1 Thursday, 10 March 2005

2 [Motion Hearing]

3 [Open Session]

4 [The accused entered court]

5 --- Upon commencing at 10.13 a.m.

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

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-99-37-PT, the Prosecutor versus Milan Milutinovic, Nikola Sainovic, and

9 Dragoljub Ojdanic.

10 JUDGE ROBINSON: May we have the appearances.

11 MR. HANNIS: Thank you, Your Honours. I'm Tom Hannis for the OTP,

12 assisted by Christina Moeller and our case manager Susan Grogan.

13 JUDGE ROBINSON: Thank you. For the Defence.

14 MR. O'SULLIVAN: Your Honour, Eugene O'Sullivan and Slobodan

15 Zecevic appearing on behalf of Mr. Milutinovic.

16 JUDGE ROBINSON: Yes.

17 MR. FILA: [Interpretation] Your Honour, Toma Fila and Mr. Vladimir

18 Petrovic on behalf of Mr. Sainovic. Thank you.

19 MR. VISNJIC: Your Honour, Tomislav Visnjic and Peter Robinson for

20 General Ojdanic.

21 JUDGE ROBINSON: Thank you. All three accused persons applied for

22 provisional release, and the --

23 [Trial Chamber confers]

24 JUDGE ROBINSON: I was saying that all three accused persons

25 applied for provisional release. In the course of considering the

1 application, the Trial Chamber granted the Defence for each accused the

2 opportunity to lead evidence on the question of guarantees from their

3 governments. To that end, we were informed that Mr. Zoran Stojkovic, the

4 Minister of Justice for the Republic of Serbia, would testify today.

5 The procedure that we'll follow is that each accused will be

6 allowed, through his Defence counsel, to lead evidence on this question

7 from Mr. Stojkovic. Mr. Stojkovic is here, and with him is his personal

8 assistant. We begin, then, with Mr. O'Sullivan for Mr. Milutinovic.

9 MR. O'SULLIVAN: Your Honour, each --

10 [Trial Chamber confers]

11 JUDGE ROBINSON: I understand that there is a diplomatic

12 representative here. Would you introduce yourself, please.

13 MR. CARIC: Your Honour, my name is Slavoljub Caric. I am the

14 consul of the embassy of Serbia and Montenegro. I will be accompanying

15 Mr. Stojkovic.

16 JUDGE ROBINSON: Thank you. As the minister will testify, he

17 should make the declaration. I ask the usher to have him make the

18 declaration.

19 MR. STOJKOVIC: I solemnly declare that I will speak the truth, the

20 whole truth, and nothing but the truth.

21 JUDGE ROBINSON: Thank you, Mr. Stojkovic.

22 WITNESS: ZORAN STOJKOVIC

23 JUDGE ROBINSON: Mr. O'Sullivan.

24 MR. O'SULLIVAN: Your Honour, counsel for each of the accused will

25 briefly question the minister, and with your leave, we'd like to proceed

1 in this order: First Mr. Fila for Mr. Sainovic, Mr. Zecevic for

2 Mr. Milutinovic, and Mr. Visnjic for General Ojdanic.

3 JUDGE ROBINSON: It's a matter for you to decide. Yes, Mr. Fila.

4 MR. FILA: [Interpretation] Your Honours, yes, that will facilitate

5 our work. We will be able to proceed faster.

6 Examined by Mr. Fila:

7 Q. [Interpretation] Mr. Minister, would you please give us your name

8 and your position.

9 JUDGE ROBINSON: You may sit.

10 THE WITNESS: [Interpretation] My name is Zoran Stojkovic,

11 Minister of Justice of the Republic of Serbia.

12 MR. FILA: [Interpretation]

13 Q. Mr. Stojkovic, did the government of Serbia on the 13th of June,

14 2002, make a conclusion with respect to Nikola Sainovic and Dragoljub

15 Ojdanic on the 2nd of January, 2003 for Mr. Milutinovic guaranteeing that

16 the government, should the Trial Chamber allow provisional release for

17 these accused, will adhere to all the provisions and instructions given by

18 the International Tribunal?

19 A. Yes, that is correct, and let me say that we have restated our

20 guarantees for these individuals.

21 Q. Did the government of Serbia on the 9th of December, 2004, come

22 to the following decision, that is to say confirming their decision of the

23 13th of June, 2002 and the 20th of January, 2003?

24 A. Yes, that is correct.

25 Q. Can we then take it that the government of the Republic of Serbia

1 has bound itself to adhere to certain conditions and could you explain to

2 us what those conditions are?

3 A. The decisions -- when -- with the changing government, this does

4 not mean that we have not confirmed all the decisions. We have. We fully

5 endorse the decisions made by the previous government, and we shall

6 respect them and abide by them. And if the accused are provisionally

7 released, we shall respect all the obligations and duties determined by

8 the Tribunal itself and this Trial Chamber, and we shall keep the Tribunal

9 informed and abreast of the situation and always ensure that the

10 individuals appear in The Hague for trial.

11 Q. Does this imply daily supervision and surveillance of individuals

12 if they are provisionally released?

13 A. Yes. That is being done and will be done on a daily basis; daily

14 supervision and control, reports are sent to me once a fortnight, and then

15 we send on reports to the Trial Chamber in due course.

16 Q. The guarantees given by the government of Serbia, do they imply

17 that the accused will be arrested if they violate any of the conditions

18 set down for their provisional release?

