Tribunal Criminal Tribunal for the Former Yugoslavia

Page 142

1 Thursday, 20 September 2001

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.04 a.m.

6 JUDGE MAY: Yes. Let the Registrar call the case.

7 THE REGISTRAR: Good morning, Your Honours. Case number IT-00-39

8 & 40-PT, the Prosecutor versus Momcilo Krajisnik and Biljana Plavsic.

9 JUDGE MAY: The appearances, please.

10 MR. TIEGER: Good morning, Mr. President; good morning, Your

11 Honours. Alan Tieger on behalf of the prosecution appearing with

12 Mr. Fergal Gaynor.

13 MR. BRASHICH: Deyan Brashich for the Krajisnik Defence. Good

14 morning, Your Honours.

15 JUDGE MAY: The application today that the Trial Chamber is

16 dealing with is an application for provisional release by Mr. Krajisnik.

17 We have in front of us the motion and response, we have a number of

18 guarantees from Republika Srpska, we have an undertaking from

19 Mr. Krajisnik himself, an undertaking from Mr. Brashich, and we also have

20 statements from the patriarch and from Mr. Kostunica.

21 Now, Mr. Brashich, is it right that there is a representative of

22 the government here today?

23 MR. BRASHICH: Yes, Your Honour, there is. The only other thing

24 which was filed just last night is two addendums. One is a guarantee from

25 the Federal Republic of Yugoslavia, and the second addendum is a statement

Page 143

1 that, if necessary, the Republic of Serbia will add its own guarantee,

2 even though it is a constituent part of the Federal Republic of

3 Yugoslavia.

4 The only other assurances that is also before the Court is that I

5 have been authorised by the immediate members of Mr. Krajisnik's family

6 that real property and improvements, both within the Federation and the

7 Republic of Srpska would -- deeds to those real properties and

8 improvements, deeds to those properties, would be signed in blank and

9 lodged with the registrar and would be forfeited in the event that

10 Mr. Krajisnik does not fulfil the terms and conditions of his provisional

11 release or return back to the Tribunal for trial. In effect, the family

12 would be homeless and without a roof over their heads should Mr. Krajisnik

13 not return.

14 JUDGE MAY: Mr. Brashich, I wonder if it might be of assistance if

15 we now read the motion which you -- the addendum which you put in,

16 together with the guarantee.

17 MR. BRASHICH: Yes, Your Honour.

18 JUDGE MAY: If you would sit down, we'll read that and then we

19 will hear your submissions.

20 [Trial Chamber confers]

21 JUDGE MAY: We've read that. Mr. Brashich, now, what would you

22 like to say?

23 MR. BRASHICH: Your Honour, the Krajisnik Defence urges

24 provisional release for Mr. Krajisnik. I think certain factors weigh in

25 the favour of provisional release. Mr. Krajisnik was not aware of the

Page 144

1 sealed indictment. Had he known, he would have volunteered and

2 surrendered voluntarily. Mr. Krajisnik has been incarcerated for

3 approximately a year and a half. Mr. Krajisnik is willing to be

4 provisionally released, should the Court favour the request, either in the

5 Republic of Srpska or in the Federal Republic of Yugoslavia, specifically

6 in Belgrade, where his brother resides and has an apartment.

7 Mr. Krajisnik has, in the past, cooperated with the Tribunal, and

8 Mr. Krajisnik met, when he was the President of the Assembly, or the

9 Parliament, with Madam Arbour. At the present time, it is at the

10 direction of his attorney, myself, that he is not cooperating because of

11 the pending indictment.

12 The Republika Srpska - and its representative is here to address

13 the Court - is in the process of changing its stance with regard to

14 cooperation.

15 JUDGE ROBINSON: Mr. Brashich, could you explain what you meant

16 when you said that in the past, he had cooperated with the Tribunal, with

17 the former Prosecutor, Madam Arbour. What was the extent of that

18 cooperation?

19 MR. BRASHICH: He met with her, Your Honour, and thereafter he met

20 with members of her staff and gave an extensive interview, which was

21 taped.

