Tribunal Criminal Tribunal for the Former Yugoslavia

Page 61

1 Monday, 10 May 2004

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.34 a.m.

6 JUDGE ROBINSON: Will the Registrar call the case, please.

7 THE REGISTRAR: Good morning, Your Honours. Case number

8 IT-03-69-PT, the Prosecutor versus Jovica Stanisic and Franko Simatovic.

9 JUDGE ROBINSON: May we have the appearances for the Prosecution.

10 MR. GROOME: Good morning. The attorneys representing the

11 Prosecution here this morning are myself, Dermot Groome, David Re, and

12 Melissa Pack. We are assisted today by Skye Winner and Rachel Friedman.

13 JUDGE ROBINSON: For the Defence.

14 MR. KNOOPS: Your Honours, Mr. Knoops, lead counsel in the case

15 of Mr. Stanisic.

16 JUDGE ROBINSON: Thank you, Mr. Knoops. And for Mr. Simatovic.

17 MR. JOVANOVIC: [Interpretation] Good morning, Your Honour. I am

18 Zoran Jovanovic, attorney from Belgrade, representing Franko Simatovic.

19 Thank you.

20 JUDGE ROBINSON: Thank you, Mr. Jovanovic.

21 This is an application by the two accused, Franko Simatovic and

22 Jovica Stanisic, for provisional release. The Chamber decided to hear

23 the matters separately. The two accused are present, because, as has been

24 indicated by the order which was issued, we will hear the government

25 minister and representative, one after the other so that they will not

Page 62

1 have to give evidence twice. When the minister and the government

2 representative have finished their evidence, we'll proceed with the

3 Simatovic application. When that application is finished, we'll have a

4 short Status Conference, and at the end of that hearing, we'll move on to

5 the application by the accused Stanisic.

6 Let me make two rulings before we proceed. First, in relation to

7 the Defence, the Chamber decided that Defence could have a week in which

8 to cross-examine the two Prosecution investigators, and I wanted to find

9 out from the Defence whether they will choose to take that further time

10 or whether they will proceed with cross-examination today. Can I hear

11 first from Mr. Jovanovic.

12 MR. JOVANOVIC: [Interpretation] Your Honour, after your ruling,

13 when you agreed to the interview with the investigator, in agreement with

14 my learned friend Mr. Knoops, we decided to carry out the

15 cross-examination immediately. But Mr. Knoops will present his remarks

16 with respect to the cross-examination of these two witnesses, and I will

17 join him in that. There's just one further point I wish to make in that

18 context. We have just received a confidential memorandum from the

19 Prosecution with a list of all the evidence and expert reports that have

20 been disclosed so far. However, under number 2, a document is exhibited,

21 that is, a newspaper article that the Defence was not disclosed, nor was

22 it mentioned in any filing of the Prosecution. Even in the last filing,

23 suggesting the cross-examination of these witnesses, this article was

24 never mentioned. So it is not clear to us what the context is, and the

25 Defence has not had a chance to respond to this. And the Defence could

Page 63

1 certainly respond to the facts contained in that article. So I would

2 like the Prosecution to provide some clarification on this point, if

3 possible. Thank you.

4 JUDGE KWON: I don't think the Chamber is also aware of that

5 document.

6 JUDGE ROBINSON: We are not aware of it, Mr. Groome.

7 MR. GROOME: Your Honour, I've simply assembled the documents

8 that I may question some of the Defence witnesses with and I've just

9 assembled them in the same binder. At the end of the hearing today I may

10 be requesting that some of them be accepted into evidence, but it is a

11 document that I do wish to -- or a newspaper article which I do wish to

12 inquire to the government witnesses are they aware of this and ask them

13 questions about it. I'm not aware that I have any disclosure obligation

14 regarding questions I'm going to ask their witnesses and it's simply a

15 copy of a newspaper article that appeared recently in the Belgrade press.

16 JUDGE ROBINSON: All right. We'll deal with that when we come to

17 it.

18 Mr. Knoops, you had some remarks to make.

19 MR. KNOOPS: Thank you, Your Honours. Like my learned friend

20 Mr. Jovanovic expressed, we will not request the Trial Chamber to adjourn

21 for a week for potential cross-examination of the two OTP investigators.

22 We, though, like to stress again our objection against the

23 hearing of the two investigators, because we believe that their

24 statements do not comply with the criteria as set forth by the Appeals

25 Chamber in the Kordic case, in the judgement of 21 July 2000, where the

Page 64

1 Appeals Chamber has set forth six specific circumstances under which

2 hearsay evidence can be admitted into the proceedings. And we also

3 respectfully draw your attention to the ruling of your Trial Chamber in

4 the Milosevic case, where the OTP investigator Mr. Kelly was refused to

5 take the stand by the Trial Chamber based on these same criteria. So

6 therefore, we respectfully ask Your Honours to eventually reconsider your

7 decision, but for the record, we would like to stress our objection

8 against the hearing of the two OTP investigators. Aside from the

9 time-frame, we think -- we believe strongly that their statements do not

10 comply, in short, with the Appeals Chamber's criteria. Thank you.

11 JUDGE ROBINSON: I should say that I think there's a clear

12 distinction between this case and that of Mr. Kelly, who was a

13 summarising witness. The Chamber doesn't see the two OTP investigators

14 as summarising witnesses.

15 The other ruling which I wish to make was in relation to an

16 application by the Prosecutor to have the transcript of Dr. Smalc from

17 another trial admitted under Rule 92 bis (D). This application is

18 refused. It is clearly out of time.

19 Mr. Groome, I should say in relation to the witness

20 Dr. Boomgaard, the Chamber will allow him to give evidence, and at the

21 end of the hearing we will try to work out an appropriate time to hear

22 him.

23 MR. GROOME: Yes, Your Honour. We have spoken to him this

24 morning and we will have the most current information regarding his

25 availability when the Chamber wishes to discuss that.

Page 65

1 JUDGE ROBINSON: Thank you. May we then begin hearing

2 submissions, opening submissions on behalf of the accused Franko

3 Simatovic. Mr. Jovanovic.

4 MR. JOVANOVIC: Thank you, Your Honours. First of all, could we

5 deal with the application for provisional release which has been marked

6 as confidential, because there are quotations from the disclosed

7 material, material disclosed by the Prosecution, which was disclosed to

8 the Defence as confidential. And that is the only reason, so we can

9 consider this to be partially confidential, that is, only with regard to

10 parts of the transcript that were disclosed to the Defence as being

11 confidential, and the mention of a particular witness in that filing. As

12 regards all the other submissions, there's no reason for this to be

13 confidential, nor for us to consider or hear this application in closed

14 session. Therefore, the Defence of Mr. Simatovic would like this to be

15 made in public hearing; if the Prosecution agrees, of course.

16 JUDGE ROBINSON: Mr. Groome.

17 MR. GROOME: Your Honour, I have no objection but for tab 5 of

18 the exhibits that the Prosecution intends to use, and that's an affidavit

19 of Investigator O'Donnell does contain some information which might

20 compromise current OTP operations. I would ask that reference to that be

21 taken in closed session and that it be placed under seal.

22 JUDGE ROBINSON: Thank you. You have heard that.

23 MR. JOVANOVIC: [Interpretation] Thank you very much. May I add

24 something? Regarding the closed session during the hearing of this

25 witness, should I mention that straight away or when we come to that?

Page 66

1 JUDGE ROBINSON: You can mention it when we come to it.

2 MR. GROOME: Your Honour, I apologise for interrupting, but if I

3 could just point out that the transcript at 9:44:33 records Mr. Knoops as

4 speaking when it was Mr. Jovanovic was speaking.

5 JUDGE ROBINSON: Thank you. That amendment will be made.

6 MR. JOVANOVIC: [Interpretation] Thank you. Your Honours, the

7 Defence for the accused Franko Simatovic, in its application for

8 provisional release, as well as through responses to the filings of the

9 Prosecution, has provided arguments in favour of the position that the

10 conditions provided for under Rule 65 have been met. The Defence

11 believes that on the basis of the arguments presented to the Trial

12 Chamber, it can be confident that the accused will appear and that his

13 provisional release will not put at risk any witness or victim.

14 Also, as a necessary element of the application for provisional

15 release, guarantees have also been provided by the government of the

16 Republic of Serbia and the State Union of Serbia and Montenegro. The

17 guarantees of the Republic of Serbia have been filed in the form of two

18 conclusions; first, a conclusion of the previous government and a

19 conclusion of the current government of the Republic of Serbia. And

20 Mr. Stojkovic is the minister of justice in that government, who we will

21 be hearing today. And Mr. Caric will also be present as a representative

22 of the State Union of Serbia and Montenegro.

23 With regard to the first condition, that is, whether Franko

24 Simatovic will appear for trial: Allow me to say that, as a relevant and

25 most important fact stressed by the Defence, and why we feel that we can

Page 67

1 assure the Trial Chamber that the accused will appear for trial is his

2 personal attitude towards the Tribunal. That attitude has been

3 demonstrated by the accused Franko Simatovic on several occasions,

4 starting from cooperation with the Prosecution, which dates back to the

5 beginning of 2002. There was an interview that went on for about 30

6 hours, and Mr. Franko Simatovic stated clearly on that occasion that he

7 considers this Tribunal to be a Tribunal of his country as well, in view

8 of its membership in the United Nations.

9 On that occasion, and later on - and this is to be found in my

10 submissions - he repeated this position of his, that is, that he would

11 cooperate with this Tribunal in every shape and form; and perhaps most

12 importantly, he fully recognises the jurisdiction of this Tribunal in

13 establishing his possible guilt. And at the end of this interview that

14 he granted to my learned friends from the Prosecution, after being

15 presented with the suspicions and with the charges made against him -

16 even after that - he said that he considered this Tribunal to be a

17 Tribunal of his country as well and that he will respond to summons,

18 considering this to be his duty. This is the first point which can serve

19 as assurances that the accused will appear for trial.

20 Regardless of the personal attitude of the accused which I have

21 already described, it is essential for the state where the accused would

22 be staying if he were to be provisionally released has to make its

23 position clear and it has done so, to the effect that it will comply with

24 all the obligations that may be imposed on the state by this Tribunal

25 should the accused be provisionally released.

Page 68

1 In view of the position of the Defence, as presented with regard

2 to the personal attitude of the accused towards the Tribunal, the Defence

3 feels that should the accused Franko Simatovic be provisionally released

4 and when being summoned to trial, the assistance of the state would not

5 be necessary, in fact. It would only be necessary to the extent of

6 issuing him with a passport which he is not in the possession of just

7 now.

8 When we come to guarantees, the Prosecution's practice so far,

9 and in this case too, has linked guarantees to the level of cooperation

10 of the state with the Tribunal. That is the Republic of Serbia and the

11 State Union of Serbia and Montenegro. Any lack of cooperation of this

12 kind compromises such guarantees. The Defence is of the opinion, in view

13 of the established practice of the Tribunal, that in each individual

14 application for provisional release, the facts need to be established

15 which are relevant to that case and to those charges. We feel that

16 guarantees should not necessarily be derived out of the context of other

17 elements typical for that particular case, and they should not be linked

18 exclusively to the general level of cooperation of a particular state --

19 that is, the view that a certain state is not cooperating fully because

20 it hasn't fulfilled all its obligations. I think this should be put in

21 more concrete form and it should be stated that the guarantees provided

22 by the Republic of Serbia and the Republic of Montenegro as well as the

23 union of the two have always functioned. All persons that have been

24 provisionally released so far did appear before the Tribunal when

25 summoned. While those persons were on provisional release, the state

Page 69

1 authorities fully complied with all their obligations, with all their

2 duties such as supervision of the accused, regular reporting to the

3 Tribunal about their movements, and so on.

4 Therefore, in the practice of this Court so far, the Republic of

5 Serbia has never once failed in fulfilling its obligations in any -- by

6 any individual act, and that is why we feel that it would be a simplified

7 attitude to link this to the fact that a state cannot or will not

8 surrender a fugitive. This should not be linked to the application of a

9 particular suspect for provisional release.

