1 Thursday, 4th March, 1999
2 (Open session)
3 (The accused entered court)
4 --- Upon commencing at 2.32 p.m.
5 JUDGE MAY: Yes. If the registrar would call
6 the case, please?
7 THE REGISTRAR: Good afternoon, Your
8 Honours. This is case number IT-95-9-PT, the
9 Prosecutor versus Milan Simic, Miroslav Tadic, Stevan
10 Todorovic, and Simo Zaric.
11 JUDGE MAY: The appearances?
12 MR. NIEMANN: Good afternoon, Your Honours.
13 My name is Niemann, and I appear standing in for
14 Ms. Haslund who is ill, unfortunately, and I appear
15 with my colleagues, Ms. Paterson and Dr. Staker, if
16 Your Honours please, for the Prosecution.
17 JUDGE MAY: Thank you. And for the Defence?
18 MR. BRASHICH: Good afternoon, Your Honours.
19 Deyan Brashich appearing for the defendant Stevan
21 MR. PANTELIC: Good afternoon, Your Honours.
22 Igor Pantelic acting on behalf of Mr. Miroslav Tadic.
23 MR. PISAREVIC: (Interpretation) Good
24 afternoon. I am Borislav Pisarevic, acting on behalf
25 of Mr. Simo Zaric.
1 MR. AVRAMOVIC: (Interpretation) Good
2 afternoon, Your Honours. I am Branislav Avramovic,
3 representing Mr. Milan Simic.
4 JUDGE MAY: Thank you. This hearing is to
5 deal with various outstanding motions. I was not
6 present on the hearing last week, but as I understand
7 it, the following matters are outstanding:
8 Firstly, there was a motion which was
9 heard -- and I, of course, read the transcript --
10 concerning an alleged conflict of interest in counsel
11 representing Mr. Simo Zaric, that is, Mr. Pisarevic.
12 That matter was fully argued, but the Trial Chamber
13 agreed to hear any representations which any of the
14 accused wish to make, and we will hear those to start
16 There are then two motions on behalf of
17 Mr. Todorovic: Firstly, a motion in relation to an
18 evidentiary hearing which he applies for in relation to
19 his arrest, and then there is a motion to sever
20 counts. Those matters were not heard on the last
21 occasion because a Bench of three, it was thought,
22 should hear it.
23 Those are the matters which are outstanding,
24 as I understand it. When we have concluded those, I
25 hope that there will be time before we finish at about
1 half past five to have a Status Conference so that we
2 can see what progress is being made in this case.
3 Very well. Are there any other matters
4 before we go into those motions? Anybody want to raise
6 Very well. I am going to turn to the
7 accused, and as I have already said, the Trial Chamber,
8 on the last occasion, did agree to hear any
9 representations which any of you may want to make on
10 this topic.
11 Mr. Brashich, yes?
12 MR. BRASHICH: Yes, Your Honour. On behalf
13 of Mr. Todorovic, I will make a representation that I
14 have fully discussed the conflict issue, and it is the
15 position of the accused Todorovic that it does not
16 intend to call Mr. Pisarevic either on its case in
17 chief or in rebuttal, and I speak for my client, Your
19 JUDGE MAY: Thank you. Now, as far as the
20 other accused who are present, or indeed representing
21 the absent accused, I shall ask if there is anything
22 that they would like to say or anything additional they
23 would like to say through their counsel.
24 Now, Mr. Pisarevic, does Mr. Zaric wish to
25 say something about this?
1 MR. PISAREVIC: (Interpretation) Your Honours,
2 certainly Mr. Zaric would like to comment as it has to
3 do with his right of choice of Defence counsel, and he
4 would like to acquaint the Trial Chamber with his
6 JUDGE MAY: Very well. Mr. Zaric, we will
7 hear from you.
8 THE ACCUSED ZARIC: (Interpretation)
9 Mr. President, Your Honours, there is no need for me to
10 waste words in discussing to what extent my rights
11 would be called in question if the position of my
12 attorney, Mr. Pisarevic -- if he were prevented from
13 defending me in this already final pre-trial stage, and
14 I hope that the trial itself will begin shortly.
15 Of course, I have still not lost hope that
16 the gentlemen from the Prosecution who have certainly
17 dealt in-depth into the situation in wartime Samac will
18 propose to the Trial Chamber that the indictment be
19 quashed and I be released. That would be an honourable
20 act on their part. But awaiting such a move on the
21 part of the Prosecution -- I just wish to tell Your
22 Honours that I chose Mr. Pisarevic as my attorney for
23 two main reasons: First, because, as a man, I have
24 full trust in him in every respect and I hope that
25 there is no need for me to elaborate on that; and,
1 secondly, because in addition to his professional
2 ability and his reputation as an attorney in Samac and
3 broader, I respect him as a man who spent the whole
4 wartime period in Samac, who has authentic knowledge of
5 the situation in the town and around it at the time,
6 and who went through this hell together with me, and I
7 am deeply confident that in addition to his obligations
8 towards me as a client, which cannot be called in
9 question, Mr. Pisarevic will also be of great value to
10 this Trial Chamber as a participant in those events and
11 as an honourable and honest individual.
12 Therefore, as a person well-versed in the
13 conditions in the town of Samac in the period under
14 consideration in this trial and on the basis of insight
15 into the Prosecution's documents which has drawn
16 attention to the possibility of a conflict of interest,
17 I wish to point out that between me, as the accused,
18 and Mr. Pisarevic, as my Defence counsel, in no stage
19 of the proceedings can a conflict of interest occur.
20 I also take the liberty to say that in the
21 case of the other co-accused and the Prosecution too,
22 this cannot be questioned if the substance of the
23 problem is viewed rather than the marginal effect of
24 certain relevant facts. Your Honours, thank you.
25 JUDGE MAY: Very well. Thank you,
1 Mr. Zaric.
2 Now, does anybody else want to say anything?
3 Mr. Tadic, do you want to say anything? Yes,
4 Mr. Tadic?
5 THE ACCUSED TADIC: (Interpretation) Your
6 Honours, my position too is that between me and
7 Mr. Zaric in this trial, there would be no conflict of
9 JUDGE MAY: Thank you. Yes, Mr. Avramovic?
10 MR. AVRAMOVIC: (Interpretation) Your Honours,
11 as we all know, Mr. Milan Simic, my client, is not here
12 present today, but I have briefed him on all the
13 details linked to the Prosecution motion, and I would
14 like to convey his position.
15 The Defence of Mr. Simic, and he in person,
16 will not call Mr. Pisarevic as a witness in this case.
17 The position of Mr. Milan Simic is,
18 furthermore, that should Mr. Pisarevic appear as a
19 witness under any circumstances, his Defence reserves
20 the right to examine him as a witness.
21 That is the position of Mr. Milan Simic and
22 his Defence. Thank you.
23 JUDGE MAY: Thank you. Very well. We will
24 move on next to the other motions. It would seem
25 convenient to deal, first of all, with the motion in
1 relation to an evidentiary hearing.
2 We have received, in relation to that, the
3 motion and a response, both dated last month, and we
4 have also received a memorandum of law which strictly
5 is outside the normal pleadings, but if Mr. Brashich
6 wants us to consider it, then he can apply for us to do
8 You could take it, as I say, that we have
9 read those documents, but we will hear submissions on
10 anything else.
11 MR. BRASHICH: Thank you, Your Honour.
12 The Defence, at this present juncture, is
13 placed in a very difficult position. In order to move
14 this Court with a request that the indictment be
15 dismissed, quashed, and for a further order that my
16 client be returned to the Federal Republic of
17 Yugoslavia, in order to establish a prima facie case, I
18 would have to put before this Court, without a limiting
19 order, testimony by Mr. Todorovic which would open the
20 door to cross-examination on other wide-ranging
22 Based on that consideration, I chose to move
23 this Trial Chamber for an evidentiary hearing to
24 ascertain the nature of the arrest and apprehension of
25 my client and then for a further order to make the
1 motion to dismiss and for an order, they can call it
2 repatriation, to a country of his refuge.
3 In the original motion, I had alleged and
4 offered, at least as some evidence, newspaper reports
5 as to my client's abduction. The Prosecutor saw fit to
6 go at great lengths that this was not a prima facie
7 case, and I again returned back to the quandary that
8 the Defence is or was placed initially when it made the
10 However, once the Defence has raised an
11 illegal abduction, violation of sovereign laws, I
12 believe that the Trial Chamber should take the position
13 that the burden has shifted to the Prosecution. The
14 Prosecution now has the burden to justify the
15 abduction, if there was one, or if there was not one,
16 to come forward and say, "Mr. Todorovic was found in a
17 cafe in Dusseldorf, recognised by a German police
18 officer, arrested, read his rights, and thereafter the
19 machinations of removing him to the United Nations'
20 detention facility took place, and here he is now
21 before this court in a lawful and proper way.
22 The burden shifts even further to the
23 Prosecution, or perhaps it shifts back to the Defence,
24 that I have the right to establish what participation,
25 if any, agents, servants, or employees of the
1 Prosecution participated in this abduction or whether
2 some other agents of the United Nations, surrogates
3 thereof, acting in concert, did that, which would
4 elevate the abduction to state action.
5 I believe that another Trial Chamber in this
6 very court has followed that procedure, and that is the
7 case of the Prosecution against Slavko Dokmanovic,
8 IT-95-13a-PT, where just such an evidentiary hearing
9 was held.
