Tribunal Criminal Tribunal for the Former Yugoslavia

Page 110

1 Thursday, 13 December 2001

2 [Motion Hearing]

3 [Open session]

4 --- Upon commencing at 5.10 p.m.

5 JUDGE SCHOMBURG: Please be seated. The accused can be brought

6 in.

7 [The accused entered court]

8 JUDGE SCHOMBURG: Please be seated. Good afternoon, everybody.

9 Please call the case.

10 THE REGISTRAR: Yes, Your Honour, this is the case number

11 IT-01-47-PT, the Prosecutor versus Enver Hadzihasanovic, Mehmed Alagic,

12 and Amir Kubura.

13 JUDGE SCHOMBURG: Thank you. May I have the appearances for the

14 Prosecution.

15 MR. WITHOPF: Good afternoon, Your Honours. Good afternoon,

16 counsel. For the Prosecution, appear Madam Bodson, Senior Trial Attorney;

17 Ms. Cynthia Fairweather, Legal Officer; and myself, Ekkehard Withopf, OTP

18 trial attorney.

19 JUDGE SCHOMBURG: Thank you. May I have the appearances for the

20 Defence, please.

21 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honours. My

22 name is Edina Residovic, attorney from Sarajevo, appearing on behalf of

23 General Enver Hadzihasanovic.

24 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours. My

25 name is Vasvija Vidovic, attorney from Sarajevo, and together with

Page 111

1 Mr. John Jones, we are appearing on behalf of General Mehmed Alagic.

2 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.

3 My name is Fahrudin Ibrisimovic, attorney from Sarajevo, representing

4 Mr. Amir Kubura.

5 JUDGE SCHOMBURG: Thank you very much.

6 Additional one question to the accused: Do you all understand the

7 proceedings in a language you understand, and especially today, are you

8 all in a condition to follow these proceedings with regard to a medical

9 examination?

10 THE ACCUSED KUBURA: [Interpretation] Yes.

11 THE ACCUSED HADZIHASANOVIC: [Interpretation] Yes.

12 THE ACCUSED ALAGIC: [Interpretation] Yes.

13 JUDGE SCHOMBURG: I can hear three times yes. Thank you.

14 Additionally, we have the honour of the presence of the same

15 representatives of the government of Bosnia-Herzegovina as of today,

16 Mr. Dzihanovic and Mr. Limov. Once again, I take the opportunity to

17 emphasise that this Tribunal highly appreciates your cooperation with the

18 ICTY under the Rules of the United Nations as friends of this Court.

19 The Trial Chamber is still and only seized today with three

20 motions on provisional release in application of Rule 65. Yesterday we

21 heard the exhaustive submissions of the parties and statements by the

22 representatives of Bosnia and Herzegovina and statements of the three

23 accused. A basis of facts was established, enabling the Trial Chamber to

24 come to a possible decision. Only as regards possible guarantees,

25 different views were exchanged.

Page 112

1 The purpose of this hearing today, therefore, is restricted to the

2 evaluation of these guarantees. In terms of the principle of

3 proportionality, are the guarantees necessary themselves? -- a question

4 which might be challenged by the Defence. Are they seen as on the whole

5 sufficient to meet the expectations set out in Rule 65? To this latter

6 point, there might be a submission by the Office of the Prosecutor. She

7 indicated already yesterday that the guarantees in principle are

8 regarded - I quote from page 79 of the transcript - "relevant and

9 sufficient in practice." Today it is only to assess the concrete

10 guarantees as submitted today. And I take it as given that you had at

11 least the opportunity to read the guarantees submitted. Therefore, I

12 would invite you to take the floor.

13 MR. WITHOPF: Your Honours, to avoid any misunderstanding, I want

14 to stress from the outset that the Prosecutor maintains her submission

15 that the motion for provisional release regarding all three of the accused

16 be denied. It is the strong opinion of the Prosecutor that the recital of

17 yesterday's submissions do not give any reason to change her point of

18 view.