10 Attached to my application for provisional release, I have

11 attached an article from New York Times, but for other reasons, but I

12 will mention it now, since the Prosecution is asking the Trial Chamber to

13 admit into evidence the letter of the president of the Tribunal,

14 Mr. Theodor Meron. And his position is that Serbia and Montenegro are

15 not cooperating at present. However, this text, dating back from July

16 last year - actually, ten months ago - Judge Meron said that a new spirit

17 of cooperation is coming from Belgrade and that one has to see how many

18 people, high-ranking people had been arrested and surrendered to the

19 Tribunal. This was stated ten months ago.

20 I'm just trying to say that this cooperation with respect to

21 guarantees may be variable. The position is not that Serbia and

22 Montenegro are definitely not cooperating with the Tribunal. The

23 Minister of Justice, Mr. Zoran Stojkovic, and the representative of the

24 union will have an opportunity to state clearly what the plans are of

25 that state union with respect to cooperation with the Tribunal.

Page 70

1 It is a fact that the president of the Tribunal at this point in

2 time feels that Serbia and Montenegro are not cooperating, but we will

3 hear from the representatives of that union what their views are.

4 However, we feel that this shouldn't be viewed in simplified terms. One

5 cannot say there's no cooperation or there is cooperation. It is a more

6 complex matter than that. And I will use a similar method as was used by

7 my learned friend Mr. Groome in his response to the Defence application.

8 He says that he has knowledge of a certain fact. And I would like to say

9 the same, that I have certain knowledge which I'm sure the Prosecution

10 shares; that is, knowledge with regard to an example of a country which,

11 upon the invitation of the Prosecution to state whether it accepts the

12 subpoenas of the Tribunal and subpoenas of the Trial Chamber, it answered

13 loud and clear that it was contrary to its legal system and that it

14 cannot comply with the requirements of this Tribunal. And it is

15 interesting to note that that country considers this Tribunal to be an

16 alien Tribunal. It is not under the jurisdiction of this Tribunal, but

17 is a member of the United Nations, and it does delegate judges to this

18 Court. This was not included in the Prosecution's report to the

19 Tribunal's president. So it is their opinion that even though they have

20 clearly stated that they would not accept subpoenas, they still consider

21 them to be cooperating. I think such situations too should be taken into

22 consideration when assessing the cooperation of the State Union of Serbia

23 and Montenegro or the Republic of Serbia with the Tribunal.

24 With respect to the other condition envisaged by Rule 65, and

25 that is whether the accused will appear for trial, that is the Trial

Page 71

1 Chamber must be confident that he will not threaten in any way witnesses,

2 victims or any other persons while on provisional release.

3 In their response, the Prosecution says that the accused Franko

4 Simatovic was employed in the Ministry of the Interior of the Republic of

5 Serbia; actually, the Defence explained that the state security at the

6 time, the State Security Service, was one of two sectors of the Ministry

7 of Internal Affairs, and the Prosecutor interprets this as meaning that

8 the accused has knowledge and information as to where Prosecution

9 witnesses may be residing, that he might locate them and influence them.

10 With regard to the relationship between the accused and the

11 Ministry of Internal Affairs of the Republic of Serbia, the Defence has

12 explained in its application and response. The accused was arrested

13 without any grounds by that same Ministry of Defence, and I go back to

14 the text of the New York Times, which I have submitted and which the

15 Prosecution has considered as insignificant but not incorrect. That

16 article also contains those facts. Therefore, Franko Simatovic was

17 arrested without any reason, and judging by the assertions in this

18 article, officials of the former Serbian government asked for assistance.

19 I'll explain what this is all about. He was arrested on the 13th

20 of March, and this indictment was confirmed on the 1st of May. When

21 Franko Simatovic was interviewed by the investigating judge, he ruled

22 detention beginning on the 13th of March. This was subsequently changed.

23 So what this means is that he was arrested without any grounds,

24 and then every effort was made to legalise this procedure. And when they

25 failed to do so, then - according to Madam Carla Del Ponte - the

Page 72

1 officials of the former government asked her for her assistance, saying

2 that they had no reason to keep in detention on remand the accused and

3 could the Prosecution assist by indicting him, and of course arresting

4 him.

5 According to the words of my learned friend, Del Ponte, the

6 investigation was expedited. At that moment, the OTP had no intention of

7 raising an indictment because the investigation by that time had not been

8 completed. However, at the request of officials of the Serbian

9 government, the OTP simply expedited their investigation in order to

10 accommodate officials of the Serbian government so that they could use

11 this to justify this unwarranted detention.

12 It is in this sense that the Defence believes that there was a

13 third party that directly affected the time of detention itself. The

14 raising of the indictment means that first there was an order for

15 detention. And this was all done at a time when this proved very

16 convenient for certain officials of the previous Serbian government and

17 not the OTP. The beginning of Mr. Simatovic's detention chronologically

18 follows his arrest in Belgrade and was directly affected by the third

19 party. The Defence believes this is a violation of Article 16 of the

20 Statute.

21 As for the OTP's allegations in relation to the relevance of the

22 allegations made against Mr. Simatovic possibly leading him not to appear

23 before this Court, the Defence has stated on several occasions before

24 that he is familiar with such suspicions. He was interviewed for a long

25 time and was familiarised with the general nature of the OTP's

Page 73

1 investigation and was fully familiar with it even in relation to the

2 time-frame that the indictment refers to, 1992 to 1995. It is actually

3 quite a long time-frame. Towards the end of the interview, and later, he

4 gave all these statements that I have referred to, and these indicate

5 that he is willing to fully cooperate with the Tribunal. He was

6 familiarised before with what potential witnesses would be, but none of

7 those persons who later testified in the Milosevic case - and there was

8 quite a number of such witnesses testifying in the Milosevic case who in

9 one context or another also referred to this accused - none of those

10 persons ever said that they were threatened or jeopardised by the accused

11 Franko Simatovic.

12 As for the weight of the accusations themselves, I believe it is

13 a simple piece of demagoguery to state these as the reason why someone

14 should not be provisionally released. It is clear that all the trials

15 based on indictments raised before this Tribunal are in relation to very

16 serious allegations against people who stand indicted. The United

17 Nations resolution specifies that these are the most serious crimes

18 possible, and the responsibility for these crimes is equally great.

19 Now, in relation to indictments that have before been raised

20 before this Tribunal -- follow the same criterion. It is perfectly clear

21 that trials are being conducted before this Court for the most serious

22 crimes possible, and the same applies to this case as to all the other

23 cases before this Tribunal. Rule 65, however, provides for the

24 possibility of provisional release, and this is a well-known procedure in

25 the case-law of this Tribunal. As we know, a number of high-positioned

Page 74

1 persons who held political offices have been known to be provisionally

2 released before this Tribunal and to appear for trial.

3 Therefore, Your Honours, the Defence of the accused Franko

4 Simatovic believes that all the conditions have been met as required by

5 Rule 65, first through the personal attitude displayed by the accused

6 Franko Simatovic in his statements, and as we know, these statements are

7 relevant for this Tribunal.

8 I would like to remind the Court of the arguments put forward by

9 the OTP during the procedure for the provisional release of the accused

10 Sainovic and Ojdanic. The OTP attempted to prove that there was no

11 goodwill on the part of the accused to surrender themselves. However,

12 the accused Franko Simatovic, in addition to his statements, the

13 statements that he gave clearly displayed his willingness to cooperate

14 with the Tribunal. Was he telling the truth? I believe the OTP does not

15 have the jurisdiction to decide over that, and there should be a

16 conclusion, a final conclusion, as to Mr. Simatovic collaborated or not,

17 was he telling the truth or not. He was cooperating. Indeed he was,

18 even without the assistance of state organs. It wasn't even necessary

19 for the OTP to appeal for help to the state organs to get Mr. Simatovic's

20 cooperation. He cooperated without any of the state bodies knowing about

21 it. He cooperated before the law was even adopted on cooperation with

22 the International Criminal Tribunal that many people later referred to.

23 Mr. Simatovic was not even familiar with that law. He sees himself in a

24 direct relationship with this Tribunal, a personal relationship.

25 On the basis of the guarantees that have been issued in relation

Page 75

1 to the motion for provisional release, all the conditions have been met

2 as required by Rule 65. I pointed out that some degree of cooperation

3 has been achieved, unfortunately, contrary to the Statute and the rules,

4 with Serbian officials from the previous government and the OTP. I do

5 not believe the Chamber should accept this. If the OTP agrees to have

6 that kind of cooperation, I believe at least the Chamber should not

7 approve this in its ruling. Therefore, I would like to ask the Trial

8 Chamber to grant provisional release for the accused Mr. Franko Simatovic

9 until the start of his trial. He will be staying in Yugoslavia. And

10 please rest assured that he will answer any summons that may be sent to

11 him from this Tribunal. Thank you very much.

12 JUDGE ROBINSON: Thank you, Mr. Jovanovic.

13 [Trial Chamber confers]

14 JUDGE ROBINSON: Yes, Mr. Groome.

15 MR. GROOME: Your Honour, I would just say I allowed my learned

16 colleague to complete his remarks, but I would be remiss if I did not

17 point out at this point that I do take issue with his alleged quote of

18 Ms. Carla Del Ponte. He has misquoted the Prosecutor and he's also

19 mischaracterised the nature of her interaction with the Serbian

20 government around the time that the accused Mr. Simatovic was arrested.

21 He has suggested a quite serious allegation to the Chamber. I'm not -- I

22 don't believe it's appropriate matter for provisional release. I would

23 ask that if he believes that such an allegation is founded that he make a

24 proper motion so that it can be dealt with in a more proper fashion than

25 by innuendo. Thank you.

Page 76

1 JUDGE ROBINSON: Mr. Jovanovic, your first witness. Do you want

2 to reply to that?

3 MR. JOVANOVIC: [Interpretation] Your Honour, if I may just

4 briefly. I have just quoted an article, one paragraph of the article

5 that I attached to my motion, and it is up to the OTP to respond to that.

6 Please believe me that the Defence of Mr. Simatovic also found this quite

7 strange. That's why I clearly stated this in my motion, to give the OTP

8 a chance to respond. Just as Mr. Groome has responded. This was

9 probably a misrepresentation, and the OTP was given a chance to say that

10 it was.

11 However, they themselves clearly stated they believed it

12 irrelevant. Was this a misinterpretation on my part? Perhaps. Or

13 perhaps the misinterpretation was contained in the original article. Had

14 the OTP responded in a timely manner, the Defence would have been given a

15 chance to call the author of the text himself or perhaps to make other

16 sources available. But the OTP failed to speak about it, failed to

17 address this issue.

18 Even now, I can only say that I'm sorry if the OTP believes that

19 I have acted in an unfair manner in any way whatsoever, but this is a

20 fact. Thank you.

21 JUDGE ROBINSON: Thank you. We proceed now to the hearing of the

22 witnesses. Mr. Simatovic, your first witness. You intend to call the

23 minister, Minister Stojkovic.

24 MR. JOVANOVIC: [Interpretation] Yes, Your Honour.

25 JUDGE ROBINSON: [Previous translation continues]... To both

Page 77

1 accused.

2 MR. JOVANOVIC: [Interpretation] Indeed, Your Honour.

3 JUDGE ROBINSON: [Previous translation continues]... Jovanovic.

4 Let the witness be called.

5 [Trial Chamber and legal officer confer]

6 JUDGE ROBINSON: Mr. Jovanovic and Mr. Groome, I just want to

7 confirm that the government minister will be giving evidence and will be

8 subject to cross-examination, will make the declaration.

9 MR. GROOME: Your Honour, I would expect that every witness that

10 takes the witness chair would take the declaration.

11 JUDGE ROBINSON: That's my expectation too, yes.

12 Mr. Jovanovic.

13 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. I fully agree

14 with that.

15 JUDGE ROBINSON: Why is it taking so long for the witness to

16 appear, Madam Registrar? Is there a problem?

17 THE REGISTRAR: Your Honour, I will check. I have no idea why

18 it's taking so long.

19 JUDGE ROBINSON: The witness will be here shortly, I'm advised.

20 [The witness entered court]

21 JUDGE ROBINSON: Let the witness make the declaration.


23 [Witness answered through interpreter]

24 THE WITNESS: [Interpretation] I solemnly declare that I will

25 speak the truth, the whole truth, and nothing but the truth.

