¹⁰⁷ THE INTERNATIONAL CRIMINAL TRIBUNAL

CASE NO. IT-96-20-PT FOR THE FORMER YUGOSLAVIA IN THE TRIAL CHAMBER

Monday 22nd April 1996 Before: CLAUDE JORDA (The Presiding Judge) JUDGE FUAD RIAD JUDGE ODIO BENITO

THE PROSECUTOR OF THE TRIBUNAL -V- DORDE DUKIC MR MIKE BLAXILL MR. MICHAEL KEEGAN and MR. G. BLEWITT appeared on behalf of the Prosecution

MR. MILAN VUJIN and MR. TOMA FILA appeared on behalf of the Defence appeared on behalf of the Defendant

CLOSED SESSION

(14 lines redacted) ¹⁰⁸

(17 pages redacted) ¹²⁵

(1 lines redacted) OPEN SESSION

THE PRESIDING JUDGE: The hearing is resuming in open session. I would like to thank Mr. Boes and the second gentleman whose name has slipped my mind, but you will introduce yourseIf in a moment. Mr. Boes, would you be so kind as to introduce yourself?

MR. BOES: Yes, I a Mr. Adrian Boes, Legal Adviser of the Ministry of Foreign Affairs, and next to me is Mr. Strjart, representing the Minister of Justice.

THE PRESIDING JUDGE: Thank you. We have heard the testimony of Dr. de Man in a closed session in order to summarise the present state of affairs. As regards the medical condition of General Dukic, in fact, two very different conclusions have been drawn by the Defence and by the Prosecutor's Office. I would like to give the floor to both parties who will explain their position, the Defence first and then the Prosecutor. In accordance with Rule 65(B) we will then hear the comments by Mr. Boes from the Foreign Affairs Ministry of the Netherlands and Mr. Strjart from the Ministry of Justice. Th Defence attorneys now have the floor in order to comment on Dr. de Man's testimony and also the conclusions that you are in favour of.

MR. VUJIN: Thank you, your Honour. The Defence has listened to the submissions made by Dr. de Man. We have informed the Trial chamber that we personally also have information on the health condition of General Dukic which is very difficult. But, aside from that, the Defence stays with its previous motions, and we believe that this ¹²⁶ Trial Chamber will be able to decide and reach a decision which will be in accordance with the Rules of this Tribunal. We believe that the treatment of General Dukic from his kidnapping and then from his transfer was in violation of the Rules. We believe that this caused an emotional stress of Genera1 Dukic. We also believe that later on with inadequate nutrition his medical condition was affected and serious deterioration of his health occurred. That is why I responded to the request by the Prosecutor, request to withdraw the indictment on grounds of difficult health condition, we stated that this should not be the reason for the withdrawal of indictment, but that the reason for the withdrawal should be lack of evidence, because until today not a single piece of evidence has been submitted, has been disclosed, in spite of our requests. So, we maintain our previous motions, but we accept that the general condition of General Dukic is very difficult, and we kindly ask the Trial Chamber to reach a decision on this urgently. We learned from the conversations with General Dukic's doctors that this decision should be reached as soon as possible and cannot be postponed. The question to be raised, the question that we have here, is whether General Dukic will die in hospital or in the detention unit of the United Nations. His health condition was as difficult and as severe at the moment he was transferred, and we believe that the treatment of prison authorities, and the treatment on behalf of those who were in charge of his accommodation and nutrition, we believe that they failed and did not do what we expected them to do and what was their duty. ^{127BLANK PAGE 132}

THE PRESIDING JUDGE: Before I give the floor to the Prosecutor, I would like to ask you to state clearly that you are requesting, what is the nature of your request. In other words, you are not requesting the withdrawal of the indictment which, no doubt, the Prosecutor is going to be asking for in a moment. Are you asking in legal terms - after all that is our purpose here -- what exactly is the nature of your request? Apparently, you do not want him to return to prison, but what exactly do you intend?

