Page 142
1 Thursday, 20 September 2001
2 [Motion Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 10.04 a.m.
6 JUDGE MAY: Yes. Let the Registrar call the case.
7 THE REGISTRAR: Good morning, Your Honours. Case number IT-00-39
8 & 40-PT, the Prosecutor versus Momcilo Krajisnik and Biljana Plavsic.
9 JUDGE MAY: The appearances, please.
10 MR. TIEGER: Good morning, Mr. President; good morning, Your
11 Honours. Alan Tieger on behalf of the prosecution appearing with
12 Mr. Fergal Gaynor.
13 MR. BRASHICH: Deyan Brashich for the Krajisnik Defence. Good
14 morning, Your Honours.
15 JUDGE MAY: The application today that the Trial Chamber is
16 dealing with is an application for provisional release by Mr. Krajisnik.
17 We have in front of us the motion and response, we have a number of
18 guarantees from Republika Srpska, we have an undertaking from
19 Mr. Krajisnik himself, an undertaking from Mr. Brashich, and we also have
20 statements from the patriarch and from Mr. Kostunica.
21 Now, Mr. Brashich, is it right that there is a representative of
22 the government here today?
23 MR. BRASHICH: Yes, Your Honour, there is. The only other thing
24 which was filed just last night is two addendums. One is a guarantee from
25 the Federal Republic of Yugoslavia, and the second addendum is a statement
Page 143
1 that, if necessary, the Republic of Serbia will add its own guarantee,
2 even though it is a constituent part of the Federal Republic of
3 Yugoslavia.
4 The only other assurances that is also before the Court is that I
5 have been authorised by the immediate members of Mr. Krajisnik's family
6 that real property and improvements, both within the Federation and the
7 Republic of Srpska would -- deeds to those real properties and
8 improvements, deeds to those properties, would be signed in blank and
9 lodged with the registrar and would be forfeited in the event that
10 Mr. Krajisnik does not fulfil the terms and conditions of his provisional
11 release or return back to the Tribunal for trial. In effect, the family
12 would be homeless and without a roof over their heads should Mr. Krajisnik
13 not return.
14 JUDGE MAY: Mr. Brashich, I wonder if it might be of assistance if
15 we now read the motion which you -- the addendum which you put in,
16 together with the guarantee.
17 MR. BRASHICH: Yes, Your Honour.
18 JUDGE MAY: If you would sit down, we'll read that and then we
19 will hear your submissions.
20 [Trial Chamber confers]
21 JUDGE MAY: We've read that. Mr. Brashich, now, what would you
22 like to say?
23 MR. BRASHICH: Your Honour, the Krajisnik Defence urges
24 provisional release for Mr. Krajisnik. I think certain factors weigh in
25 the favour of provisional release. Mr. Krajisnik was not aware of the
Page 144
1 sealed indictment. Had he known, he would have volunteered and
2 surrendered voluntarily. Mr. Krajisnik has been incarcerated for
3 approximately a year and a half. Mr. Krajisnik is willing to be
4 provisionally released, should the Court favour the request, either in the
5 Republic of Srpska or in the Federal Republic of Yugoslavia, specifically
6 in Belgrade, where his brother resides and has an apartment.
7 Mr. Krajisnik has, in the past, cooperated with the Tribunal, and
8 Mr. Krajisnik met, when he was the President of the Assembly, or the
9 Parliament, with Madam Arbour. At the present time, it is at the
10 direction of his attorney, myself, that he is not cooperating because of
11 the pending indictment.
12 The Republika Srpska - and its representative is here to address
13 the Court - is in the process of changing its stance with regard to
14 cooperation.
15 JUDGE ROBINSON: Mr. Brashich, could you explain what you meant
16 when you said that in the past, he had cooperated with the Tribunal, with
17 the former Prosecutor, Madam Arbour. What was the extent of that
18 cooperation?
19 MR. BRASHICH: He met with her, Your Honour, and thereafter he met
20 with members of her staff and gave an extensive interview, which was
21 taped.
