   somehow relate -- I would like, if we can hear from you, how long do you think it

23   would take for you to present oral argument on your motion?

24   MS. RESIDOVIC: Some

10   minutes, perhaps a little longer. I cannot be more exact.

25   THE PRESIDING JUDGE: OK, very good. Ms McHenry, are you available this evening at

26   to discuss any discovery matters that Ms. Residovic was referring to?

27   MS McHENRY: Yes, your Honour.

28   THE PRESIDING JUDGE: Very good. Then we will have a status conference this evening to

29   resolve any of those matters. Ms. Residovic, would you proceed with your oral argument

30   on your motion for provisional release, please?

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1   MS. RESIDOVIC: In our motion in writing, we indicated that my client without any factual

2   grounds was detained before the indictment had been filed against him. We pointed out

3   that since the Statute of the International Tribunal knows no contingency measures,

4   emergency contingency measures, under which my client could be detained, we believe that

5   the provisions on contingency measures should be applied very, very strictly which I do

6   not think was done in this case. However, since the ruling was taken subsequently, I

7   should not go back to this particular ruling of 18th March this year.

8   Now I should like to comment on the Prosecutor's response to the submitted motions.

9   The Prosecutor in his response to our view that our client will respond to any summons

10   by the Court submitted as evidence a counterfeit identity card, as the Prosecution claims,

11   and a personal invitation for official travel. It is not a forged identity card or document,

12   even though there is my client's picture and the name of Stjepan Kozul.

13   I believe that your Lordships must remember that this relates to events of '92 and,

14   unfortunately for us who live there, it was a great misfortune that these things happened,

15   but people and especially the Muslim people and those who exercised some functions in

16   that Muslim people, including my client, could not pass through the areas controlled by

17   Bosnian Serbs and at that time also through to the territory controlled by Bosnian Croats

18   with our normal documents, with Bosnian names.

19   So we know the man who issued a request to the relevant body to issue such an identity

20   card. We have the testimony of that witness, and the authority in the Republic

21   Bosnia-Herzegovina confirming that it has issued orders to all relevant authorities to issue

22   such a document. On two occasions representatives of the HVO, that is Croatian Defence

23   Council, attempted against the life of my client and he could not move freely in any

24   territory whatsoever.

25   The relevant Ministry of the Interior holds that this identity card is an agreement with

26   the decision, with the agreement which existed between the HVO and the BH army, that is

27   BH Ministry of the Interior. It is also said that when against my client another trial was

28   mounted, it said there are implications that he escaped by a Chetnik helicopter. There is

29   complete documentation in the press showing that my client stated publicly and clearly

30   that he left Bosnia-Herzegovina with this identity card and these documents, because the

31   life of those people was otherwise threatened in any other way.

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1   So this is not a man who forges documents or uses forged documents. It was a legally

2   issued document so that under wartime conditions in Bosnia-Herzegovina the movement of

3   people could be ensured. We can also submit all relevant evidence we have to this

4   distinguished Chamber in English and statements of witnesses in Bosnian and they, I

5   believe, are of the utmost relevant for our motion.

6   The answer of the Prosecution says that my Defendant can go to some countries which

7   are not co-operating with this Tribunal. It mentions Serbia where his children live and

8   Croatia where he has a large number of friends and acquaintances. We can also produce

9   evidence clearly showing that if this Tribunal accuses my client of such severe crimes,

10   grave crimes against Serbs, then it is absolutely out of the question -- I am sorry for using

11   this term -- to say that my client can go to a country if he is allegedly responsible for such

12   grave breaches.

13   Secondly, those untruths that my client escaped to Serbia with a Chetnik helicopter, and

14   claiming that my client was a superior issuing orders. These stories originate in the

15   country to which the Prosecution claims that he can go now. So, this is evidently again

16   quite impossible.

17   The third reason why my client should not be provisionally released is that he has

18   considerable financial means. It is quite true that over 20 years of work in various western

19   countries, my client has indeed earned considerable assets, but he has spent all his assets as

20   a patriot helping the struggle against fascism in those territories. Today he has to earn his

21   livelihood and lives and has only his salary, and at present he does not have the salary. We

22   can also submit evidence to this effect, that companies simply cannot -- the company that

23   he works for cannot cover the expenses. His children have no means of support and

24   cannot move from Serbia to another country which would be safer for them. So that these

25   reasons also would prevent my client from boarding a helicopter and moving to a country

26   which does not co-operate.