MR. VUJIN: Your Honour, the attitude of the Defence is that until the withdrawal of indictment should be the result of the lack of evidence and that you, as Trial Chamber, should accept such kind of withdrawal of indictment, not because of the medical condition of General Dukic, but because of the lack of evidence. You have our request for the detention to be revoked and we believe that in that case the detention can be revoked because of the serious medical condition of General Dukic without any other conditions that would be restrictive in any way. So that means that by decision of your Chamber, General Dukic would be free and would not be returned to the detention; he would be allowed to move freely wherever he wants and he is prepared in case these conditions are met, and he is prepared to answer all summons of the Tribunal.

THE PRESIDING JUDGE: Let me recall that you have presented a request for his release. Are you maintaining this, are you sustaining this request? How can you imagine his release at present given his present state of health? In other words, you are asking that the indictment be ¹³³ maintained and that the court withdraw the indictment but for reasons other than the state of health of General Dukic. In addition, on March 25th, I believe you requested the release of the General, not for medical reasons, but for other legal reasons. What is the exact nature of your request as regards the release of General Dukic?

MR. VUJIN: In any case, your Honour, our request for revokal of detention is of a legal nature because we believe that legal conditions have not been met, legal conditions provided for in the Rules of Procedure and Evidence, for General Dukic to be kept further in the detention. This as our preliminary, this was one of our preliminary motions. So we maintain that there is no legal basis for his detention, because the Prosecution has not disclosed any piece of evidence so far. According to the theory of criminal law in all countries of the world and in accordance with international criminal law, these health conditions, serious health conditions, should be taken into consideration while reaching such a decision. We believe that the withdrawal of indictment due to serious medical conditions was not provided for in the Rules of Procedure and Evidence. We believe that this is not in accordance with national jurisdictions and, therefore, we believe that if it is requested that the indictment be withdrawn, we believe that this has to be based on legal reasons and not medical reasons because this is not provided for in Rules of Procedure and Evidence. Therefore, we believe that General Dukic has the right, in view of his serious medical condition, we believe, therefore, that General Dukic should not be further suspected of ¹³⁴ having committed something for which no evidence has been so far disclosed. Therefore, our request is of lega1, purely legal nature. I apologise, your Honour. We talked to General Dukic today and this is his attitude that we re conveying to you because he wishes, he and his family, to be considered innocent and not to remain under heavy suspicion that he committed crimes and he wishes to clear his name this way. THE PRESIDING JUDGE: Mr. Prosecutor?

