Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9945

1 Friday, 20 September 2002

2 [Motion Hearing - Judgement]

3 [Open session]

4 --- Upon commencing at 1.49 p.m.

5 [The accused entered court]

6 [The accused Talic not present]

7 JUDGE AGIUS: Yes. Madam Registrar, you may proceed to call the

8 case, please.

9 THE REGISTRAR: Yes, Your Honour. This is the case number,

10 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir Talic.

11 JUDGE AGIUS: I thank you.

12 Mr. Brdjanin, can you hear me in a language that you can

13 understand?

14 THE ACCUSED BRDJANIN: [Interpretation] Good afternoon, Your

15 Honours. I can hear you and I understand you.

16 JUDGE AGIUS: I thank you. And good afternoon to you.

17 Appearances for the Prosecution.

18 MS. KORNER: Joanna Korner, Ann Sutherland, Julian Nicholls,

19 assisted by Denise Gustin, case manager.

20 JUDGE AGIUS: I thank you. And good afternoon to you.

21 Appearances for Radoslav Brdjanin.

22 MR. ACKERMAN: Your Honours, I'm John Ackerman. I'm here with

23 Milan Trbojevic and Marela Jevtovic, thank you.

24 JUDGE AGIUS: I thank you. And good afternoon to you.

25 Appearances for General Talic.

Page 9946

1 MR. ZECEVIC: Good afternoon, Your Honours. Slobodan Zecevic and

2 Natasha Ivanovic-Fauveau for General Talic.

3 JUDGE AGIUS: I take it, Mr. Zecevic, that the waiver applies also

4 for today's sitting?

5 MR. ZECEVIC: Yes, it does, Your Honour.

6 JUDGE AGIUS: Thank you. So on my own behalf and also on behalf

7 of my two colleagues we would like to apologise to everyone for starting

8 with more than an hour's delay. The reason, very simply put, is that we

9 required more time to have the two drafts prepared and vetted. We are now

10 in a position to hand down both judgements, both decisions, and we will

11 start with the one relative to the motion for provisional release of the

12 accused General Talic.

13 With your permission, I will skip the introductory part, and that

14 includes also in the part under "Discussion," the "Applicable Law," and

15 start with the section which has a -- as a subtitle "Application of the

16 law to the fact."

17 For the interpreters, starting from paragraph numbered 26, on

18 page 7.

19 This Trial Chamber is seized of an application by the accused

20 Talic for provisional release on humanitarian grounds, namely on the

21 grounds of his ill-health. The humanitarian basis makes this application

22 distinct from most of the other applications considered and decided by

23 this Tribunal. It is different from the cases like those of Plavsic,

24 Gruban, Hadzihasanovic, Alagic, and Kubura, for instance, because in all

25 of those cases provisional release was sought during the pre-trial phase

Page 9947

1 and there was no critical state of health involved. It is different from

2 the Djukic case because in that case, too, provisional release was sought

3 in the pre-trial stage and in addition the terminal cancer condition of

4 the accused was such as to be unequivocally incompatible with any kind of

5 detention. It is being pointed out from the very outset, therefore, that

6 Talic's case cannot be considered and dealt with in the same manner as

7 that adopted by this Tribunal in any of the above-mentioned decisions and

8 others with which this case cannot be strictly compared.

9 Still, having heard the testimonies of the medical officer of the

10 Detention Unit and of the two experts appointed by this Trial Chamber --

11 THE INTERPRETER: Your Honour, could we ask you please to slow

12 down a little bit for the interpreters. Thank you.

13 JUDGE AGIUS: Yes. I will slow down, and I apologise.

14 In addition to the documentation made available, there can be no

15 doubt that Talic is suffering from an incurable and inoperable locally

16 advanced carcinoma which presently is estimated to be at stage III-B with

17 a rather unfavourable prognosis of survival even on short term.

18 The Trial Chamber is of the view that Rule 65(B) is silent on the

19 circumstances justifying provisional release, specifically to enable

20 individual cases to be determined on their merits and by application of

21 discretion in the interests of justice. In determining these individual

22 cases, it is necessary to bear in mind the rationale for the institution

23 of provisional release which is linked inevitably to the rationale for the

24 institution of detention on remand.

