Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8

1 Tuesday, 1 July 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.02 p.m.

6 JUDGE MAY: Let the Registrar call the case.

7 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honours.

8 This is the case number IT-03-68-PT, the Prosecutor versus Naser Oric.

9 JUDGE MAY: May I have the appearances, please.

10 MR. WITHOPF: Good afternoon, Your Honours. For the Prosecution

11 appear Mr. Jayantha Jayasuriya on my right-hand side, trial attorney.

12 Ms. Kimberley Fleming on my left-hand side, trial support. And I,

13 Ekkehard Withopf, acting senior trial attorney.

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

15 name is Vasvija Vidovic, and assisting Mr. John Jones, defending Mr. Naser

16 Oric.

17 JUDGE MAY: Yes, thank you. And we have the Federation

18 representative here also, I understand. Would you like to introduce

19 yourself, please.

20 MR. HALILOVIC: [Interpretation] Your Honours, my name is Mevludin

21 Halilovic. I'm a Minister of the Interior of the government of the

22 Federation of Bosnia and Herzegovina. And Bosnia-Herzegovina has

23 been respecting the Tribunal from its founding. It has been closely

24 cooperating with the Tribunal carrying out its requests and saying that it

25 will continue to do so in future.

Page 9

1 JUDGE MAY: This is the hearing of a motion for provisional

2 release by this accused. It has been fully briefed in that we have had

3 full submissions from both sides. We will hear oral submissions, but they

4 shouldn't repeat the matters which are already in the brief. We'll hear

5 from the Defence first, it being their motion.

6 MS. VIDOVIC: [Interpretation] Your Honours, following your

7 suggestion, I will not repeat the arguments that we have written down in

8 the submission in our motion for provisional release of Mr. Oric dated

9 21st of May, 2003, and our response to the Prosecution motion to our

10 response. But because of the heavy accusations that were submitted by the

11 Prosecution, I will have to raise some issues that the Prosecutor has been

12 insisting in his submissions. I will not speak a lot regarding what the

13 Prosecution said, saying that the burden of proof is on the Defence to

14 prove that --

15 THE INTERPRETER: Could the counsel please slow down considering

16 that Ms. Vidovic is reading.

17 MS. VIDOVIC: [Interpretation] Everything that I am saying in

18 response to the Prosecution motion, the Rule says that release may be

19 granted by the Trial Chamber. I am deeply convinced that the word "may"

20 indicates that the Trial Chamber may grant provisional release under

21 certain conditions which are clearly set out in the Rule. The Chamber

22 must be convinced that the accused, if released, will appear at the trial

23 and that he will not represent a danger to victims, witnesses, or any

24 other persons. The Chamber does not have any other discretionary powers

25 under this Rule.

Page 10

1 In this case, the Prosecutor has gone so far as to ask that the

2 accused be kept in detention even if the Defence is able to present valid

3 arguments to show that both conditions in Rule 65(B) have been met. They

4 have asked the Trial Chamber to use its right to reject a motion for

5 provisional release. The Prosecutor quotes with approval the claim that

6 detention is needed before a trial in order to maintain the confidence of

7 the public in the fairness of the trial. Your Honours, the Tribunal is

8 applying international law and international legal standards from human

9 rights law which say that detention should be as brief as possible before

10 a trial, and that detention should be -- should be exercised when it is

11 absolutely necessary. This is not in accordance with the interpretation

12 put forward by the Prosecution. Public confidence can only be maintained

13 by a fair trial. All of us here, including the Prosecution, are here to

14 contribute to a fair trial. The Prosecutor must treat the accused fairly.

15 Your Honours, this is not what they're doing.

16 The Prosecution made it impossible for Mr. Oric to surrender

17 voluntarily to the Tribunal. Mr. Oric cooperated with the Prosecution.

18 He was interviewed as an accused on several occasions, and from parts of

19 his interview, which we have adduced, it is evident that he voluntarily

20 gave the interviews which lasted, in our estimation, about 105 hours. On

21 the 6th of April, 2001, he told the investigators that if indicted, he

22 wanted to surrender to The Hague voluntarily. The police commissioner of

23 Tuzla Mr. Divkovic, as can be seen from our annex C, made the statement

24 which shows that the accused did apply to the police asking for it to be

25 made possible to surrender voluntarily. However, SFOR was ordered to

Page 11

1 arrest him by force quite unnecessarily, and it is this lack of necessity

2 that caused such public indignation and outrage. The same public that the

3 Prosecution has in mind.

4 Your Honours, Mr. Oric's surrender was accepted. It was to be

5 voluntary, so this sounds cynical. They say his surrender was voluntary,

6 but this has nothing to do with whether he would be willing to attend the

7 trial, to be at the trial after seeing the evidence --

8 JUDGE MAY: You needn't argue that point further because they have

9 conceded that he is to be treated as if he did, as I understand it.

10 MS. VIDOVIC: [Interpretation] Yes, Your Honour, they have conceded

11 voluntarily, but now they are saying that he will not appear at his trial

12 because certain circumstances could influence the government and it will

13 not be able to arrest him. Your Honours, articles have been presented

14 about public protests in Tuzla which were broadcast on CNN and other TV

15 stations and published in the press. Please look at all this carefully.

16 The contents of these reports are one thing, and the Prosecutor's

17 interpretation is quite another. They are trying to give these reports a

18 meaning they do not have. Both texts adduced by the Prosecution say that

19 several hundred mothers and wives of the victims of the terrible massacre

20 in Srebrenica in 1995 protested, and it's evident from both articles that

21 they protested not because Oric was arrested but because Karadzic and

22 Mladic have not been arrested. And these are key figures accused of the

23 genocide. One of the articles says that the key figures accused of the

24 massacres are still at large. The women of Srebrenica, after a funeral in

25 the village of Potocari, where hundreds of victims of this massacre were

Page 12

1 buried, said in this article: "We demanded that Karadzic and Mladic be

2 arrested as soon as possible. Instead of this, one of our people has been

3 arrested." It is evident further from the article that the mothers of

4 Srebrenica protest on the 11th day of every month. The essence of these

5 protests is something far more serious.

