Page 63

1 Monday, 19 July 2004

2 [Motion Hearing]

3 [Open session]

4 --- Upon commencing at 3.20 p.m.

5 JUDGE ORIE: Mr. Registrar, would you please call the case.

6 THE REGISTRAR: Thank you, Your Honour. The case, IT-04-74-PT,

7 the Prosecutor against Jadranko Prlic, Bruno Stojic, Slobodan Praljak,

8 Milivoj Petkovic, Valentin Coric, and Berislav Pusic.

9 JUDGE ORIE: Thank you, Mr. Registrar.

10 There's no need to say good afternoon again, but I would like to

11 have the appearances again, that is, for reasons of the record.

12 Mr. Scott, you're representing the Office of the Prosecution, with the

13 same team as I saw before during the Status Conference.

14 MR. SCOTT: Yes, Your Honour, that's correct. Thank you.

15 JUDGE ORIE: Then as far as the accused are concerned, Defence is

16 concerned, Mr. Olujic, you are there as counsel for Mr. Stojic. Mr. Par

17 and Mr. Salahovic are there as counsel for Mr. Prlic. Then Mr. Kovacic

18 and Ms. Pinter are there to defend Mr. Praljak. Ms. Alaburic is there as

19 Defence counsel for Mr. Petkovic. Mr. Jonjic is there as Defence counsel

20 for Mr. Coric, and Mr. Skobic, you're there for the defence of Mr. Pusic.

21 Then we have two -- I must say four persons who are not present.

22 There seems to be a problem with the translation with one of the

23 representatives of -- I do not know yet which government. Yes.

24 For this hearing, a hearing on six motions for provisional

25 release, the governments of Bosnia and Herzegovina and Croatia have been

Page 64

1 invited. May I ask you to introduce yourself. Perhaps first on my

2 right-hand side.

3 Could you please put on the microphone.

4 MR. HALILOVIC: [Interpretation] Your Honours, I am Mevludin

5 Halilovic, minister of the interior of the Federation of Bosnia and

6 Herzegovina, and I'm the authorised representative of the government of

7 the Federation of Bosnia and Herzegovina.

8 JUDGE ORIE: Thank you, Mr. Halilovic. And you are accompanied

9 by?

10 MS. KRISTO: [Interpretation] Your Honours, I'm Borjana Kristo, the

11 federal minister of justice, and I am going to orally present the

12 guarantees that the government has granted at its sessions.

13 JUDGE ORIE: Thank you very much, Mr. Halilovic and Ms. Kristo.

14 I then guess that you're representing the government of Croatia.

15 Could you please introduce yourself.

16 MR. MULJACIC: Good afternoon, Your Honour. My name is Jaksa

17 Muljacic, assistant minister of justice, representing here for the Status

18 Conference for provisional release in the accuseds' matters.

19 JUDGE ORIE: Thank you, Mr. Muljacic. And you are accompanied by?

20 Or you are in the company of?

21 MR. KRNIC: Your Honour, I'm Croatian Ambassador Frane Krnic, also

22 authorised to represent the interests of the Republic of Croatia.

23 JUDGE ORIE: You now registered your presence in a written

24 message. Thank you, Mr. Muljacic and Mr. Krnic.

25 We will now -- I first would like to inform you that the Bench is

Page 65

1 not complete. The decision on provisional release will be taken by three

2 Judges. The Judges assigned to the cases of all six of you are Judge Liu,

3 who is president of Trial Chamber I, who is sitting to my right, who's

4 Presiding Judge, although I'll preside over this hearing, and

5 Judge El Mahdi, who is, for urgent reasons, not present, but who has read

6 all the written submissions and who will of course read the transcript of

7 this hearing and make himself acquainted with whatever will be said this

8 afternoon.

9 As far as I'm concerned, my name is Alphonse Orie. I'm the judge.

10 But we have been in the hearing already once before. That was at the

11 Initial Appearance.

12 The absence of Judge El Mahdi is under Rule 15 bis of the Rules

13 of -- this Tribunal's Rules of Procedure and Evidence.

14 This Chamber has received a motion by the Prosecution which is a

15 confidential motion, but with the consent of Mr. Scott, I can say in

16 public that this motion aims at deferral of the decision to be taken on

17 the six motions for provisional release. If there would be any further

18 argument needed on that, we do that in private session.

19 We have carefully examined and studied all your submissions and a

20 lot of attachments to it, and I'd like to remind you that there's no need

21 to repeat anything that has been said in these written submissions. The

22 scope, therefore, today of this hearing is to see whether there are any

23 new arguments which the -- you would like to bring to the attention of

24 this Chamber; that is, argument in excess or in addition to what has

25 already been stated in the written submissions.

Page 66

1 You, Mr. Praljak, Pusic, Prlic, Coric, Stojic, and Petkovic will

2 have an opportunity to address the Chamber briefly if you would like to do

3 that on the issue. If there's anything you would like to add to what

4 counsel then has already said. May I remind you that you are then

5 supposed to strictly limit yourself to the issue at stake at this very

6 moment.

7 Let me first give an opportunity to the Defence of Mr. Prlic to

8 address the Chamber with any additional arguments. Mr. Salahovic or

9 Mr. Par. Who is ...? Yes, Mr. Salahovic.

10 MR. SALAHOVIC: [Interpretation] Thank you, Mr. President.

11 Your Honours, the Defence has initiated this procedure and applied for the

12 provisional release of Jadranko Prlic until the beginning of trial. Allow

13 me to provide you just with a general overview of our application.

14 We started from the position that the accused Jadranko Prlic is in

15 the pre-trial detention and that this pre-trial detention is of a special

16 nature and that it has lost it for a certain period of time. We are also

17 starting from the position that the accused may be provisionally released

18 until the beginning of trial and that he is entitled to have that right

19 granted to him.

20 At the same time, it is certain that this right of his is in your

21 hands. It is your discretional right and it is founded and stems from the

22 Statute of the Tribunal, from its Article 65 [as interpreted], and the

23 mission that has been given to you.

24 As Defence counsel for the accused, we don't have any doubts

25 whatsoever that it is up to us and to the accused to convince you of two

Page 67

1 things. Firstly, that the accused is not going to abuse this right; and

2 secondly, that he is worthy of your trust. We fully appreciate, although

3 this is entirely in the hands of every Trial Chamber, that in addition to

4 that, the Defence has to achieve a standard of proof. In all that, in

5 addition to relying on the law, we also rely on the case law of this

6 Tribunal. The case law of this Tribunal has shown that this Tribunal

7 fully takes into account all the internationally adopted standards

8 regarding the rights of the accused.

9 A number of accused have been provisionally released until the

10 beginning of their respective trials, and this is still the case. A

11 number of decisions taken by this Tribunal has put the interests of the

12 accused first, bearing in mind also that their decision should not be

13 prejudicial and detrimental for the future of the trial.

14 That is why we deem that it is very important for us to mention

15 the case of Ademi, in which the Trial Chamber has decided as follows: The

16 Trial Chamber has to interpret Rule 65, taking into account the facts of

17 every particular case, but also the very specific situation that an

18 individual is being put in. In addition to that decision, I would like to

19 say something else. When this Rule is interpreted, one has to take into

20 account the general rule of proportionality. The procedural measures

21 should never be excessive if it suffices to use a lesser measure, then a

22 lesser measure should be used.

23 And finally, detention is not punishment. Its nature is not

24 punishment. And since the accused enjoys the right to be considered

25 innocent, Your Honours, we, as Defence counsel, are not convinced that it

Page 68

1 is necessary or indispensable to keep Jadranko Prlic in detention until

2 the beginning of trial.

3 In addition to that, we are absolutely convinced that it would be

4 appropriate for him to await trial on provisional release. It would be

5 appropriate because such a decision of yours would only establish that

6 Jadranko Prlic will not abuse this right. It is also appropriate because

7 everybody has to believe in the justice of this Court, because it's the

8 foundation of every trial.

9 In addition to that, Rule 22 -- 20 of the Tribunal puts the rights

10 of the accused first, and the need to protect victims and witnesses is

11 second. It is also appropriate, Your Honours, because such a decision

12 that you might take may -- will not be unjust in anybody's eyes. It will

13 not be unjust at the detriment of the Defence, of the victims, of the

14 peoples of Bosnia-Herzegovina, or the international community in general.

15 And finally, Your Honours, I would like to mention and emphasise a

16 principle, the principle that would be the guideline for the Defence

17 during the trial. Despite the burden that all the parties in the trial

18 bear as their responsibility, there is no need to behave in any other way

19 but bona fide. As far as the Prosecutor's reply is concerned, I can say

20 only this: One should not ignore the specific situation that every

21 individual is and that one should rely only on the evidence whose

22 reliability is not questionable.

23 And finally, the dual approach should be ruled out, especially the

24 automatic approach, the administration of justice.

25 And finally, Your Honours, I would like to give the floor to my

Page 69

1 colleague Mr. Par who is going to mention the specific nature of the

2 indictment. He will take the time that he has left into account and he

3 will try to use it as efficiently as possible.

4 JUDGE ORIE: Before we do so, Mr. Salahovic, first of all, I

5 invited you not to deal with matters that are already clear on paper. Am

6 I wrong that the attention you've asked us to pay to the Ademi case that I

7 find already in paragraph 7 of your submission for provisional release,

8 isn't it true that we find there already a long quotation from that case,

9 from the Ademi case?

10 MR. SALAHOVIC: [Interpretation] Thank you, Your Honour. I have

11 understood, and of course you are not mistaken. However, I have taken the

12 liberty, taking into account that this procedure is the procedure against

13 the accused. This is our first appearance before you, to provide general

14 principles of our application. In this, we have also taken into account

15 your decision. I apologise to you if we have mentioned this decision in

16 our written submission.

17 JUDGE ORIE: It's automatic. I just wanted to remind you that we

18 would very much like to hear additional argument. But since you kept it

19 quite short, there's no real problem.

20 When you refer to Article 65 of the Statute, may I take it that

21 you refer to Article 65 -- to Rule 65 of the Rules of Procedure and

22 Evidence?

23 MR. SALAHOVIC: [Interpretation] Thank you, Your Honour. I believe

24 I have. I've mentioned Rule 65 of the Rules and Article 20 of the

25 Statute. We can double-check if you wish.

Page 70

1 JUDGE ORIE: It was translated to us as "Article 65" of the

2 Statute. But that has been clarified now. Then I have one final question

3 before I give an opportunity to your colleague to address the Chamber.

4 You said in the Statute it's the rights of the accused first and, for

5 example, rights of victims only second. Is that your interpretation of

6 the sequence in the Statute, or are there any other reasons to assume that

7 what comes first is most important?

8 MR. SALAHOVIC: [Interpretation] Thank you, Your Honour. I really

9 did say that, but this is just one part. And this is just what I read in

10 a decision of this Tribunal. And I believe that this would be a short way

11 for me to say what I wish to say. And if you want me to, I can even quote

12 the decision that I was referring to.

13 JUDGE ORIE: Yes. If you would please give me the decision so

14 that we can check it.

15 MR. SALAHOVIC: [Interpretation] If you would just bear with me for

16 a second, I would like to consult my colleague. This is a decision taken

17 by this Tribunal in the Radoslav Brdjanin and Momir Talic case, and the

18 decision was taken on the application filed by Momir Talic on the 28th of

19 March, 2001.

20 JUDGE ORIE: Yes. Thank you very much, Mr. Salahovic.

21 Mr. Par.

22 MR. SALAHOVIC: [Interpretation] Thank you.

23 MR. PAR: [Interpretation] Thank you, Your Honour. My task is to

24 use the following five minutes and convince this Trial Chamber that it

25 would be appropriate to provisionally release Jadranko Prlic until the

Page 71

1 beginning of trial.