10 Now, I had made an offer of proof in
11 my memorandum of law that should this Court grant a
12 motion in limine and allow the defendant to testify
13 without waiving any of his other rights, solely on the
14 issue of arrest, abduction, kidnapping, and other
15 violations of law which occurred, he would testify that
16 he was on the territory of the Federal Republic of
17 Yugoslavia in September 1998. He will testify that
18 four individuals came to the premises where he was
19 living with weapons and, under threat of force, took
20 him from his place of residence, blindfolded him, put
21 him into a car, and drove him across the territory of
22 the Federal Republic of Yugoslavia, a telephone call
23 was made, that thereafter, while blindfolded, he was
24 taken across the River Drina, walked through the
25 territory of the Republic of Bosnia-Herzegovina, that a
1 walkie-talkie telephone call was made, that a
2 helicopter appeared within 10 or 15 minutes, that he
3 was thrown blindfolded into the helicopter and then
4 taken to an armed forces base. This all happened in
5 two or three hours.
6 It raises the issue of the Prosecution's
7 involvement in this abduction or people acting on
8 behalf of the Prosecution, and if these were the
9 traditional bounty hunters of the Wild West, whether or
10 not the Prosecution had, in fact, paid for the
11 commission of crimes under the laws of the Republic of
12 Yugoslavia or under the laws of the Republic of the
13 Federation of Bosnia-Herzegovina.
14 Then in my memorandum of law, because this is
15 a subject that has been debated at great length and
16 many opinions and decisions made by various
17 jurisdictions, I asked further leave to fully brief the
18 issues. I brought to the Court's attention a law
19 review article of Jiaming Shen, which appeared in the
20 Denver Journal of International Law and Policy, which
21 discusses the illegal abduction/detention, both by
22 state agencies and by private individuals.
23 At this present time, Your Honour, I'm not in
24 a position, unless I get the evidentiary hearing,
25 whether to address the issues that I have raised solely
1 as to the bounty hunter, the totally private
2 individual, and thereafter the adoption, the
3 concurrence, the approval of the Prosecution of such
4 illegal acts or, on the other hand, as I suspect based
5 on the time factors and how this whole abduction took
6 place, that I will be in a position to further argue
7 "actual state," and I'm putting that in quotes and I'm
8 using the word "state" as it appears in various
9 decisions and treaties, the state action of the
10 Prosecutor here as, in fact, being raised to a higher
11 level, and not only an initial violation of local laws
12 and thereafter that violation rising to international
13 violations of law, to an immediate finding that there
14 was a violation of international law by a state, in
15 this instance, a self-contained state called the
16 International Criminal Tribunal for former Yugoslavia.
17 As is noted in various articles and treaties,
18 there really is one case in point, and that's the
19 Eichmann case where alleged private individuals
20 spirited Eichmann to Israel for trial. The authorities
21 all concur that it was the uniqueness, the gross crimes
22 committed by Eichmann during the Second World War, that
23 makes Eichmann's case not to be followed in a situation
24 such as this.
25 I am mindful of the decisions in my country,
1 the United States, including the last decision of the
2 Supreme Court. I submit, Your Honour, that the
3 standards that a sovereign nation applies are not the
4 standard that this International Tribunal should
5 apply. This is an International Tribunal, and if there
6 is international law, then this Tribunal perforce must
7 pay respect and do all in its power to uphold
8 international law, and if international law has been
9 breached, as the cases suggest, there is only one
10 appropriate decision that this Court can make, to free
11 Mr. Todorovic, to order his forthwith return to the
12 former Yugoslavia, to allow thereafter whatever the
13 law, including the Statutes of this Tribunal, provide,
14 and if someone had violated the law, to apply either
15 corrective measures or punitive measures, and for an
16 example, I note, in reading one of this Court's
17 decisions, that apparently perjury occurred, and it's
18 being pursued by the Prosecutor's office or some other
19 branch of this Tribunal because its very existence is
20 threatened by breaches of law such as perjury or, in
21 this instance, by illegal criminal acts.
22 So I would again urge that I get an
23 evidentiary hearing, that the Prosecutor be forced to
24 disclose the names of all participants who had, in any
25 way, dealt with the arrest and abduction of my client,
1 and then leave it for me to make an appropriate
3 Thank you, Your Honour.
4 JUDGE MAY: Mr. Brashich, let me just follow
5 your final point.
6 MR. BRASHICH: I'm sorry, Your Honour. I
7 didn't hear you.
8 JUDGE MAY: Let me follow your final point.
9 You ask for an evidentiary hearing, and at that
10 hearing, you're asking that your client should give
11 evidence; is that right?
12 MR. BRASHICH: Yes, with a motion in limine
13 where his testifying would not open the door, except to
14 the issue of abduction.
15 JUDGE MAY: And then you say that there
16 should be an order to the Prosecution --
17 MR. BRASHICH: For discovery.
18 JUDGE MAY: What, all details that they know
19 about the arrest; is that what you're asking for?
20 MR. BRASHICH: The names of the witnesses,
21 the participants, if there are any reports which have
22 been made by the United Nations forces or who had acted
23 either prior to the abduction, during the abduction, or
24 at the tail end of the action so that I can interview
25 them, and then I can either show, and again I put this
1 in quotes "private action" or, in the alternative,
2 state action and lay that at the doorstep of the
4 JUDGE MAY: Yes. Thank you.
5 MR. BRASHICH: Thank you, Your Honour.
6 JUDGE MAY: Who is going to deal with this?
7 MS. PATERSON: Thank you, Mr. President.
8 Before I begin, I will tell the interpreters that I
9 will make every effort to speak slowly today. I'm
10 reminded of that every time, and I will make a best
11 effort today.
12 The Prosecution submits that the accused's
13 motion regarding his arrest is, first of all, not
14 timely, that it should be dismissed in limine on the
15 ground that it discloses no prima facie basis for any
16 judicial inquiry, that even if the motion were
17 considered on its merits, it should be denied in its
18 entirety as the relevant facts, even if proved, would
19 not constitute a violation of the fundamental rights of
20 the accused, and finally, the accused has failed to
21 make a sufficient legal showing to warrant the remedies
22 that he has requested.
23 We would begin by noting, as we have in
24 response to all the other motions filed by Mr. Brashich
25 on behalf of Mr. Todorovic, that the motion was not
1 brought in a timely manner. It was not filed initially
2 by the date set in the scheduling order, and no good
3 cause was shown for the late filing.
4 As Your Honour noted, Mr. Brashich has,
5 indeed, since then now filed another memorandum, again
6 outside the scheduling order. It's our contention that
7 all parties must respect the orders of the Trial
8 Chamber and that, again, the Defence has made no good
9 cause showing for why this motion was filed late, and
10 he should be precluded from filing the instant motion.
11 In regard to timeliness, however, we feel
12 there's an even more egregious error on the part of the
13 Defence, and that is that they failed to bring this
14 motion before the Court at the earliest opportunity.
15 Since the subject of the motion deals with the alleged
16 non-compliance with the Rules, pursuant to Rule 5(b),
17 this motion should have been brought at the earliest
18 opportunity. If, as the Defence alleges, this is such
19 a serious violation of the defendant's rights that it
20 warrants dismissal of the indictment and immediate
21 release of the defendant, then arguably this motion
22 should have been filed within the first 24 hours after
23 the defendant appeared here before the Tribunal.
24 Failure to do so belies the Defence argument as to the
25 serious nature of the alleged offences committed in
1 taking the defendant into custody.
2 At his first appearance before this Chamber
3 on the 30th of September, 1998, the defendant informed
4 the Court that he had allegedly been taken from his
5 hiding place, which Mr. Brashich refers to as his
6 country of refuge, and that he had allegedly been taken
7 from that hiding place in the Federal Republic of
8 Yugoslavia and transported to Bosnia where his arrest
9 was affected, and on the same occasion, the Defence
10 counsel at the time, Mr. Neskovic, commented on the
11 record about the circumstances of the arrest.
12 While it is true that the OTP amended the
13 indictment after the 30th of September and that
14 amendment then triggered new periods in which to file
15 motions, the amendment of the indictment in no way
16 whatsoever changed the alleged facts on which the
17 defendant is claiming today to challenge the legality
18 of his arrest nor can it be an excuse that the current
19 Defence counsel, Mr. Brashich, replaced the original
20 Defence counsel, Mr. Neskovic, in December. That
21 change also did not in any way affect either Defence
22 attorney's ability to file this motion in a timely
24 The Rules of Procedure of this Tribunal are
25 established to guarantee a fair trial for all the
1 parties, the Defence and the Prosecution. The Court
2 should not allow late filings and disregard for the
3 Rules, especially without a request to file the motions
4 late or any showing of good cause.
5 Even if Your Honours are not persuaded by the
6 timeliness argument, the accused's motion does not
7 establish a prima facie basis for judicial inquiry.
8 Despite what Mr. Brashich says, the onus is on the
9 accused as the moving party to satisfy the Trial
10 Chamber that there is a serious question of law to be
11 considered. Without such a showing, the lawfulness of
12 the detention of the accused and the regularity of the
13 conduct of the Tribunal staff must be presumed.
