Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Wednesday, 10 July 2002

2 [Provisional release hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.40 p.m.

6 JUDGE MAY: Would the Registrar call the case.

7 THE REGISTRAR: Good afternoon, Your Honours, this is Case Number

8 IT-00-39 and 40-PT, the Prosecutor versus Momcilo Krajisnik and Biljana

9 Plavsic.

10 JUDGE MAY: Appearances, please.

11 MR. TIEGER: Good afternoon, Your Honours. Alan Tieger, Mark

12 Harmon, and Fergal Gaynor appearing for the Prosecution, with Carmela

13 Annink-javier assisting.

14 MR. BRASHICH: Good afternoon, Your Honours. Deyan Brashich for

15 the Krajisnik Defence. I am joined by Mr. Nikola Kostich and I would like

16 to apprise the Court that Mr. Trivan Vovicic, a representative of

17 Republika Srpska here in The Hague is sitting because of circumstances at

18 the Defence table. And I'm sure he will introduce himself.

19 JUDGE MAY: Yes, if you would like to introduce yourself.

20 MR. VOVICIC: [Interpretation] Good afternoon, Your Honours. My

21 name is Trivan Vovicic. I'm a representative of the government of

22 Republika Srpska, and I'm the liaison officer for cooperation with The

23 Hague Tribunal.

24 JUDGE MAY: Thank you. This is the hearing of an application for

25 provisional release on behalf of the accused Momcilo Krajisnik. We have

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1 received pleadings on behalf of both the applicant and the respondent.

2 There's no need for anyone to repeat those, but we'll hear oral argument.

3 We would be grateful if the parties were brief, and at the end, we'll hear

4 from the representative of the Republika Srpska.

5 Yes, Mr. Brashich.

6 MR. BRASHICH: Thank you, Your Honour. I appear once again before

7 this Chamber requesting a provisional release on behalf of my client,

8 Mr. Krajisnik. The Krajisnik Defence is mindful that the jurisprudence of

9 this Tribunal does not allow for motions for reconsideration. However,

10 Your Honour, I think that a change in circumstance has occurred, and a

11 significant change in circumstance which would warrant the granting of the

12 relief. The accused has sought provisional release either in the

13 Republika Srpska or, in the alternative, in the Republic of Serbia and

14 Yugoslavia. And I will just say Serbia, the Republic of Serbia, because

15 the union between Serbia and Montenegro appears to be in some state of

16 flux. However, the Republic of Serbia has passed a law on cooperation

17 with the Tribunal. I am mindful of the decision rendered by this Chamber

18 in another case recently, but that case somewhat is not in point. The

19 real case in point is the case of the accused Cesic. Cesic is a Bosnian

20 Serb. He was on the territory of the Republic of Serbia. He was arrested

21 by the authorities of the Republic of Serbia, and delivered through legal

22 mechanisms to the custody of The Hague. We have at this present time a

23 precedent that a Bosnian Serb found on the territory of the Republic of

24 Serbia will be dealt with in accordance with those promises and

25 representations that had been made to the international community.

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1 Mr. Krajisnik is a Bosnian Serb. Should this Court allow him

2 provisional release on the territory of the Republic of Serbia, and should

3 he not adhere to the terms and conditions imposed by this Chamber, he will

4 be promptly arrested, dealt with, and brought back to The Hague. One of

5 the indices, at least in my national jurisdiction, of someone to be

6 released on bail is, of course, ties to the community. With regard to

7 ties to the community, Mr. Krajisnik's brother lives in Belgrade and would

8 give him a place where to reside while awaiting trial. I will not speak

9 for Mr. Vovicic. I will let him address the Court himself on behalf of

10 the Republika Srpska. But I have been given to understand and I warrant

11 and make a representation that all of the guarantees and representations

12 that were made six months ago on behalf of Mr. Krajisnik, should the

13 Chamber allow the alternative place of provisional release, that is, the

14 Republika Srpska and Pale, are still in place.

15 All that I have said before, including my own representations on

16 behalf of my client, I am willing to repeat, but I don't think that the

17 Court has to hear my broken record. Mr. Krajisnik, I spoke to him

18 yesterday, assures me again that he will make any and all representations,

19 warranties, promises to this Tribunal, to well and faithfully obey the

20 orders and conditions and is prepared to make such a representation

21 orally. Thank you, Your Honours.

22 JUDGE ROBINSON: Mr. Brashich, what would you say is the new

23 circumstance?

24 MR. BRASHICH: Two, things, Your Honour. If we send Mr. Krajisnik

25 to the Republic of Serbia, we have, one, a law that has been passed for

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1 cooperation with The Hague which did not occur -- or which was not in

2 place when the last application was made. And the second changed

3 circumstance is a specific showing by the authorities of the Republic of

4 Serbia or Yugoslavia where they have arrested an accused Bosnian Serb on

5 the territory of Yugoslavia, have gone through the legal process in the

6 legislation being brought before a court of law, having the indictment

7 read to the accused. I believe that the law provides for a very short

8 window in which the accused can take certain acts vis-a-vis the --

9 vis-a-vis the indictment, then thereafter he is extradited and delivered

10 on to the Tribunal.