25 The Trial Chamber stresses that the rationale behind the

Page 9948

1 institution of detention on remand is to ensure that the accused will be

2 present for his or her trial. Detention on remand does not have a penal

3 character. It is not a punishment, as the accused prior to his conviction

4 has the benefit of the presumption of innocence. This fundamental

5 principle is enshrined in Article 21, para 3 of the Statute, and applies

6 at all stages of the trial, including the trial period, the trial phase.

7 The argument of the Prosecution that it would be inappropriate for

8 this Trial Chamber to grant Talic provisional release given the stage the

9 trial has reached and the nature of the evidence that has been brought

10 forward to date can only be relevant in the context of an application for

11 provisional release insofar as it may convince the Trial Chamber that once

12 provisionally released, Talic may try to abscond or in any way interfere

13 with the administration of justice by posing a danger to any victim,

14 witness, or other person. The Trial Chamber is satisfied that no evidence

15 has been adduced to show that there are any such clear, present, or future

16 dangers.

17 The Trial Chamber has also considered the submissions by the

18 Prosecution that the provisional release of Talic could be extremely

19 damaging to the institutional authority of the Prosecutor and her ability

20 to conduct investigations in the territory of the former Yugoslavia and

21 the subsequent trial in The Hague. The Trial Chamber has carefully

22 balanced two main factors, namely the public interest, including the

23 interests of victims and witnesses who have agreed to cooperate with the

24 Prosecution, and the right of all detainees to be treated in a humane

25 manner according to the fundamental principles of respect for the inherent

Page 9949

1 dignity and of the presumption of innocence. As a result, it is convinced

2 that what would indeed be extremely damaging to the institutional

3 authority of the Prosecutor and, even more so, that of this Tribunal, is

4 if this Trial Chamber were to disregard the stark reality of Talic's

5 medical condition and ignore the fact that this is a Tribunal created to

6 assert, defend, and apply humanitarian law.

7 The stark reality of Talic's medical condition is that there is no

8 escape for him from the natural consequence that his illness will

9 ultimately bring about, because his condition is incurable and inoperable

10 and can only deteriorate with or without treatment. The stark reality is

11 that the odds in favour of his being alive a year from now are few indeed.

12 This scenario ultimately also means that it is very unlikely that Talic

13 would be still alive when this trial comes to an end -- to its end, or

14 more so that if found guilty, he would be in a position to serve any

15 sentence. Indeed, this is the stark reality of the situation that this

16 Trial Chamber is faced with. Yet the Prosecution continues to show

17 concern with the fact that the victims and witnesses who have agreed to

18 cooperate with this office will not have a favourable view of such a

19 release and in the context of their own suffering, they will not

20 understand the humanitarian motivation behind such a release. The Trial

21 Chamber is certainly not insensitive to the concerns of the Prosecution

22 and, even more so, to those of the victims and witnesses who may fail to

23 understand, as suggested by the Prosecution. It is the duty of this

24 Chamber, however, to emphasise that such concerns cannot form the basis of

25 any decision of this Tribunal which would be tantamount to abdicating from

Page 9950

1 its responsibility to apply humanitarian law when this is appropriate.

2 There can be no doubt that when the medical condition of the accused is

3 such as to become incompatible with a state of continued detention, it is

4 the duty of this Tribunal and any court or tribunal to intervene and on

5 the basis of humanitarian law provide the necessary remedies. In this

6 context, the Chamber makes reference to the recent decision of the first

7 section of the European Court of Human Rights in re Mouisel v. France,

8 which ruled for admissibility in a case which dealt with the continued

9 detention of a person suffering from cancer, requiring intensive

10 treatment, involving transfer to hospital under escort as being in

11 violation of Article 3 of the European Convention. The Trial Chamber has

12 no doubt at all that Talic's medical condition is such as to warrant in an

13 unequivocal manner a prompt and effective humanitarian intervention.

14 THE INTERPRETER: Kindly slow down for the interpreters. Thank

15 you very much.

16 JUDGE AGIUS: It would be inappropriate for this Trial Chamber to

17 wait until Talic is on the verge of death before considering favourably

18 his application for provisional release and in the meantime allow a

19 situation to develop which would amount to what is described in the

20 Mouisel decision supra as being an inhumane one. This is all the more so

21 when, as stated earlier, detention on remand is not meant to serve as a

22 punishment but only as a means to ensure the presence of the accused for

23 the trial. The Trial Chamber, given the scenario depicted above, fails to

24 understand the request of the Prosecution for the continued detention of

25 Talic, knowing that before long and in all probability before this trial

Page 9951

1 reaches its end, his condition will not be any different from Djukic and

2 would, as in that case, necessitate a practically unconditional

3 provisional release.