19 A. Yes, that is absolutely correct. By providing guarantees, the

20 accused themselves are fully conscious of the duties that we have taken

21 upon ourselves and which we intend to uphold.

22 Q. Does the government of Serbia have constitutional authorisation to

23 put into practice these decisions?

24 A. Yes. The constitution makes it incumbent on the republics to

25 fulfil these obligations --

1 THE INTERPRETER: Would the speaker please slow down, thank you,

2 for the benefit of the interpreters and the Court.

3 JUDGE ROBINSON: You heard that, Mr. Fila. Yes.

4 MR. FILA: [Interpretation]

5 Q. Does the government of the Republic of Serbia have the means to

6 put these obligations into practice?

7 A. Yes.

8 MR. FILA: [Interpretation] I apologise to the interpreters, but

9 the answer to the question of whether the government of Serbia has the

10 constitutional authorisations, question number 7, to implement those

11 obligations, does not seem to have appeared on the transcript.

12 THE WITNESS: [Interpretation] There are no problems because,

13 according to the constitution and the charter, this has been placed as an

14 obligation on the Member States and the government of Serbia will be

15 duty-bound to comply.

16 MR. FILA: [Interpretation]

17 Q. Has the government of the Republic of Serbia always respected and

18 followed all the instructions given by the Tribunal with respect to

19 persons on the territory of the Republic of Serbia pursuant to decisions

20 of provisional release of those individuals?

21 A. We have four cases in point, and all the obligations are being met

22 by us. And as I say, I receive complete reports and detailed information

23 about the situation and then we inform the Tribunal.

24 Q. The proceedings before the International Tribunal, that is to say

25 before this Tribunal, does it take primacy over domestic courts?

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1 A. Yes.

2 Q. Does that mean that the accused would be turned over to this

3 International Tribunal regardless of the proceedings in a local court?

4 A. Yes, that is a certainty.

5 Q. Now I come to my last question. The Council of Ministers of

6 Serbia and Montenegro, did it bring in a decision on the 16th of February,

7 2005, confirming the guarantees issued by the federal government of the --

8 or, rather, the 12th of June, 2002 with respect to each of the accused?

9 A. Yes. As I say, we have confirmed the guarantees, and we sent them

10 on to The Hague Tribunal which itself confirmed these conditions.

11 MR. FILA: [Interpretation] Thank you.

12 MR. ZECEVIC: Thank you, Your Honours. The Defence will be

13 referring to a document which is already a part of the file, filed in

14 March 2000 as annex to our first motion for provisional release. For

15 quick reference we have copied the document and I believe it has been

16 distributed and it is, I believe, in front of you right now. 2003. I'm

17 sorry. 2003.

18 For the quick reference, this document has been distributed, and I

19 believe it is in front of you. I will draw your attention to page 4 of

20 the document which deals with the law on the special rights and duties of

21 the president of the republic.

22 If it please the Court, may I proceed?

23 JUDGE ROBINSON: Yes, Mr. Zecevic.

24 MR. ZECEVIC: Thank you very much.

25 Examined by Mr. Zecevic:

1 Q. [Interpretation] Mr. Minister, I just have a few questions for

2 you. You are aware of the fact that Serbia has a law on special rights

3 and obligations of the president of the republic; right?

4 A. That's right.

5 Q. I don't know whether you have the document --

6 MR. ZECEVIC: For the witness, please.

7 THE INTERPRETER: Interpreters note that they do not have copies

8 of the mentioned document. Could it please be placed on the ELMO. Thank

9 you.

10 JUDGE ROBINSON: Let a copy be placed on the ELMO for the benefit

11 of the interpreters.

12 MR. ZECEVIC: [Interpretation]

13 Q. Could you please --

14 JUDGE KWON: Why don't we put English version on the ELMO.

15 JUDGE ROBINSON: Yes.

16 MR. ZECEVIC: [Interpretation]

17 Q. Mr. Minister, the Serbian version of the law, that is to say the

18 original version, really has to do with the last two pages. I hope that

19 you have the mentioned document.

20 Could you please take a look at it, and could you tell me whether

21 that is the law on the special rights and responsibilities of the

22 president of the republic?

23 A. Yes.

24 Q. This law is in force in the Republic of Serbia, isn't it?

25 A. Yes.

1 Q. Could you please look at Article 11.

2 MR. ZECEVIC: The next page. Thank you.

3 THE WITNESS: [Interpretation] Yes.

4 MR. ZECEVIC: [Interpretation]

5 Q. Article 11, and I quote: "Upon ceasing to hold office, the

6 President of the Republic shall have the right for life to a guard for

7 constant personal and premises security."

8 Isn't that a correct quote?

9 A. Yes.

10 Q. Since Mr. Milan Milutinovic held the office of president of the

11 republic, the provisions of this law pertain to him, do they not?

12 A. That is the right that he enjoys in view of the office that he

13 held.

14 Q. Somewhat earlier, when giving answers to the questions put by my

15 learned friend Mr. Fila, you explained to us and confirmed that the

16 guarantees of the government of the Republic of Serbia imply daily

17 surveillance over the accused if they are provisionally released.

18 A. That is what I wish to say here. According to this law, each

19 person will have one guard for that purpose. So this is stipulated in the

20 law. There are many other rights involved. The homes of the said persons

21 can be entered by the persons guarding them. So this security is much

22 greater than was originally mentioned.

23 Q. So in the case of Mr. Milutinovic, in addition to this daily

24 surveillance that will exist on the basis of the guarantees that you have

25 just explained to us, there's also the legal obligation of state

1 authorities to carry out round-the-clock security measures, both in view

2 of his person and the premises where he stays.

