1 Monday, 1 July 2002

2 [Provisional Release Hearing]

3 [Open session]

4 [The accused entered court]

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

6 JUDGE LIU: Call the case, please, Madam Registrar.

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

8 IT-00-41-PT, the Prosecutor versus Pasko Ljubicic.

9 JUDGE LIU: Thank you very much. Good afternoon, everybody.

10 Before we start, for the sake of the record, could we have the

11 appearances, please. For the Prosecution first.

12 MR. HARMON: Good afternoon, Mr. President and Your Honours. My

13 name is Mark Harmon. Appearing with me today, Mr. Fergal Gaynor to my

14 right; and to my left, Kamala Janakiram, the case manager.

15 JUDGE LIU: Thank you. For the accused.

16 THE INTERPRETER: Microphone, please.

17 MR. JONJIC: [Interpretation] Good afternoon, Your Honours. I am

18 Tomislav Jonjic for the accused Ljubicic.

19 JUDGE LIU: Thank you.

20 Mr. Ljubicic, can you hear the proceedings in a language that you

21 can understand?

22 THE ACCUSED: [Interpretation] Yes, Your Honour.

23 JUDGE LIU: Thank you. You may sit down, please.

24 THE ACCUSED: [Interpretation] Thank you.

25 JUDGE LIU: I notice that the representative from the government

1 of the Republic of Croatia is not appearing. Madam Registrar, could you

2 please notify us whether the representatives from the government of the

3 Republic of Croatia has been properly informed about today's hearing?

4 THE REGISTRAR: Yes, Your Honour. The embassy of Croatia was

5 properly informed and served, yes, last Friday afternoon, I believe, and

6 they have indicated that they see no need to attend this oral hearing on

7 the provisional release because it has already provided the written

8 guarantee to the Trial Chamber.

9 JUDGE LIU: Thank you very much. Due to this short notice, this

10 Trial Chamber requested a legal officer to contact the embassy of Croatia

11 in The Hague by telephone this morning. The legal officer spoke with

12 Ms. Mira Martinac who told the legal officer that the position of the

13 government of Croatia was that it saw no need for the representative of

14 the government to attend at the hearing of this Trial Chamber since it

15 already has provided written guarantees for the accused.

16 Upon the request of the legal officer, Ms. Martinac agreed to send

17 the written response of the government of Croatia to the Tribunal to the

18 notice of the Chamber. However, later on, Ms. Martinac contacted the

19 legal officer again and told her that she had in the meantime consulted

20 with the ambassador. She was instructed to inform the Tribunal the

21 position of the Croatian government was as follows: First, the government

22 sees no need to attend an oral hearing on the provisional release of Mr.

23 Ljubicic since it has already provided written guarantees; secondly, the

24 government sees no need to provide a written confirmation of this position

25 as transmitted orally by Ms. Martinac to the legal officer.

1 This Trial Chamber notes this information received from their

2 legal officer.

3 This hearing is for the provisional release for Mr. Ljubicic in

4 accordance with Rule 65 of the Rules of Procedure and Evidence. This

5 Trial Chamber is seized of four motions and some attachments in this

6 respect, namely: The motion for the provisional release, filed by the

7 accused on the 14th of April, 2002; Prosecution's response on the 17th of

8 May, 2002; Defence reply to Prosecution's response on 23rd of May, 2002;

9 and Defence motion requesting the hearing of the Republic of Croatia in

10 order to decide on a motion for the provisional release on 29th of May,

11 2002.

12 Since the Defence counsel applied for the provisional release of

13 Mr. Ljubicic, we would like to ask Mr. Jonjic to brief the Chamber on the

14 main points of his motion. I hope he could be as concise as possible,

15 because we have received his motion already.

16 Then we will turn to the Prosecution. After that, the Judges may

17 have some questions for both parties. Lastly, we will give the

18 opportunity to the accused to address the Chamber.

19 Mr. Jonjic, you have the floor, please.

20 MR. JONJIC: [Interpretation] Thank you, Mr. President. I will

21 endeavour to be as concise as possible.

22 The Defence still insists on its -- stands by its motion of the

23 15th of May to -- for the provisional release of the accused Pasko

24 Ljubicic on the basis of Rule 65. The Defence deems that all the

25 preconditions envisaged by the Rule have been met. The host country does

1 not oppose this decision. Secondly, the government of the Republic of

2 Croatia has provided all the necessary guarantees that it would comply

3 with the rulings of the Tribunal. Thirdly, the accused has undertaken and

4 undertakes that he will not present a danger to any witness, victim, or

5 any other person during his provisional release.

6 The Defence sees no particular reason to engage in oral debate

7 with the postulates of the Prosecution in its response, but wishes to say

8 that today's letter of the government of Croatia to this Chamber shows

9 that the government of the Republic of Croatia sands by all the guarantees

10 that it has originally provided for the accused Ljubicic.

11 Secondly, the Defence wishes to point out in particular that

12 Mr. Ljubicic surrendered voluntarily, surrendered of his own free will to

13 the Tribunal. He does not dispute that for 14 months he was accessible

14 [as interpreted] to the Croatian judicial bodies, but this inaccessibility

15 was not this indictment which was disclosed in 2001 but by the media

16 persecution in some of the Croatian media. The moment that the indictment

17 was disclosed, Mr. Ljubicic -- the very -- no sooner was the indictment

18 disclosed than Mr. Ljubicic, through my mediation, announced that he would

19 surrender himself of his own volition, and this news was immediately

20 transmitted to the Croatian authorities and the media, but even before

21 that, to the Prosecutor's office in Sarajevo. The Prosecutor's office, in

22 its response, does not deny that the accuse the Ljubicic surrendered of

23 his own volition.

