¹ CASE NO. IT -96-19-Misc. 1 Wednesday 28 th February 1996 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 IN THE TRIAL CHAMBER I MOTION ON BEHALF OF GENERAL DJORDE DJUKIC Before:

Judge Jorda (Presiding) Judge Odio-Benito Judge Riad The Office of the Prosecutor: Mr Richard Goldstone,

Prosecutor Mr Graham Blewitt Mr Grant Niemann Counsel of the Applicant: Mr Milan Vujin Mr Toma Fila Amicus Curiae: 28th February 1(10.30 am)

JUDGE JORDA (original in French): Is everyone here, the interpretation from the various channels? Technically speaking, is everything in order? Madam Registrar, could you tell us what order we have today? THE REGISTRAR (original in French): It is IT-96-19-Misc. 1. This has been submitted by General Djorde Djukic on behalf of the Prosecutor from the Republic of Bosnia-Herzegovina.

JUDGE JORDA (original in French): So this is the submissions of General Djukic. Could you introduce yourself, counsel for his defence?

MR VUJIN: Yes, your Honour, my name is Milan Vujin, I am the barrister in Belgrade. Today I will -

JUDGE JORDA (original in French): One moment, please, you are counsel?

MR FILA: I am Toma Fila. JUDGE JORDA (original in French): You can speak in the language which is easiest for you. The Tribunal would like to nominate an Amicus Curiae for Bosnia. Perhaps the person who is already here. Where is ² she?

MADAM VIDOVIC: (original in Bosnian): Vasvija Vidovic. JUDGE JORDA (original in French): The Prosecutor Goldstone will be there for the Office of the Prosecutor. First, we will give the floor to the counsel for General Djukic. You have the floor. Application by MR VUJIN

