1 Wednesday, 2nd December, 1998
2 (Open session)
3 --- Upon commencing at 10.05 a.m.
4 (The accused entered court)
5 JUDGE RODRIGUES: Good morning, ladies and
6 gentlemen. We are here to deal with a matter which has
7 to do with case number, Mr. Registrar ...
8 THE REGISTRAR: Case number IT-95-14/1-T, the
9 Prosecutor versus Zlatko Aleksovski.
10 JUDGE RODRIGUES: Thank you. Can we have the
11 appearances for the Prosecution first? Mr. Niemann?
12 MR. NIEMANN: Good morning, Your Honours. My
13 name is Niemann, and I appear with my colleague,
14 Mr. Meddegoda, and Ms. Erasmus is the case manager for
15 the Prosecution, Your Honours.
16 JUDGE RODRIGUES: Thank you very much,
17 Mr. Niemann. Mr. Mikulicic for the Defence.
18 MR. MIKULICIC: Good morning, Your Honours.
19 My name is Goran Mikulicic, and I represent Mr. Zlatko
20 Aleksovski as Defence counsel.
21 JUDGE RODRIGUES: We have here also a
22 representative of the Croatian Embassy. Can you
23 introduce yourself, please?
24 MR. MILJENIC: My name is Orsat Miljenic. I
25 am First Secretary of the Croatian Embassy in The
1 Hague, and I am here, as you wished.
2 JUDGE RODRIGUES: Yes. Thank you for
3 coming. The Chamber wanted to have this hearing
4 because it was notified of a motion for the provisional
5 release of Mr. Aleksovski once and now a second time,
6 and the Chamber felt that we needed to discuss this
7 matter in public. Therefore, I think the best way of
8 proceeding would be to give the floor to Mr. Mikulicic,
9 that is, the Defence; after that, to Mr. Niemann on
10 behalf of the Prosecution; and also, we can give the
11 floor to the representative of Croatia regarding
12 guarantees of cooperation in addressing this issue.
13 So let us begin with Mr. Mikulicic, please.
14 MR. MIKULICIC: Good morning once more, Your
15 Honours, and my learned friends from the Prosecution.
16 As Your Honours are aware, the trial of my
17 client, Mr. Zlatko Aleksovski, started before this
18 Honourable Tribunal in January this year.
19 Mr. Aleksovski was delivered to the appropriate bodies
20 of the Tribunal last year, at the end of April. Before
21 that, the Republic of Croatia or, rather, the Ministry
22 of the Interior, acting upon instructions from the
23 Tribunal, arrested Mr. Zlatko Aleksovski on the
24 territory of the Republic of Croatia, and then the
25 actual process of delivery to the Tribunal took place.
1 Allow me to remind you of some facts related
2 to these previous proceedings.
3 When this International Tribunal was formed,
4 the Republic of Croatia adopted a law whereby it
5 established the basic principles for its cooperation
6 with this Tribunal. It is a constitutional law; in
7 other words, a law which, according to the national
8 legislation of any country, plays a significant part in
9 the overall structure of laws. This law obliges the
10 Republic of Croatia to cooperate in every respect with
11 the International Criminal Tribunal and to act
12 according to the requests of this Tribunal as required
13 by the bodies of the Tribunal.
14 I don't know whether it is necessary to refer
15 to the fact that the law on cooperation with the
16 International Tribunal was adopted throughout the world
17 but in a limited number of countries, so that these
18 laws are rather the exception than the rule in the
19 International Community of sovereign states. I wish
20 thereby to underline the fact that from the very first
21 moment that the Tribunal was formed, the Republic of
22 Croatia manifested good faith to cooperate with the
24 So in accordance and pursuant to the
25 constitutional law on cooperation with The Hague
1 Tribunal, Mr. Aleksovski was arrested on the 8th of
2 June, 1996, and he has been in detention since then.
3 Partly he was in the custody of the Republic of Croatia
4 and, as of the 28th of April, 1997, he has been held in
5 the United Nations' detention unit in The Hague.
6 While he was in custody in the Republic of
7 Croatia, in accordance with the law I have referred to,
8 the procedure of giving over the accused to the
9 International Tribunal was carried out in the District
10 Court in Split as that was the competent court for the
11 area in which Mr. Aleksovski was arrested. Due to
12 reasons of health, in the course of those proceedings,
13 Mr. Aleksovski was transferred to a specialised prison
14 hospital in the capital of the Republic of Croatia, in
15 Zagreb. It is the only hospital of its kind in Croatia
16 which specialises in medical treatment of detained
17 persons and persons serving a prison sentence. That
18 hospital, of course, does not have any pretensions of
19 being a high quality clinic, so that many tests and
20 checkups have to be done in civilian hospitals under
21 escort of prison authorities.
22 Precisely due to these health difficulties,
23 the Minister of Justice of the Republic of Croatia, by
24 his decision, postponed the handover of Zlatko
25 Aleksovski to this Tribunal because, in accordance with
1 the laws of the Republic of Croatia, it is stipulated
2 that if a person is suffering from any medical
3 problems, he has to be treated first before being given
4 over to the custody of the Tribunal. After the
5 Defendant's health was more or less stabilised, he was
6 handed over to the Tribunal, as I said, on the 28th of
7 April, 1997.
8 I am saying all this because I wish to
9 emphasise two very important circumstances: One is
10 that from the very first, the Republic of Croatia
11 demonstrated absolute readiness to cooperate with the
12 Tribunal and, secondly, that my Defendant, Mr. Zlatko
13 Aleksovski, has certain chronic ailments about which I,
14 as a layman, cannot say much, except by referring to
15 the medical documentation which exists ever since the
16 time he was held in the prison hospital in Croatia and
17 also in the detention unit of the United Nations here
18 in The Hague.
19 Precisely because of his health, Your
20 Honours, you allowed our hearings to take place during
21 half a day only so that Mr. Aleksovski would be able to
22 follow those proceedings. I should like to remind you
23 of a rather unpleasant incident when Mr. Aleksovski
24 fainted during a sitting due to the fact that
25 physically he is unable to be immobile for long periods
1 of time because of those ailments that I have referred
3 This trial has entered its final stages.
4 Both the Prosecution and the Defence have filed their
5 closing statements, and it was normal to expect those
6 final statements to be made orally, but due to various
7 circumstances that you are familiar with, which I would
8 not like to go into so as not to waste time, there has
9 been a stay in the proceedings awaiting the position
10 and ruling of the Appeals Chamber. In view of such a
11 situation, it is not quite clear when the proceedings
12 may be resumed, so allow me to recall the Status
13 Conference held on the 17th of November this year when,
14 considering the possibility of the resumption of
15 proceedings, you realistically assessed that this may
16 not occur before May or June next year, that is, that
17 the trial may not be completed before then. The
18 Defence wishes to say, by making these references, that
19 the proceedings have been extended far beyond the date
20 we had expected.
21 In view of such a situation, referring to
22 Rule 65 of the Rules of Procedure and Evidence of this
23 Tribunal, the Defence has submitted a motion for the
24 provisional release of Mr. Aleksovski.
25 It is our view that this Defence motion is
1 founded on circumstances envisaged by Rule 65 itself
2 and also it is based on certain precedents within this
3 Tribunal. Allow me to recall some of the circumstances
4 which the Defence considers to be important when a
5 determination is made about this request.
6 The Defence fully understands, in view of the
7 significance and the seriousness of the offences that
8 are being tried before this Chamber, that detention is
9 the rule and provisional release the exception.
10 However, it is in this particular case the Defence
11 feels that this exceptional possibility of the
12 Defendant being able to defend himself in freedom can
13 apply. In view of the existence of exceptional
14 circumstances that are required for provisional release
15 of the accused, the Defence feels that such exceptional
16 circumstances are in place. They are reflected in the
17 fact that the Defendant has been in detention for more
18 than two and a half years, and the Defence feels the
19 duration of this detention is in itself an exceptional
20 circumstance because modern European laws, in
21 accordance with the European Commission for Human
22 Rights, are prone to reducing that detention as much as
23 possible in such proceedings.
24 Allow me to tell you, Your Honours, how the
25 Croatian law regulates this.
1 The Croatian Penal Code does envisage
2 detention of the accused on the basis of the view that
3 detention is a measure to ensure the accused's presence
4 in the proceedings. Detention is not a punitive
5 measure; it is one of the measures which a criminal
6 court pronounces in relation to the accused in order to
7 ensure his presence at trial and also in order to
8 prevent any future commission of criminal offences.
