Tribunal Criminal Tribunal for the Former Yugoslavia

Page 608

1 Friday, 2 May 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.03 a.m.

6 JUDGE MAY: Mr. Shin, we had reached a stage where I think you

7 were going to deal with a point in private session. Do you want to go on

8 from there, or do you want to go somewhere else to start with?

9 MR. SHIN: I thank Your Honours. I would prefer to begin in

10 private session on that same point.

11 JUDGE MAY: Yes.

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3 MR. SHIN: The Prosecution will now turn to its third point

4 regarding the guarantees offered by the Republic of Serbia and the state

5 Serbia and Montenegro.

6 I would begin here with the jurisprudence, because much was said

7 here yesterday which was distorting of the law of jurisprudence of the

8 Tribunal on this point and perhaps resulting from a misunderstanding of

9 that jurisprudence. There is simply no question here of a blanket

10 rejection of a guarantee of any particular state. The jurisprudence of

11 this Tribunal states that guarantees - even strong, dependable ones -

12 might be relied upon in some cases and not in others. Even guarantees

13 from the same state. I would refer in particular to the Appeals Chamber's

14 decision in the Mrksic provisional release application. In paragraph 9 of

15 that decision, the Appeals Chamber stated quite clearly that "the

16 reliability of a guarantee must be determined in relation to the

17 circumstances of the individual case." To illustrate that principle, the

18 Appeals Chamber went on to provide two examples. The first example was a

19 hypothetical Accused A, who would have voluntarily surrendered upon

20 learning of his indictment by this Tribunal and who may have cooperated

21 with the Prosecution in a way which demonstrated genuine intention to

22 return for trial. In contrast to this example, the Appeals Chamber

23 offered hypothetical Accused B, a high-level government official at the

24 time alleged to have committed the crimes charged, and secondly, in

25 possession of valuable information which he could disclose to the Tribunal

Page 612

1 if minded to cooperate.

2 The Appeals Chamber stated that it was reasonable for Trial

3 Chambers to rely on the guarantee in the case of Accused A and not in the

4 case of Accused B, even if that guarantee or those guarantees were to come

5 from the same authorities.

6 The principle to be distilled from that decision, we would submit,

7 is that it is the personal attitude of the accused which of foremost

8 importance, and to be the first matter considered in evaluating

9 provisional release generally, and also in evaluating the weight to be

10 given a state guarantee.

11 I refer briefly to Trial Chamber I's hearing on Mr. Martic's

12 provisional release application from September of last year in which Judge

13 Orie indicated that the attitude of the accused is the main issue,

14 suggesting that, if positive, the support of the government would

15 certainly assist to convince the Court of provisional release, but in any

16 case, His Honour Judge Orie emphasised that this attitude of the accused

17 is the first step to be considered.

18 In relation to points raised yesterday by the distinguished

19 Mr. Caric representing Serbia and Montenegro, we would submit that

20 Mr. Caric himself in his submissions bears out the approach of the

21 Tribunal on this matter. He cited several cases of people who had sought

22 provisional release here and had been granted provisional release by the

23 various Trial Chambers of the Tribunal in which the state guarantees were

24 in fact relied upon. He mentioned Ms. Plavsic, Mr. Miodrag Jokic, Mr.

25 Talic, Mr. Pavle Strugar, and Mr. Gruban. So clearly there's no question

Page 613

1 here of dismissing wholesale any particular state's guarantee. We would

2 submit that the distinction between those cases where the state guarantee

3 was relied upon and those in which it was not is clearly discernible. In

4 the cases cited, surrender occurred in a matter of days to months after

5 the accused learned of the indictment against him or her, not, certainly,

6 a matter of years.

7 Further on Mr. Caric's representations yesterday, in response to

8 his representations regarding the Rule 54 bis proceedings in another case,

9 we would argue that that proceeding is in fact relevant to this

10 provisional release hearing as that proceeding arises from a failure of

11 cooperation or difficulties in cooperation from the authorities in Serbia

12 and Serbia and Montenegro. The Appeals Chamber decision in Sainovic and

13 Ojdanic from last year instructs that the degree of cooperation by state

14 authorities is a relevant consideration for provisional release.