14 In order to make a prima facie showing, the
15 accused must first state with specific particularity
16 the facts which give rise to the illegality. Second,
17 present arguable, legal reasons why the facts alleged
18 by the Defence, if proved, would render the accused's
19 arrest or detention unlawful, and finally must provide
20 the Trial Chamber with sufficient factual material to
21 establish a prima facie basis for the accused's
23 The motion before the Court contains no
24 statement of the accused's version of the facts nor any
25 firsthand allegation of fact at all. Mr. Brashich
1 today has argued that he could not present such a
2 version of the defendant's facts without the defendant
3 testifying at the hearing, but the Prosecution sees no
4 reason why an affidavit could not have been prepared
5 and submitted to this Court limited strictly to the
6 facts of his arrested as alleged by Mr. Todorovic.
7 The Defence has also attempted to bolster its
8 original argument by means of an offer of proof filed
9 just this past Monday, but that offer of proof sheds no
10 new light on the facts or the original legal
12 In its original motion, the Defence merely
13 referred to published reports that the accused was
14 allegedly illegally abducted from the territory of the
15 FRY. The attachment to the motion appears to be no
16 more than a copy of the first two pages of a three-page
17 message which was posted by a private individual on an
18 e-mail bulletin board, and the message contains what
19 purports to be the text of a single report from The
20 Times newspaper of London. The attachment is thus, at
21 best, a source of fourth-hand or fifth-hand hearsay.
22 Mere reference to this quadruple or quintuple hearsay,
23 which fails to even identify the original sources,
24 accompanied by the accused's own failure to give an
25 account of his own of the facts, is clearly
1 insufficient to establish a factual basis on which to
2 consider the motion.
3 It is particularly noteworthy that the
4 Defence motion contains no reference to any conduct
5 whatsoever on the part of the Prosecutor. The Defence
6 presents no facts to support the contention that the
7 Prosecutor, in some way, acted in concert with SFOR or
8 anything else in relation to any actions which may have
9 been carried out in regard to the defendant's arrest in
10 the territory of the FRY.
11 Based on the motion submitted by the Defence,
12 he asked this Court, simply by referring to a posting
13 on an e-mail bulletin board, whose basis is multiple
14 levels of hearsay, to shift the burden to the
15 Prosecution to justify the legality of the defendant's
16 arrest and detention, and he then asks the Trial
17 Chamber to undertake an open-ended inquiry into the
18 surrounding circumstances of the defendant's seizure,
19 an undertaking which would amount to nothing more than
20 a fishing expedition on the part of the Defence.
21 The Defence submission manifestly fails to
22 satisfy the requirements, (1) to state, with sufficient
23 particularity, the facts, and (2) to provide the Trial
24 Chamber with sufficient factual material to establish a
25 prima facie basis for the accused's contention.
1 Most significantly, as we will detail in the
2 remainder of our argument, the accused fails to present
3 any arguable legal reasons why the facts as alleged by
4 the Defence, even if proved, would render the accused's
5 arrest or detention unlawful. This Trial Chamber
6 should insist that the Defence present it with
7 sufficient factual material to establish a prima facie
8 basis for the accused's contention, and having failed
9 to do so, this motion should be dismissed in limine on
10 the ground that it discloses no serious question of law
11 to be examined.
12 While we believe we have already provided the
13 Trial Chamber with several reasons to deny the
14 Defendant's motion, even if the illegality or
15 irregularity suggested in the accused's motion were
16 true, which we do not concede, that would not justify
17 the relief being sought.
18 In beginning to consider the subject of the
19 Defence's contentions, we would first remind the
20 Chamber of the limited relationship that the Tribunal
21 has with those who act as our so-called police force,
22 and that we stress the fact that the Office of the
23 Prosecutor had no involvement in any alleged activity
24 relating to the accused's removal from the FRY.
25 THE INTERPRETER: Counsel, slow down, please.
1 MS. PATERSON: Before addressing those
2 points, let me remind the Court of the facts in regard
3 to Mr. Todorovic.
4 Mr. Todorovic was indicted on the 21st of
5 July, 1995, and arrest warrants were signed the same
6 day and served on the authorities of Republika Srpska
7 and Bosnia and Herzegovina. Todorovic was indicted for
8 multiple counts of murder, wilful killing, wilfully
9 causing great suffering, cruel treatment, inhumane
10 acts, inhuman treatment, humiliating and degrading
11 treatment, rape, and torture. The indictment was made
12 public and was widely reported in the media, including
13 in the former Yugoslavia.
14 Todorovic had known for over three years that
15 he was wanted by the ICTY. During those three years,
16 he was living in Republika Srpska and was known to
17 spend time in Pale. Despite having been served with a
18 copy of the arrest warrant on the 24th of July, 1995,
19 the government authorities of Republika Srpska refused
20 to arrest him and turn him over to the ICTY. He
21 continued to elude capture, and once it became clear
22 SFOR was actively arresting persons in Republika
23 Srpska, Mr. Todorovic moved to the FRY where he knew
24 the government was also refusing to arrest and turn
25 over persons indicted by the ICTY.
1 Thus we are discussing an indicted war
2 criminal who has intentionally hidden himself for three
3 years from any authorities who would or could arrest
4 him. As a war criminal, he is charged with some of the
5 most serious criminal offences that exist in
6 international law.
7 Taking all that into consideration, we remind
8 the Court at the start that the Tribunal is a unique
9 international organisation created pursuant to Chapter
10 7 of the U.N. Charter. It is not a state and it cannot
11 be equated with a state.
12 In its motion, the Defence alleges that the
13 accused was forcibly abducted from the FRY and taken to
14 Bosnia. Even if that were true, which we in no way
15 concede, a review of the case law applicable to
16 incidents of alleged forcible abductions shows that the
17 argument made against such activity is based on the
18 premise that permitting such actions would taint the
19 whole justice process if the police and Prosecution
20 authorities of the forum state were themselves involved
21 in the breaches of the same system of criminal law that
22 they are responsible for enforcing against others.
23 None of these cases suggest, as is the
24 analogous situation here, that a court should decline
25 to exercise jurisdiction over a defendant in
1 circumstances where the authorities of the forum state,
2 or in this case the forum tribunal, have acted with
3 propriety, merely because the authorities of another
4 state have acted irregularly.
5 Indeed, the process of justice would be
6 defeated if a prosecution were required to be stopped
7 whenever there was improper conduct on the part of
8 agents of another state, especially when the
9 authorities of the forum state can exercise no control
10 and have no power of sanction.
11 This has been noted by other Trial Chambers.
12 The Tribunal lacks any police or other enforcement
13 agency of its own and must rely upon the cooperation of
14 states for the arrest and delivery of indictees. Since
15 the Tribunal has to rely on the military and police
16 forces of other states to arrest our indictees, we are
17 certainly not in a position to exercise operational
18 control over the state agents who provide that support
19 nor should we seek to exercise such control, since to
20 do so would overstep the bounds of our role as
21 Prosecutors and Judges. Policing matters should be
22 left to those professionals who are in a position to
23 assess the situation and make the proper decisions
24 regarding operational matters.
25 In addition to having no control over SFOR or
1 any private individuals who might have been involved in
2 the arrest of Mr. Todorovic, the Office of the
3 Prosecutor had no prior information of any proposed
4 operation to secure the arrest of the accused. The
5 first knowledge that the Office of the Prosecutor had
6 of the matter was on the 27th of September, 1998, when
7 it was informed by SFOR, pursuant to established
8 procedures and Rule 57, that SFOR had the accused in
9 custody in northern Bosnia. Investigators from the
10 Office of the Prosecutor immediately went to the Tuzla
11 air base where they effected his arrest and followed
12 all the procedures mandated by the Rules, including
13 Rules 55, subsections E, F, and G.
14 In light of these issues, we respectfully
15 urge the Court to bear in mind the reality of the
16 Tribunal's unique situation as well as the reality of
17 Mr. Todorovic's situation as you consider our
19 Turning now to the substance of the Defence
20 motion, the accused alleges that his fundamental rights
21 were violated, but he fails to articulate what specific
22 fundamental rights were violated, and even if true, why
23 dismissal of the indictment is the only remedy
24 available to the Court.
25 Even if we were to assume for the sake of
1 argument the following facts -- and I wish to stress
2 for the Court, for everyone in the public gallery, and
3 for the media, that we do not in any way concede these
4 facts, we are assuming them only for the purposes of
5 argument -- there is still no showing that the
6 Defendant's fundamental rights were violated.
7 Let us assume arguendo that the accused had
8 been invited by the Tribunal, that the accused was in
9 the FRY where he could be reasonably certain, from the
10 past record of the authorities there, that he would be
11 safe from arrest and beyond the reach of the Tribunal.
12 Let us assume that the accused was taken forcibly and
13 against his will from FRY territory by agents of a
14 state or states other than the FRY and that the only
15 arrest warrants relating to the accused that had been
16 issued by the Tribunal were addressed to authorities in
17 Bosnia and Herzegovina and the Republic of Serbia, of
18 which copies had been transmitted to SFOR. Let us
19 assume that his forcible removal from the FRY was
20 effected without the consent of the FRY authorities and
21 constituted a violation of the sovereignty of the
22 FRY under international law as well as a breach of the
23 municipal law of the FRY, and, finally, let us assume
24 that the accused was immediately transported within
25 Bosnia and Herzegovina to a point of embarkation and
1 flown to The Hague where he was taken to the Tribunal's
2 detention unit.
3 Despite this scenario, even if the Defendant
4 were taken from the FRY against his will, this does not
5 mean that any violation of a state sovereignty
6 necessarily entitles an accused to a remedy.