19 With regard to the conditions as detailed in the Court document

20 the Prosecutor received early this afternoon, the Prosecution notes that

21 some of the conditions are not as strict as requested by the Prosecutor;

22 however, some others are even stricter. The Prosecutor notes that these

23 conditions include a reporting obligation of the accused to the local

24 police only once a week, instead of once a day as requested by the

25 Prosecutor. The Prosecution submits that such a reporting regime is not

Page 113

1 strict enough to keep close control on whether the accused fulfil their

2 obligation to remain within the confines of Sarajevo or Sanski Most

3 respectively.

4 The Prosecutor furthermore notes that the accused provided

5 provisional release will be granted, should not seek access to documents

6 and archives. The Prosecutor submits that such a condition needs to be

7 far more detailed to avoid any potential misinterpretation.

8 Finally, with regard to the conditions, the Prosecutor submits

9 that some of the conditions are difficult to control as, for example, the

10 condition to not have any contacts with victims and potential witnesses.

11 For clarification purposes, the Prosecution submits that a further

12 condition should be imposed, namely the condition that the accused should

13 not instruct third persons to have such a contact to victims and potential

14 witnesses.

15 In this respect - and I understand that is an issue that has not

16 yet or at least not yet sufficiently addressed in yesterday's hearing -

17 the Prosecutor stresses that provisional release, if granted, would send

18 the wrong signal to both the victims of the crimes the accused are charged

19 with and the International Community. The victims of the crimes the

20 accused are held responsible for consider the crimes as being serious, as

21 does expressly the Prosecutor. It is not sufficient just to quote the

22 heading of the crimes assets out in the Tribunal's Statute.

23 Obviously, the accused are not charged with genocide. However, it

24 is necessary to review the concrete crimes the accused are charged with,

25 and these crimes are: Murder, wilful killing, violence to life and

Page 114

1 person, wilfully causing great suffering or serious injury to body or

2 health, unlawful confinement of civilians, and some more. There is no

3 doubt that these crimes are to be considered as serious ones.

4 In addition, these crimes were committed over a long period of

5 time and on several locations. In this regard, the Prosecution expressly

6 appreciates the comments made by the Presiding Judge yesterday that the

7 fact that the accused are only charged with their responsibility in terms

8 of Article 7(3) of the Statute does not play a significant role.

9 In addition, with all due respect, the Prosecutor still doubts

10 whether the Trial Chamber is sufficiently aware of the impact of a

11 decision granting provisional release on the relationship between Croats

12 and Muslims in Central Bosnia. The Prosecutor therefore wishes to

13 announce that if the Trial Chamber grants provisional release, she intends

14 to appeal the decision and expressly applies for a stay of the decision.

15 Thank you.

16 JUDGE SCHOMBURG: I thank you. We heard this. May I ask a

17 question as concerns the guarantees? Am I right in referring to the

18 transcript that you regarded yesterday the guarantees as sufficient, and

19 on the other hand, suggested to have a restriction to the area or to the

20 country of Bosnia-Herzegovina only? And I don't understand correctly when

21 you now say it would be necessary to visit a police office once a day and

22 not once a month. I see some discrepancy. Could you please explain

23 this. The other points were easy to understand. Thank you.

24 MR. WITHOPF: Your Honour, that's also easy to explain. I think a

25 reporting system ensuring that the accused report each day to a local

Page 115

1 police station ensures that they -- even when they are allowed to travel

2 within the confines of Bosnia and Herzegovina, they will have to return

3 each day back to their local town.


5 MS. RESIDOVIC: [Interpretation] Your Honours, the Defence for

6 General Hadzihasanovic and General Hadzihasanovic in person support fully

7 all the measures and guarantees that have been signed and which this Trial

8 Chamber is being offered. If our motion is granted for my client, General

9 Hadzihasanovic, to be provisionally released, I would appeal to the Trial

10 Chamber simply that this point (h) under which my client has no access to

11 documents or archives, that that should not be interpreted as prohibiting

12 his counsel from having access to those archives, because in that case,

13 his Defence would not be able to work properly. In other words, that the

14 Defence does have access to those archives but not the accused

15 Hadzihasanovic himself.

16 In connection with the submissions made by my learned friend

17 representing the OTP, I would just like to say a few words in response;