15 Finally on Mr. Caric's representations, we note that he made a

16 reference to six persons having been surrendered by Serbia or Serbia and

17 Montenegro. And we would just seek some clarification on that, whether

18 that is a matter distinct from the, as he calls them, voluntary surrenders

19 which he mentioned elsewhere in his submissions.

20 On the matter of the state guarantees, the Prosecution would

21 otherwise rely on the submissions it has made in its response brief and

22 refer briefly to one point in the jurisprudence of the Tribunal. Both the

23 Sainovic/Ojdanic Appeals Chamber decision and also the Appeals Chamber in

24 Mrksic point out -- in the Mrksic decision point to the relevance of

25 circumstances at the time the accused would be expected to return for

Page 614

1 trial. The Appeals Chamber, of course, does not indicate that any

2 speculation should occur, but rather that, to the extent possible, the

3 context of the future was a relevant consideration, the Appeals Chamber in

4 Mrksic specifically relating to the likelihood of future change in

5 government as a factor to take into account.

6 We would simply point out that, in light of recent developments,

7 including the tragic assassination of Prime Minister Djindjic, and the

8 transition of the Federal Republic of Yugoslavia to its newly-constituted

9 state, Serbia and Montenegro, and the current status of the president of

10 Serbia as a caretaker president, among other matters, points or reflects

11 these political uncertainties and, under the jurisprudence, further

12 militates against the reliance on the state guarantees in this particular

13 case, and we emphasise again "in this particular case with this particular

14 accused."

15 We would also point out that there are, as the assassination of

16 Mr. Djindjic demonstrates, the real risks from anti-Tribunal forces in

17 Serbia and Serbia Montenegro, as my learned colleague himself yesterday

18 pointed out in relation to various media articles as well.

19 I would just add one more to that. Mr. Mihajlovic, Dusan

20 Mihajlovic, the Minister of the Interior of Serbia, himself was cited two

21 days ago in the Belgrade VIP daily news service as indicating that the

22 assassination was -- the criminal group that committed that assassination

23 was connected to what is referred to as quasi-patriotic or anti-Hague

24 elements in Serbia. And he is further cited for the point that the actual

25 decision to carry out the assassination was made by a Mr. Spasojevic and a

Page 615

1 Legija, of whom mention was made yesterday, who called the terrorist plan

2 "Stop The Hague."

3 The fourth point the Prosecution would make relates to the senior

4 position of the accused. The accused, obviously, was the former president

5 of Serbia. He benefited from that position. And certainly in terms of

6 protection from authorities from having to surrender or being transferred

7 to this Tribunal, he seeks now to benefit further from that position

8 through the various arguments made yesterday in relation to political

9 stability and democratic transition and the alleged important role he

10 played in that regard. However, the jurisprudence is to the contrary

11 effect. A senior position of the accused militates against provisional

12 release. As the Appeals Chamber in the Sainovic/Ojdanic decision noted,

13 the position of an accused in the hierarchy and the consequence of that

14 position upon the weight of government guarantees are significant factors,

15 factors weighing against the granting of provisional release.

16 My learned colleague suggested yesterday, listing several persons

17 who had been granted provisional release, that high status in fact might

18 not count as a factor against -- I'm sorry, a high factor would not be a

19 factor that would militate against provisional release. I would simply

20 reiterate that a review of those who have been granted provisional release

21 and those who have not would indicate that it was not the high status of

22 the accused that was so much a matter but, rather, the time between the

23 recognition or knowledge of the indictment and the time of the surrender.

24 I would turn now to the discretionary matter sought by the medical

25 condition, and perhaps Your Honours would seek to go into private session

Page 616

1 on this point.

2 JUDGE MAY: Yes.

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9 [Open session]

10 MR. SHIN: I would now just address quickly some further matters

11 raised in the course of the hearing yesterday. With regards to the matter

12 of public perception, I would submit that the documents set out in Annex 1

13 of the accused's application for provisional release are not relevant.