9 These are circumstances which are decisive when a
10 ruling is made on detention according to the laws of
11 the Republic of Croatia, which means that detention, as
12 a rule, is envisaged for those perpetrators of criminal
13 offences who do not have a regular place of residence
14 so it is not quite certain that court summons will
15 reach them, and for those accused for whom it has been
16 established that they have a tendency towards criminal
17 acts so that if they were allowed to live at liberty,
18 they may repeat such offences. So it is a measure of
19 society to prevent such offences.
20 Even under those circumstances, detention in
21 the investigating stage of the proceedings may not last
22 longer than six months. If, upon the expiry of six
23 months, the procedure has not been completed, the
24 accused must be released, regardless of the existence
25 of all these circumstances I have described.
1 So that would be, very briefly, the way in
2 which Croatian laws deal with detention.
3 In this specific case, the detention period,
4 counting the time spent in the Republic of Croatia and
5 the time in the U.N. detention centre here, has been
6 going on for more than two and a half years. So it is
7 far beyond any time limits which are considered, in
8 modern legal theory, appropriate for pre-trial
10 The condition of the health of my Defendant,
11 Mr. Zlatko Aleksovski, is of such a nature that for him
12 to be able to function normally, it is absolutely
13 essential that he should have freedom of movement and
14 that he should be able, on a daily basis and
15 particularly when his condition deteriorates, to be
16 under the supervision and control of a physician or a
18 It is quite obvious that the conditions under
19 which he has been living over the past two and a half
20 years do not definitely give him the opportunity, not
21 to improve his condition but even to maintain it at a
22 satisfactory level from a medical standpoint. In spite
23 of the fact that the Kingdom of the Netherlands is
24 providing a very high standard of medical care, it is a
25 fact that that medical care, under conditions of
1 detention in the U.N. unit, is not applied to the
2 extent to which in this case it would be necessary.
3 That is the reason why the condition of Mr. Aleksovski
4 is unstable. He suffers from vertigo, pains in the
5 lumbar and cervical areas of the vertebral column,
6 troubles and difficulties which require exercises; his
7 ability to concentrate, to sleep at night, has been
8 impaired because due to these disorders, he suffers
9 from insomnia and has to take certain sedatives, and we
10 all know that such sedatives do not really treat the
11 cause of the disease but only partially treat the
13 Years are passing, Mr. Aleksovski is getting
14 older, and, of course, these ailments are worsening.
15 However, the Defence firmly believes that under
16 different conditions, if Mr. Aleksovski could be
17 treated daily, and this treatment would consist of
18 exercises and physiotherapy and freedom of movement in
19 open space rather than within a limited area, would
20 significantly improve his condition. So we are
21 underlining these circumstances which we consider to be
23 Similarly, it is the view of the Defence that
24 there is absolutely no risk that the provisional
25 release of the accused would in any way jeopardise or
1 impair the regular operation of this Tribunal. The
2 Defence wishes to assure Your Honours that there is no
3 reason at all to fear that my defendant,
4 Mr. Aleksovski, would not respond to a court summons
5 and appear in this courtroom or any other courtroom in
6 which the Trial Chamber is sitting.
7 Mr. Aleksovski is a family man who has
8 unfortunately been separated from his family for quite
9 some time. Like his family, he has permanent residence
10 in the Republic of Croatia so that his release would
11 mean that he would reside where he has permanent
12 residence and, of course, would be prepared to a
13 restriction of his freedom of movement.
14 The Defence proposes that such freedom of
15 movement could be limited by applying domestic Croatian
16 law, and that law envisages the possibility that the
17 competent state body, in this case, the Ministry of the
18 Interior or the Ministry of Justice, temporarily
19 deprive the person for whom such a measure is envisaged
20 of his passport, thereby preventing him from leaving
21 his place of residence in his domicile state.
22 Another measure that is envisaged is stricter
23 police supervision in the sense that police supervision
24 can be provided on a 24-hour basis so that the accused
25 could not leave his residence without reporting to the
2 Something else I wish to underline is that
3 the penal legislation of the Republic of Croatia has
4 built-in provisions which fully comply with the high
5 standards of this Tribunal with respect to the
6 application of those provisions, whereby the accused
7 can be under the obligation to respond to a summons
8 from this Court at all times, so I think that the
9 readiness of the Republic of Croatia to apply these
10 measures should not be doubted at all. That readiness
11 has been demonstrated repeatedly, and in this
12 particular case, the readiness of the Republic of
13 Croatia is confirmed by the very arrest of
14 Mr. Aleksovski and the proceedings undertaken to
15 transfer him into the custody of this Tribunal.
16 The Defence wishes to underline the fact that
17 measures to ensure the presence of Mr. Aleksovski at
18 trial which are being applied, in this case, detention
19 is not absolutely necessary in this case. It would be
20 sufficient to apply the other measures that are at the
21 disposal of the law, those that I have referred to, and
22 that is, limited movement within the place of residence
23 by temporary confiscation of the accused's passport.
24 The passport would be deposited with the competent
25 body, and police control would be provided on a 24-hour
2 The next requirement envisaged for the
3 provisional release of the accused is a provision
4 envisaged in the national law of the Republic of
5 Croatia, and that is that the accused will not
6 represent any threat to the victims, witnesses, or any
7 other persons he may come into contact with. As I
8 mentioned a moment ago, the point is to prevent the
9 possibility of an accused being at liberty repeating an
10 offence or constituting a threat. That simply is not
11 possible in this case.
12 Mr. Aleksovski is charged with criminal
13 offences committed in the municipality of Busovaca in
14 the Republic of Bosnia and Herzegovina, and in the
15 course of these proceedings, Your Honours, you have had
16 occasion to hear and see witnesses from the area, and
17 you, yourself, have seen that all these people are
18 continuing to live in the territory of
19 Bosnia-Herzegovina, therefore, in another state in
20 relation to the state in which Mr. Aleksovski is
22 Therefore, there is simply no opportunity for
23 him to come into contact with those people because, as
24 I have just said, his movement, by deposition of his
25 passport and by police supervision, would be limited.
1 Therefore, there would be no physical possibility of
2 Mr. Aleksovski getting into touch with those people or
3 of him constituting any kind of threat to any
4 witnesses, victims, or any third parties involved in
5 these proceedings. Such a possibility is ruled out for
6 the simple reason that those persons that
7 Mr. Aleksovski could possibly influence are living in
8 the territory of another state to which Mr. Aleksovski
9 would not be able to travel because of the measures I
10 have referred to.
11 Regarding the last precondition, and that is
12 the host country's opinion on this case, I have seen,
13 Your Honours, that you have requested from the
14 authorised bodies of the Dutch authorities their
15 opinion on this, but I would like to remind you of the
16 already expressed position of the Dutch authorities
17 when they stated in brief that they will not go into
18 court decisions, and if any of the detainees happen to
19 be released, then the Dutch authorities would act
20 within their national laws which say that a person who
21 happened to be on Dutch territory, if they did not have
22 a permit for residence on the territory of the Kingdom
23 of the Netherlands, would simply be sent to the country
24 from which they had been brought into the Netherlands,
25 meaning that with the release of Mr. Aleksovski, the
1 Dutch authorities would simply act in accordance with
2 their regulations, and Mr. Aleksovski would be returned
3 to the Republic of Croatia where he was originally
4 brought from, in view of the fact that Mr. Aleksovski
5 does not have a residence permit in the territory of
6 the Kingdom of the Netherlands. So all of these
7 circumstances, in the view of the Defence, point to the
8 fact that really there is a possibility to apply Rule
9 65(B) on the provisional release of the accused.
10 I would also like to ask you to take into
11 account, without pretensions to prejudice any facts
12 which have been presented in the proceedings, to take
13 into account circumstances indicating any doubts that
14 Mr. Aleksovski had committed the crimes that he is
15 accused of. My learned colleague, the Prosecutor,
16 obviously has a different view from the Defence, but
17 the Defence feels that the evidence proceedings have
18 confirmed what Mr. Aleksovski himself had stated in his
19 first appearance before this Tribunal when he stated
20 that he did not consider himself to be guilty on any of
21 the counts from the indictment.
22 The Defence sincerely feels that the
23 proceedings did not confirm the counts of the
24 indictment, and thus the Defence said, in its written
25 statement, that it would like to have an acquittal
1 regarding Mr. Aleksovski.