27   Thirdly, that we have not presented any extraordinary circumstances. We have done so

28   from the beginning. If we look at the documents that I have already mentioned, material

29   and other evidence,

30   statements of witnesses, numerous documents in writing, video

30   material from the time when the events were taking place. If this Chamber hears all this,

31   then it will realise that on the basis of such scarce evidence that is presented, it should not

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1   rule that my client should remain in detention. After all, there are two documents of

2   relevant bodies that no proceedings have been conducted against him and that my client

3   does not have a criminal record.

4   If the Court imposes some additional measures, that is, a compulsory stay in a particular

5   country or whatever, then we would take measures, make an effort to ensure that and to

6   guarantee that my client would always respond to any summons by this Tribunal to

7   appear before this Chamber.

8   So these would be some of the arguments in response to the Prosecutor's response to our

9   motion.

10   Briefly, we have referred to the provisions relative to the detention. I should also like to

11   add that if this Tribunal does not comply with the national legislation, however, the

12   Criminal Proceedings Acts of Slovenia, Croatia, Yugoslavia, Macedonia stipulate the

13   shortest term of detention and the urgent response of all the authorities, that is, the

14   abolition of detention at the moment when grounds for the detention cease to exist.

15   THE PRESIDING JUDGE: Have you considered, perhaps, posting a bond or some other

16   provision that might help to ensure the appearance of the accused, should he be released?

17   There is no specific provision for that in our Rules under Rule 65, of course, but I do not

18   know whether that is a provision that is used in your country or not. Do you understand

19   my question?

20   MS. RESIDOVIC: In view of the financial situation I have already referred to, I can already

21   say that my client can guarantee verbally that he will appear before the Court. He can do

22   it, and we are in contact with the authorities of Bosnia-Herzegovina. If my client is in their

23   territory or in the country where he presently has his residence, that is, with the

24   authorities of the Republic of Austria, we could perhaps agree on some provisional

25   solution that would guarantee that my client would appear before the Court whenever he is

26   summoned. Of course, we would then need a particular period of time, a particular

27   deadline, to know before the Court rules finally on this.

28   THE PRESIDING JUDGE: In your country, if a person who is charged with a serious crime is

29   released on bond, assuming that there is a provision for release, is there typically a

30   provision for that person to post a bond, an amount that would be forfeited if the person

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1   did not appear? You are shaking your head. One is shaking his head "no", one "yes".

2   Someone tell me, please, from the Defence?

3   MR. GALIJATOVIC: In our country there is the institute of the so-called bail and in this case,

4   of course, the assets, the amount, is forfeited in favour of the state, if whoever fails to

5   comply with it. But at present in our state, in Bosnia-Herzegovina, this so-called socialist

6   or, rather, communist Criminal Proceedings Act is in force. It is one of the latest, one of

7   the most advanced, criminal regulations in Europe and probably in the world too.

8   Our criminal proceedings envisage that the Court must ex-officio at any given moment

9   check, verify the justification or the grounds for their detention. I do not have the

10   documentation with me, but we are quite ready to find the means so as to pay the bail

11   bond, the guarantee, or to lay down a deposit which the Chamber determines. As a rule,

12   this is possible with us.

13   Your comment, whether in such cases this is applied in our country, I can say very

14   frankly and very openly that it is not the common practice with us. But we are typical of

15   the Austro-Hungarian school of thought. In 1892, it adopted the criminal proceedings law

16   by Austria Hungary. The terms of detention were 28 hours, 48 hours, 72 hours, seven

17   days and only in exceptional cases the detention could be longer than that.

18   In this provision adopted in the last century, there was also another provision, and that

19   is that every week the Presiding Judge and the President of the Bar Association had to

20   verify the detention, pay a visit to the detainees and things like that.

21   I must add another thing. I am rather disagreeably surprised by the indictment, by the

22   manner in which my client was indicted. I already said that in the court of

23   Bosnia-Herzegovina and I can say it very responsibly. In May '92, I was one of those

24   who proposed to establish this International Tribunal. I believed that national legislations,

25   national political relations and all the circumstances could not bring about the punishment

26   of real criminals for acts, for offences, which are unheard of in the history of the human

27   kind.

28   I also wish to say that this indictment, we have nothing against, neither I, as a lawyer, a

29   Muslim from Bosnia-Herzegovina, we have nothing against our people being brought to

30   trial or being convicted of war crimes. In the course of the war, my colleague and I, we

31   defended hundreds of criminal cases before our military courts which tried people for all

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1   violations of human rights perpetrated by the army of Bosnia-Herzegovina. Rigorous

2   punishments were brought against those perpetrators even for the least violations of

3   human rights. So we have nothing against indicting and incriminating our people, but we

4   are against the manner in which this is done.