14 Those and other documents may welcome the surrender of Mr. Milutinovic.

15 We would submit that the surrender of Mr. Milutinovic is quite a different

16 point from the provisional release of the accused and that the fact that

17 there are persons who may welcome his surrender hardly indicates that they

18 would actually call for his provisional release as well. Otherwise, we

19 would merely point out that an important element of the public in this

20 area of public perception of the Tribunal is, of course, first and

21 foremost the victim groups. Otherwise, we would rely upon submissions we

22 made in our response brief.

23 Secondly, there was also a point raised with regards to the threat

24 to victims, witnesses, and others. We would rely on our submissions in

25 the response brief and simply point out a couple factors. First, that we

Page 619

1 would submit that the Prosecution need not on this point prove that such

2 threats or other forms of danger to these persons has actually happened.

3 We would rely on, among other points in the jurisprudence, on Blaskic in

4 which the possession of disclosure materials was indicated as a factor

5 increasing that risk, and also the decision of this Trial Chamber in

6 Krajisnik, this Trial Chamber differently constituted, and noting, of

7 course, the dissenting opinion of Your Honour Judge Robinson, including a

8 dissent on that particular point.

9 We would submit here again that what is principally important is

10 the personal attitude of the accused, and that is that he has no respect

11 for this institution, as he has demonstrated by his conduct and, we would

12 submit, by his words. My learned colleague set out yesterday as an

13 argument on this point "the reputation for integrity and public service."

14 And I'm not sure if you'd want to go to closed session just for a very few

15 points on this point.

16 JUDGE MAY: Yes.

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4 [Open session]

5 MR. SHIN: And finally -- thank you. Finally, some brief comments

6 on the matter of personal cooperation which is not controversial, we would

7 submit. The Prosecution completely rejects the characterisation by my

8 learned colleague that the policy of the Prosecution in any way represents

9 an inducement to accused. The jurisprudence is very clear on this point.

10 The Appeals Chamber in Sainovic and Ojdanic was absolutely clear, both in

11 the majority and in the dissent. The Prosecution has also been very clear

12 in its position in submissions both written and oral before this Trial

13 Chamber. So just to make it plain, we would state again that the law in

14 this area is settled, and the Prosecution follows, of course, that law.

15 If I might just add one point before I move to my conclusion. I

16 had cited yesterday a representation made in the provisional release

17 hearing last year for Mr. Sainovic and Mr. Ojdanic regarding the arrest --

18 or rather, regarding the policy of Serbia not to transfer Mr. Milutinovic

19 until the end of his term of president. That representation was made by

20 Mr. Nebojsa Sarkic who was the assistant to the Federal Ministry of

21 Justice at that time. And I believe that may be on page 46 of the

22 transcript, although I'm not entirely sure. And we would just point out

23 again that Mr. Sarkic on that occasion did state that the accused -- this

24 accused would either voluntarily surrender after his term as president had

25 terminated, or he would be transferred by coercion if necessary. And

Page 621

1 that, of course, touches also upon the nature of this accused's surrender.

2 And we would submit that further reflects the fact that his surrender is

3 not really voluntary as in the context of Rule 65(B) as he surrendered

4 knowing that he may -- or believing full well he may otherwise be

5 arrested.

6 In conclusion, the Prosecution would simply state that the

7 accused's surrender first of all was not voluntary within the meaning or

8 the context of Rule 65(B). He was a fugitive refusing to surrender to

9 this Tribunal for nearly four years. He acknowledged this Tribunal only

10 when he had to; prior to that, expressing his disdain for this Tribunal

11 both in his conduct and his words. He surrendered only when the

12 protection he was enjoying from state authorities appeared to be coming to

13 an end and when he believed that he would have no other choice and that it

14 would be in his best self-interest to try to seek to gain some advantages

15 from his voluntary surrender, including the provision of guarantees by his

16 state. Therefore, the Prosecution would submit the personal guarantees of

17 this accused can be given no weight.

18 Under these circumstances, the Prosecution submits that the

19 jurisprudence teaches that a state guarantee cannot cure his failure to

20 persuade that he would return for trial, nor would conditions upon his

21 release cure this failure. The medical condition of the accused, the

22 arguments have been set out fully previously in this hearing. And

23 finally, during the four-year period, the accused, we would submit, had no

24 excuse in law, whether before October 2000 or after October 2000, and this

25 point has essentially been conceded by my learned colleague.