18 namely, the Prosecutor should have a consistent position with regard to

19 assessing the conditions under which it accepts guarantees and agrees to

20 provisional release. Any reservations on the part of the Prosecution

21 after the observations that you yourself have made regarding the

22 cooperation between Bosnia-Herzegovina and this Tribunal, I do not think

23 is appropriate, as that same Prosecution in previous cases has allowed the

24 accused to go, for instance, to the territory of the Federal Republic of

25 Yugoslavia, where some persons accused in public indictments are still

Page 116

1 living and have not been surrendered. In that case, the Prosecution

2 itself agreed with provisional release.

3 As to the seriousness of the crimes referred to by the

4 Prosecution, in addition to what I said before, I think it is very

5 important that the Prosecution realises that my client and the others have

6 not been charged with genocide, and the Prosecution has agreed to

7 provisional release of a person charged with genocide.

8 Finally, I should like to refer back to your observations,

9 Mr. President, when you said that we had to observe the principle of

10 proportionality. The conditions must be such as to make sure that my

11 client will come back to this Tribunal and will not be a threat to victims

12 or witnesses. Those conditions, and especially those requested by the

13 Prosecution today, should not constitute punishment for my client.

14 Therefore, it is up to you to decide between guarantees for appearance in

15 court and what might already be considered as a punishment for my client.

16 That is why I am quite confident, Your Honours, that given the guarantees

17 given to you, you will grant our motion for the provisional release of

18 General Hadzihasanovic.

19 JUDGE SCHOMBURG: Just to avoid any further delays, the concrete

20 question: Would it be an obstacle, from your point of view, to, in case

21 provisional release would be granted, to order that your client should

22 show up at the office of the police once a day?

23 MS. RESIDOVIC: [Interpretation] I think that that would not be a

24 problem at all. He could report. But I feel that that is more than

25 essential for my client to be trusted that he will appear in court when

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Page 118

1 called. But I am absolutely in your hands, Your Honours.

2 JUDGE SCHOMBURG: Please, Mr. Jones.

3 MR. JONES: May it please Your Honour. I'd like to start by just

4 dealing with the final point made by the Prosecution, namely, the

5 indication that they would be -- if you were minded to grant the

6 applications of provisional release, that they will be applying for a

7 stay, a stay of execution of your judgement. And to deal with that,

8 firstly, I'm, frankly, rather surprised that the Prosecution hasn't drawn

9 your attention, as they really should have done, to a sub-rule which in

10 fact precludes that very application which they're making.

11 If I could draw your attention to Rule 65(E), which states very

12 clearly there:

13 "The Prosecutor may apply for a stay of a decision by the Trial

14 Chamber to release an accused on the basis that the Prosecutor intends to

15 appeal the decision, and shall make such an application at the time of

16 filing his or her response to the initial application for provisional

17 release by the accused."

18 The Rule couldn't be more clear. The Prosecution knows the Rules

19 very well. They filed their response to the applications on the 28th of

20 November, 2001, in the case of General Alagic. It was a full ten-page

21 response after having taken the full 14 days to reply, but there is no

22 mention there whatsoever that they would intend to seek a stay of any

23 decision toward a provisional release, nor at any time since they have

24 mentioned that, nor did they mention that at yesterday's hearing. So I

25 would submit that that is enough to dispose of that matter.

Page 119

1 If we come back to that later, I will be very glad to address you

2 as to the merits of any application for stay. But I would point out,

3 first of all, that that is completely precluded from the Rules, which are

4 absolutely clear on the matter.

5 Just four comments in reply as to the conditions. Equally I would

6 submit with Ms. Residovic it's possible, of course, for the General Alagic

7 to report to a police station every day, but when one considers this over

8 a period of months, it really does seem excessive to have to report to the

9 police every day, particularly since the conditions already provide for

10 spot-checks in essence, condition (e), "occasional unannounced visits" to

11 the accused. That, taken in conjunction with the weekly reporting, I

12 would submit, is sufficient to ensure that the accused will never be far

13 from his home.