5   My client here is accused that since April '92 he was the Commander, he was a

6   co-ordinator and then, as of July, Commander of the first tactical group. So these are two

7   completely different functions in the military and political life. But when holding either of

8   these positions and removing from one to another, he is still responsible, even during this

9   intermediate period when he is out of any of these positions, he is again accused or either

10   committing or omitting to commit various things.

11   So this shows that my client is being framed up by one of the parties to the conflict

12   which wants Zejnil Delalic to represent as a guilty party, regardless of the position he

13   held. Moreover, the indictment must contain evidence on his commanding position.

14   Secondly, his knowledge about possible omissions of either the prison warden or any of

15   his subordinates' actions and reactions. All these facts must be included in the counts of

16   the indictment so as to be able to assess it. As it is, you do not know who he is, what he

17   was, nor do you have any informative documents that would be showing this. You take

18   up two statements of members of the HVO who were in conflict with Delalic and who

19   wanted to liquidate him in order to create peril for some other detentions. Specifically,

20   Zejnil requested himself that he would be transferred from Germany to the Tribunal in The

21   Hague. He will appear before this court at any given moment.

22   But I think that all elements need to be taken into consideration, especially his family

23   situation and everything else, and to rule that he be released from the detention, but he was

24   the one who requested to be transferred. He also asked for his urgent transfer. I do not

25   have here, I do not want to discuss the indictment because I come from a different legal

26   school of thought, but I think that this kind of indictment does not have the feet to stand

27   on without any additional evidence or the analysis of the rights and duties of Zejnil Delalic

28   and what did he do or omitted to do to prevent possible crimes that may have taken place.

29   Thank you.

30   THE PRESIDING JUDGE: I want to hear from the Prosecutor. We have received their written

31   response as well, but the question that I have to both the Defence and to the Prosecutor is

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1   to what extent should the Trial Chamber involve itself in the merits, particularly as it

2   relates to the position of the Defence and its motion for provisional release, that Mr.

3   Delalic was not occupying a position of superior authority and that he is not responsible

4   for the offences charged, alleged to have occurred, in Celebici camp.

5   It seems to me that needs to be resolved; to what extent should this Trial Chamber, in

6   ruling on the motion for provisional release, involve itself in the merits of the crimes

7   charged? You have filed a motion for separate trial, Miss Residovic. I am not sure

8   whether you filed a motion to dismiss the indictment -- have you?

9   MS. RESIDOVIC: Sorry, I did not hear you. I did not quite understand what you asked me.

10   THE PRESIDING JUDGE: You have filed a motion for separate trial. In your motion for a

11   separate trial you have asked that Mr. Delalic, that his trial be severed from the trials of

12   the other accused because he occupies a particular position that is different. The

13   indictment charges that he co-ordinated the activities of the Bosnian Muslim and Bosnian

14   Croat forces in the Konjic area from approximately April 1992 to at least September

15   and was the Commander of the first tactical group of the Bosnian Muslim forces

16   from approximately June 1992 to November 1992. His responsibilities included authority

17   over the Celebici camp and its personnel.

18   That, it seems to me, is the important allegation that is made. His responsibilities

19   included authority over the Celebici camp and its personnel. When you look at the

20   indictment, numerous -- I cannot recall how many counts -- counts are alleged, numerous

21   crimes are charged in several counts charging individuals with committing these offences,

22   never Mr. Delalic, but other individuals, as I recall, who were either the Commander or the

23   Deputy Commander of the camp or guards at the camp.

24   The Prosecutor has charged that he is responsible because he was the Commander of the

25   first tactical group which included authority over the Celebici camp. My question is --

26   that is the allegation, in your motion for provisional release you are saying that he did not

27   have this superior authority, that he did not have authority over the camp, I gather, and he

28   is not responsible -- is this the proper time to consider that?

29   At least in my experience, I would not consider the merits of the charges that are lodged

30   in the indictment in deciding the motion for provisional release. Instead, a motion to

31   dismiss the indictment would be filed saying that either he was or he was not the

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1   Commander but, even if he was the Commander, he had no responsibility. A hearing

2   would then be had on those matters, but that is separate and apart from a motion for

3   provisional release.