Page 622

1 Under these circumstances, we would submit that the accused will

2 always have a response -- always have a response and a reason why he

3 should not attend at this Tribunal if given the choice, and that he would

4 continue to seek such reasons and the circumstances in which he would be

5 able to use those reasons not to attend at this Tribunal.

6 Thank you, Your Honours. That's all.

7 JUDGE MAY: Thank you, Mr. Shin.

8 Mr. Livingston, fairly briefly, if you would, please.

9 MR. LIVINGSTON: Your Honour, can I just start by dealing with

10 what I think has emerged as the key point in this motion. That is the --

11 in relation to the period after October 2000, as Mr. Shin put it

12 yesterday. He says: "There is no authority that political considerations

13 can justify defiance of Tribunal authority." He says: "Contribution to

14 political stability should be given no weight." In my submission, those

15 formulations put the emphasis in the wrong place. The issue, in my

16 submission, is fundamental, and I think this is something that Judge Hunt

17 emphasised in his, albeit dissenting judgement in the Ojdanic and Sainovic

18 appeal motion. The question is: Does his behaviour demonstrate that he

19 didn't intend to surrender? And in my submission, the evidence

20 overwhelmingly which you have in this motion indicates that he did. Can I

21 also say this: That I accept the point that the Appeals Chamber has made

22 both in the Mrksic case and in the Ojdanic and Sainovic one, that one must

23 look at each case, at each defendant on his own merits and in his own

24 particular context.

25 The passage of time perhaps sometimes dulls the memory, but I hope

Page 623

1 all of us in this courtroom can remember the dramatic pictures which

2 crossed our television screens in October 2000, the storming of the

3 parliament building, setting fire to the television station, looting,

4 pictures of general disorder. It was a situation which could have

5 descended rapidly into chaos had the authorities not got a grip on the

6 situation very quickly. It was an exceptional situation which resulted

7 from the fall of the previous regime. In a sense, one is seeing it again

8 in Iraq on our television screens just recently. It's not a commonal

9 garden political situation that's being put forward here. This was an

10 emergency which Serbia faced at that time. And it's reflected -- it's not

11 likely, in my submissions, that politicians of the standing of the late

12 Dr. Djindjic, Mr. Milasinovic, Mr. Zivkovic, make the points that they do,

13 that it was important for the stability of the country. It doesn't just

14 -- the problem just doesn't go away in one day or one week or one month.

15 It's important for the political stability of the country that this

16 defendant served out his mandate. It's not meant to be an indication of

17 showing disdain, as it's put, for this Tribunal. In that context, it

18 shouldn't be forgotten --

19 JUDGE ROBINSON: Mr. Livingston, important for the stability,

20 would you put it higher than that, it was indispensable?

21 MR. LIVINGSTON: Yes, I would put it higher than that. Yes, I

22 would put it that high; yes, I would accept that phrase.

23 I am reminded by Mr. Milutinovic, I think it's an important point,

24 that when he was Foreign Minister, of course as he was before 1997, he was

25 the person who established the first liaison office with the Tribunal in

Page 624

1 Belgrade. And that, in my submission, is not the mark of a man who was

2 showing disdain for the jurisdiction of the Tribunal. He was a party to

3 the start of cooperation with this Tribunal. And in my submission, it's

4 an important point.

5 A further important point which again Mr. Milutinovic reminds me

6 of which I think it is important to make is this: Because he's a former

7 president of Serbia, he will be under guard, and that is by bodyguards,

8 protection, day and night, 24 hours a day, if he returns. He's entitled

9 to that, and that is the position that he will have. I'm sure Mr. Caric,

10 if asked, would confirm that. The possibility of him, therefore,

11 disappearing into the woodwork where he can't be found is frankly

12 nonexistent in his particular circumstances. And Mr. Caric made the point

13 yesterday that the authorities have had no problems in enforcing any other

14 guarantees that they have given for other defendants granted provisional

15 release. The fact that this defendant will be under close guard and

16 supervision all the time makes that -- makes it even less likely that

17 there will be any problems about this defendant not surrendering in due

18 course. It's an importance difference which he has from all, if not

19 certainly virtually all, other defendants at this Tribunal.