3 A. Yes. These measures of control and supervision are far greater

4 for all persons who are provisionally released.

5 Q. Thank you.

6 JUDGE ROBINSON: I'm not sure I understand the significance of

7 Article 11.

8 MR. ZECEVIC: Well, Your Honours, the significance of the Article

9 11 is the fact that apart from the guarantees of the Republic of Serbia

10 concerning the provisional release of the persons -- of the accused, apart

11 from that, there is a legal obligation in accordance with the law on -- on

12 security, on permanent security, 24-hour security, of Mr. Milutinovic as

13 the former president and the security of his -- of the premises where he

14 is staying 0 to 24 hours a day.

15 JUDGE ROBINSON: But that's -- that's his -- that's a person

16 referred to as an employee for administrative duties.

17 MR. ZECEVIC: I'm sorry, no. It's Article 11, the first

18 paragraph: "Upon ceasing to hold office, the President of the Republic

19 shall have the right for life to a guard for constant personal and

20 premises security."

21 JUDGE ROBINSON: But I still don't understand the significance,

22 because what we're looking for is for the government of Serbia and

23 Montenegro to ensure that in the event of breaches, Mr. Milutinovic would

24 be arrested. Now, this guard, as I understand it, is his personal guard.

25 MR. ZECEVIC: I understand, Your Honours, but the point we're

1 trying to make is that in the case of Mr. Milutinovic, there is going to

2 be a double security and surveillance at any time, and of course the

3 guarantee --

4 JUDGE ROBINSON: For his protection. For his own protection.

5 MR. ZECEVIC: For his protection and also for fulfilment of the

6 obligations taken by the government in accordance with the guarantees of

7 Republic of Serbia.

8 JUDGE ROBINSON: I don't know. There isn't anything in this

9 article that would suggest that to me, that that guard would have that

10 responsibility.

11 MR. ZECEVIC: That is true that there is nothing in this article,

12 but what we are trying to establish is that in case of Mr. Milutinovic,

13 there is not only the obligation according to the guarantee for his

14 protection but also on the basis of the law.

15 JUDGE ROBINSON: Very well. I hear what you say.

16 MR. ZECEVIC: Thank you, Your Honour.

17 JUDGE ROBINSON: Yes, Mr. Visnjic.

18 MR. VISNJIC: Thank you, Your Honour.

19 Examined by Mr. Visnjic:

20 Q. [Interpretation] Mr. Minister, I'm just going to ask you one

21 question and it is this: To the best of your knowledge, does General

22 Ojdanic have the formations that would --

23 THE INTERPRETER: Could the speaker repeat his question, please.

24 JUDGE ROBINSON: Mr. Visnjic -- just a minute, Minister -- you're

25 being asked by the interpreters to repeat the question.

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1 MR. VISNJIC: [Interpretation]

2 Q. To the best of your knowledge, does General Ojdanic have any

3 information which would prevent the authorities in Serbia and Montenegro

4 to place him outside guarantees and arrest him should the need arise?

5 A. No, there is nothing of that kind. A situation of that kind does

6 not exist, nor does a problem of that kind exist. Had he had some

7 information which would harm the state, they would not allow him -- have

8 allowed him to go of his own free will, which means that he does not have

9 them.

10 JUDGE ROBINSON: Yes. Thank you. Mr. Hannis.

11 MR. HANNIS: Thank you, Your Honour.

12 Cross-examined by Mr. Hannis:

13 Q. Mr. Minister, I understand that you testified in another

14 provisional release matter last May of 2004. Do you recall that?

15 A. Yes. Yes, that's correct.

16 Q. And at that time, you discussed that one of the problems in

17 dealing with some of these issues was the fact that the Council for

18 Cooperation had not been formed yet; correct?

19 A. Correct.

20 Q. But since that time, the council has been created, and your

21 government has -- has assisted by helping arrange some voluntary

22 surrenders of a number of individuals who are now here in the Tribunal.

23 Yes?

24 A. Yes.

25 Q. But one thing that does not appear to have changed since you

1 testified last May of 2004 was there have not been any arrests effected in

2 Serbia regarding accused individuals; correct?

3 A. Well, I have to note that pursuant to our law, there are two ways;

4 either voluntary surrender or pursuant to a court decision. You have

5 situations where people go voluntarily, and I see no reason for any

6 arrest, for them to be arrested, but where they do not wish to go

7 voluntarily, then the court takes steps, and every person that is found

8 will be taken into custody and handed over to the Tribunal.

9 JUDGE ROBINSON: Do you know how many voluntary surrenders there

10 have been since the council was established?

11 THE WITNESS: [Interpretation] They were guarantees issued by the

12 government for voluntary surrender and we have very good cooperation with

13 the council. But it is the government that determines this. People go

14 voluntarily and the council coordinates with the government. And to the

15 best of my knowledge, six or seven individuals voluntarily surrendered to

16 date, and I expect other people to arrive in the near future.

17 JUDGE ROBINSON: Mr. Hannis, you probably know that.

18 MR. HANNIS: I don't know the number, Your Honour, but it appears

19 to be increasing on a weekly basis almost.