6 Please bear in mind something that the Prosecution has neglected

7 to mention. The protests, when they took place in front of the UN, it was

8 Mr. Oric who himself came out to calm down the protesters. And we have

9 adduced a document showing this, which shows what his attitude is both to

10 the protests and to international justice. On this occasion, I want to

11 draw attention to some major contradictions between the evidence put

12 forward by the Prosecution and the conclusion the Prosecution draws from

13 this evidence. First of all, they say that Oric is considered a hero in

14 his environment and that the government will have serious difficulties if

15 they wish to fulfill their guarantees because of the protest campaign that

16 has been mentioned. However, in developing their arguments on the danger

17 that the accused would pose to witnesses, victims, and other persons, they

18 say, referring to Oric, the following: "People who were killed or who

19 took part in the clashes were members of his family or his subordinates."

20 Then they adduce a statement by an anonymous witness describing the

21 protests against Oric in Srebrenica. The pamphlets issued against him.

22 The evidence provided by the Prosecution compromise their own conclusions.

23 Furthermore, the conclusions drawn by the Prosecution about the importance

24 of the accused and his status as a hero in Srebrenica are incorrect, or it

25 is the witness statements that they themselves provide that are incorrect.

Page 13

1 It is up to Your Honours to make the decision, the right decision on this.

2 As regards to the protest by the mothers of Srebrenica, I have

3 adduced a letter which is a guarantee that they will refrain from

4 anything that might compromise the decision made by the government to

5 fulfill all their obligations to this Tribunal. I will remind you briefly

6 once again that we have put forward a number of newspaper articles from

7 which it is evident that on the occasion of the arrest of all Bosniak

8 generals, there were always protests, including protests by the mothers of

9 Srebrenica, and Oric is no exception to this. Especially large protests

10 were held in Sanski Most when 15.000 citizens of this town protested when

11 General Alagic was arrested. Numerous citizens' associations in Bosnia

12 and Herzegovina protested but this did not hinder the government of Bosnia

13 and Herzegovina from providing guarantees that they will again arrest the

14 general, and it did not hinder them from performing all their

15 undertakings.

16 The government of Bosnia and Herzegovina, I assert, will fulfill

17 all their guarantees, and the Tribunal should have no reserves in

18 accepting these guarantees.

19 The cooperation of official Sarajevo and the Tribunal has been

20 ongoing ever since the Tribunal was founded. It has always been

21 unconditional. In November 1994, an agreement was signed with the

22 Prosecution on the handing over of evidence and accused to The Hague

23 Tribunal. The war was still going on when this happened. The government

24 of Bosnia and Herzegovina recognised the right of the Tribunal to issue

25 subpoenas and they undertook to comply with these in the Blaskic case.

Page 14

1 Arrests on the orders of the Court took place immediately when Landzo and

2 Delic were arrested. They were handed over to the jurisdiction of the

3 Tribunal, as were the leading figures in the army of Bosnia and

4 Herzegovina, Hadzialijagic and Hadzihasanovic. There is no arrest warrant

5 that the government of the Federation did not execute immediately. And

6 finally, the government of the Federation of Bosnia and Herzegovina in its

7 -- in Article 8 of its constitution under the Dayton Accords is bound to

8 cooperate with the Tribunal and carry out all its orders. There is no

9 guarantee provided by the government of Bosnia and Herzegovina that will

10 not be carried out and no person that will not be handed over because of

11 public pressure. All this runs counter to the claims by the Prosecution.

12 The Prosecution claim that the accused, if released, would pose a

13 danger to victims, witnesses, or any other persons is without any

14 foundation whatsoever. The Prosecution bases their claim on the alleged

15 previous behaviour of the accused. They say that it is well known that

16 many individuals who spoke out against the activities of the accused

17 suffered serious consequences, including death under mysterious

18 circumstances. First of all, what does it mean when they say this is well

19 known? What does this mean and what does death in mysterious

20 circumstances mean? This speaks for itself. The Prosecution goes on to

21 say that the accused and his accomplices instigated a reign of terror and

22 that no one was allowed to doubt their activities.

23 Does this not run counter to the argument of the Prosecution that

24 the accused is considered a hero in his environment? In paragraphs 12,

25 13, 14, and 15 of their response, they base all this on disinformation,

Page 15

1 rumour, gossip, and insinuation. The Prosecutor has completely forgotten

2 the presumption of innocence which is guaranteed in Article 21(3) of the

3 Statute. The accused is not to be considered guilty until proved guilty.

4 The main proof of the violent behaviour of the accused is found by the

5 Prosecution in a state security document entitled "Naser Oric, information

6 and indications." For lawyers, the very title "information and

7 indications" means a lot. However, in footnote number 12, the Prosecution

8 say that this document is the result of an investigation, and this was

9 submitted to the commander of the army of Bosnia and Herzegovina. This is

10 simply not true. On page 8 of this document, under "conclusions and

11 proposals," items 3 and 4, it is evident that this document is only a

12 basis for an investigation, that this is a pre-investigation document, and

13 that the investigation authorities are only to begin collecting

14 information and evidence and throwing light on these indications.

15 However, let us take a look at this document. It is replete with

16 indications and insinuation.

17 On page 3, under number 4, it says: "Oric detained some witnesses

18 who were killed under mysterious circumstances." In 5, it says that, "The

19 former SDA president and the head of the Srebrenica SMB was injured under

20 mysterious circumstances." Then the civilian protection commissioner also

21 allegedly knew of Oric's machinations. Under number 8, it says that

22 Aljukic, before the war, had a company, but this was not verified. Then

23 it says that allegedly, there were murders which were never cleared up.

24 In 19, it says: "According to unverified information, Oric has an account

25 in Paris." So everything is alleged, everything is unverified, everything

Page 16

1 is not clear.