MR. BLEWITT: Thank you, your Honour. The reason for the present application by the Prosecutor which is to withdraw the indictment pursuant to Rule 51 of the Tribunal's Rules of Procedure and Evidence is based solely on that of the health of the accused. The Prosecutor rejects the submissions of the Defence that the withdrawal of an indictment can only occur in circumstances where there is a lack of evidence in support of that indictment. If this Chamber were to agree with that submission, then the Prosecutor would withdraw his application to have the indictment withdrawn and would elect to proceed to trial. Your Honour, clearly the Trial Chamber is the one to determine whether or not the Prosecutor's evidence is sufficient. That determination can only be made once the evidence is led at the trial and, your Honour, we are a long way from that. The Prosecutor submits, however, that his powers to withdraw an indictment under Rule 51 are not limited to evidentiary matters and include other considerations which are normally found within other jurisdictions throughout the world. Such considerations include, in our submission, humanitarian matters. The independent medical evidence which as revealed to the ¹³⁵ Prosecutor on 17th April, that is, Wednesday of last week, by Dr. Hanz de Man, the medical inspector of the inspectorate of the prison health care in the Netherlands is clear that the accused is suffering in terminal cancer and he is not expected to live. When we spoke to him last week, the life expectancy was expressed in terms of months. You have heard, your Honour, Dr. de Man express the life expectancy in terms of days and weeks, so that the situation as it exists today is worse than it was when this application was made last week. In the light of the fact that the Rules do not provide for this situation, the Prosecutor submits that the solution lies in the exercise of his discretion to terminate the proceedings on humanitarian grounds. In so doing, the Prosecutor preserves his right to represent the indictment in the unlikely event that the accused recovers from his terminal illness. The Prosecutor submits that, in these circumstances, there is no question of issue estoppel or autre fois acquit because there has been no hearing on the merits. Accordingly, there would be no obstacle to representing an indictment at some future date if that eventually becomes necessary. It is further submitted that neither the provisions of Rules 64 nor 65 meet the situation where an accused is terminally ill. Both Rules anticipate that the accused will appear for trial. In fact, Rule 65(B) requires that the Trial Chamber can only order provisional release if it is satisfied that the accused will appear for trial. To be so satisfied, there are at least two things that the Chamber would require. First, an undertaking from the accused that he would so appear, and it is assumed in this case that such an ¹³⁶ undertaking would be given. If an undertaking is not forthcoming of that nature, then we submit that would be the end of the matter. Secondly, the Trial Chamber should require an undertaking from the Government of the Federal Republic of Yugoslavia, if the accused does return to Belgrade, that in the event that he is not prepared to surrender himself to the Tribunal, that they would arrest him and surrender the accused to the Tribunal. I am not confident that such an undertaking would be forthcoming -- at least not in the foreseeable future. There is one other procedural step involved in a determination under Rule 65 and that is that the host country must be heard. I noticed Mr. Boes is here today for that purpose. However, the Prosecutor submits that that provision alone contemplates that the Rule envisages that the accused would be released provisionally within the Netherlands and not be returned outside the jurisdiction. There is one further problem, in the Prosecutor's submission, involving either a release under Rule 65 or modified conditions of detention under Rule 64, if that is in fact under contention. The problem relates to the status of the case from that point on. In the light of absence of any provisions in the Tribunal's Rules, the question must be asked: What is the status of the case against the accused after such an order is made? Should the Trial Chamber set a trial date or is the case adjourned indefinitely? Are the proceedings stayed temporarily or permanently? If the case is merely adjourned or stayed, the Prosecutor would be faced with the dilemma of having to continue with his investigations not knowing whether there is going to be a trial at ¹³⁷ some future time or not. It is submitted, your Honour, that all of these questions become relevant if the indictment is withdrawn under Rule 51. The issue facing this Trial Chamber today is dealt with in different ways in various national jurisdictions. These include the exercise of a Prosecutor's discretion, and this is normally the Attorney General or the Director of Public Prosecutions in a state, the exercise of that Officer's discretion to terminate proceedings by entering a nolle prosequi on humanitarian grounds. In the national jurisdictions where this device is used, that does not preclude the proceedings being recommenced if the circumstances change to make a trial possible. There is no question in such cases of issue estoppel or autre fois acquit because there has been no hearing on the merits. Another possible remedy in national jurisdictions is to grant a stay of proceedings. Again, this is a procedure not contemplated by the Tribunal's Rules. In any event, your Honour, such a remedy is usually exercised in situations where the Prosecutor is determined to proceed with the case and the court must intervene to prevent an abuse of process. Other remedies could include in national jurisdictions adjourning the trial and releasing the accused either on bail or placing him under house arrest, but this normally occurs where the accused would remain within the jurisdiction of the court. Your Honour, the Prosecutor submits that having regard to the limitations imposed by sub Rule 65(B), in the absence of any other provisions in the Tribunal's Rules which relate to this situation, the only appropriate remedy rests with Rule 51, namely, the Prosecutor ¹³⁸ withdrawing the indictment with the leave of the Trial Chamber. Thank you, your Honour.