24 Moreover, the Defence is aware of the practice of the Tribunal and

25 the prevailing request for the existence of outstanding circumstances. It

1 doesn't say that the provisional release is a Rule and the denial of such

2 a request is an exception.

3 In the case of Ademi, this very Chamber ruled, having assessed

4 that for the decision on the request for the provisional release of the

5 accused Ademi, the decisive factor was -- were all the facts relevant in

6 that particular case.

7 The OTP, in its response, indicates that the gravity of charges

8 laid at the door of the accused, and in case he is pronounced guilty, that

9 he will be sentenced to a considerable term of imprisonment, and that that

10 is the -- that is an argument supporting the denial of the request of the

11 accused. However, the Defence wishes to indicate, with due respect, that

12 the accused, when he decided to surrender himself voluntarily to this

13 Tribunal, was more than aware of the charges being brought against him,

14 and he was also aware of the judicial practice regarding the sentence, all

15 the more so as he is charged with violations of international humanitarian

16 law in the Lasva Valley, that is, in the area where the -- in the area

17 where the events took place for which this Tribunal conducted several

18 cases.

19 Finally, the Defence wishes to point out that the accused

20 Ljubicic, several years after the events described in the amended

21 indictment, participated in the executive branch of power. He was

22 Assistant Minister of the Interior. However, then or later never in no

23 way did he try to affect the conduct of any case. He never and in no way

24 threatened or tried to influence witnesses, victims, or any other

25 individual. After all, not even the OTP, which has been addressing these

1 cases for the past ten years practically, has never established that there

2 are -- could be any indicia that the accused Ljubicic in any way

3 influenced witnesses, victims, or third persons.

4 And finally, before this Tribunal, several cases have been -- have

5 been completed, cases bearing on the events in the Lasva Valley. The OTP

6 has access to all the documents of the Croatian government and also of the

7 parties to the conflict in Bosnia-Herzegovina, that is, the Republic of

8 Croatia and the Federal Republic of Yugoslavia. Therefore, even

9 theoretically it is difficult to imagine that the accused Ljubicic can in

10 any way whatsoever affect the evidence before this court.

11 And one more thing which the Defence wishes to point out in

12 conclusion, and that is that the beginning of this trial in this case, for

13 objective reasons facing this august Tribunal, it seems rather far

14 removed. That is, the beginning of the case is still uncertain, and

15 therefore, the Defence deems that, having judged all the relevant

16 circumstances in this case, that the Chamber will apply Rule 65 in the

17 light of the International Charter on Human Rights or, rather, the

18 European Convention on the Protection of Human Rights and Liberties, in

19 which cases the release before trial is not an exception but a rule.

20 Thank you.

21 JUDGE LIU: Thank you very much. May I now turn to Mr. Harmon to

22 address this Court on the views from the Prosecution.

23 MR. HARMON: Yes. Thank you very much, Mr. President and Your

24 Honours.

25 The position of the Prosecutor is that we oppose the application

1 for provisional release. We do not believe that the accused has met

2 either of the two preconditions that are contained in Rule 65. I will

3 touch upon some of the points that have been touched on in our written

4 submissions. I won't belabour those, and I will expand on some points.

5 First, as the Trial Chamber has recognised, this institution does

6 not have a police force. So if Mr. Ljubicic were to be released and to

7 once again become a fugitive, we would have no way of securing his

8 attendance at this trial absent the cooperation of states wherever he may

9 be located. I won't belabour that point.

10 The second point I'd like to touch upon is that Mr. Ljubicic was

11 under investigation in the Republic of Croatia for many of the same

12 charges for which he stands accused in this particular indictment. Crimes

13 included, as I understand, crimes against humanity and may have included

14 during the investigation, investigation into the events at Ahmici. The

15 Croatian authorities issued an arrest warrant for Mr. Ljubicic. He was a

16 fugitive for 14 months, living in the state that now guarantees his

17 attendance at this institution. Mr. Ljubicic had in his possession false

18 identification papers. He had a false name - Toni Rajic - in which he

19 succeeded in living in obscurity in Croatia for 14 months.

20 This Trial Chamber has absolutely no information at its disposal

21 as to who provided those false papers to Mr. Ljubicic, whether it was an

22 individual or whether it was a government. It has no information as to

23 whether that infrastructure that assisted him so capably for 14 months

24 remains in place in Croatia and can continue to assist him in securing

25 false documents, false identification papers, false travel papers.

1 It is our submission, Mr. President and Your Honours, before the

2 Trial Chamber considers releasing Mr. Ljubicic, the Chamber should be

3 aware of the details under which he did obtain those false papers and

4 whether that infrastructure remains in place should he be released.

5 I point out that a three-member panel of Judges of the Croatian

6 court concluded that Mr. Ljubicic was clearly on the run during those 14

7 months. Furthermore, they concluded that in spite of his voluntary

8 surrender and in spite of his voluntary assurances, he remained a danger

9 of flight.