4   Judge Stephen says that you have filed a motion based on the defects and the form of the

5   indictment. Perhaps that is the motion that brings this issue to us. But do you understand

6   what I am saying to both counsel? Is this the time for us to consider the merits of the

7   indictment or instead should we look to the indictment as charging very serious offences,

8   Mr. Delalic being from a foreign country and other circumstances?

9   MS. RESIDOVIC: Your Honours, I fully agree with you. It is not today we should discuss

10   this matter. But I have already said our previous motions which indicate the stand of the

11   Defence that he is not responsible for Celebici camp, neither he is the Commander of the

12   camp or the Commander of the first tactical, they are before this Chamber. Some of them

13   have been translated into English. The second also means whether his right to use his

14   mother tongue includes his right to submit written documents in Bosnian. We have

15   accepted your ruling and we agree to discuss it this afternoon. So, it is not now that we

16   shall discuss it. But I think that your Honours have to rule whether this indictment has to

17   be rejected on all counts or not. One hour or perhaps more will be needed to resolve that,

18   but your direct question was answered by my colleague. We know the institute of bail

19   bond and, as for the detention, our legislation, the legislation of all countries in the territory

20   of the former Yugoslavia, envisages compulsory detention in case of those offences which

21   entail death penalty. This Tribunal does not have capital punishment.

22   In all other cases, whenever we are talking about terms of imprisonment, there is no

23   compulsory detention. Even this provision on compulsory detention, in cases of capital

24   punishment there is an exception. This we have in Article 191, para. 1.2 of the criminal

25   proceedings, and detention is always ruled against persons for whom there are grounds to

26   doubt that he has committed an offence for which the law prescribes capital punishment.

27   If evidence shows that this case could enter milder punishment under law, then the

28   detention need not be imposed. This is under our legislation, and so I believe I have

29   answered your question directly now.

30   THE PRESIDING JUDGE: Ms McHenry, will you present argument for the Prosecution?

31   MS McHENRY: Yes, your Honour.

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1   JUDGE STEPHEN: Could I ask you a question? I came here thinking that you would be

2   telling me something of exceptional circumstances and also something about why the Court

3   should be satisfied that the accused will appear for trial. I have heard nothing on either of

4   those critical matters which are the only matters that are relevant to this present

5   application. I wonder whether you want to add something on those two aspects because,

6   without them, it seems to me that your application cannot succeed.

7   MS. RESIDOVIC: Your Honour, I will try to give you the reasons and the main reason, the

8   principal reason, is that the Prosecution has not offered any arguments that directly apply

9   to my client, and other reasons are that the children of my client are in Belgrade. We have

10   submitted documents, press clippings, that can show the climate there.

11   Also, we have also said that the livelihood of about 20 members of his family is

12   dependent on his work. If he is released now, there is no danger of him not appearing for a

13   trial, but also we are allowing him to take care of his family which is now in Austria and

14   other places and we will allow him to prevent further erosion of his circumstances of their

15   living. If we go back to the other questions, maybe adverse results that may refer to this

16   trial. I think that all these reasons are very exceptional, because the detention is an

17   exceptional circumstance and that is the only reason.

18   JUDGE STEPHEN: How old are the children?

19   MS. RESIDOVIC: One is a college student, 18 years, and one is 22, I believe. I am not sure.

20   16 and 22.

21   THE PRESIDING JUDGE: Ms McHenry, would you begin, please?

22   MS McHENRY: Your Honour, the Defence, I believe, is misconstruing the Rules. The

23   Rules have a presumption that an accused will be detained absent exceptional circumstances.

24   I have no independent knowledge about whether or not that is different in the former

25   Yugoslavia or in other countries, but our Rules are very clear, that there is a presumption

26   that an accused will not be released absent exceptional circumstances. I think that

27   presumption is justified for this Tribunal because we are dealing with the most serious

28   cases, because if they are not the most serious violations of International Humanitarian

29   Law, we do not have jurisdiction over them to begin with; and (2) because we do not have

30   the normal police resources of a national state, it is much harder for us to monitor accused

31   and get them if they attempt to flee.

Page 15

1   There is nothing in the Rules in response to your specific question, Judge McDonald,

2   that indicates that the Court can or should consider the merits of the case. I think for the

3   Court to do this, the Rules would have to be amended to permit that and to permit some

4   sort of procedure by which this would happen. In that regard, I want to emphasise to the

5   court that this indictment in addition to being brought by the Prosecution has been

6   confirmed by a judge. So there has already been a finding that there is at least prima facie

7   evidence that, in fact, the accused in this case is responsible for the crimes in the

8   indictment.