2 Jadranko Prlic meets all the requirements of Rule 65, and the

3 Defence has proven this by the guarantees provided by the state, by

4 personal guarantees, and international guarantees. The two states in

5 question are the Republic of Croatia and the Republic of

6 Bosnia-Herzegovina. They have provided a guarantee saying that in case

7 Jadranko Prlic is provisionally released, they will use it their

8 repressive mechanisms in order to ensure the presence of Jadranko Prlic

9 before this Trial Chamber if this is necessary.

10 In their response, the Prosecutor has doubted the guarantees of

11 the Republic of Croatia openly, quoting some past times, some past

12 governments, and past political relationships. We are now in the year

13 2004. The Croatian government has been commended for its cooperation with

14 The Hague. This has been confirmed by the President of this Tribunal, by

15 the Chief Prosecutor of this Tribunal, and the Security Council of the UN.

16 This has also been confirmed by the European Union.

17 The current Croatian government is capable of arresting Jadranko

18 Prlic at any given moment, whenever it is asked to do so. It is also

19 capable of preventing Mr. Prlic from fleeing. It is also capable of

20 preventing Mr. Jadranko Prlic from jeopardising this procedure. This has

21 to do with this government's compliance with its international

22 commitments.

23 I'm very sure that the high representatives of the Croatian

24 government who are present today in this courtroom will confirm my words

25 and provide you evidence in order to corroborate those words.

Page 72

1 I have the same position with regard to the guarantees provided by

2 the Republic of Bosnia-Herzegovina, but I'm sure that one of my colleagues

3 will say more about that.

4 In addition to the state guarantees, we have also attached two

5 types of personal guarantees. One has to do with the family of Jadranko

6 Prlic. In this guarantee, his wife and children inform this Trial Chamber

7 about their circumstances. Jadranko Prlic will reside with them in

8 Zagreb. Together with him, they will share the burden of this trial, and

9 they do not have any secret plan on escaping or starting a new life

10 elsewhere. Jadranko Prlic is a family man. He's a teacher, a professor.

11 He has a Ph.D. in economics. He is a diplomat. His life and work is

12 connected with the university and the parliament benches, and there is

13 nothing that would point to the fact that he will escape, that he will

14 become a renegade, that he will become -- that he will in any way obstruct

15 the work of this Tribunal.

16 In Bosnia and Herzegovina, they're aware of that. In Croatia,

17 they're aware of all that. And the international community is also aware

18 of that. The highest representatives of the international community in

19 Bosnia and Herzegovina, who have worked there between 1995 and 2003, Mr.

20 Carl Bildt, Mr. Wolfgang Petritsch, and Mr. Westendorp, have also given

21 Mr. Prlic their guarantees and they have been provided to this Tribunal.

22 Carl Bildt said in his guarantee that he supports Mr. Prlic's application

23 for provisional release wholeheartedly. And Mr. Petric also confirms

24 that. Carlos Westendorp claims that Jadranko Prlic may be trusted and

25 that he is fully capable of honouring all the decisions of this Tribunal.

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1 The high officials of Bosnia and Herzegovina, Ivandic, Lagumdzija

2 have given their guarantees, saying exactly the same. The only person who

3 doesn't trust Jadranko Prlic is the Prosecutor. In their response, they

4 say, and they portray Jadranko Prlic as an individual who is involved in

5 some deals and some persons who are involved in such deals. The

6 Prosecutor says that the accused will escape, that he will go into hiding,

7 and the message of the Prosecutor to the Trial Chamber is not to release

8 Jadranko Prlic.

9 Contrary to that construed picture, which is not based on any

10 evidence, here before us we have the real Jadranko Prlic, a professor, a

11 scientist, a Croatian politician from Bosnia and Herzegovina who is

12 pro-European in his orientation.

13 JUDGE ORIE: You announced that you would take five minutes. I

14 think, although my computer is not working well, that we're over the five

15 minutes now. Could you please conclude.

16 MR. PAR: [Interpretation] I will conclude with saying just a few

17 words, Your Honours. I have said all this because today we're talking

18 about the risk of provisionally releasing this man until the beginning of

19 trial. The Defence believes that it has offered facts that remove this

20 risk. And I'm going to mention just a fundamental fact. Let's not forget

21 that Jadranko Prlic volunteered to appear before this Trial Chamber and

22 that this fact shows the kind of relationship that Jadranko Prlic has with

23 this Tribunal. He wants to stand trial in order to defend himself, and

24 this is what -- this proves the Prosecutor in the belief that Jadranko

25 Prlic will escape. That's why we would like to ask the Trial Chamber once

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1 again to provisionally release Jadranko Prlic until trial.

2 Thank you very much.

3 JUDGE ORIE: Thank you very much, Mr. Par.

4 Mr. Olujic.

5 MR. OLUJIC: [Interpretation] It is Olujic, actually. Thank you,

6 Your Honour.

7 In our motion for provisional release, we have presented before

8 the Trial Chamber all the reasons, all the arguments that this Trial

9 Chamber will weigh and consider once they retreat, in order to decide to

10 grant or not this motion. However, it is my duty to point out certain

11 additional facts, or rather, emphasise that, among other things, my client

12 is an elderly man, as you can see. After the period of indictment, he

13 completely abandoned political life and public life in general. He was

14 never part of political life or any organisations or army organisations

15 after that period. He does not have any financial means which are a

16 prerequisite for fleeing. He surrendered voluntarily to this Tribunal.

17 He never said a word against this Tribunal. He has no prior convictions.

18 Therefore, Your Honours, I have to invoke the law that prevails in

19 this high institution. I know that you are aware of it, but it is

20 precisely in the argumentation, the Statute, and the Rules of Procedure

21 and Evidence that govern our work in this Tribunal that indicate that my

22 client should be provisionally released. It is an element of Roman or

23 civil law, the legal system where we come from, and in my written

24 submission, I invoked all the relevant legislation by articles, including

25 also a special provision of the Croatian legal system which is house

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1 arrest.

2 The government of the Republic of Croatia is prepared to guarantee

3 that he will be under house arrest in Croatia if necessary, and available

4 to you whenever required. What are the provisions of the Rules of

5 Procedure? That an accused has the right to be provisionally released

6 pending trial, with certain limitations under Article 22 of the Statute.

7 Nothing limits the Trial Chamber in this respect; on the contrary, it

8 gives it the possibility to provisionally release the accused, because it

9 says the accused can be provisionally released only under the Trial

10 Chamber's decision.

11 The Republic of Croatia is prepared to do everything that the

12 Tribunal requires if such a motion is granted. Your Honours, I will

13 shorten my presentation and mention only one more thing.

14 To prove before you today that all the arguments presented by the

15 esteemed Office of the Prosecutor can in no way apply to my client. The

16 Prosecutor says, and the case-law of this Tribunal knows, that onus

17 probandi lies on them. But we cannot prove in advance something that is

18 yet to be alleged. That would be contrary to common sense and every law.

19 The Prosecutor further objects to the provisional release by

20 trying to change the scope of allegations and narrowing it down. We have

21 provided all the financial evidence and all the factual evidence proving

22 that Bruno Stojic has residence in Croatia. That is already in evidence.

23 But it is illogical to claim that because Bruno Stojic did not have to

24 hunt for Bruno Stojic -- that Bruno Stojic did not have to be hunted for

25 by the Croatian government, he should not be provisionally released.

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Page 77

1 It is not fair to link the issue of the capture of Mr. Gotovina

2 with the provisional release of Bruno Stojic.

3 Let me summarise, Your Honour. For the past ten years, my client

4 has nothing to do with politics, with the army, with the police, or any

5 appearance in public. He knows that proceedings are under way against

6 him, and as soon as he learned of the indictment against him, he

7 surrendered himself voluntarily.

8 Let me stress one more thing. In my view, the best way to achieve

9 all the tasks of this Tribunal with respect to the former Yugoslavia is to

10 provisionally release Bruno Stojic, because if released, he will be a

11 living vehicle of the message that if indicted, one should come to the

12 Tribunal and orally present their defence.

13 Let me quote one more example from the Republic of Croatia, and

14 that is General Ademi. He has already sent the message I refer to to the

15 entire world. It is being felt both in the Croatian public and in this

16 Tribunal. However, the message of the ICTY is, in fact, we are looking

17 for justice and truth, and we are offering respect for all the rights of

18 the accused.

19 My client is the best example for this, with his family situation

20 and his political background. That is why we move that he be released

21 from the detention of The Hague Tribunal and returned to Croatia, with all

22 the guarantees involved. Or, alternatively, that he be placed under house

23 arrest, which would be a 100 per cent guarantee that he will respond to

24 every summons. Thank you.

25 JUDGE ORIE: Thank you, Mr. Olujic.

Page 78

1 May I invite next Mr. Kovacic or Ms. Pinter. Yes, please proceed.

2 MR. KOVACIC: [Interpretation] Thank you, Your Honour. I will try

3 to avoid the trap of repetition in relation to our written reply to the

4 response of the Prosecutor or in our original motion for provisional

5 release. I will try to confine myself to the quintessence and additional

6 arguments which for one reason or another have not been mentioned yet.

7 One of the arguments invoked by our learned friends from the

8 Prosecution, in paragraph 19 of their response to the motion for

9 provisional release of Coric, and it is a general argument applied to all

10 the accused, namely, that the Republic of Croatia may not, after all, be

11 able to live up to their guarantees because a discussion is pending in the

12 Croatian parliament which could, they say, change the political balance

13 and the attitude of Croatia toward this Court.

14 Why do I begin with this? This discussion has just taken place in

15 the Croatian parliament. The decisions and materials have been taken and

16 made. I see that the Prosecutor is in possession of them. And this

17 discussion took the best part of a day. Its conclusions go in the

18 direction that all the activities under way have to remain geared towards

19 full cooperation with the ICTY. Not only did not this discussion -- this

20 debate in the parliament jeopardise the Croatian cooperation with this

21 Tribunal; it actually confirmed the Croatian parliament's commitment to

22 keep it that way.

23 Let me just remind you that, in the recent past, eight accused

24 have surrendered to the ICTY, and at least a part of the credit for that

25 has to go to the Republic of Croatia and its policy of good faith. As my

Page 79

1 colleague Mr. Olujic said, the Ademi case is significant and relevant

2 because it had spread the message in Croatia and indicated to the

3 indictees in Croatia that they can expect a fair trial and respect of

4 their rights.

5 My client, Slobodan Praljak, surrendered voluntarily upon his own

6 initiative as soon as he learned of the indictment. He reported to the

7 Ministry of Justice, he collected the indictment himself, and he travelled

8 to The Hague himself. There were no arrangements involved on anybody's

9 part in bringing him here.

10 The Prosecutor, in his response, questions this obvious argument,

11 saying that maybe the accused will change his mind when he learns of the

12 evidence. Your Honours, can we really accept the claim that a serious,

13 well-educated man, with two university degrees - excuse me - three

14 university degrees, a man who has been an intellectual all his life and a

15 professional, can he really surrender just because he thinks that there is

16 no evidence against him? No, we could not accept that. He surrendered

17 because he believed that he would be able to defend himself against that

18 evidence.

19 What sense would it make after this voluntarily surrender for him

20 to return to Zagreb and then change his mind, without even seeing the

21 supporting material and seeing how things are, he may not see it for a

22 long time yet. And this brings me to a new argument which has not been

23 mentioned in our written submission, the balance of the various rights of

24 the accused.

25 On the one hand, he is entitled to an expeditious trial. On the

Page 80

1 other hand, we all know that he will not get an expeditious trial very

2 soon here, because this case involves six accused, and the Prosecutor is

3 not prepared to go into the courtroom and start the trial, as he should

4 be, even before issuing an indictment, not only under the Rules of this

5 Tribunal but under the legislation of every civilised country with a

6 decent legal system. The Prosecutor, once having issued the indictment,

7 has to be ready to start the trial the next day. We know this is not the

8 case here.