2 The Defence also considers that there are
3 realistic circumstances in this case to waive the
4 compulsory detention with the provisional release of
5 the accused because the conditions have been met for
6 making such a decision, and it is quite certain that
7 Mr. Aleksovski will respond to any court summons. It
8 is quite certain that the Republic of Croatia will
9 undertake all legal measures in order to support this
10 appearance with its internal legislature, and, of
11 course, there are the circumstances that I talked
13 The Defence proposes to Your Honours to
14 consider these exceptional circumstances and proposes
15 that it decides on the provisional release of the
17 JUDGE RODRIGUES: Thank you, Mr. Mikulicic.
18 Mr. Niemann, I think that before giving you
19 the floor, it might be better to hear the
20 representative of the Embassy of Croatia. In that
21 case, we will have the complete position of the
23 I don't know whether I pronounced your name
24 correctly, Mr. Miljenic. As you have heard,
25 Mr. Mikulicic has presented a series of arguments
1 regarding the cooperation of the Republic of Croatia
2 with the Tribunal so that the Chamber can be sure that
3 should Mr. Aleksovski be provisionally released, he
4 would certainly appear to be tried in this Tribunal.
5 Could you give us the views of the Republic
6 of Croatia regarding the guarantees that the Chamber
7 could have if it were to make such a ruling regarding
8 such a future appearance of the accused?
9 MR. MILJENIC: Thank you, Mr. President.
10 With your leave, I would like to continue in the
11 Croatian language.
12 JUDGE RODRIGUES: We have highly competent
13 interpreters, so please continue in your own language.
14 MR. MILJENIC: In brief, I have been
15 authorised to state that the Republic of Croatia, in
16 the case that Mr. Aleksovski is provisionally released
17 to the territory of the Republic of Croatia of which he
18 is a citizen and is a permanent resident there, will
19 take all legal measures in accordance with its internal
20 laws, especially in accordance with the constitutional
21 law on cooperation with the Tribunal that
22 Mr. Aleksovski performs all the orders of the Court and
23 that he appears before this Tribunal in case he is
25 Also, I would like to stress that
1 Mr. Aleksovski is one of the examples that the Republic
2 of Croatia has met and will continue to meet the
3 requests of the Tribunal when it arrested him and
4 handed him over to the Tribunal.
5 That is all. Thank you.
6 JUDGE RODRIGUES: Thank you. Thank you very
7 much, Mr. Miljenic. For the moment, we have no
8 questions for you, and we can continue our discussion,
9 so please be seated.
10 Mr. Niemann, it is your turn now to give us
11 the views of the Office of the Prosecutor.
12 MR. NIEMANN: If Your Honours please: Your
13 Honours, the position of the Office of the Prosecutor
14 is that we are opposed to the motion by the Defence,
15 and we have provided Your Honours with a written
16 response to the Defence motion. What I now have to say
17 will, in large part, be supplemental to that and also
18 address some of the issues raised by my colleague,
19 Mr. Mikulicic.
20 Your Honours, the import of Rule 65(B) is
21 that release may be ordered by the Trial Chamber only
22 in exceptional circumstances, after hearing the host
23 country, and only if satisfied that the accused will
24 appear for trial, and, finally, if released, that he
25 will not pose any threats to victims, witnesses, or
2 The appearance for trial, Your Honours, is
3 perhaps difficult to understand in the circumstances of
4 this application as the trial has, in large part, been
5 concluded, but clearly the issue is whether he will be
6 here for the rest of the proceedings should he be
8 It's upon the accused, Your Honours, to
9 establish that the circumstances are exceptional. In
10 fact, it is an obligation upon them to convince you
11 that he will appear for trial, that he will not pose
12 any danger to victims and witnesses, and, finally, that
13 the host country has been heard. The criteria are
14 conjunctive, so if the accused fails to meet any one of
15 these criteria, then his application must, accordingly,
17 Your Honours, having regard to the
18 seriousness of the offence, the Rules envisage that
19 pre-trial detention will be the rule rather than the
20 exception, and it is only in rare cases - rare cases -
21 where provisional release will be granted.
22 Your Honours, this is not a situation which
23 you have in a domestic jurisdiction where this Court
24 has the power to make an order to the police force of a
25 nation state to keep a person under surveillance, which
1 you can do in a national setting. This is not a
2 situation where the place where the person will reside
3 has the same interest in the Prosecution, as would be
4 in a national setting. In a national setting, the
5 state has an interest in the criminal proceedings going
6 forward and that those criminal proceedings will not be
7 interrupted or frustrated or prevented by the escape or
8 absence of the accused person. So the state itself in
9 a national setting has a vested interest in making sure
10 that that person will attend.
11 When it comes to the deployment of police
12 resources and the taking of measures necessary to
13 secure the attendance of accused persons, in a national
14 setting, the state not only has an interest in making
15 sure that he does attend, but they can deploy their
16 resources and will deploy their resources to see that
17 that happens. That's not the case here.
18 Your Honours have no direct authority to
19 order that borders be checked so that accused persons
20 cannot escape from one jurisdiction to another, so
21 again not like a national setting where airports can be
22 given orders to ensure that persons fitting certain
23 descriptions don't leave or that border points be
24 provided with information. Your Honours are not in
25 that position where you can directly order that.
1 In a national setting, there are various
2 measures that can be put in place to keep the Court
3 alert to the continued presence of the accused when
4 released on bail, and that includes such things as
5 having the accused report regularly to the Court once a
6 week, if necessary, or to an official who is under the
7 direction and control of the Court to ensure that the
8 person is still in the jurisdiction. None of that is
9 available to Your Honours directly, and, Your Honours,
10 we have here, as I've mentioned, no situation where
11 there's a presumption of granting bail.
12 Your Honours, the states involved in the
13 former Yugoslavia where the accused is capable of
14 ending up, some have no interest in this matter, and
15 others are even against the work of the Tribunal. We
16 have no resources to deploy to ensure that he attends
17 for trial. We have no control, as I have said, over
18 borders or over his travel, and we can't do anything to
19 ensure that we check on a regular basis to ensure that
20 he is present within the jurisdiction.
21 This accused did not voluntarily surrender,
22 and the period of time that he spent in The Hague
23 pending trial was not excessive, having regard to the
24 work of the Tribunal and to the complexity of these
1 Mr. Mikulicic has gone over the grounds of
2 the Defence in making their motion, and, in summary, I
3 wish to address them as well myself. The first point
4 that he raises, though, relates to no reasonable
5 suspicion that he has committed the crime, and he has
6 said that as part of his motion to be filed before Your
7 Honours. Reasonable suspicion was considered to be a
8 relevant consideration by the Trial Chamber when it
9 dealt with an application for provisional release of an
10 accused person by the name Delalic in the Celebici
11 case, and this was a decision where the Trial Chamber
12 said that the test settled upon was that to have a
13 reasonable suspicion, there must exist facts or
14 information which would satisfy an objective bystander
15 that the accused may have committed the crime.
16 I address this point because it has been
17 specifically raised by Mr. Mikulicic in his motion, and
18 he said that the situation exists here that there is no
19 reasonable suspicion that this accused has committed
20 the crime.
21 Your Honours, in our submission, it is odd to
22 speak of reasonable suspicion at this stage of the
23 proceedings. Normally, this term is used, this
24 "reasonable suspicion," at a much earlier stage of the
25 proceedings. For example, persons are initially
1 interviewed on a reasonable suspicion. Persons are
2 searched on a reasonable suspicion. They are indicted
3 on a reasonable suspicion. They are arraigned on a
4 reasonable suspicion. But they certainly are not
5 convicted on a reasonable suspicion. A suspicion,
6 therefore, is well down the chain of proof.
7 As the case proceeds, the suspicion should
8 move from being a mere suspicion to a prima facie
9 case. In the Tribunal, the prima facie case stage is
10 at the end of the Prosecution case, a point we are well
11 past now; and unlike suspicion, a prima facie case has
12 to be based on evidence, and, Your Honours, it is not
13 necessary for there to be a formal motion that no prima
14 facie case has been established for this to be a
15 relevant consideration in the proceedings.
16 If, at the end of the Prosecution case, it is
17 clear that there has been no prima facie case
18 established, then it is for the Prosecution, firstly,
19 to move to have the counts dismissed. This, in fact,
20 happened in two trials that have proceeded in this
21 Tribunal, the Celebici trial and the Tadic trial. If
22 the Prosecution doesn't do it and the Court is mindful
23 of the fact that there is no prima facie case, it is
24 then for the Tribunal itself, the Trial Chamber itself,
25 to dismiss the counts.
1 Your Honours, if the Prosecution took no
2 action in this case, Your Honours, in our respectful
3 submission, would not have allowed the case to proceed
4 on any counts beyond the Prosecution case if you had
5 come to a firm conclusion that a prima facie case
6 hasn't been established.
7 So, Your Honours, we submit that this case
8 has moved not only beyond reasonable suspicion, it has
9 moved to the point of prima facie case. In our
10 submission, we are at the point of determining whether
11 or not we have proof beyond a reasonable doubt, and the
12 Prosecution would assert that that is the point that we
13 are at and that that has been, in any event,
14 established by the evidence.