4 The Trial Chamber believes that given the medical condition of

5 Talic, it would be unjust and inhumane to prolong his detention on remand

6 until he is half dead before releasing him, basing itself on the medical

7 reports and the testimony of the medical doctors involved, the Trial

8 Chamber is of the opinion that the gravity of Talic's current state of

9 health is not compatible with any continued detention on remand for a long

10 period. As explained in the Mouisel case, the palliative care and

11 treatment which Talic's condition requires and will require more in the

12 future justifies a different environment. Moreover, it has rightly been

13 pointed out by the warden of the Detention Unit, as well as by the

14 Prosecution -- not by the warden. It's been the commandant -- that

15 security and logistical problems may arise if Talic seeks to have

16 treatment by way of chemotherapy while he remains in the custody of the

17 Detention Unit, and even if he is given treatment for some time in a

18 hospital in the Netherlands.

19 The Trial Chamber, in addition, believes that for the same

20 considerations outlined in the previous paragraphs, the suggestion of the

21 Prosecution, namely that of providing for the continued detention of Talic

22 at the Military Academy Hospital in Belgrade in a secure environment

23 without the possibility of leaving that environment, instead of continuing

24 to detain him in the Detention Unit in The Hague, is not the appropriate

25 solution as the circumstances that necessitate the humanitarian

Page 9952

1 intervention of this Tribunal would remain the same. The Tribunal,

2 however, as stated above has no reason -- has no doubt that Talic's case

3 cannot be treated the same way as that of Djukic, and a number of

4 conditions attached to his release are necessary and appropriate to ensure

5 that this ongoing trial is in no way prejudiced. One of these conditions

6 is in line with what the Prosecution has asked, namely that this Trial

7 Chamber agrees that until and unless otherwise decided by this Tribunal,

8 the request by Talic to enable him to return to the municipality of Banja

9 Luka in Republika Srpska should not be acceded to. This Chamber believes

10 that the fact that the trial against him is ongoing justifies this measure

11 or restriction and the Trial Chamber is further satisfied that no

12 prejudice will be caused to him as a consequence, because in any case he

13 will be confined to Belgrade, where he can equally have and benefit from

14 the proximity of his family.

15 For the same reason mentioned in the previous paragraph, namely

16 that Talic's case cannot be treated the same as that of Djukic and a

17 number of conditions attached to his release are necessary and appropriate

18 to ensure that this ongoing trial is in no way prejudiced, this Trial

19 Chamber has reached the conclusion that the circumstances are such that

20 his ability to move freely in the city to which he will be returned will

21 be restricted. In the course of the debate before this Trial Chamber, the

22 possibility of confining him to a specified residence under house arrest

23 terms and concerns was explored and debated. In this context, this Trial

24 Chamber refers to the decision of April 3rd, 1996 of the then-President of

25 this Tribunal, Judge Antonio Cassese, in the Blaskic case, in which the

Page 9953

1 notion of house arrest was considered funditus. Considering that house

2 arrest is not a measure that is specifically dealt with by the Rules or

3 the Statute of this Tribunal and is also not addressed by the laws of the

4 Federal Republic of Yugoslavia, and considering further that the notion of

5 house arrest is more akin to the subject of non-custodial sanctions, i.e.,

6 as an alternative form of post-conviction detention, this Trial Chamber

7 believes that it is appropriate to distinguish it from the imposition of a

8 residence requirement. The Trial Chamber believes that the circumstances

9 are such that the imposition of a controlled residence requirement for the

10 time being will be sufficient. This Trial Chamber believes that such a

11 measure would for all intents and purposes be tantamount to what would

12 technically be classified as house arrest, at least insofar as freedom of

13 movement is concerned and as explained in the Blaskic decision supra can

14 still be considered as a form of detention.

15 The Trial Chamber will also impose all those conditions which in

16 its opinion on the one hand are necessary to ensure that Talic receives

17 all the medical treatment he requires and, on the other hand, are

18 appropriate in the circumstances to ensure that the requirements of Rule

19 65 governing provisional release are observed. Having premised all the

20 above, the Trial Chamber next turns to examine the requirements set out in

21 Rule 65.

22 As a matter of procedure, the Trial Chamber before provisionally

23 releasing Talic is required to hear from the host country. On the 13th

24 September 2002 the Dutch authorities communicated in writing to this Trial

25 Chamber that they have no objection to Talic being provisionally released

Page 9954

1 on condition that he does not reside in the Netherlands thereafter.