9 Finding the right balance between an expeditious trial and the

10 right of the accused not to be in detention awaiting trial for too long a

11 time is the question here. We can assess the realities and fairly

12 conclude that both the requirements from Rule 65 are satisfied here.

13 It was common knowledge in Croatia for quite a long time that this

14 indictment could well be issued. Mr. Praljak has been aware for a long

15 time that investigation is targeting him and that an indictment is very

16 likely. What did he do? He did not run away. He did not try to hide.

17 He did not try to tamper with the witnesses. The Prosecutor is very well

18 aware of this. There is no indication that his prior associates, friends,

19 or acquaintances ever tried to contact anybody in relation to the

20 allegations in the indictment. If this has not happened in the past six

21 years - maybe I'm exaggerating. Maybe it's only four years since

22 Mr. Praljak learned that there is an investigation against him - why would

23 he start doing this now, after returning home? That, however, is still a

24 theoretical possibility, and that is why we suggest that if the Trial

25 Chamber grants this motion, there are further restrictive measures

Page 81

1 available.

2 Although I have mentioned Ademi, it is indubitable that one of the

3 duties of this Tribunal is to spread a positive message, not only in their

4 judgements and convictions of individual persons for individual crimes in

5 those wretched wars in the territory of the former Yugoslavia, but also to

6 spread the message of the existence of fair trials, the message that all

7 national legislations, as well as the European convention, endorsed.

8 Among other things, the detention should be chosen only when other

9 measures are insufficient.

10 I shall only remind you of the provisions of the ICC concerning

11 detention, which are on a much higher level, and even the Croatian

12 national provisions from 20 years ago. The case-law of this Tribunal is

13 something that I am not going to invoke again, but it is, and remains, a

14 fact that voluntary surrender has to be taken into account adequately.

15 And let me add one more thing which I don't believe we said

16 clearly enough in our written submission. It is not so much the

17 guarantees of the host country and the country to which the accused seeks

18 to be released that the Court has to decide upon. The Trial Chamber has

19 to decide upon the facts, which are very well known in this case, and it

20 is well known that even if the estimate of this Tribunal proves to be

21 wrong, the Republic of Croatia will do its utmost to ensure all additional

22 security.

23 Thank you for your attention, Your Honour.

24 JUDGE ORIE: Thank you, Mr. Kovacic.

25 Ms. Alaburic. May I remind you that where you were all invited to

Page 82

1 stay within approximately five to ten minutes, that two out of the three

2 of you until now, I'm talking about accused or Defence teams rather than

3 individual counsel, took already more than ten minutes. So may I please

4 ask you to stay within the time limits indicated to you. Please proceed.

5 MS. ALABURIC: [Interpretation] Thank you, Your Honour. If

6 somebody were to ask me to use one word, yes or no, in answer to the

7 question whether the indictment requires for Mr. Milivoj Petkovic to be in

8 prison or to be provisionally released, I would say that he has to be

9 provisionally released. The indictment does not argument [as interpreted]

10 that for a single reason, not for a single moment does the Prosecution

11 claim that my client Mr. Petkovic would run away from Croatia or that he

12 would go into hiding somewhere else and that he would not respond to the

13 Tribunal's summons to appear before it. Not only do they not give any --

14 offer any evidence, they don't even claim that. The Prosecution doesn't

15 even claim that my client in any way obstructed the investigation against

16 him, that he prevented the Prosecution from collecting evidence, that he

17 tried to influence the prospective witnesses, victims, or any other

18 person.

19 It is from this indisputable fact that serve as the starting point

20 for our conclusion that the Prosecution confirms that all the conditions

21 from Rule 65(B) of the Rules of Procedure and Evidence have been met and

22 that my client has met the criteria provided for by this provision. I

23 would like to say just one more thing that have to do with the application

24 of law.

25 During -- it will be Rule 65(B) that will be governing Rule in

Page 83

1 this, as well as the international jurisprudence on human rights,

2 primarily the right to freedom, the presumption of innocence, and the

3 measures of legal protection. When we're talking about right of an

4 individual to freedom, I would like to point out as very important that

5 according to the practice of the European Court for Human Rights there is

6 a fundamental difference between the fundamental reasons for an individual

7 to be detained in comparison with the fundamental reasons for the

8 detention to be prolonged for the person who is already detained. Namely,

9 during the investigation, or at the beginning of trial, when -- of

10 procedure when a person is being arrested and detained, the following

11 legitimate legal interests have to be protected: Prevent of the illegal

12 influence of this person on either witnesses, victims, or destruction of

13 evidence. The second legitimate reason is to prevent the repetition of a

14 crime or the completion of the crime. The third legitimate purpose is to

15 prevent the disturbance of the general public, and the fourth legitimate

16 purpose is to ensure the presence of the accused during the trial.

17 Once the investigation is completed, once the evidence is

18 gathered, once the witnesses and victims have been heard, once the

19 indictment has been issued, many of those reasons that justify detention

20 stop existing. We are in the stage of the procedure when the indictment

21 was issued, which means that the OTP has carried out the investigation,

22 has listened to potential witnesses, has interviewed victims, and for that

23 reason the justified reasons for detention have stopped existing as

24 regards those elements. That's why at this moment the only legitimate

25 issue that we have to discuss is whether there is a probability or a

Page 84

1 guarantee that the accused, if provisionally released, will indeed appear

2 before Trial Chamber.

3 I would like to repeat that the Prosecution has never doubted for

4 a second that my client, Mr. Milivoj Petkovic, will appear before this

5 Tribunal. I would like to point to the position of the European Court on

6 Human Rights in the case Wemhof against Germany in its paragraph 46. If

7 the fear and the failure of the accused to appear before the Trial Chamber

8 is the only reason for detention - I apologise for speeding - if the fear

9 for escape and the consequential absence of the accused from trial is the

10 only reason for detention, then the accused has to be provisionally

11 released if he can provide guarantees that would ensure his presence.

12 Your Honours, if you deem that the guarantees that were provided

13 by my client, both his personal guarantee and the guarantees of the state,

14 are insufficient, then we would like to move for his detention to be

15 prolonged, but the place of detention to be changed, and instead of being

16 detained here in The Hague, that he should be released to house arrest. I

17 thank you for your attention.

18 JUDGE ORIE: Thank you, Ms. Alaburic.

19 Mr. Jonjic.

20 MR. JONJIC: [Interpretation] Thank you, Your Honour. Before I

21 summarise our arguments corroborating our motion for the provisional

22 release of Mr. Valentin Coric, allow me to remind everyone present that

23 our Defence has not yet had the opportunity of formally objecting to the

24 motion of the Prosecutor to defer the decision on provisional release --

25 JUDGE ORIE: Mr. Jonjic, it is -- are you intending to make any

Page 85

1 written submissions in that respect or would you like to deal with it now?

2 Which is quite welcome. But as you know, it is a confidential motion, and

3 with the special consent of Mr. Scott, I mentioned what the motion was

4 about. But I wouldn't go in public, go into any further detail in that

5 respect. So if you'd like to address the Chamber in that respect, I'd

6 rather ask for private session.

7 MR. JONJIC: [Interpretation] Thank you, Your Honour. I did not

8 mean to go into the details of our objection, but to deal with a

9 discussion that took place at this morning's 65 ter meeting. I only

10 wanted to say that the Defence objects, but we can present our arguments

11 either in writing or orally after this is finished, as you decide.

12 Now let me briefly present our arguments in favour of the

13 provisional release of Mr. Coric.

14 For reasons of economy, the Defence of Mr. Coric, mutatis

15 mutandis, subscribes to the arguments presented by our colleagues, all the

16 more so because the legal basis for these was given in the motion for

17 provisional release of the 7th of June and the 12th of July. In these,

18 the accused Valentin Coric has provided valid corroboration of his request

19 to be provisionally released. Even before the indictment was issued and

20 this indictment was the subject of innuendo in Croatia for seven years, my

21 client indicated that he's prepared to contact the Prosecutor's office in

22 Zagreb. He decided to do so without any contacts with any political

23 authority in Croatia. It was only on his own initiative and at his own

24 responsibility.

25 After the indictment was delivered to him, he was able, both in

Page 86

1 practice and hypothetically, to flee, but he never decided to do so,

2 although it was very clear from the indictment itself that he would be

3 found guilty under that indictment -- that if he is found guilty under

4 that indictment, he would be facing a severe sentence.

5 One of the arguments offered by the Prosecutor against our motion

6 for provisional release is the need to defer disclosure of supporting

7 material. My client has no wealth, as the Prosecution seems to indicate

8 through press coverage, and my client has tried to refute them. My client

9 has a two and a half-year-old daughter, born after 17 years of marriage,

10 which is an additional reason for my client, Valentin Coric, to become

11 even more closely linked and bound to his family, which would make him

12 available to this Tribunal at any moment.

13 After the events cited in the indictment, my client occupied high

14 positions in the Federation of Bosnia and Herzegovina. However, he never

15 jeopardised the safety of witnesses or the course of justice. And after

16 the Office of the Prosecutor, shortly after my client's Initial

17 Appearance, asked for protective measures for witnesses, my client agreed

18 with those measures without any hesitation, as well as with any other

19 measures that would ensure the safety of witnesses and their interests.

20 All the claims of the OTP that go against the personal guarantees

21 of Valentin Coric are refuted by hard evidence. None of these claims

22 proved true. However, should the Trial Chamber not grant the motion for

23 provisional release, our client suggested in his submission of the 7th of

24 June house arrest as an alternative. In this way, he demonstrated his

25 readiness to appear before this Tribunal at first request, as well as the

Page 87

1 fact that he poses no risk to victims and witnesses.

2 The Defence has also deemed necessary to provide evidence that,

3 although our client has no real estate in Croatia, he has a sister owning

4 an apartment in Zagreb who is prepared to take him in. Our learned

5 friends from the OTP already expressed their arguments, casting doubt on

6 the validity of the guarantees of the Republic of Croatia. However, this

7 Trial Chamber very recently concluded that the Republic of Croatia is able

8 to comply with these guarantees very efficiently, such as in the Norac

9 case. We do not see why the same guarantees that apply to Mr. Norac would

10 not apply to our client.

11 If Mr. Coric is released into Bosnia and Herzegovina and the place

12 of release is left by this Defence team in the hands of the Trial Chamber,

13 then we must say that the guarantees of the Federation of Bosnia and

14 Herzegovina have proven to be very effective in the past two years, as we

15 have seen from the examples of General Halilovic, General Hadzihasanovic,

16 and the accused Kubura. The representatives of the Government of Bosnia

17 and Herzegovina are present here, and they will certainly uphold their own

18 guarantees.

19 As to the arguments of the Prosecution that the guarantees of the

20 Federation are not valid on the territory of Republika Srpska, we have to

21 point out that a significant step forward has been recently made in this

22 direction. New regulations have been adopted by the relevant ministries,

23 assuring the security over the entire territory of Bosnia and Herzegovina.

24 So it would seem that it is not decisive which part of the territory of

25 Bosnia and Herzegovina is in question.

Page 88

1 However, I repeat: There is still the possibility that the Trial

2 Chamber decides that our client should remain in detention but under house

3 arrest. If that is so, all these arguments become irrelevant. Thank you.

4 JUDGE ORIE: Thank you, Mr. Jonjic. Did I understand you well

5 that you said that even that the guarantee of the Federal Government of

6 Bosnia and Herzegovina would be valid or also effective on the Republika

7 Srpska territory?

8 MR. JONJIC: [Interpretation] The guarantees of the Federation of

9 Bosnia and Herzegovina may be implemented in the territory of Republika

10 Srpska, owing to the changes in the legislation and in the personnel that

11 have taken place over the past year or so. A ministry for security has

12 been established, covering the entire territory of Bosnia and Herzegovina,

13 Minister Halilovic, the minister in the Federation of Bosnia and

14 Herzegovina is here and I'm sure he will be able to provide you with many

15 more technical details of that than I possibly could.