THE PRESIDING JUDGE: I would like to ask you a question, Mr. Blewitt. You referred to internal law. I do not know the details of that law, but I know that one can stop the proceedings even and under other legal systems one can stop proceedings for humanitarian reasons - there can be commutation of sentences, there can be provisional release, there can be medical reasons that are taken as part of provisional detention -- but what does raise an issue in my mind and is a question I would like to ask you is going back to the accusation -- in your theory, you are simply withdrawing it in your system, you withdraw the indictment, and then you judge --I am not sure how you do this -- you decide maybe through medical opinion that the accused has recovered his faculties and is now in a position to defend himself and at that point you resubmit an indictment with new warrants, because we can hypothetically say that there is no longer an accusation, and the person, I suppose, has been released, is going wherever he wants. Let us try to move away from General Dukic's situation and this very serious nature of this, but go back into the principles that I would like to have explained. There is an Office of the Prosecutor which issues an indictment, and then at some point considers that the mental or physical condition of the accused is not very good and then, instead of using all the things that are available to it, such as bail or provisional release or word that is given or bail, all measures which I am sure do exist in the United States but in other internal ¹³⁹ courts a well, I would like to remind you that our own Rules even include this. So then you withdraw the indictment which means that we find ourselves in a paradoxical situation today, Mr. Blewitt. You can see what I am talking about. You have the Prosecutor withdrawing. The Prosecutor is withdrawing the indictment and the Defence is asking us to keep it. We have seen many paradoxes already, but I must say here I do not really understand because I would like to know how was the indictment put forth again? Does the Prosecutor come to the court one day and say: "I have some good news about an accused person x"? Let us not talk about General Dukic, let us speak about this other accused. You have to reconstruct an indictment; perhaps the old proof is no longer valid; the warrants of arrest have to be issued again and if the person is going to have a relapse, we start all over again. It is a question of all or nothing. This is the question I am asking you. I do not really understand.

MR. BLEWITT: In my experience, your Honour, in situations where an Attorney General or a Director of Public Prosecutions, putting it plainly, the Prosecutor withdraws an indictment by entering a n nolle prosequi (which I see is comparable to the situation under Rule 51) to resurrect in such situations what is normally filed as what is called an ex-officio indictment. The withdrawal of the indictment in the first instance was an act based upon the discretion that the Prosecutor has. That being the case, it is only the act of the Prosecutor which can reinstate those proceedings and that is normally done by the Prosecutor filing in the court what is known as an ex- ¹⁴⁰ officio indictment. That has the result of there is no restriction as to the charges included in an ex-officio indictment. They can include the same charges that were in the original indictment or they can contain fresh charges. But the procedure is normally followed that the indictment is presented in the court, and the accused is required, having been given notice, to appear before the court to plead to that indictment. Your Honour, I would propose that if my application is granted and that the indictment be withdrawn pursuant to Rule 51, that in the unlikely event that the accused's health would permit at some later stage a trial, then the Prosecutor would intend to represent an indictment in accordance with Rule 47 and the procedures there laid down would be followed. So it would be a commencement of the proceedings from the beginning. They are my submissions, your Honour.

THE PRESIDING JUDGE: Another question I would like to ask: When you talk about provisional release, is this something that you think the host country should assume responsibility for? We will ask the authorities of the Netherlands to tell us what their opinion is. Do all of these measures appear adequate to you in this case, all the measures we have taken? You have mentioned some of them, that the powers of the presiding judge to modify the detention conditions, provisional releases provided for in the Rules, do you think that one of these should be adopted to this particular case?

MR. BLEWITT: Your Honour, we have difficulty in seeing how the Rules, either Rule 64 or 65, are applicable in this case, particularly having regard to the requirements of sub Rule 65(B) which requires the court ¹⁴¹ to be satisfied that the accused is going to appear for trial. To be so satisfied, your Honour, the court has to hear from the host country which, we would submit, the Rule envisages that the accused if released provisionally would remain within the host country's jurisdiction and, hence, they would have the responsibility to ensure that the accused appears when necessary for trial. If the intention, as I understand it, your Honour, is for the accused, if released, to return to his family in Belgrade so that he can receive the support and care that he needs in the final stages of his life on this earth, then, your Honour, we would submit that that would be defeated if the accused is remaining here in the Netherlands. I have mentioned also, your Honour, the difficulty that faces the Trial Chamber in being satisfied that the accused will appear for trial. I think clearly under the circumstances, your Honour, it is extremely unlikely that this accused will ever be able to attend the trial. So, the conditional release under Rule 65 for that purpose seems to be stretching, your Honour, the intended purpose of the Rule. It is the Prosecutor's submission that there is no stretching of the Tribunal's Rules to fit a situation if the indictment is merely withdrawn. In so withdrawing the indictment, your Honour, the Prosecutor would make it clear it is being done purely on humanitarian grounds and not, as the Defence would suggest, through any lack of evidence. So that the Prosecutor clearly states that that is not the reason for the application, but it is done purely on humanitarian grounds.