2 As to the requirement that the accused satisfies the Trial Chamber

3 that he will reappear in the event he recovers sufficiently to resume

4 attending trial, the Trial Chamber takes into account and attaches

5 importance to the law of cooperation passed in April 2002 by the

6 government of the Federal Republic of Yugoslavia. This recent legislation

7 sets out a procedure for the arrest and surrender of accused persons to

8 the International Tribunal and obliges the organs of internal affairs to

9 arrest such persons. Procedure of this nature did not previously exist,

10 and the Trial Chamber accepts that the government has taken steps to

11 lessen chances of accused evading arrest while in the territory of the

12 Federal Republic of Yugoslavia. In this connection, the Trial Chamber is

13 also satisfied that the proposed level of cooperation is satisfactory.

14 In this context, this Trial Chamber takes into consideration the

15 guarantees provided by the Federal Republic of Yugoslavia. As a whole it

16 is satisfied with the assurances that have been put forward by the

17 government of that country, in particular that the local authorities will

18 closely monitor Talic at his residence in Belgrade. Consequently, the

19 Trial Chamber does not identify in concreto any clear and present risk

20 that Talic will not reappear for trial.

21 As to the requirement that Talic if provisionally released will

22 pose no risk to any victim, witness, or other person, the Chamber

23 reiterates that no evidence or material has been adduced tending to prove

24 that any clear and/or present danger of such risk exists and further notes

25 that there is no suggestion that Talic has interfered with the

Page 9955

1 administration of justice in any way whatsoever since March 14, 1999, the

2 date when the indictment was confirmed against him. Nonetheless, in

3 reaching its decision, this Trial Chamber has striven to minimise as much

4 as possible any such risk in the future, especially by restricting Talic's

5 residence to an area distant from the one where he initially sought to be

6 returned and which is part of the territory covered by the indictment.

7 Finally, this Trial Chamber observes that pursuant to Rule 65(C),

8 the Trial Chamber may impose such conditions upon the release of the

9 accused as it may determine appropriate. It is noted that Talic has

10 consented to the imposition of any condition necessary to his provisional

11 release. The Trial Chamber considers that the stringent conditions and

12 restrictions imposed on Talic's personal liberty and found in the

13 disposition below can adequately satisfy the requirements set out in the

14 Rule. Therefore, the Trial Chamber, upon balancing all the relevant

15 circumstances as required by Rule 65(B) and as discussed above, finds it

16 appropriate to order that Talic should be provisionally released.

17 In reaching its decision, the Trial Chamber has also taken into

18 consideration Talic's offer to waive his right to be present should the

19 proceedings against him continue. The Trial Chamber is not imposing any

20 such condition upon him as a prerequisite for his provisional release

21 mainly because of legal considerations but certainly acknowledges his

22 willingness not to obstruct the continuation of the trial against him.

23 The Prosecution seeks a stay of the decision in order to appeal

24 against the grant of provisional release. The Defence has entered its

25 opposition. It is, however, fit and proper, considering the Prosecution's

Page 9956

1 response, that the grant of provisional release will therefore be stayed

2 pending any appeal by the Prosecution.

3 For the foregoing reasons, and pursuant to Rule 65 of the Rules,

4 this Chamber hereby grants the motion and orders the provisional release

5 of Talic on the following terms and conditions:

6 1. Talic shall be transported to Schiphol airport in the

7 Netherlands by the Dutch authorities.

8 2. At Schiphol airport, Talic shall be provisionally released

9 into the custody of the designated officials of the Federal Republic of

10 Yugoslavia. Names shall be provided in advance, and who shall accompany

11 him for the remainder of his travel to his place of residence in Belgrade.