22 JUDGE ROBINSON: That was the extent of the cooperation?

23 MR. BRASHICH: Yes, Your Honour. That's all that was asked of

24 him. In his position as the President of the Assembly, he had no

25 executive power subsequent to the Dayton Accord. And with leave of the

Page 145

1 Court, I should like at this time to ask whether or not Mr. Sinisa

2 Djordjevic, a representative of the President, Mr. Ivanic, could address

3 the Court.


5 MR. BRASHICH: Should he --

6 JUDGE MAY: No. From counsel's bench.

7 MR. DJORDJEVIC: [Interpretation] Your Honours of the Trial

8 Chamber, dear colleagues, my name is Sinisa Djordjevic. I am the adviser

9 of the President -- Prime Minister of the Republika Srpska for relations

10 with the Tribunal in The Hague. I am a lawyer by profession. I have come

11 before you here today, your distinguished excellencies and my learned

12 colleagues, to convey to you the position of the government of Republika

13 Srpska with respect to the request made by Mr. Momcilo Krajisnik for

14 provisional release until the beginning of his trial.

15 I have been authorised to convey the fact that the Prime Minister,

16 Mr. Ivanic, adheres fully to the statement he gave on the 27th of August

17 this year, and the component part of that statement is a special guarantee

18 issued by the government of Republika Srpska, which you yourselves have

19 already received, so there is no need for me to expound it further.

20 Furthermore, the government of Republika Srpska, which I represent

21 here, is well-apprised of the fact that there is a conclusion made by this

22 august Tribunal with respect to the fact that Republika Srpska was not

23 sufficiently cooperative -- was not sufficiently disposed to cooperate

24 with The Hague Tribunal. I should like to ask you that you take my

25 position with respect to the government that I represent today and assess

Page 146

1 it in those terms. It is -- the fact is exact that the governments

2 hitherto of Republika Srpska were indeed not sufficiently cooperative with

3 The Hague Tribunal. However, I should like now, if I may, to say a few

4 words about that, to say what the new government has in fact done in

5 relation to The Hague Tribunal. Whether it is sufficient or not, you

6 yourselves will assess.

7 First and foremost, on the 23rd of March this year, a commission

8 was set up, or rather a department attached to the Justice Ministry of

9 Republika Srpska, for relations with The Hague Tribunal. The department,

10 seven days ago, grew to become a bureau, a full-fledged bureau of

11 Republika Srpska for its relations with The Hague Tribunal

12 as a specialised body which in future will not be dependent upon changes

13 and vagaries in politics and policies of other structures in Republika

14 Srpska, depending on the change of government and authority. We are also

15 well aware of the fact that this government has put forward a draft for

16 cooperation with The Hague Tribunal and --

17 JUDGE ROBINSON: I'm sorry. Before you continue, would you just

18 explain what is the precise function of this new bureau which you say has

19 been set up and apparently, from what you say, has a measure of

20 independence.

21 MR. DJORDJEVIC: [Interpretation] Yes, Your Excellency. Let me

22 explain the difference. First of all, it was a fact that depending on the

23 change in government structures, there was a change in the individuals and

24 their way of thinking with respect to the country's relationship towards

25 the Tribunal. It was our idea to set up this special body and organ

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Page 148

1 which, for the moment and temporarily, and I emphasise only temporarily as

2 attached to the Justice Ministry of Republika Srpska, but that it should

3 take on a new function, especially in view of the fact that it will be

4 composed of a team of experts, of individuals who are not politically

5 oriented and tinged, so that they would be able to prevent, depending on

6 their own political interests, any relationships with the Tribunal. They

7 would not be able to do that any longer.

8 Do you wish me to say anything else? Does that satisfy you, Your

9 Honour? Shall I continue?

10 JUDGE ROBINSON: Yes, but I still am not clear as to what this

11 bureau is supposed to do. You have told me about its members, but what is

12 it designed to do in its relationship with the Tribunal?