22 JUDGE ROBINSON: That was the extent of the cooperation?
23 MR. BRASHICH: Yes, Your Honour. That's all that was asked of
24 him. In his position as the President of the Assembly, he had no
25 executive power subsequent to the Dayton Accord. And with leave of the
Page 145
1 Court, I should like at this time to ask whether or not Mr. Sinisa
2 Djordjevic, a representative of the President, Mr. Ivanic, could address
3 the Court.
4 JUDGE MAY: Yes.
5 MR. BRASHICH: Should he --
6 JUDGE MAY: No. From counsel's bench.
7 MR. DJORDJEVIC: [Interpretation] Your Honours of the Trial
8 Chamber, dear colleagues, my name is Sinisa Djordjevic. I am the adviser
9 of the President -- Prime Minister of the Republika Srpska for relations
10 with the Tribunal in The Hague. I am a lawyer by profession. I have come
11 before you here today, your distinguished excellencies and my learned
12 colleagues, to convey to you the position of the government of Republika
13 Srpska with respect to the request made by Mr. Momcilo Krajisnik for
14 provisional release until the beginning of his trial.
15 I have been authorised to convey the fact that the Prime Minister,
16 Mr. Ivanic, adheres fully to the statement he gave on the 27th of August
17 this year, and the component part of that statement is a special guarantee
18 issued by the government of Republika Srpska, which you yourselves have
19 already received, so there is no need for me to expound it further.
20 Furthermore, the government of Republika Srpska, which I represent
21 here, is well-apprised of the fact that there is a conclusion made by this
22 august Tribunal with respect to the fact that Republika Srpska was not
23 sufficiently cooperative -- was not sufficiently disposed to cooperate
24 with The Hague Tribunal. I should like to ask you that you take my
25 position with respect to the government that I represent today and assess
Page 146
1 it in those terms. It is -- the fact is exact that the governments
2 hitherto of Republika Srpska were indeed not sufficiently cooperative with
3 The Hague Tribunal. However, I should like now, if I may, to say a few
4 words about that, to say what the new government has in fact done in
5 relation to The Hague Tribunal. Whether it is sufficient or not, you
6 yourselves will assess.
7 First and foremost, on the 23rd of March this year, a commission
8 was set up, or rather a department attached to the Justice Ministry of
9 Republika Srpska, for relations with The Hague Tribunal. The department,
10 seven days ago, grew to become a bureau, a full-fledged bureau of
11 Republika Srpska for its relations with The Hague Tribunal
12 as a specialised body which in future will not be dependent upon changes
13 and vagaries in politics and policies of other structures in Republika
14 Srpska, depending on the change of government and authority. We are also
15 well aware of the fact that this government has put forward a draft for
16 cooperation with The Hague Tribunal and --
17 JUDGE ROBINSON: I'm sorry. Before you continue, would you just
18 explain what is the precise function of this new bureau which you say has
19 been set up and apparently, from what you say, has a measure of
20 independence.
21 MR. DJORDJEVIC: [Interpretation] Yes, Your Excellency. Let me
22 explain the difference. First of all, it was a fact that depending on the
23 change in government structures, there was a change in the individuals and
24 their way of thinking with respect to the country's relationship towards
25 the Tribunal. It was our idea to set up this special body and organ
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1 which, for the moment and temporarily, and I emphasise only temporarily as
2 attached to the Justice Ministry of Republika Srpska, but that it should
3 take on a new function, especially in view of the fact that it will be
4 composed of a team of experts, of individuals who are not politically
5 oriented and tinged, so that they would be able to prevent, depending on
6 their own political interests, any relationships with the Tribunal. They
7 would not be able to do that any longer.
8 Do you wish me to say anything else? Does that satisfy you, Your
9 Honour? Shall I continue?
10 JUDGE ROBINSON: Yes, but I still am not clear as to what this
11 bureau is supposed to do. You have told me about its members, but what is
12 it designed to do in its relationship with the Tribunal?