15 Your Honours, in our submission, it is
16 inappropriate to raise reasonable suspicion at this
17 level. It is something that has been determined. It
18 was determined when the indictment was submitted by the
19 Prosecutor, it was determined by the confirming Judge,
20 it was determined by Your Honours when you first
21 considered the application for provisional release
22 filed by Mr. Aleksovski in January of this year. It is
23 a matter that was considered by the Prosecution at the
24 end of the presentation of its case and, Your Honours,
25 in our submission, it is not a matter to be raised now
1 as we are past that point.
2 So in respect of that, it is our submission
3 that the Defence assertion that there is no reasonable
4 suspicion has long past.
5 Turning now to the length of the detention.
6 Your Honours, when considering the time spent
7 in custody for the purposes of this particular
8 application, it is our submission that the ten months
9 that Mr. Aleksovski spent in Croatia should not be
10 taken into account. Clearly, Your Honours, if he had
11 come here earlier, the issue of when his trial would
12 have been commenced would have been dealt with much
13 earlier and the case would have clearly been probably
14 over by now without any question. So that first ten
15 months is not a matter that we submit should be taken
16 into account in determining what is an exceptional
18 Your Honours, the period of time that he
19 spent pre-trial in The Hague, from when he first
20 arrived in The Hague in April of 1997 to January of
21 1998, when this trial started, we submit shouldn't be
22 taken into account either, and the reason we say that
23 is because he has already brought an application before
24 you requesting provisional release, and Your Honours
25 have already dealt with that, dealing with the
1 pre-trial period.
2 The period of time that it has taken for his
3 trial, in our submission, is not a matter that should
4 be considered in the process of exceptional
5 circumstances. In our submission, Your Honours, the
6 trial must take its course; it took its course in a
7 manner which was expeditious; there was no party to the
8 proceedings that delayed it or in any way prevented it
9 from going as expeditiously as it can. So it is not
10 appropriate to say in those circumstances that these
11 are exceptional circumstances.
12 If a party to the proceedings could be
13 singled out and be shown to have delayed the
14 proceedings, then perhaps that may be an issue that
15 could be considered by you. But the length of time
16 that a trial takes is a matter in the hands of the
17 Court, and this particular Trial Chamber has been most
18 diligent in ensuring that the proceedings move along as
19 quickly as possible, and it cannot be said that in any
20 way has this been an exceptionally delayed trial, has
21 the process been delayed an exception -- that the
22 process of presenting the evidence before you, both by
23 the Prosecution and Defence, takes time, but that is
24 something which is an inevitable consequence of a
25 trial. There is nothing exceptional about it at all.
1 If there is a large trial and there is lots of evidence
2 on very complicated and difficult issues, this takes
3 time, but it is not exceptional; it is merely a
4 characteristic of the trial, and it is not something
5 that should be raised and presented to you as a basis
6 of why the accused should be given provisional release.
7 So the only matter that, in our submission,
8 is relevant for your consideration is: Is there going
9 to be a delay from now until the conclusion of the
11 Well, Your Honours, this would be a decision
12 made based on speculation. We don't know whether there
13 is going to be a delay. If there is a delay, again, it
14 is a natural incidence or consequence of the trial. It
15 is something that has occurred in the course of the
16 trial. As Mr. Mikulicic hasn't canvassed these issues,
17 I don't have to canvass them either, but we are in a
18 position at the moment where it has been put to you
19 that the trial is definitely going to conclude next
20 June. Well, I don't know how that can be in any way
21 determined, and if it is, and it is because there are
22 difficulties associated with scheduling and so forth
23 which would cause that to happen, then, in my
24 submission, that is not an exceptional circumstance;
25 that is a natural consequence of proceedings which
1 would occur in any jurisdiction where the state is not
2 in a position to immediately make available courts and
3 chambers and so forth to proceed with the trial as
4 expeditiously as one might want. It is not an
5 exceptional circumstance; it is a natural consequence.
6 Now, in our submission, it is quite
7 speculative to say that this case will go that long
8 anyway. We could have a decision tomorrow from the
9 Appeals Chamber, and it could be a decision which could
10 go in any direction, but it could be a decision which
11 could permit the trial to resume immediately, and so
12 that the time lost would be a week or so. We don't
13 know and we simply can't tell that that is going to
14 happen. There is nothing certain about this at all.
15 So this application that is made by the
16 Defence, in our submission, Your Honour, is based on
17 some speculative assumption of something that may or
18 may not occur in the future, and it is not based in any
19 respect on matters that have been dealt with in the
20 past; they have been dealt with and they are not
21 appropriately reconsidered at this stage, in our
23 What, Your Honours, needs to be considered is
24 the consequences, the potential consequences, of
25 granting this accused person provisional release at
1 this stage.
2 Your Honours, the Prosecution has no doubt at
3 all that, if the opportunity presents itself, this
4 accused person will escape the jurisdiction of this
5 Tribunal. The Prosecution has no doubt about that.
6 Why does it have no doubt about it? Because this
7 accused person has seen the full ambit of the
8 Prosecution case against him, he has endeavoured to
9 present his defence, and he knows the strength and the
10 likelihood of his potential conviction. Of course,
11 there is a possibility he may be acquitted, but if he
12 has a choice, if the choice is, "Should I run the risk
13 of being acquitted by going back to The Hague, or
14 should I now take this opportunity to escape?" in our
15 submission, he will take the latter, because it is a
16 natural and normal thing to do in the circumstances.
17 Why could he do it? Because, Your Honours,
18 he is not under the direct control of the Tribunal.
19 Once he leaves The Hague and once he goes back to
20 Croatia, we are then dependant upon what happens in
21 that jurisdiction.
22 Your Honours, it has been said by
23 Mr. Mikulicic and by the representative from the
24 Croatian Embassy that there will be certain measures
25 applied to ensure that Mr. Aleksovski returns to the
1 jurisdiction of the Tribunal. These measures are, it
2 seems, apparently to be based on Croatian law. I am
3 not sure that there exists in Croatia a special
4 provision with respect to war crimes, persons charged
5 with war crimes, but it may be that Mr. Mikulicic can
6 assist us with that in terms of pre-trial detention.
7 It may be that there is in existence a more rigid
8 regime singled out for persons charged with those
9 crimes. No doubt, if Mr. Mikulicic is aware of that,
10 he may be able to assist us. Certainly I am no expert
11 in that area.
12 In any event, Your Honours, the Trial Chamber
13 in the Blaskic case, when it came to consider a motion
14 for provisional release, said that the interpretation
15 of the principles applied by this Tribunal should not
16 be influenced by the laws of national states in
17 relation to provisional release, and the view taken by
18 the Trial Chamber in that case was based on the fact
19 that this Tribunal didn't have the resources or
20 facilities at its disposal to enable it to directly
21 enforce its orders.
22 With respect to the enforcement of orders, if
23 Your Honours were to impose certain orders, you would
24 have to be, in our respectful submission, satisfied
25 that they would be carried out. Now, it has been
1 suggested that Mr. Aleksovski was sent here by Croatia
2 as a direct consequence of its desire to ensure that it
3 was a good international citizen and it complied
4 directly with the mandates and requirements of this
5 Tribunal. I wonder, Your Honours, whether that is the
6 case. Certainly from the perspective of the Office of
7 the Prosecutor, it didn't seem to be the case because
8 it was necessary for the Office of the Prosecutor to
9 continually follow up with Croatia on securing
10 Mr. Aleksovski's surrender to this Tribunal. I wonder,
11 Your Honours, what information would become available
12 to you if certain leading members of the International
13 Community, who spoke to and dealt with Croatia on this
14 issue, could be permitted to come forward and give
15 details, if they would do that, of the efforts they put
16 in to securing not only the surrender of Mr. Aleksovski
17 but Mr. Blaskic and Mr. Kordic as well. And I am not
18 sure, Your Honours, that if that material became
19 available, that we would reach the same conclusion that
20 there was prompt and willing action by Croatia in
21 relation to having these accused persons surrendered
22 and whether that willing cooperation would extend to
23 other orders that may be issued in the brief that was
24 filed by the Republic of Croatia in relation to the
25 subpoena of duces tecum argument on the 18th of August,
1 1997. It is there clearly laid out for Your Honours.
2 It is a public submission clearly laid out
3 how it is asserted by Croatia, in no uncertain terms,
4 that the Tribunal didn't have competence or
5 jurisdiction over states and their officials and it
6 cannot issue compulsory coercive orders to a state or
7 its officials; that the Tribunal does not have the
8 inherent power to order such compulsory coercive orders
9 to states or their officials; the Tribunal does not
10 have the express power to issue such compulsory
11 coercive powers to states or their officials. The
12 limits of the International Tribunal's legal authority
13 and the recognised immunity of states and their
14 officials under international law cannot be
15 circumvented by addressing an order to an individual
16 state official; that the Tribunal lacks competence to
17 determine whether a state has violated its obligations
18 and can neither enforce its orders against states or
19 their officials nor sanction states or their officials
20 for failing to comply with such orders. All such
21 matters must be referred to the Security Council.