20 Q. And I would indicate, Minister, that we are appreciative of that

21 fact. But taking you back to that May 10th --

22 A. And we expect new arrivals, as I said.

23 Q. And we look forward to those arrivals as well.

24 I want to take you back to that May 10, 2004 hearing where you

25 testified. Dermot Groome of our office asked you a question concerning

1 whether you were aware that arrest warrants had been lodged with your

2 government regarding an indictment against General Lazarevic, General

3 Pavkovic, and General Lukic, and at that time you indicated you were aware

4 of that indictment and those arrest warrants; is that correct?

5 A. I apologise. They weren't lodged with the government but with the

6 court. That's what I knew about.

7 Q. Okay. But you were aware of the existence of those arrest

8 warrants and the indictment. No?

9 A. Yes. That the indictments existed, yes.

10 Q. And reading from that transcript of that hearing on page 83, line

11 22, you said: "But we are aware of the existence of these indictments and

12 we will certainly act in accordance with our obligations." That's what

13 you said at that time; correct?

14 A. That is correct, and I think that is what we did, how we acted.

15 Q. And in your position and in your dealings with these matters,

16 you're certainly aware of Article 29 of the Statute of the Tribunal

17 regarding cooperation, are you not?

18 A. Yes.

19 Q. And you will recall that that Article states that states shall

20 cooperate with the International Tribunal in the investigation and

21 prosecution, and further that Article states, "States shall comply without

22 undue delay" in, among other things, the arrest of persons. You're

23 familiar with that provision?

24 A. Yes.

25 Q. And you've told us here that you see your government's obligation

1 with regard to these accused, if they are released and either fail to

2 return or otherwise abide by their conditions, that your government will

3 arrest them and see that they return here for trial; correct?

4 A. That is correct, because that is the duty that this government has

5 taken upon itself, and it will see it through. And the court gives an

6 instruction for taking people into custody, but it is this government that

7 will comply with that decision and condition, and it will provide the

8 court with the individuals when it so requires.

9 MR. PETROVIC: [Interpretation] Your Honour, I apologise, but with

10 respect to the interpretation, the last sentence of the answer of Mr. --

11 of the minister has not been adequately interpreted, so could the question

12 be repeated and given as the minister gave it.

13 JUDGE ROBINSON: Well, just the answer. It's just the answer that

14 needs to be repeated.

15 MR. PETROVIC: [Interpretation] Yes, Your Honour.

16 THE WITNESS: [Interpretation] The government issued guarantees and

17 took upon itself the obligation, and as an executive organ, we can,

18 through the Ministry of the Interior, implement it, and rest assured that

19 we shall do so. Whenever the Court and Tribunal ask for the presence of

20 the individuals, we shall ensure that the individuals appear before the

21 Tribunal.

22 MR. HANNIS:

23 Q. My question is it appears that there appears to be a difference in

24 your -- and when I say "your," sir, I don't mean you individually

25 necessarily, but your government's view of the obligation as to people who

1 are released on provisional release versus those who have not yet arrived

2 here, and I want to address your attention particularly to General

3 Pavkovic.

4 You've been aware, and by "you" I mean you and your government,

5 have been aware since at least last May of the indictment against General

6 Pavkovic. I assume you're also aware that he's made a number of

7 statements in the media about his willingness -- or perhaps better I

8 should say his unwillingness to come to the Tribunal. Is that correct?

9 A. I am aware of that. I am aware of what General Pavkovic said.

10 At least, that's what we read in the media. We did not have any

11 opportunity of directly contacting him.

12 As far as this government is concerned, we are going to act in

13 accordance with the law, and then there is yet another possibility for

14 ensuring his presence here. His personal view will remain his personal

15 view, but it's not shared by the government.

16 Q. Do you have any reason to doubt those reports in the media

17 concerning his position about refusing to come to the Tribunal?

18 A. Believe me, I cannot say. First of all, I don't know the sources.

19 Once or twice I read reports to the effect that third persons gave

20 statements regarding his positions, but according to the law, our

21 obligation is that if he will not surrender peaceably, then we opt for the

22 other possibility. We will make sure that he does come.

23 Q. And did you see media reports recently that he refused to be seen

24 by the Tribunal medical experts who were in your country recently to see

25 General Lukic?

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1 A. Again, as I said, I've been reading reports in the media only, but

2 as far as I know, our government has been working on this too.

3 Q. And your government certainly knows where General Pavkovic is now;

4 correct?

5 A. I am saying to you that we are taking all steps in order to work

6 this out in accordance with the law, and what is his opinion is his

7 opinion.

8 Q. I'm not sure you answered my question. You do know where he is

9 now; correct?

10 A. Right at this moment I don't know, but other organs are working on

11 this particular matter.

12 Q. Most certainly it appears that he's not in deep hiding. He's been

13 making numerous statements to the media.

14 A. Could you please tell me which statement of his you are referring

15 to that he made to the media? As I told you, I have only read statements

16 made on his behalf allegedly by third persons, but again I only get this

17 information from the media. I am really not aware of anything else.

18 However, in spite of that, as I said, as far as I know, the

19 relevant organs are doing their job, and I expect us to fulfil our

20 obligation in the near future, as soon as possible.

21 Q. Well, I understand that there is a preference to try and obtain

22 the appearance of individuals like General Pavkovic who have been indicted

23 here, the preference in your country is to achieve that by a voluntary

24 surrender. My question is: What's your timetable for that? How long

25 will you attempt that process before you decide you have to comply with

1 Article 29's obligation to cooperate without undue delay and arrest an

2 individual such as General Pavkovic?

3 A. Well, I think that you yourself have noted that there is an

4 accelerated rate of cooperation that has been registered so far. So I

5 expect that within a short period of time our obligation to this Tribunal

6 will have been met.