14 As regards the second point which the Prosecution made about the

15 accused should not seek -- sorry, that -- the condition not to seek access

16 to documents in archives is not specific enough - I believe that was the

17 objection - indeed it is fairly broad. We thought of adding to that

18 condition "not to seek access to documents in archives pertinent to this

19 case." If that's what the Prosecution is seeking, then we can add

20 something of that nature.

21 Equally, the condition which the Prosecution asks for, not to

22 instruct third persons to have contact with victims and witnesses, that

23 seems reasonable. I think we could agree to that.

24 But the final point which the Prosecution made, while seeming to

25 waver between agreeing to conditions and challenging the whole notion of

Page 120

1 provisional release, the Prosecution submitted again that this provisional

2 release would send the wrong signal to the victims of the crimes. Well,

3 Your Honour, that is true of every single case before this Tribunal.

4 Every case has victims and witnesses, and if that were a -- if that were

5 an objection to provisional release, it would never be granted.

6 Unless I can assist you further, Your Honour, those are my

7 submissions. We otherwise, obviously, consider that the conditions and

8 guarantees are fully acceptable and that's why they were signed by us and

9 by the representatives of Bosnia.

10 JUDGE SCHOMBURG: Okay. Please take the floor.

11 MR. IBRISIMOVIC: [Interpretation] Your Honours, the Defence of

12 Mr. Kubura accepts in their entirety all the measures provided for, and

13 they will be fulfilled and adhered to should the request for provisional

14 release be granted. As to the rest, the Kubura Defence completely agrees

15 with what the Defence counsel for General Hadzihasanovic and Alagic have

16 stated already. Thank you.

17 JUDGE SCHOMBURG: Thank you. Of course, also to the surprise for

18 this Trial Chamber, the issue of possibly applying for a stay of a

19 decision arose today, and I would invite to the Prosecutor to add some

20 facts or legal remarks with regard to Rule 65(E) justifying this new

21 approach.

22 MR. WITHOPF: Your Honours, first of all, I want to address the

23 observations made by my learned colleague Mr. Jones. He's right in

24 addressing the issue of Rule 65(E); however, I disagree with his

25 conclusions. Rule 65(E), in the opinion of the Prosecution, only

Page 121

1 precludes a request for a stay of a decision if an oral hearing is not

2 schedule. Meanwhile, an oral hearing has been scheduled, and the

3 situation changed. It's a new situation, and the Prosecutor is of the

4 opinion that she now can request such a stay of a decision. And I want to

5 inform the Trial Chamber that this is a clear order of the Prosecutor

6 herself to request such a stay of a decision.

7 JUDGE SCHOMBURG: Could you please explain what is exactly the new

8 situation since yesterday?

9 MR. WITHOPF: There were several submissions made, and the

10 Prosecutor is of the opinion that even if this strict regime of conditions

11 is put on the accused, it doesn't 100 per cent ensure that they will not

12 flee.

13 JUDGE SCHOMBURG: Are you aware of the fact that the conditions

14 and the guarantees included in the documents now are going

15 far beyond that what was indicated by the Prosecutor

16 yesterday? And could you please give us some advice what is the new

17 factual basis changing your view from yesterday when all these issues were

18 deliberated very carefully?

19 MR. WITHOPF: Your Honours, first of all, with regard to the

20 condition to report only once a week, the Prosecutor is of the opinion

21 that this condition makes it very --

22 JUDGE SCHOMBURG: This is not the point. The point is: I had the impression

23 you wanted to make us believe that there is a new situation because

24 we have a new set of guarantees, and I wanted to make it quite clear that

25 these guarantees are stricter than the ones asked for by the Office of the

Page 122

1 Prosecutor, and I believe some submission has to be made from your side

2 how it is possible that these more restrictive guarantees provide a new

3 situation for the Office of the Prosecutor.