7 Most case law decisions on the issue of
8 violations of sovereignty are premised on the fact that
9 the removal of the accused from the other state
10 involved a circumvention of applicable extradition
11 procedures. But the Tribunal is not a foreign
12 jurisdiction or a state, it is an international
13 judicial body that enjoys world-wide jurisdiction over
14 any accused anywhere in the world. A violation of
15 state sovereignty is a violation of the rights of the
16 relevant state. To be entitled to a remedy, the
17 accused would need to establish that this violation of
18 a state's sovereignty also constituted some violation
19 of his own fundamental rights. Furthermore, as noted
20 in the Blaskic case before this Tribunal, no state has
21 a right to insist on any special protections such as
22 those that arise in extradition scenarios, before
23 handing an accused over to the Tribunal.
24 In addressing an issue relating to an
25 extradition matter, the Appeals Chamber of this
1 Tribunal has held that the principle of speciality, a
2 common protection for accused persons under extradition
3 arrangements, has no counterpart in the case of an
4 accused who is transferred by a national authority to
5 the Tribunal.
6 For all of the reasons I have just cited,
7 there is clearly no violation of any rights of the
8 Defendant under the laws of extradition.
9 As noted, the Defendant has alleged that he
10 was forcibly abducted from the FRY, but even if true,
11 the facts of this case are entirely distinguishable
12 from a case where an accused, who is subject to the
13 protection of the laws of one country, is forcibly
14 removed contrary to the laws protecting him into the
15 jurisdiction of another country's legal system.
16 An accused's right to security of the person
17 does not confer a right to seek protection from the
18 processes of the Tribunal by remaining in a country
19 that the accused can competently expect will fail to
20 fulfil its obligations of cooperation with the
21 Tribunal. It would be legally inconsistent and against
22 common sense if an individual right could be deducted
23 from a state's reluctance or failure to comply with its
24 international obligations.
25 Such a doctrine might potentially encourage
1 certain states, such as the FRY, to ensure that serious
2 irregularities are committed in the arrest process
3 before handing the accused to the Tribunal, being
4 confident that after review, the indictment would be
5 dismissed and the Defendant released because the
6 Defendant's rights had been violated by the authorities
7 in the FRY. Under that scenario, the states concerned
8 could claim that they are fulfilling their obligation
9 of cooperation while, at the same time, sabotaging the
10 Prosecution because the Defendant's fundamental rights
11 were violated by the irregularities in the process.
12 As noted in the Dokmanovic case referred to
13 by Mr. Brashich, pursuant to Rule 59 bis, once an
14 arrest warrant has been transmitted to an international
15 authority, an international body, or the OTP, the
16 accused person named therein may be taken into custody
17 without the involvement of the state in which he is
19 If the FRY wanted to claim that there had
20 been a violation of its sovereignty, and there is no
21 indication of any relevant protest by the FRY, this
22 would be a matter to be resolved between the states
23 concerned in accordance with the international law
24 principles of dispute settlement. It does not invoke a
25 personal right on the part of the accused. Even in the
1 Defence motion there is no suggestion that the rights
2 of the accused under Rule 55 were not observed at the
3 time of arrest by OTP personnel.
4 We also note that the accused is now in the
5 custody of the Tribunal, in apparent good health, and
6 not suffering from any serious injury, because even if
7 force was utilised, the force was reasonable under the
8 circumstances as is permitted in all national arrest
9 scenarios. Thus there are no grounds for dismissing
10 the indictment due to irregularities in the process,
11 and the Trial Chamber should be cautious of ruling in
12 such a way that encourages states to violate a
13 Defendant's rights as a means of circumventing an
14 otherwise lawful Prosecution.
15 The OTP acknowledges that accused persons do
16 have the right to liberty and security of the person
17 under international law, as recognised in the
18 International Covenant on Civil and Political Rights
19 and the European Convention on Human Rights, but none
20 of those rights have been violated in this situation.
21 The Defendant was not deprived of his liberty except on
22 grounds and in accordance with such procedure as are
23 established by law, specifically, according to the
24 Statute of the Tribunal. Furthermore, the Defendant
25 was lawfully arrested and detained pursuant to a
1 competent legal authority, that being the Tribunal,
2 based on an arrest warrant, which is proof that a Judge
3 of the Tribunal found a reasonable suspicion that the
4 Defendant had committed the offences charged.
5 The Defendant cannot allege that some
6 fundamental right was violated because an arrest
7 warrant was not addressed specifically to the FRY or
8 that the lawful procedures of the FRY were not followed
9 since there is no Rule that a person indicted by the
10 Tribunal can be arrested only pursuant to the national
11 law of the place where the person is located.
12 In the Dokmanovic case, that Trial Chamber
13 noted, in examining Articles 19 and 20 of the Tribunal
14 Statute, that as long as a valid arrest warrant has
15 been issued by the Tribunal, regardless of who may have
16 been provided with copies, the accused may then be
17 validly arrested in a state by an international
18 authority, even if that state is itself unaware and
19 does not participate in the arrest. Not only is it
20 immaterial whether or not an arrest warrant was
21 expressly extended to the FRY, but upon reviewing the
22 long history of noncompliance by the FRY, the Trial
23 Chamber in the Dokmanovic case noted that utilisation
24 of the procedure for arrest contemplated by Rule 55
25 would have been futile.
1 We contend the same is true here. In this
2 case, valid arrest warrants were issued, thus all
3 states were authorised to detain Mr. Todorovic for
4 transfer to the Tribunal whether or not they had
5 received their own copy of the arrest warrant. In
6 fact, it must be remembered that states have certain
7 obligations under the Tribunal Statute.
8 THE INTERPRETER: Please slow down.
9 JUDGE MAY: Ms. Paterson, I don't know if you
10 are going to be very much longer, but would you have an
11 eye on the clock, please, and if you could summarise
12 what else you have got to say? Bear in mind that we
13 have had your fairly lengthy written submissions and we
14 have read those.
15 MS. PATERSON: Yes, Mr. President. I don't
16 have that much more. Thank you.
17 We would remind this Tribunal that the states
18 have certain obligations under the Tribunal Statute and
19 Rules, specifically Rules 55, 56, and 57, to make an
20 arrest. An arrest warrant imposes a binding legal
21 obligation on the addressee state to arrest and
22 surrender the relevant accused. Failure to execute the
23 arrest must be reported and explained pursuant to
24 Article 29 and may entail adverse consequences for the
25 state in question.
1 Given this lawful authority, the arrest of
2 the accused, even if it occurred in a state that is not
3 the addressee of an arrest warrant, cannot be
4 considered arbitrary or a violation of the accused's
5 right to liberty and security of a person.
6 Finally, there are compelling reasons of
7 public policy and operational necessity for not
8 requiring the disclosure of further information as to
9 precisely how the accused is taken into custody. Such
10 information will add little or nothing to assist the
11 Chamber to arrive at its decision but will severely
12 compromise the prospects of future arrests and will
13 place lives at risk. The Prosecutor regards protection
14 of those interests as being of paramount importance.
15 When determining what are the appropriate
16 requirements of a fair trial, the Tribunal must do so
17 within the context of its own unique legal framework
18 and must take account of the peculiarities and
19 difficulties of proceeding before the Tribunal. The
20 reality is that certain states which are under a
21 positive legal obligation to surrender persons to the
22 Tribunal have consistently failed to fulfil their
23 obligations. The reality is also that certain states
24 and super-state entities such as SFOR have been willing
25 voluntarily to undertake operations to secure arrests
1 of the accused. Such operations clearly involve
2 serious security and other risks to the states
3 concerned, including risks to the lives of the
4 personnel involved.
5 Let us not forget that in at least three
6 arrest scenarios undertaken in recent months by SFOR,
7 shots have been fired and two people have been killed.
8 At least one SFOR soldier was injured. This is a very
9 serious business involving attempts to arrest persons
10 who have committed war crimes, the most serious
11 offences that exist under international law. That
12 said, it in no way means that the OTP condones any
13 violation of international law, and we assume that SFOR
14 will follow the law and do everything within its power
15 to minimise the use of force. However, SFOR must be
16 free to conduct these arrest missions in an appropriate
17 manner considering the nature of the defendants, the
18 locations where they are hiding, and the continuing
19 political and military tensions in the former
21 The desire of the states and forces concerned
22 to maintain the strictest confidentiality and respect
23 of the operational details of these activities is
24 readily understandable. Any requirement by the
25 Tribunal that such states and entities disclose such
1 details to the Trial Chamber can be expected to lead to
2 a withdrawal of their willingness to provide such
3 voluntary assistance. This would be contrary to the
4 interests of the fulfilment of the Tribunal's mandate.
5 JUDGE MAY: Do you say or submit that if we
6 made the order which is sought by the Defence, that is,
7 an order for discovery and disclosure of all details
8 concerning the arrest, that that would be the effect of
9 the order, as you have just described it?
10 MS. PATERSON: We suggest, Mr. President,
11 that SFOR and the police forces of the states involved
12 in arresting the indictees feel that disclosing details
13 of their operational orders, their means and methods of
14 operating in the field, how they undertake and conduct
15 their arrest operations, for purposes of security and
16 confidentiality, to protect the lives of their
17 personnel as well as all the different people that may
18 be working with them, would seriously jeopardise their
19 ability to conduct these arrests, and we have been
20 informed that serious consideration would be given as
21 to whether or not such action would be continued.