22 What does that mean, Your Honours? That
23 means that according to this very state where this
24 person, it has been suggested, should be released
25 provisionally, has maintained previously - and there is
1 no suggestion that it has changed its position, so far
2 as I can see - that you don't have the power to make
3 any orders binding on them in any event. So you can't
4 tell Croatia to provide 24-hour police surveillance.
5 They may or may not do it depending on whether they
6 want to. But their attitude is: You can't do it. You
7 can't tell Croatia to make sure that he doesn't escape
8 and go into another jurisdiction, not according to what
9 their previous position has been, at least, anyway.
10 Perhaps there is an argument that you may be able to
11 order his return to The Hague because, as they tell us,
12 it is part of their constitutional law, but that may
13 not even be enforced either if it is not what they want
14 to do.
15 But the biggest risk, Your Honours, is that
16 he will leave Croatia and that he will go somewhere
17 else. Now, what if he goes back, for example, to the
18 Lasva Valley? He was there during the course of the
19 war. What's going to happen then? We have no one that
20 can go in and do anything about it, and we have no
21 agreement with them to hand him over. So, Your
22 Honours, he could be lost to the jurisdiction at this
23 important stage of the proceedings, and that would
24 indeed be an unfortunate consequence. The victims have
25 come forward and witnesses have come forward and
1 testified under difficult and strenuous conditions.
2 They have an expectation that these proceedings will
3 come to a just conclusion, whatever way Your Honours
4 may decide. These proceedings would be frustrated,
5 they would come to an abrupt and immediate end if this
6 accused didn't return. So, Your Honours, in our
7 submission, if that happened, if that occurred, the
8 very limited resources of the Tribunal, which will only
9 have an opportunity to try the very tip of the iceberg
10 of cases that could potentially be tried in Yugoslavia,
11 would, in this case, have been a nullity; and the
12 consequence of that, Your Honours, is that you would
13 not have been able to contribute to that very important
14 component of the mandate of this Tribunal; namely,
15 contributing to the restoration of peace and security
16 in the former Yugoslavia.
17 If Your Honours would bear with me just a
19 Dealing now, Your Honours, with the question
20 of the accused's state of health.
21 I was given some documents this morning,
22 immediately prior to these proceedings commencing. I
23 haven't had an opportunity to examine them. But up
24 until that point in time, at least I can say, that
25 there was no evidence at all about his state of
1 health. Certainly the Prosecution was not in
2 possession of any information concerning his state of
4 Your Honours, if the conditions of his
5 detention are not conducive to maintaining a
6 satisfactory state of health of this accused person,
7 the matter is not resolved by granting him provisional
8 release. The problem is solved, in our respectful
9 submission, by addressing the conditions of detention
10 so as to accommodate his medical condition. This is
11 assuming that there is a genuine problem with his
12 detention conditions which are exacerbating or
13 contributing to his medical condition.
14 It may be, Your Honours, that steps have
15 already been taken. I don't know. I have no
16 information at all to know whether or not special
17 measures are in place or whether or not medical
18 assessments have been made and that the conclusion of
19 those medical assessments is that no special provisions
20 should be put in place.
21 Your Honours, if there is a problem here,
22 then the Prosecution is the first to say that something
23 should be done about it, if that is the case. I very
24 much doubt that it is the case, but if it is, that is
25 our position.
1 In the decision of the Trial Chamber in the
2 case of Kovacevic, Their Honours there said that the
3 accused must establish that he cannot be treated
4 effectively in the Netherlands. It is not a question
5 of whether he cannot be treated effectively in the
6 detention centre, that's in the Netherlands, and they
7 go on to say the fact that "an accused who is ill would
8 be in better spirits and more receptive to medical
9 treatment in his own country with the support of his
10 family does not, in our view, amount to an exceptional
12 So, Your Honours, we have no evidence at all
13 about whether or not he can receive appropriate
14 treatment in the Netherlands. There is no evidence at
15 all before us on that. I would be very, very surprised
16 if a modern country, such as the Netherlands, couldn't
17 provide him with the necessary medical support that he
18 needs having regard to his condition, and I would be
19 surprised if Croatia was in a better position than the
20 Netherlands to do that either, frankly. So in my
21 submission, Your Honours, he has the burden to
22 establish to you that he can't receive the treatment
23 here, and in no way has he discharged that burden. We
24 have heard certain assertions made by Mr. Mikulicic
25 from the bar table, but that's not evidence, and there
1 is not much one can do with that. Be that as it may,
2 none of it, so far as I'm not a medical person, and
3 none of it, so far as I know, leads to a conclusion
4 that he cannot be adequately and properly treated here.
5 Your Honours, when coming to consider this
6 application, I think it is necessary, in our
7 submission, for you to have regard to the fact that
8 this is the second time that the application has been
9 made, and in our submission, it would be appropriate
10 for Your Honours to consider carefully whether or not
11 there are any changed circumstances which would justify
12 a provisional release now as opposed to January of
13 1998, the beginning of this year, when Your Honours
14 came to consider the first motion.
15 If Your Honours conclude that nothing has
16 changed in terms of his circumstances and that they are
17 no more exceptional now than they were before, it is
18 our respectful submission that this motion should be
20 Your Honours, in conclusion, it's our
21 submission that we're dealing with an application here
22 which has been provoked by ultimately something that
23 the accused himself has done. I'm not critical of the
24 course they've taken. It's entirely up to them to
25 decide whether they want to introduce further evidence
1 or not, but the consequence of that was to reopen the
2 case, and they must have expected that the Prosecution
3 would respond, and we did. And if that's what their
4 complaint is about in seeking a justification for this
5 provisional release, then, Your Honours, they can't
6 proceed on the basis that all will ignore their
7 involvement in it and only look to the role that the
8 Prosecution has taken. The Prosecution has its
9 responsibilities and duties, and it responded to a
10 situation it was placed in. If that brought about or
11 will bring about any delay, then that is a reaction to
12 something that the Defence themselves did.
13 In our submission, they can't now come before
14 you and say, "Look at what's happened to us? We've
15 been delayed here by the Prosecution," and to simply
16 ignore the fact that they themselves set upon, embarked
17 upon, the course to introduce this additional material
18 which brought about this delay.
19 In our submission, Your Honours, it's not a
20 matter of simply saying, "The Prosecution is delaying
21 it; therefore, we should be entitled to provisional
22 release." This is a much bigger issue, and, in any
23 event, I emphasise that it is speculative and uncertain
24 as to how long the delay is going to be. There is no
25 reason why some further application can be brought if
1 I'm wrong and it turns out that there is some extensive
2 delay. If that happens, well, that can be done later
3 on down the track when it's established that there has
4 been such a delay.
5 The point is that the trial was not delayed.
6 It proceeded expeditiously. Pre-trial detention was
7 dealt with in the first motion, and, in our submission,
8 the period of time spent in Croatia is not a relevant
10 If Your Honours will excuse me. Yes, Your
11 Honours, unless there are any other further matters
12 that I can assist you with, those are our submissions.
13 JUDGE RODRIGUES: Mr. Mikulicic, do you have
14 anything to add in response or to respond to what
15 Mr. Niemann has said?
16 MR. MIKULICIC: Thank you, Your Honours. The
17 Defence would like very briefly to respond to a few
18 points made by my learned friend, Mr. Niemann. So
19 allow me, I will follow the same order in which he
20 presented his views.
21 It is true, as my learned friend Niemann has
22 said, that this Tribunal has no jurisdiction over
23 domestic law when it comes to any coercive measures
24 towards the accused, but it is not true that such
25 jurisdiction doesn't emanate from some other
1 instruments. The Tribunal doesn't have direct
2 jurisdiction because it cannot give orders to domestic
3 police authorities or law enforcement authorities, but
4 the Republic of Croatia is obliged to act in accordance
5 with the requests of the Tribunal pursuant to the
6 constitutional law that it has adopted on cooperation
7 with the Tribunal. Therefore, the jurisdiction of the
8 Tribunal in relation to the local police in Croatia is
9 reflected in the jurisdiction of the competent bodies
10 of the Republic of Croatia which is duty-bound to
11 cooperate with the Tribunal.
12 Without entering into a review of that
13 cooperation in the past, we believe, in this particular
14 case, that that cooperation has been highly effective
15 because it was precisely the Republic of Croatia
16 reacting to the request of the Tribunal that it
17 arrested Aleksovski and surrendered him to the
18 Tribunal. Therefore, the Republic of Croatia has
19 demonstrated its wish to cooperate fully.