12 3. During the period of his provisional release, Talic shall

13 abide by the following conditions and the Federal Republic shall ensure

14 compliance with each and every one of them, and shall agree to abide and

15 will abide by the following conditions and the Federal Republic of

16 Yugoslavia shall ensure compliance with each and every one of them:

17 a) To reside and remain at all times at this address provided in

18 Belgrade. For your information, there is a footnote here referring to the

19 ex parte filing of the Defence counsel of General Talic of the 18th

20 September. So to reside and remain at all times at the address provided

21 in Belgrade, except for occasional visits for tests, medical treatment and

22 therapy, as may be required to the VMA. For this purpose, his address in

23 Belgrade will be communicated by the Registrar to the authorities of the

24 Federal Republic of Yugoslavia;

25 b) To inform the representative of the Registry at the field

Page 9957

1 office in Belgrade if he leaves the address provided for tests, medical

2 treatment and therapy in the -- in the VMA;

3 c) Without prejudice to condition a) above, to remain within the

4 confines of the municipality of Belgrade;

5 d) Except when hospitalised at the VMA or when for reasons of

6 health unable to do so, to contact once a day the local police in Belgrade

7 which will maintain a log and report accordingly to the representative of

8 the Registry at the field office in Belgrade at the end of each month;

9 e) To assume responsibility for and bear all expenses necessary

10 for his transport from Schiphol airport to Belgrade and back;

11 f) Under no circumstances will he travel to Banja Luka or any of

12 the other municipalities covered by the indictment unless authorised by

13 the Trial Chamber;

14 g) To surrender his passport to the representative of the

15 Registry at the field office in Belgrade or to the authorities of the

16 Federal Republic of Yugoslavia as required;

17 h) To surrender his driving licence to the representative of the

18 Registry at the field office in Belgrade or to the authorities of the

19 Federal Republic of Yugoslavia as required;

20 i) To consent to have the authorities of the Federal Republic of

21 Yugoslavia verify his presence at the address provided in Belgrade or at

22 the VMA, as may be required;

23 j) To consent to have a representative of the Registry at the

24 field office in Belgrade to verify his presence at the address provided in

25 Belgrade or at the VMA, as may be required;

Page 9958

1 k) To consent to have a representative of the Registrar of the

2 Tribunal to have access to him at any time in order to assess arrangements

3 for his security and welfare;

4 l) To consent to have a medical specialist appointed by the

5 Registrar of the Tribunal to visit him once a month or as required in

6 order to assess and report on his state of health;

7 m) Not to have any contacts with the other co-accused in this

8 case;

9 n) Not to have any contacts whatsoever and in any way interfere

10 with victims or any person who may testify at his trial or otherwise in

11 any way interfere with the proceedings or the administration of justice;

12 o) Not to discuss his case with anyone, including the media,

13 other than his counsel;

14 p) Not to occupy any official position;

15 q) To comply strictly with any requirement by the authorities of

16 the Federal Republic of Yugoslavia necessary to enable them to comply with

17 their obligation under the order for provisional release and their

18 guarantees;

19 r) To comply with any order and further orders and/or conditions

20 the Trial Chamber may deem necessary under the circumstances;

21 s) To return to the Tribunal at such time and on such date as the

22 Trial Chamber may order;

23 t) To comply strictly with any order of the Trial Chamber varying

24 the terms of or terminating the provisional release of the accused.

25 Requires the Dutch authorities:

Page 9959

1 a) To transport Talic to Schiphol airport;

2 b) At Schiphol airport to provisionally release him into the

3 custody of the designated officials. I do not need to amplify on this;

4 c) On Talic's return flight to take custody of the accused at

5 Schiphol airport at a day and time to be determined by the Trial Chamber

6 seized of the case;

7 d) To transport Talic back to the Detention Unit or to another

8 place indicated by the Trial Chamber.

9 Requires the authorities of the Federal Republic of Yugoslavia to

10 assume responsibility for:

11 a) Transport expenses jointly and severally with Talic from

12 Schiphol airport to his place of residence and back;

13 b) The personal security and safety of Talic while on provisional

14 release;

15 c) Reporting immediately to the Registrar of the Tribunal the

16 substance of any threats to the security of Talic, including full reports

17 of investigations relating to such threats;

18 d) Facilitating at the request of the Trial Chamber or of the

19 parties any means of cooperation and communication between the parties and

20 ensuring the confidentiality of any such communication;

21 e) Ensuring compliance with the conditions impose on Talic by

22 this or any future order;

23 f) Submitting a written report to the Registrar of the Tribunal

24 every month as to the presence of Talic and his compliance with the terms

25 of this and any future order;

Page 9960

1 g) Immediately detaining Talic should he breach any of the terms

2 and conditions of his provisional release and reporting immediately any

3 such breach to the Trial Chamber;

4 h) Respecting the privacy of the Tribunal in relation to any

5 existing or future proceedings and the Federal Republic of Yugoslavia

6 concerning Talic;

7 i) Not issuing to Talic any passport or document enabling him to

8 travel.