10 Now, contrast this, Your Honours, with the situation involving two

11 recent applications for provisional release ruled on by this Chamber; the

12 case of Ademi and the case of Jokic. In neither one of those cases did

13 either of those accused have state charges or state investigations pending

14 against them. Neither had been successful fugitives from justice.

15 Neither accused had false documents in their possession or at their

16 disposal, and neither accused had state and domestic judicial findings

17 that they represented a risk of flight against them.

18 In this case, Mr. Ljubicic is a dual citizen. He is a citizen of

19 Bosnia. He was born in Bosnia in 1965. Indeed, he was born in Busovaca

20 municipality, the area where the crimes alleged in the indictment took

21 place. He, I believe, received a passport, a Croatian passport, in 1993,

22 and he resided, during the time he was a fugitive, in the city of Zadar,

23 which is probably less than 100 kilometres from the border of Bosnia and

24 Herzegovina. If Mr. Ljubicic wanted to abscond from Zadar to Bosnia and

25 Herzegovina, I dare say it would take him less than an hour to cross that

1 porous border. The state of Bosnia and Herzegovina has no guarantee and

2 has offered no guarantee in support of this application. So if

3 Mr. Ljubicic were to abscond across the border, there is no guarantee that

4 they would assist in assuring his return.

5 I'd like to turn to the Croatian guarantee, because the guarantee

6 is a limited guarantee. It is limited to saying that under international

7 law, it will abide by any order of this Trial Chamber. Now, that

8 guarantee was subsequently clarified in a letter which was part of our

9 filing with this Trial Chamber on the 17th of May, 2002. And in that

10 letter which was drafted by Dr. Goran Granic, the Deputy Prime Minister

11 and sent to the Prosecutor, Carla Del Ponte, the Deputy Prime Minister

12 states: "Taking into account the fact that Mr. Ljubicic was not within

13 the reach of the Croatian judicial bodies which had instituted criminal

14 proceedings against him and for this reason an arrest warrant and a Wanted

15 circular were issued by the competent court, the Croatian government's

16 guarantees are limited." And they state how they're limited, essentially,

17 to abiding by any order of this Trial Chamber.

18 Dr. Granic goes on further to say: "In view of the fact that

19 Mr. Ljubicic was a fugitive for over a year, the government cannot

20 guarantee that Mr. Ljubicic will actually respond to a court summons and

21 appear at the trial in The Hague except if during his stay in the Republic

22 of Croatia he is kept in some form of detention pursuant to a decision of

23 the Trial Chamber."

24 Now, contrast that guarantee, Your Honours, with the guarantee

25 that the Trial Chamber heard in the Ademi case where there were both

1 written and oral guarantees by the Prime Minister or the Deputy Prime

2 Minister of Croatia. And there was also a letter from the President of

3 Croatia vouching for Mr. Ademi. That guarantee that has been presented by

4 the Republic of Croatia in this case indeed seems to me to be lukewarm.

5 Now, I'll touch upon the issue of the charges in this case, and I

6 acknowledge that Mr. Ljubicic surrendered with the knowledge of the nature

7 of the charges that occurred, that were in this indictment, and in respect

8 of the knowledge of what had happened to previous accused who appeared

9 before this Tribunal on some of the same charges.

10 The case for which Mr. Ljubicic is charged is a case that

11 involves, inter alia, the massacre at Ahmici, and the allegations in this

12 case are that Mr. Ljubicic conveyed the orders to execute civilians in

13 Ahmici and that he conveyed the order to burn every house in the village.

14 I don't think there is any doubt that the result of that attack on Ahmici

15 was that over 100 women, children, and men were murdered on the 16th of

16 April, 1993, and that every Muslim house in that village was burned to the

17 ground. General Blaskic was prosecuted for, among others, the events at

18 Ahmici. He received a sentence of 45 years. Dario Kordic was sentenced

19 to 25 years. Vlado Santic, a direct subordinate of the accused, was

20 sentenced to 25 years; and Mario Cerkez, the head of the Busovaca Brigade,

21 was sentenced to 15 years.

22 Now, when I mention Vlado Santic, let me be clear that his

23 sentence later was reduced to 18 years and it was reduced because the

24 Appeals Chamber recognised that Mr. Santic had provided substantial

25 cooperation to the Office of the Prosecutor. In this case, I merely point

1 out that Mr. Ljubicic has provided no cooperation with the Prosecutor's

2 office.

3 The fact that Mr. Ljubicic is indeed aware of these substantial

4 sentences imposed again these previous -- against these individuals who

5 have been convicted in this Chamber is a fact that the Trial Chamber

6 should consider and is a factor that suggests that he may be likely to

7 abscond.

8 I note as well, Your Honours, that the Croatian court focused on

9 this very factor and said, in fact, that one of the reasons it would not

10 release Mr. Ljubicic was because, in part, of the nature of the crimes and

11 the type of sentence he could receive.

12 Now, there are other factors as well that distinguish this case

13 from the Ademi case and other cases that -- where release has been

14 granted. I mention that there has been no cooperation with this accused.