9   In this case there are not exceptional circumstances. This defendant is in the same

10   position as all defendants who are now before the Court or who might later on be before

11   the Court. In particular, this Court cannot be satisfied that there is no risk of flight. In

12   this regard, I will point out that we do not even know exactly what country the defendant

13   would go to. He has been living for a number of years, except for a period during the war,

14   in Austria and Germany. I do not even know if they would accept him into their country

15   again. Austria and Germany is where his prior business was. So I do not know how going

16   back to Bosnia would even help him with his financial considerations, but I do not believe

17   those are even necessary for this Court to decide.

18   Thus far there has been no guarantee or any way that this Court could be satisfied that he

19   will not flee. He could easily flee to a country which does not co-operate with the

20   Tribunal. Even if he does go to a country which does co-operate with the Tribunal, we

21   cannot be sure that the country would be able to find the accused if he decided to flee and,

22   even if he was found by this country, it is a matter of months and some significant amount

23   of difficulty to actually get the person to the Tribunal.

24   We would strenuously object to his being released on any kind of bail bond. We do not

25   believe in a crime of this magnitude and given the circumstances here, including that, we are

26   not going to have any reliable way of knowing the defendant's exact financial resources,

27   either from his own finances or others. We would not know what to do. But even besides

28   that, I do not believe in this kind of serious case there is any amount of money that would

29   guarantee that he would appear for trial.

Page 17

1   Similarly, I do not believe that this Court can be satisfied that the accused does not pose

2   a danger to potential witnesses and victims. For that reason, we would ask that this

3   motion be denied immediately.

4   THE PRESIDING JUDGE: Thank you. Judge Stephen has suggested that, perhaps, we can

5   set aside at least for the purposes of this application the whole question of the

6   identification card that has been submitted by the Prosecutor that contains the name other

7   than Delalic but is the photo of Delalic. Ms. Residovic said that was prepared by some

8   individual legally done in order to allow persons to cross Serbian and Croat, I believe, lines.

9   So I just would like your position regarding that. Where did you get this? I have seen it,

10   of course. That and the other attachment is not in my native tongue, so I do not know

11   what it says.

12   MS McHENRY: Your Honour, I have not seen the document that the Defence referred to

13   about this false identity document. We got it from the German and Austrian authorities

14   who conducted searches at various places, including residents and businesses of this

15   accused and other accused. My information is not the same as the Defence counsel's about

16   the source of this document. Because I do not know the specifics of the circumstances of

17   the witness, I am reluctant to say more, especially without having seen the documents of

18   the accused that she refers to, but I do believe that at the time this document was not done

19   properly and it was because at the time the accused or shortly thereafter was fleeing from

20   Bosnian authorities. Again, I do not know all the ins and outs of what was going on at that

21   time because some of that, most of it, is not relevant to the specific case before us but, in

22   fact, I do not think it is necessary for the Court to consider the forged document or false

23   document because I believe the motion can be denied without it, but my information is not

24   the same as Defence counsel's.

25   THE PRESIDING JUDGE: The accused in the papers that it filed has said that Mr. Delalic

26   from 1970 until his arrest has lived and worked in the Federal Republic of Germany and

27   the Republic of Austria, except for the time that he was in the Republic of

28   Bosnia-Herzegovina for eight months. "He works hard to support his family, had 60

29   employees of his business and after his arrest 20 workers had to be dismissed. There are

30   no criminal proceedings against him other than the ones by this Tribunal; that the Republic

31   of Austria, the Republic of Germany and the Republic of Bosnia-Herzegovina have

Page 17

1   co-operated with the Tribunal". The matters relating to his son and daughter living in

2   Belgrade have been addressed; that witnesses and victims of the crimes are located in other

3   countries and are not accessible to Mr. Delalic; that he is not in a position to interfere with

4   any evidence.

5   I gather, Ms McHenry, it is your position that these do not establish exceptional

6   circumstances and, further, that the Defence has failed to demonstrate that the accused will

7   appear for trial, that is, he is not likely to flee, and that because of the nature of the

8   offences charged and based on his papers that he has failed to demonstrate that he would

9   pose a danger to any victim, witness or other person. Is that your position?

10   MS McHENRY: That is my position, your Honour. With respect to some of the specific

11   points argued by the accused, we would take issue with several of them. For instance,

12   although it is the case that Austria has pledged co-operation with the Tribunal, at least as

13   of my last information a couple of months ago, they had not passed any implementing

14   legislation yet.