Page 78

1 JUDGE ROBINSON: Thank you. You may sit.

2 Mr. Jovanovic.

3 THE WITNESS: [Interpretation] Stojkovic.

4 JUDGE ROBINSON: Mr. Stojkovic. Mr. Jovanovic.

5 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

6 THE WITNESS: [Interpretation] In accordance with Article 36 of

7 the law on co-operation -- my apologies.

8 JUDGE ROBINSON: Mr. Jovanovic will ask you some questions.

9 Examined by Mr. Jovanovic:

10 Q. [Interpretation] Good morning, Mr. Stojkovic. My name is Zoran

11 Jovanovic. I represent the accused Franko Simatovic before this

12 Tribunal. Please state your name and your official position.

13 A. Zoran Stojkovic, minister of justice in the government of the

14 Republic of Serbia.

15 Q. Thank you very much, Mr. Stojkovic.

16 Mr. Stojkovic, the government of the Republic of Serbia, on the

17 6th of May, 2004, adopted a conclusion confirming the conclusion of the

18 government of the Republic of Serbia in its previous establishment,

19 providing the guarantees for cooperation of the Republic of Serbia with

20 the International Criminal Tribunal in the case, in the eventuality of

21 the provisional release of Franko Simatovic. Would you provide further

22 clarification as to what these guarantees mean exactly and why these were

23 provided for the accused Franko Simatovic.

24 A. According to Article 36 on the law of the cooperation with this

25 Tribunal, the Council of Ministers and the republican government

Page 79

1 envisaged a possibility that the Trial Chamber would grant provisional

2 release for any of the accused and the Republic takes upon itself the

3 obligation to provide certain guarantees in relation to the provisional

4 release of these persons. There are a number of considerations that are

5 included here. The person should stay in the country, as decided by the

6 Council of Ministers. The person should report to the police every day.

7 There should be reports on what has been achieved and whether the person

8 is acting in accordance with orders of the Council of Ministers. Also,

9 it should be made sure that this person will not be given a chance to run

10 away or fail to attend any hearings requested by the Tribunal in The

11 Hague.

12 Q. Thank you very much, Mr. Stojkovic. When providing these

13 guarantees, the conclusion was adopted at one of the government sessions,

14 if I'm not mistaken. Please tell us: Was another matter taken into

15 consideration? More specifically, who the guarantees are being issued in

16 relation to, the specific person, and what was the reaction of the

17 Council of Ministers and the Minister himself?

18 A. My apologies. The Council of Ministers had already adopted a

19 decision to issue the guarantees in compliance with the decision made by

20 the previous government. The new government found that there were no

21 changes and that it was possible to confirm the guarantees in relation to

22 Mr. Simatovic and Mr. Stanisic.

23 Q. Specifically, Mr. Stojkovic, as you represent the government of

24 the Republic of Serbia also, the Ministry of the Interior of the Republic

25 of Serbia, is it willing and able to arrest Mr. Franko Simatovic should

Page 80

1 he fail to respond to any of the Tribunal's summons?

2 A. These are the guarantees that have been provided. He should

3 report to the Ministry of the Interior on a daily basis and file a report

4 to the government every month. In my opinion, it would be perfectly

5 simple to arrest him at any given time should the necessity arise.

6 Q. Mr. Stojkovic, in relation to previous cases before the new

7 government was established, in which you are the minister of justice, the

8 State Union of Serbia and Montenegro, did they function in relation to

9 provisionally released persons? Did Serbia and Montenegro live up to its

10 obligations?

11 A. Yes, as far as I know. In relation to Ms. Plavsic and

12 Mr. Strugar, it was Montenegro specifically, and Mr. Jokic too.

13 Q. Mr. Stojkovic, what will the cooperation be like between the

14 government of the Republic of Serbia and the International Criminal

15 Tribunal? Is there an official position of the government of the

16 Republic of Serbia, and how exactly does the Republic of Serbia see or

17 view its obligations towards the International Criminal Tribunal?

18 A. As for the cooperation itself, I think this has been stated with

19 perfect clarity. These are our obligations towards the Tribunal and we

20 have to meet these. It would not be fair to go any further into this, as

21 I am also about to speak to Mr. Meron and therefore I do not wish now to

22 enter into any further detail of this matter.

23 Q. Thank you very much, Mr. Stojkovic. Mr. Franko Simatovic's

24 Defence has no further questions for this witness.

25 JUDGE ROBINSON: Yes. Mr. Knoops.

Page 81

1 Mr. KNOOPS: Thank you, Your Honour.

2 Examined by Mr. Knoops:

3 Q. Good morning, Mr. Stojkovic. I'm the Defence attorney of

4 Mr. Stanisic. First of all, your remarks just put to the Trial Chamber,

5 do they also count for the situation of Mr. Stanisic?

6 A. Yes.

7 Q. With respect to the specific position of Mr. Stanisic, both the

8 federal government and your government issued a guarantee for the secure

9 of provisional release. Now, in the guarantee of the federal government,

10 mention is made of the existence of humanitarian grounds for provisional

11 release. My specific question for you is: Is your government able to

12 supervise Mr. Stanisic's potential treatment in his home country, and if

13 so, to which extent?

14 A. You mean in relation to his health problems? I am not in a

15 position to speak about that. You should ask medical experts about this.

16 As for treatment, we have some institutions that are very good, and he

17 had previously received treatment in those institutions. I don't think

18 there should be any --

19 Q. [Previous translation continues]... Government is able to enforce

20 the conditions in case provisional release is allowed that Mr. Stanisic

21 would attend trial.

22 A. As I said before, even if there should be a problem we would be

23 prepared to arrest him and to make sure that he would attend.

24 Q. According to Yugoslav law, is it correct that Mr. Stanisic

25 surrendered voluntarily?

Page 82

1 A. You're asking me about something that's difficult to define.

2 What was going on at a time when the situation in the country was very

3 difficult. There was a state of emergency, and several measures could

4 have been applied. Arrest was merely one of them. At the time the

5 indictment was published, as far as I know, both Mr. Stanisic and

6 Mr. Simatovic declared their willingness to immediately leave for

7 The Hague and appear before the Tribunal.

8 Q. So is it in your view correct that at the time of the detention

9 of Mr. Stanisic, no criminal charges were raised against him?

10 A. To the best of my knowledge, the same applies to the situation

11 today, with the exception of arrest. The OTP never put forward a request

12 for investigation.

13 Q. My last question for the witness. Mr. Stojkovic, were you able

14 to verify whether or not Mr. Stanisic is in the possession of a valid

15 passport?

16 A. No. This was not our obligation for the time being. This can be

17 verified. It is down to the Ministry of the Interior to issue passports.

18 MR. KNOOPS: Thank you, Your Honour. No further questions.

19 JUDGE ROBINSON: Thank you.

20 Mr. Groome.

21 Cross-examined by Mr. Groome:

22 Q. Good morning, Mr. Stojkovic. My name is Dermot Groome and I'll

23 be representing the Prosecutor at these proceedings this morning. I'd

24 like to focus the limited time that you are here and pick up on one of

25 the answers that you gave Mr. Jovanovic.

Page 83

1 In response to him asking you why it was or how it was that you

2 would fulfil the obligation of returning Mr. Simatovic, if necessary, you

3 said, and I'm quoting the English translation: "These are our

4 obligations toward the Tribunal." Do you fully intend to recognise your

5 obligations towards the Tribunal?

6 A. With respect to this particular case, I have said that it was not

7 only our obligation towards the Tribunal, but should there be any doubt

8 as to the voluntary nature of Mr. Stanisic's response to summons from

9 this Tribunal, he would be arrested and handed over to the Tribunal. I

10 apologise if we misunderstand one another. What I was saying was that we

11 would arrest him and make sure that he would come to The Hague.

12 Q. Sir, let me then ask you: Arrest warrants had been lodged with

13 your government with respect to an indictment against Mr. Lazarevic,

14 Mr. Pavkovic, Mr. Lukic. My question to you is: Are you aware that

15 arrest warrants have been lodged with respect to these men?

16 A. As far as I know, there are quite a number of problems there.

17 Since there has been a change in the government, a council for

18 cooperation with the Tribunal has still not been appointed, and that is

19 the council that has the responsibilities for future action. So we're

20 still in an interim situation, because this body that is supposed to

21 regulate cooperation with the Tribunal has still not been fully formed.

22 But we are aware of the existence of these indictments and we will

23 certainly act in accordance with our obligations.

24 JUDGE ROBINSON: When did the new government come into being,

25 Mr. Stojkovic?

Page 84

1 THE WITNESS: [Interpretation] On the 4th of March, 2004.

2 JUDGE ROBINSON: Thank you.


4 Q. Sir, it seems that you're saying that it is your intention on

5 behalf of your government to guarantee here that the obligations towards

6 the Tribunal will be fulfilled except if problems arise, such as the one

7 you've just described here. Did I understand you correctly?

8 A. I believe that the government has so far acted accordingly, at

9 least as far as I know. There was no request from this Tribunal that was

10 not fulfilled in terms of the disclosure of documents, the surrender of a

11 number of people voluntarily. So percentage-wise, the largest number of

12 detainees here in The Hague come from Serbia.

13 Q. Sir, I won't go into the details of cooperation with respect to

14 documents with you. I would refocus your attention on the fact that

15 there are a number of publicly indicted people for which arrest warrants

16 have been lodged, and in fact in this past December of 2003, both

17 Mr. Lukic and Mr. Pavkovic both even ran for general election. Is that

18 not true?

19 A. That is certainly true, but I'm trying to explain that

20 obligations towards the Hague Tribunal is in the hands of the council for

21 cooperation which currently doesn't exist. And these persons took part

22 in the elections earlier on, before the new government came into power.

23 That is what I was trying to explain.

24 Q. Sir, can I take from your answer that you are recognising that

25 cooperation with respect to executing search warrants has been incomplete

Page 85

1 in the past, but that you are pledging here today that once this council

2 is operating, that we can expect full compliance? Is that what you're

3 conveying to us this morning?

4 A. The government has already issued an official declaration that it

5 will cooperate, that it considers it not only a question of cooperation

6 but its duty and obligation towards the Hague Tribunal.

7 JUDGE ROBINSON: Mr. Stojkovic, when will this council be

8 established?

9 THE WITNESS: [Interpretation] I'm afraid this is something that

10 doesn't depend on the government of the Republic of Serbia. It is at the

11 level of the Union, and they have to decide about this and appoint

12 members to the council. I'm trying to explain the procedure. The

13 council is the one that receives indictments and passes on to -- then to

14 the courts. The court then addresses itself to the Ministry of the

15 Interior for the arrest and then the proceedings are started in motion

16 with respect to the Tribunal.

17 JUDGE ROBINSON: Yes, Mr. Groome.


19 Q. Sir, so then your guarantee that you are offering here today,

20 it's conditioned upon something that's outside of your control, namely,

21 that a council will be formed for cooperation; is that correct?

22 A. The council existed, but now that the government has changed, the

23 composition of various bodies is changing, and all these bodies have not

24 fully been formed yet. All I am saying now is that the government has

25 issued an official statement saying that it will cooperate with the Hague

Page 86

1 Tribunal. I was just trying to explain, because you asked me something

2 that is not within the competence of republican authorities but of the

3 federal authorities.

4 Q. But would you agree that until that council has taken effect,

5 that your guarantee that you offer here today is unenforceable?

6 A. This part is something that we can enforce. The first stage has

7 been completed. The suspects have been surrendered to the Tribunal.

8 Should they be released, then it is our obligation - the Ministry of the

9 Interior - to make sure that he does respond to summons, and should the

10 person fail to do so, we would arrest him and surrender him to the

11 Tribunal under escort. So the situation is not identical in the two

12 cases. It's the same -- the same applies as with Mrs. Plavsic. When she

13 was provisionally released, the procedure of surrender to the Tribunal

14 was fully complied with.