MR VUJIN: Thank you, your Honour. As you have given us permission to speak in the language we want, I shall speak in the language of General Djorde Djukic. (original in Serbian) As defence counsel of General Djukic, we have prepared our objections which relate to our attitude, the view that this is an illegal detention of General Djukic and Colonel Krsmanovic by the authorities of the Bosnian Croatian Federation, as well as their illegal transfer to the seat of the Tribunal here in The Hague. In the first place, after receiving the response of the Prosecutor, I will tell you that the statements in the response are correct, that on 26th February 1996, we have submitted a motion and, prior to that, a decision had been made about the changes of the order of transfer and detention. This was caused by the fact that, beginning on 23rd, we were on our way to The Hague, and we did not want to send our motion by fax, but we wanted to submit it directly to the Registrar. However amended in that way, the order of transfer and detention, in our view, is contrary to the provisions on which it is based as I will try to explain later on. All other statements are illegal and I will return to that matter later on too. General Djorde Djukic has never received a summons to appear at the Tribunal in The ³ Hague. A copy of the summons dated 12th February 1996 had been delivered to him along with a letter, a piece of paper, headed: "The information by the Prosecutor", dated 21st February 1996, when General Djukic had already been detained at the prison unit in Scheveningen in The Hague. In this information by the Prosecutor of 22nd February 1996, it is stated that pursuant to Rule 39(1) of the Rules of Procedure and Evidence, he is summoned to appear at the court, but this rule is that the Prosecutor will have the right to summon suspects, witnesses and victims and to hear them. In this situation, however, we do not, because there is not a single document which says in what capacity General Djukic has been summoned to appear at the court. Rule 39 is quite clear and we submit that the Prosecution should have stated the nature and the capacity in which he was summoned to appear at the court in The Hague. If we start from the supposition that General Djukic was suspected, as can be derived from the papers that we have received, since we are dealing with Article 18 of the Statute and 39 of Rules of Procedure and Evidence, in that case, Presiding Judge Stephen was not in a position to submit a motion on detention, the order of detention pursuant to Article 90 bis of the Rules, because that Rule deals with the summons and personal appearance of the detained person who has been detained in another country in the role of a witness, I emphasise "the role of a witness", Rule 90 bis (a). Pursuant to Article 90 bis (b), the order of transfer should be issued by the judge of trial and the judge has ordered a temporary transfer of General Djukic at the time when, in our view, General Djukic had already been in The Hague. ⁴ However, in the response by the Prosecutor, it is stated that this order was issued somewhat earlier, I think at about 1230 hours, 1315 hours, and General Djukic was transferred only at 1920 hours of that day. I can accept this fact, that these times are correct, but I cannot resist the impression that it could have taken place so quickly, within a matter of several hours since the time of the submission of the motion until the moment of the transfer of General Djukic from Sarajevo to The Hague. This speed points to something. I must repeat that General Djukic had not received the summons to appear at the Tribunal on the 12th, as it says on the summons, but he was given it after spending nine days in The Hague, i.e. on 21st February 1996. And, as it is stated in that particular document, he was summoned and his detention was ordered pursuant to Article 39 of the Rules of Procedure, which relate to provisions related to initiating an investigation. If that means that the investigation had been initiated, Judge Stephen in that case could not have made a decision by applying Article 90 bis of the Rules of Procedure and Evidence. What is significant in this matter, in these proceedings, is the fact that an investigation has been initiated against General Djukic at the High Supreme Court in Sarajevo, the Higher Court in Sarajevo, and we have documentation relevant to this, and a decision and motion was issued to start investigation. So, if the Prosecutor thought, believed, that this case is the authority of this Tribunal, he could have issued only a motion to defer to this Tribunal, pursuant to Article 9, paragraph 3, of the Rules of Procedure and Evidence. That means that he should ask the ⁵ Trial Chamber, which is the only competent body to make decisions on this matter, because so far we have not had any relevant motion. Only today have we been served a request of 12th February. The Trial Chamber and not an individual judge, in that case, is the only competent body to decide on this request pursuant to Article 10 of the Rules of Procedure and Evidence, is the request of the Prosecutor justified, and then it will send it to the Government of the country whose judicial bodies are prosecuting this particular individual for this suspect to be delivered, to be handed over to the Tribunal. We have not seen a request submitted to the Bosnian Croatian Federation and, therefore, General Djukic cannot have the status of a suspect. In that case, he cannot be asked to appear at the court to be heard at the court pursuant to Rule 39(1), because the Prosecutor does not have that authority before the Tribunal has decided to take over the whole case, which should have been decided pursuant to the above mentioned rules. That is by the implementation of paragraph 1, Rule 9, of the Rules of Procedure and Evidence, because it is evident that the Tribunal of one country has already started proceedings against General Djukic as a suspect. We subsequently received the amendment of the issue for the transfer and detention in a way which can be seen. There was communication by fax, because Judge Stephen was in Australia at the time. However, in this amended motion, in our view, there is an error which is an absolute error, as you will see later on, but also relative in relation to one day. Namely, in the order it was said that the detention could last 40 days until March 17th, 996, bearing in mind the ⁶ fact that it is calculated from 4th March. Realising this error, this order was amended, corrected, and it was decided that the detention should last from 4th February until March 5th, although the motion on detention, issued by the Higher Court in Sarajevo, decided that the detention of General Djukic should last one month beginning on 4th February 1996. In that case, according to the provisions of Article 91 of the Law of Criminal Procedure of the Federal Republic of Yugoslavia, which is applied as the Republic Regulation of the Bosnian and Croatian Federation, because it has been adopted in its entirety, which you probably know about as this was explained in the introduction, I considered that that is not controversial and I have prepared copies of these provisions of the criminal procedure. Unfortunately, it is in Serbian and we were not able to translate that, but I will read these provisions, and you will be able to follow what is going on. Article 91 says: "The time limits are measured in hours, days, months and years. The hour or the day of the written or oral delivery of the submission or of any such event understood to be the start of the said limited period of time shall not be considered as a part of such time limit. The time limit will commence with the first subsequent hour or day. A day shall be understood as having 24 hours, and a month shall be understood as a corresponding calendar month." This provision "calendar month" means that if the Tribunal decided that the detention of General Djukic should begin on 4th February, that means it can last at the maximum until 4th March 1996, and not on 5th as stated in the amended order of transfer and detention. Therefore, I think this error is a ⁷ relative one and can easily be corrected without any problems. I hope that the Prosecution will accept my proposal. Paragraph 3 says: "Time limits determined by months or years transpire at the expiration of that day of the last month or year, corresponding by number", I emphasise, "to the day on which the time limit begins." This means that if it starts on 4th February, it ends on 4th March, because it corresponds to the number. If we had started on 30th January, then we have to interpret it differently. Then I continue: "If the last month has no such date, the time limit shall expire on the last date of that month." This provision is a significant one, because I think that it is unquestionable that General Djukic was arrested unlawfully on 30th January 1996. In fact, he was kidnapped, and from 30th January General Djukic was unlawfully detained until 7th February, contrary to the provisions that I will mention later on. In fact, it was only on 7th February that he was transferred to the jurisdiction of the Tribunal. It was on 7th February that the Tribunal adopted an order for detention and transfer. So, for seven days we did not know what was happening with General Djukic and what were his whereabouts. With our motion and our proposal, we also provided you with a statement of the witness who was a driver of General Djukic, who confirmed that they were arrested on 30th January 1996 when they went towards Ilidza to check some installations that were going to be given over to in the IFO. Let me remind you that the Dayton agreement has been implemented for quite some time and the Dayton Accord guarantees the freedom of movement. But I will come to this later on. So General Djukic was not arrested on 4th ⁸ February 1996, that is when we start to count his custody, but, on the contrary, he was reprimanded and arrested on 30th January 1996 so his detention should be started to be counted on that day. So, according to this order, one month should end on 30th February, but the month of February does not have 30 days, and General Djukic is not lucky, because we have 29 days this year instead of 28, we are in a leap year, so his detention should end on 29th February 1996. That is the date when he should be released. Let me just remind you that tomorrow is 29th February. Pursuant to the provisions of Article 190, it is said that the duration of the detention should be as short as possible and all those who participate in the criminal proceedings should be as active as possible in those proceedings. Article 192 of the Law on the Criminal Proceedings says that the detention is decided by the investigating judge in a written manner. This was done in the case of General Djukic, but only in so far that the detention was decided on 7th February. The detainee can appeal against the order for detention. We have no information that General Djukic was informed about this possibility, that he could, in fact, use this right. So we can say that he was not given that possibility to appeal. Pursuant to the Article 196 of the Law on Criminal Procedure, paragraph 3, which is very important on counting the day when he was arrested, it is said the detention was decided by a body of the Ministry of the Interior, and that body of the Ministry of the Interior, in fact, was the police, and in exceptional cases the police can decide upon a detention, even before initiating an investigation. I would like to mention that in the ⁹ Bosnian Croatian Federation the investigation starts when the decision on investigation is adopted. In this case, in the case of General Djukic, it was adopted on 7th February 1992. Before that date, the fact is that the police could have decided to give an order for detention, but the maximum number of days is three days. So let me quote paragraph 3: "The detention decided by a body of the Ministry of the Interior can last at maximum three days, starting with the day when the person was apprehended." I would like to emphasise these last words, "starting from the moment when the person was apprehended." The detention order was adopted by the Tribunal on 7th February, so the ruling of the Tribunal starts on 7th February, whereas the detention started, in fact, on 4th February. This means that the Tribunal had to proceed in such a way, because otherwise it would act in a contrary way to paragraph 3 of Article 196, because we know that the police detained in custody, unlawfully, General Djukic for eight days. So if we start to count the first day of the detention as the first day of the arrest, according to Article 196, paragraph 3, then the police detention should have started on 30th January, which is the real date when General Djukic was arrested, which means that it should have lasted until 2nd February. So on 2nd February, General Djukic should have been transferred to the judicial bodies, whereas this happened only on 7th February. Again, we have an unlawful behaviour whose main purpose was to exert pressure on General Djukic. Since he was arrested, in fact, on 30th January 1996, General Djukic has been subjected to torture and questioning that would last for twenty hours per day. During twenty ¹⁰ hours per day, police investigators would come in turns to see General Djukic. They did not allow him to have any breaks. The only break that he would have was when he was given some food and drink. So, during those eight days of torture, maltreatment, General Djukic was subject to many pressures, and we think that the public should be informed about this, because such behaviour is contrary to all the provisions of international law and it is also contrary to these provisions that I have just mentioned. I hope that you will have the opportunity to examine those provisions of the Law on Criminal Procedure, Article 196. Bearing in mind our position, and we think that it has grounds in law, we are of a view that the detention of General Djukic is expiring tomorrow. So, after tomorrow, even this Trial Chamber is not entitled to keep him any more in custody, and General Djukic should therefore be released without any limitations on his freedom of movement. There is another aspect that I would like to raise related to the case of General Djukic. We have all been informed that the Bosnian Croatian Federation has, in the meantime, adopted a law on amnesty. We have also asked the judicial services of the Tribunal, but unfortunately we are not in possession of the entire context of this law, but from what we were able to read in the international press, we can see that all those who are not considered as perpetrators of war crimes by the International Tribunal have to be released. So I would like you to get the integral text of this amnesty so that we can verify whether we can rely on this law to ask for the release of General Djukic. We have two motions. The first motion is that his detention is expiring on 29th ¹¹ February 1996. The second motion is that he should be released in accordance to this law on amnesty. Of course, if what we have read in the international press was exact and if it corresponds to the real law, I did not have time to check this law, but as far as I was informed the Tribunal is in possession of this text. Let me just add something more. When they were arrested, General Djukic, Colonel Krsmanovic and their driver were all in plain clothes. They were driving along the roads that were completely free for circulation according to the Dayton Accord, so there was absolutely no basis for their arrest. So not only were all the laws violated, but also the date and the provisions of the Dayton Accord were violated. Once in the case of Dusko Tadic, someone told me that this Tribunal was created in order to help the implementation and establishment of peace. In that respect, the release of General Djukic would be a contribution to the peace. Thank you, your Honours.