13 MR. DJORDJEVIC: [Interpretation] This bureau was established by

14 the bill and law for cooperation with the Tribunal in The Hague, and it is

15 expected to be adopted today, and at the latest tomorrow, in fact. The

16 draft law envisages that it is the Bureau which is to be the protagonist

17 of cooperation with the Tribunal, and this in practical terms means that

18 in future, all contacts and requests made by the Tribunal, its demands,

19 will pass through a filter, which is the Bureau. The Bureau of Republika

20 Srpska will be this filter.

21 JUDGE ROBINSON: Thank you. I understand. You may continue.

22 MR. DJORDJEVIC: [Interpretation] Furthermore, as far as the

23 activities of Republika Srpska itself is concerned, you are well aware of

24 the fact that this present government, whose representative I am myself

25 and which issues guarantees for Mr. Krajisnik today, has put on its agenda

Page 149

1 finally the law on cooperation with the International Tribunal in The

2 Hague.

3 I think -- let me also say the following: Regardless of whether

4 justified or not justified reasons which speak of the fact whether this

5 law is necessary or not, we consider that this particular law or act or

6 bill will have full legal force and we give it priority importance. We

7 give priority and importance to cooperation with the Tribunal, and with

8 the enactment of this law, we are duty-bound to fulfil this relationship

9 of cooperation with the Tribunal.

10 In this regard, and in conclusion, let me say the following: I

11 should like to convey the apologies of Mr. Mladen Ivancic, the prime

12 minister of Republika Srpska - Ivanic, I'm sorry - who personally signed

13 the guarantee on behalf of the government, and I should like to explain

14 why he has not been able to attend this august Tribunal. The reason is

15 that the premier today in the Assembly of Republika Srpska, as the

16 authorised person to put forward the law on cooperation with the Tribunal,

17 is duty-bound to be there and to see if there are any different opinions,

18 but his job is to achieve our goal and aim, together with the other

19 Assembly members, and that is to ensure that the bill is turned into a law

20 today or tomorrow.

21 Thank you for your attention.

22 JUDGE MAY: Thank you, Mr. Djordjevic. You may take it that as

23 far as the prime minister is concerned, we accept, of course, that there

24 was no discourtesy intended by the fact that he is not here, and you are

25 well able to represent him.

Page 150

1 Yes, Mr. Brashich.

2 MR. BRASHICH: Mr. Djordjevic has just handed me the originals of

3 the guarantee and his power of attorney, which I will lodge thereafter.

4 Your Honour, I think I've said everything that I can on behalf of

5 my client. We have seen that three individuals who have been given

6 provisional release have returned to the seat of the Tribunal. We have

7 seen an evolvement of the way that the Republika Srpska perceives of this

8 Court. We also have seen that Mrs. Plavsic has returned to Belgrade.

9 The only other assurance that I want to give to the Chamber, and

10 perhaps this should come from Mr. Krajisnik's own lips, is that he has

11 respect for the Tribunal, he will respect the terms and conditions, and

12 that he has a host of reasons why it is imperative for him to return for

13 trial. Should he fail to do so, he would have violated the trust that the

14 patriarch had in him; he would become a pariah within his own people.

15 Should he not return, he would have violated the trust of President

16 Kostunica and his government. Should he fail to return, he would not be

17 able to vindicate his name and his actions during the period of time when

18 he was in government. Should he fail to return, he would have violated

19 his own family and rendered them homeless. Should he fail to return, he

20 would have violated his word to this Court and again would make him

21 a pariah within his own people. I'm not as eloquent as Mr. Krajisnik

22 was --

23 JUDGE MAY: Just a moment.

24 [Trial Chamber confers]

25 JUDGE MAY: Yes, Mr. Brashich.

Page 151

1 MR. BRASHICH: There was another thing that Mr. Krajisnik told me

2 yesterday afternoon. I had placed my word, should he breach that word,

3 that promise to return, and the conditions of his provisional release, no

4 other attorney would represent him.

5 I am not as eloquent as Mr. Krajisnik was yesterday afternoon, and

6 I don't know whether the Court would wish to hear from Mr. Krajisnik's own

7 lips his assurances and warranties.

8 JUDGE MAY: Mr. Brashich, you put it very fully. We've heard your

9 submissions. You've put them fully before us.