22 I cannot state definitively that that will
23 happen, but we have been informed that serious concerns
24 are shared by SFOR and other states concerning this
1 JUDGE BENNOUNA: (Interpretation)
2 Ms. Paterson, can you hear me?
3 MS. PATERSON: Yes.
4 JUDGE BENNOUNA: (Interpretation) The point
5 that you have just made regarding SFOR, the
6 stabilisation force, are already contained in your
7 written document that has been given to us and that is
8 quite well-argued. You are going a little further by
9 saying that if we insist on the withdrawal of the
10 indictment by the Office of the Prosecution, that this
11 should not be considered. The problem of SFOR is not
12 being raised here as well as the problem of the
13 responsibility of states. What we are concerned with,
14 as in the case of Dokmanovic which is quoted from
15 abundantly, are two points: The first is to see
16 whether there was any kind of collusion between the
17 Office of the Prosecutor or any other personnel of the
18 Tribunal, any member of the Tribunal, in any kind of
19 unlawful activity. You told us in your written
20 document and in your response, you said "No," your
21 answer was "No," and I assume that you still insist on
22 that negative answer.
23 That is the first question that interests us
24 here. Have you told us the following in your written
25 document and also in your oral submission? Now, we
1 heard talk of this arrest on the 27th of September when
2 SFOR called us to say that somebody has been arrested,
3 come and take him over, and we applied the procedure
4 envisaged by the Tribunal, that is, Rule 59,
5 et cetera. Are you confirming that, that the Office of
6 the Prosecutor acted in this way? because that is what
7 is important. Everything else regarding the conduct of
8 an international force or the conduct of a state is not
9 within the jurisdiction of the Tribunal.
10 That is the first point I wish to make.
11 The second -- I think this point is clear --
12 that is, was there any violation of the rights of the
13 accused which are guaranteed, that is true, by the
14 International Covenants on Human Rights and the
15 European Human Rights Convention and other
16 international documents? Was there an arbitrary arrest
17 in violation of the rights of the person, that is, did
18 we not respect the legal documents and the legal
19 proceedings prior to an arrest? You have just told us
20 that everything was done in accordance with the Rules.
21 There was an indictment, an arrest warrant, the accused
22 was informed, and everything else was in order, even
23 though we all know that an arrest is not always done
24 very kindly.
25 What we have to focus on is, was the Office
1 of the Prosecutor involved in any kind of illegal act
2 in the process of arrest? That is the point you should
3 concentrate on.
4 I would like to ask another question in the
5 same sense to Mr. Brashich.
6 Maybe I will come to that question later.
7 Thank you.
8 MS. PATERSON: Thank you. Let me state,
9 first of all, unequivocally, that the Office of the
10 Prosecutor was in no way whatsoever involved in any
11 unlawful activity in relation to the arrest of Stevan
13 As I stated, we did not even find out that
14 Mr. Todorovic was in custody until he was already at
15 the air base in Tuzla under control of SFOR. We were
16 informed, as we are in every case, that he was in
17 custody, an investigator immediately went to the scene,
18 advised him of his rights, followed all the Rules of
19 the Tribunal, and then accompanied him here where he
20 was taken into detention here at the Tribunal. That is
21 unequivocal. We were not involved whatsoever in any
22 wrongdoing in this case.
23 The reason I was stressing the issue related
24 to SFOR and any inquiry into operational matters is
25 because Mr. Brashich, in his motion, has asked for an
1 order for an evidentiary hearing, and in his oral
2 argument, he detailed the sorts of things he wanted to
3 ask if such a hearing were granted. He wanted to ask
4 the names of witnesses, of participants, he wanted
5 reports of U.N. forces, and he wanted to interview any
6 agents that may have been involved. Those are all
7 issues that we feel fall within operational matters of
8 SFOR and should not be inquired into by this Tribunal
9 unless there was an extremely compelling legal reason
10 to do so, and we contend in this case there is none.
11 That is the reason I was going into those arguments --
12 JUDGE MAY: Well, Ms. Paterson, in fact, I
13 asked you about them, and since the application is for
14 an evidentiary hearing and since there is an
15 application for disclosure of those matters, it is
16 right for the Trial Chamber to know precisely what it
17 is that is being asked for and precisely what the
18 effect would be if the application were granted.
19 JUDGE ROBINSON: Ms. Paterson, I have a few
20 questions. First, as to the question of the
21 sufficiency of the material presented by the accused to
22 warrant an evidentiary hearing. Your argument is that
23 the material should at least establish a prima facie
24 basis for that hearing. Do you have any authority for
25 that standard prima facie, and might not the standard
1 be satisfied by presentation of material which presents
2 an arguable basis as to the legality as distinct from a
3 prima facie basis? So that is the first question,
4 whether you have any authority that prima facie is the
5 basis, and, secondly, whether an arguable basis would
6 not be sufficient?
7 Secondly, as a matter of fact, you quite
8 correctly, in my view, point to the paucity of
9 material in the substantive motion itself, and you
10 pointed to the fact that the only reference in that
11 motion to material is a reference to published material
12 in an e-mail.
13 Have you taken account of the memorandum of
14 law and the extent to which that information could be
15 supplemented by what is in the memorandum of law, which
16 provides a little more material and a little more
17 information as to the allegations of illegality?
18 Next, I want to turn to the question of the
19 case law. You say that the OTP had no involvement in
20 any illegal activities, and that, in your view, the
21 case law establishes that in order for the Tribunal to
22 refrain from exercising its jurisdiction, it must be
23 shown that the illegalities taint the whole justice
24 process, the whole justice system, but does that have
25 to be established, no, and isn't that the purpose of
1 the evidentiary hearing? Wouldn't the evidentiary
2 hearing, if granted, assist in showing whether there
3 was any connection between the OTP and the alleged
5 You then turn to the question of sovereignty
6 and the breach of sovereignty, and you say that even if
7 the accused had been taken forcibly, there's no breach
8 of state sovereignty, no breach of his rights, and I
9 immediately made a note to ask you what about a breach
10 of his rights under the International Covenant, Article
11 9(1), you did come to that, but I'm not sure how you
12 have dealt with that, and I think the question that is
13 raised is whether the manner in which he alleges he was
14 taken from the former Yugoslavia, whether that would
15 not be an arbitrary act such as to implicate the
16 provisions of Article 9(1) of the covenant, which I
17 presume you accept are applicable to the case as
18 customary law.
19 You mentioned the Dokmanovic case, but in
20 that case, if my memory is correct, the warrants were
21 issued under Rule 57 bis which authorise the issuance
22 of the warrants to non-state parties. So I think that
23 that case is at least distinguishable on that
24 particular point. I don't believe that the warrants
25 here were issued under 57 bis.
1 Those are the issues I wanted to raise.
2 MS. PATERSON: Hopefully I can remember them
3 and address them in the order you put them to me.
4 First of all, as to the issue of whether or
5 not the defendant has presented sufficient legal
6 reasons to make out a prima facie case, our source for
7 that standard is taken from several different sources,
8 including the United Nations Human Rights Committee,
9 the European Court of Human Rights, and the
10 Inter-American Commission of Human Rights. We have
11 detailed in our written submission, page 7, paragraph
12 19, the specifics of those particular provisions that
13 lead us to the conclusion that that is a requirement, a
14 burden that the defendant must meet in this case.
15 JUDGE ROBINSON: But that's in relation to
16 the presentation of a substantive -- of a petition. I
17 would rather think that in this case it is a little
18 different, where what is being requested is an
19 evidentiary hearing. I would tend to see that as being
20 different from the instances that you've cited under
21 the European convention and the Inter-American
23 MS. PATERSON: Well, Your Honour, as we, I
24 think, have detailed quite extensively in our written
25 submission and here, we belief, for the reasons that I
1 have specified, and I don't want to repeat myself, that
2 the Defence has not presented legally sufficient
3 reasons for this Tribunal to find a prima facie case
4 has been met.
5 It is our contention that no fundamental
6 human rights of the defendant were violated in any
7 way. Even if the worst case scenario, the facts as I
8 detailed, even if all of those facts were true, it's
9 our contention that no fundamental rights of this
10 defendant were violated, including the fundamental
11 rights under the International Covenant that you
12 referred to.
13 As a matter of fact, we would go so far as to
14 say that the presentations made by the Defence in their
15 motion is not even a reasonably arguable case, let
16 alone a prima facie case.
17 If I could go, since I have mentioned the
18 International Covenant, to your question concerning
19 that, we did acknowledge that certainly the defendant
20 does have rights under the International Covenant, as
21 well as the European Commission on Human Rights.
22 Article 9(1) of the International Covenant on Civil and
23 Political Rights provides that "Everyone has the right
24 to liberty and security of person. No one shall be
25 deprived of his liberty, except on such grounds and in
1 accordance with such procedure as are established by
3 It is our contention that Mr. Todorovic's
4 liberty was taken from him in accordance with such
5 procedure as are established by law. I have detailed
6 that the OTP was not involved in any wrongdoing and
7 that once we became involved, we scrupulously followed
8 all the Rules of the Tribunal. Therefore, it is our
9 contention that the procedures established by law were
10 followed and that there was no violation of his rights
11 under Article 9(1) of the International Covenant.
12 If I recall, you also asked a question about
13 the purpose of the evidentiary hearing would be to
14 elicit further details regarding the OTP's
15 involvement. As Judge Bennouna has pointed out, the
16 issue is what was the involvement of the OTP? I have
17 stated unequivocally that the OTP was not involved in
18 any way. I can state that again, I can state it in
19 other ways, but it is my contention that if an
20 evidentiary hearing were held and the investigators who
21 were involved were called, they would tell you the
22 exact same thing that I have just told you. They
23 received a phone call. They went to the air base.