4 MR. WITHOPF: I appreciate your comments, and I want to inform you

5 the only reason why we request such a stay of decision is order of the

6 Prosecutor herself. I apologise.

7 JUDGE SCHOMBURG: Any other submissions? Mr. Jones, you said you

8 were --

9 MR. JONES: I would simply observe that as regards this

10 distinction involving the fact that there was an oral hearing, there is no

11 basis whatsoever in Rule 65 for that distinction. As regards the merits

12 of granting a stay, I would prefer to wait, I think, until we reach that

13 moment, if we get there. As I say, I think it should be sufficient to

14 dispose of the application for a stay, the plain words of Rule 65(E), and

15 it would only be if Your Honour were to find that there was still scope

16 for argument that I would address you on that.

17 JUDGE SCHOMBURG: Thank you. The Tribunal stands adjourned for

18 one hour. We'll meet again at 6.30.

19 --- Break taken at 5.35 p.m.

20 --- On resuming at 6.30 p.m.

21 JUDGE SCHOMBURG: The accused can be brought in. Please be

22 seated.

23 The Trial Chamber has come to the conclusion that there are three

24 decisions necessary because there are three motions, and we have to decide

25 on an individual basis. To facilitate the proceedings, I will refer to

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Page 124

1 those parts of the decisions they have in common, the following

2 guidelines. It says: This Trial Chamber of the International Tribunal

3 for the prosecution of persons responsible for serious violations of

4 international humanitarian law committed in the former Yugoslavia since

5 1991, being seized of three motions for provisional release pursuant to

6 the Rule 65 of the Rules of Procedure and Evidence, hereby grants the

7 applications and orders the provisional release of Enver Hadzihasanovic,

8 Mehmed Alagic, and Amir Kubura on the following terms and conditions: The

9 accused shall be transported to Schiphol airport in the Netherlands by the

10 Dutch authorities. At Schiphol airport, the accused shall be

11 provisionally released into the custody of the designated officials of the

12 Federation of Bosnia and Herzegovina, who shall accompany the accused for

13 the remainder of their travel to Bosnia and Herzegovina and their

14 respective place of residence; this will be Sarajevo for Enver

15 Hadzihasanovic and Armin Kubura, and Sanski Most for Mr. Alagic.

16 On their return flight, the accused shall be accompanied by a

17 designated official or more of Bosnia-Herzegovina who shall deliver the

18 accused into the custody of the Dutch authorities at Schiphol airport at a

19 date and time to be determined by the Trial Chamber, and the Dutch

20 authorities shall then transport the accused back to the Detention Unit.

21 During the period of their provisional release, the accused shall

22 abide by the following conditions, and the authorities of

23 Bosnia-Herzegovina shall ensure compliance with such conditions: (a) to

24 report within three days of their arrival the address to which the accused

25 will be staying to the Registrar of the Tribunal and to indicate any

Page 125

1 change of address to the Registrar within three days of the change;.

2 (b) to surrender their passport to the government of

3 Bosnia-Herzegovina;

4 (c) to remain within the confines of Sarajevo for Enver

5 Hadzihasanovic and Amir Kubura, and of Sanski Most for Mr. Alagic;

6 (d) to report once a week to the local police in Sarajevo for

7 Enver Hadzihasanovic and Amir Kubura, and in Sanski Most for Mehmed

8 Alagic;

9 (e) to consent to having officials of Bosnia-Herzegovina check

10 with the local police about their presence and to the making of occasional

11 unannounced visits to the accused by these officials or by a person

12 designated by the Registrar of the Tribunal;

13 (f) not to have any contacts with any other co-accused in the

14 case;

15 (g) not to have any contact whatsoever or in any way interfere

16 with victims or potential witnesses or otherwise interfere in any way with

17 the proceedings of the administration of justice;

18 (h) not to seek access to documents and archives;

19 (i) not to discuss their case with anyone, including the media,

20 other than their counsel and immediate members of the accused's family;

21 (j) not to occupy any official position within Bosnia-Herzegovina;

22 (k) to report to the Registrar of the Tribunal within three days

23 of the start of employment, the position occupied, as well as the name and

24 address of the employer;