11 If you will bear with me, Judge Robinson, Mr. Kostich also reminds

12 me that the changed circumstance again with regard to the Republic of

13 Serbia and to Yugoslavia is the continued cooperation with regard to

14 witnesses and documents showing the authorities in Serbia are moving

15 towards full compliance with their obligations with regard to this

16 Tribunal.

17 JUDGE ROBINSON: Thank you, Mr. Brashich.

18 JUDGE MAY: Mr. Brashich, I suppose this point has to be faced,

19 that this accused has been in custody a long time as the Tribunal or the

20 Trial Chamber acknowledges. But there is now the prospect of a trial in

21 November. How realistic is an application which, provided the trial comes

22 on then, is four months off?

23 MR. BRASHICH: Judge May, the Defence has been working day and

24 night to prepare for trial. We are trying, and hopefully, the trial could

25 start in November, but as things happen, it may be delayed. We have

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1 Mr. Krajisnik, who has been incarcerated since April of 2000. I know the

2 case, I think, well, and I have a very strong belief that Mr. Krajisnik, a

3 parliamentarian, will be vindicated and will be found not guilty by this

4 Tribunal. Tat is his wish, and that is what we are striving for. And a

5 vindication of his innocence of the charges will never bring back two and

6 a half years, or two years and three months of his life as a normal,

7 constructive human being that he was prior to the troubles in Bosnia.

8 Even if we give him the freedom of three months or four months to be with

9 his aged mother, if you'll recall one of the applications we had made was

10 on the eve and then death of his father. His mother has been -- which I

11 did not bring out in the moving papers. But I will warrant and make a

12 representation that I have in my possession the reports, prognosis, and

13 medical findings of the military hospital in Belgrade with regard to his

14 mother, and that the prognosis is not favourable.

15 Mr. Krajisnik, as was evidenced in the earlier application, is a

16 deeply and -- and that was the letter of support by his holiness, the head

17 of the Serbian orthodox church -- is again, as I said, he's a very

18 religious man. Even if the trial starts in October, he will have had

19 July, August, September with his mom. Yes, he will have to come back, and

20 based on the position taken by the Dutch authorities, will go back in jail

21 for a year, year and a half, two years when this trial will take place

22 with 405 witnesses by the Prosecution, and 150 by the Krajisnik Defence,

23 again, those years will never be returned to him. And he's prepared to do

24 that, to vindicate his name. But we would have given him something which

25 he will never be able to regain, and that is a couple of months with his

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1 mother.

2 JUDGE MAY: Yes, thank you.

3 Mr. Tieger.

4 MR. TIEGER: Thank you, Your Honour. I will attempt to address

5 only those issues raised by Mr. Brashich in his oral argument rather than

6 revisit the discussions in the written submissions.

7 Mr. Brashich raised two changes of circumstance: The first cited

8 was the law on cooperation. However, his assessment that the status of

9 the Federation appears to be in some state of flux is even something of an

10 understatement. There is a reconfiguration in the offing, agreements have

11 been signed by all the parties, and under those agreements, there would be

12 no Federal Ministry of Interior, the operative body which would be called

13 upon to oversee any guarantees it issued, and any cooperation which needed

14 to be enlisted. Beyond that, even at present, it's the Republic of Serbia

15 authorities who function in the operative role required here. It's the

16 Republic of Serbia, Ministry of the Interior, which is called upon to

17 execute arrest warrants, monitor people, to conduct the tasks necessary to

18 ensure to the extent an entity is willing and able to do so that someone

19 will appear for trial. That's why, in previous applications of this type,

20 there has been a guarantee from the Republic of Serbia, or joint

21 guarantees from the FRY and the Republic of Serbia. And there is no such

22 guarantee here.

23 Mr. Brashich also cited the instance of the arrest of a Bosnian

24 Serb, Mr. Cesic. And I would urge the Court to note the distinction

25 between Mr. Cesic's circumstances. He is a low-level perpetrator from the

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1 Brcko area with other circumstances in which arrests have been required.

2 For example, I believe that Mr. Sljivancanin and Mr. Radic from the

3 Vukovar indictment, former military officials, have been residing in the

4 Republic of Serbia for a long period time, a fact known to the Tribunal

5 and to the authorities. The OTP has made repeated efforts to ensure their

6 arrest. That the problems associated with that failure are clearly

7 associated with the perceived status of those persons. I suggest

8 respectfully that the calculations involved in determining whether

9 resources will be committed and whether a political commitment will exist

10 to arrest one person are not the same as in the case of another

11 potentially more influential person. Beyond that, which addresses only

12 the question of willingness, is the question of wherewithal.