13 MR. DJORDJEVIC: [Interpretation] This bureau was established by
14 the bill and law for cooperation with the Tribunal in The Hague, and it is
15 expected to be adopted today, and at the latest tomorrow, in fact. The
16 draft law envisages that it is the Bureau which is to be the protagonist
17 of cooperation with the Tribunal, and this in practical terms means that
18 in future, all contacts and requests made by the Tribunal, its demands,
19 will pass through a filter, which is the Bureau. The Bureau of Republika
20 Srpska will be this filter.
21 JUDGE ROBINSON: Thank you. I understand. You may continue.
22 MR. DJORDJEVIC: [Interpretation] Furthermore, as far as the
23 activities of Republika Srpska itself is concerned, you are well aware of
24 the fact that this present government, whose representative I am myself
25 and which issues guarantees for Mr. Krajisnik today, has put on its agenda
Page 149
1 finally the law on cooperation with the International Tribunal in The
2 Hague.
3 I think -- let me also say the following: Regardless of whether
4 justified or not justified reasons which speak of the fact whether this
5 law is necessary or not, we consider that this particular law or act or
6 bill will have full legal force and we give it priority importance. We
7 give priority and importance to cooperation with the Tribunal, and with
8 the enactment of this law, we are duty-bound to fulfil this relationship
9 of cooperation with the Tribunal.
10 In this regard, and in conclusion, let me say the following: I
11 should like to convey the apologies of Mr. Mladen Ivancic, the prime
12 minister of Republika Srpska - Ivanic, I'm sorry - who personally signed
13 the guarantee on behalf of the government, and I should like to explain
14 why he has not been able to attend this august Tribunal. The reason is
15 that the premier today in the Assembly of Republika Srpska, as the
16 authorised person to put forward the law on cooperation with the Tribunal,
17 is duty-bound to be there and to see if there are any different opinions,
18 but his job is to achieve our goal and aim, together with the other
19 Assembly members, and that is to ensure that the bill is turned into a law
20 today or tomorrow.
21 Thank you for your attention.
22 JUDGE MAY: Thank you, Mr. Djordjevic. You may take it that as
23 far as the prime minister is concerned, we accept, of course, that there
24 was no discourtesy intended by the fact that he is not here, and you are
25 well able to represent him.
Page 150
1 Yes, Mr. Brashich.
2 MR. BRASHICH: Mr. Djordjevic has just handed me the originals of
3 the guarantee and his power of attorney, which I will lodge thereafter.
4 Your Honour, I think I've said everything that I can on behalf of
5 my client. We have seen that three individuals who have been given
6 provisional release have returned to the seat of the Tribunal. We have
7 seen an evolvement of the way that the Republika Srpska perceives of this
8 Court. We also have seen that Mrs. Plavsic has returned to Belgrade.
9 The only other assurance that I want to give to the Chamber, and
10 perhaps this should come from Mr. Krajisnik's own lips, is that he has
11 respect for the Tribunal, he will respect the terms and conditions, and
12 that he has a host of reasons why it is imperative for him to return for
13 trial. Should he fail to do so, he would have violated the trust that the
14 patriarch had in him; he would become a pariah within his own people.
15 Should he not return, he would have violated the trust of President
16 Kostunica and his government. Should he fail to return, he would not be
17 able to vindicate his name and his actions during the period of time when
18 he was in government. Should he fail to return, he would have violated
19 his own family and rendered them homeless. Should he fail to return, he
20 would have violated his word to this Court and again would make him
21 a pariah within his own people. I'm not as eloquent as Mr. Krajisnik
22 was --
23 JUDGE MAY: Just a moment.
24 [Trial Chamber confers]
25 JUDGE MAY: Yes, Mr. Brashich.
Page 151
1 MR. BRASHICH: There was another thing that Mr. Krajisnik told me
2 yesterday afternoon. I had placed my word, should he breach that word,
3 that promise to return, and the conditions of his provisional release, no
4 other attorney would represent him.
5 I am not as eloquent as Mr. Krajisnik was yesterday afternoon, and
6 I don't know whether the Court would wish to hear from Mr. Krajisnik's own
7 lips his assurances and warranties.
8 JUDGE MAY: Mr. Brashich, you put it very fully. We've heard your
9 submissions. You've put them fully before us.