THE PRESIDING JUDGE: Yes. ¹⁴²

MR. VUJIN: Your Honour, if you would allow me, my apologies again, but I wish to state that the attitude of the Prosecutor regarding the right to file a request to withdraw an indictment the way they exposed it, without prejudging their right to file an indictment again in accordance with Rule 47 of the Rules of Procedure and Evidence, this was not provided for in this Rule. In accordance with Rule 47(e), rejecting certain counts of the indictment mean that an indictment should be looked into before its confirmation and not after the confirmation. In any case, Rule 51 stipulates that the Prosecutor can withdraw an indictment at any moment before its confirmation, and if it is a trial only with the leave of the Trial Chamber. So, if Judge Karibi-Whyte declined its jurisdiction, we believe that this meant that we are already at trial, that the sole competence of this trial is to allow for the indictment to be withdrawn or not. If you, as the Trial Chamber in accordance with Rule 59(b), allow the indictment to be withdrawn, in that case the indictment will be withdrawn. There will be no indictment. This indictment cannot be withdrawn out of humanitarian reasons. The Defence believe that an indictment that has been withdrawn in that way can never be filed again, can never be renewed again, and the Defence expects this Tribunal to judge in accordance with its rules and in the interests of justice, and not only on the basis of some humanitarian issues. We therefore, request that we argue here legally and if the Prosecutor has filed a request to withdraw an indictment this cannot be justified out of humanitarian reasons. ¹⁴³

MR. FILA: Your Honour, Article 51 of the Rules of Procedure and Evidence does not provide for reasons to withdraw an indictment; it only stipulates that the indictment can be withdrawn. I agree that at a press conference the Prosecution can say whatever they want to say, and so can we, but here we have to do understand a couple of very important issues, simple issues. We here are aware of the fact that General Dukic will not survive the trial. So what kind of new indictment are you talking about? In what world? In another world? It is clear that this cannot happen. We will agree for the indictment to be withdrawn without explanation, and we would agree if you allow General Dukic to go to Belgrade and die in the presence of his family and not here in prison without evidence, because Mr. Blewitt has agreed that not a single piece of evidence has been brought before this trial. This is nonsense. In any country in the world once the Prosecutor has withdrawn the indictment he cannot repeat the same indictment once again. But why are we talking about something that cannot happen at all because God has decided differently? Let them withdraw the indictment. We are not asking them to talk about lack of evidence. Let this indictment be simply withdrawn and let us transfer General Dukic to Belgrade. THE PRESIDING JUDGE: I have understood what you have said. I have also understood what the Prosecutor is asking. But in order to make things very clear, one of your arguments, Mr. Vujin, you can tell me if I am wrong, would then be to say that we are in the trial stage and that withdrawing the indictment accepted by the Tribunal would, therefore, mean that we could no longer bring this ¹⁴⁴ indictment forward again. Is that really what you are saying? Is that what you meant?

MR. VUJIN: Yes, your Honour, you understood me properly. Our argument is that once the Trial Chamber, in accordance with Rule 51(a), has allowed the withdrawal of the indictment, we believe that once this is done the Prosecution cannot submit the same evidence, the same indictment with the same counts. This is so in all national jurisdictions and even in legal systems. In the legal system of, for example, the Ivory Coast but in all systems in criminal law an absolute withdrawal of an indictment does not grant the right to submit the same indictment with the same counts against the accused, otherwise a lot of abuse can occur.

THE PRESIDING JUDGE: But we do have to be somewhat tempered, Mr. Vujin. I am not answering for the Prosecutor; that is not my role. We have to be tempered. There is Article 47(e) in our rules which states, the wording is a bit vague, that is true, that the withdrawal of a count -- we are talking about the initial presentation of an indictment does not prevent the Prosecutor from presenting a new indictment later on based on new facts. I see you immediately reacting and, therefore, I am giving you the floor.

MR. VUJIN: Your Honour, the provision of the Rule 47(e) we think would have a clear judgment. We believe that the dismissal of a count in an indictment before it has been confirmed by the judge reviewing the indictment, in this case certain counts can be dismissed because there is not enough evidence for that. We believe that our view of this ¹⁴⁵ regulation is very clear. Once the indictment has been confirmed there is no possibility for its withdrawaI without a decision of a Trial Chamber. This was confirmed by Judge Karibi-Whyte and it is evident that this is, therefore, within your jurisdiction.