7 Q. Do you know how long -- well, first of all, let me ask you: You

8 indicated you believe that the appropriate organs or agencies were trying

9 to do what was necessary. Do you know how long they may have been working

10 with General Pavkovic to arrange for a voluntary surrender?

11 A. I do not have such information.

12 Q. And is there any sort of guideline or general timetable that your

13 government imposes upon itself to achieve a voluntary surrender before

14 they will resort to the next step and actually make an arrest?

15 A. We are working along parallel lines. Every one of our citizens

16 has two possibilities, either to voluntarily surrender or to opt for the

17 other one. As far as I know, all of this should be done within relatively

18 short periods of time.

19 Q. And with regard to these three accused in the court today, if the

20 Court should decide to grant provisional release, and I know I'm asking

21 you to think ahead in the future a little bit, but if it turned out that

22 one or more of them, after having been released from being in detention

23 for a number of years and are back home in their home country decide that

24 they don't want to return to The Hague, will you immediately effect an

25 arrest or will you first try to arrange another voluntary surrender?

1 A. Well, the situation is quite clear. We have given guarantees.

2 Because their voluntary surrender, in the guarantees it is clearly written

3 what we will do, and we shall indeed do that. That is what these three

4 persons here know.

5 MR. HANNIS: Thank you, Your Honours. I have no further

6 questions.

7 JUDGE ROBINSON: Mr. Fila, yes.

8 MR. FILA: [Interpretation] With the Court's permission, and I

9 apologise for taking a minute of your time. I would like us to clarify

10 one point. As in your own countries, the countries you come from, in ours

11 too we have the government, the court, et cetera, et cetera, but the key

12 point here in these proceedings, if somebody is released by this

13 Honourable Trial Chamber and for the government to arrest him and send him

14 back, I'd like the minister to confirm what I'm going to say. It is not

15 necessary to have the intervention of the court for these people to be

16 returned or anybody else who was provisionally released, but the

17 government issues direct orders to the Ministry of the Interior who then

18 arrest them and send them forward. So that is the procedure, and this has

19 nothing to do with the court but it is the government, and that's a

20 difference there.

21 THE WITNESS: [Interpretation] Yes. The situations are identical.

22 In the first case that was brought up, the Court would issue instructions

23 and, and when he arrests somebody, he says -- they say that the conditions

24 have been fulfilled and then give instructions for the person to be sent

25 to the Court. In this second case, we issued guarantees as the executive

1 organ. It is not linked to the courts. And then we ensure the presence

2 of the person before this Tribunal whenever that is necessary. We don't

3 need a court decision to act upon.

4 JUDGE ROBINSON: I see. So in the latter case of a person on

5 provisional release, the action is executive. It's not judicial.

6 THE WITNESS: [Interpretation] That's correct, yes, because this

7 Honourable Trial Chamber released the individual and specified the

8 conditions. Once there is an upset in the conditions, we act upon this,

9 take the person into custody and then ensure that they are brought to

10 court. So we have to abide by all the conditions we agreed to, and we

11 would react if any of those conditions were violated and ensure the

12 person's presence before this Tribunal, because it is in keeping with your

13 decision and the instructions given to us when the government took on the

14 obligation.

15 JUDGE ROBINSON: Mr. Fila?

16 MR. FILA: [Interpretation] I should like the Trial Chamber to

17 understand this. You're the Court. You're the Tribunal. You made the

18 decision, and they implement the decision of this Tribunal. It's not a

19 question of the Serbian court. You decide that I will be provisionally

20 released, for example. If I don't comply with the conditions, they arrest

21 me pursuant to the decisions of this Court, of this Tribunal. We don't

22 need two courts, this one and that one. We act upon your instructions.

23 THE WITNESS: [Interpretation] If you make the decision, the

24 decision is incumbent upon certain conditions and we are duty-bound to

25 respect those conditions. If we fail to respect any one of those

1 conditions, then we take the person into custody and send him back to the

2 Court. So we act upon your decision. We arrest the person and have the

3 person returned to the Tribunal. So there is no possibility for us not to

4 comply with the conditions we agreed to once you have made your decision

5 for provisional release.

6 So that's the procedure. It is up to us to ensure that the trial

7 goes forward with the person in place before the Tribunal. And we have

8 taken steps to ensure surveillance and security and control of that

9 individual so that he cannot escape, and we are -- provide this all the

10 time.

11 Questioned by the Court:

12 JUDGE BONOMY: Minister, it is rather unfortunate that that's not

13 the answer you gave when you were being examined and that it has taken the

14 intervention of Mr. Fila to clarify the position. The reason I make this

15 remark is it concerns me that there should be any misunderstanding at all

16 in the Ministry of Justice about the responsibilities, and that you should

17 have thought initially that the Court should intervene before it would be

18 appropriate to arrest a defaulter is unfortunate.

19 Against that background, can you now answer the last question that

20 Mr. Hannis put to you, which I don't think you answered, which is: If

21 there is a default by anyone on provisional release, is the first step to

22 try to secure voluntary surrender or is the first step to arrest him?

23 A. I apologise. I did answer that. He would certainly be arrested

24 and handed over to the Tribunal. But let me repeat: Any defaulter - and

25 that is our duty - a person will be arrested and returned to the Tribunal,

1 even when there are no violations, when there is no default, but when you

2 ask the individual to be brought back, we shall ensure that he is present

3 in the Tribunal, and this can be done forcibly if the person does not want

4 to go voluntarily.