JUDGE JORDA (original in French): Thank you very much. Would your co- counsel like to add any further words before I give the floor to the Prosecutor to deal with the two points, in particular, to which you have pointed? Sir, there are two points you have referred to specifically, which is the illegal transfer, and the release of your client. Quite clearly I have understood that you feel, and you wish the court to clearly understand that jurisdiction should be given, or the jurisdiction of your superior court should be permitted by the Tribunal. I was just asking you the question whether, in your submission, you wished to speak for the application of the penal code ¹² of the Republic of Yugoslavia. This is what I understood you to have been saying.

MR VUJIN (original in Serbian): I spoke about it, that they should be based on the regulations of the Bosnian Croatian Federation, which, using its legal bodies, has taken over the integral text of the Law on Criminal Procedure of the Federal Republic of the former Yugoslavia. That rule, which I have copies of, is legal, valid, in the Bosnian Croatian Federation. This is stated in the introduction of the detention order, and there should be no controversy over this. JUDGE JORDA (original in French): In order to sum up your position, you are submitting that he should be released and that the time limit expires tomorrow, 29th February, and furthermore you have raised the additional legislation. I will give the floor right now to the Prosecutor of the International Tribunal to find out what your views are on these two points. Reply by MR GOLDSTONE MR GOLDSTONE: Your Honour, firstly, I would bring to your attention the fact that, in so far as the application relates to the order coming to an end tomorrow, clearly it is premature as, on that basis, the order made by Judge Ninian Stephen is still in existence, and even if the submissions of Mr Vujin are correct, there is no basis on which an order can be issued before the expiration of tomorrow. But there are other grounds, as I understand it, for attacking the order that was made by Judge Stephen. The one ground which was not, I must say, anticipated in the notice that was given of this application is that there was an unlawful kidnapping in Bosnia-Herzegovina of General Djukic. We have no ¹³ information about that. We were certainly not alerted by the application that this was a matter on which enquiry should be made. Obviously, these are matters not within the knowledge of anybody in my office. If that is an issue to be investigated, obviously we would require the assistance of the authorities in Bosnia and Herzegovina. To the extent that, on the assumption that there was something unlawful with regard to that arrest, it is a matter, obviously, of concern to us as prosecutors. It is a matter which we would obviously require time to look into. With regard to the expiration of the order, whether it is tomorrow or whether it is 4th March, as suggested, as it were, as the alternative in the opening remarks of Mr Vujin, I should bring to the attention of the Trial Chamber, Mr President, the fact that yesterday we were informed that earlier yesterday the Higher Court in Sarajevo has, in fact, in terms of the law applicable in Bosnia and Herzegovina, extended the detention order for a period of another month. On that basis, it would be open to us, under Rule 90, to apply for a further extension of the order here. The references to deferral I can deal with fairly shortly. There never has been a deferral application. As Prosecutor, I relied solely for the transfer and detention on the provisions of Rule 90 bis. It was made very clear to General Djukic, who initially was spoken to by members of the staff of my office in Sarajevo that he was requested to talk to us as a witness in respect of investigations pending in my office, in respect of investigations not only which are pending, but also in relation to indictments which have already been issued, and, in particular, the indictment of Dr Karadzic ¹⁴ and General Mladic. In fact, in that very indictment there is a reference to General Djukic in one of the annexes to the indictment against Dr Karadzic and General Mladic. He is shown in a chart, which is an annex to that indictment, as being a member of the high command. The position, in summary, is that we received information last month that General Djukic had been arrested and detained by the authorities in Bosnia and Herzegovina, and that that had been done in terms of an order made by the Higher Court in Sarajevo. I decided, after a few days of examination, of contact with General Djukic by members of my staff in Sarajevo, that it would be convenient and appropriate for further questioning of General Djukic as a witness to take place in The Hague, and for that reason an application was made to Judge Stephen, under Rule 90 bis, and it is our submission that the provisions of Rule 90 bis have been complied with in every way, and that no facts have been elicited, or have been suggested by Mr Vujin which in any way impugns or puts in doubt the validity of the order which was issued by Judge Ninian Stephen. Mr Vujin has referred to the amendment of the order. The circumstances in which the amendments were necessary have been clearly set out. The only complaint, as I understand it, made about that is a reference to 5th March. I agree with Mr Vujin that it should have been 4th March, and to the extent necessary, that could be amended. Your Honours, we oppose any relief being granted on the present application before this honourable Trial Chamber and submit that it should be dismissed.

JUDGE JORDA (original in French): Thank you, Mr Prosecutor. The ¹⁵ Tribunal wishes to hear Madam Vidovic, who is Adviser to the Ministry in the Government of Bosnia. Mr Prosecutor, would you like to add further comments?