15 Q. You say that there's a difference. Can you explain to us: How

16 is an arrest warrant for an Initial Appearance different from somebody

17 appearing before the Court being provisionally released and being

18 required but failing to return a second time? What is so different about

19 those two situations, that we should accept a guarantee to return a

20 provisionally released person but not a person who has been -- an arrest

21 warrant has been executed or issued for?

22 A. In these two cases, the persons have already received the

23 indictments during regular proceedings. They are in the Hague Tribunal.

24 Should they be provisionally released, they would be brought back under

25 our supervision. The council for cooperation with the Hague Tribunal has

Page 87

1 still not given the necessary instructions for the republican authorities

2 to be able to react. That is the difference. So the procedure has not

3 even started. However, in this case, it has, and the republican

4 authorities take upon themselves the obligation to fully carry out the

5 whole procedure.

6 Q. I'm not sure I understand the distinction, but I'm going to move

7 on to a second area.

8 Part of the Chamber's consideration will be the impact on

9 witnesses that provisional release of these men would have. In that

10 vein, I'm sure you're aware that recently, in April, during a trial in

11 Belgrade, a number of further Red Berets wearing their insignias and

12 identifying shirts appeared in the court. This act was considered by

13 some in your government as an act of intimidation, an act of intimidation

14 not only to witnesses but to the court personnel itself. Are you aware

15 that the indictment here alleges that both Mr. Stanisic and Mr. Simatovic

16 were superiors of members of the Red Berets?

17 A. The case you are referring to is something I'm familiar with. As

18 far as I know, after verification, not one of those persons was actually

19 a member of the Red Berets. The man who gave an interview and provoked

20 attention from the public proved never to have been a member of the Red

21 Berets. And the young man who wore those T-shirts attending training but

22 were never admitted. So they were not members of the Red Berets. But I

23 agree that this caused some disturbance. However, all the witnesses were

24 interrogated in the course of those proceedings.

25 Q. So it's your evidence here today that these people were mere

Page 88

1 supporters of the Red Berets, not actual members of the Red Berets.

2 Would that be an accurate accounting of what you've just told us?

3 JUDGE ROBINSON: Yes, Mr. Jovanovic.

4 Mr. Stojkovic, Mr. Jovanovic is on his feet. Let us hear him.

5 MR. JOVANOVIC: [Interpretation] Your Honours, thank you for

6 giving me the floor. We've just come to the problem that I mentioned at

7 the beginning. Mr. Groome is presenting certain facts here and

8 endeavouring to extract an answer. After the text we have received here,

9 there are a number of other articles denying the membership of those

10 persons in the Red Berets. The Zandarmerija issued an announcement

11 stating that they were never members of that unit, that the T-shirts that

12 they were wearing were not --

13 JUDGE ROBINSON: Mr. Jovanovic, let me stop you. You will have

14 an opportunity for re-examine the witness. Those are matters that you

15 can raise then.

16 MR. JOVANOVIC: [Interpretation] Yes, Your Honours. Thank you.

17 THE WITNESS: [Interpretation] I apologise. What I said was based

18 on facts. The person who granted an interview was taken into custody and

19 the judge has started proceedings on charges of false reporting, and they

20 were proven not to have been members, and this particular individual for

21 who knows what reasons granted such an interview. So he's being taken to

22 court for spreading falsehoods.


24 Q. Mr. Stojkovic, accepting the facts as you have relayed them to

25 us, would you not agree that for witnesses that may be inclined to

Page 89

1 cooperate with the Tribunal in this particular case currently living in

2 Serbia and Montenegro, that such a public display of support for the Red

3 Berets, and by virtue of their association with that organisation, the

4 two accused here, would you not agree that their release provisionally

5 would serve as a further intimidation or further frightening of witnesses

6 inclined to come forward and testify about what they know about this

7 organisation?

8 A. This is an opinion that I couldn't respond to. All I could give

9 would be an opinion, and I'd rather talk about facts.

10 Q. I'm asking you --

11 JUDGE ROBINSON: Mr. Groome, let's move on. I think that issue

12 has been sufficiently ventilated.


14 Q. My last question to you is: You know who Milorad Lukovic,

15 "Legija", is, do you not?

16 A. Yes.

17 Q. Last week he turned himself in voluntarily to the Serb

18 authorities, did he not?

19 A. Yes.

20 Q. And there's no question about whether or not he is a former

21 member of the Red Berets, is there?

22 A. Yes, he was a member of the Red Berets.

23 Q. Today, Mr. Stojkovic, was Legija provisionally released in your

24 country or is it not true that he is detained in your country at this

25 present time?

Page 90

1 A. As far as I know, he's in detention, and he should make an

2 initial appearance in court today.

3 MR. GROOME: Thank you. No further questions.

4 THE WITNESS: [Interpretation] We still have obligatory detention

5 for the most serious crimes and this is something that we shall have to

6 adjust to the convention. But we have this provision regarding

7 detention. There's no possibility of having him released unless the

8 court may pass such a decision. He is now within the jurisdiction of the

9 court.

10 MR. GROOME: Thank you, sir.

11 JUDGE ROBINSON: Mr. Jovanovic, any re-examination? Briefly. I

12 should say that we did set a timetable with specific times, and we are

13 beyond it now. So we need to move ahead quickly.

14 MR. JOVANOVIC: [Interpretation] Very briefly, Your Honours, in

15 connection with this last question put by Mr. Groome to the witness.

16 Re-examined by Mr. Jovanovic:

17 Q. [Interpretation] Of what is Mr. Lukic accused?

18 A. For the murder of former Prime Minister Djindjic and for some

19 other ten acts of murder.

20 Q. He may apply for release?

21 A. Yes. Any accused may do so, and it is up to the Court to make a

22 ruling about that.

23 MR. JOVANOVIC: [Interpretation] Thank you, Mr. Stojkovic.

24 JUDGE ROBINSON: Mr. Knoops, any re-examination?

25 MR. KNOOPS: Thank you, Your Honour. Thank you.

Page 91

1 JUDGE ROBINSON: Mr. Stojkovic, that concludes your evidence and

2 you may now go.

3 THE WITNESS: [Interpretation] Thank you.

4 [The witness withdrew]

5 JUDGE ROBINSON: Your next witness, Mr. Jovanovic and Mr. Knoops,

6 is that Mr. Caric?

7 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. Mr. Caric, as

8 a representative of the State Union of the Republics of Serbia and

9 Montenegro.

10 JUDGE ROBINSON: Yes. Let him be called.

11 JUDGE KWON: Will he be examined as a witness or just make a

12 statement as a representative of government?

13 MR. JOVANOVIC: [Interpretation] Your Honour, I think that he will

14 make a statement as a representative of the authorities, as the

15 republican Minister of Justice has already presented his views regarding

16 the possible actions of the Republic to which the accused may be

17 released. The conclusion or the guarantees issued by the State Union are

18 based on the conclusion of the republican authorities.

19 JUDGE ROBINSON: Mr. Groome, will you want to cross-examine this

20 witness?

21 MR. GROOME: Yes, Your Honour.

22 JUDGE ROBINSON: He will then have to make the declaration.

23 MR. GROOME: Your Honour, while we're waiting, maybe we could

24 make some productive use of the time. It occurred to me that in order to

25 save time, if it pleases the Court, the Prosecution would be willing to

Page 92

1 tender the exhibit under 89(F), avoid having the investigators detail

2 that. I leave it to the Court to decide whether it's appropriate.

3 JUDGE ROBINSON: Yes. We'll consider that.

4 [Trial Chamber confers]

5 JUDGE ROBINSON: Yes, Mr. Knoops.

6 MR. KNOOPS: Your Honour, the accused Mr. Stanisic would like to

7 make a short tour to the bathroom, if possible.

8 JUDGE ROBINSON: Yes. Perhaps -- should we take a break now?

9 [Trial Chamber confers]

10 JUDGE ROBINSON: Let us take the 20-minute break now. We're

11 adjourned. Twenty minutes.

12 --- Recess taken at 10.51 a.m.

13 --- On resuming at 11.13 a.m.

14 JUDGE ROBINSON: Mr. Caric to be called.

15 [The witness entered court]

16 JUDGE ROBINSON: Let the witness make the declaration.


18 [Witness answered through interpreter]

19 THE WITNESS: [Interpretation] I solemnly declare that I will

20 speak the truth, the whole truth, and nothing but the truth.

21 JUDGE ROBINSON: Thank you. You may sit.

22 Mr. Jovanovic.

23 MR. JOVANOVIC: [Interpretation] Thank you, Your Honours. Your

24 Honours, I spoke to Mr. Caric, and he told me that he is here in the

25 capacity of a representative of the State Union of Serbia and Montenegro

Page 93

1 and that he has not been authorised to answer any other questions except

2 to confirm that guarantees have been issued by the Council of Ministers

3 of the State Union. So I have no questions for Mr. Caric except to ask

4 him whether he can confirm that the Council of Ministers of the State

5 Union of Serbia and Montenegro has issued guarantees with respect to the

6 accused Franko Simatovic. Has the State Union assumed the obligations

7 indicated in the document that has been provided to you?

8 JUDGE ROBINSON: Before you answer the question, let me clarify

9 what you're saying. You're saying that Mr. Caric is here to speak to one

10 issue, and one issue only: That is, the issuance of the guarantee. And

11 he has not been authorised to address any other issue.

12 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. That is

13 exactly what I have been told. But perhaps Mr. Caric can tell you. I

14 can ask Mr. Caric the question that I have mentioned: Can he confirm

15 that the procedure has been carried out, and that the state Council of

16 Ministers has issued such guarantees.

17 JUDGE ROBINSON: [Previous translation continues]... Chamber will

18 consult. Because the issue, it seems, is whether Mr. Caric will be

19 subject to cross-examination. Mr. Groome has indicated that he wants to

20 cross-examine him. There is a practice in proceedings of this kind for

21 representatives to make statements as to the issuance of the guarantees.

22 That's not usually done from the witness box. I'll consult with my

23 colleagues on this issue.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: Mr. Caric, I've heard what has been said by

Page 94

1 Mr. Jovanovic. You say you're only here to speak to the issuance of the

2 guarantees. Would you be prepared to answer questions relating only to

3 the issuance of the guarantees?

4 THE WITNESS: Thank you, Your Honour. I just want to say two

5 things in Serbian language as a clarification.

6 [Interpretation] First of all, I'm here as a representative of

7 the embassy, which means a representative of Serbia and Montenegro, of

8 the diplomatic mission of Serbia and Montenegro in The Hague. I should

9 come here to confirm the guarantees issued by Mr. Stojkovic. I was meant

10 just to be present. I have no mandate to say anything further regarding

11 the guarantees and their issuance. That is the first point I wish to

12 make.

13 And secondly, with your permission, I can hand over the original

14 copy of the conclusions of the government of Serbia with respect to

15 Mr. Franko Simatovic. By your leave, I can hand this over to the Trial

16 Chamber. We have already sent copies through diplomatic mail.

17 JUDGE ROBINSON: [Previous translation continues]...

18 [Trial Chamber confers]

19 JUDGE ROBINSON: The Chamber's decision is that you will make the

20 statement, which is usual in these proceedings, without any questions

21 being asked. Go ahead with your statement.

22 THE WITNESS: [Interpretation] I can just repeat: As I don't have

23 the authority to make any statement, I fully abide by what has been said

24 by Minister Stojkovic; and with your permission, I should like to hand

25 over the original of the government conclusions confirming guarantees for

Page 95

1 Mr. Franko Simatovic.

2 JUDGE ROBINSON: Yes. Please hand them over.

3 Mr. Groome.

4 MR. GROOME: Your Honour, one of the decisions that this Chamber

5 will have to reach is how reliable such guarantees are. May I make the

6 following suggestion, that we ask Mr. Caric to -- at a break, contact his

7 government and see, is he authorised to answer questions about the

8 guarantee, and so he can inquire about its reliability and we can move on

9 to the next witnesses. And perhaps later in the day Mr. Caric will have

10 obtained such authorisation and we can properly inquire about just how

11 reliable this guarantee is.