5 The first question was before the case came to trial. So we

6 needed a trial decision to inform the minister of councils and the

7 minister council can tell the MUP to act. So that is a different

8 situation. Here we have the Tribunal. We have a court case. You made

9 the decision, and we comply with your decision, which means that if the

10 person does not wish to come back to the Tribunal when he is expected

11 back, then we take steps to arrest them and return them. So we comply

12 with the decisions of the Tribunal and ensure that the person is here.

13 Whether he's going to say yes I'll go voluntarily or whether we take him

14 into custody and extradite him or bring him in here, that doesn't matter,

15 but we ensure that the person is brought in to the Tribunal. Whenever the

16 Court requires, their presence will be assured for continuation of trial.

17 That was the explanation I gave.

18 So the situation is different before a case has come to trial with

19 that other general and here where proceedings are already underway.

20 JUDGE BONOMY: Just one other question on that topic of the other

21 general, who I think is Pavkovic. In that situation, you say there needs

22 to be intervention by the court before he can be arrested. What is the

23 state of play in that case currently in Serbia? Has the court authorised

24 his arrest or not?

25 A. As far as I know the whole proceedings didn't go through us. It

1 went through the court. The court sent an order and -- for him to be

2 taken into custody, and then they will inform the council, and the council

3 will say that the conditions have been complied with and that the

4 individual can be sent to the Tribunal. So the situation is there -- is

5 clear there. The proceedings will be respected, and I expect in a short

6 period of time that this will be fulfilled.

7 JUDGE BONOMY: None of that's clear to me. My simple question is:

8 What is the present state of that matter? Is there an order already

9 pronounced by the court in the hands of the government for the arrest of

10 Pavkovic?

11 A. No. It wasn't handed over to the government but to the police,

12 and the police will act upon it when they find him. But as I say, the

13 situation is not the same as this other case where proceedings are already

14 under way.

15 JUDGE ROBINSON: Mr. Hannis?

16 MR. HANNIS: I'm sorry, Your Honour. I guess Judge Bonomy's

17 question has raised a further question, if I might.

18 JUDGE ROBINSON: Yes, I allow you. I was thinking of that. I'll

19 allow you to ask.

20 Further cross-examination by Mr. Hannis:

21 Q. There appears to be a difference in the procedure when we're

22 talking about someone who is on provisional release pursuant to an order

23 of this Court. Am I understanding correctly that your government takes

24 the view that for an indictment and an arrest warrant there needs to be a

25 judicial intervention or a judicial review or a judicial decision of some

1 kind in Serbia before they will act on the arrest warrant from this

2 Tribunal? Because it's not just from the Office of the Prosecutor. The

3 indictment has to be approved by the court and they issue the arrest

4 warrants. Do you understand my question?

5 A. I understand. I shall try to explain. In this situation, we are

6 now acting on guarantees for these persons. They are under control on

7 orders given by the Court. When the Court requests that they be brought

8 to trial, if they don't want to come voluntarily, we are going to arrest

9 them and send them in, because the said persons know that we gave

10 guarantees under such conditions and they have accepted that. There is no

11 dilemma as far as I'm concerned. The person is there, we have undertaken

12 this obligation, and we are going to carry it through according to the

13 guarantees that we have given. Those are the conditions on which we give

14 guarantees. These persons have to respond to any request by the Court.

15 Again, it is not domestic jurisdiction.

16 JUDGE BONOMY: You're dealing with a situation which you haven't

17 been asked about. You've been asked about the other situation, which is

18 where an indictment is confirmed by a Judge in this Tribunal and the

19 question was: Is there still some judicial process in Serbia before an

20 accused person is subject either to voluntary surrender or arrest?

21 THE WITNESS: [Interpretation] A summons is sent from the Court,

22 and then the person is brought to detention, if that is the procedure

23 involved, unless there is a voluntary surrender. So there's no problem.

24 But it's not like this procedure here. This procedure is already under

25 way. The proceedings have started. If these persons are provisionally

1 released, we give guarantees and of course we are going to arrest them and

2 we are going to send them back. So we have two completely different

3 situations. And in the first case it is court proceedings that are under

4 way, not procedure initiated by the government.

5 JUDGE ROBINSON: Yes, Mr. Fila.

6 MR. FILA: [Interpretation] I'm terribly sorry to be taking up your

7 time but I think it's important for you to understand this. In our

8 country there is a law on cooperation with The Hague Tribunal. According

9 to that law, your confirmed indictment is not subjected to any kind of

10 double-check by the court authorities of Serbia and whether we are going

11 to accept it or not, whether it's good or not, et cetera. It has to go

12 through the court, though, because it is the court who has to issue

13 summons to a person so that this person would report voluntarily and be

14 sent to The Hague. If this person does not want to voluntarily surrender,

15 then this person is arrested and brought to The Hague. So there are two

16 alternatives.

17 If a person reads that he has been indicted, he can say good day,

18 I see that I have been indicted so I want to surrender voluntarily. The

19 situation is completely different when we know where a person is and the

20 person does not want to surrender. For instance, Mr. Stanisic and

21 Mr. Simatovic. You released them provisionally. They are under guard.

22 Even if they want to go somewhere, they have nowhere to go. So these are

23 two completely different situations, but please do not think that the

24 Serbian judiciary is double-checking your decisions, that they're saying

25 we like this one, we don't like the other one. No way. The procedure

1 implies that they have to order the police to find General Pavkovic and

2 arrest him.