15 That is a factor that should be considered by this Chamber. There are no

16 written guarantees from any third party on behalf of this accused. And I

17 note, Your Honour, that my distinguished colleague from the Defence has

18 mentioned to Your Honours today and has mentioned in his brief that the

19 accused who was in -- was at liberty during the course of these other

20 prosecutions, did not appear to be a threat to other witnesses and that

21 there has been no threat, as far as he knows, that such conduct on behalf

22 of the accused has taken place. I would merely submit to Your Honours

23 that the accused has not known who the witnesses are against him to date.

24 He has appeared in these proceedings and he has received his supporting

25 material, which identifies witnesses, and he has received Rule 66

1 statements, which identify witnesses, and he does now know who some of the

2 witnesses are who will appear against him.

3 THE INTERPRETER: Could you slow down, please.

4 MR. HARMON: Yes.

5 Under the circumstances, Your Honours, that I have mentioned, we

6 do oppose the provisional release of Mr. Ljubicic. If the Court is

7 considering his release, I am prepared to detail a number of conditions. I

8 won't do so now. I will make my submissions later, at an appropriate

9 time. Thank you.

10 JUDGE LIU: Thank you very much. Any questions from the Judges

11 addressed to both parties? Judge El Mahdi, please.

12 THE INTERPRETER: Microphone, please.

13 JUDGE EL MAHDI: [Interpretation] Yes. I apologise. I am

14 addressing myself to the Defence, please.

15 I would like you to inform me on a sentence which is included in

16 your submission, and I'm going to quote in English: [In English] "Where

17 none of the requests coming from the accused, from Croatia, from Bosnia

18 and Herzegovina for provisional release has been approved, this impression

19 may be impaired."

20 [Interpretation] Now, the question, the specific question is: Do

21 you believe that this Tribunal considers, believes the ethnicity or

22 belonging to -- of any accused appearing before the Tribunal as a

23 determining factor for provisional release?

24 MR. JONJIC: [Interpretation] Thank you for the question, Your

25 Honour. As I explained in my response to the response of the Prosecution,

1 the Defence wouldn't dream of thinking that this Tribunal takes into

2 consideration ethnic belonging of any accused when they are assessing the

3 sentences, but what the Defence wanted to outline in this sentence, it

4 doesn't matter. It's not just important for the Court to be acting fairly

5 but also to be seen to be acting fairly. This is what I wanted to say.

6 Unfortunately, in the public opinion, the Croatian public opinion,

7 there is -- there is an impression. That is what the Defence alluded to.

8 The Defence would never insinuate that something like this existed. Thank

9 you.

10 JUDGE EL MAHDI: [Interpretation] I believe that a jurisdiction

11 which is respected, which considers itself international, does not make a

12 point of any ethnicity. It is only interested in justice, and it only

13 wants to do justice. And in its action the whole world can easily see

14 that it is only justice which is important. But thank you for your

15 clarification in any case.

16 And if you will allow me, I would like to ask another question.

17 This is about the second letter that was addressed by the Vice-Prime

18 Minister. I am referring to Annex A of the response of the Prosecutor.

19 In your opinion, isn't there a difference between this letter

20 dated at a later date rather than the letter that you put in the file,

21 that you attached? In your opinion, does the government or did the

22 government want to tell the Tribunal of a possibility of flight and that

23 the republic or the government could not guarantee for sure, black and

24 white, addressing themselves to you, and that this letter was trying to

25 make a nuance in this respect? And I would like to hear what you have to

1 say about this.

2 MR. JONJIC: [Interpretation] Your Honour, the Defence's position

3 is that the government of Republic of Croatia, in its second letter on the

4 14th of May, 2002, which was sent to the Chief Prosecutor of the Tribunal

5 did not substantially change its guarantees that they originally gave to

6 the Defence of Mr. Ljubicic, because simply expressed, if the government

7 of Republic of Croatia wanted to withdraw the guarantees offered to

8 Mr. Ljubicic, then they would have done so.

9 A different type of format of -- sent on the 14th of May to the

10 Chief Prosecutor comes from the fact that in the meantime, Croatia was

11 visited by the Chief Prosecutor, and this visit took place between the

12 12th and the 14th of May, and the Defence allows itself to think that it

13 is precisely during that time that the Chief Prosecutor asked for a

14 response -- delaying the response to our motion. But nothing changed

15 legally from the 28th of March and 14th of May this year when the republic

16 issued its guarantees. When deputy government, Dr. Granic, when he signed

17 a letter sent to the Defence on the 28th of March, the government knew

18 perfectly well that Mr. Ljubicic, for 14 months, was -- was not within the

19 jurisdiction of the Tribunal, was inaccessible to the Court.

20 Now, the new law in Croatia on criminal proceedings, precisely

21 dating from May 2002, and it was passed by the Croatian parliament ten

22 days before that, that was the first time institution mentioned of a house

23 arrest. At the time when the government addressed a letter to the Chief

24 Prosecutor, Carla Del Ponte, this new law was not in force yet. But in

25 the meantime, this new law came into force, and I believe that the

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1 government, when mentioning some kind of detention as it is mentioned in

2 the letter, was precisely thinking about this type of detention, house

3 arrest, house detention. That was it.

4 JUDGE EL MAHDI: [Interpretation] Could you just tell me briefly in

5 two sentences: [In English] [Previous translation continues]... "that

6 Mr. Ljubicic will actually respond to a court summons and appear at the

7 trial in The Hague."