16 JUDGE ORIE: Yes. The question was mainly not about whether there

17 were structures there, but whether it would be effective as well. Because

18 the validity issue I fully understand, but the effectiveness of ...

19 MR. JONJIC: [Interpretation] I am deeply convinced that,

20 theoretically speaking, or hypothetically speaking, that it would be

21 proven that the bodies of the Federation are effective in the entire

22 territory of Bosnia and Herzegovina.

23 JUDGE ORIE: Thank you, Mr. Jonjic.

24 Mr. Skobic, you're last, but I would say not least.

25 MR. SKOBIC: [Interpretation] Of course, Your Honours. Thank you

Page 89

1 very much. Your Honours, I accept the general circumstances that have

2 been pointed out by the previous speakers that also apply to my client.

3 According to Rule 65(B), the accused has to convince the Trial Chamber

4 that he will appear for the trial and that he will not pose threat for

5 victims and witnesses and other persons. This is a burden that lies on

6 the accused, and it's a heavy commitment. The Defence wants to get into

7 the structure of this commitment and analyse it from the aspect of his

8 objective capabilities at his disposal. Mere --

9 JUDGE ORIE: Mr. Skobic, when you're reading, it's -- you're

10 speaking a bit quicker and the interpreters might have some difficulties

11 in following that. I know that I'm restricting your time, but at the same

12 time, could you slow down a bit.

13 MR. SKOBIC: [Interpretation] Thank you. I'll try and be of

14 assistance in that respect.

15 Most transparent occasion for the accused to show this subjective

16 attitude are his guarantees, the wish for freedom of every individual is

17 extremely great. In this specific case, we are facing the situation which

18 freedom has been denied. And it would be possible to conclude from this

19 situation that any person in such a situation will provide any guarantee

20 whatsoever, committing themselves to comply with anything. The situation

21 is not that simple.

22 A question may be raised here. If we guarantee only on the

23 individual guarantees that the accused has provided, what can he do? He

24 can provide a wide range of guarantees that are expected by him from the

25 Trial Chamber. The standards already exist. And one might conclude that

Page 90












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Page 91

1 a personal guarantee is not so difficult to give. However, if that indeed

2 is the case, then a question may be raised as to how can these be tested

3 in an objective way? How can one be sure that guarantees given will be

4 honoured if there is any sort of temptation? How can these guarantees be

5 given an objective dimension?

6 According to the Defence, the real test for the guarantees given

7 can be applied once the accused is released. However, it is the task of

8 the accused to convince the Trial Chamber that he is true when he gives

9 his guarantees before he is released.

10 Now, how does the Defence see this problem? In the short time the

11 accused Pusic has been in the situation when he could be tested, it was

12 the moment when he faced the indictment and when he was still a free man.

13 It was the moment of the biggest temptation for every man, including

14 Mr. Pusic. The media speculations about the existence of the indictment

15 found him in the clinical centre of Ljubljana in the Republic of Slovenia

16 when he was hospitalised, when he learned of the possibility that he might

17 be indicted against the advice of his doctors, he left his hospital bed,

18 even at the detriment of his health. He left the Republic of Croatia,

19 arrived in -- he left the Republic of Slovenia, arrived in Zagreb. He

20 left all of his contacts and takes the indictment on the following day

21 My question to you is: Can such a man be trusted? If he's

22 provisionally released, that he would respond to the summons of the Trial

23 Chamber? The Defence believes that there is no doubt whatsoever that he

24 will. He has already proven what his attitude towards this Tribunal is,

25 in the following way: Without any second thoughts, without resorting to

Page 92

1 the excuse of his health situation, in an invalid chair, he arrived in the

2 Detention Unit, where he still is to this very day. In this way, he has

3 proven a very strong willingness to respect this Tribunal, to respect

4 justice, and to present his arguments in his defence only before this

5 Tribunal.

6 The OTP, on the other hand, when they give their views of the

7 willingness of the accused to appear before the Trial Chamber points to

8 two very important elements. One is the evidence that the Prosecution has

9 and the seriousness of the incriminations. The Defence claims that the

10 accused will not change his mind. The accused is aware of the fact that

11 the OTP has evidence that they will present during their case, and that

12 have been collected in a long investigation. However, he believes that he

13 will be able to argue his case successfully and he has received a lot of

14 letters from Bosniak Muslims who have been living as refugees all over the

15 place. According to some claims by the Prosecution, these people are

16 their prospective witnesses. However, they have written to him, and that

17 has reinforced him in his belief that he will be able to argue his case

18 successfully.

19 Nothing has changed from the moment when my client faced the

20 indictment, because he had followed the work of the Tribunal even before

21 that through the Internet. He had been informed about all the

22 indictments, all the final sentences, all the developments. So while he

23 was still a free man, he was absolutely aware of his legal situation. I

24 don't see any reason why anything would change in his mind at the moment

25 when he is provisionally released. It seems to me that the OTP has not

Page 93

1 provided a single valid argument to that effect.

2 My colleague Jonjic has spoken enough about the guarantees

3 provided by the Government of the Federation of Bosnia and Herzegovina.

4 Let me just emphasise one little segment that has not been explained in my

5 reply to the Prosecutor's response.

6 I would like to say that the Government of the Federation is the

7 body that provided a guarantee. There is also a guarantee of the canton

8 of Mostar in Herzegovina. But they are not the main guarantor. It is the

9 government. A prosaic question is being raised: What if the accused

10 leaves the territory of that particular canton? What is going to happen

11 then? My reply to that is follows: Nothing is going to happen. The

12 police functions perfectly in the Federation. There is also an

13 inter-cantonal cooperation. It is impossible to imagine a situation in

14 which criminals would just cross from one territory to another and be safe

15 in that other territory just for the lack of coordination amongst cantons.

16 At the end of the day, there are federal bodies. There is the police with

17 their representatives in every place. There is a perfect [as interpreted]

18 of the nation between the federal Ministry of Justice and all the cantons.

19 My colleague Tomislav Jonjic has informed you that an agency has

20 been established in the territory of Bosnia and Herzegovina. Its name is

21 SIPA. And one of its principal tasks is the arrest of the fugitives.

22 Therefore, I believe that the guarantees provided are very firm and they

23 have been tested before and we know what the result of these guarantees

24 have been. The four accused have been provisionally released and the

25 government of Bosnia and Herzegovina has honoured all of its commitments,

Page 94

1 and within that context there have been no problems or objections on the

2 part of the Trial Chamber.

3 Your Honour, at the end, I would like to underline one more

4 element, and that is the health condition of my client, Mr. Pusic. He

5 himself, at the very beginning, said something about that, and I'm not

6 going to repeat any of that, because there is ample documentation of his

7 health. However, one has to ask oneself: How can a person who is using

8 crutches, who has difficulty walking, how can such a person decide to flee

9 or run away? What activities are at his disposal if one is aware of the

10 fact that any escape involves physical strength and physical fitness?

11 Finally, I believe that the accused Berislav Pusic has met all the

12 conditions provided for in Rule 65(B). Thank you very much.

13 JUDGE ORIE: Thank you, Mr. Skobic.

14 Mr. Scott, would you like to respond to the submissions? And how

15 much time would you think you'd need for that?

16 MR. SCOTT: May it please the Court. My calculations, and of

17 course I'll be guided by the Registry's official accounting, but my notes

18 indicate that the Defence collectively have taken approximately 106 --

19 excuse me. One hour and six minutes. My apologies. One hour and six

20 minutes. Obviously, the Prosecution would not ask to have that full

21 amount of time, but we do have to respond to a number of arguments that

22 the various six have made. So we would appreciate, Your Honour, having --

23 we would be satisfied if we had half the amount of time that the Defence

24 had all together.

25 JUDGE ORIE: Yes. Of course you'll understand that if six counsel

Page 95

1 have to represent their clients, that is a lot of specific details which

2 might not all need to be responded to. So if you could -- well, let's say

3 in approximately 20 minutes, a little bit over 20 minutes would be 5.00,

4 if you would be able to conclude --

5 MR. SCOTT: I'll do my best.

6 JUDGE ORIE: Yes. Please proceed.

7 MR. SCOTT: If you'd allow me just to put the stand up on ...

8 May it please the Court, counsel. In the limited time that's

9 available to me, Your Honours, Mr. President, let me perhaps start a

10 different perspective in a short amount of time. You've heard all

11 afternoon about these men do not present any risk of flight or any risk to

12 victims and witnesses in this case. I have to remind the Chamber, with

13 all respect, that while, of course, only allegations at this point, the

14 indictment in this case charges that these men presided over a campaign

15 that terrorised and caused many people, victims and witnesses, to live

16 under a reign of terror for some long period of time, victims who still

17 today remember quite well what happened these years ago, victims that

18 remember today quite well what these six individual did to them, victims

19 that today fear and have concerns about their release back into the areas

20 where these victims and witnesses live.

21 In my 20 years, Your Honours, of doing this work, I must say I've

22 attended a number of hearings such as this, I must -- have -- I have to

23 tell the Chamber, in 20 years I've never heard an accused come in on a

24 provisional or pre-trial release motion and tell you that, if released,

25 I'm going to escape. If released, I'm going to interfere with witnesses.

Page 96

1 Of course not. Of course we wouldn't expect counsel to say that. And yet

2 we do know in our collective experience, in our collective wisdom, that it

3 happens. Despite the best promises, despite the protest of innocence, and

4 of course they're presumed innocence. Of course, as in all criminal

5 cases. But despite all that, we know it happens. We know that accused

6 flee. We know that victims and witnesses are intimidated, harassed, that

7 there is obstruction of justice in cases. These are not hollow or

8 artificial concerns.

9 I think, Your Honours, that those of us who have practiced here

10 for a while in this particular environment, we lose, in all respect, and

11 I'm speaking for myself as well as everyone else in this courtroom, we

12 lose perspective of what it is we are doing here. We become almost too

13 used to it. We are dealing with the most serious charges, concerning the

14 most horrible conduct in the world that one can imagine. In national

15 systems, I submit to Your Honours, in national judicial systems, a man who

16 kills, who takes the life or is responsible for taking the life of one

17 victim or two victims, in most cases, will be detained pending trial. Not

18 all, but in most cases in most systems. A man who sexually assaults a

19 woman or several women, in most cases, in most systems, will be detained

20 pending trial, including in the country that these gentlemen come from.

21 In Croatia, most people convicted are -- excuse me, charged with

22 serious -- the most serious crimes, the most heinous crimes, will be

23 detained pending trial, including war crimes cases.

24 Surely if in the national systems a person is detained for killing

25 one person or sexually assaulting, how terrible it is, one woman, then

Page 97

1 surely, surely, serious consideration must be given to detention to men

2 who were charged with being responsible for taking the lives of hundreds

3 of people, for sexual assault on a large scale, for massive arson and

4 destruction of property. That's what we're talking about here, and I

5 don't think we can lose sight of that. And I dare say that in most

6 systems, most accused charged with multiple murders, multiple sexual

7 assault, multiple destruction and arson of property, would be detained

8 pending trial.

9 Your Honour, my comment -- some of my comments may be a bit

10 disjointed given the limitations of time, so I apologise in advance that

11 my -- some of my remarks may not flow as much -- as well as I might like

12 them to. But I would like to touch on a few points and I'll have to jump

13 around in order to do that in the time allowed.