20 I think that it is not fair that my learned
21 colleague, Mr. Niemann, should mention as an example of
22 non-cooperation by the Republic of Croatia the subpoena
23 duces tecum from the Blaskic case. I think, pro primo,
24 that this is a case that is still being litigated, so
25 we cannot refer to the arguments of other cases which
1 are still in trial.
2 Secondly, I think that these two cases cannot
3 be compared because, in the other case, the Republic of
4 Croatia feels that those requests affect the security
5 issues of Croatia. It is a well-known fact that the
6 appearance of Mr. Aleksovski in the Tribunal cannot,
7 under any circumstances, be considered a security issue
8 for the Republic of Croatia. Therefore, it is quite
9 realistic to expect that the Republic of Croatia will
10 pro futuro cooperate with the Tribunal as it has
11 already done in surrendering Mr. Aleksovski to the
13 Another question raised by Mr. Niemann is the
14 question of reasonable suspicion for the acts
15 Mr. Aleksovski is being charged with. These are
16 obviously questions of fine shades of meaning in the
17 interpretation. The Defence is fully aware of the
18 degrees of suspicion as proceedings advance, and the
19 Defence did not refer to that level of suspicion that
20 is required for the indictment, nor the prima facie
21 case at the end of the Prosecution case, but the
22 reasonable suspicion that, at the end of the trial,
23 each one of us will think whether the accused has,
24 indeed, committed the offence. So I'm referring to
25 that level of suspicion, rather than the level of
1 suspicion required to initiate a trial in the first
3 I do not agree with the Prosecutor that ten
4 months spent in the custody of the Republic of Croatia
5 should not be taken into account. If we view this fact
6 quite pragmatically, it means ten months in detention,
7 and not because Mr. Aleksovski drove a car in a drunken
8 state and killed a pedestrian, but rather because the
9 Republic of Croatia, acting upon orders of this
10 Tribunal, ruled detention for Mr. Aleksovski.
11 Therefore, the time spent by Mr. Aleksovski in
12 detention in the Republic of Croatia should, indeed, be
13 taken into account when ruling on this motion.
14 Colleague Niemann says that by being released
15 Mr. Aleksovski would be in a position to choose to
16 reappear in court or to flee, but there is no such
17 choice before Mr. Aleksovski, because in the event of
18 his provisional release, measures will be enforced
19 against him which will totally deprive him of the
20 possibility of choice, and that is police surveillance
21 and the confiscation of his passport.
22 I think there is no need for me to remind you
23 that there is absolutely no chance of Mr. Aleksovski
24 leaving the territory of the Republic of Croatia if he
25 has no passport and still less his chance of appearing
1 in the Lasva Valley for which, anyway, he has no reason
2 to go because his family is not living there, nor are
3 there any friends there, nor is he employed there. So
4 there is no objective opportunity for him to do that,
5 nor is there any subjective wish on his part to do
7 The logic of my learned friend, Mr. Niemann,
8 when speaking about these possibilities and when making
9 comparisons with the subpoena duces tecum hearings is,
10 in the view of the Defence, a logic which is not
11 applicable. It appears as if he is expecting illegal
12 behaviour in advance. In my deep conviction, that
13 cannot be a position taken by a judicial body. The
14 position must be the opposite. One must expect legal
15 behaviour, and illegal behaviour is an exception.
16 In this case, I assure you that the Republic
17 of Croatia will take all the necessary steps to prevent
18 any illegal or unlawful behaviour, and what I have in
19 mind is the possibility of Mr. Aleksovski not appearing
20 in court when called by the Trial Chamber.
21 The question of health: The fact is that
22 Mr. Aleksovski, while being in detention, is
23 aggravating his condition. Here, I agree with
24 Mr. Niemann. I have no doubts regarding the high
25 medical standards applied in the territory of the
1 Kingdom of the Netherlands. What is more, I'm prone to
2 agree with the Prosecutor that those standards are
3 higher than the medical standards in the territory of
4 the Republic of Croatia, perhaps lower than in the
5 Kingdom of Sweden, but that is not the point. The
6 point is not the medical standards. The point is
7 detention in closed space where those standards cannot
8 be applied.
9 I wish to draw your attention to a single
10 illustration. Mr. Aleksovski needs physical therapy on
11 a daily basis. That physical therapy, within the U.N.
12 detention unit, is not provided. It was interrupted,
13 and, according to the situation as it is now, it is
14 applied once in 10 or 15 days which is absolutely
15 inadequate. He needs daily treatment; however, this
16 simply is not possible. Let me repeat that I have no
17 doubts that the Kingdom of the Netherlands can provide
18 this but not under conditions of detention, and here we
19 are dealing with detention.
20 Colleague Niemann has reminded you that the
21 Defence, at the beginning of this year, already
22 submitted a motion for provisional release of the
23 accused, and let me follow on to that by saying that
24 that motion was submitted even before the beginning of
25 trial. In the meantime, evidence has been presented in
1 court, witnesses have been heard, documents have been
2 admitted, maps, videotapes. In the meantime, the
3 health condition of Mr. Aleksovski has deteriorated as
4 a result of detention. Therefore, the conditions today
5 within which we are considering this motion for
6 provisional release are substantially different from
7 the conditions that existed at the beginning of this
8 year when the Trial Chamber received the first motion.
9 Therefore, these two motions cannot, under
10 any circumstances, be identified because they are quite
11 different. Why? Because the circumstances under which
12 they were made are quite different.
13 Therefore, it is our submission that all the
14 circumstances do exist, as we have argued them in
15 writing, and we appeal to this Honourable Trial Chamber
16 to grant the motion for the provisional release of
17 Mr. Aleksovski, with our full assurances that by making
18 such a ruling you would be assisting in improving
19 Mr. Aleksovski's health. You would not, in any sense,
20 undermine these proceedings because the Defence wishes
21 to assure you that Mr. Aleksovski will respond to any
22 summons from this Trial Chamber and appear in The Hague
23 and be ready to face up to your decision, whatever it
24 might be.
25 Thank you.
1 JUDGE RODRIGUES: I see that we have been
2 working for an hour and a half already, but in spite of
3 the need for a break, I would like to address a few
4 questions to Mr. Miljenic and to see whether the
5 Prosecutor or Mr. Mikulicic have any questions, because
6 after that, we can have a break and we can release
7 Mr. Miljenic, because I'm sure he has other things to
9 In any event, Mr. Niemann, do you have any
10 questions to address to Mr. Miljenic?
11 MR. NIEMANN: Well, not directly, Your
12 Honour, other than the point that I have made was not
13 to suggest that Croatia would commit any illegality.
14 What I am saying is they have expressed their position
15 in writing in a proceeding which is contrary to the
16 procedures that Your Honours are now examining, which
17 means that if Your Honours are to release him on
18 provisional release, you would be seeking, I would
19 imagine, to support that or back that up with
20 appropriate orders.
21 This state has said in this Chamber in public
22 that it doesn't recognise your authority to do that.
23 Now, unless they have changed their position, our
24 position is that any orders that you do make, one can
25 expect them to be treated in the same way. If there
1 are any questions of Croatia, it is, have they changed
2 their mind since they filed the Blaskic motion? If
3 they have changed their mind, well, that would be
4 interesting. If they haven't changed their mind, then
5 our position remains the same.
6 JUDGE RODRIGUES: Mr. Mikulicic, do you have
7 any questions because it would be preferable to hear
8 those questions while we are together. I have some
9 questions, and after that, perhaps Mr. Miljenic can
10 answer all of those questions together.
11 Do you have any questions, Mr. Mikulicic?
12 MR. MIKULICIC: Your Honours, the Defence has
13 no questions at this time, but if, in the course of
14 further proceedings, there is a need for that, I would
15 like to ask you to permit me to do that.
16 JUDGE RODRIGUES: My question is as follows,
17 Mr. Miljenic: Thank you again for coming and for being
18 here with us. It is true that the Tribunal was
19 established to achieve justice under conditions of
20 peace, which are very difficult conditions, and to make
21 a contribution to peace, but I think these objectives
22 of the Tribunal will never be accomplished unless we
23 establish cooperation among the affected states and the
24 Tribunal, that is, if the persons, I say "the persons"
25 but also the authorities, do not show trust in the
1 Tribunal and the work we are doing here.
2 There is something I would like to ask you.
3 In my opinion, cooperation has to be based on mutual
4 respect and mutual confidence; otherwise, it is not
5 possible to cooperate. My question is as follows:
6 What is the Croatia that you represent here? I'm sorry
7 for using this figure of speech, it is not good or bad,
8 but the Croatia described by the Prosecutor,
9 Mr. Niemann, or the Croatia described by
10 Mr. Mikulicic? Which is the one that you are
11 representing here?