24 They accompanied him on the plane. They advised him of
25 his rights. They followed all the Rules of Procedure.
1 The OTP did everything it was required to do under the
2 circumstances. We don't belief that anything more can
3 be elicited regarding those facts in an evidentiary
5 Finally, in regard to your reference to the
6 Dokmanovic case, first of all, we think that those have
7 to be distinguished and that, in that case, the OTP did
8 admit involvement in the arrest of Mr. Dokmanovic. We
9 did acknowledge that we were directly involved in his
10 arrest, that we were involved in luring him to a place
11 where he could be arrested and taken into custody.
12 That is not the facts of this case, and we do think it
13 can be distinguished.
14 I don't want to repeat myself. I think I
15 described in some detail our position regarding arrest
16 warrants, but I respectfully contend, Your Honour, that
17 we have argued that the whole issue of whether arrest
18 warrants were directed to the FRY is not relevant in
19 this matter, that the simple issuing of an arrest
20 warrant, period, regardless of what state it is
21 directed to, is sufficient to arrest the defendant.
22 What would happen, Your Honour, if the
23 defendant were to arrive at the Schiphol Airport, the
24 authorities of the Dutch police were to discover he was
25 at the airport, but because they did not have the
1 arrest warrant that was directed to The Netherlands,
2 they could not arrest Mr. Todorovic and bring him here
3 to the Tribunal? Surely that cannot be the scenario,
4 and it's our contention that the same situation existed
5 in this case.
6 I believe I've answered all of your
7 questions. If you have any further clarifications you
8 would like, please say so.
9 JUDGE ROBINSON: That's fine.
10 JUDGE MAY: Yes. Now, Mr. Brashich, you have
11 a little time before the adjournment.
12 MR. BRASHICH: Yes, Your Honour. I'm taken
13 aback by the position that the Prosecutor has taken.
14 What I think the Prosecutor is saying is once
15 Mr. Todorovic got to Tuzla and once, assuming arguendo
16 that the representations made by the Prosecution are
17 correct, that they followed the letter of the law, they
18 read him his rights, and they brought him to The
19 Hague. That's not our complaint. Our complaint goes
20 from the time that he was abducted and brought to Tuzla
21 because he wouldn't be in Tuzla unless illegal acts
22 were committed.
23 Assuming arguendo that the Prosecution had
24 nothing to do with the abduction and learned about it
25 only after Mr. Todorovic got to Tuzla, by their
1 following and prosecuting Mr. Todorovic, they have
2 adopted, ratified, gross violations of law.
3 Now, ironically, the Prosecution said, "Why
4 don't we leave the policing functions to the police
5 professionals?" They're accusing Mr. Todorovic, who
6 once was a police chief in Bosanski Samac, of gross
7 violations of human rights. Why do we in this case
8 with their policemen say, "Let's just leave them.
9 They're professionals. They know what to do. They do
10 not violate rights." Well, in my case with my client,
11 hey, we can look and see whether his acts violated some
12 international standards.
13 If we can't police the police, that only a
14 court can police the police, if you want to use it, the
15 fruit of a poisoned tree, well, you can't just go in
16 and effect a warrantless search and find heroin,
17 cocaine, or whatever other substance, and then use that
18 proof in a "fair trial." That is what Ms. Paterson
19 wants you to do, that we are going to have a fair
20 trial --
21 JUDGE MAY: We are an International Court. A
22 kind of example you're using is the everyday example in
23 a municipal court where defence counsel use this sort
24 of argument. This is an International Tribunal dealing
25 with totally different matters and a totally different
1 sort of crime.
2 MR. BRASHICH: I stand corrected, Your
4 If that be so, then I think that if this
5 Court is going to apply the international standards,
6 that it's going to have to find that this is a clear
7 violation of Article 5(1) and Article 9(1). With
8 regard to the violations of those Articles, those are
9 the kidnapping, abduction, force, threats, conspiracy
10 to do all of that.
11 Again, with regard to public policy,
12 confidentiality, if my client's rights have, in fact,
13 been violated and if the Prosecution feels that about
14 disclosure of their practices, we can have a
15 confidentiality agreement. We can have closed
16 sessions. I will force my client to sign a
17 confidentiality agreement. I will do so also, as an
18 officer of this court. I will not make it public,
19 whatever I find out, but I think that will allow this
20 Court to test whether or not the actions taken in
21 bringing Mr. Todorovic to this Court violated any
22 international standards.
23 With regard to the prima facie case issue,
24 Ms. Paterson concedes that on the very first
25 appearance, it was clearly stated that he had been
1 kidnapped and abducted, and that's in the record, and
2 Mr. Neskovic, my prior lead counsel, also made that
3 statement in the regard.
4 With regard to the timeliness of the motions,
5 I thought we had laid this at rest. As I made a
6 representation to the Court the last time we were here,
7 the motions went out on February 10th. The order,
8 which I have reread, said that the motions have to be
9 filed with the Court on February 10th. You didn't say
10 February 10th at 5.30 p.m. Hague time. You didn't say
11 5.30 p.m. New York time. They were filed on February
12 10th according to the Rules.
13 I also note, as I noted last time, that I got
14 responding papers not on the date they were supposed to
15 be served upon me but the next morning at 8.00, and
16 they were delivered apparently to the Registrar's
17 office at 8.00. So I think that Ms. Paterson's
18 position with regard to the timeliness is not
20 Finally, Your Honour, I submit that the issue
21 here is of this Court's subject matter jurisdiction.
22 If subject matter jurisdiction is challenged, it can be
23 challenged at any time during the proceedings, even on
25 Thank you.
1 JUDGE MAY: Judge Bennouna?
2 JUDGE BENNOUNA: (Interpretation)
3 Mr. Brashich, as you have made a large number of
4 arguments, the first question regarding your first
5 comment when you stated directly, without any shades or
6 nuances, that it is up to the Office of the Prosecutor
7 to prove that it did not act illegally, that is, that
8 the burden of proof lies on the Office of the
9 Prosecutor; that is the first question I should like
10 you to answer. You said that the burden of proof, as I
11 understood well, for this illegal act is up to the
12 Prosecution. Did I understand you correctly?
13 MR. BRASHICH: I believe, Your Honour, what I
14 had said was that once an allegation had been made that
15 this was an illegal abduction and kidnapping, then the
16 burden of proof initially shifts to the Prosecution to
17 show that the abduction, kidnapping, and bringing into
18 detention was legal, totally without any question as to
19 whether or not the Prosecutor had any involvement with
20 it. That's a totally separate issue.
21 JUDGE BENNOUNA: (Interpretation)
22 Mr. Brashich, you are making an allegation, and the
23 Office of the Prosecutor has told you that they did not
24 participate in any wrongdoing and that they have
25 nothing to add. This is how things happened. Up to
1 the present, you have not offered any prima facie
2 evidence or any element which could illustrate or,
3 rather, on which you could find such a grave allegation
4 after all. Allow me to finish. You are making an
5 accusation that there was a kidnapping. To
6 speak Franglais, a kidnapping is an illegal act, and to
7 allege that the Office of the Prosecutor committed it,
8 which is, after all, an important international
9 institution, but you have not supported this with any
10 facts, and you are asking the Prosecution to prove that
11 it acted legally and to reject an allegation that
12 you're making.
13 How do you wish them to do that? If you are
14 making an oral allegation of that kind, then they can
15 respond orally. You said they did such and such a
16 thing, and they said, "We didn't do anything." After
17 all, you cannot make such grave accusations without
18 having any evidence, a priori evidence. You cannot ask
19 us to have a hearing here in this Court to delve into
20 an issue of which you have not given any elements. You
21 have told us that there was a newspaper article. If
22 all such articles were to be used to open hearings, I
23 can assure you that a Tribunal could not function at
25 Tell us, are you ready to present in this
1 Trial Chamber some kind of presumption of proof, some
2 kind of evidence, corroborating any wrongdoing by the
3 Office of the Prosecutor because we are now
4 appreciating the conduct of the Tribunal and not any
5 other organ or state. So that is my question more
7 MR. BRASHICH: That's not one question, I've
8 counted about 18, and which ones do you want me to
9 address myself to specifically? With regard to
10 elements of proof that I have --
11 JUDGE BENNOUNA: (Interpretation) Please focus
12 on the question that you consider to be most relevant
13 from your own standpoint.
14 MR. BRASHICH: You're asking me what
15 pertinent facts I have at this present time. I do not
16 have any facts. That is why I'm asking for discovery
17 and an evidentiary hearing. All I do know is that one
18 day, September 27th, my client is sitting in Zlatibor,
19 and forgetting the characterisation of the Prosecution
20 that he was hiding, that he was doing that, he was
21 sitting in Zlatibor in the Federal Republic of
22 Yugoslavia, and then that very same day, he ends up in
23 Tuzla, being kidnapped -- let's forget the word
24 "kidnapped," we won't use the Franglais -- abducted by
25 force by four individuals and somehow brought to an air
1 base and then immediately thereafter taken to The
2 Hague. That is all that my client knows.
3 Now, as a trial attorney, I can draw
4 inferences. I don't want to draw inferences without
5 facts. I don't want to make accusations without
6 facts. I am saying to this Chamber that I, unless I'm
7 given discovery, cannot flesh out the accused's
9 Now, this is an adversary procedure. With
10 all of the issues that are raised, we have discovery.