10 MR. BRASHICH: Thank you, Your Honour. Then I rest. Thank you.
11 JUDGE MAY: Yes, Mr. Tieger? When you're addressing this
12 question, would you have in mind, in particular, the amount of time which
13 this accused has been in custody, and the possible date for trial, which
14 is a matter of concern, of course, to the Trial Chamber.
15 MR. TIEGER: Yes, Your Honour. Let me begin with the simple
16 legal --
17 THE INTERPRETER: Microphone, please.
18 MR. TIEGER: I'm sorry. Let me begin by noting that it is the
19 accused's burden to establish that the conditions necessary for granting
20 of this motion are satisfied, and it is a substantial burden indeed.
21 There may come a time when the guarantees of Republika Srpska and the
22 other assurances offered by the Defence are sufficient to constitute a
23 significant factor in the Court's consideration of whether that burden has
24 been discharged, but it is clear that that date has not yet arrived. We
25 have heard repeatedly about draft legislation, about actions that will be
Page 152
1 undertaken in the future. In this particular case, we are dealing with
2 legislation that has not been passed to establish a bureau, the
3 effectiveness of which we have no way of knowing about.
4 In light of that, all we can look to is the history of cooperation
5 and apprehension to determine whether or not those guarantees have value.
6 And the Court has already made a determination, as have other Chambers,
7 about the weight that can be given to that history and about the
8 implications of that.
9 Let me also speak briefly to some of the other assurances that
10 were offered by the accused. Mr. Brashich made reference to the
11 declarations of Patriarch Pavle and to the declarations of Mr. Kostunica.
12 I note in that regard that the patriarch was a signatory to a declaration
13 that asserted that the indictment of Mr. Karadzic and the consequent
14 pressure by the international community for his apprehension were
15 illegitimate and had nothing to do with international law.
16 I noted in Mr. Kostunica's declaration that he, among other
17 things, offered, in effect, a character reference for Mr. Krajisnik,
18 asserting that, based on his dealings with Mr. Krajisnik, he was satisfied
19 that he was a man of integrity and his word could be trusted. First of
20 all, I note that the context in which that impression was formed is surely
21 different from one in which the accused faces a substantial period of
22 incarceration, a substantial risk of incarceration, when being tried by an
23 institution which he has previously asserted lacked partiality. I think
24 those are factors that militate strongly against willing submission to
25 this institution's authority.
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1 Furthermore, I noted that Mr. Kostunica referred to the, quote,
2 "brutal" apprehension of Mr. Krajisnik, a characterisation that I found,
3 at a minimum, insensitive in the context in the war in former Yugoslavia
4 and the charges which this accused faces. I also noted that it was not
5 the first time that such reference was made by Mr. Kostunica, who referred
6 previously to the brutal arrest and went on to say, as quoted, "It is
7 crystal clear that the War Crimes Tribunal is neither a legal, nor a
8 judicial, nor an international institution." He went on to say it is
9 merely a tool and to characterise it as being a weapon in a war against
10 Serbs. I think those -- reliance on such references is also a matter of
11 some significance to the Court.
12 I further noted that Mr. Kostunica promoted the notion of
13 Mr. Krajisnik's release as having beneficial impact on relationships
14 between this institution and the Bosnian Serbs, a factor which I would
15 suggest, if relevant, is dramatically outweighed by the adverse impact on
16 the millions of victims of the crimes committed during this war, on the
17 victims who risked their lives by coming to testify before this
18 institution, and on the SFOR personnel who risk their lives in efforts to
19 apprehend outstanding suspects.
20 Mr. Djordjevic correctly noted in his introductory remarks that
21 the Court previously determined that the history of cooperation by
22 Republika Srpska was insufficient to satisfy the Court that it could rely
23 that the accused would be apprehended if he fled. Today, in contrast to
24 the situation when the Court made that determination, the risks of flight
25 by the accused are exponentially greater because of the length of time
Page 155
1 involved between now and trial, in contrast to the motion that was
2 previously made, and the assurances, the safeguards, that can be offered
3 are correspondingly less. For that reason, Your Honours, the Prosecution
4 vigorously opposes this motion and submits that it should be denied.