MR GOLDSTONE: No thank you. JUDGE JORDA (original in French): Madam Vidovic, you will have listened to General Djukic's counsel. You will have listened to the Prosecutor. We would like to give you the floor in order to represent the interests of your country. Madam, the floor is yours.

MADAM VIDOVIC: (original in Bosnian): Certainly. I will convey the attitude of my country and I will explain the provisions of the Law on Criminal Procedure, which I am better familiarised with than Mr Prosecutor. It is true that, in the territory of the Republic of Bosnia-Herzegovina and not of the Muslim Croatian Federation, as pointed out by Mr Vujin, the Law on Criminal Procedure is being implemented which was adopted from the former Yugoslavia. It is now used as the criminal law of Bosnia-Herzegovina. Pursuant to that law, the Higher Court in Sarajevo, its Prosecutor, has ordered detention of the two suspects. Today we are discussing the case of General Djukic. This detention was ordered by the investigating judge, on 7th February, and the beginning of the detention should be 4th February. There is no question that the accused could have been arrested for eight days. If we are talking about anything illegal, then that period must be shorter. However, Mr Vujin, although he quoted correctly the provisions of the Law on Criminal Procedure in this case, he failed to quote that the police, or rather the body of the Ministry of the Interior, has the ¹⁶ right to order detention in order to identify the accused. Whether this was done in this case, since I am not familiar with the particular file, I cannot claim, but I can also not accept the fact that it has not been done. I have been informed, with the establishment of identification that there were problems, especially for reasons quoted by Mr Vujin. During the arrest of the accused, they were in civilian clothes, unannounced as visitors of the UNPROFOR office for official reasons. We needed time to establish their identity. According to the Law on Criminal Procedure of Bosnia-Herzegovina, this is applied to a definite person. Before the identity was established there could have been no detention. In this case, the detention was ordered on the 4th. The suspect, Mr Djukic, was handed over on this decision and was given the right to appeal this decision, and there was legal remedy there. If this is true, what Mr Vujin said, that he was arrested illegally and that the time was calculated in an unlawful way, Mr Djukic, with the defence counsel that he had in Sarajevo who was instructed about this, he had the right to point this out and the possibility to have this decided by the competent court of Bosnia-Herzegovina. Since, in this case, the law of Bosnia-Herzegovina is implemented pursuant to this law, it was possible to investigate the legality of this arrest, and, therefore, I believe that in this procedure, without arguments, there was an illegal act involved. This Chamber could not decide, but this is the jurisdiction of the competent court in Bosnia-Herzegovina. So far as the second fact is concerned, that Mr Djukic was maltreated while in Sarajevo, my information is different. In order to avoid this ¹⁷ objection, Mr Djukic was filmed by video cameras all the time, in order to avoid such an objection. This is something that should be investigated before making the final decision. In any case, if we accept that the accused was arrested on 30th January, that arrest, as is known to the counsel, will be taken into account. If an error was made, that time will be calculated in a possible sentence. If it expires on 29th February I can say, and thereby correct Mr Goldstone, that at the proposal of the Higher Court in Sarajevo, yesterday on 27th February, they have issued an order for extending the detention period until th May 1996 in order to carry out further investigations into the matter of these two accused. As far as the third question is concerned, which has been raised - and that is the question of law on amnesty - I can claim with full authority that amnesty has not been granted to individuals for which there is reasonable ground that they have committed the criminal act of genocide or war crimes against civilians, pursuant to Articles 141 and 142 of the Law on Criminal Procedure of this Socialist Federal Republic of Yugoslavia.

JUDGE JORDA (original in French): Madam, does that complete your submission? Good, thank you very much. I would like now to review the general terms of this discussion. Mr Vujin, as I have understood you, you do not contest the application of the law enforced in our jurisdiction, which is Article 90 bis. You have referred to that on several occasions in your submission.

MR VUJIN (original in Serbian): After the reasons which were given by Mr Goldstone, explaining that the implementation of those provisions is ¹⁸ possible because General Djukic is treated as a witness, in that case I would not be in a position to have the objections to the implementation of this provision. However, in that case, the summons to appear at the court, as well as the order of transfer and detention, as well as the motion by the Prosecutor to do so which states that it is a matter of authority pursuant to Article 18 of the Statute, and Article 39 of the Rules of Procedure, then Rule 39 can still hold but Article 18 deals only with individuals who are being investigated. Therefore, I said it is possible to apply that particular Rule, but in that case the entire procedure relating to the transfer was contrary to the Rules of Procedure and Evidence of this Tribunal beginning with the day of the arrest. Besides, if you will permit me, your Honour, if you want to decide on our objections, we should conclude that, whether it is controversial that General Djukic was arrested on 30th January, because Mrs Vidovic and Mr Goldstone, in their statements, allowed for this possibility, but this has not been verified, you could have verified this possibility. It was announced by the world media, and the representatives of the International Red Cross were convinced of this fact, and you have the statement of a witness which we have sent, together with our file. This is Radenko Todorivic who gave his personal statement and, together with General Djukic and Colonel Krsmanovic, was arrested. After he was released by the decision of the Chamber, when all the documents have been seized, his documents were seized, and he was evicted from the prison unit. If we make this quite clear and non-controversial, then the objection of Mrs Vidovic as Amicus Curiae ^{19BLANK PAGE 24} is not valid, that it can be calculated as part of detention. In that case, then General Djukic is treated as a witness, and we cannot talk about any sentence or punishment. We do not believe that General Djukic can be punished, but the claim of Mrs Vidovic is that I did not quote the provisions of the Article in a proper way, but the defence counsel have very long experience in these matters. I have been speaking about the Article of 196 of the Criminal Procedure. The police have the right to order detention of three days at the maximum, but it must be calculated beginning with the day of arrest, and this is what I pointed out and emphasised. That is 30th January and not 4th February, as the Tribunal decided, and this law is categorical, when the three days are ordered, that there should be a decision on detention, and such a decision has never been submitted to General Djukic and he was not given a right to appeal, although he was entitled to appeal within 24 hours. So the whole procedure is illegal. Up until 7th February, everything that had happened is illegal, and you should, as a court, accept the fact that General Djukic was arrested on 30th, and, pursuant to the limitation, to time limits, tomorrow is the last day of detention. The claim by Amicus Curiae - JUDGE JORDA (original in French): I did not want to deprive you of the floor. Regarding Rule 90 bis, here you are actually repeating your submission, which we heard earlier on, and we are aware of the importance which you attach to these points. But I do think you are going over old ground. I wanted to ask you quite simply, in the context of today's hearing in this Tribunal, were you saying that, in terms of the witness, in terms of ²⁵ Rule 90 bis, were you saying that it was in terms of that jurisdiction that General Djukic is present here today? That is a clear question, and I wish to receive a clear answer from you.