14 The Chamber knows that from its own experiences, that another

15 important factor is the conditions in these states of the former

16 Yugoslavia. We're not talking about conditions on the ground in the

17 Netherlands or in France or in Argentina. We're talking about conditions

18 and circumstances that are still very raw, where law enforcement is still

19 very limited, where all too many people avoid arrest. We're talking about

20 a country, we're talking about the arrests, the Republika Srpska, we're

21 talking about -- which has protected and kept Radovan Karadzic from being

22 arrested for years. We're talking about a situation, you know, on the

23 Bosnian Croat, Croat side where we've mentioned to you several instances,

24 Gotovina, the Rajic case, Mr. Ljubicic. Even assuming for the moment that

25 there was the best of intentions on the part of some of the parties, the

Page 98

1 states involved, assuming for the moment the best of intentions, the

2 bottom line is the same. Gotovina is not in custody today. He does not

3 stand before this Tribunal, for whatever reason. He's not here. And

4 Rajic and Ljubicic only came after protracted periods of time and in some

5 instances with the direct protection of at least some highly placed

6 persons.

7 This is a place where there are still wartime associations,

8 networks of people, victims are scared. Accused or some of the accused

9 are still regarded by some people as war heroes. It's different than the

10 individual offender international system. It's not going to go out into

11 an environment where there is extensive networks of people only all too

12 ready and willing to support them, all too willing to carry out their

13 will. It's a very different situation. And again, I think that we have to

14 be very mindful of that, and sometimes again I think that those of us who

15 have been here for a while perhaps forget that. We have the world's most

16 heinous crimes, we have places on the ground that are under extremely

17 difficult conditions, and present unusual challenges for pre-trial

18 supervision, and it's in that environment and these circumstances that we

19 are asked to consider the question of pre-trial release.

20 Even in this case already there's been protest, there's been

21 demonstrations, there's been signing petitions, there's been people

22 raising all sorts of issues about these accused. That's the environment

23 that we operate in.

24 Presents -- these things present unique challenges to this

25 Tribunal, unlike most national systems.


Page 99

1 Turns to the guarantees given by Croatia and certain authorities

2 in Bosnia and Herzegovina. We do have serious concerns, Your Honours.

3 They're not lightly given. They're not personally directed at any of the

4 gentlemen or lady sitting in this room. They're institutional issues,

5 they're structural issues about the realities on the ground in these

6 places today, and probably tomorrow. We suggest to the Chamber,

7 respectfully, that a guarantee should be considered -- there's two factors

8 for the Chamber to consider, with respect. One is whether the state can

9 be seen as acting as a bona fide neutral guarantor, in the place of a

10 guarantor to bring these people --

11 JUDGE ORIE: Mr. Skobic, is there ...

12 MR. SKOBIC: [Interpretation] Your Honour, I would kindly ask you,

13 my client is signalling me that he should go to the bathroom. Can this be

14 granted to him?

15 JUDGE ORIE: Yes. As far as security is able to accompany him.

16 MR. SKOBIC: [Interpretation] He's also having certain

17 difficulties. He is experiencing certain difficulties. He's not feeling

18 too well, I've just been told.

19 JUDGE ORIE: Would you want us to have a break? Because we'll

20 have to have a break anyhow. We could take it now, because we're running

21 out of tapes. Perhaps the best way of doing it is to ask Mr. Scott to

22 finish after we have a break of, I would say, 15 minutes. Yes. We'll

23 then have a break for 15 minutes --

24 MR. SKOBIC: [Interpretation] We are not insisting on a break,

25 though.

Page 100

1 JUDGE ORIE: No, but we have to -- we have to have a break anyhow,

2 because the tape is only running for one hour and 45 minutes. So at 5.00,

3 when we have not heard yet the representatives of the Government of

4 Croatia and of the Federation of Bosnia and Herzegovina, we would have to

5 have a break anyhow and I would have one or two questions. So we'll have

6 a break until 5 minutes past 5.00.

7 --- Recess taken at 4.51 p.m.

8 --- On resuming at 5.08 p.m.

9 JUDGE ORIE: Before I give an opportunity to Mr. Scott to

10 continue: Mr. Pusic, are you well enough to attend? You don't have to

11 stand if you ... Do you feel better?

12 THE ACCUSED PUSIC: [Interpretation] Yes, I do, yes, and I can

13 attend.

14 JUDGE ORIE: Please inform me, either by yourself or through

15 counsel, if you feel that you're not able to attend or that any measure

16 has to be taken.

17 THE ACCUSED PUSIC: [Interpretation] Thank you.

18 JUDGE ORIE: Mr. Scott, please proceed.

19 MR. SCOTT: Mr. President, Your Honour, before the break I was

20 touching on two separate considerations, both equally important in

21 considering the guarantees of all of the authorities that are involved

22 here, and I started to say, one is whether these states or authorities can

23 be considered to be acting as a reliable, neutral guarantor. And a second

24 and separate consideration is whether they can be considered a reliable

25 and effective law enforcement agency. Because that in effect is what

Page 101

1 we're asking them to do. Since the Tribunal does not have a police force

2 of its own, we have to rely on essentially the police force, the criminal

3 justice system of these states or authorities to do for us, for the

4 Tribunal, what we are not able to do for ourselves.

5 That creates a very important question, a very important question.

6 Quite apart from the goodwill or best intentions of the states or

7 authorities involved here. I just want to mention in passing that I think

8 even the term "guarantee" that we use is a bit of a misnomer. With all

9 respect, none of the parties, none of the states that are here today can

10 guarantee that any of these accused will come and appear in the future if

11 released. They can make their best efforts, they can state their best

12 intentions. None of them can guarantee that they won't flee or that they

13 won't interfere with witnesses.

14 In terms of the first question, whether they can be viewed as a

15 neutral guarantor, as a fair guarantor, it is true, and perhaps

16 unfortunate, that the Prosecution does have serious concerns and questions

17 about the status of the state of Croatia as a neutral guarantor for these

18 accused, and I'll have to move quite quickly, Your Honours.

19 First of all, it is true that the Tribunal has had a very long and

20 very difficult history with Croatia, as with some of the other states in

21 the former Yugoslavia. Now, of course, there are people who would just as

22 soon forget that history, but I'm sorry, it's not that easy. A few months

23 of improved dealings does not simply wipe away years and years of

24 obstruction, delay, and making life difficult for this Tribunal.

25 Since March 2004, many of Croatia's most senior government and

Page 102

1 political leaders, including the prime minister, the president of the

2 parliament, have made high-profile public statements opposing the

3 Cermak/Markac indictments and opposing the indictments in this case,

4 calling the indictments or at least parts of the indictments unacceptable

5 to Croatia. They've talked about creating -- trying to intervene as a

6 party in the case, becoming an amicus curiae in the case, supporting these

7 defences actively, financially, with legal resources, forming teams of

8 experts to assist the Defence, collecting documents to assist the Defence,

9 doing everything possible to get these men provisionally released, timing

10 political decisions so as not to prejudice the posture of these men before

11 the Tribunal, delaying debates in parliament so as not to put their

12 positions at a disadvantage. In some respects, Your Honours, in some

13 respects, Croatia begins to appear more and more like a co-party with the

14 accused than a neutral guarantor.

15 Now, lest our position be misunderstood, some might say, well,

16 Croatia has every right to do those things. Perhaps. Perhaps it does.

17 Perhaps it can side -- it can do whatever it wants -- with the accused,

18 can fully support them as much as it wants to. But it's still a fair

19 consideration for this Chamber to say: If that's the case, can we -- they

20 really be considered as a neutral guarantor or are they really a party

21 taking on the character of a party?

22 On the ability side, Your Honours, again, a separate

23 consideration. The Chamber need not decide -- the Chamber is not inclined

24 to do so. The Chamber need not decide or express a view on the good

25 intentions of the Croatian government. But even assuming for the moment

Page 103

1 good intentions, there's a second element, and that is the effectiveness,

2 their ability to make good on their commitments. And that's completely

3 separate from the question of good intentions. And then, sadly, there

4 again we had the examples, and there could be others, but we had the

5 examples of Ivica Rajic avoids arrest for eight years during which part of

6 the time he was being paid and on the salary -- on the payroll of the

7 Croatian Ministry of. We have the case of Pasko Ljubicic, who avoided

8 come into custody for 14 months. We have the Gotovina situation, still a

9 fugitive. Maybe it's Croatia's best intentions to get Gotovina here, but

10 he isn't here, and that trial can't start until he is here.

11 The Defence teams have stated that much of this evidence is not

12 relevant that because many of these actions relate to what might be called

13 the Tudjman government. But Your Honours, Mr. President, Judge Orie, of

14 the three examples that I've just given to you, all of those began or

15 continued under post-Tudjman governments. I'm sorry. You can't run away

16 from your history just quite so quickly.

17 In terms of the state of Bosnia and Herzegovina, and again, moving

18 extremely quickly, we just make a few basic points. No guarantee has been

19 given by the state or national government. As the Chamber knows, we have

20 the two entities, the Federation and the Republika Srpska. There is a

21 national government, there's a three-member Presidency and there are some

22 national agencies or ministries, a few. Under the constitution of Bosnia

23 and Herzegovina, it's the national entity, it's those limited state -- at

24 the state level that is responsible for meeting the international

25 obligations, including the production of war criminals under Dayton to the

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Page 105

1 international community. We don't have a guarantee from the national or

2 state government.

3 The proposed national police, SIPA, state information and

4 protection agency, which some counsel referred to, is on the drawing

5 boards and steps are being taken to put it into effect, but it is not a

6 functioning agency at this time. And if time allowed, I would give -- I

7 would take the Chamber to recent assessments by the office of the High

8 Representative, by United States ambassador, by a report to the European

9 Union police mission, saying those things. It's not an effective national

10 police force yet. We hope it will be some day, but it's not now.

11 There's no guarantee that's been given by the Republika Srpska,

12 and while one might wonder whether one of these men, a Bosnian Croat,

13 would move over into the Serb side, it's happened, and we all know that,

14 unfortunately, unfortunately, Republika Srpska becomes a black hole for

15 people trying to avoid this Tribunal. Still trying to get Radovan

16 Karadzic, years later. There's no guarantee from the Republika Srpska.

17 Finally, and I'm only going to be able to touch on it. In terms

18 of the canton, the Ministry of Interior of the Herzegovina Neretva canton,

19 we have a guarantee from one canton. Obviously it's only as good as the

20 boundaries of that canton. If any of these gentlemen go into another

21 canton, it has no effect. And there are serious -- we've noted a number

22 of discrepancies, Your Honours, we've gone through again the guarantee

23 given by the canton, contrasted it with information given by several of

24 the accused, and there are a number of discrepancies and I just simply

25 don't have time to go into them all.

Page 106

1 But that raises again serious questions about the reliability of

2 the Federation or the canton to act as the law enforcement agency for this

3 institution.

4 Can we really believe, even with good intentions, that they can

5 ensure that these men will be here some time from now? Can we really be

6 sure that they will prevent victims and witnesses from being harassed?

7 In closing, Your Honours, if I can just look at my notes. I

8 apologise for going so fast. It is always a challenge, Your Honours, for

9 a party to, an advocate to anticipate that the court might rule against

10 the party, because of course our position is, as we've stated, our

11 position is that each of these men, for the reasons stated, should be

12 detained pending trial, and indeed in most national systems would be

13 detained. But if the Chamber is not so inclined, and again, we hope the

14 Chamber will consider and adopt our position, and the Chamber is of course

15 completely in the Chamber's hands [as interpreted]. If the Chamber is not

16 inclined to do that, then we would request the Chamber to impose the

17 strictest possible conditions on the release of these men. We strongly

18 oppose their release into areas where there are victims and witnesses in

19 this case. We would strongly oppose any wide freedom of movement. I have

20 not had a chance to talk directly with the representatives of the state of

21 Croatia, but if I can communicate indirectly with them, Your Honour, when

22 the Court inquires, I'd be curious their position are they prepared is the

23 state prepared to carry out and enforce house arrest for all six of these

24 accused? At least four of the accused, as I read their pleadings, at

25 least four of the accused have said that's an option. And I would be

Page 107

1 interested in the state of Croatia's views on whether they're prepared to

2 carry that out.