8 [Interpretation] In your opinion, does this sentence, in the way

9 that it was drafted, doesn't it mean to say something else, what the first

10 letter actually said? It's just a comment that I would like you to give,

11 just in two lines, please.

12 MR. JONJIC: [Interpretation] Thank you, Your Honour. I think that

13 the second letter doesn't mean in any way a withdrawal or a denial of the

14 first position, just some clarification and precision. But if you allow

15 me, I would just like to say that this Tribunal, in the debate on

16 Hadzihasanovic, Alagic, and Kubura in December 2001, stated what we all

17 know to be true, that there will never be a total guarantee that the

18 accused will appear before the Tribunal or that he will not represent

19 threat of danger to a victim or witness or any other party. There never

20 is such a thing as total guarantee. There is always possibility of flight

21 of the accused. However, in the specific case, it will not happen because

22 the accused surrendered voluntarily and he stands by his statement that he

23 did not influence victims, witnesses or third parties, and the government

24 of the Republic of Croatia is prepared to carry out all the orders of this

25 Trial Chamber, even the possible order to be given for Mr. Ljubicic,

1 accused Ljubicic, to be put in house detention. Thank you.

2 JUDGE EL MAHDI: [Interpretation] Thank you, sir.

3 JUDGE LIU: Judge Orie, please.

4 JUDGE ORIE: Yes. May I ask the Defence, I did understand today

5 that it was Mr. Ljubicic hiding from the media rather than from court or

6 from courts. What was there in the media in such a way that if someone

7 considers himself not guilty should make him hide from the media rather

8 than go to a court where a fair trial would have resulted in a clear

9 statement of whether the accused, if prosecuted - we are not yet at that

10 stage - was guilty or not guilty?

11 MR. JONJIC: [Interpretation] Thank you, Your Honour. It would be

12 a rather long story if the Defence now started to explain in detail about

13 the way that the media witch hunt started in part of the Croatian media

14 and in some of the minor part of the media in Bosnia-Herzegovina. Part of

15 this, the part which actually took place in the Detention Unit of the UN

16 in The Hague, in some way was recorded in the judgement against Cerkez and

17 Kordic, because one of the protected witnesses mentioned there how he was

18 being given certain benefits, certain arrangements in order to testify

19 against some other accused or some other suspects.

20 In a much more illustrative way, such a media hunt was also

21 carried out in the Croatian public opinion. Perhaps the Prosecutor is

22 aware of that. The Defence certainly admits that in Mr. Ljubicic's

23 behaviour, in the fact for 14 months he was in hiding from the judicial

24 authorities, there was a lot of irrational behaviour in that because the

25 proceedings in Croatia, which is still in investigation part, there are

1 two different charges. One is the massacre in Ahmici, and the other one

2 is obtaining false documents. So the indictment in Croatia is, formally

3 speaking, was much narrower than the indictment that he's being charged

4 with now.

5 On the other hand, the sentence that would be threatening him in

6 Croatia - 20 years, maximum years - is obviously -- would be much shorter

7 than the one that he could expect before this Tribunal.

8 However, in this irrational behaviour of Mr. Ljubicic, or, rather,

9 this behaviour, irrational behaviour of Mr. Ljubicic stopped when the

10 indictment was published, was issued, and when he realised that he would

11 have to face the court, that would have to take into consideration the

12 arguments of the Defence and of the Prosecution and would not be led by

13 political motives or any other motives that are not judicial, the way that

14 they were treated in Croatia and in Bosnia. And it's particularly the

15 confidence of Mr. Ljubicic in the justice in this Tribunal and the

16 confidence in this Trial Chamber certainly contributed to his voluntary

17 surrender and his determination to -- to be answerable for what he has

18 done but not for what he hasn't done. Thank you.

19 JUDGE ORIE: I have one more question for you. The Prosecution

20 has indicated that Mr. Ljubicic could take refuge not only in Croatia but

21 also in Bosnia and Herzegovina. Could you respond to that specific

22 concern of the Prosecution.

23 MR. JONJIC: [Interpretation] Thank you, Your Honour.

24 Theoretically speaking, of course this possibility exists, theoretically

25 speaking. But there is no practical reason whatsoever for Mr. Ljubicic to

1 flee the trial before this Tribunal, to flee the trial before the Croatian

2 legal authorities, where the maximum sentence is 20 years, and then to go

3 to Bosnia-Herzegovina where the sentence would be higher and charges even

4 possibly higher -- more serious, where his -- certainly there is more

5 danger and less security than he would have in Croatia. So theoretically,

6 yes, but practically speaking, I don't think that it is tangible. Thank

7 you very much.

8 JUDGE ORIE: Last question: The Prosecution expressed as one of

9 its concerns that they had no idea about the false documentation the

10 accused used. Do you want to expatiate on that or would you say, well,

11 it's not something that you'd like to bring to the attention of the Court?

12 I just ask your attention for the arguments used by the Prosecution. If

13 no response is there, we will have to deal with their concerns.

14 MR. JONJIC: [Interpretation] Thank you, Your Honour, for your

15 question. The Defence obviously recorded this observation of the Office

16 of the Prosecutor, the Prosecution, and also their concern whether these

17 false identification papers or if this is something that Mr. Ljubicic did

18 himself or perhaps they were perhaps assisted by an infrastructure or by a

19 government or by any instances close to the government that could have had

20 a hand in this.