MR VUJIN (original in Serbian): I think that that basis is possible, but for all the reasons that I presented earlier on, he was not brought here on that basis. The procedure was not respected, observed, and an International Criminal Tribunal should not allow things to be conducted against the Rules of Procedure. I must say, and without wanting to go into great details, it will be significant if you could take the view that you could apply Rule 90 bis. That is the claim of General Djukic that an order for the extension of the detention was issued. If the detention was for one month and then before 7th February, or 4th February, since the detention started, the Chamber cannot decide on the extension of that detention but only immediately before the expiration of this term. Since it was done yesterday it is evident, and we cannot put our heads into sand, this was done in order to mislead this court on the basis of Rule 90, bearing in mind that the extension was granted. So you can make a decision to keep General Djukic. We should not hide our heads and we should not play with the honour of freedom of General Djukic. Just another remark: the claim by Mrs Vasvija Vidovic that there were problems with the identification is incorrect. The entire file on the transfer of General Djukic is in the court, and there is even a piece of paper about the things that were seized from him. They include personal documents which clearly show who he was, and all the decisions should have been made on the day when he was ²⁶ arrested, 30th January. JUDGE JORDA (original in French): Thank you very much indeed. I would now like to take the floor. I think you have been given quite a long time, as you wished, to take the floor in order to defend your client. Before requesting the opinion of General Djukic, could I recall a series of points, and then I would like to ask each of the sides what they think about these points. Perhaps a point of law, but that is the very idea of the existence of the Tribunal. The Tribunal is presently dealing with an order which has been issued within terms of the jurisdiction of the Tribunal, and this particular provision allows for the possibility to transfer a witness and, if necessary, to detain the witness, if it is felt necessary by the Prosecutor that this witness, this particular witness, be made available to international criminal justice in The Hague. It is within that context, within Rule 90 bis, that we are meeting today, because Rule 90 bis says -I would like to read out to you some provisions of it - Rule 90 bis lays down some specific provisions regarding the transfer of a detained witness. The Tribunal has an order here from Judge Stephen. This order was modified on 24th February in order to correct a date. I think everybody agrees here that this date should have been corrected, apart from the period of 29th February to 4th March. Both sides have agreed, the Prosecutor, the Amicus Curiae from Bosnia, and yourself, Mr Vujin, also agree that from 4th March we are applying Rule bis. There is no disagreement about that. The Tribunal has an order issued by one of the Judges in this Tribunal. That is the first point I wanted to make. The second point is that the Tribunal, ²⁷ and I would like to repeat this too, if I may, the Tribunal is dealing with this point not in terms of national legislation. There is no specific reference to national legislation here. There are one or two points which do, for example regarding the sentence to be taken into account in terms of Yugoslavian sentencing procedures, but Rule bis says explicitly, it mentions explicitly, it states national law. However, in order to make the debate crystal clear, we are applying here standards of international law and those are applicable to everybody without exception. In Rule bis, if you are able to detain a witness, and in this particular case we are talking about General Djukic, if you are able to detain such a witness it is only in terms of the limits for the duration of the detention required. That duration is in terms of Bosnia-Herzegovina's decision, which as a result of the decision taken by the Higher Court of Sarajevo, detained, took into custody, in terms of its own local, national provisions, regarding which the Tribunal has no opinion to issue each and every country. As we all know, each and every democratic country sorts out its own rules for detention, and the Tribunal will reach no judgment of any nature at all on that. But the Tribunal must be sure that the period of this detention for a witness, a particular witness, cannot exceed the period of preventive custody allowed for in terms of national legislation of the state concerned. I would like to be sure that we all agree on that particular point. It means that, in the present state of things, and we do not have to discuss this further, my colleagues and I do not have to discuss these points. We are simply talking about the specific ²⁸ implementation of the rules of law which, of course, are required by this International Tribunal. However, expiration of the delay laid down by this Tribunal for the temporary transfer of the witness, 29th February, 4th March, we will have to come back to that, the expiration of that period. The witness will be submitted back to the state concerned, unless there is an order for the release of the person concerned, which will also have to be adopted and put into implementation. That is not the case. In fact, there is an order for prolonging the period of detention. In the light of this particular discussion, I would like to ask General Djukic to kindly stand up to introduce himself and, if he needs some time to think about this question, that is perfectly okay. I would like to ask him whether he maintains his particular viewpoint, what his viewpoint is on this particular question of the transfer to the Tribunal. Very rapidly, please, sir, would you introduce yourself and tell us about the conditions of your detention here within the auspices of the Tribunal? We wish to be satisfied, we need to be satisfied about the conditions of your detention. Can you hear what I am saying? Good. Having told us about that, then please give us your opinion regarding the whole of this case which, of course, concerns you, and we need to hear your viewpoint. If you would like some time to think about this particular question, these points of law, then the Tribunal would look favourably on such a request. So, General, the floor is yours.

GENERAL DJUKIC (original in Serbian): I would like to apologise to this Tribunal that I am not dressed more appropriately because this is my ²⁹ only possibility. Secondly, my name is Djorde Djukic. I am the son of Stevo and mother Boja, and I am a Lieutenant General, and I am a member of the Army of the Republic of Serbia, Republika Srpska. My position is the Logistics Assistant Commander. On 30th January, I was on my way to carry out a mission of establishing the possibility of the surrender of part of our installations to the IFO. On the way I was kidnapped, together with my fellow travellers, by the police of the former Bosnia-Herzegovina of the Muslim Militia. I do not know what order they followed in doing so, and what request they carried out, because the act of arrest and detention is contrary to all international regulations. My request is to be released immediately and I would like to inform this Tribunal that I am not prepared to give any other answers. I apologise to the Tribunal. My conditions in this detention unit are very, very correct.