2 Yesterday, Your Honours, the Prosecution delivered to us in the

3 late afternoon two additional documents, one of which is a document of the

4 Tuzla State Security Service dated the 12th of January, 1996. First of

5 all, I wish to draw attention to the fact that the English text, which is

6 a translation from Bosnian into English, should be taken with a large

7 grain of salt. A superficial comparison of the original text and the

8 translation shows that during the translation into English, mistakes were

9 made which changed the meaning of the document considerably. On pages 3

10 and 4, items 9, 10, 11, 14, 15, and 18, when a name is mentioned, for

11 example, Begic, in the original, it says "A certain Begic, a man called

12 Begic" which in the original points to the lack of information about this

13 person. In the English text, it just says "Begic," making it appear that

14 the -- who this person is is quite clear.

15 In the translation into English, which was handed over by the

16 Prosecution, it says on page 8, it is page 5 of the Bosnian original,

17 "After the arrival in Tuzla, Oric received 500.000 deutschmarks," while

18 in the original, it says: "Oric allegedly received 500.000 deutschmarks."

19 Your Honours, that is a significant difference. Received, if we say

20 received, that has been established. But when we say allegedly received,

21 that means that somebody may have said that Oric may have received this

22 amount of money.

23 Your Honours, I do want to believe that these mistakes happened

24 because the translation of the document was rushed. The entire document

25 is replete with such mistakes, and I will have to stress another important

Page 17

1 one on page 9 where it says that, according to the English text, it says:

2 "According to a certain Rifat Suljic from Polje Visnjica" while in the

3 original, it says: "According to the reactions of a certain man called

4 Rifat," when we use the word "certain," that means that he came and gave a

5 statement. He told something to someone. But if we say that it's

6 somebody's reaction, then it has a completely different, more general

7 meaning. So I would like the Prosecutor to hand over to the Trial Chamber

8 an adequate translation.

9 I want to say something about this document. The document as it

10 is, as we were given it by the Prosecutor, is about the same as the

11 document dated the 23rd of September, 1995. It is also called

12 "information or intelligence" and it's also speaking about unchecked,

13 uncorroborated information about certain murders, about intelligence given

14 by some unknown persons, and some events that are mentioned, for instance,

15 the wounding of Mr. Mustafic. It says that on the same page, that it is

16 possible that Mr. Mustafic could have been wounded by one of Naser's men,

17 Naser Oric. And it also says that rumour has it that for the same event

18 may have been caused by a man called Mrki Mandzo. Now what kind of

19 documents are these? As far as Oric himself is concerned, this document

20 such as it is, there is no way that this document says at any point that

21 Naser Oric is dangerous. Specifically, in relation to Mr. Oric, on page

22 1, this document specifically under items 8, 9, and 10 it, says allegedly

23 he may have received a certain amount of money. That certain people close

24 to him may have sold flour to him from humanitarian aid. There are other

25 things in there, other rumours, but there is nothing about things that are

Page 18

1 relevant to this case.

2 Now, in this document, there is a general assessment on page 8

3 that the leaders of the 28th Division were anarchic and that in every way

4 they discredited and prevented the work of civilian authority, civilian

5 organs by force. Now this comment, Your Honours, when we look at the

6 context in reference to Mr. Oric, cannot be brought into connection with

7 Mr. Oric. Now, very briefly, I will speak about the second document that

8 was added by the Prosecutor dated 10th of March, 1997, from the same

9 source. And this document speaks about the ending on the investigation,

10 or rather, that the planned tasks have been carried out, and what is

11 proposed is the closing of the file. In fact, it says that at -- what

12 should happen, the plan action should be terminated. Your Honours,

13 naturally --

14 JUDGE ROBINSON: Can I ask, did you give a comprehensive list just

15 now of the mistakes in translation?

16 MS. VIDOVIC: [Interpretation] I believe I have. Perhaps not a

17 complete list. I said that it was a cursory analysis of the translation.

18 I didn't really have time for that, Your Honours, because I received the

19 document late afternoon yesterday. I just pointed to those mistakes that

20 changed the meaning, that altered the meaning, particularly considering

21 that the translation has been done to the detriment of my client.

22 JUDGE ROBINSON: Thank you.

23 MS. VIDOVIC: [Interpretation] Your Honours, when speaking about

24 the documents submitted by the Prosecution, Prosecutor's document, I would

25 like to say further that on the basis of such documents, the Prosecutor

Page 19

1 wishes to represent Mr. Oric as being a dangerous murderer who is

2 terrorising and causing fear, and that therefore he will be dangerous for

3 victims and witnesses. Your Honours, in these documents, these documents

4 do not give any basis to the Prosecutor to state such things. There is a

5 lot in information and indication in this document, this is not a result

6 of an investigation which has been carried out, as it has been suggested

7 by the Prosecutor. In order to check this, I have carried out very

8 detailed investigations, and I have also added the statement of

9 General Jusuf Jasarevic, which is in annex 6 of our submission, which

10 sheds quite a lot of light on things. General Jasarevic is very decisive

11 in saying that it is in connection to this document there has been an

12 overall investigation that was carried out, and according to the data that

13 I have, this investigation of Mr. Oric lasted from 1995 until September

14 1998 when it was filed in the archive. And this was an overall

15 investigation, all-encompassing. And it did not confirm what has been

16 alleged in the document, and that is why criminal proceedings were never

17 instigated. The criminal proceedings was instigated against Mr. Oric or

18 any other people who were mentioned in the document.

19 From the statement given by Mr. Jasarevic we can, however, see

20 that the investigation has demonstrated there has been a rivalry and

21 conflicts between certain individuals. And as a result of that, this very

22 contradictory information reached the army intelligence service. Now,

23 Your Honours, so that we can establish the truth and to shed light on

24 these facts for the Trial Chamber, we have submitted evidence regarding

25 the interfactional conflicts in Srebrenica at the time. These

Page 20

1 interfaction clashes, particularly supported by our annex number 7, which

2 is a letter of Mr. Rasim Delic to the Srebrenica citizens, and in this

3 letter, Mr. Delic speaks of his concern because of the clashes among the

4 leaders in Srebrenica. In our annex number 8, in the statement of

5 Mr. Ramiz Becirovic --

6 JUDGE MAY: Ms. Vidovic, we don't have unlimited time. We can

7 read the various materials that you have. I must ask you, in order that

8 everybody else can have time, to draw to a close, please.