5 JUDGE MAY: Well, you haven't dealt -- we'll hear you in a moment,
6 Mr. Brashich.
7 You haven't dealt with the matter I raised, which is this: You
8 refer to the length of time between now and trial. Eighteen months this
9 accused has been in custody already. Now, that is a matter of concern to
10 any Tribunal, any judicial body. He's in custody and he hasn't been
11 tried. And it's a factor we are going to have to consider.
12 When do you anticipate this case will be ready for trial?
13 MR. TIEGER: Your Honour, I understood from the Court that the
14 matter was set for trial in February. I understand that to be the current
15 date. Let me -- I apologise for not addressing the point the Court raised
16 earlier. The question of the length of detention has been addressed in
17 international law in various contexts. It has been found, as I understand
18 it, to be related to the complexity and magnitude and gravity of the
19 case. In circumstances -- in cases involving circumstances far less
20 complex - because this is indeed, as the Court is aware, a case of unusual
21 complexity - and of lesser magnitude, to be certain, the period of
22 acceptable pre-trial detention has ranged from 19 months to five years,
23 and that is contained in a previous submission by the Prosecution.
24 Certainly no one can be happy with any period of pre-trial detention, but
25 sometimes it is a necessary concomitant of the case, and that is the fact
Page 156
1 here. In addition, we have been moving, as the Court is aware, as
2 vigorously as possible toward getting this matter to trial, and the Court
3 has been pushing that as effectively as it can, I believe.
4 JUDGE MAY: Mr. Tieger, the Prosecution, then, will be ready for
5 trial in February?
6 MR. TIEGER: Your Honour, as I stated before during our Status
7 Conference, we have had that in mind since the Court first raised that
8 date. We are doing everything humanly possible to make that date. That
9 is the date we have in mind, based on what the Court has told us. That is
10 what we are working toward, and we are doing everything possible to
11 satisfy that objective by the Court and by us as well.
12 JUDGE MAY: Thank you.
13 JUDGE ROBINSON: Mr. Tieger, would you like to comment on the
14 offer of guarantees from the Republic of Serbia in terms identical to
15 those which were offered and accepted by this Chamber in respect of
16 Mrs. Plavsic? In relation to Mrs. Plavsic, a significant factor was the
17 fact of her voluntary surrender. In that regard, perhaps you'd like to
18 comment on the submission from the Defence that, in the case of
19 Mr. Krajisnik, there was a sealed indictment, of which he was not aware,
20 and that that was a significant factor explaining why he did not surrender
21 voluntarily.
22 MR. TIEGER: Yes, Your Honour. You raise several questions. Let
23 me take them serially. First of all, with respect to the question of
24 Mr. Krajisnik's apprehension, the Prosecution has never attempted to
25 assert or to characterise that apprehension as equivalent to flight. What
Page 157
1 is true, however, is that Mrs. Plavsic did voluntarily surrender. That
2 was a factor that could be considered positively by this Chamber, and
3 was. That factor is not available to Mr. Krajisnik, for circumstances
4 that have been outlined. We are not attempting to transform this into a
5 negative factor; however, we reject any attempt by the Defence to
6 transform it into a positive factor. It is not. That positive factor
7 existed for Mrs. Plavsic. It does not here.
8 Insofar as the guarantees are concerned, Your Honour, I just
9 received them approximately five minutes before the hearing began. I read
10 them, as Your Honours did, in the course of this proceeding. I'm slightly
11 hesitant to comment on the precise nature of those guarantees, based on a
12 superficial reading. However, I should point out that my understanding is
13 that the guarantees in front of the Court today come from the Federal
14 Republic of Yugoslavia. Mrs. Plavsic's guarantees came from the Republic
15 of Serbia. The question of whose authorities, whose hands-on authorities
16 would be responsible, is one which is raised by that distinction.
17 In addition, I am advised that during the Prosecutor's last visit
18 to Belgrade, she was informed by federal authorities that they had not
19 passed draft legislation in connection with cooperation with the Tribunal,
20 and until such time as such legislation was passed, they would be unable
21 to offer assurances that arrests would be effected. So although I have
22 not had a full opportunity to either study these personally or have them
23 reviewed by people with greater expertise in the area than I possess, it
24 appears to me that they are not the same assurances that this Court relied
25 on in making a determination within Mrs. Plavsic's case.