12 MR. MILJENIC: Thank you very much for your
13 question. I would first like to state that the
14 Republic of Croatia is not a party in these
15 proceedings, and as you see, I'm not involved in the
16 same way that my colleagues are, but I'm appearing at
17 your request as some sort of friend of the Court in
18 order to help you in reaching your decision.
19 I would like to thank you for your question
20 because it follows upon my desire to comment on the
21 statements by Mr. Mikulicic and Mr. Niemann, as opposed
22 to Mr. Niemann who went into speculation in his remarks
23 regarding the Republic of Croatia. I would just like
24 to state a number of facts that I am able to at this
25 moment, and that is that the Republic of Croatia --
1 Mr. Mikulicic has warned me to speak a little
3 And that is that the Republic of Croatia, the
4 only two persons who happen to be on its territory and
5 against whom an indictment was raised by this Tribunal,
6 Croatia had arrested them and surrendered them to this
7 Tribunal. This is Mr. Aleksovski and Mr. Skopljak, who
8 was on the same indictment and who was, in the
9 meantime, released in accordance with a decision by the
11 As far as the rest of the accused are
12 concerned who were Croatian citizens, General Blaskic
13 surrendered voluntarily, he had been in the territory
14 of the Republic of Croatia, while in the other cases,
15 the Republic of Croatia intervened in a way in their
16 surrender so that they are all here at the Tribunal.
17 This is as far as the cooperation of the Republic of
18 Croatia is concerned.
19 I would also like to refer to the question of
20 the subpoena which has been raised here in a wrong
21 context, and in my opinion, it was wrongly
22 interpreted. If you permit me, as far as the question
23 of the subpoena, the Prosecution requested for a
24 binding order to be issued to the Republic of Croatia,
25 and in case this was not respected, the Republic of
1 Croatia would be penalised. The Republic of Croatia
2 was opposed to this as something which was contrary to
3 international law, and what the Prosecution forgot to
4 mention, the Appeals Chamber of this Tribunal supported
5 the position of the Republic of Croatia, so what was
6 quoted here was confirmed by the Appeals Chamber, and
7 that is that the Tribunal does not have the power to
8 issue orders or penalties against officials or states.
9 So this is a section of international law where Croatia
10 insisted on its rights, just like any other state.
11 JUDGE RODRIGUES: Excuse me for interrupting
12 you, Mr. Miljenic. Could you go more directly to the
13 circumstances surrounding Mr. Aleksovski? What are the
14 guarantees that you can give because Mr. Mikulicic said
15 that the case has still not been completed. So will
16 you please focus on Mr. Aleksovski only?
17 MR. MILJENIC: Yes, I was going to say that
18 this case has been resolved. The Appeals Chamber had
19 made its decision, so this is no longer an issue.
20 As far as Mr. Aleksovski is concerned, I have
21 been authorised to state what I stated at the
22 beginning. I would like to repeat that the Republic of
23 Croatia, in the example of Mr. Aleksovski whom it
24 arrested and in the example of Mr. Skopljak who it also
25 arrested and surrendered to the Tribunal, indicated
1 that so far it has met all the requests of the Tribunal
2 of that kind. The other accused citizens of the
3 Republic of Croatia who are not on Croatian territory
4 could not be arrested. That would be all.
5 If have you have any other questions ...
6 JUDGE RODRIGUES: For the moment, we are
7 satisfied, and we wish to thank you for your
8 cooperation and participation and for coming here and
9 clarifying the situation. You may be seated. We are
10 going to have a break, and you can carry on with your
11 regular duties because we will not need your presence
12 any further.
13 I think it is really time to have a break;
14 otherwise, the interpreters will be really too tired,
15 so let's have a 20-minute break. Then we will have
16 some questions, and then we will have another break to
17 make a determination regarding this motion. A
18 20-minute break.
19 --- Recess taken at 11.45 a.m.
20 --- On resuming at 12.19 p.m.
21 (The accused entered court)
22 JUDGE RODRIGUES: I would like to ask
23 Mr. Mikulicic: You said, Mr. Mikulicic, that the
24 conditions following the first ruling have changed.
25 Could you elaborate these changes for us, please, with
1 regard to the health of Mr. Aleksovski?
2 MR. MIKULICIC: Your Honours, when I said
3 that, compared to our first request, the circumstances
4 had changed, I thought then at the changed
5 circumstances in regards to two aspects: The first
6 aspect is the health of Mr. Aleksovski and the second
7 one is of a procedural nature.
8 The health of Mr. Aleksovski in relation to
9 the first case early this year has changed because his
10 health difficulties have worsened. I repeat, you
11 yourselves were practically direct witnesses when he
12 collapsed during proceedings at this Tribunal. He was
13 taken to the hospital where he was given medical care.
14 In the meantime, he also had an attack during his stay
15 at the detention unit when he was also taken to the
16 hospital. So these are the circumstances which
17 indicate that his health condition, due to his stay in
18 an enclosed environment, are getting worse.
19 As far as the second point, I had in mind the
20 fact that the evidence procedure had been completed
21 before this Tribunal so you were able to hear testimony
22 from witnesses, and you also could see certain evidence
23 which, in the conviction of the Defence, point to the
24 conclusion that Mr. Aleksovski did not commit those
25 crimes that he is charged with under the indictment.
1 In that sense, I was thinking about the changed
3 JUDGE RODRIGUES: Another question that I
4 would like to address to Mr. Niemann: After the
5 explanations given by the representative of the
6 Croatian Embassy, have you changed your opinion, or do
7 you maintain your position with regard to the subject
8 of this decision?
9 MR. NIEMANN: I am reinforced in my position,
10 Your Honour. The position taken by the representative
11 of Croatia was that they have no obligation to comply
12 with orders made by Your Honours and that not only do
13 they not have the obligation to do so, they are content
14 in that position because it has been approved, as they
15 say, by the Appeals Chamber. So my position is now, I
16 submit, much stronger than it was when I made my
17 original submission.
18 May I go on a little bit in relation to that,
19 Your Honour? There was a case before this Tribunal
20 dealing with an accused person called Simic. This
21 accused person was very badly disabled as a consequence
22 of being shot and was in a wheelchair, and he came
23 before the Tribunal and an application was made by him
24 for provisional release, and it is instructive, Your
25 Honours, and it may assist you if I was to just briefly
1 go over the circumstances under which he was given
2 provisional release.
3 He came armed with a letter from the Prime
4 Minister and the Minister of the Interior of the
5 Republika Srpska. Not only did they offer a monetary
6 sum in relation to his bail, but they undertook in
7 writing under seal that they would comply with any
8 orders issued by the Tribunal, and they specifically
9 spell that out, that they would comply with orders of
10 the Tribunal in relation to the arrest of that accused,
11 if necessary. I think this is in stark contrast to
12 what we have heard in relation to Croatia.
13 There are some other interesting aspects of
14 the order that was given in that case too that may
15 assist Your Honours.
16 There was a letter filed before the Trial
17 Chamber from the International Police Task Force in
18 Bosnia, and in this letter they undertook, on behalf of
19 the Tribunal, to monitor the accused person and to make
20 sure that he complied with conditions that were imposed
21 by the Tribunal.
22 In addition to that, the order was that he
23 would submit himself and go into custody and remain in
24 custody for the length of the trial, so it was purely
25 dealing with pre-trial; it had nothing to do with the
1 trial itself. Once the trial took place, these
2 provisional release conditions would fall away and he
3 would remain in custody until the conclusion of the
5 The next point about it, Your Honours, is
6 that he was severely disabled. This man was in a
7 wheelchair and had been shot in circumstances that had
8 occurred very close to the time that he was arrested
9 and brought here.
10 Under all of these conditions, the Prosecutor
11 agreed. The Prosecutor made no opposition at all to
12 the provisional release and consented to it because
13 there was a reasonable certainty. There wasn't going
14 to be the prospect, which there is here, the very real
15 prospect that we say exists, that there is a trial, all
16 the resources of bringing everyone here for the hearing
17 have all been expended at enormous cost, it can't be
18 repeated again, frankly, because of the limitations on
19 our resources, and in the case of Simic, because he is
20 going to be remanded in custody for the whole period of
21 the trial, there is no risk of that happening, that he
22 will escape at the last moment, and that the trial will
23 amount to naught. That is our very concern here, Your
24 Honours, in relation to that.
25 The issue of the medical condition of the
1 accused that was raised by Mr. Mikulicic a moment ago,
2 Your Honours. We have no evidence of that. All we
3 have are some matters that we may have observed in the
4 course of the proceedings. I have no way of assessing
5 the significance or importance of that in terms of
6 medical assessment. I don't know whether Your Honours
7 are better equipped to do so. But in our submission,
8 if this is a genuine application to seek provisional
9 release based on his medical condition, the very least
10 we should expect to see is for a medical practitioner
11 to come along and to give us details and an explanation
12 as to why his continued detention is incompatible with
13 his medical condition. We have none of that. All we
14 have is we are told that by Mr. Mikulicic. Now, I'm
15 not sure what his medical background is either, but it
16 seems to me that this is the only effective way that
17 this issue can be resolved: We need to have some
18 evidence upon which this order could be based.