9 MS. VIDOVIC: [Interpretation] Very well, Your Honour. Very well.

10 Your Honours, I am doing this because of the seriousness of the

11 accusations, because sometimes they go over what has been set out in the

12 indictment. Very briefly, I will further say that the Prosecutor

13 believes, has been trying to prove, that Mr. Oric has already contacted

14 and trying to influence certain witnesses. Mr. Oric refused any contact

15 with any potential witnesses. He's also refuted the evidence of the

16 statement given by COO2. We gave the affidavit, the statement of

17 Tursunovic where it is stated quite clearly that he's denying what Witness

18 C002 has stated, and I'm not going to go back and stress and quote this.

19 But I would like to ask the Prosecutor whether he believes his Witness

20 C002 because it is a fact that it is the Prosecutor --

21 JUDGE MAY: It's not a matter for the Prosecutor to state such

22 things. It's a matter for the Trial Chamber. Now, we're not in a

23 position to try these matters. We're going to have to deal with them on

24 the papers.

25 Yes.

Page 21

1 MS. VIDOVIC: [Interpretation] Very well. Thank you, Your Honours.

2 I can just add further that other allegations of the Prosecutor are

3 unfounded, that Mr. Oric tried to shift the responsibility and the blame

4 on the dead. This doesn't stand at all. This Prosecutor is basing this

5 on the few pages of his statement. Mr. Oric gave about 2.000 pages worth

6 of statement. And just to extract such a short part of the statement out

7 of context isn't fair. Now, it is certain that a lot of people are among

8 the dead in Srebrenica, and that is the truth, and the Prosecutor should

9 open his eyes to this.

10 Now, on the basis of the proof that the Prosecutor presented on

11 the part of the deliberate campaign of misinformation, particularly when

12 there is so much evidence presented by us which is contrary, now to do so

13 is to deny the presumption of innocence. Now, I will just raise something

14 else very briefly, and this is regarding a person has -- this is in

15 relation to a person for whom the government of BH --

16 JUDGE MAY: Yes, Mr. Withopf.

17 MR. WITHOPF: Your Honours, the Prosecution objects to

18 Mrs. Vidovic to Defence counsel continuing in the manner she does. She

19 has several times been advised by Your Honours that there is nothing about

20 repetition, there is nothing about --

21 JUDGE MAY: No, Mr. Withopf, please, it's a matter for the Trial

22 Chamber to determine how long she goes on. But would you have in mind the

23 clock, please.

24 MS. VIDOVIC: [Interpretation] Very well, Your Honours. I will

25 finish very briefly. Mr. Oric is a person for whom the government gave a

Page 22

1 very full guarantee, also guaranteed by the police commissioner from

2 Tuzla, that he will appear at his trial. Certainly, as the first man of

3 the local police would not guarantee such a thing for a person who has no

4 respect of law, as he has been presented by the Prosecution. If you look

5 at our annex, and the statement of Mr. Desnica, I can just tell you

6 briefly who this is. Mr. Desnica is the vice-president of the Federation

7 of Bosnia and Herzegovina. He's a Serb, and he is the first prime

8 minister of the post-war Srebrenica government. And looking at the

9 request for guarantee of Federation of BH, he said: "I know Mr. Oric, and

10 I know what kind of man he is. And because of Srebrenica, it would be

11 good to respect this guarantee." It would be very unlikely that Mr.

12 Desnica could give such a statement in reference to such a person if he

13 didn't have -- if he wasn't sure that Mr. Oric would be respecting the

14 law.

15 Now, I would like to point out another fact which I believe that

16 shows and demonstrates the unfair position towards Mr. Oric of the

17 Prosecution. Now, 42 witnesses live in Republika Srpska. There were 40

18 statements. Now, in reality, if the accused went into contact with them,

19 there is only one witness who lives in Sarajevo, and this is in -- and

20 he's a witness to general circumstances which has nothing much to do with

21 Mr. Oric. Five are protected witnesses, so -- and there were -- such

22 statements are so -- many large parts of the statements are expunged, so

23 what kind of danger would Mr. Oric present to such witnesses if he doesn't

24 have any data as to who they are? I'm absolutely certain that the

25 Prosecutor is aware of these facts that I have raised, but I believe that

Page 23

1 the Prosecutor has another objective which has nothing to do with justice

2 and fair trial.

3 JUDGE MAY: You will not attribute false motives to the

4 Prosecution. Now, Mr. Halilovic, have you anything you want to add?

5 MR. HALILOVIC: [Interpretation] Your Honours, it is a great honour

6 for me to speak on behalf of the government of Bosnia-Herzegovina, and it

7 is on the basis of pursuant to the law of the Federation of

8 Bosnia-Herzegovina the government is guaranteeing that Mr. Naser Oric, if

9 he is provisionally release, he will respect the following conditions upon

10 arrival in Bosnia-Herzegovina. Within three days, he will send the

11 address to the Registrar of the Tribunal. And in case this address is

12 changed, he will inform the Registrar. To the relevant ministry, he will

13 hand over his passport, which will be either kept at the ministry or at

14 the Prosecutor's office in Sarajevo. He will not leave the territory of

15 the Tuzla canton. Once a week, he will report to the Tuzla police. He

16 will consent to having officials of the Federation verify his presence at

17 occasions unannounced visits to the accused by these officials or by a

18 person designated by the Registrar of the Tribunal. He also guarantees

19 that he will not have any contacts whatsoever or in any way interfere with

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

21 the proceedings or with the administration of justice. He will not seek

22 access to documents and archives. He will not discuss his case with

23 anyone, including the media, other than his counsel and immediate members

24 of his family. He will not occupy any official position in

25 Bosnia-Herzegovina. Within three days of the start of employment, he will

Page 24

1 report to the Registrar and include of the position occupied as well as

2 the name and address of the employer. He will strictly comply with any

3 requirements of the authorities of the Federation of Bosnia-Herzegovina

4 necessary to enable them to comply with their obligations under the order

5 for provisional release and the guarantees. He will return to the

6 Tribunal at such time and such date as the Trial Chamber may order. He

7 will strictly comply with any order of the Trial Chamber varying the terms

8 of or terminating the provisional release of the accused.