13 Mr. Krajisnik's closest colleagues, also persons of political or military

14 influence and significance in Republika Srpska, have demonstrated

15 considerable agility and success in evading the authorities and remaining

16 out of custody, specifically by enlisting the sympathies and support of

17 persons who continue to hold them in high regard. Another factor to be

18 considered in the distinctions between the situation that Mr. Brashich has

19 cited and the circumstances we must examine here.

20 As a general matter, the jurisprudence of this institution reflect

21 some consistency in those applications for provisional release which have

22 been successful, and that has been particularly pronounced in the recent

23 past, and that is the following: The accused voluntarily surrendered; the

24 accused had a guarantee from the Republik to which he sought release; and

25 there was a long period of time anticipated between the motion and the

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1 trial date.

2 Just to add one additional point, Your Honour, while still

3 attempting to remain brief, I noted Mr. Brashich's benign account of

4 Mr. Krajisnik's -- rather glowing account of his character and his passive

5 role in what Mr. Brashich called the troubles and the invocation of some

6 emotional factors, and I would suggest that any kind of appeal to the

7 emotions is not appropriate in light of the massive sufferings reflected

8 in the indictment. And that's all I'll say in response to that aspect of

9 his appeal. I urge the Court to focus on the totality of the

10 circumstances, the circumstances have certainly not changed in a

11 meaningful way to justify any departure from the previous rulings. Thank

12 you, Your Honour.

13 JUDGE MAY: Thank you. Mr. Brashich, is there something you want

14 to say in reply briefly?

15 MR. BRASHICH: Three things, Your Honour. We have a guarantee

16 from Yugoslavia. We have a guarantee from Srpska. If the Court wants to

17 make a condition on the guarantee of the Republic of Serbia, I will

18 certainly endeavour to try. Two, the two individuals who were mentioned

19 who have not been arrested are military officers and that's Sljivancanin

20 and Radic. And three, Your Honour, I still believe there's a presumption

21 of innocence in the statute. Thank you.

22 JUDGE MAY: Now, Mr. Jovocic, is there anything you'd like to add

23 to what has been said already?

24 MR. VOVICIC: [Interpretation] Thank you, Your Honours, for

25 allowing me to address you.

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1 First of all, may I say that the government of the Republika

2 Srpska fully abides by the guarantees that have already been provided to

3 you. By your leave, I should also like to say that Mr. Tieger, perhaps

4 made an oversight. Mr. Krajisnik was not publicly indicted, and therefore

5 he had no possibility of voluntarily surrendering. I can also confirm on

6 behalf of the government of Republika Srpska, that if Mr. Krajisnik is

7 provisionally released and if he goes to Republika Srpska, the government

8 will fully abide by all the rulings of the Trial Chamber. Whenever the

9 Trial Chamber allowed persons from the territory of Republika Srpska to be

10 provisionally released, all these persons fully abided by the rulings of

11 the Court and at the request of the Trial Chamber, they were all returned.

12 Thank you.

13 JUDGE MAY: Thank you, Mr. Jovocic.

14 JUDGE ROBINSON: Mr. Brashich, I just wondered about the absence

15 of a guarantee from the Republic of Serbia. And there was one that was

16 produced in the previous hearing, but it strikes me that your application

17 would be stronger if you had one for the current hearing. Because I always

18 want to know whether that guarantee still holds in respect of the new

19 application.

20 MR. BRASHICH: Yes, Your Honour. That is my fault. That was my

21 oversight, and perhaps not being as thorough as I should have been on

22 behalf of my client. So I take the blame for that omission, and I will

23 try and rectify that and file a guarantee from the present Republic of

24 Serbia. And the only thing which I would add to that would be the

25 assurances made in the Ojdanic case before this very Chamber, and rely on

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1 the one, my completing the record, and two, seeking the Chamber to take

2 judicial notice of the testimony in the Ojdanic case.

3 JUDGE MAY: The Chamber will --

4 MR. TIEGER: I'm sorry, and I know you want to be brief. Just one

5 quick point of clarification and another point. In response to Judge

6 Robinson's questions, I'm not sure if there was a misunderstanding in the

7 last exchange. I don't believe there was ever a guarantee from the

8 Republic of Serbia. I think the guarantee that was presented before was

9 from the Federal Republic of Yugoslavia, which is part of the reason I

10 focussed on the distinction earlier. And I'd finally note that with

11 respect to Republika Srpska, that it is still the case that no publicly

12 indicted person has been arrested by the Republika Srpska authorities, and

13 in fact, the gentleman who was apprehended by SFOR yesterday I believe was

14 publicly indicted and was arrested at his home. Thank you, Your Honour.

15 JUDGE MAY: The Trial Chamber will consider this matter, and we

16 will give our decision in writing. We'll rise now. Reconvene shortly.

17 --- Whereupon the Provisional Release Hearing

18 adjourned at 4.09, to be followed by an Ex Parte.








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