21 Considering that, due to this act, there is criminal proceedings

22 against Mr. Ljubicic in Croatia, and I cannot say anything else except

23 there is the fact that Mr. Ljubicic used false identification papers while

24 he was inaccessible to Croatian justice, but it was not in any way -- it

25 wasn't assisted by the government or by government representatives.

1 JUDGE ORIE: Perhaps one additional question in this respect. As

2 you know, false identity papers, you find them in two different

3 variations. The first one is original papers with false entries, or

4 totally forged documents. Which one of the two was the case?

5 MR. JONJIC: [Interpretation] Thank you, Your Honour. These

6 documents were falsely inputted, not just his name and surname, but all

7 other data was incorrect, was false. But if you allow me, what the

8 Defence would like to stress is that, in spite of the fact that

9 Mr. Ljubicic had these documents, he still voluntarily surrendered. So he

10 could have used these documents to, for instance, escape, to flee and not

11 even be accessible to this Tribunal, but in spite of the fact that he had

12 these documents, he decided to surrender voluntarily. Thank you.

13 JUDGE ORIE: May I just -- it might be a matter of language. If

14 you say these documents were falsely inputted, not just his name and

15 surname but all other data, that I understand photographs perhaps or

16 whatever, date of birth, but the document as such, I would say the virgin

17 document, was that an original one or was the document as such also a

18 forgery?

19 MR. JONJIC: [Interpretation] Thank you, Your Honour. I cannot

20 claim with absolute certainty, but I believe that this document was

21 originally -- correct. I believe it was a virgin document, a virgin form

22 that was then -- and then data was put in. But this is with reserve I'm

23 speaking.

24 JUDGE ORIE: Thank you, Mr. Jonjic.

25 JUDGE LIU: I have a question addressed to the Prosecutor.

1 Mr. Harmon, in your statement, you say that if the Court is considering

2 Mr. Ljubicic's release, you are ready to detail the number of conditions.

3 You have to know that the purpose of this hearing is part of the process

4 of considering Mr. Ljubicic's release. So you may brief this Trial

5 Chamber on the conditions you requested, or you may submit those in detail

6 in written form to this Trial Chamber.

7 MR. HARMON: I'm prepared to do so orally.

8 I would oppose, at this point, any consideration of a release in a

9 house detention form. I have attempted to identify the law and its

10 applicability to a situation where somebody is charged with crimes against

11 humanity. In my cursory reading of the law, a copy of which -- the

12 amendments which I have had translated and which I admit are not

13 comprehensive, perhaps, suggest to me that house detention is not a

14 detention situation that is appropriate in a case involving the serious

15 charges which Mr. Ljubicic faces both in Croatia and before this Tribunal.

16 So I would submit that if the Court is considering such a release where

17 home detention would be considered, additional submissions should be made

18 as to the applicability of the new amendments to a law, the crimes against

19 humanity.

20 Now, the types of guarantees that I would suggest would be, one,

21 if the Court releases Mr. Ljubicic to Croatia's custody, it should be full

22 detention and full incarceration awaiting trial.

23 Croatia should ensure compliance with orders of the Trial Chamber.

24 It should ensure that expenses to and from Dutch territory are

25 covered by the Croatian government.

1 Upon his release at Schiphol, a representative of the Croatian

2 government should take custody of him and accompany him directly to the

3 site of his detention. The incarceration should be in Croatia, although

4 we do not recommend detention incarceration in Croatia, we recommend

5 detention incarceration here at Scheveningen prison.

6 A condition would include his not be permitted to return to

7 Bosnia.

8 A Croatian government representative would accompany the accused

9 on his return flight to the Netherlands after the termination of

10 provisional release or upon any order of the Trial Chamber, and turn him

11 over directly to Dutch authorities at a time and date determined by the

12 Trial Chamber.

13 The Croatian will identify the site of his detention in Croatia to

14 the Trial Chamber and to the Office of the Prosecutor.

15 The Croatian government will not permit any release from that

16 detention facility of the accused absent an application to this Trial

17 Chamber and notice to the Office of the Prosecutor.

18 The Croatian government will permit the parties, including

19 representatives of the Office of the Prosecutor, access to the accused at

20 his location of detention in Croatia.

21 The Croatian government will take custody of his Croatian passport

22 and not return it to him without an order of the Trial Chamber.

23 The Croatian government will not issue any new passport or

24 documents enabling the accused to travel.

25 The Croatian government will monitor and maintain a record of the

1 identity of his visitors and make a register available to the Trial

2 Chamber upon the Trial Chamber's request.

3 The Croatian government will submit a written report bi-monthly to

4 the Trial Chamber as to compliance with the conditions of his release.

5 The Croatian government will not permit the accused to have

6 contact with victims and witnesses.

7 The accused will comply with all protective orders issued by the

8 Trial Chamber relating to discovery materials provided to him by the

9 Office of the Prosecutor.

10 The accused will not have contact with any other accused or

11 convicted person who has been convicted for any of the events in Central

12 Bosnia.

13 The Croatian government will provide for the personal security and

14 safety of the accused while he is on provisional release.

15 The Croatian government will immediately report to the Registrar

16 any threats to the security of the accused, including full reports of

17 investigations relating to those threats.