9 The government of the Federation of Bosnia-Herzegovina are fully

10 going to cooperate with the Tribunal in The Hague and will take over any

11 transport expenses of the accused from Schiphol airport to the place of

12 residence and back. Also, the cost of the personal security and safety of

13 the accused whilst on provisional release. Report immediately to the

14 Registrar of the Tribunal substance of any threats to the security of the

15 accused including full reports of the investigations related to such

16 threats. Facilitate at the request of the Trial Chamber of all the

17 parties all means of cooperation and communication between the parties and

18 ensuring -- and will ensure the confidentiality of any such communication.

19 They will submit a written report to the Registrar of the Tribunal every

20 month as to the presence of the accused and his compliance with the terms

21 of this order. Will immediately detain the accused should he breach any

22 of the terms and conditions of his provisional release and will report

23 immediately any such breach to the Trial Chamber.

24 I have here the authorisation of my government which enabled me to

25 read these through, and I am ready to answer any questions you may have.

Page 25

1 Thank you.

2 JUDGE MAY: Thank you.

3 Yes, Mr. Withopf.

4 MR. WITHOPF: Your Honour, the Prosecution will try to answer the

5 different issues that have been addressed by the Defence in a structured

6 manner, focussing on the real factual issues. I will first very, very

7 briefly address the ICTY's jurisprudence, then we will discuss the two

8 relevant reports, the 1995 report and the 1996 report, and finally we will

9 address the government guarantee.

10 The law and the jurisprudence of the Tribunal in respect to Rule

11 65(B) is summarised as follows: "A decision regarding provisional release

12 pursuant to this Rule involves findings of fact as to whether the accused

13 will appear for trial and whether, if released, he will not pose a danger

14 to any victim, witness, or any other person." It is settled Appeals

15 Chamber jurisprudence that only after finding that the applicant met his

16 burden on those points, the Trial Chamber would exercise its discretion as

17 to whether the applicant should be granted provisional release. The

18 standard is balance of probabilities, there's even ICTY jurisprudence that

19 states that the standard should be a higher one.

20 When it comes to the second prong of Rule 65(B), the jurisprudence

21 of this Tribunal recognises an almost absolute burden of the accused to

22 show an absence of danger to others. Finally, upon exercise of the Trial

23 Chamber's discretion, an applicant may be denied provisional release even

24 if he has met his burden of proof on the two points as set out above.

25 These are the preconditions for any decision on the provisional

Page 26

1 release application of the accused.

2 The Prosecution will now address the two crucial reports that in

3 the view of the Prosecution show that they are -- its indication that

4 interfere with witnesses, the first report is the 20 September, 1995,

5 report of the military security service of the 2nd Corps signed by

6 Mr. Jusuf Jasarevic, and the second report is the 12th January, 1996,

7 report of the State Security Service in Tuzla.

8 JUDGE MAY: Let's make sure that we have these. The first

9 report --

10 MR. WITHOPF: The first report --

11 JUDGE MAY: Wait a minute. Let me just find it. Which attachment

12 is it to your response?

13 MR. WITHOPF: The first report, Your Honour, is the attachment B

14 to the Prosecution's response.

15 JUDGE MAY: And this is a report of the 2nd Corps? Is that right?

16 MR. WITHOPF: That's a report of the military -- this is the

17 report of the military security service of the 2nd Corps of Tuzla.

18 JUDGE MAY: ABiH.

19 MR. WITHOPF: ABiH 2nd Corps, right, Your Honour.

20 JUDGE MAY: Yes, we have that.

21 MR. WITHOPF: And the second report is the 12th January 1996

22 report which has been filed as an annex to our yesterday's filing. This

23 report is a report of the State Security Service in Tuzla.

24 JUDGE MAY: Yes.

25 MR. WITHOPF: The Prosecution wishes to emphasise that both

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1 reports are official reports of authorities within Bosnia and Herzegovina;

2 they are not gossip, as discredited by the Defence. In respect to these

3 two reports, the Prosecution submits that in particular, the 23rd

4 September report, September 1995 report, can be used in assessing the

5 situation in the context of the provisional release application. Despite

6 the statement of Mr. Jasarevic as provided by the Defence and despite the

7 fact that the accused hasn't been charged for the following reasons:

8 There are legal reasons and there are factual reasons. In regard to the

9 assessment to be made in the context of deciding on provisional release,

10 there is no legal requirement that the information on misconduct of the

11 applicant must have resulted in a judgement against the accused. The

12 Prosecution, therefore, submits that the presumption of innocence is not

13 applicable in this context. The respective Defence arguments are

14 obviously missing the point because the matter to decide is not whether

15 the accused was convicted for the crimes as detailed in the reports; the

16 real matter is whether the information available indicates as to whether

17 the accused may pose a threat to victims, witnesses, or other persons.

18 Coming to the factual reasons, there are at least, at the very

19 least, eight factual reasons to take the 1995 report into consideration.

20 And such reasons are the following ones: Number 1, Mr. Jasarevic's

21 statement is a statement of a private person in his personal capacity. It

22 is not an official statement of a state authority. The Prosecution

23 stresses that the fact that the Defence did not provide a statement by the

24 relevant authorities of Bosnia and Herzegovina, what would have been the

25 normal cause of action, and the Prosecution raises the question why not?

Page 32

1 Second issue, the Prosecution notes that the statement of Mr.

2 Jasarevic very contrary to the Defence submission is vague, it is

3 extremely vague, and not helpful in any respect. Just to illustrate this,

4 I refer to the following quote: "During the processing, it has been found

5 that in Srebrenica in some periods of the war, there are certain conflicts

6 and intolerance amongst certain individuals, and the initial information

7 and findings were contradictory." Such a statement means nothing. What

8 are "certain conflicts" and which certain individuals are concerned?