3 The Chamber might also wish to consider bail. Frankly speaking,

4 there's very little information about these men's financial positions.

5 Which again just -- shows again the difficulty of collecting information

6 in this environment. There is some -- there are significant indications

7 that at least some of these men have very substantial wealth. The Chamber

8 in those circumstances may wish to consider whether to impose some sort of

9 financial bail in addition to any other conditions the Chamber would set.

10 Your Honour, we appreciate the Chamber's indulgence and the time

11 that's been allowed to the Prosecution to state its views ever so briefly.

12 It's our position that these men should be detained, for the reasons

13 stated. If they are not detained, then we beseech the Court, in the

14 interest of the victims, in the interest of witnesses to come, that the

15 strictest possible conditions be imposed, and that in fact if the Court is

16 not inclined to keep them in Scheveningen, that indeed it should be

17 considered whether house arrest in Zagreb is an option.

18 Thank you, Mr. President, Your Honour Judge Orie.

19 JUDGE ORIE: Mr. Scott, I've got one question for you. You're

20 talking about the indications that some of the accused might have a

21 considerable wealth. Are you referring to the articles where I remember

22 that one of the attachments was that journalists are describing who is

23 owning what and who has an interest in what, and is that what you're

24 referring to? I mean --

25 MR. SCOTT: That's primarily -- unfortunately, Your Honour, and --

Page 108

1 yes. To be perfectly transparent, that's our main -- that's the main

2 point. Certainly we've heard things from other people and in the field.

3 Witnesses tell you things. And I'm not -- I'm not going to stand here and

4 tell the Chamber that our information is more precise or more certain than

5 that. But I would just say again that that indeed illustrates part of the

6 very problem we're addressing here.

7 JUDGE ORIE: I do understand. But since you are talking about

8 bail, do you want the Chamber to impose bail on the basis of newspaper

9 or --

10 MR. SCOTT: Well, Your Honour, probably not. Probably not. But I

11 do think, and I would invite the Chamber with all respect to make what

12 additional inquiries the Chamber may be able to make. The Chamber may

13 have access to information or means that we haven't had, at least up till

14 now, and I would invite the Chamber to at least consider that. I think --

15 well, you know, there's the old saying, where there's smoke there's fire,

16 and I think there are sufficient indications that some of these men do

17 have substantial wealth, but I agree, up till now, the Prosecution has not

18 been able to show that in any definitive way.

19 JUDGE ORIE: Thank you, Mr. Scott.

20 Before I give an opportunity to the representatives of the

21 governments, I would like to ask a few questions, first of all to you,

22 Ms. Alaburic, in respect of Mr. Petkovic. We have seen in the response by

23 the Prosecution that reference is made to a transcript of a meeting which

24 has taken place quite some time ago, where a certain Mr. Miljevac reports

25 about a meeting he would have had with Mr. Petkovic, and the subject of

Page 109

1 that meeting was the testimony of Mr. Petkovic in the Blaskic case. I've

2 also seen that Mr. Petkovic denies that -- ever to have expressed himself

3 in the way as reported. Could you assist the Chamber in explaining why

4 Mr. Miljevac would have come up with such a story which seems at first

5 sight to fit well into what the meeting is about? Why would he have

6 invented such a story? Is there any explanation, as far as you are

7 concerned, apart from saying Mr. Petkovic never expressed himself in that

8 way?

9 MS. ALABURIC: [Interpretation] Your Honour, I personally do not

10 know Mr. Miljevac at this meeting held on the 13th of April, 1999,

11 according to the transcript. I did not attend it. And it is difficult

12 for me to say for what reasons Mr. Miljevac expressed himself as he did

13 about his indisputable conversation with Mr. Petkovic. I don't know why

14 he misinterpreted it and misrepresented it. I can only, based on the

15 contents of that transcript and the context of the report of the

16 intelligence community of Croatia from 1998, as well as on the basis of

17 what I know as a regular citizen of the Republic of Croatia from our

18 media, press, and other sources, I can only surmise what it is about.

19 The team of people who was, in a way, in charge of monitoring the

20 cooperation of the Republic of Croatia with the ICTY, because, as you

21 know, Croatia had an office for this cooperation and the highest officials

22 of Croatia were represented in that office. As far as I was able to

23 discern from those transcripts, the office tried to assist the defence of

24 various accused by providing them with documentation, and from the

25 transcript that I read, the intelligence community seems to have tried to

Page 110

1 ensure that within the framework of individual defences, the interests of

2 Croatia are protected.

3 Based on that documentation, I believe that Mr. Miljevac who was

4 then-minister of defence, wished, concerning the testimony of Mr. Petkovic

5 in the Blaskic case, was speaking about the way this intelligence

6 community regarded this testimony in the Blaskic case. I can only invoke

7 one part of that transcript, where my client is spoken about in the

8 following way: "He is not one of us. He doesn't belong to us. He's not

9 from our circle."

10 So I cannot find out, even through General Petkovic, what the

11 motives could be for Mr. Miljevac to say what he said in the presence of

12 Mr. Tudjman, except to surmise that when the highest officials spoke with

13 Mr. Tudjman, tried to present themselves in the best possible light, tried

14 to portray themselves as working very hard for the interests of Croatia.

15 What I believe matters most in this case is whether my client,

16 Mr. Petkovic, really said that or not, or, as the Prosecutor claims, he

17 perjured himself in the Blaskic case.

18 We can take the transcript of that testimony and, based on the

19 contents, we can decide whether he really testified to the best of his

20 knowledge and recollection, or he lied against General Blaskic and against

21 Croatia. And I emphasised in my written submission that if the Trial

22 Chamber deems this issue worthy of discussion, I suggest that the

23 testimony of my client in the Blaskic case should be obtained, so that we

24 can discuss it in closed session. And then the Prosecutor would be able

25 to show us what specifically is untrue in my client's testimony.

Page 111

1 And I wish to say that I am particularly sorry that if the

2 Prosecutor already wanted to say that my client perjured himself, he

3 didn't say so openly. Instead, they used another person's statement to

4 cast doubt on my client's truthfulness. I don't believe this is

5 appropriate. If the Office of the Prosecutor intends to discredit my

6 client, or anybody else, they should come out openly.

7 I wish to point out once again that the Prosecutor did not have

8 any objection to my client's testimony in the Blaskic case, and it is only

9 now, at this hearing on provisional release, that this doubt in the

10 truthfulness of my client is being questioned. If any further explanation

11 is required, I am at your disposal.

12 JUDGE ORIE: Well, it was a bit of argument, in addition to the

13 answer to the question I put to you. But thank you for your answer.

14 Since you initiated some argument, I might give an opportunity to

15 Mr. Scott, too, then, but then very briefly, respond.

16 Then I also have a question for Mr. Salahovic. We have seen --

17 and I'm asking Mr. Scott first of all a clarification. Is it true that

18 the transcript of the minutes of a meeting of the 16th of September 1998,

19 which you provided as attachment D in relation to the motion by

20 Mr. Petkovic, was it also provided directly in Mr. Prlic -- in the answer

21 to Mr. Prlic's motion?

22 [Prosecution counsel confer]

23 MR. SCOTT: I apologise, Judge Orie. We're having to track that

24 down a bit. We're getting it. The -- there were the minutes of a meeting

25 on the -- in 1999, and I believe that was attached to the response

Page 112

1 concerning Mr. Petkovic.

2 JUDGE ORIE: No. That's true. But there was also attached

3 minutes of a meeting in September 1998. I think you're referring now to

4 the annex B to it. But let me just check.

5 MR. SCOTT: I think it is, to the Prlic document.

6 JUDGE ORIE: Attachment D in the Petkovic response. Was that also

7 filed in Prlic?

8 MR. SCOTT: Yes, Your Honour, I think it was. I think that that

9 attachment was also in the Prlic response.

10 JUDGE ORIE: Then I have a question to you, Mr. Salahovic. The

11 Prosecution has presented a transcript of the minutes of a meeting where

12 Mr. Prlic was present, and, well, let me say -- let me try to say this

13 softly, if possible, that the atmosphere of that meeting, at first sight,

14 was one of a high level of interest on how Defence counsel would behave in

15 the defence of the cases of the individuals. And in this transcript, we

16 do not see any observation by Mr. Prlic that he would oppose against such

17 an atmosphere, where it is suggested that a defence should not be just for

18 the person, for the accused, but should be coordinated, well coordinated

19 and should be -- all the lawyers should be under one umbrella, is just one

20 of the lines that, according to this transcript, was spoken. Another line

21 is: "I talked to some people, but I think that those lawyers cannot work

22 on their own and defend as they do from one case to another." This is

23 what I take as lines creating an atmosphere where the individual

24 responsibility of counsel is not a prevailing value, but rather, that

25 there is some control or at least some influence sought over how counsel

Page 113

1 behave.

2 I do not see any response or any opposition by Mr. Prlic. Could

3 you address that matter, which you did not address in your submissions.

4 MR. SALAHOVIC: [Interpretation] Thank you, Your Honour. I have

5 tried to understand, and I wish to say this: When I presented our case to

6 you earlier today, I wished to emphasise that I always place faith in the

7 evidence which have been checked for authenticity and credibility. I

8 believe that the transcript in question does not have these qualities. And

9 that is why I accepted with some reservations.

10 Further on, I wish to say as follows: I really don't know --

11 JUDGE ORIE: May I then immediately put a question. You say the

12 authenticity of this transcript seems to be doubtful to you. Did you seek

13 any confirmation by the Prosecution where it comes from and how it came to

14 the Prosecution? Because that could support your idea of not being

15 authentic. I mean, what did you do to verify the authenticity or the

16 non-authenticity of this document?

17 MR. SALAHOVIC: [Interpretation] Thank you, Your Honour. I have

18 approached this in good faith. This paper, in my view, does not contain

19 the basic elements of what it should contain. I really have not expected

20 that it will be accorded so much significance. I would only like to say

21 something about what you have asked me, just one sentence, if I may.

22 I don't see from this conversation that Mr. Prlic advocated any

23 sort of control, persuasion, pressure, that would be against the rights of

24 the accused before this Tribunal to freely present their case.

25 JUDGE ORIE: Mr. Salahovic, my question is quite simple. I did

Page 114

1 not ask you -- I did not even suggest that Mr. Prlic said anything on that

2 subject. I have drawn your attention to the fact that there was a

3 discussion where Mr. Prlic supposedly had been present, and that during

4 this conversation, some participants in that conversation took the

5 position that you just couldn't -- that counsel go and do what they deem

6 fit, but that -- well, they should be under one umbrella, which is to be

7 understood as a way of interference with how individual counsel think they

8 should conduct the defence. I asked you to address the matter of the

9 silence of Mr. Prlic, who was present, and who did not say: No, that's

10 not something you could do. Or: That's not fair. That's up to Defence

11 counsel to defend each individual as he deems fit.

12 That's the issue I'm raising, not that Mr. Prlic himself did

13 express any illegal matters. But perhaps the first question: Do you

14 think that intervention in individual defences, is that, in view of you,

15 is that legitimate or is it not legitimate?

16 MR. SALAHOVIC: [Interpretation] Thank you, Your Honour. I will be

17 very brief. I am against any interference with the work of Defence

18 counsel. I've understood your question. This paper shows that

19 Mr. Jadranko Prlic did not support those positions. It transpires from

20 that paper that he didn't.

21 JUDGE ORIE: Where do I read that? If you say the paper does not

22 show that he supported it, but the paper also does not show that he

23 opposed against it, although being present at that meeting, let's just

24 assume that he -- that the transcript is authentic enough to establish

25 that - it's neither of the two, isn't it? You say the paper shows that he

Page 115

1 did not support. Where do I read that he did not support?