18 The Croatian government will immediately arrest the accused should

19 he breach any of the conditions and terms of his provisional release and

20 report immediately any such breach to the Trial Chamber and to the Office

21 of the Prosecutor.

22 The Trial Chamber will impose a bail bond of a reasonable amount

23 to ensure his return.

24 And now, Your Honours, while I have made a submission that the

25 Court should hear additional matters relating to the applicability of

1 house arrest, what I have found out from reading the law of it, of this

2 new provision, is that this provision also includes orders for outside

3 electrical or video monitoring on all openings to an apartment or an

4 accommodation where the accused would have house arrest.

5 Again, I say I don't believe -- I don't know, I should say,

6 whether this particular amendment to the Croatian Law on Criminal

7 Procedure applies in the situation where an accused is charged with crimes

8 against humanity, and there are some features in the article itself which

9 suggest that it does not. I merely suggest that if the Court wishes

10 additional submissions on this law, we're prepared to make them. And if

11 the Court ultimately decides to permit such a form of detention, then we

12 would turn our attention once again to the law as it relates to this type

13 of house detention and suggest additional specific features and elements

14 that should apply under the circumstances.

15 Those, Mr. President, are some submissions we make in respect of

16 any provisional release.

17 JUDGE ORIE: I've got two questions for you, Mr. Harmon. The

18 first one is: What is the difference between, if there is any difference

19 between, provisional release where you're supposed to be released and a

20 transfer of the enforcement of pre-trial detention temporarily to a

21 foreign state? Listening to your conditions, I had some difficulties in

22 seeing the difference.

23 MR. HARMON: Yes. Frankly, Judge Orie, there is no difference.

24 Our position is that Mr. Ljubicic should not be released and he should not

25 receive an altered form of detention such as house arrest in Croatia. Our

1 submission is that he should remain in custody in the Netherlands. The

2 rest is -- one, it is an illusion, I think, in respect of whether he's

3 incarcerated here or there. He should be incarcerated here. We have

4 jurisdiction. This is a Tribunal that addresses the crimes defined in the

5 indictment. We have accepted his corpus in the Netherlands, and it is our

6 responsibility - I say "our," the Tribunal's responsibility - to detain

7 him in this country. I don't see any reason why he should be, frankly,

8 detained in Croatia. I think he should be, the bottom line, detained.

9 JUDGE ORIE: Similarly, the -- keeping someone in detention and at

10 the same time asking bail is also a new phenomenon to me. Could you

11 explain that, please?

12 MR. HARMON: I will be glad to explain that. I was not clear. I

13 meant to say that bail should be applied if there is a house detention

14 situation, because from a house detention situation, it is quite easy to

15 walk out the door. In a situation where there is full incarceration, my

16 application is not for bail.

17 JUDGE ORIE: Thank you for your answers.

18 JUDGE LIU: Well, Mr. Ljubicic, at this stage, are you going to

19 address this Trial Chamber?

20 THE ACCUSED: [Interpretation] Your Honours, yes, I do wish to

21 address the Court, and with your permission, I'd like to answer a few

22 questions, or, rather, comments by the Prosecution, by my counsel, and

23 provide some additional explanation.

24 I was never on the flight from this Tribunal. Three days after

25 the indictment was published, I turned to my counsel, asking him to do

1 whatever was necessary because I was ready to surrender. At that time,

2 via Internet, I was acquainted with the indictment and the sentences

3 pronounced on other accused in the Lasva Valley. I know all the other

4 accused. And I felt it was necessary for me to appear here and that is

5 why I decided to surrender.

6 For a number of years in the Republic of Croatia -- or, rather,

7 for a year or two, the media hounded me. I've collected about 500

8 articles which directly or indirectly mention me. Before this Honourable

9 Court, I have to say that some of these articles in the press were written

10 as -- on the basis of instructions received from some persons who defended

11 some of the accused before this Tribunal. I do not want to elaborate on

12 this, but that is true.

13 I will mention only one article and one journalist, Denis Kuljis,

14 who wrote that Pasko Ljubicic had killed a two-year-old child, stabbed him

15 with his bayonet and then threw him into a fire so that he would burn

16 down. Pasko Ljubicic did not do it. I never killed anyone during the

17 war, and if it is proved that I killed anyone during the war, before the

18 war, or after the war, I will be ready to serve any sentence that this

19 Court pronounces on me.

20 I am a father of a minor child, of a daughter, and I sympathise

21 with people who lost their next of kin during the war, who lost their

22 dearest during the war.

23 As far as I could do and contribute for something like that to

24 happen and whether I was responsible for any such thing, I believe it will

25 be upon this Honourable Court to decide, and that is why I surrendered,

1 and that is why I will undergo the trial. However, I also surrendered

2 because I refused some responsibility and to account for what has been

3 written about me and what people accuse me of.

4 Before the Croatian -- I fled from the Croatian judiciary for

5 somewhat less than 14 months because I was not ready to appear before this

6 Court as I felt -- I would have felt helpless before it and I won't say as

7 just a small nut before it, but I simply thought that I would not be able

8 to prepare myself for this Court and defend myself there because I think

9 there were lots of unfair constructs in the offing.

10 The Prosecutor has also said that I was in the Republic of Croatia

11 whilst I was in flight. But during that time, I never spent a day there.