9 Number 3, the 1995 report, that shows that the authors, including

10 Mr. Jasarevic took it serious. The 1995 report went to the highest

11 authorities, namely to the commander of the general staff of the army of

12 Bosnia and Herzegovina to decide and also suggested the arrest of the

13 accused. I refer to page 10, number 6.

14 The report itself asserts and contradicts the assertions made by

15 the Defence, the report itself distinguishes between verified and

16 unverified information. I in particular refer to page 8, paragraph 19.

17 That leads to the conclusion that all allegations that are not

18 specifically identified as unverified information are to be considered as

19 verified information. The Prosecution, as number 5, also notes that

20 Mr. Jasarevic's statement tries to address the reason why the accused

21 hasn't been charged. It, however, does not address the issues relevant to

22 the provisional release application, namely, that the accused by all means

23 and obviously successfully interfered with witnesses. The Prosecution

24 also notes that Mr. Jasarevic states that the information and findings

25 were contradictory. He does not say that the allegations have been proven

Page 33

1 to not be true. That means even if the Trial Chamber would accept

2 Mr. Jasarevic's statement, there would still be sufficient reason to not

3 be satisfied that the accused will not pose a danger to victims,

4 witnesses, or any other person. Furthermore, the Prosecution wishes to

5 emphasise that also the statement of Mr. Jasarevic suggests that at the

6 end of their proceedings, there was conflicting and therefore not

7 sufficient evidence to charge the accused, there is OTP evidence, namely

8 sensitive source Witness C001, which in crucial portions, I refer to the

9 killing of Nermin Rizvanovic, and the accused's involvement, corroborates

10 the allegations made against the accused.

11 Even the materials submitted by the Defence, the statement of

12 Mr. Ramiz Becirovic, and the report of Rasim Delic, confirm portions of

13 the allegations made in that 1995 report. And finally, the report of the

14 State Security Service, the 1996 report, which has been submitted

15 yesterday, contrary to the statement of Mr. Jasarevic, confirms that

16 investigations, this time initiated by a different body which obviously

17 got the very same information against the accused were conducted

18 throughout 1996. In that context, the Prosecution refers to paragraphs

19 12, 17, and 19 of the report, also and in particular, to the statement

20 made on page 8 of the 1996 report which reads as follows: "One should

21 take into consideration that the anarchy of the 28th Division leaders who

22 caused fear in leading individuals of the administration of justice and

23 members of the AGB Srebrenica creates aggravating circumstances for the

24 police force in resolving some of the cases."

25 These factual points result in the following situation: There are

Page 34

1 two very comprehensive, very detailed, and official reports by two

2 different state authorities on the one hand side; and there's a very

3 vague, very vague, hardly connected, and mainly beside the point statement

4 of a private person lacking the overview and information the relevant

5 state authorities would have. What are the relevant allegations about and

6 relevant are the allegations which show that the accused would interfere

7 with victims, witnesses, and other persons. On page 3, paragraph 3, it's

8 mentioned that those individuals have committed several activities

9 following Oric's order. The 1995 report continues on page 3, paragraph 4,

10 again under the heading "information," he also forbid members of the 28th

11 Division to give any kind of statement to the 2nd Corps military security

12 service and the MUP. Therefore, out of fear, majority of combatants

13 unwillingly spoke or didn't speak at all about the observations concerning

14 Oric and his associates.

15 Paragraph 5 -- paragraph 4, sorry, on page 5, under the heading

16 indications, it's mentioned and detailed that Mr. Oric put two key

17 witnesses behind bars. The report continues describing very similar

18 situations on page 5, under paragraph 5. And it mentions that after they

19 were prevented by Oric's men from investigating the case, it is worth

20 emphasising that Oric has provided an apartment in Tuzla for the

21 aforementioned young guards in paying 100 deutschmarks for rent. And

22 finally on page 9, paragraph 1, it's again emphasised, and that's again a

23 quote: "However, most of them are afraid of possible revenge of the group

24 around Oric in case they need to testify in potential trial proceedings."

25 This information obviously in main portions speaking for itself

Page 35

1 shows the following: The accused is a person, the accused is a person who

2 successfully used each and every available means from using force to using

3 bribery, to interfere with witnesses. The accused is also a person who is

4 in a position to instigate others to use such means. There is no reason

5 to believe why now and in the context of the proceedings before this

6 Tribunal, the accused would not do exactly the same, namely, to pose a

7 substantial danger to victims, witnesses, and any other person.

8 This is the submission of the Prosecution in respect to the two

9 documents. The Prosecution would like to submit a further document today.

10 And in this context, the Prosecution wishes to request closed session,

11 since this is a document that has been provided under the condition that

12 it will only be discussed in closed session, and the Prosecution considers

13 it be necessary under the interests of justice.

14 JUDGE MAY: Have you given a copy to the Defence?

15 MR. WITHOPF: Yes, the Prosecution provided a copy to the Defence.

16 It's worth to mention that the Prosecution got this document five minutes

17 prior to today's proceedings, and immediately handed over copies to the

18 Defence.

19 JUDGE MAY: Private session.

20 [Private session]

21 (redacted)

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16 [Open session]

17 MS. VIDOVIC: [Interpretation] Your Honours, I do apologise, but as

18 I, too, have a document, I would like to introduce in private session for

19 reasons of justice. Because should I present it in open session, it would

20 be detrimental to my further investigations, and it is directly connected

21 to the document just mentioned by the Prosecution. And for this reason, I

22 ask that we remain in closed session for a few minutes longer.

23 JUDGE MAY: Has the Defence got a copy of this document?

24 MS. VIDOVIC: [Interpretation] Yes, Your Honour.

25 JUDGE MAY: We'll hear you at the end and we will go into private

Page 37

1 session during that and you can produce the document.