25 (l) to comply strictly with any requirements of the authorities of

Page 126

1 Bosnia-Herzegovina necessary to enable them to comply with their

2 obligations under the order for provisional release and their guarantees;

3 (m) to return to the Tribunal at such time and on such date as the

4 Trial Chamber may order;

5 (n) to comply strictly with any order of the Trial Chamber wherein

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

7 Requires the government of the Federation of Bosnia and

8 Herzegovina to assume responsibility for:

9 (a) all expenses concerning transport of the accused from Schiphol

10 airport to their place of residence and back, and;

11 (b) the personal security and safety of the accused while on

12 provisional release;

13 (c) reporting immediately to the Registrar of the Tribunal the

14 substance of any threats to the security of the accused, including full

15 reports of investigations related to such threats at the request of the

16 Trial Chamber or of the parties;

17 (d) facilitating all means of cooperation and communication

18 between the parties and to ensure the confidentiality of any such

19 communication;

20 (e) submitting a written report to the Registrar of the Tribunal

21 every month as to the presence of the accused and their compliance with

22 the terms of this order;

23 (f) immediately detaining the accused should they breach any of

24 the terms and conditions of their provisional release and reporting

25 immediately to the Trial Chamber any such breach;

Page 127

1 (g) respecting the primacy of the Tribunal in relation to any

2 existing or future proceedings in Bosnia-Herzegovina concerning the

3 accused;

4 (h) in relation to Mehmed Alagic specifically, regardless of the

5 outcome of any pending proceedings against him in Bosnia-Herzegovina,

6 retransferring Mehmed Alagic to the Tribunal when requested.

7 Instructs the Registrar of the Tribunal to consult with the

8 Ministry of Justice of the Netherlands and the authorities of

9 Bosnia-Herzegovina as to the practical arrangement for the release of the

10 accused.

11 Requests the authorities of all states through which the accused

12 will travel to hold the accused in custody for any time they will spend in

13 transit at the airport and to detain and to arrest the accused pending

14 their return to the United Nations Detention Unit, should they intend to

15 escape.

16 I would ask the representatives of Bosnia-Herzegovina, did you

17 understand this order and are you ready to comply with this order?

18 MR. DZIHANOVIC: [Interpretation] Your Honour, we have completely

19 understood the order of the Trial Chamber, and we accept to comply with

20 this order.

21 MR. LIMOV: [Interpretation] I should also like to confirm that we

22 accept the order as presented by you.

23 JUDGE SCHOMBURG: Thank you.

24 Mr. Hadzihasanovic, would you please rise. Are you ready to

25 comply with the order you just heard?

Page 128

1 THE ACCUSED HADZIHASANOVIC: [Interpretation] I'm completely ready

2 to comply with the order, Your Honour.

3 THE INTERPRETER: Microphone, please.

4 THE ACCUSED HADZIHASANOVIC: [Interpretation] Your Honours, I am

5 completely ready to comply with the order read out, and all its

6 provisions.

7 JUDGE SCHOMBURG: Thank you. I take this as your word of honour.

8 Mr. Kubura, please rise.

9 MR. HADZIHASANOVIC: [Interpretation] My word of honour, you have.

10 It.

11 THE ACCUSED KUBURA: [Interpretation] Your Honours, I shall

12 completely comply with the order issued by you.

13 JUDGE SCHOMBURG: Sorry. I have no interpretation.

14 THE ACCUSED KUBURA: [Interpretation] Your Honour, I completely

15 comply with the order issued.

16 JUDGE SCHOMBURG: Thank you. I take this as your word of honour.

17 And Mr. Alagic, please rise.

18 THE ACCUSED ALAGIC: [Interpretation] Your Honours, I should like

19 to thank you for your decision and ruling, and I shall fully comply with

20 the order issued.

21 JUDGE SCHOMBURG: I take this as your word of honour.

22 THE ACCUSED ALAGIC: [Interpretation] Yes.

23 JUDGE SCHOMBURG: Thank you. All the parties and public will

24 receive, of course, the three decisions with the reasoning in writing

25 without delay.