12 JUDGE ROBINSON: I think Mr. Caric has been quite clear as to the

13 instructions that he has and what he's authorised to say. It's not the

14 Court's view that the matter should be taken any further.

15 Mr. Jovanovic.

16 MR. JOVANOVIC: [Interpretation] Thank you, Your Honours.

17 Mr. Caric, in his statement, in fact confirmed the guarantees provided by

18 the Republic of Serbia. Maybe he can tell us whether he can confirm the

19 existence of the document entitled "Guarantees of the Council of

20 Ministers of the State Union of Serbia and Montenegro." Can he confirm

21 that such guarantees have been issued as a document by the Council of

22 Ministers of the State Union?

23 JUDGE ROBINSON: Does your position confirm that? You may sit.

24 THE WITNESS: [Interpretation] Minister Stojkovic has explained

25 everything with respect to the guarantees, so I don't see why the

Page 96

1 reliability of those guarantees would be called in question. He was the

2 authorised representative to confirm those guarantees, and all I can do

3 is to confirm the explanations that he gave. And I can say that earlier

4 those guarantees were in some cases elaborated by a representative of the

5 embassy, sometimes by an official coming from our country.

6 Mr. Stojkovic was authorised to explain the guarantees. He has

7 done so fully, and all I can do is confirm everything that he has said.

8 And if I were to say anything else, that would go beyond my authority.

9 So I don't see why those guarantees would be called in question, as he

10 has explained them, and since the Council of Ministers has issued

11 guarantees. So I don't see that anything can be in dispute.

12 JUDGE ROBINSON: Thank you very much, Mr. Caric. The document

13 has been passed over to the Registrar, has it?

14 THE REGISTRAR: It has, Your Honour, but it has to be translated

15 in English language. It will be filed today and translated accordingly.

16 JUDGE ROBINSON: Thank you, Mr. Caric. That concludes your

17 statement. You may leave.

18 THE WITNESS: Thank you, Your Honour.

19 MR. KNOOPS: Your Honour.


21 MR. KNOOPS: Do you wish to -- yes, well, the Defence has a

22 question for the witness whether Mr. Caric has the same declaration to be

23 issued, to be given in case of Mr. Stanisic. Because he only mentioned

24 Mr. Simatovic. So my question for the witness is: Is he in a position

25 to give a statement with respect to the guarantees, specifically in the

Page 97

1 case of Mr. Stanisic?

2 THE WITNESS: [Interpretation] Your Honour, as Minister Stojkovic

3 has explained, the guarantees of the government of Serbia have been

4 issued by both accused in this Tribunal, so I have nothing more to add to

5 what the minister has already stated.

6 JUDGE ROBINSON: They apply to both accused. Thank you very

7 much. You may leave.

8 THE WITNESS: Thank you.

9 [The witness withdrew]

10 [Trial Chamber confers]

11 JUDGE ROBINSON: Mr. Groome, we will admit the statements under

12 89(F). I'm referring, of course, to the statements of the two

13 investigators.

14 MR. GROOME: I will adjust my examination accordingly, Your

15 Honour.

16 [The witness entered court]

17 JUDGE ROBINSON: Let the witness make the declaration.


19 THE WITNESS: I solemnly declare that I will speak the truth, the

20 whole truth, and nothing but the truth.

21 JUDGE ROBINSON: Please be seated.

22 THE WITNESS: Thank you, Your Honour.

23 JUDGE ROBINSON: Mr. Groome, briefly.


25 Q. Sir, can I ask you to state your name for the record.

Page 98

1 A. My full name is Bernard O'Donnell.

2 Q. In order to expedite matters we're going to take your evidence

3 primarily in written form. I'd ask that a number be assigned to the

4 binder of exhibits which the Prosecution has distributed earlier this

5 morning.

6 JUDGE ROBINSON: Yes, that will be done.

7 THE REGISTRAR: The document will be numbered PT1.


9 Q. Sir, I'd ask you ask you to take a look at tab 5 from that and

10 ask you: Is that an affidavit authored by yourself and signed today?

11 MR. GROOME: If the usher would be so kind as to bring the

12 document to Mr. O'Donnell.

13 A. That's correct, Your Honours. That is a document that I prepared

14 and signed today.

15 Q. And does that document summarise what information you have with

16 respect to information that was provided to the government of Serbia and

17 Montenegro and what if any action they took on that information?

18 A. Yes, it does, Your Honours.

19 Q. Sir I'd now ask you to take a look at tab 6 of PT1. I'd ask you

20 the same question. Is that a document that you authored and signed?

21 A. Yes, Your Honours. It's a document dated the 5th of May. It's a

22 document that I authored and signed.

23 Q. And does that document summarise your assessment of an interview

24 that you conducted with Mr. Stanisic some time ago?

25 A. Yes, it does.

Page 99

1 MR. GROOME: Your Honours -- I'm sorry.

2 Q. Do you affirm, now that you've been sworn under oath, that the

3 information contained in both of these documents is true and accurate to

4 the best of your knowledge?

5 A. Yes, I do, Your Honours.

6 MR. GROOME: Your Honour, at this time I tender both of those

7 under 89(F).

8 JUDGE ROBINSON: Yes. They're admitted.

9 JUDGE KWON: Mr. Groome the statement signed today, we received

10 it today?

11 MR. GROOME: Yes, Your Honour. If Your Honour will recall, it

12 was forecast in the last application. Mr. O'Donnell was away on mission.

13 The contents of that was forecast in our application last week and it was

14 provided this morning.

15 JUDGE KWON: How do you expect the Defence can cross-examine upon

16 the document which they received just today?

17 MR. GROOME: Your Honour, I was relying and was not opposing the

18 Chamber's decision that they would have the opportunity to delay

19 Mr. O'Donnell's cross-examination for one week. It seemed a perfectly

20 fair decision by the Chamber, and they have stated, though, here in Court

21 that they are prepared to cross-examine. If they should change their

22 mind, Mr. O'Donnell is here, is available to be cross-examined when they

23 feel they are ready. I do take note of Your Honour's observation that it

24 is very short time. I would also point out that it's approximately a

25 page and a half, though, of material, so it may very well be that they do

Page 100

1 feel equipped to examine him today.

2 Your Honour, I forgot to mention I would ask tab 5 be under seal,

3 if it takes place today; that it be done in private session.

4 JUDGE ROBINSON: Yes. That will be so.

5 Mr. Jovanovic, do you wish to revisit your decision to proceed

6 with cross-examination today?

7 MR. JOVANOVIC: [Interpretation] No, Your Honour. The Defence did

8 not have a chance to inspect this statement. The first statement was

9 given to the Defence team on Thursday afternoon, and we expressed our

10 disapproval. In relation to that one, however, the Defence of

11 Mr. Simatovic would not have any questions. The contents of that

12 statement relate to the interview with Mr. Stanisic. However, in the

13 statement that was disclosed to us today, there is reference to

14 Mr. Simatovic also. Regardless of that, I will cross-examine today on

15 this basis.

16 However, I oppose the introduction of this statement and the

17 questioning of this witness in relation to anything stated in this

18 statement. We believe it is simply too late for that. We oppose the

19 examination of the witness whose statements were delivered on Thursday

20 afternoon. It was in the interest of justice that you ruled that all the

21 interviewed persons be heard, but I believe this represents a misuse of

22 your ruling. It was in the interest of justice that the Chamber has

23 decided to hear all the persons that were interviewed, but the OTP is

24 using that now to introduce new evidence just before the start of the

25 trial. I believe this is simply unjust.

Page 101

1 I propose that we cross-examine witness Tore Soldal, but I would

2 like to move that the OTP not be allowed to tender anything contained in

3 today's statement into evidence, the statement marked tab 6 in the list

4 provided by the OTP.

5 JUDGE ROBINSON: Let me make it clear again. The issue of

6 lateness and of possible embarrassment to the Defence is to be addressed

7 by giving you the opportunity to delay your cross-examination. If you

8 choose to proceed with it, that's entirely a matter for you. The

9 Chamber, as it said before, is perfectly prepared to offer you a week in

10 which to prepare for cross-examination. The Chamber is admitting the

11 statements, and as I said, and I repeat, the issue of late service is to

12 be addressed by granting you an opportunity to delay your

13 cross-examination if you so wish. I understand that you wish to proceed

14 in relation to one statement. Is that so?

15 MR. JOVANOVIC: [Interpretation] Yes, indeed, Your Honour. Thank

16 you for offering the Defence a possibility to defer our

17 cross-examination. However, the Defence team wishes to expedite

18 proceedings, and we shall proceed with our cross-examination of the

19 witness today.

20 JUDGE ROBINSON: Thank you. Proceed. Yes.

21 Cross-examined by Mr. Jovanovic:

22 Q. [Interpretation] Mr. O'Donnell, based on the fact that Generals

23 Lukic, Pavkovic, Djordjevic, and Lazarevic were not arrested in Serbia,

24 is it your conclusion that there would be any danger to the carrying out

25 of the proceedings before the International Criminal Tribunal in relation

Page 102

1 to the accused Mr. Simatovic?

2 A. Firstly, I don't quite understand your question. If it relates

3 to the appropriateness of conducting proceedings, I'm not qualified to

4 answer your question.

5 Q. I didn't mean the appropriateness of conducting proceedings, but

6 all the measures that need to be taken for proceedings to be carried out.

7 More specifically, Mr. Simatovic appearing before the Court and his

8 potential influence on the witnesses. Do you have a conclusion that you

9 based on what you said in the statement to the effect that the generals

10 are no longer at large pursuant to a request by the Tribunal, as well as

11 the fact that some of them have been giving interviews to the press,

12 specifically the references to these persons that you mentioned.

13 Is it therefore your conclusion that Franko Simatovic for that

14 very reason would fail to appear before the Court or that he would

15 attempt to influence witnesses, put at risk victims, or rather, persons?

16 A. Your Honours, the persons mentioned in the affidavit have been

17 indicted and three of those persons are publicly at large. I also

18 mentioned that several people indicted publicly by the Tribunal remain at

19 large and information has been provided to authorities in Serbia and

20 Montenegro. In fact, of those persons publicly indicted, the 20, 16 of

21 those persons, according to information we have, remain in that

22 territory. Therefore, I believe that it is a factor in relation to the

23 matter being discussed; that is, the release of Mr. Stanisic and

24 Mr. Simatovic and undertakings given by local authorities when 16 of the

25 20 people publicly indicted, according to information we have at the

Page 103

1 Office of the Prosecutor, remain at large. Information has been passed

2 to authorities in Serbia and Montenegro in relation to their locations

3 within Serbia and Montenegro.

4 Q. So it is your opinion, as an OTP investigator, that the accused

5 Franko Simatovic would not appear before the Court again, based on these

6 arguments that you've just put forward.

7 A. Your Honours, I see the question going more towards whether or

8 not -- whether -- if Mr. Simatovic did not come voluntarily, whether

9 action would be taken, given the fact that information has been given on

10 other indictees and not acted upon.

11 Q. No. No, Your Honours, my apologies. I believe the witness has

12 misinterpreted my question. My question was: Is it his personal

13 position or opinion that Simatovic would fail to respond to another

14 summons by the Tribunal, based on the fact that the Generals Pavkovic,

15 Lukic, and Lazarevic have not been arrested and are currently on the

16 territory of the Republic of Serbia, at large, as well as other persons

17 who have not received the indictment? Is that the position of this OTP

18 investigator, that Mr. Simatovic would not show up in Court, based on

19 this information?

20 A. No, Your Honours. I see that as being two separate factors.

21 MR. JOVANOVIC: [Interpretation] Thank you very much, Your

22 Honours. I have no further questions for this witness.

23 JUDGE ROBINSON: Thank you. Mr. Knoops.

24 MR. KNOOPS: Your Honour, we would like to cross-examine the

25 witness in private session.

Page 104

1 JUDGE ROBINSON: Yes. Private session, Madam Registrar.

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3 [Open session]

4 THE REGISTRAR: We are in open session, Your Honour.

5 MR. KNOOPS: Your Honours, with respect to the expert witnesses,

6 Dr. Tarabar and Dr. Offermans, that will be no problem. The only thing

7 is I have just learned from the case manager that your expert witness,

8 the Minister of Health, will leave tomorrow -- today, later today.