2 MS. VIDOVIC: [Interpretation] Thank you. Your Honour, yes.

3 MR. WITHOPF: The Prosecution wishes to finish its statements with

4 submissions in respect to the guarantee of the government of the

5 Federation of Bosnia-Herzegovina. Since it has been raised by the

6 Defence, the Prosecution wants to make it very clear from the outset, the

7 Prosecution appreciates the good cooperation of the government of the

8 Federation of Bosnia and Herzegovina with the Office of the Prosecutor.

9 The issue in question, however, here is not whether the government is

10 willing to comply with its undertakings; the Prosecution has no doubt that

11 the government wants to comply with its undertakings. But the issue, the

12 real issue, is whether the government is able to do so, and in that

13 respect, there's a serious, a very serious, doubt. Such a doubt that the

14 result has the result that only little and certainly not sufficient weight

15 can be attributed to the present guarantee. There are two issues

16 involved which we would like to address now, and in this context, the

17 Prosecution will have to ask a number of questions to the representative

18 of the government of the Federation.

19 JUDGE MAY: You're not going to ask him any questions now. But

20 you can make submissions.

21 MR. WITHOPF: It's settled Trial Chambers and Appeals Chamber

22 jurisprudence that a government guarantee must be determined in relation

23 to the particular circumstances which arise in a particular case. The

24 Trial Chamber may accept such a guarantee in relation to the accused A, it

25 may, however, not accept such a guarantee in relation to a different

Page 38

1 accused. That means the weight to be attributed to guarantees by a

2 government depends on a great deal on the circumstances of the applicant.

3 The jurisprudence makes it meaningless, makes meaningless the

4 attempt of the Defence to argue that all accused of Bosniak origin have to

5 be treated in the very same way, which applies to the accused Halilovic,

6 Hadzihasanovic and Kubura. What applies to them does not necessarily have

7 to apply to the accused Naser Oric. The Prosecution raises the issue as

8 to whether the representative of the government of the Federation of

9 Bosnia and Herzegovina was aware of the reports that have been discussed

10 at length during the hearing, the 1995 report, the 1996 report, and it

11 raises the question whether the representatives of the government or the

12 government itself would have provided the very same guarantee if they

13 would have been aware of these two reports.

14 And the Prosecution also raises the question whether the

15 guarantee, taking into account the fact that the accused is, and that's

16 not disputed by the Defence, is considered being a war hero and has many,

17 many contacts to many third persons and has the ability to use whatever

18 means as to whether the government of the Federation of Bosnia and

19 Herzegovina, under such circumstances, is actually able to control the

20 accused and to control the provisional release conditions as it has been

21 set out by the representative of the government of the Federation. Thank

22 you very much.

23 JUDGE MAY: Ms. Vidovic or Mr. Jones, whoever wants to respond.

24 MR. JONES: Yes, thank you. May it please Your Honour, I'll be

25 replying to the Prosecution's response briefly. I would like to deal with

Page 39

1 the two reports referred to by the Prosecution which, in fact, aren't

2 really by the nature of being reports but rather preliminary indications

3 as is clear from their face. But I'll come to that in a moment, I just

4 wanted to preface my remarks with a couple of general remarks in response

5 to the Prosecution. The very first remark I'd like to make is that it

6 should have become clear to Your Honours there has been extremely late

7 service of documents by the Prosecution and the report which the

8 Prosecution is now heavily relying on, 1996 the report, was, in fact, only

9 filed yesterday as Your Honours have seen, and our application, as Your

10 Honour is aware, was made on the 21st of May. The Prosecution responded

11 on the 3rd of June. We replied again on the 13th of June. There's now

12 been a hearing scheduled for two weeks and it's only just now that the

13 Prosecution is coming forward at the eleventh hour with these documents.

14 And that's something which Your Honour, I would submit, you should take

15 into account.

16 As regards the jurisprudence of this Tribunal being settled as a

17 matter of on whom the burden lies, I respectfully submit that in fact the

18 position is not nearly as clear as the Prosecution would like. In fact,

19 the jurisprudence is quite varied. There is dissenting opinion indeed by

20 Your Honour, Judge Robinson, in the Krajisnik case on the 8th of October,

21 2001, and paragraph 30 of which Your Honour says that there will be no

22 perils to the Tribunal's mandate if the burden under Rule 65 were on the

23 Prosecution not to the Defence. There's a very strongly worded dissenting

24 opinion of Judge hunt which was referred to in footnote 3 of our reply.

25 And there is the Hadzihasanovic, Alagic and Kubura decisions on

Page 40

1 provisional release of 19th of December, 2001, in which the Trial Chamber

2 held that any system of per se detention was contrary to international

3 human rights norms, and that decision hasn't been overturned by the

4 Appeals Chamber. So I would submit that it's not a settled question of

5 law on whom the burden lies. I would leave it to the Trial Chamber in

6 rendering a decision in this matter to set the appropriate test.

7 Just as a general point again before addressing the Prosecution's

8 remarks, I would refer Your Honours to the Tadic judgement of the 7th of

9 May, 1997 where in a different context, admittedly, the Trial Chamber

10 stated that where, in fact, there are two conclusions which are open to be

11 drawn by the Chamber given sentences --

12 THE INTERPRETER: Could Mr. Jones slow down, please.

13 MR. JONES: My apologies. I'll slow down. Where there are two

14 conclusions which can be drawn and which are fairly even balanced, it is

15 not open to the Trial Chamber to draw the conclusion least favourable to

16 the accused. Perhaps it's less a question of a presumption of innocence,

17 but really that that the accused should always have the benefit of the

18 doubt. And essentially, in this case what we're presented with is two

19 possibilities: Either Mr. Oric is the monster that he has been made out

20 to be by the Prosecution or there is, as the documents attest, or there

21 has been a campaign of disinformation and misinformation and that that's

22 the cause of these allegations which are, in fact, baseless, and we submit

23 it's the latter, and clearly the latter, and the documents support that.

24 The point is also not whether or not the accused, Mr. Oric, has

25 been convicted of any crimes. It's not certainly a requirement that he

Page 41

1 has been convicted of a crime before the Chamber can have any regard to

2 any charges. The point is that Mr. Oric is of good character, he has no

3 criminal convictions, neither do any of his alleged associates have any

4 convictions, and therefore his credibility shouldn't be prejudged. The

5 Chamber, I would submit, should approach it with an open mind and consider

6 that Mr. Oric may very well be telling the truth in his affidavit and that

7 these allegations are, as I say, without foundation.