3 THE WITNESS: [Interpretation] Can I just simplify matters? The

4 court just checks the identity of the person, whether it is the person who

5 is wanted or not.

6 JUDGE BONOMY: I'm very grateful to you, Mr. Fila, for clarifying

7 something. My concern is that the minister hasn't been able to clarify

8 things in quite the way that you have.

9 MR. FILA: [Interpretation] Sir, I have been here for nine years,

10 and I am used to the fact that we here think differently from them. We

11 have a particular kind of procedure, but when this Tribunal releases

12 someone, it is this Tribunal, this Court that has released the said

13 person. So no other court can intervene. The government or, rather, the

14 police have to guard the said person and to send the person back whenever

15 you require so. But Pavkovic, that's different. He has to be chased by

16 the police, found by the police, then they remand him into custody and

17 then they ascertain whether it is Nebojsa Pavkovic or whether it's

18 somebody else, et cetera, et cetera. That is the procedure involved. I'm

19 so sorry to have taken up so much of your time but that is the procedure.

20 Thank you.

21 THE WITNESS: [Interpretation] This is what I said, too. It is the

22 identity of the person that has to be ascertained and then appropriate

23 information is given, so this is regular procedure. It is not any kind of

24 double-check of the indictment, whether the indictment is proper or not.

25 It's not that. It's just a question of bringing the person in here.

1 JUDGE ROBINSON: I understand that when an arrest warrant is

2 issued from the Tribunal, in my view there is nothing unusual in the fact

3 that in Serbia and Montenegro there is a process through the court before

4 the arrest is effected. It's not any different from, say, a request for

5 extradition. A request for extradition is made, it doesn't authorise the

6 police immediately to arrest the person. You still go through a judicial

7 procedure. The point is that if you fail to fulfil your obligation, then

8 you stand the consequences that flow from that whether diplomatic or

9 legal.

10 Is there anything else that any counsel would wish to raise?

11 Questioned by the Court:

12 JUDGE KWON: If I can be more clear, clearer about the state of

13 Mr. Pavkovic. Arrest warrant from the court has been handed over to the

14 police. Am I understanding correctly, Mr. Minister?

15 A. Yes. It's been handed over to the court, and the court gave

16 orders to the police. The police cannot find him. Otherwise, it would be

17 the duty of the police to bring him to custody. To inform Minister Lajic,

18 as president of the Council for Cooperation, and then he says you can hand

19 him over to the Tribunal. His identity would be confirmed, and that's it.

20 JUDGE KWON: However, the police or MUP is part of government,

21 isn't it?

22 A. The minister is part of the government, of course, but this is an

23 agency that is there for law enforcement, like in any other country. As

24 far as I know, they are searching for a number of persons in this regard.

25 JUDGE KWON: Thank you, Minister Stojkovic.

1 JUDGE ROBINSON: Mr. Fila, yes.

2 MR. FILA: [Interpretation] I don't know whether it's necessary for

3 the Trial Chamber to confirm this, but Mr. Caric is consul of the embassy

4 of Serbia Montenegro. We have not had him take an oath or anything, but

5 perhaps he could say that the government did indeed pass a decision on the

6 16th of February, 2005, to the effect that it takes over the obligations

7 taken over by the previous government to carry all of this out. So that

8 is a simple statement of fact that he might make, if this may be of

9 assistance.

10 JUDGE ROBINSON: If Mr. Caric wishes to make a statement, he may

11 make it.

12 MR. CARIC: Thank you, Your Honour. I just can confirm that the

13 council minister issue the decision concerning provisional release for the

14 accused, and I have also the conclusion of the government of the Republic

15 of Serbia, and with your allowance, I can submit to the Trial Chamber

16 that.

17 JUDGE ROBINSON: Thank you.

18 Mr. Hannis, anything on that?

19 MR. HANNIS: Well, Your Honour, I -- if I may, two short questions

20 regarding General Pavkovic.

21 Further cross-examined by Mr. Hannis:

22 Q. Because I thought earlier in your testimony, Minister, you

23 indicated that there had been discussions with him about trying to arrange

24 his voluntary surrender, but now I just heard you say that the police have

25 been looking for him. Can you tell us how long they have been looking for

1 him and if now that you're looking for him, will he be arrested or will

2 there be continued discussions about voluntary surrender?

3 A. I'm sorry, you already asked that -- or, rather, you didn't ask me

4 that, you asked me whether I was in contact with him. Now, please don't

5 say that I said something. I mean, I didn't. I'm just saying that we are

6 doing our best to carry out any one of the options involved. I mean, I

7 was not in contact with him. You asked me whether I was and I said I

8 wasn't. That was your question.

9 JUDGE ROBINSON: Mr. Hannis, the "that" in my comment was a

10 reference to the document produced by Mr. Caric. Not for you to have

11 another go at --

12 MR. HANNIS: I apologise, Your Honour. I didn't understand.

13 JUDGE ROBINSON: Well, that's gone.

14 Questioned by the Court:

15 JUDGE ROBINSON: Minister, I want to have something clarified.

16 When a person -- when a warrant is issued by the Tribunal for the arrest

17 of a person, is it -- is it now the policy in your country that you allow

18 the person to surrender voluntarily, and if he doesn't, then you arrest

19 him? Is that a set practice now?

20 A. Yes. Yes.

21 JUDGE ROBINSON: Is that a practice that has evolved over time or

22 is it reflected in any -- in any written form in any document?