11 My client wasn't in The Hague. My client wasn't even
12 in Tuzla until he got there. We don't know what
14 You had raised a point, Your Honour, where
15 you had asked the Prosecutor whether, after Tuzla,
16 there were any violations, and you are focusing on the
17 procedures employed by the Prosecutor post-Tuzla. I'm
18 saying it's not post-Tuzla that is the problem in this
19 case. It's the pre-Tuzla actions by individuals we
20 can't even name. We know that there were four
21 individuals. We do not know their names. We do not
22 know their nationalities. They were not in uniform.
23 They were in civilian dress. Who were these people?
24 That is what we want to find out. And if those actions
25 by those four people were aided and abetted by SFOR or
1 other, and I'm putting it, state agencies,
2 international agencies, then a different standard
4 If there are any other questions you have --
5 JUDGE BENNOUNA: (Interpretation) What
6 standard, if there was an involvement of SFOR or anyone
7 else, which standards apply? You must go to the end of
8 your contention.
9 MR. BRASHICH: Well, according to Mr. Shen
10 and cases that he has cited, and especially the
11 decision in the Gibraltar case, and I'm thinking of the
12 law report, the McNair 1956 decision, is that if it is
13 a state action, then it's a prima facie case of
14 violation of international law. If it's an individual
15 who has violated municipal law, then that violation of
16 municipal law becomes international law only if certain
17 rights enumerated have been violated. Those are the
18 two standards, I believe, Your Honour.
19 JUDGE MAY: Judge Robinson?
20 JUDGE ROBINSON: Mr. Brashich, I want to go
21 back to the same question I raised with the Prosecutor,
22 that is, the question of the sufficiency of the
23 material that you have presented to warrant the
24 granting of an evidentiary hearing.
25 You cited Dokmanovic, but I have with me here
1 the motion filed in Dokmanovic, and if you have a look
2 at it, you will see that there are two pages there
3 devoted to the allegations by Dokmanovic as to the
4 alleged illegalities. The question is why could not
5 the accused here have presented something similar? The
6 Prosecutor referred to an affidavit, but, in my view,
7 it need not have been an affidavit but some statement
8 as to outlining the allegations.
9 MR. BRASHICH: Perhaps that is my error, Your
10 Honour. Being overcautious, I felt not completely
11 comfortable with the procedures of this Court and
12 whether or not such a statement, without a motion
13 in limine, would, as I said, open the door, and,
14 therefore, I thought that by raising the issues, that
15 that would be sufficient to have the evidentiary
16 hearing, and again, I might have erred, and if I had
17 erred, then I would beg leave, should this Court feel
18 it necessary, to have a signed statement, and I can
19 have Mr. Todorovic right here in court sign the offer
20 of proof which I have made on his behalf, and the only
21 thing which he would have to add in handwriting was
22 that he was carried from this field across the Drina
23 River to the Tuzla air force base by an unknown
25 JUDGE MAY: Very well. Thank you,
1 Mr. Brashich.
2 We will take the usual adjournment now and
3 sit again at half past four.
4 --- Recess taken at 4.08 p.m.
5 --- On resuming at 4.35 p.m.
6 JUDGE MAY: We have had the opportunity of
7 considering this motion. The motion will be rejected.
8 Reasons will be given in writing in due course.
9 Now, the position is this, that one of our
10 number has to leave at 5.15, so we should hear the
11 motion, the remaining motion, before then, and two of
12 us can deal with the Status Conference in due course.
13 I think 40 minutes should be more than enough
14 to deal with this motion. Once again, we have read the
15 various pleadings, but, Mr. Brashich, it's for you to
16 begin again.
17 MR. BRASHICH: Thank you, Your Honour. The
18 Defence motion to sever is very simple. Three of the
19 defendants have made voluntary statements, and a number
20 of the points raised take a position which is inimical
21 to the interests of my clients. The Prosecution has
22 now made a motion, which is now sub judice, that the
23 Prosecution wishes to introduce into evidence the
24 hearsay -- and I am mindful of this Court's/Trial
25 Chamber's prior rulings or other Trial Chambers'
1 rulings on the issue of hearsay -- that the unsworn,
2 out-of-court statement be admitted into evidence.
3 The three co-defendants do not have an
4 obligation to testify at the trial of this case.
5 Therefore, I would not be afforded the right to
6 confront the witnesses which, in this case, all of a
7 sudden have become the co-defendants, and to
8 cross-examine them. For this reason, I feel that
9 severance of my client from the proceedings should be
11 JUDGE MAY: Do any other Defence counsel want
12 to say anything about this?
13 MR. PISAREVIC: (Interpretation)
14 Mr. President, fully respecting the reasons given by
15 Mr. Brashich, we support those arguments, his motion,
16 as well as the arguments he gave.
17 We would just like to add that the nature of
18 the charges against my client, Mr. Zaric, differ
19 significantly from the nature and character of the
20 criminal offences that Mr. Todorovic is charged with.
21 First of all, I think it is important to
22 point out, especially for Your Honours' determination,
23 it is important to bear in mind that Mr. Zaric
24 surrendered voluntarily and that he has already made a
25 statement to the Office of the Prosecutor and,
1 therefore, I think that he has the right to expect that
2 this Trial Chamber will deal with his case fairly and
3 expeditiously, and I believe that if Mr. Todorovic
4 remains together with the other accused, that this
5 could have an adverse effect on my client.
6 MR. AVRAMOVIC: (Interpretation) Your Honours,
7 I should like to join in the statement made by my
8 learned friend, Mr. Pisarevic, and I too would support
9 Mr. Brashich's motion for severance because I think the
10 reasons have been validly argued. Thank you.
11 JUDGE MAY: Mr. Pantelic, yes.
12 MR. PANTELIC: Your Honours, very briefly.
13 First, my client has been here more than one year under
14 the jurisdiction of the ICTY. Second, he's the first
15 Bosnian Serb who has voluntarily surrendered himself to
16 the jurisdiction of the ICTY. Third, if we follow this
17 kind of enormous number of motions from my learned
18 colleague here in order to protect the rights of his
19 client, I think that we are very far from the date of
20 trial. Fourth, this approach, with a joint case in
21 trial, will, on a high level, violate the rights of my
22 client. Finally, if the Prosecutor will state that, in
23 terms of judicial economy, in terms of the budgetary
24 restriction of the ICTY, in terms of, I would say,
25 violation of the position and rights of witnesses, if
1 that would be the case, after our submissions, I kindly
2 ask this Trial Chamber not to draw any attention to the
3 submissions because it is only a waste of time.
4 In addition, we have a very clear situation
5 pursuant to Rule 82(B), sub-rule B, where, if there is
6 some conflict of interest between co-accused, having in
7 mind the specific issue of this case, this request
8 could be granted.
9 In conclusion, Mr. Todorovic has some charges
10 which are absolutely opposite from the case of our
11 clients. The development of the Rules and spirit of
12 the Rules of the ICTY, which are evidentially
13 practically every day here, allows the Prosecutor to
14 get some transcripts or some evidentiary hearing or
15 facts from the other proceedings, or even from the same
16 case, and I think that there is not any problem to
17 grant this motion and, in future, to have a separate
18 trial where, hypothetically, the Prosecutor can use
19 some conclusions and some of the orders from,
20 hypothetically, our part of the trial, in the second
21 part of the trial.
22 All other excuses and submissions from the
23 Prosecutor's side will clearly show that the Prosecutor
24 does not want to take care about the fairness and the
25 expediency of trial because in many occasions before
1 this hearing, the Prosecutor stated that they are ready
2 for trial. So are we ready, as I stated at our last
3 hearing. We were ready in June last year.
4 Therefore, I again urge this Trial Chamber to
5 grant this motion to sever the defendants and the
6 counts. Thank you very much.
7 JUDGE MAY: Yes, Mr. Niemann?
8 MR. NIEMANN: If Your Honours please. This
9 motion brought in relation to severance is, in our
10 submission, a classic motion that you would normally
11 encounter if there was to be a jury trial, and I say
12 that because the issue relates to how the Tribunal will
13 deal with the evidence that is said to be potentially
14 dangerous evidence that could be dealt with.
15 Traditionally, Your Honours are familiar with the sort
16 of evidence, such as fleeting-glance evidence in
17 identification cases, all the evidence of co-accused,
18 whether it be testamentary evidence before the court or
19 confessional evidence, and traditionally that is
20 disposed of by way of giving special instructions to
21 the jury, saying to the jury either this evidence is
22 unsafe to rely upon unless it is corroborated;
23 alternatively, that they can't rely upon it at all; or
24 giving some special direction to the jury.
25 How severance arises out of all that, Your
1 Honours, is when the trial judge reaches the conclusion
2 that he can't really be sure that the jury will either
3 fully understand the direction that is given or,
4 alternatively, the trial judge is uncertain that the
5 jury will obey the instruction given. In those two
6 circumstances, the trial judge may well reach a
7 conclusion that it would be unsafe to allow the trial
8 to proceed before a jury where this kind of evidence is
9 to be admitted. So in those cases, and there are
10 exceptional cases -- they tend to be exceptional
11 cases -- the trial judge then says that the indictment
12 is to be severed and there would be separate trials.
13 Now, Your Honours, none of that applies here
14 at all. When it comes to dealing with the evidence
15 yourself, at the end of the day, it is for you to weigh
16 it. You don't have to rely upon a jury to do it, you
17 don't have to be concerned that it may be misapplied;
18 it is you that is going to do it. If you feel that it
19 is unsafe, if you feel that any of it needs to be
20 corroborated, if you feel that it should be
21 disregarded, that is entirely within your province.