2 MR. SALAHOVIC: [Interpretation] Your Honour, I believe that the

3 mere presence -- I don't believe that the mere presence at the meeting is

4 support. He has not expressed his views on that issue.

5 JUDGE ORIE: Yes. You said, Mr. Salahovic: "This paper shows

6 that Mr. Jadranko Prlic did not support those positions." What you are

7 saying now is that his mere presence does not mean that he supports the

8 words spoken by others. I fully agree with that. But you said something

9 different. You said the paper shows that he did not support. Or was it

10 that you wanted to say the paper does not show that he explicitly

11 supported or that he supported at all the words spoken by the others?

12 MR. SALAHOVIC: [Interpretation] Thank you, Your Honour. You have

13 asked me quite a number of questions. Kindly bear in mind the fact

14 that -- what the circumstances of that meeting were. The persons involved

15 in the meeting were those who had power, who had force, and due to such

16 circumstances, I would like to draw the following conclusion: Silence

17 equals opposition to any of the positions that may have been put forth.

18 JUDGE ORIE: Yes. That's your interpretation of the silence.

19 Thank you. Would you like to add something or is this what you'd like to

20 say in respect of this issue?

21 MR. SALAHOVIC: [Interpretation] Thank you. I have nothing else to

22 raise at this particular moment.

23 JUDGE ORIE: Then I would first like to give an opportunity to the

24 representatives of the government of the Federation of Bosnia and

25 Herzegovina. Ms. Kristo, did I understand that you will confirm orally

Page 116

1 the guarantees, or at least the commitment of your government that has

2 already been given in writing? If so, I'd like to hear that. And if you

3 could also perhaps address the issue of what I now understand to be the

4 SIPA, the state information and protection agency, on which some counsel

5 have reported.

6 MS. KRISTO: [Interpretation] Thank you, Your Honours. I will

7 orally present the guarantees that the Government of the Federation has

8 already given for the accused Jadranko Prlic, Bruno Stojic, Valentin

9 Coric, Berislav Pusic, and Slobodan Praljak. I take this opportunity to

10 express the willingness of the Federation to guarantee that the Government

11 of the Federation is going to comply with all the summons of the Trial

12 Chamber and that it will honour all the conditions that are given to the

13 accused by the ICTY.

14 Should the Trial Chamber of this Tribunal decide to act on Rule 5

15 of the Rules of Procedure and Evidence and take decision on provisional

16 release of the accused and decide for these persons to be -- to reside in

17 the territory of the Federation, I guarantee on behalf of the Federation

18 that the Federation will make sure that the accused will respond to every

19 summons of the Tribunal, in The Hague or in any other place determined by

20 the Trial Chamber.

21 Also, we guarantee that we will carry out any of the orders of the

22 Trial Chamber.

23 I would also like to take this opportunity, Your Honours, that we

24 would like to provide additional guarantees, and I would like to express

25 the willingness on the part of the Government of the Federation in terms

Page 117

1 of the compliance with any additional conditions that the Trial Chamber of

2 this Tribunal may impose on the Federation that will lead to the

3 provisional release of the accused pending trial.

4 I claim this as a responsible person and as a member of the

5 Government of the Federation at the head of the Federal Ministry of

6 Justice, and I'm saying that the institutions of the Government of the

7 Federation have carried out all the actions and have complied with all the

8 commitments taken over by the Republic of Bosnia-Herzegovina within its

9 cooperation with the Tribunal.

10 The Government of Bosnia-Herzegovina has all the institutions and

11 instruments by which it can provide for all of the orders of this Trial

12 Chamber to be carried out in time and for all the other conditions to be

13 complied with.

14 Thank you very much. Should there be any additional questions,

15 I'm at your disposal, Your Honours.

16 [Trial Chamber confers]

17 JUDGE ORIE: Perhaps I missed something, but one of the issues

18 that had been discussed by counsel was how effective the Federation could

19 act if someone would not be on federal territory any more, but in

20 Republika Srpska. And in this relation -- in this context, the state

21 information and protection agency has been mentioned, I would say in a

22 more encouraging way by Defence counsel, and a bit less encouraging way by

23 the Prosecution. Could you inform the Chamber about effective -- how

24 effective the Federation could be if someone would abscond to the

25 Republika Srpska territory.

Page 118












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Page 119

1 MS. KRISTO: [Interpretation] Thank you, Your Honour. I fully

2 understand your question and I must say that I would like to express my

3 optimism on this issue. The government are functioning at the level of

4 Bosnia-Herzegovina, which means that the entities are duty-bound to

5 cooperate with the state ministry of security. They have cooperation with

6 Interpol. So all the orders can be executed effectively and efficiently,

7 in keeping with any of the conditions that may be imposed. I believe, and

8 I hope, that you have been able to convince yourself of such compliance

9 with regard to the former provisional release guarantees that the

10 Government of the Republic of Bosnia-Herzegovina has given in the previous

11 cases.

12 JUDGE ORIE: Yes. Thank you for your answer. You mentioned the

13 five accused, not Mr. Petkovic. That is correct? You did not give any

14 guarantee in relation to Mr. Petkovic? It's only the Croatian government

15 that has provided guarantees in respect of Mr. Petkovic. Yes.

16 Could I then invite you, Mr. Muljacic, to address the Chamber and

17 to confirm, if possible, the written guarantees already given, and as I

18 understood from the minister of justice of the Federation of

19 Bosnia-Herzegovina that it was, I would say, an unlimited guarantee to the

20 sense that whatever condition the Chamber would impose, it would be

21 followed by the government. Could I hear the position of the Croatian

22 government.

23 MR. MULJACIC: Yes, Your Honour. If I may take an opportunity to

24 speak in my own language, with your permission.

25 JUDGE ORIE: Yes, of course. Please do so.

Page 120

1 MR. MULJACIC: [Interpretation] Thank you, Your Honour. In my

2 capacity as assistant of the Ministry of Justice and Mr. Frane Krnic, the

3 ambassador of the Republic of Croatia in the Netherlands, would like to

4 orally confirm the written guarantees signed by the minister of justice of

5 the Republic of Croatia given to the Croatian citizens. Mr. Bruno Stojic,

6 Mr. Milivoj Petkovic, Jadranko Prlic, Slobodan Praljak, Valentin Coric,

7 and Berislav Pusic that the government of the Republic of Croatia will

8 comply with all the orders of the Tribunal with regard to their

9 appearances before the Trial Chamber in case of their provisional release.

10 The government of the Republic of Croatia will also undertake all the

11 measures in order to ensure that the aforementioned gentlemen stand trial

12 and that in case of provisional release they will not present a danger for

13 any potential witness, victims, or any other individuals.

14 The Republic of the Government of Croatia is prepared to provide

15 any additional guarantees that might be needed for their provisional

16 release. Mr. President, Your Honours, if you will allow me, I would like

17 to refer to several things that have been said by the Prosecution with

18 regard to the cooperation of the Republic of Croatia with this high court.

19 This cooperation has already been assessed by the Chief Prosecutor,

20 Ms. Carla Del Ponte, His Excellency, Mr. Meron, the President of this

21 Tribunal, as being full and complete, and this was done before the highest

22 bodies of the international community. The Republic of Croatia really

23 fully cooperates with the Tribunal and it is willing and as a state with a

24 rule of law, it guarantees that should this Trial Chamber make such

25 decision, it is willing to comply with any orders of the Trial Chamber in

Page 121

1 respect of this decision.

2 I would also like to say a few words on other things mentioned by

3 the Prosecution. With the new government, headed by Prime Minister Senada

4 [phoen], new priorities have been set out and one of the priorities is

5 full cooperation with the Hague Tribunal. The prime minister himself

6 announced it and one of the first moves on the part of the government was

7 to move that cooperation from the political field to the ministries,

8 respective ministries, the Ministry of Justice and the Ministry of the

9 Interior. And from then on, the cooperation has indeed been full and

10 complete. The government of Croatia indeed cooperates with regard to the

11 accused, to the witnesses, to the documentation, in keeping with the

12 Statute and the Rules of Procedure and Evidence.

13 On several occasions, the Chief Prosecutor, Mrs. Carla Del Ponte,

14 has stated that whatever was promised in January has been delivered.

15 Croatia cooperates fully and is given as a role model for all the other

16 states in the region. This doesn't mean that Croatia does not have the

17 right to protect its own interest. The fact is that when the indictments

18 were issued against Generals Cermak and Markac and the accused present

19 here, the prime minister sent a letter to the Tribunal without mentioning

20 anybody's individual responsibility. Because this is up to the Chamber to

21 decide that.

22 In these cases, the Republic of Croatia has been emphasised as the

23 state whose international responsibility is put in question. This letter

24 was sent to the President of the Tribunal, asking for his legal opinion.

25 The President of this Tribunal says that the Republic of Croatia is

Page 122

1 entitled to protecting the interests of its citizens, that there is an

2 institute of amicus curiae in this Tribunal, and when the trials start,

3 the Republic of Croatia can apply for the status of amicus curiae, and as

4 such, address certain political qualifications. It would indeed -- the

5 indictment which are not acceptable for Croatia [as interpreted].

6 Therefore, throughout this time, the Republic of Croatia and its

7 government have been fully cooperating with the Tribunal in The Hague,

8 having full respect for all its institutions, the rules and regulations of

9 this Court, and the Tribunal as such. I therefore believe, Mr. President,

10 Your Honours, that the guarantees given by Croatia will be complied with.

11 Republic of Croatia has already given guarantees in the Ademi and

12 Norac cases. In this case, again, we believe that Croatia would be able

13 to comply with all the orders that the Trial Chamber may take in this case

14 as well. Thank you very much.

15 JUDGE ORIE: Thank you very much. I have one specific question

16 for you. As some counsel and also the Prosecution have raised the

17 possibility of house arrest, that is, a restriction of movement, even more

18 that we very often see, so not just stay in your village or report every

19 day to the police, but stay in your house. Could you inform the Chamber

20 about the practical possibilities for such a house arrest, and could you

21 inform the Chamber about whether there are any legal obstacles to impose

22 such a house arrest.

23 MR. MULJACIC: [Interpretation] Your Honour, Croatian legislation

24 is familiar with this institution and will fully honour such an order

25 should it be taken by the Trial Chamber.

Page 123

1 JUDGE ORIE: Even at the request of a foreign institution?

2 MR. MULJACIC: [Interpretation] Yes. Yes.

3 JUDGE ORIE: Could I put the same question in respect of the house

4 arrest to you as well, and the Minister Kristo.

5 MS. KRISTO: [Interpretation] Yes, Your Honour.

6 JUDGE ORIE: I'd like to ask the same question, whether it would

7 be practical, possible, and whether it would be -- whether there would be

8 any legal obstacles in imposing house arrest.

9 MS. KRISTO: [Interpretation] The Government of the Federation is

10 prepared to execute all the decisions, including any additional orders the

11 Trial Chamber may take to secure provisional release for the said accused.

12 That means that there are no legal obstacles for the execution of any

13 order or meeting of any standard set by this Tribunal.

14 JUDGE ORIE: Thank you very much.

15 [Trial Chamber confers]

16 JUDGE ORIE: Then I was informed that Mr. Prlic would like to

17 address the Chamber personally. If there are any other wishes -- within

18 certain time limits, I will allow the individual accused to address the

19 Chamber, to the extent they wish to do so.

20 Mr. Prlic. Yes, you're on your feet, Mr. Kovacic.

21 MR. KOVACIC: Kovacic, Your Honour. Mr. Praljak just gave me a

22 sign that he would also like to use this opportunity, just only two or

23 three sentences.

24 JUDGE ORIE: Okay. Then I first would like to invite Mr. Prlic to

25 address the Chamber and then Mr. Praljak.