23 A. There is nothing in writing. There is no document. As you can

24 see, everything is being carried out the right way. The government said

25 in public, "Any one of you can surrender voluntarily. If not, the

1 government is going to carry out its own obligations."

2 For the time being, things have been working out just fine, but I

3 said already that we have the possibility of arresting persons who do not

4 want to surrender and we are going to do that.

5 JUDGE ROBINSON: That statement was made by the government in

6 public, you said.

7 A. That's what we said. We are asking everyone to surrender

8 voluntarily and to carry out their obligations to the state and to

9 themselves, and if they do not wish to do so, we are going to act in

10 accordance with the law. For -- for the time being, most persons have

11 surrendered voluntarily, and you see, the climate in general has changed.

12 It's much better now.

13 JUDGE ROBINSON: Who made that statement on behalf of the

14 government?

15 A. Well, almost everybody. Whenever we speak up, that's what we

16 always say. Even the Prime Minister said so.

17 JUDGE ROBINSON: So if persons have not been arrested, it is

18 because you have been following that practice of allowing them to

19 surrender.

20 A. They have already been given this possibility. But as I said, the

21 relevant organs are searching for these persons, and once they're found,

22 as soon as they are found, they will be involved in the appropriate

23 procedure. The deadlines are very short for voluntary surrenders. If

24 they do not wish to surrender voluntarily, then appropriate action will be

25 taken. But this attitude of the government has yielded very good results,

1 because practically once a week there are persons surrendering

2 voluntarily. Much we are giving guarantees for the said person, and

3 things have worked out. I expect yet another man to come within the next

4 few days.

5 JUDGE ROBINSON: The only comment I'll make on that, Minister, is

6 don't allow the comment to be made that your government has the patience

7 of Job. You can't wait forever on a voluntary surrender, because that is

8 going to put your credibility at risk, in jeopardy.

9 A. I'm sorry. That's what I said at the outset, that with relatively

10 short deadlines we are going to meet our obligations precisely because of

11 what you've said just now.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: Mr. Hannis.

14 MR. HANNIS: Your Honour.

15 JUDGE ROBINSON: There's another matter that we wanted to raise

16 with you, and I don't think you'll be taken by surprise because I know

17 you'll be familiar with the history of the case. The three accused have

18 been in detention for the following periods: Mr. Milutinovic two years,

19 one month, 19 days; Mr. Sainovic two years, ten months, nine days;

20 Mr. Ojdanic two years, ten months, and 20 days. These periods are long.

21 Do you have any information as to when the trial will take place?

22 MR. HANNIS: Your Honour, a trial date has not been set yet, but I

23 think I brought it to the attention of Judge Bonomy at the last Status

24 Conference, and I brought it up at the Initial Appearance of General

25 Lazarevic that it was our intention to file a motion to join General

1 Lazarevic with the defendants in this case. And I realise that that is a

2 factor that the Judges will need to consider, because General Lazarevic's

3 attorney indicated that if there was going to be a trial starting in this

4 case, say, in September or October of this year, he felt that he was going

5 to need more time to prepare. If General Pavkovic comes in next week or

6 next month, or General Lukic comes in, I'm -- I'm sure that their

7 attorneys will probably make the same indication.

8 We still feel that we probably should file a motion to join

9 because the charges in both cases are identical; they involve the same

10 witnesses. We have a completion strategy with an anticipated ending date

11 of trials in 2008, but in that event, the Court may decide that you have

12 to release these defendants if their trial is not going to start until

13 2006.

14 JUDGE ROBINSON: You would concede that.

15 MR. HANNIS: I consider that that would be a strong factor the

16 Court would have to bear in mind.

17 I don't know if I'm willing to concede right now, Your Honour,

18 yes, release them because we won't have a trial date until 2006. The

19 motion hasn't been filed yet. I don't know what the Court's ruling will

20 be about whether you agree it is in the interest of efficient

21 administration of justice and judicial economy to have six defendants in a

22 case or to have two separate trials involving the same charges and the

23 same witnesses.

24 I'm not sure what happens when you double the number of lawyers

25 and the number of defendants. We certainly won't be having trial in

1 courtroom II because we can't fit in there. And given that other trials

2 are going on at the same time, I don't know what the logistical

3 practicalities in trying to have a case with six or seven accused and

4 twice that many Defence counsel.

5 JUDGE ROBINSON: They are entitled to a trial within a reasonable

6 period of time and that time has pretty much been reached.

7 MR. HANNIS: I agree, Your Honour.

8 JUDGE ROBINSON: Do you know whether the accused persons -- well,

9 I'm asking the question and I think the answer is yes, and maybe the legal

10 officer can confirm this, that there have been accused persons here who

11 have been in detention for longer periods?

12 MR. HANNIS: Yes, Your Honour. I believe Mr. Krajisnik was in

13 detention almost four years before his trial began. I know that was an

14 issue that was discussed in his case, and I understood there was some

15 legal precedent that indicated that five years was not an excessive period

16 for pre-trial detention, given the nature of the charges in that

17 particular case, but I agree we're getting close to the limits here.

18 JUDGE ROBINSON: Well, it's not a precedent in which anyone can

19 take pride.

20 MR. HANNIS: I understand, Your Honour.

21 JUDGE ROBINSON: Thank you for your frankness, Mr. Hannis.

22 There being no other matters, the hearing is adjourned.

23 --- Whereupon the Motion Hearing adjourned

24 at 11.18 a.m.

25