9 MR. GROOME: If it's of assistance to the Chamber, Mr. Soldal is

10 available tomorrow, whenever the Court wishes to reschedule him.

11 [Trial Chamber confers]

12 JUDGE KWON: Shall we go into private session briefly.

13 [Private session]

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17 [Open session]

18 JUDGE ROBINSON: Mr. Soldal to be called.

19 [The witness entered court]

20 JUDGE ROBINSON: Let the witness make the declaration.


22 THE WITNESS: I solemnly declare that I will speak the truth, the

23 whole truth, and nothing but the truth.

24 JUDGE ROBINSON: Please be seated.

25 Mr. Groome.

Page 125

1 Examined by Mr. Groome:

2 Q. Sir, can I ask you to state your name for the record.

3 THE INTERPRETER: Microphone, please.


5 Q. State your name, please.

6 A. Tore Soldal.

7 Q. And how long have you been an investigator in the Office of the

8 Prosecutor here at the Tribunal?

9 A. Around seven years.

10 Q. Mr. Soldal, in order to expedite matters, I'm going to take much

11 of your testimony in writing. I'm going to show you what is Exhibit

12 PT 7, and ask you: Do you recognise this document?

13 MR. GROOME: If I could have the usher's assistance with that,

14 I'd appreciate it. Is that a document that you authored and signed?

15 A. Yes.

16 Q. And does that document summarise your experience and your views

17 with respect to the effect or the impact that the release of

18 Mr. Simatovic and Mr. Stanisic would have on witnesses or potential

19 witnesses in this case?

20 A. Yes, it does.

21 Q. I'd ask you now to take a look at tab 8 of that same Exhibit,

22 PT1. Can you tell us what that document is?

23 A. It's a declaration signed by me. It's about the interview I

24 conducted with Mr. Simatovic.

25 Q. And does that document contain your assessment of the value or of

Page 126

1 the contents of the information that Mr. Simatovic provided to you during

2 that interview?

3 A. Yes, it does.

4 Q. Do both of those documents contain your signature?

5 A. Yes.

6 Q. Now that you have been sworn, do you affirm that the information

7 contained in those documents is truthful and accurate to the best of your

8 knowledge?

9 A. Yes, I do.

10 MR. GROOME: Your Honour, at this time I would tender those

11 exhibits, tab 7 and tab 8 of PT1 into evidence.

12 JUDGE ROBINSON: Yes, they're admitted.

13 MR. GROOME: I have no further questions.

14 JUDGE ROBINSON: Mr. Jovanovic, any questions?

15 MR. JOVANOVIC: [Interpretation] Yes. Thank you, Your Honour.

16 Cross-examined by Mr. Jovanovic:

17 Q. [Interpretation] Mr. Soldal, tell me, please: How did the

18 interview with Mr. Simatovic take place? Or to be more specific, did you

19 establish contact with am him yourself, directly, or through any state

20 organ?

21 A. It was one of my colleagues that established the contact with

22 Mr. Simatovic, Your Honour.

23 Q. So the official authorities of the Republic of Serbia had no part

24 in it?

25 A. No.

Page 127

1 Q. Thank you. Mr. Soldal, do you remember whether the law on

2 cooperation with the International Criminal Tribunal had been passed at

3 the time by the Republic of Serbia?

4 A. As far as I remember, it hadn't been passed at that time.

5 Q. Mr. Soldal, in your statement, you said that the interview was

6 held in a friendly atmosphere. Could you elaborate a little, and could

7 you also tell us where it took place and a few words to elaborate the

8 actual interview.

9 A. Most of the interview took place in the apartment of

10 Mr. Simatovic. The last part was in the apartment of one of his lawyers.

11 The interview was done in a very friendly atmosphere. Mr. Simatovic

12 brought food, coffee, drinks, was friendly. No problems whatsoever.

13 Q. Mr. Soldal, do you remember that Franko Simatovic suggested that

14 the interview take place in his apartment, and when he did so, did he

15 mention his doubts about security? Did he mention that he or members of

16 his family were at some sort of risk?

17 A. I can't remember that now. It may have happened, but the first

18 meetings with him was done by -- one of my colleagues, Vladimir Dzuro.

19 But it also may have happened during the interview.

20 Q. Mr. Soldal, so you do allow for the possibility that your

21 colleagues may have some additional information regarding this event?

22 A. May have. It's quite a long time since, but they may have some

23 additional information.

24 Q. Mr. Soldal, do you know what Mr. Simatovic said when he reached

25 the Detention Unit in The Hague, when he was interviewed again? Do you

Page 128

1 perhaps recollect that he then mentioned that he was fearful for his

2 family members?

3 A. Absolutely. He feared what could happen to his sons.

4 Q. May I infer from that that he himself considered himself to be at

5 risk, in a sense, both in Belgrade and later when he came here he feared

6 for the members of his family, and he told you that? Thank you.

7 Mr. Soldal, you are certainly familiar with the indictment, which

8 is effective after the preliminary objections were filed. Are you aware

9 of the dates mentioned here for various crimes? Do you remember when the

10 crimes listed in SAO Krajina were committed in Vukovar, the autonomous

11 region of Baranja and Western Srem, Bijeljina, Bosanski Samac? I assume

12 you will that those were the results of your own investigations. Do you

13 remember that?

14 A. I am not -- I do not remember all the dates of all the crimes on

15 the top of my head. I've only been involved in a few of the crime bases.

16 But approximately I know when the different crimes in the indictment are

17 supposed to happen, take place.

18 Q. Would you agree with me that, with the exception of Sanski Most

19 and another crime in Mrkonjic grad, in all other cases, and this ends

20 with paragraph 57, that they all refer to 1991 and 1992?

21 A. Correct.

22 Q. Mr. Soldal, what was Franko Simatovic's position in 1991/1992 in

23 the Ministry of Internal Affairs, or rather, what did your investigation

24 show?

25 MR. GROOME: Objection as to relevance.

Page 129

1 JUDGE ROBINSON: Yes, Mr. Jovanovic. What's the relevance of

2 this.

3 THE INTERPRETER: Microphone, please, Your Honour.

4 JUDGE ROBINSON: What is the relevance of this? It seems more

5 like a matter for trial.

6 MR. JOVANOVIC: [Interpretation] You're quite right, Your Honour,

7 but I was prompted to refer to this because the indictment says that in

8 the relevant time period, the accused - and I will quote from the English

9 version - "worked in counter-intelligence." So I'm just asking whether

10 Franko Simatovic was telling the truth with respect to his position. Did

11 he tell Mr. Soldal this? Because Mr. Soldal says that he was insincere

12 during the interview. But did he nevertheless provide some truthful

13 information?

14 JUDGE ROBINSON: Yes. Ask the question and then move on.

15 THE WITNESS: As far as I remember, in 1990 or 1991, the state

16 security got their own intelligence branch. Before that, it had been a

17 counter-intelligence organisation, and Simatovic became involved with the

18 intelligence part of the DB.

19 MR. JOVANOVIC: [Interpretation]

20 Q. Do you know what his formal position was with the Ministry of

21 Internal Affairs at the time? He did hand over some documents to you.

22 Did he tell you about his position?

23 A. According to himself, he had quite a low-level position at that

24 time. I don't remember the actual position he held.

25 Q. You don't remember. Very well. Thank you. Mr. Soldal, your

Page 130

1 view that Mr. Simatovic respected and respects the work of the

2 International Criminal Tribunal, was it something that he did during the

3 interview that led you in any way to believe that this was not in fact

4 true?

5 A. It's more the information he gave us than what he did during the

6 interview. Most witnesses I interview claim they respect the work of the

7 Tribunal and that they want to cooperate with us. The information they

8 gave us can show that it's not actually the truth.

9 Q. Mr. Soldal, please, if you could view these two things

10 separately, how Mr. Simatovic treated you, his attitude in relation to

11 the interview itself, how he behaved. This interview lasted a couple of

12 days. Those were altogether 30 hours of conversation. On the one hand

13 we have your general position on that, the way he confronted you, the way

14 he provided information. This will later be subject to evaluation. Was

15 it your conclusion that he talked to you voluntarily and that he was

16 willing to cooperate to provide information? Let us just limit ourselves

17 to that. Let us not now discuss the truthfulness of this information.

18 But is it true that he was willing to provide information?

19 A. Yes.

20 Q. So he did cooperate? Am I right in assuming that?

21 A. Yes. There were no problems during the interview, and I

22 interviewed him six days altogether.

23 Q. Mr. Soldal, you said that certain witnesses that you interviewed

24 for the Milosevic case informed you that while the accused were still at

25 large they were not willing to talk to you. Did those witnesses later

Page 131

1 testify in the Milosevic case?

2 A. No.

3 Q. No. Which time-frame are we talking about? Can you specify at

4 which time you got in touch with those witnesses when they stated this to

5 you?

6 A. 2001, 2002.

7 Q. Mr. Soldal, did those witnesses perhaps explain to you why their

8 position was as it was? Because back then, there was no mention at all

9 of Franko Simatovic being detained on any grounds whatsoever. What was

10 this supposed to mean while these people were still at large? There were

11 no signs back then, nothing to lead anyone to believe that Franko

12 Simatovic would one day be detained.

13 A. No, but we very often met people that asked us why haven't you

14 arrested Mr. Stanisic and Mr. Simatovic, and it's based on that.

15 Q. Can you perhaps specify who these people are. Not information on

16 these people, of course, but in relation to which circumstances they're

17 supposed to testify and in which case.

18 MR. GROOME: Your Honour, these are people that the Prosecution

19 will be filing motion for disclosure of their identity. I'm not sure of

20 the relevance of their actual names at this juncture, but I would want to

21 be heard extensively if Mr. Jovanovic feels it's that important to

22 inquire about the identity of these people.

23 JUDGE ROBINSON: Mr. Jovanovic.

24 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. I

25 believe there's been a misunderstanding. That's precisely what I'm

Page 132

1 saying. I do not need these people's identity. We can't have these

2 statements disclosed now because, to begin with, these people have never

3 testified. What I want to know is whether Mr. Soldal can specify who

4 these witnesses were that refused to testify in the Milosevic case,

5 requesting that Franko Simatovic be brought in before they do anything.

6 Who were these people who requested that Franko Simatovic be detained,

7 and who asked questions about when he would be detained? Is there a

8 report that he sent to the OTP in relation to this issue? Is there any

9 paper trail?

10 JUDGE ROBINSON: Can you answer that? We don't want the names.

11 THE WITNESS: Yes, Your Honour. This is witnesses I interviewed

12 during -- or tried to interview, more correctly, during the Milosevic

13 investigation. And it's mostly members of the so-called Red Berets or

14 other paramilitary units. And many of them asked if we were going to

15 arrest Mr. Stanisic and Mr. Simatovic.

16 MR. JOVANOVIC: [Interpretation]

17 Q. Did you inform the OTP about this? Was there a report that was

18 drafted on your part about this? I assume that before you approach a

19 witness, you gather all the information that you can on that witness, and

20 then you must produce something in return, following your contact with

21 these witnesses.

22 A. If the witness interviews we are supposed to do in the field

23 don't take place, we write a short report about the witness in the

24 mission report we have to submit when we are back from mission.

25 Q. Did you do that in relation to the witnesses we are talking about

Page 133

1 now?

2 A. The witnesses that refused to testify?

3 Q. Yes.

4 A. It must have been done for several witnesses.

5 Q. Specifically these witnesses who referred to Mr. Simatovic? Did

6 you enter that bit of information in your report?

7 A. This happened with a lot of witnesses, and what kind of

8 information I entered for each witness, I do not remember today.

9 Q. So, to sum it up: You can't be sure that you actually wrote a

10 report for the OTP in which you stated such-and-such witness refuses to

11 talk to us, requesting that Franko Simatovic first be placed into

12 custody.

13 A. I have submitted reports about witnesses that don't want to be

14 interviewed because of the two accused, yes.

15 Q. Can you be more specific, please. Did you actually write this in

16 your report, the specific reason?

17 A. I know I have written reports about it, yes. For how many or for

18 whom of them, I can't tell.