10 MR. BRASHICH: Thank you, Your Honour. Then I rest. Thank you.

11 JUDGE MAY: Yes, Mr. Tieger? When you're addressing this

12 question, would you have in mind, in particular, the amount of time which

13 this accused has been in custody, and the possible date for trial, which

14 is a matter of concern, of course, to the Trial Chamber.

15 MR. TIEGER: Yes, Your Honour. Let me begin with the simple

16 legal --

17 THE INTERPRETER: Microphone, please.

18 MR. TIEGER: I'm sorry. Let me begin by noting that it is the

19 accused's burden to establish that the conditions necessary for granting

20 of this motion are satisfied, and it is a substantial burden indeed.

21 There may come a time when the guarantees of Republika Srpska and the

22 other assurances offered by the Defence are sufficient to constitute a

23 significant factor in the Court's consideration of whether that burden has

24 been discharged, but it is clear that that date has not yet arrived. We

25 have heard repeatedly about draft legislation, about actions that will be

Page 152

1 undertaken in the future. In this particular case, we are dealing with

2 legislation that has not been passed to establish a bureau, the

3 effectiveness of which we have no way of knowing about.

4 In light of that, all we can look to is the history of cooperation

5 and apprehension to determine whether or not those guarantees have value.

6 And the Court has already made a determination, as have other Chambers,

7 about the weight that can be given to that history and about the

8 implications of that.

9 Let me also speak briefly to some of the other assurances that

10 were offered by the accused. Mr. Brashich made reference to the

11 declarations of Patriarch Pavle and to the declarations of Mr. Kostunica.

12 I note in that regard that the patriarch was a signatory to a declaration

13 that asserted that the indictment of Mr. Karadzic and the consequent

14 pressure by the international community for his apprehension were

15 illegitimate and had nothing to do with international law.

16 I noted in Mr. Kostunica's declaration that he, among other

17 things, offered, in effect, a character reference for Mr. Krajisnik,

18 asserting that, based on his dealings with Mr. Krajisnik, he was satisfied

19 that he was a man of integrity and his word could be trusted. First of

20 all, I note that the context in which that impression was formed is surely

21 different from one in which the accused faces a substantial period of

22 incarceration, a substantial risk of incarceration, when being tried by an

23 institution which he has previously asserted lacked partiality. I think

24 those are factors that militate strongly against willing submission to

25 this institution's authority.

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Page 154

1 Furthermore, I noted that Mr. Kostunica referred to the, quote,

2 "brutal" apprehension of Mr. Krajisnik, a characterisation that I found,

3 at a minimum, insensitive in the context in the war in former Yugoslavia

4 and the charges which this accused faces. I also noted that it was not

5 the first time that such reference was made by Mr. Kostunica, who referred

6 previously to the brutal arrest and went on to say, as quoted, "It is

7 crystal clear that the War Crimes Tribunal is neither a legal, nor a

8 judicial, nor an international institution." He went on to say it is

9 merely a tool and to characterise it as being a weapon in a war against

10 Serbs. I think those -- reliance on such references is also a matter of

11 some significance to the Court.

12 I further noted that Mr. Kostunica promoted the notion of

13 Mr. Krajisnik's release as having beneficial impact on relationships

14 between this institution and the Bosnian Serbs, a factor which I would

15 suggest, if relevant, is dramatically outweighed by the adverse impact on

16 the millions of victims of the crimes committed during this war, on the

17 victims who risked their lives by coming to testify before this

18 institution, and on the SFOR personnel who risk their lives in efforts to

19 apprehend outstanding suspects.

20 Mr. Djordjevic correctly noted in his introductory remarks that

21 the Court previously determined that the history of cooperation by

22 Republika Srpska was insufficient to satisfy the Court that it could rely

23 that the accused would be apprehended if he fled. Today, in contrast to

24 the situation when the Court made that determination, the risks of flight

25 by the accused are exponentially greater because of the length of time

Page 155

1 involved between now and trial, in contrast to the motion that was

2 previously made, and the assurances, the safeguards, that can be offered

3 are correspondingly less. For that reason, Your Honours, the Prosecution

4 vigorously opposes this motion and submits that it should be denied.