Page 129

1 Just to give you some reasons in short, first of all, I want to

2 point out, especially addressing you, the three accused, that this

3 decision doesn't change your situation as accused in this Tribunal at

4 all. There is still the trial of serious -- and the indictment of very

5 serious crimes committed on the territory of the former Yugoslavia, and it

6 is by no way any kind of decision on the merits of this indictment. It's

7 just in respect to human rights that we have to follow the discretion

8 given us by Rule 65 of the Rules of Procedure and Evidence of the ICTY and

9 the underlying issues of human rights.

10 These general human rights enshrined in our Statute in matters of

11 detention on remand are such that

12 detention should be the exception, release should be the rule, and

13 any kind of remand should be as short as possible so as

14 not to amount to punishment in disguise, as it would infringe the

15 presumption of innocence.

16 We know that these Rules have been conceived for criminal

17 investigations and trials before national authorities. They're more

18 difficult to apply on the international level. International criminal

19 courts and tribunals have no police forces at their disposal to re-arrest

20 released detainees who have absconded. Alleged war crimes are

21 particularly complex and long to investigate, and the crimes are, of

22 course -- each case is a very serious one, and the release of a suspect

23 may in principle - I emphasise "in principle" - create high risk for

24 witnesses and victims. In the practice of the ICTY, this has meant de

25 facto - and once again, I emphasise "de facto" - continued detention of

Page 130

1 suspects and accused was the rule, rather than the exception. However,

2 Rule 65 provides for provisional release and gives some discretion to the

3 Trial Chambers. This discretion has to be exercised. It has not to be

4 exercised in general terms but with regard to each single individual

5 person.

6 When applying this Rule, first of all, on the basis of the facts

7 submitted to and available for the Trial Chamber, we regard the behaviour

8 of each of the accused as a voluntary surrender. What else should they

9 have done, especially regarding Mr. Kubura, returning from holiday in

10 Croatia to Bosnia-Herzegovina? If he would -- if he intended to flee, it

11 would be an easy exercise to go in any other direction in the world than

12 return to Bosnia-Herzegovina.

13 Applying the principle of proportionality, the test is whether or

14 not the arrest, continued arrest, is really necessary or can the same goal

15 be achieved by other less-intrusive measures? The Trial Chamber is

16 satisfied that the above-mentioned strict orders - even stricter than

17 those suggested by the Office of the Prosecutor - fulfil this purpose in a

18 proper manner. We have documents by the government of Bosnia-Herzegovina

19 and from the three accused giving us certain guarantees meeting the

20 expectation of this Trial Chamber.

21 We are, of course, aware that there never can be a total

22 guarantee, but there is a sufficient basis. We took into consideration

23 the submissions of the parties, but found that as regards the guarantees,

24 there was no necessity, on the one hand, to be more lenient or, on the

25 other hand, to give more strict orders.

Page 131

1 This is, in short, the underlying reason of our decision, and as

2 mentioned before, we will issue as soon as possible the decision in

3 writing.

4 The main issue, once again, we rely on you, and we expect you to

5 be here whenever it is demanded and respect all the other orders.

6 Any other submissions right now?

7 MR. WITHOPF: Your Honours, the Prosecution is --

8 [Trial Chamber confers]

9 MR. WITHOPF: Your Honours, the Prosecution has no observations to

10 make.

11 JUDGE SCHOMBURG: So following the rules of logic, I regard it as

12 given that there is no request for a stay?

13 MR. WITHOPF: Your Honour, this conclusion is the correct one.

14 JUDGE SCHOMBURG: There's no --

15 MR. WITHOPF: It's correct. It's the correct one.

16 JUDGE SCHOMBURG: Ladies and gentlemen, so I can thank you for the

17 good cooperation during the last month on this case. I would like to

18 extend Season's Greetings to all present, especially those normally

19 working behind the scenes, and at the same time express my gratitude for

20 the interpreters for providing a common basis of understanding.

21 Hereby this hearing is concluded.

22 --- Whereupon the Motion Hearing adjourned

23 at 6.55 p.m.