19 JUDGE ROBINSON: Mr. Soldal, what he's asking you is whether in

20 your reports you specified that the witnesses told you that they were

21 concerned about the two accused being at large. He's asking whether you

22 specifically mentioned that in your report.

23 THE WITNESS: I have mentioned that in reports, yes, Your Honour.

24 MR. JOVANOVIC: [Interpretation]

25 Q. Could you perhaps show us these reports?

Page 134

1 A. I don't have them. I have to search through the system on my

2 reports.

3 Q. Thank you very much, Mr. Soldal. In relation to witness B 190,

4 during your interview of witness 190, you decided to view this witness as

5 a suspect following information that he disclosed to you. He provided

6 information on Croatia, as you said, refusing to provide information on

7 Bosnia, because of the accused Simatovic and the alleged involved 9as

8 interpreted] of this witness in a DB unit; is that correct?

9 A. That's correct.

10 Q. Did he talk about what happened in Croatia?

11 A. Yes, he did.

12 Q. Regardless of the fact that Franko Simatovic stands accused also

13 of crimes committed in Croatia?

14 A. According to this witness, the reason why he was willing to talk

15 about Croatia was that he belonged to another unit during that

16 time-frame.

17 Q. Mr. Soldal, what is the procedure when a statement is taken from

18 a suspect? What is the specific value of what a suspect tells you before

19 or during the interview, the recorded interview, in view of Rule 42, of

20 course?

21 A. The procedure is that we always interview the suspect by using

22 video or audio equipment. We read their rights. We don't discuss any

23 facts related to the investigation outside the time. And the value is

24 for the lawyers to review.

25 Q. However, what you talked about to witness 190 is essential, after

Page 135

1 all. It's about his involvement in the war in Bosnia. Do you believe

2 that witness 190, by virtue of the fact that he asked you to stop the

3 recording, wanted to avoid disclosing that particular information?

4 Within his rights as a suspect, he refused to incriminate himself, and

5 that's why he requested that the recording itself be stopped.

6 A. According to the witness, that wasn't the reason. He was afraid

7 because he belonged to the so-called Red Berets during the war in Bosnia.

8 Q. Do you believe that his statement to the effect that he was a

9 member of the Red Berets during the conflict in Bosnia is something that

10 incriminates him?

11 A. It doesn't necessarily have to incriminate him, that he was a

12 member of that unit.

13 Q. But he certainly did not want to make this information public,

14 did he?

15 A. No.

16 Q. Witness 190, was he informed, or rather, did you inform him that

17 today you would be speaking about his rights under Rule 42 and how he

18 refused to talk about this?

19 A. No.

20 Q. Mr. Soldal, paragraph 7 of your statement in relation to witness

21 B073, is this your comment on what happened?

22 A. Yes.

23 Q. Therefore, this was a public testimony, if I'm not mistaken,

24 wasn't it? There is a transcript on the website of this Tribunal.

25 Therefore, the public has access to what happened. You saw it fit to

Page 136

1 comment on what happened, didn't you?

2 A. Yes. I followed it on TV.

3 Q. Therefore, this only represents your own opinion and not

4 necessarily shared by others, does it. As to the nature of these events,

5 that's your opinion. Thank you.

6 MR. JOVANOVIC: [Interpretation] Thank you very much,

7 Your Honours. I have no further questions.

8 JUDGE ROBINSON: Thank you, Mr. Jovanovic.

9 Mr. Knoops.

10 MR. KNOOPS: Thank you, Your Honours.

11 Cross-examined by Mr. Knoops:

12 Q. Mr. Soldal, if I understand your statement correctly, you

13 actually refer with respect to specific the situation of Mr. Stanisic to

14 one occurrence, which you elaborate on in paragraph 6 of your affidavit,

15 a so-called sensitive source, indicating that there was some kind of a

16 meeting at the house of Mr. Stanisic. Is that correct? So this is --

17 considering your statement, the only concrete incident you describe about

18 Mr. Stanisic?

19 A. That's correct.

20 Q. Now --

21 MR. GROOME: Excuse me. Your Honour, I believe that this next

22 line of questioning may compromise the identity of that witness. Could I

23 ask the Court to inquire from Mr. Soldal if he does believe that it will.

24 And if it will, I'd asked that it occur in private session. Because of

25 how events occurred in this matter.

Page 137

1 JUDGE ROBINSON: Yes. Mr. Soldal, is there some matter that

2 should be taken in private session?

3 THE WITNESS: I'm not sure I understood Mr. Groome.

4 JUDGE ROBINSON: I think let us hear the question. Good.

5 MR. KNOOPS: Defence will not try to find out the identity of the

6 source, Your Honour, so can offer comfort to the Prosecution on that.

7 Q. My question is: First of all -- so I understand your answer, you

8 say this is the only concrete incident I described about the potential

9 involvement of Mr. Stanisic. I just -- I understood your question as

10 affirming.

11 A. Yes, in this affidavit.

12 Q. In this affidavit, right.

13 A. And of course when witnesses are telling, you have -- I mentioned

14 witness 174, 235. That is also related to DBS or state security as such.

15 Q. Right. But I'm speaking now on your affidavit on the 6th of May.

16 Mr. Soldal, first of all, the information you obtained was from a person.

17 Was the person himself present during the meeting?

18 A. No, he was not.

19 Q. Okay. You describe that the way of conduct seemed to you as

20 Mr. Stanisic wanted to screen the interviews we had with them. First of

21 all, did you inquire about the nature of that meeting?

22 A. No.

23 Q. Were you able to verify the nature of the meeting?

24 A. There were no way I could get that verified.

25 Q. Okay. Did you approach the two persons you mentioned as the two

Page 138

1 former members? Did you approach these persons as to the content of that

2 meeting?

3 A. No.

4 Q. Did you in any way, in any other way, verify your impression that

5 it seemed to you that Mr. Stanisic wanted to screen these interviews?

6 A. I reviewed the statement of these two witnesses, and I also

7 compared them with the statements of the two accused, and I could see

8 similarities in the story they gave us.

9 Q. So you deduced from some similarities your observation or your

10 suggestion that conversation was apparently meant, in your view, to

11 screen persons.

12 A. Yeah.

13 Q. Have you any other arguments to substantiate your suggestion?

14 A. No. And as I wrote in the affidavit, the dates for this meeting

15 fall together with the dates for the interview. I think I wrote that.

16 Q. Right. But you mentioned that as an argument to corroborate the

17 time and the place. But I mean the contents of the meeting, apparently

18 at the place of Mr. Stanisic, was that in any other way verified by you

19 or only by comparing the statements?

20 A. Only by --

21 Q. Comparison of the statements?

22 A. Yes.

23 Q. My second question to you, Mr. Soldal, is: You refer to

24 potential witnesses who refused to be interviewed because they feared

25 their own safety or the safety of their families at paragraph 3. And you

Page 139

1 also refer to the argument that, I quote: "Real power in the country was

2 held by Mr. Stanisic and Mr. Simatovic." Did you in any way verify at

3 what time Mr. Stanisic was dismissed from service?

4 A. 1997 sometime, I think, or 1996. I don't have the exact time.

5 Q. And the interviews you refer to, were they undertaken after the

6 period you just mentioned?

7 A. Yeah. A long time after.

8 Q. So actually, at the time of the interviews, Mr. Stanisic was not

9 actually head of the State Security Service.

10 A. He was not.

11 Q. Still, these people you refer to apparently told you that the

12 real power in the country remained -- was held by Mr. Stanisic and

13 Mr. Simatovic.

14 A. Yes.

15 Q. Was that for you a credible argument, considering the fact that,

16 according to your statement, Mr. Stanisic was already for some years not

17 in power of the DB?

18 A. It's very difficult to tell whether -- anything credible or not.

19 First of all, I'm not a political analyst. And secondly, there have been

20 many governments down there. There have been a lot of problems with the

21 different governments. So who is in power at any time has been difficult

22 to say, at least for me.

23 Q. But Mr. Soldal, you agree on first sight that this is not quite

24 logical that people allegedly saying that somebody is in power of a whole

25 country, a whole state, while that person merely was during his service

Page 140

1 the civilian head of a security service and already left the service for

2 years?

3 A. None of them held any de jure power at that time in Serbia or

4 Montenegro.

5 Q. Were you in any way in the position to verify that suggestion

6 made by these witnesses?

7 A. No.

8 Q. I have a last question for you, Mr. Soldal. Did you ever receive

9 any concrete evidence that Mr. Stanisic himself tried to influence any

10 witness, concrete evidence that he himself tried to influence a witness?

11 A. Never.

12 Q. Thank you.

13 JUDGE ROBINSON: Thank you. Mr. Groome.

14 MR. GROOME: Your Honour, I have no questions.

15 JUDGE ROBINSON: Thank you. Mr. Soldal, that is your evidence

16 and you may go.

17 [The witness withdrew]

18 [Trial Chamber and legal officer confer]

19 JUDGE ROBINSON: In the programme that was issued on Friday, the

20 order for the work today, we had scheduled a Status Conference, and we

21 consider it appropriate to carry out that conference now in relation to

22 the accused Simatovic.

23 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. I quite agree.

24 Before this hearing, talking to the Prosecution, I accepted the proposal

25 suggested by Mr. Groome, and that is that he would suggest that we have a

Page 141

1 Status Conference. But I will be guided by your instructions.

2 JUDGE KWON: Yes. We'll have a Status Conference, taking this

3 opportunity. But if there's any issues to raise at this moment, the

4 Chamber would like to hear from the parties now.

5 --- Motion Hearing adjourned for Simatovic Status

6 Conference]

7 --- On resuming Motion Hearing

8 [Trial Chamber and legal officer confer]

9 JUDGE ROBINSON: Mr. Jovanovic, we are coming to the close of

10 your case, the hearing in respect of the accused Simatovic. Do you have

11 any closing remarks to make, on the provisional release, of course?

12 MR. JOVANOVIC: [Interpretation] Yes, Your Honour, very briefly.

13 With respect to the two witnesses heard and the information they

14 provided us, first of all, we were able to see for ourselves that these

15 were investigators who did not work alone. In the process of

16 investigation, there are tasks performed by their colleagues and we had

17 occasion to hear these witnesses saying that they are not fully informed

18 as to what their colleagues had done. This is a system of work which is

19 functioning perfectly, probably, with respect to the collection of

20 information; but this supports what the Defence of the accused has been

21 claiming, and that is only once all the relevant information have been

22 collected and analysed, together with Defence evidence, can you, Your

23 Honours, determine the facts beyond any reasonable doubt and proclaim

24 someone guilty. So I feel that it is not up to the investigators of the

25 OTP to pass such opinions.

Page 142

1 Mr. O'Donnell, in his statement, which we received this morning,

2 said something that is common knowledge, that is, who is accused and who

3 is not by this Tribunal, for one reason or another. But I think we were

4 given a clear explanation by the minister of justice, Mr. Stojkovic, that

5 in some situations there may be differences from one situation to

6 another.

7 Mr. Soldal, on the other hand, was very clear in saying that

8 Mr. Simatovic was more than willing to receive the investigators in his

9 own apartment and to cooperate with them. He was interviewed as a

10 suspect. He didn't take the oath. He was defending himself. Now, when

11 the information he provided were accurate, it is up to you to establish

12 [as interpreted]. I think up to this point in time, we cannot rely on

13 the information of the Prosecution as to what is truthful and what is

14 not. It is quite clear that there are some facts that are contradictory,

15 even facts in the possession of the Prosecution, and it is only with time

16 and with the assistance of the Defence will all this be cleared up. And

17 before all that is done, I think we cannot find facts to be established.

18 I think the Prosecution is trying to prejudge certain things. If the

19 accused were not to be provisionally released, this would be a way of

20 justifying their position, and I think that is not acceptable. And I

21 feel that the testimony of the two witnesses confirms the position of the

22 Defence, that the accused fully cooperated. There was no evidence of any

23 kind of threat by Mr. Franko Simatovic. Mr. Soldal mentioned some

24 witnesses who allegedly refused to testify, but there was no evidence

25 that he could provide. He can't remember who those witnesses are, how

Page 143

1 many witnesses, et cetera.