15   Similarly, with respect to the idea that the witness and victims are located in countries

16   and places which are totally inaccessible to Mr. Delalic, some of the witnesses are in

17   Bosnia and Herzegovina. So, if that is the place that he would go back to, I would disagree

18   with that. So there are some of the specifics. For instance, the fact that his business was

19   in Germany and Austria, given that I do not believe that he could go back there, I think that

20   is irrelevant in any event.

21   So, in general, I would say even if all these things were true they would not demonstrate

22   exceptional circumstances. In fact, however, there are some of them that we do not agree

23   with.

24   THE PRESIDING JUDGE: Ms. Residovic, where is Mr. Delalic's business? Have you made

25   that clear in the papers that you have submitted? Do you consider that that is an

26   important matter for the Trial Chamber to know and ruling on the motion for provisional

27   release?

28   MS. RESIDOVIC: Without consulting Mr. Delalic, I cannot give you an immediate answer to

29   that. I think that the company that is in financial difficulties right now is in Austria, and

30   also he was working in a company in Germany. But, if you will allow me, I would like to

31   consult with Mr. Delalic and he could directly answer this question. I have also not spoken

Page 18

1   about the witnesses. Out of 22 detainees of Celebici, only two that Mr. Delalic for which

2   he intervened to be released say something about his responsibility. Another five heard

3   that he was a significant person in authority and the others had not even heard of him. The

4   detainees from Celebici have published a book about their experience. In '93 there was that

5   Helsinki Watch document where it states that Bosnia-Herzegovina was not hiding

6   existence of its detention centres, and the name of Zejnil Delalic does not appear in this

7   document.

8   So, your Honours, I want to say that his influence on the witnesses, those that do not

9   even know him, have not heard of him, to whom he has done nothing and they have not

10   even heard of him, or you should rely on two witnesses who have pointed to him and

11   they themselves are criminals as members of HVO.

12   As far as the forged document, ID document, is concerned, I can give you assurances of

13   the MUP of Bosnia-Herzegovina from which we asked this document based on today's

14   proceedings. Unfortunately, they are both in the Bosnian language, but if the Tribunal

15   finds it pertinent, it can be translated. But this document from MUP states how this

16   document was issued, under what number and in co-operation with the army and HVO, so

17   that people could move freely through those territories.

18   As you know, there have been two attempts on his life, precisely from persons who are

19   claiming, who are alleging, that he was a person in authority.

20   THE PRESIDING JUDGE: You may submit that document, if you wish, although I agree

21   with Judge Stephen, I think that we could, perhaps, disregard for the purposes of this

22   application this question of the identification document that was raised by the Prosecutor.

23   I personally would be interested in knowing more about Mr. Delalic's contacts with a

24   community, with a country. In your paper, in your application, you indicate or you just

25   state from 1970 until his arrest he has lived in and worked in the Federal Republic of

26   Germany and the Federal Republic of Austria. Ties with a community, in my experience,

27   has been one of the factors, at least as it relates to the likelihood of flight. I do not have a

28   clear picture of that.

29   Where is his business? Is it still in operation? Would he go back to that business and

30   operate that business? That is something that, perhaps, we can discuss this evening.

31   Where is he proposing to live after this, Judge Stephen has suggested? We will not

Page 19

1   continue the hearing on the provisional release this evening, but in the interests of time you

2   will be able to communicate with Mr. Delalic and then inform the Trial Chamber of that

3   limited matter this evening. Is that acceptable, Ms McHenry.

4   MS McHENRY: Yes, your Honour.

5   THE PRESIDING JUDGE: Then I would suggest that the Prosecution and -- one other

6   matter. We have this statement then from the Netherlands and each party has received it.

7   We will consider that to the extent that it is helpful along with our application which we

8   will take under advisement.

9   I would suggest in the time that you have before we meet this evening that, Ms

10   McHenry and Ms. Residovic, you get together and be able to list succinctly what is

11   outstanding, Ms Residovic, what you consider the Prosecution has not complied with, be

12   able to give us a list of those matters so that we can deal with them and understand them

13   quickly and succinctly and, perhaps, we will not even have a need for that meeting this

14   afternoon because everything will be resolved. That would be nice also. But we will then

15   adjourn and we will have a status conference then at, say, 5.45 and that will be in camera

16   and Mr. Delalic will be present as well.

align17   (The hearing adjourned)