8 Finally, I apologise for these preliminary comments, but I think

9 it's necessary just to set the context, we are also not submitting that

10 all Bosniaks should be treated the same. That's not the point. The point

11 is that in Hadzihasanovic, Mehmed Alagic, and Amir Kubura, Sefer

12 Halilovic, were all granted bail, largely based on the fact that their

13 bail was underwritten or guaranteed by a reliable and cooperative

14 government, namely the Federation of Bosnia and Herzegovina. And we would

15 submit that Mr. Oric should be treated in that same -- in the same

16 category. And the only thing which is coming between Mr. Oric and

17 provisional release are these allegations which the Prosecution have

18 raised. And so that's what we obviously have to turn our minds to.

19 And so there are these two reports which the Prosecution refers

20 to, the 1995 report and the 1996 report. Your Honours, the 1995 report,

21 as I said, is not actually a report at all. It's clearly indicated on its

22 face that it's, as my learned friend Ms. Vidovic said, it's a

23 pre-investigation, if you like. And the point about our response to that,

24 General Jasarevic's rebuttal, if you like, in which he said that those

25 indications were found to be baseless after an extensive investigation

Page 42

1 involving phone tapping and other investigative techniques, his conclusion

2 was that there was nothing to pursue. There was nothing there. And the

3 point is not that General Jasarevic is a private citizen and we should

4 have sought some official rebuttal; the point is that General Jasarevic

5 was the very person who signed off on the 1995 report, so he's the very

6 person to go back to explain what the follow-up was. And his explanation

7 is there was no follow-up because there was no basis for going any further

8 for bringing criminal proceedings. The file, in other words, was closed.

9 And on the 1996 report, let me just turn to that, there also

10 there's a document, and may I just check with my learned friend whether we

11 need to go into closed session with respect to that document or not. We

12 have a document which also indicates that no criminal proceedings were

13 investigated after that investigation by that body, because as the

14 Prosecution has pointed out, this appears to have been an investigation by

15 a different body, namely, the State Security Service. And in fact, we

16 have a document from the same security service in which they, too,

17 concluded that there was nothing to -- no proceedings to institute,

18 nothing to follow up upon.

19 And then finally, Your Honours, we have a document, and this is a

20 document which we will need to go into private session, which speaks to

21 this issue of misinformation and disinformation. So if we might just pass

22 now into private session briefly and I can address you as to that.

23 [Private session]

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4 [Open session]

5 MR. JONES: Yes, Your Honour. The Prosecution has sought in

6 discussing the guarantees offered by the government of Bosnia and

7 Herzegovina to drive a wedge between what the government is willing to do

8 and what the government is able to do. Well, with respect, Your Honour, a

9 government doesn't come forward and make frivolous guarantees which it

10 doesn't consider itself to be in a position to fulfill. The government of

11 the Federation of Bosnia-Herzegovina is only giving those guarantees with

12 the knowledge that it's able to carry them out. And it's ironic that, in

13 fact, these fears of intimidation of witnesses which the Prosecution is

14 drawing attention to all allegedly stem from investigations carried out by

15 Bosnian organs; and yet, the Bosnian state, the Federation, in any event,

16 is coming here today and saying that they essentially don't have, don't

17 share those fears, that in fact it would be perfectly workable and

18 perfectly acceptable for Mr. Oric to be bailed. And the Federation of

19 Bosnia and Herzegovina is, one might say, the oldest friend of this

20 Tribunal, in that it has cooperated from the beginning, has always carried

21 out arrests of its own citizens from the beginning, has always cooperated

22 with the service of documents -- with providing documents to this Court.

23 And so, Your Honour, I would submit that the most fundamental

24 consideration possibly is the fact that the government is willing to offer

25 these guarantees which in fact belies all of the submissions the

Page 46

1 Prosecution has made about these various risks and concerns which are out

2 there.

3 And finally, Your Honour, actually just on the letter which was

4 produced today.

5 JUDGE ROBINSON: Please go ahead.

6 MR. JONES: Yes, thank you, Your Honours. Finally just with

7 respect to this letter produced today from (redacted), firstly, there's no

8 allegation there that --

9 MR. WITHOPF: Sorry, can we please ask for closed session.

10 MR. JONES: My apologies.

11 [Private session]

12 (redacted)

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15 [Open session]

16 MR. JONES: Yes, thank you, Your Honour. In summary, then my

17 submission is that Mr. Oric is a safe bet, if you like, for provisional

18 release. You can be satisfied that if released he wouldn't pose a danger

19 to any witnesses, he wouldn't pose a danger in terms of intimidation of

20 witnesses, and would certainly not seek to flee. And unless I can assist

21 you further, those would be my submissions.

22 JUDGE MAY: I don't know if Mr. Halilovic you want to add anything

23 since some comments were made by the Prosecution.

24 MR. HALILOVIC: [Interpretation] Your Honours, the government of

25 the Federation based its written guarantee on the previous guarantee and

Page 48

1 assessment of the local police headed by Commissioner Divkovic so that

2 with a reference to whether the government can provide these guarantees,

3 the government has undertaken to do so in writing and is prepared to

4 provide any further guarantees that the Trial Chamber may require.

5 JUDGE ROBINSON: Was the government aware of the two reports at

6 the time when it made -- gave the guarantee?

7 MR. HALILOVIC: [Interpretation] The government was not aware of

8 these two reports, but this does not mean that the local police did not

9 have these reports available to them.

10 JUDGE MAY: Very well. Thank you.

11 The Trial Chamber will consider this matter and give its decision

12 in due course in writing.

13 Yes.

14 MR. WITHOPF: Your Honour, if I could just get one minute --

15 JUDGE MAY: We've heard everybody, Mr. Withopf.

16 MR. WITHOPF: I only would like to respond to the annex which has

17 been handed over immediately prior to today's oral hearing. Are we still

18 in private session?

19 JUDGE MAY: No, we're not. We should go into private session to

20 do it.

21 [Private session]

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19 --- Whereupon the Motion Hearing adjourned

20 at 4.30 p.m.

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