Page 158
1 [Trial Chamber confers]
2 JUDGE MAY: We will check that, Mr. Tieger. We can compare the
3 two.
4 MR. TIEGER: Your Honour, if I may make one final point.
5 JUDGE MAY: Yes.
6 MR. TIEGER: And that is, I think these matters must be determined
7 on a case-by-case basis. I know I'm not telling the Court anything new in
8 saying that, but I mention that because Mrs. Plavsic's situation does not
9 necessarily lend itself to a simple checklist of similarities. There were
10 a variety of subjective factors and subtle nuanced factors that led the
11 Prosecution to withdraw opposition to her release in that case. And
12 although I can't recite the precise history and all the circumstances that
13 led to that, I think the Court was aware of those as the case progressed,
14 to some extent relied on the Prosecution to make its determination based
15 on the many factors known to it and the information available to it, which
16 could not possibly be recited in a single court hearing, and that was the
17 basis for the Prosecution's position in that case. And I think the
18 Chamber needs to keep in mind the variety of circumstances which can lead
19 a court to find that the substantial burden by the Defence has been met in
20 its application for provisional release.
21 JUDGE MAY: Thank you, Mr. Tieger.
22 MR. TIEGER: Thank you, Your Honour.
23 JUDGE MAY: Yes, Mr. Brashich.
24 MR. BRASHICH: Your Honour, very briefly. The February date,
25 while this has been discussed at Status Conferences, we're still getting
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1 documents and translations. We still haven't got all of them. I don't
2 see February as a feasible trial date. We have filed -- the Defence has
3 filed jointly a response to the conditional pre-trial brief, so I do not
4 believe that February is a realistic date.
5 Two, I do not see the difference and the nuances that the
6 Prosecution sees between Mr. Krajisnik and Mrs. Plavsic. Mrs. Plavsic
7 enjoyed a far greater role in the government of the Republika Srpska than
8 did Mr. Krajisnik.
9 I don't believe that your question, Judge Robinson, was answered
10 by Mr. Tieger. Just a moment, Your Honour. And, of course, the
11 presumption of innocence has attached to Mr. Krajisnik.
12 Finally, the positions taken by politicians in pronouncements are
13 one thing; reflections upon a person's character are a totally different
14 thing. Mr. Krajisnik is not to be tarred by any opinion that
15 Mr. Krajisnik may have had.
16 Finally, the arrest of --
17 JUDGE MAY: As that reads, you say the opinion Mr. Krajisnik may
18 have held?
19 MR. BRASHICH: Well, the opinion that Mr. --
20 JUDGE MAY: I see what you mean. You're saying the fact that he
21 may have held an opinion does not affect his character. That's the
22 point. Yes.
23 MR. BRASHICH: And finally, Your Honour, if you recall, there was
24 all that correspondence between SFOR and my client prior to his arrest and
25 then his arrest. One wonders, why was Mrs. Plavsic told that there was an
Page 161
1 indictment while Mr. Krajisnik was not? And why was Mrs. Plavsic told
2 eight months later after the indictment had been filed that she was an
3 accused, and not my client? Thank you, Your Honour.
4 MR. TIEGER: I'm sorry, Your Honour. If I can briefly respond to
5 those comments. Number one, it is not the Prosecution's position that
6 Mr. Krajisnik's position in government was far less than Mrs. Plavsic's.
7 JUDGE MAY: That's really just a matter for argument at trial.
8 MR. TIEGER: I appreciate that, but to the extent that counsel
9 raised it, I didn't want that to go unanswered.
10 Number two - and again, I don't want to belabour this. I'm sure
11 the Court knows it - the presumption of innocence has a significant role
12 in a proceeding. Its invocation here --
13 JUDGE MAY: Mr. Tieger, you needn't address us on those points.
14 MR. TIEGER: Okay. Thank you, Your Honour.
15 JUDGE MAY: We'll consider these matters, and we will give a
16 decision in writing. The Court will adjourn.
17 --- Whereupon the Motion Hearing
18 adjourned at 10.53 a.m.
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