12 The administration and people in the state administration of the Republic

13 of Croatia never issued me false documents knowingly. And those documents

14 were not false. I will tell the truth before this Court. I obtained

15 these papers in Bosnia-Herzegovina. That applies to my identity card and

16 my birth certificate. And on the basis of these documents, as a Croat, I

17 was entitled to dual nationality in the Republic of Croatia. It was on

18 the basis of these documents that I was issued with lawful documents in

19 the Republic of Croatia. In the Republic of Croatia, a couple of persons

20 were charged with providing me with false documents, but these cases have

21 been concluded and these persons were acquitted because they had not done

22 it. That is how I came by those papers. And that is why I think that it

23 cannot be accepted that the legal institutions of the Republic of Croatia

24 helped me in this regard.

25 It was also said that Zadar is a place where I would be if I were

1 released and that it is less than one hour away from Bosnia-Herzegovina.

2 I need at least three and a half hours to get from Zadar to

3 Bosnia-Herzegovina whatever means of transportation I use. That is how

4 far Zadar is. I have no reasons -- and I do not wish to repeat what my

5 counsel has already said. If I'm in that situation, I have no reason to

6 go to Bosnia-Herzegovina because the punishment for what I'm being charged

7 here are much stricter in Bosnia-Herzegovina.

8 I'd like to add something else. When a representative of the

9 government of Croatia was on a visit to The Hague, one of those

10 representatives said that there was no problem at all that I would be

11 given the guarantees, and I was given the guarantees. It is my belief - I

12 do not have to be right - that something else had happened meanwhile when

13 this new letter signed by Mr. Goran Granic arrived, that somebody else

14 must have brought some pressure, somebody from -- somebody must have done

15 something to -- that resulted in this -- in this new letter. To my mind,

16 this is dishonourable, and that is not all right.

17 I never tried to influence any witnesses, and do I not think

18 anybody will be able to prove that, because I never did that. I never

19 concealed anything that I knew, and I never participated in any

20 preparation of any of the accused before this Tribunal for their defence.

21 Another reason why I obtained these documents: I obtained these

22 documents because of my safety and the safety of my family and my child

23 who is underage. At that time, I was reacting to those articles in the

24 press. I assumed the -- somebody assumed the right to call me and my

25 family by telephone and voice a number of threats, and that is why I left

1 Bosnia-Herzegovina for Croatia, and that is why wanted -- wanted new

2 papers. I did not want these new papers to engage in crime or for any

3 other form of material gain. It was only for the reason that I have just

4 indicated.

5 Here, publicly before this Honourable Court, I can only promise

6 that if I am temporarily -- provisionally released, then my sojourn in

7 Zadar would be my sojourn in Zadar. And it would also mean that I would

8 comply with any decision of this Court. I will not take any steps or

9 measures that would be contrary to the orders and Rules of this Tribunal.

10 I am a man; I have self-respect, I stand by my word. And if I am

11 provisionally released, I will be able to give proof of that. Thank you

12 very much, Your Honours.

13 JUDGE LIU: Thank you. You may sit down, Mr. Ljubicic.

14 At this stage, is there anything else that both parties want to

15 address to this Court? Yes, Mr. Harmon.

16 MR. HARMON: I have nothing additional, Your Honour.

17 JUDGE LIU: Thank you. Mr. Jonjic?

18 MR. JONJIC: [Interpretation] Thank you, Mr. President. Just one

19 thing that I wish to say after all this, and it is something that the OTP

20 and Defence see eye to eye. If the Chamber decides to set -- to release

21 provisionally Mr. Ljubicic, both the OTP and the Defence agree that should

22 not be a decision on conventional detention, but in the worst of cases,

23 the decision on the house detention.

24 Why? Because the conditions of conventional detention in the

25 Republic of Croatia are much worse than in the Detention Unit in The

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1 Hague. This is not possible in the way that this can be done here, and

2 all the other conditions are much worse. So that is something that the

3 Defence and the OTP agree on. Thank you.

4 THE ACCUSED: [Interpretation] I'm sorry. Your Honour?

5 JUDGE LIU: Yes, Mr. Ljubicic. You have to be very concise,

6 because we are approaching the end of this proceeding.

7 THE ACCUSED: [Interpretation] Just one sentence, Your Honours.

8 With regard to my house detention, people in the embassy, when they spoke

9 with me, I offered, because I have such possibilities in my house, it is

10 properly equipped, and I said that the police could be there for round the

11 clock and supervise me without any fear and report on me. If that is not

12 enough, they could also tell me how many times I would have to report to

13 the police station; one, two, three times a day. And I also suggested to

14 offer them a room in my house free of charge, because somebody mentioned

15 that I would have to bear the expenses. But these expenses can be

16 excluded because I would offer them accommodation free of charge in my

17 house, to supervise me.

18 JUDGE LIU: Thank you. You may sit down.

19 I believe that's the end of this proceeding. This Trial Chamber

20 will consider the motion filed by Defence counsel for the provisional

21 release, taking into consideration the views submitted by both parties at

22 this hearing. In the meantime, we request that both parties submit to us

23 the amendment of the Rules of the Criminal Procedures in Croatia as a

24 reference to this effect.

25 We will rise.

1 --- Whereupon the Provisional Release Hearing

2 adjourned at 4.15 p.m.

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