THE PRESIDING JUDGE: One of the solutions proposed, both the Prosecutor and the Defence mentioned 65(b). Of course 65(b) has not escaped the attention of the Tribunal. In 65(b) I can say that release may be ordered by a Trial Chamber only in exceptional circumstances; after hearing the host country and, as the Prosecutor has recalled, knowing that the released person will not pose a danger to any victim, witness or other person. We can, therefore, ask Mr. Boes as the representative of the Ministry of Foreign Affairs and his colleague Mr. Strjart from the Ministry of Justice, to give us the details on their position as regards Rule 65(b). Could you give us your interpretation of the provisions of this Rule and then Mr. Strjart will explain his position. You can remain seated, sir.

MR. BOES: Your Honour, if we are here in order to explain what under Dutch law would be the consequence of Article 65 under (b), because I think it is a bit difficult for me to speak about the interpretation of Article 65 except in relation to after the hearing, I think it is indeed an interest for the host state to know what happens, but for the host state I think the situation is quite simple. There is one case that is a person is under the detention of the Tribunal, and then that person is under the jurisdiction of the Tribunal and there is no jurisdiction of the host state with regard to that person. If the ¹⁴⁶ person is released by the Tribunal then the Dutch law would apply in that case and in that situation. The Dutch law provides, and I refer to the Dutch law that is the statutory regulation of the settlement of foreigners, and then if a person is released by the Tribunal he becomes a foreigner without an authorization to stay in the Netherlands. For the Netherlands authority it would mean that the person should leave the country by virtue of that law, because there is no legal title any longer for him to stay in the Netherlands. That is the basic assumption under the Dutch law with reference to the implementation of the Statute in this regard. Thank you, your Honour.

THE PRESIDING JUDGE: Mr. Strjart, for the Ministry of Justice. Do you reason the same way? Could I ask you how you interpret Rule 26 of the host country agreement under security of persons covered by this agreement which also covers the suspect and the accused? The competent authorities will take the necessary measures to guarantee the security and the protection of persons covered in this agreement in the absence of any hindrance to that effect.

MR. BOES: That is the general obligation of the Dutch Government, to provide the security, external security for the persons which are under the jurisdiction, under the statute of the Tribunal. With the title here in the Netherlands we provide then for the security for those persons. That is my interpretation of that article, your Honour.

THE PRESIDING JUDGE: I can take an example, trying to remove myself a little bit from this specific case and try to reach a proper decision, a decision removed from the Dukic case having to do with the ¹⁴⁷ application of 65, specifically with 65(c), where the Trial Chamber under such conditions upon the release of the accused, as it may determine appropriate, including the execution of a bail bond and the observance of conditions as are necessary to ensure his presence for trial and the protection of others. If tomorrow a Trial Chamber of this Tribunal wanted to release somebody provisionally on the territory of the Netherlands, how could this Rule 65(c) be applied? I do know that this is not customary for a Tribunal to ask somebody from the civil authorities of the host country to interpret its own rules for it, but you do understand that this raises some questions in my mind and in the minds of my colleagues. Suppose that tomorrow we had a case where there was an accused whose detention was no longer absolutely necessary but who should and had to remain available to the Prosecutor, and that the Trial Chamber would hear you speak, would take a decision requiring bail and a certain kind of summons requiring the person to remain under house detention, how could the host country not assume its obligations then?

MR. BOES: I think, your Honour, that under Rule 65 paragraph (c) you were referring to, it is the duty of the Trial Chamber to provide for the necessary conditions, that they may be met upon release but I do not see that the host state under that article has any duty to act because we would have no legal basis for it under our Dutch law.

THE PRESIDING JUDGE: I will allow myself to assist a little bit and then we can move to something else. If in 65(b) it is provided that ¹⁴⁸ the host country should be heard, as we are hearing you today, I think we have to look to the preparatory work for this rule, but I think this is because the possibility of provisional release within the host country is a real one, otherwise one would not release conditionally somebody saying that we will send that person to France or to another country. I think that the 65(b) refers to provisional release in the country where that person is; not in another country. Perhaps that is not the correct interpretation.