5 JUDGE MAY: Well, you haven't dealt -- we'll hear you in a moment,

6 Mr. Brashich.

7 You haven't dealt with the matter I raised, which is this: You

8 refer to the length of time between now and trial. Eighteen months this

9 accused has been in custody already. Now, that is a matter of concern to

10 any Tribunal, any judicial body. He's in custody and he hasn't been

11 tried. And it's a factor we are going to have to consider.

12 When do you anticipate this case will be ready for trial?

13 MR. TIEGER: Your Honour, I understood from the Court that the

14 matter was set for trial in February. I understand that to be the current

15 date. Let me -- I apologise for not addressing the point the Court raised

16 earlier. The question of the length of detention has been addressed in

17 international law in various contexts. It has been found, as I understand

18 it, to be related to the complexity and magnitude and gravity of the

19 case. In circumstances -- in cases involving circumstances far less

20 complex - because this is indeed, as the Court is aware, a case of unusual

21 complexity - and of lesser magnitude, to be certain, the period of

22 acceptable pre-trial detention has ranged from 19 months to five years,

23 and that is contained in a previous submission by the Prosecution.

24 Certainly no one can be happy with any period of pre-trial detention, but

25 sometimes it is a necessary concomitant of the case, and that is the fact

Page 156

1 here. In addition, we have been moving, as the Court is aware, as

2 vigorously as possible toward getting this matter to trial, and the Court

3 has been pushing that as effectively as it can, I believe.

4 JUDGE MAY: Mr. Tieger, the Prosecution, then, will be ready for

5 trial in February?

6 MR. TIEGER: Your Honour, as I stated before during our Status

7 Conference, we have had that in mind since the Court first raised that

8 date. We are doing everything humanly possible to make that date. That

9 is the date we have in mind, based on what the Court has told us. That is

10 what we are working toward, and we are doing everything possible to

11 satisfy that objective by the Court and by us as well.

12 JUDGE MAY: Thank you.

13 JUDGE ROBINSON: Mr. Tieger, would you like to comment on the

14 offer of guarantees from the Republic of Serbia in terms identical to

15 those which were offered and accepted by this Chamber in respect of

16 Mrs. Plavsic? In relation to Mrs. Plavsic, a significant factor was the

17 fact of her voluntary surrender. In that regard, perhaps you'd like to

18 comment on the submission from the Defence that, in the case of

19 Mr. Krajisnik, there was a sealed indictment, of which he was not aware,

20 and that that was a significant factor explaining why he did not surrender

21 voluntarily.

22 MR. TIEGER: Yes, Your Honour. You raise several questions. Let

23 me take them serially. First of all, with respect to the question of

24 Mr. Krajisnik's apprehension, the Prosecution has never attempted to

25 assert or to characterise that apprehension as equivalent to flight. What

Page 157

1 is true, however, is that Mrs. Plavsic did voluntarily surrender. That

2 was a factor that could be considered positively by this Chamber, and

3 was. That factor is not available to Mr. Krajisnik, for circumstances

4 that have been outlined. We are not attempting to transform this into a

5 negative factor; however, we reject any attempt by the Defence to

6 transform it into a positive factor. It is not. That positive factor

7 existed for Mrs. Plavsic. It does not here.

8 Insofar as the guarantees are concerned, Your Honour, I just

9 received them approximately five minutes before the hearing began. I read

10 them, as Your Honours did, in the course of this proceeding. I'm slightly

11 hesitant to comment on the precise nature of those guarantees, based on a

12 superficial reading. However, I should point out that my understanding is

13 that the guarantees in front of the Court today come from the Federal

14 Republic of Yugoslavia. Mrs. Plavsic's guarantees came from the Republic

15 of Serbia. The question of whose authorities, whose hands-on authorities

16 would be responsible, is one which is raised by that distinction.

17 In addition, I am advised that during the Prosecutor's last visit

18 to Belgrade, she was informed by federal authorities that they had not

19 passed draft legislation in connection with cooperation with the Tribunal,

20 and until such time as such legislation was passed, they would be unable

21 to offer assurances that arrests would be effected. So although I have

22 not had a full opportunity to either study these personally or have them

23 reviewed by people with greater expertise in the area than I possess, it

24 appears to me that they are not the same assurances that this Court relied

25 on in making a determination within Mrs. Plavsic's case.