9 Instructs the Registrar of this Tribunal:

10 a) To consult with the Ministry of Justice of the Netherlands and

11 the authorities of the Federal Republic of Yugoslavia as to the practical

12 arrangements for Talic's release and return to Belgrade;.

13 b) To keep Talic in custody until relative arrangements are made

14 for his travel, unless hospitalisation is needed instead;

15 c) To take any necessary measure to grant to Talic all the

16 medical assistance required during the transfer from the Detention Unit to

17 his place of residence in Belgrade;

18 d) To communicate to the authorities of the Federal Republic of

19 Yugoslavia Talic's address in Belgrade;

20 e) To appoint a medical specialist to have access to Talic once a

21 month or as may be required in order to assess his state of health and who

22 will provide a written report to this Tribunal on such state of health.

23 Requests the authorities of all states through which Talic will

24 travel:

25 a) To hold Talic in custody for any time he will spend in transit

Page 9961

1 at the airport;

2 b) To detain and arrest Talic pending his return to the United

3 Nations Detention Unit should he attempt to escape.

4 Orders that the provisional release of Talic is stayed pending an

5 appeal by the Prosecution pursuant to Rule 65(D), (E), (F) and (G).

6 And it's signed.

7 There are some corrections and a properly amended version -- et

8 cetera.

9 Now, before we proceed with the other decision regarding the

10 severance of the two cases, Ms. Korner -- because much depends on what you

11 will tell us -- will Mr. Filipovic be able to come next week?

12 MS. KORNER: On -- not on -- he can only fly in on Tuesday, but he

13 will be here Wednesday and Thursday.

14 JUDGE AGIUS: And Mr. Ackerman, do you anticipate that you will be

15 able to finish with the cross-examination on those two days?

16 MR. ACKERMAN: Your Honour, I think the cross-examination on

17 behalf of Mr. Brdjanin could take up to a half a day, and I'm informed by

18 Mr. Zecevic that his is about two days. So I don't know if it could be

19 completed on Wednesday and Thursday. That's possible that it could, but

20 maybe it can't. I don't know.

21 MS. KORNER: Well, then Your Honours did say you would sit Friday

22 to finish him.

23 Your Honour, I think it's perfectly possible to have this

24 completed.

25 JUDGE AGIUS: Can we count on your presence on Friday should it be

Page 9962

1 needed, Mr. Zecevic and Mr. Ackerman?

2 MR. ZECEVIC: You can count on my presence, Your Honour, yes.

3 MR. ACKERMAN: Your Honour, I was going to later in the -- the

4 day, but I'll tell you now, that I will request your permission to absent

5 myself the entirety of next week. Mr. Trbojevic is going to complete the

6 cross-examination of Mr. Filipovic. We've already begun working on that,

7 and we'll be prepared to do it.

8 JUDGE AGIUS: So basically, as I take it, Mr. Filipovic can

9 start -- or can proceed with his cross-examination on Wednesday.

10 MS. KORNER: Yes. Wednesday. He's flying in on Tuesday.

11 JUDGE AGIUS: Yeah. He's flying in on Tuesday.

12 MS. KORNER: He has commitments which make it unable for him to

13 return on Monday.

14 JUDGE AGIUS: No, no. I understand that. We'll -- it's no use

15 trying to force issues.

16 MS. KORNER: Your Honour, can I, before we deal with that, I just

17 want to say two things about the decision that Your Honours just handed

18 down, before you move on to the next decision.

19 JUDGE AGIUS: In fact, I was going to ask you a question myself,

20 but ...

21 MS. KORNER: The first is this: Your Honours, we were obliged

22 under the Rules to put into our motion, our response to the motion for

23 provisional release, the paragraph that says we wish to appeal. If we

24 don't put it in, we have no opportunity of doing it.


Page 9963

1 MS. KORNER: Your Honours have very clearly stated and fairly the

2 concerns that the Prosecution had, and I wish to make it absolutely clear,

3 because it may be that it's -- it's not totally clear, with respect, from

4 the way that the judgement has been drafted that the Prosecution at no

5 time suggested that General Talic should remain in custody in the

6 detention unit. They have always accepted that he should go to the

7 hospital in Belgrade and it was just the terms under which he went.

8 But, Your Honours, having made it very clear the concerns that we

9 expressed and why we expressed them, we take the view that in the light of

10 the conditions that Your Honours have imposed, we will not be seeking to

11 appeal this decision and, therefore, General Talic can be released as soon

12 as the arrangements can be made rather than to stay.