19 Your Honours, the last point I would like to
20 make is that it seems to me from what Mr. Mikulicic was
21 saying, that apparently Mr. Aleksovski was receiving
22 adequate medical attention, he was getting his
23 exercises on an appropriate basis at The Hague
24 detention centre, but for some reason or another, that
25 was stopped. I don't know what the basis for that was
1 or why it was stopped or whether it was an appropriate
2 or proper decision to do so. But if there is any
3 question whatsoever that his medical condition is being
4 exacerbated or made worse because of this decision to
5 stop allowing him to have what is necessary for him to
6 do, his exercises or whatever it is, then we strongly
7 urge Your Honours to investigate that matter and see
8 that it is reinstated, because if he needs this sort of
9 assistance, he should get it. We would be the last to
10 be saying that we want anything to happen to him
11 because of some medical condition which could be
12 prevented. We encourage it, and we really do urge Your
13 Honours to investigate that matter.
14 But I say, Your Honours, that this is not a
15 case where provisional release is appropriate and,
16 indeed, to answer Your Honour's original question, I am
17 in no way now assured at all that any orders issued by
18 Your Honours will be complied with.
19 JUDGE RODRIGUES: To finalise our discussion,
20 which is approaching its close, I should like to give
21 the floor to Mr. Aleksovski to see if he has anything
22 to say or, rather, to add to what Mr. Mikulicic has
23 already said, rather than repeating anything he has
24 said but only if you have any additional remarks to
25 make. Mr. Aleksovski?
1 THE ACCUSED: Good day, Your Honours. I took
2 notes about all the things discussed in this Trial
3 Chamber, so I will try briefly to say what I think and
4 also to ask you to permit me to defend myself from
6 First of all, let's start from the
7 beginning. I addressed this Tribunal and I said that I
8 believe in this Tribunal. It's 12.30, the 2nd of
9 December, '98; I still trust this Tribunal and I will
10 continue to trust this Tribunal.
11 You stated recently, a little ironically,
12 that you like to see me in this courtroom. I
13 understand that that was a little saying, but I would
14 like to tell you that you will have the opportunity to
15 see me again in this Trial Chamber and I believe that I
16 will leave it as an innocent person.
17 Mr. Niemann has just mentioned one of the
18 reasons why I will appear before this Trial Chamber, is
19 that I do not expect objectively to receive a high
20 sentence, strict sentence, and I subjectively expect -
21 I believe this is realistic - that I will leave here as
22 an innocent person, and that's the primary reason why I
23 will come here, in case I am acquitted, in case my
24 motion is granted.
25 My life was always average, normal. Any fear
1 that I will commit any kind of crime or something that
2 is not fitting, as you said in one of the recent
3 sessions, with the behaviour of a regular citizen of
4 the world. It is absurd, in my world view. I don't
5 expect to commit any kind of stupidity. I promise you
7 When you said at one of the past sessions
8 that some of my friends and acquaintances would come,
9 you were right. Mrs. Vasvija is my former colleague,
10 and by chance, I know Mr. Tomic because he defended
11 clients who were in my prison. Maybe you didn't know
12 this, but you guessed, let's say.
13 I would also like to say, regarding my motion
14 for provisional release, there are subjective reasons
15 why my counsel and I discussed and proposed for you to
16 permit me to defend myself from liberty. Primarily the
17 reason for this is my health. By chance, life has led
18 me to get some kind of hereditary illnesses. I am not
19 expert in this and I cannot tell you too many details,
20 but I would like to tell you that I have considerable
21 difficulties on account of this, and I will explain
22 what these symptoms are.
23 From '79, the year of '79, I noticed that I
24 have elevated blood pressure, and like any younger man,
25 I was not afraid of illness. I lived normally. I was
1 active in sports. I was, amongst other things, in a
2 local soccer club in Zenica. Also, in the aero club, I
3 was a parachute jumper. But I was advised to stop
4 this, and I did. I continued with my studies, and as
5 you had the opportunity to see, I come from a working
6 class family, wasn't too poor or too rich, I had health
7 insurance in Zenica, I had therapy, with interruptions,
8 but as time went by, these difficulties took their
10 I began to suffer from constant elevated
11 blood pressure. Medical experts would probably explain
12 that better. It went pretty high. I also suffer from
13 tachycardia, which is the faster beating of the heart,
14 and I also suffer from --
15 JUDGE RODRIGUES: Mr. Aleksovski, excuse me
16 for interrupting you, but we are familiar with your
17 health problems, so there is no need to repeat them.
18 We are familiar with these problems already. So can
19 you please close your statements?
20 THE ACCUSED: Could I say a few more words
21 and then I will conclude?
22 JUDGE RODRIGUES: Yes, but quickly, please.
23 THE ACCUSED: Thank you. I would just like
24 to say, Mr. Prosecutor asked the question why I stopped
25 the therapy that I had in the detention unit. First of
1 all, physiotherapy was not stopped because of my will
2 but because of the lack of objective possibilities to
3 implement it the way it is supposed to be because it
4 was senseless to provide therapy in the way possible.
5 The doctor told me that I had problems with my spine, I
6 need to have spinal surgery. The doctor also said I
7 was young, but that this surgery posed considerable
8 threat of paralysis.
9 As far as my heart problems, heart disease, I
10 am on therapy which, because of the kind of therapy,
11 has to be interrupted every four or five months; then I
12 have to take a break and then it begins again because
13 this is very serious therapy.
14 Thank you.
15 JUDGE RODRIGUES: Thank you. We are now
16 going to have a break of more or less a half hour, and
17 then we will meet again to render our ruling.
18 --- Recess taken at 12.37 p.m.
19 --- On resuming at 1.06 p.m.
21 (The accused entered court)
22 JUDGE RODRIGUES: We are going to render our
23 decision. After having heard the conclusions of the
24 parties, as well as their arguments, and having heard
25 the opinion of the Republic of Croatia, and after
1 having given the floor to the accused, Mr. Aleksovski,
2 the Trial Chamber renders the following decision:
3 The provisional release of an accused cannot
4 be ordered by a Chamber, except under conditions
5 envisaged under Rule 65 and 65(B) of the Rules of
6 Procedure and Evidence.
7 It is the opinion of the Chamber that the
8 four conditions set out by this Rule are cumulative.
9 It is up to the Defence to prove that each one of those
10 conditions has been fulfilled. The Chamber is of the
11 opinion that, with respect to the motion for the
12 provisional release of Mr. Aleksovski, the Defence has
13 not, in its written motion nor in its oral arguments,
14 given the elements which would have allowed the Judges
15 to reach the conclusion that the conditions of Rule
16 65(B) have been met and, more specifically, that there
17 were exceptional circumstances regarding the state of
18 health of Mr. Aleksovski.
19 The Judges note, finally, that there are no
20 other exceptional circumstances which lead to the
21 description of the procedure made by the Defence.
22 Consequently, the Trial Chamber rejects the motion for
23 the provisional release of the accused,
24 Mr. Aleksovski.
25 The Trial Chamber requests that the Registry
1 take all useful measures which would allow the accused,
2 Mr. Aleksovski, to have the treatment required by his
3 state of health.
4 That is the decision of the Trial Chamber.
5 The Judges must always act in conformity with the
6 Rules, and the Rules do not allow the Chamber to make
7 any other decision.
8 Therefore, the hearing is adjourned, and the
9 decision has been rendered.
10 Excuse me, but Mr. Olivier Fourmy has drawn
11 my attention to the fact that the decision has been
12 taken in accordance with Article 65(B). In the English
13 transcript, let me say it in English, "... there are no
14 other exceptional circumstances which do not lead to
15 the description ..." Where it says "do not lead to the
16 description," it should read "which arise from the
17 description ..."
18 Is that correct now? Yes.
19 Before adjourning, I should like to address
20 myself to Mr. Aleksovski to say what I have already
21 said. The Rules are the Rules, and the Judges have to
22 implement those Rules, and we are doing that.
23 If we do not meet again before Christmas, I
24 take advantage of this opportunity to wish all of you
25 who do celebrate Christmas a Merry Christmas.
1 --- Whereupon the hearing adjourned at
2 1.13 p.m. sine die