2 Therefore, it is my submission that Franko Simatovic, on the

3 basis of what has been said by these two witnesses, have not managed to

4 convince the Trial Chamber that Franko Simatovic will influence

5 witnesses, victims, or any third persons, and that the submissions of the

6 Defence have been corroborated.

7 Also, regarding Mr. Soldal, who watched trial by TV, that is not

8 relevant. And in the response of the Prosecution does not clearly

9 identify the status of that transcript. Any transcript, any statement by

10 that witness, has not been produced on the basis of which we might be

11 able to investigate that event, and I think this is an allegation by the

12 Prosecution which the Chamber should not rely on. Therefore, I stand by

13 the proposal that I made in my opening statement.

14 Thank you, Your Honours.

15 JUDGE ROBINSON: Thank you, Mr. Jovanovic.

16 Any reply?

17 MR. GROOME: Yes, Your Honour. Before I begin, I think I have

18 about five to ten minutes of remarks. Does time permit me to begin?

19 [Trial Chamber confers]

20 JUDGE ROBINSON: I think it will be in the interest of expediting

21 the proceedings if you proceeded.

22 MR. GROOME: Your Honour, in October of 2002, the Appeals Chamber

23 issued a decision denying the provisional release, the applications of

24 Nikola Sainovic and Dragoljub Ojdanic. In paragraph 6, the judgement of

25 the Appeals Chambers set out nine factors which it said it expected the

Page 144

1 Trial Chamber to consider in that case, and found that the Trial Chamber

2 had committed an error of law in not addressing them.

3 Recognising that the facts of each case may be somewhat

4 different, will nonetheless construct my remarks around the nine factors

5 set out by the Appeals Chamber.

6 The first two are seriousness of the charges and likelihood of

7 long sentences. I will deal with those together.

8 They are firstly -- I'm sorry.

9 As the Trial Chamber in the Brdjanin case stated, "It is a matter

10 of common experience that the more serious the charge the greater the

11 likely sentence if convicted and the greater reasons for not appearing at

12 trial." I will not summarise the indictment charges or the underlying

13 crimes. As has been pointed out by a number of Trial Chambers

14 considering provisional release, the cases heard in this building are by

15 mandate and by their very nature cases of a very grave nature.

16 I think it is useful for the Chamber to consider that on the

17 spectrum of cases running from the very grave to the even graver still,

18 this case falls somewhere in the vicinity of one of the gravest

19 indictments brought before a Trial Chamber.

20 THE INTERPRETER: Could counsel please slow down for the

21 interpreters.

22 MR. GROOME: Not only by the serious and large numbers of victims

23 by perpetrators it is alleged these men employed in their criminal plan,

24 men such as Arkan, Legija, Lugar, and Debeli. It is the Prosecution's

25 view that both of these men were centrally placed and responsible for

Page 145

1 many of the crimes that were perpetrated in Croatia and Bosnia, that the

2 machinery and mechanisms that they personally built and supplied under

3 the patronage and direction of Mr. Milosevic played a critical and

4 criminal law in the excesses of the Yugoslav conflict.

5 I am sufficiently familiar with the evidence and victims in this

6 case that I am reasonably sure at the conclusion of a trial I would be

7 arguing to the Chamber that if it finds the Prosecution has proven this

8 indictment beyond reasonable doubt, I would be arguing that a maximum

9 sentence should be imposed.

10 In summary, there are few indictments more serious than the one

11 before the Chamber, on indictment which, if the Prosecution meets its

12 burden, will likely result in a significant sentence.

13 With respect to the circumstances under which they came into

14 custody, this would be the third factor in the Sainovic Appeals Chamber

15 judgement. Common sense dictates that if an accused surrendered

16 voluntarily, once more he is likely to do so in the future, and this

17 factor admittedly has always been an important one.

18 I do recognise and report to the Chamber that Mr. Simatovic did

19 tell the investigators who were interviewing him that should he be

20 indicted, he requested that he be informed so he could turn himself in

21 voluntarily. What transpired after his arrest in Serbia did not give him

22 the opportunity to demonstrate that intention. So we have no basis of

23 knowing whether or not he would have in fact voluntarily surrendered.

24 But I do recognise that he did explicitly state that to the investigators

25 who spoke with him.

Page 146

1 The fourth factor: Guarantees of the relevant governments. One

2 of the important evaluations a Trial Chamber must engage itself in when

3 presented with an application for provisional release is the reliability

4 of any guarantees presented. The Appeals Chamber in the 8th of October,

5 2002 decision, in the case of the Prosecutor versus Mrksic, defined the

6 test as follows, in paragraph 9: "The reliability of a guarantee given

7 by the relevant authority must be determined in relation to the

8 circumstances which arise in the particular case. The issue in each

9 particular case is what would occur if the relevant authority were

10 obliged, under its guarantee, to arrest the accused person seeking

11 provisional release in that case."

12 The Appeals Chamber went on to illustrate this point, citing an

13 example of two hypothetical accused, one which had a bona fide intention

14 to appear for trial, and the other which was in possession of highly

15 important and sensitive information. And the Appeals Chamber said the

16 following: "Accused B may have been a high-level government official at

17 the time he is alleged to have committed the crimes charged; and he may

18 have since then lost political influence but yet possesses very valuable

19 information which he could disclose to the Tribunal if minded to

20 cooperate, should he be kept in custody. There would be a substantial

21 disincentive for that authority to enforce its guarantee to arrest that

22 particular accused if he did not comply with the conditions of his

23 provisional release."

24 Based upon the indictment and based upon the evidence that the

25 Chamber has heard here today, I would submit that Mr. Simatovic would

Page 147

1 very well fit into the category of an accused B, a high-level person no

2 longer in power, with very valuable information.

3 I also point out with respect to reliability of the guarantee,

4 President Meron's letter of last week in which he stated in one of the

5 latter paragraph of that letter quoting: "I view the report of the

6 Prosecutor as indicating extremely serious failures on the part of Serbia

7 and Montenegro, and the Prosecutor has satisfied me that Serbia and

8 Montenegro is failing to comply with its obligations under Article 29 of

9 the Statute and Rule 39 of the Rules of Procedure and Evidence. I do not

10 question the sincerity of Minister Stojkovic in his testimony today when

11 he said he was willing to abide by the obligation towards the Tribunal.

12 It is the Prosecution's position, though, that the most reliable

13 indication of whether or not these guarantees will be adhered to, if

14 necessary, is the past track record. And as the Chamber has heard from

15 Mr. O'Donnell -- I believe the number he gave was 16 indictees for whom

16 information in possession of the Prosecution, that these people were in

17 Serbia and Montenegro of -- when that information was passed on, there

18 were no tangible results as a result of passing on that information.

19 The fifth factor in the Sainovic Appeals Chamber judgement was

20 the level of position held by the accused in relation to the weight

21 accorded the guarantee. I believe I've covered that.

22 The sixth factor was the law on cooperation. I think it's very

23 important to note Minister Stojkovic's testimony regarding there is no

24 council for cooperation in effect at present. There is no body to

25 regulate cooperation.

Page 148

1 The seventh is the personal guarantees provided by the accused.

2 Again, I would ask the Chamber to take them in light of my comments with

3 respect to the first two factors.

4 The eighth factor is the likelihood that relevant authorities

5 will rearrest the accused if he refuses to surrender. Throughout the

6 jurisprudence of this Tribunal, one repeating theme or recurring theme is

7 that this Tribunal lacks the capacity to go out and make arrests itself

8 and it is very dependent upon the countries where the accused are living

9 to do that.

10 One of the important factors that I think the Chamber should

11 consider - and I suggest this to distinguish the cases of Plavsic and

12 Strugar and Jokic - is that if these men, or if Mr. Simatovic, for

13 today's purposes, was not to adhere to his obligation to return, who is

14 it who would be sent out to arrest him? It would be people from the

15 Ministry of the Interior, the very organisation where it is alleged that

16 he held a very high and very influential position.

17 With respect to passport, in Serbia and Montenegro, it's the

18 Ministry of the Interior that regulates those passports. Again,

19 Mr. Simatovic had a very important position.

20 JUDGE ROBINSON: Mr. Groome, that was in a different era, when he

21 held the high position in the DB.

22 MR. GROOME: I recognise that, Your Honour. And tomorrow when I

23 make my comments with respect to Mr. Stanisic, I will point out that one

24 of the things he said to the Doctor, Mr. Offermans, was Mr. Stanisic

25 admitted that he still has very important contacts in among his old

Page 149

1 contacts who are from the positions he held. I would ask the Court --

2 suggest to the Court although Mr. Simatovic has not made a similar

3 admission, is also still -- quite possible that Mr. Simatovic would have

4 a considerable amount of influence. And even though he does not hold the

5 same position, I think it's safe to say that many of the people who are

6 his subordinates who were there when he did hold that position still are

7 in the ministry today and still would be subject to some of the influence

8 of Mr. Simatovic. I propose to the Court that it would be a very

9 difficult thing for some of those people to have to go out and arrest him

10 if that became necessary.

11 With respect to the agreement or their willingness to be

12 interviewed, I will rely on the testimony and the affidavits of the two

13 investigators, in particular with respect to Mr. Simatovic, that of

14 Mr. Soldal, and would suggest to the Court that their eagerness to

15 cooperate and to give statements is equally consistent with somebody who

16 is aware that they are being investigated and gives a self-serving

17 statement as it is with somebody who is honestly trying to report their

18 truthful account of events as they recall them. In fact, I would suggest

19 that given the testimony we've heard today, that the first proposition is

20 the more likely one.

21 And I would conclude my remarks with respect to Mr. Simatovic

22 there, Your Honour.

23 JUDGE ROBINSON: Thank you, Mr. Groome.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: That concludes the hearing in respect of the

Page 150

1 accused Simatovic. We adjourn, and we'll resume tomorrow. Before we

2 break, a comment on the availability of witnesses. Senior Legal Officer.

3 [Trial Chamber and legal officer confer]

4 JUDGE ROBINSON: I understand -- I think this concerns Mr. Knoops

5 - that the minister of health, the professor, is not available;

6 Dr. Tarabar is available; Dr. Offermans is not available. And for the

7 Prosecution, Dr. Smalc is available, is she?

8 MR. GROOME: Yes, Your Honour. She arrives today.

9 JUDGE ROBINSON: Yes. And we are to discuss a suitable date for

10 Dr. Boomgaard.

11 MR. GROOME: Yes, Your Honour.

12 JUDGE ROBINSON: We'll do that later. Are you aware of that --

13 were you aware of that position?

14 MR. KNOOPS: No, Your Honour, we weren't. No. But I've just

15 confirmed that we also for the sake of time, we will waive the hearing of

16 the minister of health. But we do like to hear Dr. Offermans, and

17 perhaps if you have a chance to schedule him on Thursday, we would try to

18 contact him today. Whether he is available on Thursday. I'm sure he

19 must have a possibility this week.

20 JUDGE ROBINSON: Perhaps you'd like to investigate.

21 MR. KNOOPS: Yes.

22 JUDGE ROBINSON: In relation to the minister of health before

23 waiving him.

24 MR. KNOOPS: Yes. But we were just informed that he already

25 left. He checked out. So I'm expecting to -- but we will check it and

Page 151

1 inform your Chamber about his exact location.

2 JUDGE ROBINSON: Yes. It's always good to carry out

3 investigations of your own.

4 Mr. Groome.

5 MR. GROOME: Your Honour, I was just going to say, in a slightly

6 related manner, that my comments with respect to conducting an

7 examination in the back, of course, are the same. We do now have the

8 English translation of the Detention Unit medical records giving the most

9 up-to-date diagnostic information about the accused Mr. Stanisic. I

10 would have no objection to Mr. Knoops giving his experts a copy of these

11 documents if they want to review the medical records of people who have

12 done recent examination of Mr. Stanisic and have recorded their

13 observations.

14 JUDGE ROBINSON: The Chamber had already made a ruling on that

15 and we expect it to be respected.

16 We are adjourned until tomorrow.

17 --- Whereupon the hearing adjourned at 2 p.m.,

18 to be reconvened on Tuesday, the 11th day of May,

19 2004, at 3 p.m.