13 Your Honour, the only other matter I want to raise on that is

14 this: Your Honour mentioned that the address in Belgrade had been

15 provided ex parte. In our submission, it should have been confidential

16 rather --

17 JUDGE AGIUS: It's confidential, actually. In fact, it's -- it's

18 put down as a footnote as confidential and ex parte.

19 MS. KORNER: Right. But it shouldn't be in our -- it should be

20 provided to the Prosecution.

21 JUDGE AGIUS: It is only confidential, in fact. It is only

22 confidential.

23 MS. KORNER: Yes. So it will be provided to the Prosecution.

24 JUDGE AGIUS: Yes, exactly.

25 MS. KORNER: Then, Your Honour, that's all I want to say about

Page 9964

1 those matters.

2 JUDGE AGIUS: So having heard what Ms. Korner has just stated, the

3 Trial Chamber is further deciding that the decision for the provisional

4 release will have immediate effect; in other words, it will not be stayed

5 pending an appeal by the Prosecution, because it is understood that there

6 is not going to be an appeal. It goes without saying that first there

7 must be a further document from General Talic himself accepting and

8 undertaking to comply with all the conditions that we have indicated in

9 the judgement. I think there may be the need for the representation of

10 the Federal Republic -- of the government of the Federal Republic of

11 Yugoslavia to undertake further to be responsible jointly and severely

12 with Talic for the expenses involved in his return to Yugoslavia.

13 If, however, we have the assurance here and now on your two feet,

14 Mr. Zecevic, that we don't need to bother about this further guarantee by

15 the Federal Republic of Yugoslavia and that the expenses -- that your

16 client is in a position to bear the expenses without creating any problems

17 for this Tribunal, then I think we can rely on your word and proceed

18 accordingly.

19 MR. ZECEVIC: Your Honours, may be assured that that is actually

20 the situation, that my client will bear his costs altogether. So he

21 doesn't require any additional guarantees by the Federal Republic of

22 Yugoslavia.

23 JUDGE AGIUS: What I mean to say is that the additional guarantee,

24 we will require in any case.

25 MR. ZECEVIC: Yes. But I was --

Page 9965

1 JUDGE AGIUS: However, if you are in a position to prove that your

2 client is in a position to fork out these expenses, bear all the relative

3 costs, there will not be a need for -- to wait for the additional

4 guarantee in writing from the Federal Republic of Yugoslavia. This is

5 what -- what I meant.

6 MR. ZECEVIC: That is exactly what I meant.

7 JUDGE AGIUS: In other words, we will give the green light for the

8 provisional release to be executed forthwith.

9 MR. ZECEVIC: Your Honours, you have the assurances of the Defence

10 of General Talic that you may give the green light for his provisional

11 release. Thank you.

12 JUDGE AGIUS: So be it.

13 We will now proceed with a decision on the Prosecution's request

14 for the severance of the two accused in this trial.

15 With your permission, Prosecution and Defence, you will spare me

16 the need having to read the -- and I will just read the disposition.

17 MS. KORNER: Your Honour, I was going to say, if you just tell us

18 what you've decided, I'm sure that will be enough.

19 JUDGE AGIUS: Thank you.

20 For the foregoing reasons and pursuant to Rules 54 and 82 of the

21 Rules, the Trial Chamber hereby grants the Prosecution requests and orders

22 that the proceedings against the accused Talic hereby separated from those

23 against the accused Brdjanin, charged under the same indictment, upon --

24 THE INTERPRETER: Kindly slow down.

25 JUDGE AGIUS: Yes. Sorry.

Page 9966

1 Charged under the same indictment upon the completion of the

2 cross-examination of the witness Muhamed Filipovic, presently testifying

3 before the Trial Chamber.

4 Any other business that needs to be addressed?

5 MS. KORNER: Your Honour, just one matter.

6 THE INTERPRETER: Microphone, please.

7 JUDGE AGIUS: Your microphone, Ms. Korner, please. Your

8 microphone.

9 MS. KORNER: I raised yesterday and whenever I was before Your

10 Honour the question of this publication of this report --


12 MS. KORNER: -- in the publication called Dani.

13 I am informed - and I'm really leaving this as a matter for Your

14 Honours - that the journalist in question received the information from a

15 source and was unaware that these -- the information related to closed

16 session testimony.