Page 158

1 [Trial Chamber confers]

2 JUDGE MAY: We will check that, Mr. Tieger. We can compare the

3 two.

4 MR. TIEGER: Your Honour, if I may make one final point.


6 MR. TIEGER: And that is, I think these matters must be determined

7 on a case-by-case basis. I know I'm not telling the Court anything new in

8 saying that, but I mention that because Mrs. Plavsic's situation does not

9 necessarily lend itself to a simple checklist of similarities. There were

10 a variety of subjective factors and subtle nuanced factors that led the

11 Prosecution to withdraw opposition to her release in that case. And

12 although I can't recite the precise history and all the circumstances that

13 led to that, I think the Court was aware of those as the case progressed,

14 to some extent relied on the Prosecution to make its determination based

15 on the many factors known to it and the information available to it, which

16 could not possibly be recited in a single court hearing, and that was the

17 basis for the Prosecution's position in that case. And I think the

18 Chamber needs to keep in mind the variety of circumstances which can lead

19 a court to find that the substantial burden by the Defence has been met in

20 its application for provisional release.

21 JUDGE MAY: Thank you, Mr. Tieger.

22 MR. TIEGER: Thank you, Your Honour.

23 JUDGE MAY: Yes, Mr. Brashich.

24 MR. BRASHICH: Your Honour, very briefly. The February date,

25 while this has been discussed at Status Conferences, we're still getting

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Page 160

1 documents and translations. We still haven't got all of them. I don't

2 see February as a feasible trial date. We have filed -- the Defence has

3 filed jointly a response to the conditional pre-trial brief, so I do not

4 believe that February is a realistic date.

5 Two, I do not see the difference and the nuances that the

6 Prosecution sees between Mr. Krajisnik and Mrs. Plavsic. Mrs. Plavsic

7 enjoyed a far greater role in the government of the Republika Srpska than

8 did Mr. Krajisnik.

9 I don't believe that your question, Judge Robinson, was answered

10 by Mr. Tieger. Just a moment, Your Honour. And, of course, the

11 presumption of innocence has attached to Mr. Krajisnik.

12 Finally, the positions taken by politicians in pronouncements are

13 one thing; reflections upon a person's character are a totally different

14 thing. Mr. Krajisnik is not to be tarred by any opinion that

15 Mr. Krajisnik may have had.

16 Finally, the arrest of --

17 JUDGE MAY: As that reads, you say the opinion Mr. Krajisnik may

18 have held?

19 MR. BRASHICH: Well, the opinion that Mr. --

20 JUDGE MAY: I see what you mean. You're saying the fact that he

21 may have held an opinion does not affect his character. That's the

22 point. Yes.

23 MR. BRASHICH: And finally, Your Honour, if you recall, there was

24 all that correspondence between SFOR and my client prior to his arrest and

25 then his arrest. One wonders, why was Mrs. Plavsic told that there was an

Page 161

1 indictment while Mr. Krajisnik was not? And why was Mrs. Plavsic told

2 eight months later after the indictment had been filed that she was an

3 accused, and not my client? Thank you, Your Honour.

4 MR. TIEGER: I'm sorry, Your Honour. If I can briefly respond to

5 those comments. Number one, it is not the Prosecution's position that

6 Mr. Krajisnik's position in government was far less than Mrs. Plavsic's.

7 JUDGE MAY: That's really just a matter for argument at trial.

8 MR. TIEGER: I appreciate that, but to the extent that counsel

9 raised it, I didn't want that to go unanswered.

10 Number two - and again, I don't want to belabour this. I'm sure

11 the Court knows it - the presumption of innocence has a significant role

12 in a proceeding. Its invocation here --

13 JUDGE MAY: Mr. Tieger, you needn't address us on those points.

14 MR. TIEGER: Okay. Thank you, Your Honour.

15 JUDGE MAY: We'll consider these matters, and we will give a

16 decision in writing. The Court will adjourn.

17 --- Whereupon the Motion Hearing

18 adjourned at 10.53 a.m.