JUDGE JORDA (original in French): Thank you, General, please be seated. I want to make quite sure that you are fully aware of the fact that, if the Tribunal does not release you as regards the international law applicable, you will be sent to the requested state, that is to say Bosnia. I want to make quite sure that you are fully aware of that. I now turn to the Prosecutor. I would like to ask you for some clarification on behalf of the Tribunal. I want to go a bit backwards and find out what - if it is possible to know, obviously - but what were your objectives as regards the procedure which regulated the proceedings of this Tribunal, what made you issue this request within the International Tribunal, what prompted you to do this, and which was ³⁰ upheld by a judge, what made you approach Sarajevo and ask them to transfer him here to the International Tribunal? Counsel for the Prosecution, you have the floor, and could you tell us what stage you have reached now in your proceedings?

MR GOLDSTONE: Your Honour, the reason for the request for the transfer to the detention facilities in The Hague arose from the initial contacts with General Djukic, and the same applies to Colonel Krsmanovic. They were approached by members of my office on my instructions to ascertain whether General Djukic would be prepared to give information to us concerning matters relevant to investigations in my Office. At the initial meetings, there were discussions. It is not appropriate to talk about the contents of those discussions but it was decided that it would be more convenient if further discussions with General Djukic took place not in Sarajevo, but in The Hague in relation to further questioning. The attitude taken by General Djukic since his arrival in The Hague was, firstly, and he was, with respect, fully entitled to adopt that attitude, was that he wished first to be able to consult with a lawyer of his choice from Belgrade. Contacts were made with Belgrade on his behalf by my Office. In consequence of that, Mr Fila came to The Hague, his co-counsel appearing today, and Mr Vujin then also became one of the counsel of General Djukic. They have been obviously advising General Djukic. The position of General Djukic, until now, has been to refuse further discussions with investigators of this Office, but this is something that is emerging only this week with any clarity, and I am certainly not satisfied that General Djukic's ³¹ position is a final one with regard to whether he is prepared to be cooperative with my office as a witness to very important events concerning investigations and the indictment to which I referred earlier.

JUDGE JORDA (original in French): Mrs Vidovic, could you enlighten us as regards the situation of General Djukic in Sarajevo? You have added a new element. I have read Article 90, where an extension of the time period was requested. The Tribunal is not in a position to judge that, it is not our function, but as regards the preventive detention and also the request of releasing him, based on Article 90 bis, we need supplementary information. Could you perhaps tell us what the situation is regarding General Djukic vis-a-vis Sarajevo, and also the enquiries and investigations going on in Sarajevo, so that we know precisely what the position is now?

MADAM VIDOVIC: (original in Bosnian): The detention can be re-examined on the basis of the proposals of the Prosecutor in a matter of 30 days, and this decision was made and it is quite clear from this decision that the further investigations will be carried out, related to the criminal offences of Mr Djukic, because Mr Djukic is a member of the headquarters of the staff command of the so-called Army of the Republic of Serbia which, according to the information we have, and also this Prosecution, has committed many crimes in Bosnia-Herzegovina. The position of the headquarters of the Army of the Republika Sprska is to prepare, pass and co-ordinate decisions on the territory of its activity, which is to the bodies of Bosnia-Herzegovina, in this case ³² the Prosecutor's office and the Higher Court in Sarajevo. There is reasonable ground that General Djukic committed crimes against civilians. The clear attitude is, if he is not detained in The Hague for the needs of the International Tribunal, General Djukic should return to Sarajevo for further investigations.

MR VUJIN (original in Serbian): Your Honour, as far as this information that his detention has been extended, Mrs Vidovic did not give us the number of that decision, and I do not know whether we can accept it. We can take it for granted that this is really true, that this decision was indeed issued. I will believe Mrs Vidovic. I gave the reason why it was done, because Mrs Vidovic was informed that they should extend this so that these rules could be applied. I must say, however, that this decision, out of record here, can appeal, and this decision was not handed over to General Djukic. The time of appeal is three days since the time when he was handed that decision, and, therefore, this decision is not legally valid. It cannot bind this Tribunal. Therefore, the detention of General Djukic expires tomorrow, on 29th February, or, if you do not accept that, on 4th March 1996. I would like to point out one more thing. Mrs Vidovic uses terminology which is contrary to the Dayton agreement of the so-called Republika Sprska, but the Dayton agreement recognised the Republika Sprska and I would appeal to her to use the proper terminology so we do not have any conflicts with regard to those matters. In consultations with our client at this point, his attitude is that he will not co-operate with the investigators of this Tribunal because he believes that the whole procedure of his arrest is ³³ illegal and contrary to all international rules and regulations. JUDGE JORDA (original in French): Mr Fila?

MR FILA (original in Serbian): Your Honour, I do not know if I understood you well. We are not talking here about Mr Djukic not being willing to testify. It is only today, your Honour, that we found out that he is considered to be a witness, when I was talking with the investigator teams of Mr Goldstone. I have never heard about it. I was always told that General Djukic was considered a suspect, and not as temoin or witness. Second point, Mr Goldstone's paper gave me a list of the documents that are available in his office. You can see them immediately. Mr John Ralston brought them directly from Sarajevo and you can see there is the ID of Mr Djukic, the driver's licence of Mr Djukic. So there was absolutely no problem to identify Mr Djukic in not more than a couple of minutes. Even if it was sometimes meant that time should be counted in the time limit, but you have first to release Mr Djukic to Belgrade and then he can come here as a witness in that case only. Yes, thank you.

JUDGE JORDA (original in French): Mr Fila, I will repeat what I have said. I do not know what happened between the Prosecutor and the General, but what I can tell you is that the General has his counsel, since he has arrived in The Hague, since the night that he was transferred to the United Nations Detention Unit. He has counsel of the defence. You and Mr Vujin were obviously notified about the rules and regulations relating to him. He arrived in The Hague as a witness. I am not going to repeat what has already been said, he came here as a ³⁴ witness. He was detained, but based on rules I have already outlined, Article 90 bis is very clear on the subject. I do not think that you were not given a moment to look through them. The Prosecution forgot to tell you about them. I think counsel for the General did not have ample time to tell him about his legal situation. As regards the order, based on Article 144 relating to the request of a party, here the Prosecutor, judge, or Chamber, can issue an order or can ask for a transfer order to carry out investigations so that one can continue our investigations. These are the rules which apply here and which the Judges here must respect. Thank you. , go ahead.