17 Now, Your Honour, it is our case effectively -- we are in this

18 position at the moment: We're not proposing to take the matter any

19 further. The way in which the report was written was unfortunate, to say

20 the least --

21 JUDGE AGIUS: Very unfortunate.

22 MS. KORNER: -- because the references to closed session testimony

23 really gave the -- could have given a reader the impression, however he

24 got the information, that this was a report of what was said in closed

25 session.

Page 9967

1 My instructions are that the seriousness of these matters is when

2 it relates to a witness who has been testifying in closed session, and

3 therefore my instructions are not on behalf of the Office of the

4 Prosecutor to pursue this matter any further. And I leave it entirely up

5 to Your Honours. But those are my instructions.

6 JUDGE AGIUS: I notice and -- that there is the representative of

7 the Embassy of the Federal Republic of Yugoslavia. I am sorry, sir. I

8 only notice your presence now. Had I noticed it before or had we been

9 informed of your presence in this -- in this building before, I would have

10 ensured that you would have been present in -- in this courtroom and not

11 outside in the gallery. So please do accept my sincere apologies.

12 Next time make sure that we are informed.

13 Okay. There being no further business --

14 Yes, Mr. Ackerman.

15 MR. ACKERMAN: Your Honour, I would just like to make a suggestion

16 in view of where we have found ourselves at this point.


18 MR. ACKERMAN: Might it make sense -- and I'm just asking the

19 question really -- might it make sense -- I think we're coming back on the

20 6th of October after this last -- this next break. Might it make sense to

21 schedule a Status Conference at that time so that we can kind of sit here

22 and talk about where we go next with this case. Instead of having

23 witnesses on that date, have a Status Conference. That's up to Your

24 Honours. It's just a suggestion and a question. That's all.

25 JUDGE AGIUS: We can have a Status Conference before, between now

Page 9968

1 and the 6th.

2 MR. ACKERMAN: Well, I'm not going to be in the country between

3 now and the 6th, Your Honour. That's what I was asking you earlier for

4 permission to -- to not be in court next week.

5 MS. KORNER: Well, it -- Mr. Trbojevic is here, of course. We

6 could ...

7 JUDGE AGIUS: Yeah. But apart from that, apart from having

8 Mr. Trbojevic here, in any case. What I would suggest is this, that in

9 any case I think that as far as the initial phase is concerned, we

10 definitely know where we stand. There are some further witnesses that

11 were scheduled to come over and give evidence. What we can do is that we

12 resume on the 6th, as planned, and on the 6th also, if it is -- if you are

13 in agreement, we can have a Status Conference in addition to the sitting.

14 MR. ACKERMAN: That -- that works perfectly, Your Honour. That's

15 fine.

16 JUDGE AGIUS: Okay. We can have it in the courtroom. We can have

17 it elsewhere. And --

18 MS. KORNER: Yes. Your Honour, I -- I don't know what --

19 JUDGE AGIUS: I wouldn't like to sacrifice one hearing day for a

20 Status Conference when -- when we are -- we've fallen -- we've fallen back

21 by two weeks because of this incident.

22 MS. KORNER: Well, in any event, one of the things Your Honours

23 may want to reconsider, and it's a matter for you, is this -- the ten-day

24 gap in November.

25 JUDGE AGIUS: We'll think about that, Ms. Korner.

Page 9969

1 MS. KORNER: I must ask Your Honours to think about the matter.

2 JUDGE AGIUS: We'll think -- I need to be in my country for family

3 reasons.

4 MS. KORNER: Yes. I know Your Honour said -- but the extra added

5 days will, I think, perhaps --

6 JUDGE AGIUS: No. I think -- unless there are problems elsewhere,

7 we could perhaps give that a second -- a second thought.

8 MS. KORNER: Thank you very much.

9 JUDGE AGIUS: And we are a little bit further -- far from November

10 now.

11 But, anyway, is there any further business?

12 There being no further business, the sitting is adjourned. And we

13 will be sitting on Wednesday of next week. I can't remember whether it's

14 in the morning or in the afternoon. I will have that checked and confirm

15 it to you.

16 Yes. Wednesday -- I don't know the date.

17 MS. KORNER: I asked Ms. Gustin to check that today as well today.

18 I think it's the afternoon.

19 JUDGE AGIUS: All right. I thank you.

20 --- Whereupon the hearing adjourned

21 at 2.44 p.m., to be reconvened on Wednesday,

22 the 25th day of September, 2002, at 2.15 p.m.