22 You don't sever the case in order to achieve that
23 objective; you deal with it yourself and you address
24 that problem at the time.
25 Your Honours, the whole purpose of severing
1 in a jury case is so that you are going to have a fresh
2 jury. Another jury will hear the case, the evidence of
3 the co-accused won't be heard, and so the whole purpose
4 of severance is to allow the case to proceed before
5 another jury, a fresh jury, as it were.
6 Your Honours, in this jurisdiction, as was,
7 in fact, referred to or mentioned in the Celebici
8 decision, which is quoted in our motion, could well
9 proceed before Your Honours. So, in fact, we could
10 have one trial with some of the accused, and then the
11 severed trial could come before you again. Now, what
12 would be the purpose of that? That's not a fresh
13 jury. Your Honours are going to hear the evidence all
14 again. So in our submission, Your Honours, nothing
15 would be achieved by that order.
16 It is important, I think, Your Honours, first
17 to appreciate the really significant difference between
18 the prosecutions that are presented in this
19 jurisdiction and in a national court. The general
20 position in a national court is we proceed against one
21 accused who is charged with an offence where the crime
22 committed relates to something that he or she has done
23 in order to satisfy their own ends. So those cases are
24 generally cases involving one person for one purpose,
25 that is their purpose, their personal, individual
1 purpose. I'm not saying there isn't conspiracies and
2 multiple cases, but I'm talking about the general
4 Now, in this jurisdiction, we are talking
5 about crimes which occurred on behalf of a state or an
6 institution such as the police, the army, a political
7 party. So the objective of the crime, at the end of
8 the day, is not the individual purpose. So there is
9 that element of individuality that has been removed
10 from the cases.
11 In addition to that, invariably, it is
12 carried on by multiple parties. So that all of the
13 indictments that tend to be presented here are
14 multiple-party indictments. If there are separate
15 trials and individual trials or trials against persons,
16 single persons, as there are, the reason for that is
17 not because of issues of severance because of
18 evidentiary matters, it is because there has been
19 random arrests. Persons come here at one stage, they
20 are in a multiple indictment, and they are severed out,
21 generally, in most cases, with the support of the
22 Prosecution or, indeed, I believe in one case, on the
23 application of the Prosecution, and the reason for that
24 is so the trial can take place. Otherwise, the accused
25 would languish in prison awaiting trial for the other
1 co-accused to arrive.
2 So, in my submission, Your Honours, when you
3 are looking at the issue of severance in this
4 jurisdiction, I submit that it is very important to
5 have regard to the nature of the offences, and I say
6 this in support of the submission I now make, that is,
7 that severance should be a very, very exceptional
8 circumstance and very rarely based on an evidentiary
9 question which is entirely in Your Honours' hands to
10 deal with.
11 Your Honours, I also submit that if there was
12 severance in this case, in the case of Mr. Todorovic,
13 that could work an injustice to him, an injustice that,
14 in my submission, the Tribunal should not be party to.
15 That injustice is the question of speedy trial.
16 Now, if the indictment is severed so that he
17 gets a separate trial, would it be fair that his trial
18 proceeds against all the other accused in custody
19 awaiting trial? In my submission, no, it wouldn't, and
20 he should wait, if there is severance, and he should
21 wait until all the trials are concluded because it is
22 his motion, he is the one who wants a separate trial.
23 Why should he be given precedence over other accused
24 who are now in custody awaiting trial?
25 That could mean -- I don't know how long that
1 would mean, but it would be a considerable delay, I
2 would have thought, before the Tribunal disposes of all
3 its business so it can then turn around and deal with
4 Mr. Todorovic's case. So I would submit that that
5 would work a considerable injustice in terms of delay.
6 So Your Honours, in considering this, have the issue of
7 speedy trial versus an evidentiary question, and that
8 is really what it boils down to, and in my submission,
9 Your Honours, the speedy trial issue is vastly more
10 important for Mr. Todorovic, at the end of the day,
11 even though he may suggest to you otherwise.
12 Another matter for this jurisdiction, Your
13 Honours, that I say distinguishes it when it comes to
14 considering severance is the trials themselves and the
15 cost of the trial, which are very relevant
16 considerations. In a national jurisdiction, your
17 witnesses generally come from the same area, the same
18 city; rarely do they come from another city in the same
19 country. But even more exceptionally do they come to
20 you from outside of the country altogether and abroad.
21 That is a most exceptional circumstance. In this
22 jurisdiction, Your Honour, it is the rule. It is very,
23 very rare that we present to you evidence of witnesses
24 who are resident in The Hague or in the Netherlands.
25 Most people come from the former Yugoslavia or various
1 parts of the world, from as far away as the Americas
2 and Asia.
3 So in our submission, Your Honours, the cost
4 consideration, when it comes to severance, is a very
5 real and appropriate one, and again, I use it in
6 support of my submission that severance should be a
7 very rare order that is given, particularly if it is
8 based on an evidentiary question.
9 Finally, Your Honours, I just note that this
10 is a case where the accused have, at least in Count 1,
11 all been charged within the one count. It is not a
12 situation where you have an indictment, which occurs in
13 some cases, where there are different offences and, for
14 some reason, the Prosecution can arguably put them
15 all together in the one indictment, but they are, in
16 fact, a series of separate and different offences
17 against separate and different individuals. We have,
18 in Count 1, a joint count.
19 In my submission, for all of those reasons,
20 this motion should be denied, if Your Honours please.
21 MR. BRASHICH: May I, Your Honour?
22 With regards to the Prosecution's
23 position likening this to a jury trial and that the
24 problem can be taken care of by a curative charge, I
25 think that the Prosecution misunderstands the basic
1 problem. The basic problem is not a curative charge;
2 the basic problem is that there are statements which
3 are inimical to my client which will be introduced into
4 evidence, and if the defendants do not testify, I will
5 lose the right to confrontation and cross-examination.
6 With regard to the Prosecution's concern
7 about my client and speedy trial, that is my concern,
8 as my client's attorney, and I have spoken to my
9 client, and I do not believe that that is a concern of
10 the Prosecution unless I, on behalf of my client, would
11 raise it.
12 Finally, with regard to costs, I don't think
13 justice has a price.
14 JUDGE BENNOUNA: (Interpretation) My question
15 relates to what we heard from the attorneys appearing
16 as Defence counsel for the other accused,
17 Mr. Pisarevic, Mr. Avramovic, Mr. Pantelic.
18 You told us that the fact that we have a
19 joint trial, if I noted it well, what Mr. Pisarevic
20 said, could have an adverse effect on your client.
21 Mr. Pisarevic I think was the one who said that, that
22 this joint trial could have a negative effect on his
23 client, and I think that this was confirmed by the
24 other attorneys.
25 So my first question is addressed to
1 Mr. Pisarevic. Which negative implications do you fear
2 this could have on your client, the fact that we have a
3 joint trial for all the accused?
4 My second question is to Mr. Pantelic. You
5 elaborated on the question of expediency during the
6 Status Conference. I think you made that point last
7 week and I think we understand one another, so we need
8 not go back to it.
9 So the question is: What are the negative
10 effects of a joint trial on the other accused? That is
11 my question. Thank you.
12 MR. PISAREVIC: (Interpretation)
13 Mr. President, Your Honours, allow me to answer that
14 question. Let me try and explain the negative effects
15 that my client could suffer and that could put him in
16 an unfavourable position.
17 First of all, my client, as I have said, has
18 been charged with quite different criminal offences
19 compared to those that Mr. Todorovic is charged with,
20 and I think that in the course of such a trial, what
21 could happen could be that the whole trial, in terms of
22 its significance, weight, and the testimony of all the
23 witnesses that might appear, could be shifted to
24 establishing the facts which are of greatest
25 significance regarding the case against Mr. Todorovic
1 than against the other accused. This is a circumstance
2 which has certain consequences for each individual
3 because Mr. Zaric, as the fourth accused, will not be
4 able sufficiently to bring home his own arguments and
5 positions and make the best of the witness statements.
6 Another adverse effect could be that the
7 preparations for Mr. Todorovic, for his defence,
8 requires more time, and we appreciate that, and as
9 Mr. Zaric has been here for more than a year already,
10 we feel that Mr. Todorovic's defence preparations could
11 postpone or delay the whole proceedings. Many
12 witnesses who have been called by the Prosecution could
13 not be used as witnesses in the case against Mr. Zaric
14 and in the case against Mr. Todorovic.
15 All this, the duration of the proceedings, et
16 cetera, could have a negative effect on Mr. Zaric and
17 the other co-accused who would have to go through this
18 whole procedure of examination of witnesses and
19 cross-examination of witnesses which will probably be
20 large in number, and I think by severing the trial, the
21 proceedings which they, of course, will have to live
22 through would be easier to live through by the accused,
23 and I think in that case, one could, with greater
24 certainty, ensure respect of the rights of Mr. Zaric
25 and the other accused and that this would contribute to
1 the course of justice.
2 Thank you.
3 JUDGE MAY: Very well. We will consider this
4 motion and give our ruling in due course.
5 It's now five past five, and it would be
6 simplest, I think, if we rose in order that the Status
7 Conference could be prepared. Two of us will return
8 for that, and we hope very much that we can finish
9 before half past five.
10 --- Whereupon the hearing adjourned at
11 5.05 p.m. sine die