MR FILA: I did not make any objections to those documents, the fact that they were not passed. My objection related to the fact that they were not handed to General Djukic or myself as his counsel. The contact between General Djukic and myself existed there, but when I arrived in The Hague I received from Mr Marro only an order of arrest, a petition of arrest. On Thursday, I got the documents from Bosnia, and only this morning did I get the entire file. If you consider this as normal contact, this is not the kind of thing that we would do back home, so I repeat that we have been informed only today that he is to be a witness.

JUDGE JORDA (original in French): Thank you. Let us try and organise things, the new elements which have transpired, which you seem to be discovering at the moment, namely the quality of the witness, and the General not suspecting that the Prosecutor himself has just received some information himself. Do you have any additional information which ³⁵ you would like to share with the Tribunal relating to this particular case?

MR GOLDSTONE: Your Honour, with respect I can only say that investigations are still continuing. I have difficulty in understanding any misapprehension on the part of the legal representatives of General Djukic. They knew at all times that the order made by Judge Sir Ninian Stephen was under Rule bis. Rule 90 bis only applies to witnesses. It could not apply to General Djukic in any other capacity. If this was not made clear to him, it may well be that his attitude with regard to his question of co-operation with the Prosecutor's office may be a different one. It may well be that he should be given an opportunity of reconsidering his position.

JUDGE JORDA (original in French): I would like to ask the Registrar, during the night when he was taken into the Detention Unit of the UN, whether the text references were given to General Djukic. THE REGISTRAR (original in French): The Deputy Registrar was there and confirmed to me and has told me now that at that moment he was given the text of the order.

THE DEPUTY REGISTRAR (original in French): The text, as far as I am aware, was given by the Office of the Prosecution informally and, furthermore, was noted down in the form that we gave the Serbian translation. We followed the normal proceedures.

JUDGE JORDA (original in French): Mrs Vidovic, would you like to add something? Do you have nothing to add as Amicus Curiae?

MADAM VIDOVIC: (original in Bosnian): No, I do not. ³⁶ JUDGE JORDA (original in French): This is the initial answer which we have to give you, namely that the dispute as regards the time period between the 29th February - you can remain seated - the question relating to the actual dates, the starting date of the preventive detention. As far as the Court or Tribunal is aware, preventive detention is done according to the order which goes to 4th March. This point must be settled altogether in a decision of the Tribunal, but, nevertheless, as you are raising a date which is that of tomorrow, I feel that the Tribunal has to answer that as quickly as possible. As regards this particular point, I would ask all the parties in question, now it is 12.00, in one hour's time all the parties concerned, the General and the counsel of the defence, the Prosecution, the Amicus Curiae and the Registrar, to give me a very brief memo only on that particular point as regards the grounds as regards 29th February and not 4th March. The Tribunal, based on the order of a judge who stated that at the outset of the preventive detention, it would go up to 4th March. I think everyone would agree that we are all talking about 4th March. However, you raised a question which jeopardises - this has to take place before tomorrow. So the Tribunal must answer immediately. We will meet at the time I have already mentioned. We have this time so that the General - because it seems to me that there is a problem of notification, of communication, I want things to be very clear. As regards the specific point of Article 90 bis, there is no doubt that the release, or the detention, my colleagues and I will say when we have deliberated on that, but there is one case that, if he is ³⁷ released, he goes back to Sarajevo. So everyone should think about that. Furthermore, we will adjourn the session. I suggest that we resume at 3.00 so that we can look at the period of the 29th February or 4th March. As regards the substance in this case, I think the Tribunal has the impression that amendments have taken place in the positions on both sides. The Tribunal will suspend its deliberations on this unless release takes place on 29th February, but we will wait to see whether we must change our position as regards the substance. We can only do that once we have established the date in question, namely 29th February. So the session is adjourned. We will adjourn at 3.00, 1500 hours. I will ask each party, as I said, to give a brief note covering the issues which have already been covered extensively. What I would like is some further clarifications and references to texts of internal codes. I would like to have further technical precisions which the Tribunal has not available yet. We will look and review that at 1500 hours. Based on the response relating to the date 29th February, we will decide on how we will proceed. The session is adjourned until 3.00 this afternoon. (12.05 pm) (Lunch adjournment) (3.20 pm) ORDER JUDGE JORDA (original in French): First of all, before we begin, we would like to know whether you can hear the interpreters. Can everyone hear what I am saying? General Djukic, do you have interpreting? Can you now hear what I am saying? General Djukic, can you hear what I am saying? Does everybody else hear me? The Trial Chamber consisting of Judge Riad, Judge Odio-Benito, Judge Jorda, assisted by Madam Sampayo Garrido-Nijgh on this day, 28th February ³⁸ 1996, renders the following condition regarding the request of defence counsel of General Djorde Djukic: Noting that the request presented by Mr Vujin, Counsel for General Djorde Djukic, on 26th February 1996 intended to secure the immediate release of General Djukic; Noting that Rule 90 bis of the Rules of Procedure and Evidence ("Rules"); Considering that on 12th February 1996 Judge Stephen ordered the transfer of General Djukic pursuant to Rules 54, 56 and 90 bis of the Rules; Considering that on the same day Judge Stephen, pursuant to Rules 54 and 90 bis of the Rules, also ordered the provisional detention of General Djukic at the United Nations Detention Facility in The Hague, the Netherlands, until Sunday, 17th March 1996 at the latest; Whereas by the amended order of 24th February 1996, Judge Stephen, at the request of the Prosecutor, reset the date at 5th March 1996; Whereas pursuant to Rule 90 bis, the transfer of a detained witness is subject to the condition that such transfer does not extend the period of his detention as foreseen by the requested State; Whereas during the hearing, the Counsel for General Djukic considered that the release of General Djukic should occur at the latest by 29th February 1996 by stating that the decision of 7th February of the High Court in Sarajevo which authorised the detention for one month starting from 4th February 1996 was both elicit and misfounded; Whereas the Tribunal, pursuant to its Statute and Rules, is not competent to rule on the legality of a decision taken by a national court; Whereas it should be noted that, during the hearing, all the parties agreed to consider that the date of the 4th March was the date of expiration of the detention; ³⁹ Whereas the date most favourable to the witness, that is 4th March 1996, at 0000 hours should be retained. For these reasons, Dismisses the request of General Djukic to set the date of 29th February 1996 as the date of expiration of his detention at the United Nations Detention Facility at The Hague; Sets the date of 4th March 1996 at 0000 hours as the date of expiration of the detention of General Djukic. Signed Claude Jorda, Presiding Judge of the Trial Chamber 1, meeting at The Hague in the Netherlands on 28th February 1996. So the discussions can be recommenced. Let me remind you that this morning during the hearing Madam Vidovic informed the court of a new element, which was the extension of the detention on the part of the High Court of Sarajevo. Firstly, let me recall that, in terms of Rule 90 bis, transfer of a detained witness, it is indicated as follows: if, during the time period laid down by the Tribunal, it appears that the presence of a witness should be necessary, a judge or chamber may abstain the period in terms of the conditions stated in sub-rule (b). I would like to turn to counsel for the Prosecution, the Prosecutor. Looking at these Rules for Procedure and Evidence, I would like to know, I am just asking you - this is a question of information, and then we can have a discussion on it, but at the present time I would like to ask the Prosecutor, for information purposes, whether he intends, on the basis of the official notification to all the parties of the extension of the decision on the part of the High Court of Sarajevo, whether he now intends presenting a request for an argument which would say that the presence of the witness here remains necessary for his Office. Mr Prosecutor? ⁴⁰