20 A point is made about the senior position of the accused. In my

21 submission, what Mr. Shin says has come very close to accepting my point.

22 He refers to various other accused of high rank who have been granted

23 provisional release, and he says, well, in those particular cases, the

24 high position was not such an important factor in the decision to grant

25 provisional release, it's more a matter of the shortness of the period of

Page 625

1 time between knowledge of the indictment and surrender.

2 I agree with the point, and in a sense, it's my point that the

3 fact that there is a perceived high authority - and I stress the word

4 "perceived," and you have my submissions on that from yesterday - is not a

5 bar. I think Mr. Shin misrepresented my point. When I say it's not a bar

6 to provisional release, the issue in the end, though, in my submission, is

7 not simply a matter of the distance in time between knowledge of the

8 indictment and surrender, it's a question of is the surrender voluntary?

9 And if you are satisfied, as you have to be, that the surrender was

10 voluntary in this particular case, then in my submission, the fact that

11 that defendant is prima facie - and I stress the words prima facie - in a

12 high position should not be a bar to his being granted provisional

13 release. At the end of the day, the question is: Will he appear at

14 court? Will he abide by any conditions which this Court imposes? Will he

15 interfere with witnesses?

16 In my submission, whether a defendant who is going to be guarded

17 day and night, with a defendant who, frankly, has a record which I stand

18 by on my submissions, in my submission, it's also inconceivable that he

19 would, having surrendered once, not surrender and abide by conditions in

20 the future. And I would invite you very strongly to that conclusion.

21 I think I'm virtually at the end of my ten minutes. Can I just

22 make one other point, very briefly, which is of concern to my client. He

23 frankly denies having made the statement as it's attributed by the

24 Prosecution in the Reuters report in January 2001. He also wishes me to

25 make the point that Nacional as a paper has actually been closed down

Page 626

1 earlier this year by the new High Representative in Bosnia, Paddy Ashdown,

2 one of the reasons being because of the unreliable nature of its

3 reporting. So it no longer functions, that newspaper. But in my

4 submission, the important point about that is that the Prosecution's

5 acceptance that in recent times, and 2001 is a long time ago, the

6 beginning of 2001, this defendant unequivocally, without going into the

7 argument about what was said and what was meant by certain statements,

8 unequivocally he's never shown the disdain which the Prosecution indicate.

9 He has never indicated he wouldn't surrender. And in my submission, if

10 you're able to conclude, as I submit, that what these very senior,

11 honourable politicians in Serbia -- and we shouldn't forget they have been

12 admitted to the Council of Europe recently -- the clear intention is to

13 show praise for the behaviour of the current regime in Serbia in recent

14 times. If you accept what they say, they're adamant this was a voluntary

15 surrender, they're adamant that this defendant's serving out his mandate

16 was indispensable, to use Judge Robinson's word, to the future of the

17 country as from October 2000 onwards.

18 JUDGE ROBINSON: Expressing that as my --

19 MR. LIVINGSTON: No, no, I understand that. I do understand that.

20 I'm sorry if you thought I was imputing that to you. It was simply the

21 word which I was adopting which was put to me, and I would respectfully

22 suggest that is the picture which those politicians are presenting. And I

23 do also reiterate -- this is my closing comment -- the passage in the B92

24 report yesterday, the quote from Peter Scheider, the president from the

25 Council of Europe that "the Tribunal should show greater understanding of

Page 627

1 the political and security risks inherent in cooperation." In other

2 words, one shouldn't simply look at the legal position in a vacuum. One

3 should and is entitled to, and high international officials are suggesting

4 that this Tribunal should look at other wider factors. And in my

5 submission, when you put those matters together, they all point to this

6 defendant being a very good risk for this Tribunal in terms of the grant

7 of provisional release, and I would invite you to adopt that course.

8 Thank you.

9 JUDGE ROBINSON: Closed session -- private session.

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12 [Open session]

13 JUDGE MAY: We'll consider these submissions and give our decision

14 in due course.

15 We'll sit in the next case in 20 minutes.

16 --- Whereupon the motion hearing adjourned

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