Page 124

1 THE ACCUSED PRLIC: [Interpretation] Thank you, Your Honour.

2 Starting to use my two minutes, I wish to give my word of honour before

3 you personally that in case I'm provisionally released, I will appear

4 whenever requested to do so by this Tribunal, that I will comply with

5 every order, and that I will in no way interfere with the course of

6 justice. In case of provisional release, I will reside in Zagreb in the

7 apartment where my wife and children are. I would continue with my

8 research work in political economy. I would be supported financially by

9 my wife and by the proceeds from my research and scientific work.

10 In the past 15 years towards my native state of Bosnia-Herzegovina

11 and my fellow citizens, I have displayed a conduct that shows that I can

12 be trusted. I have made my decision independently, and my voluntary

13 surrender is a logical consequence of my entire conduct.

14 I found myself in a situation which decides on my future, but also

15 that of my family. My family and I will defend our honour before this

16 Tribunal, and that is a choice I've made that has no alternative. What I

17 have to do here is to prove that I am not guilty, that the charges against

18 me are unfounded, and that I am not responsible for the crimes I am

19 charged with. I can do that only before this Tribunal. Therefore, there

20 is no fear and no risk that in case of provisional release I should change

21 my mind and obstruct these proceedings.

22 The arguments corroborating and supporting my motion have been

23 presented in writing and orally. The only thing I wish to add is the

24 following: There is not a single person whatsoever who is more anxious to

25 appear before this Court than myself. If the charges levelled against me

Page 125

1 are not disproved, my further life has no sense at all.

2 Thank you very much.

3 JUDGE ORIE: Thank you, Mr. Prlic. I'd first like to give an

4 opportunity to Mr. Praljak. I promised that he would be given an

5 opportunity.

6 Mr. Praljak, please. And if you stay as nicely within the two

7 minutes as Mr. Prlic did, then it would be highly appreciated.

8 THE ACCUSED PRALJAK: [Interpretation] I will be even briefer than

9 that, Your Honour.

10 Facts, first of all. My name, as a possible indictee, has been

11 bandied about in the territory of the Republic of Croatia even before the

12 Blaskic case started. Therefore, I knew for years that I was a possible

13 indictee. It was not, of course, easy to live under this constant

14 pressure that the media put on me. You might be leaving as soon as

15 tomorrow.

16 I have gone through many interviews, and in each of them I was

17 asked the question: If asked to appear before the Tribunal, would you? I

18 always said yes. I had many interviews in Zagreb, in Banja Luka, in

19 Mostar, and my answer was always yes. I always knew that the Tribunal

20 prefers high officials from each of the concerned states. I knew that the

21 charges are complex, and if I had had any intention to flee, I would have

22 done it much earlier. Instead, I patiently waited here. However, unlike

23 Mr. Prlic, I will not be proving here my innocence. I remain innocent, on

24 the contrary, until I am proven otherwise.

25 I was a Croatian general. I occupied many posts and positions. I

Page 126

1 am proud of everything I've done in my life, and nothing will prevent me

2 from defending before this Tribunal my entire life and my entire work. In

3 that sense, the Court can rest assured that I will appear here whenever

4 requested.

5 It is only logical that a person who is a few months shy of 60

6 believes that the Detention Unit, where you have limited communication

7 with your family, is much worse than provisional release. I have no

8 intention to flee from provisional release. Therefore, I came here to

9 defend myself and whatever I did in my native state. Thank you.

10 JUDGE ORIE: Thank you, Mr. Praljak.

11 MS. ALABURIC: [Interpretation] Excuse me. I really beg your

12 pardon, but my client, Mr. Petkovic, has just signaled me that he would

13 also like to address you, very briefly, and I ask your leave for him to do

14 so.

15 JUDGE ORIE: Mr. Petkovic. You've got two minutes as well. When

16 I say that you nicely stayed within the two minutes, I mean to say that

17 you usually take two and a half, up to two three quarters. Could I also

18 invite you to stay within the time limits. Please proceed.

19 THE ACCUSED PETKOVIC: [Interpretation] Your Honours, thank you.

20 Like General Praljak, I too can say that I have lived for seven years now

21 under the burden of possibly being indicted by this Tribunal. On two

22 occasions, I have responded to the summons of this Tribunal. I know what

23 kind of charges have to be answered here and I know what sentence one

24 faces if found guilty. In all those seven years, I have not once thought

25 of fleeing. Instead, I decided to come here. The very process of my

Page 127

1 extradition went this way: The minister of defence informed us of the

2 indictments, and somebody asked us whether we would go within seven days.

3 We said - it was Friday then - we would go as soon as Monday. Get us the

4 tickets.

5 In my appearances, in my public appearances, I have never

6 expressed a single negative opinion against this Tribunal. I am a

7 law-abiding and loyal citizen of the Republic of Croatia. I uphold its

8 efforts to cooperate with this Tribunal. And as a regular citizen and an

9 official of my state, I support it in everything. I will not obstruct in

10 any way the efforts of my state to join the integration processes in

11 Europe. Therefore, I will remain at your disposal and will respond to

12 your summons at any time.

13 One more thing. I would not dream of leaving Croatia, because my

14 wife was -- had just undergone surgery for cancer and she needs

15 postoperative treatment. So I will remain either here in Scheveningen or

16 in Republic of Croatia and you may rest assured that I will promptly

17 respond to every summons I receive.

18 MR. OLUJIC: [Interpretation] Your Honours, with your leave, my

19 client Mr. Bruno Stojic would also like to address.

20 JUDGE ORIE: Yes. Well, equality before the Court for everyone.

21 But I give that opportunity to you --

22 THE ACCUSED STOJIC: [Interpretation] Your Honour --

23 JUDGE ORIE: -- not after I had expressed my wish that your wife

24 recovers well, Mr. Petkovic.

25 Please proceed, Mr. Stojic. Since Mr. Petkovic is not wearing his

Page 128

1 headphones, he might not have received my wishes, but ...

2 THE ACCUSED STOJIC: [Interpretation] I will take even less time,

3 Your Honour.

4 I did not mean to be long. I agree with everything my Defence

5 counsel said. I never had any intention of fleeing, nor will I ever run.

6 I didn't think when I was going to The Hague that it was that kind of

7 prison. All sorts of rumours circulated. It's not as bad as rumour had

8 it. It looks more like a home for the elderly than like a prison. I am

9 physically able to withstand it and I really assure you that I will return

10 here whenever requested to do so. Thank you.

11 JUDGE ORIE: Thank you. Mr. Jonjic, yes. It's the inevitable, I

12 would say. I take it that Mr. Coric also would like to address. Yes.

13 Mr. Coric, please do so.

14 THE ACCUSED CORIC: [Interpretation] Thank you, Your Honour. My

15 predecessors have already expressed most of what I wanted to say. I just

16 want to add: I came here to defend my honour and nobody can take away my

17 right to do that. So I will duly comply with every request to appear

18 before this Court if my motion for provisional release is granted.

19 In my life, I lived in two states. I was especially attached to

20 Croatia and Bosnia and Herzegovina. In addition, I travelled in the past

21 years throughout Bosnia and Herzegovina and I never had any problem. I

22 was involved in the case of the matter of Jozo Leutar, a former minister,

23 and the trial of the Mostar group. I responded to the summons of this

24 Court and I never interfered with any witnesses. I hope that you will

25 grant my motion and thereby ease the situation of my family in the future.

Page 129

1 Thank you.

2 JUDGE ORIE: Mr. Skobic, you are not going to tell me that

3 Mr. Pusic would like to address the Court as well, isn't it?

4 Mr. Pusic, please proceed.

5 THE ACCUSED PUSIC: [Interpretation] Thank you, Your Honour. I

6 apply for provisional release. I would like to go to Mostar, to my family

7 house in Blabuski Herzodovo [phoen] street number 4, in the house which is

8 owned by my in-laws. If that is not possible, can you please

9 provisionally release me to Zagreb to the Drag Ivanisovico [phoen] street.

10 I am also prepared to be under house arrest in Zagreb. My health

11 condition is not good. I still feel pain. I still have problems with my

12 spine. I'm concerned about my health because, due to my stay in the

13 detention, I couldn't go for rehabilitation. Because of uncertainty of

14 the outcome of my treatment, I have psychological difficulties. I will

15 live on the proceeds of my former work. I used to be the general manager

16 of a company. My family will help me. I have three brothers and three

17 sisters who are willing to give me their help and I accept everything that

18 my brother -- my lawyer has said previously.

19 JUDGE ORIE: Thank you, Mr. Pusic.

20 Then, Mr. Ambassador Krnic, I do understand that you'd like to

21 address the Chamber as well.

22 MR. KRNIC: [Interpretation] Mr. President, thank you very much.

23 Your Honours, I would like to draw attention to two details that the

24 Prosecution has presented here today, because it seems to me that they

25 misrepresent the role of the Republic of Croatia that I resent. If I were

Page 130

1 attending an international conference, I would probably have to file an

2 official protest for such allegations. However, since we are in a

3 courtroom, I would like to express my embitterment, having heard such

4 allegations. At one moment, the Prosecutor insinuated that there was a

5 suspicious partnership when it comes to the Republic of Croatia giving its

6 guarantees. What he said was that the guarantees are given without any

7 second thoughts, that the Republic of Croatia is paying for some services

8 rendered to it by the accused, and the impression has been created in one

9 way or another that the guarantees are not serious.

10 I would like to state the following: The Republic of Croatia is

11 not in any partnership, let alone suspicious partnership, with the

12 individuals who are present here. It merely protects them based on the

13 Vienna Conventions, which gives certain commitments and obligations to

14 Croatia and orders it to protect its citizens. That's the first detail.

15 The second detail is as follows: Actually, the way the Prosecutor

16 denied the seriousness of the guarantees given by the Republic of Croatia

17 boil down to the lack of efficiency of these guarantees. In my view, the

18 Republic of Croatia has provided guarantees only in those cases when it

19 was certain that it could fully stand behind those guarantees. There have

20 been many more citizens of the Republic of Croatia who were charged before

21 the Tribunal than those for whom guarantees were given. General Gotovina

22 has been mentioned and other fugitives who were either at large or

23 arrested or were brought in here after a long time of hiding.

24 I would like to underline that these people have not been provided

25 guarantees by the Republic of Croatia. In other words, the Republic of

Page 131

1 Croatia will only give guarantees when it can fully stand behind those

2 guarantees and comply fully with the commitments given by way of those

3 guarantees.

4 Thank you very much.

5 JUDGE ORIE: Thank you, Mr. Krnic. If this would have been a case

6 of the Prosecutor versus Croatia, I would have asked a lot of questions of

7 the Prosecutor. But he already said somewhere in his remarks that

8 Mr. Gotovina is not here, for whatever reason. So I understood this to be

9 that there's no firm blame by the Prosecution on the Croatian government

10 that Mr. Gotovina is not here. So I -- since what the Prosecutor --

11 counsel for the Prosecution said expressed some doubts, I gave you an

12 opportunity to respond. But let's be -- let one thing be sure: The first

13 thing that counts here is that the accused appear for trial and will not

14 interfere with witnesses, and that guarantees by the government,

15 guarantees are never without risks. I would rather say commitment of

16 governments could only support that. That is well understood and that's

17 the reason why I did not put any additional questions to the counsel of

18 the Prosecution where certainly, as you have demonstrated, some questions

19 could be put to the position he has presented here.

20 This concludes the hearing on the motion on provisional release.

21 We'll have a short break and then we'll continue hearing on other motions.

22 The break, presumably, will take some taken minutes, because the tapes

23 have to be changed again. And then we'll have a short motion -- hearing,

24 which at least in its start will not be a public hearing.

25 We'll adjourn for ten minutes.

Page 132

1 --- Whereupon the Motion Hearing

2 adjourned at 6.20 p.m., to be followed by an

3 Ex Parte Hearing.