MR GOLDSTONE: Your Honour, indeed. In our view, the continued presence is necessary for the purpose which I referred to this morning, and we would request an extension of the order for a period of one month from 4th March.

JUDGE JORDA (original in French): Thank you very much, Mr Prosecutor. This is a very important discussion, I suppose, but I will, of course, be giving you the floor as you do not feel that the presence is necessary. I will give you the floor on this. This morning this was also an element, a part of our discussion. You said you had not had notification of this extension and I would like now to ask you to take the floor to expound your viewpoints on this particular question. Mr Vujin, the floor is yours.

MR VUJIN (original in Serbian): Your Honour, we have just received a copy of the decision by the Higher Court, which I still claim to be illegal, because General Djukic can appeal this decision. Today he expressed his view and also, through me on this occasion, that he does not want to co-operate with the investigators in Prosecutor Goldstone's team, that he does not intend to speak in front of the Tribunal, and that he is not afraid to go back to Sarajevo, because he did not commit anything for his decision to be harmful in any way. Therefore, we consider that, bearing in mind this particular decision of his, his further detention in The Hague is unnecessary as decreed by the Tribunal in The Hague, but at the same time we will not object to this if the Tribunal issues a different decision, because we are quite clear about the status of our client, because he is treated as a witness. ⁴¹ MR FILA (original in Serbian): Mr President, if Mr Goldstone wants a definite decision on whether Mr Djukic will co-operate, whether he will be a witness, he has received the response that the General will not do so. Why is it necessary to extend the detention if we know that he will not speak? Therefore, the counsel believe that this 30 day detention is really just a mask for something else. This is why we object to this request.

JUDGE JORDA (original in French): General Djukic, would you like to say anything? Would you speak close to the microphone?

GENERAL DJUKIC (original in Serbian): Your Honour, I have already said that I do not plead guilty, and the circumstances under which I was arrested, and I am detained, are contrary to the provisions of the international law and the positive decisions of the international law. I do not plead guilty. I am not afraid of the decision to go back to Sarajevo, and these are the main reasons why I feel no need to continue my stay here, or say anything.

JUDGE JORDA (original in French): Please be seated. Madam Vidovic, as Amicus Curiae, would you like to say anything, and then, Prosecutor, I will give you the floor afterwards if you would like to add some words. Madam Vidovic, would you like to take the floor?

MADAM VIDOVIC: (original in Bosnian): I will say what I said before, your Honour, and that is that the Government of Bosnia-Herzegovina keeps its decision, that if General Djukic is not necessary to the International Tribunal, whether as a suspect or a witness, the investigation into his crimes will continue in Sarajevo, and we insist ⁴² on his return to Sarajevo and to be handed over to the competence of the Higher Court in Sarajevo.

JUDGE JORDA (original in French): Mr Prosecutor, would you like to take the floor again?

MR GOLDSTONE: No, I have nothing to add, your Honour. JUDGE JORDA (original in French): Thank you. So let me recall the following, this concerns a request for the extension of the detention on the part of the Sarajevo court through Madam Vidovic. The extension arrived, apparently, this morning, and, therefore, neither of the sides were in a position to use all their resources which would have been available to them, and which would otherwise be fitting in this international body, this International Tribunal. Therefore, I propose the hearing be adjourned, and in the following interval I would like that you transmit to me your memoranda, relevant memoranda, supporting each side. Let me recall that the extension of a period of detention can, quite straightforwardly, take place within the terms of our statutes, our Rules of Procedure. Let me read once again the provision: "If by the end of the period decided by the Tribunal the presence of the detained witness remains necessary", and it is up to the Prosecutor to say that, "a Judge or Chamber may extend the period", it is not obligatory, "may extend the period", in this case it is a chamber, Collegial Chamber, "on the same conditions stated," that is in terms of the provisions stated by the particular state in its decision, and that covers questions, both of law as well as questions of fact. I would wish that this discussion, which is of importance for everybody, ⁴³ importance for General Djukic, importance also for international justice, importance also vis-a-vis the public, that this discussion takes place in conditions of total transparency, and that all parties be able to express their view points, put their arguments forward, in calmness and in serenity. In addition, we are covered by a delay of 4th March, 0000 hours. We have ourselves laid that decision down. In those conditions, the Tribunal now adjourns today's hearing and adjourns today's discussion until Friday, 1st March at 10.00 am. It goes without saying that the Tribunal undertakes to issue a decision, whatever it may be, on the afternoon of Friday in order to comply with its own deadlines.

The hearing is adjourned. (3.35 pm) (Tribunal adjourned until Friday, 1st March at 10.00 am)