MR. BOES: I do not dare to give you an interpretation on the Rules of Procedures in relation to Article 65 paragraph (b). To my understanding, the fact that the host state has a hearing in this case of paragraph (b), means that the duty of the host state, as it exists under the applicable rules, is to provide for the necessary transportation in case someone has to leave the country, and that we provide for the transportation. That is a duty under the regulations for the host state. I think the reason that here there is a reference to hearing the host state is for that purpose.

THE PRESIDING JUDGE: Then we can move forward, Mr. Boes. Should I understand that if the Tribunal were to decide on provisional release you would ensure transportation? How far under? What conditions? Would this also be a special plane, a hospital plane?

MR. BOES: Transport is provided for on the Dutch territory, your Honour.

THE PRESIDING JUDGE: Therefore, it would be the transfer from the detention unit in Scheveningen to the nearest airport, and at the ¹⁴⁹ airport -- this a possibility and of course there are many possibilities for this case -- at that point there would have to be a different type of transportation. I would now like to turn to the Registrar and ask the Registrar who worked on the host country agreement and is familiar with these provisions and the application of them is largely our responsibility, how do you get us out of this difficulty? I think that it would be interesting to hear how you see the practical side of the question. I think we are here for a specific reason. If I am going into all these details in our hearing it is because there is a very serious human issue involved. Perhaps this is a dying person, someone who is going to be dead in a few days or a few weeks, so I do believe that we should try to adopt the most effective and efficient measures while we are at the same time respecting 1aw.

THE REGISTRAR: Yes, your Honour. I heard the comments from the Dutch authorities. It is true that the reading of Rule 65(b) is not totally clear and that we do have the Trial Chamber here after it has consulted with the host country. We realise that it could take measures which would allow the possible provisional release on the territory of the Netherlands. If this were to be impossible for various reasons, I have noted that the assistance of the Dutch Government as far as the airport, which of course would give us an additional problem later on, could we hope that the Netherlands would help us to transport this person in a hospital vehicle, and another question which we do not have to settle now but it would be how far and how. ¹⁵⁰

THE PRESIDING JUDGE: Thank you, sir. Before we go on to the second issue, that is the handcuffs, I would like to thank Mr. Boes and Mr. Strjart. Can we now allow them to leave? Are there any other questions for the two experts or is everyone satisfied? The Prosecutor has no more questions? The Defence neither. Then in this case we shall continue our hearing. I would like to thank you for your help and your comments will enable us indeed to make our decision in the light of these elements and in the light of Rule 65. Thank you very much. (Mr. Boes and Mr. Stijart withdrew).

THE PRESIDING JUDGE: Before we continue, I would like to make one point. I believe that we have a number of legal issues to handle here. Let me summarise briefly to decide how we are going to proceed before we discuss the handcuffs. First of all, the medical condition of General Dukic is very serious. We are not going to go back over that again. The prognosis is serious. General Dukic is under detention and he has been indicted. We have heard two requests: a request for his release on the one hand and a request as regards the indictrnent. As regards the indictment, the Prosecutor has requested that the indictment be withdrawn for humanitarian reasons, and as regards the same indictment the Defence has requested that the indictment cannot be withdrawn simply for humanitarian reasons but for legal reasons. As regards the release of the accused, we have a wide range of possibilities. Just to mention a few in no particular order, because of course we are going to have to reflect upon this, we could, according to our Rules and Statutes which of course apply although the ¹⁵¹ Prosecutor can also refer to other national law, but we here in the Tribunal must refer first and foremost to our own rules -- we could decide to modify the conditions of detention of the accused. It is up to the President of the Tribunal to do so. Therefore, there is no reason for this not being possible. We could determine a provisional release which seems to be less possible after having heard the representatives of the Netherlands, because the host country does not seem to be in favour of provisional release. Therefore, the Tribunal and the Prosecutor's office perhaps needs to take a closer look at the text. Then come the other possibilities: temporary release with remittance of the accused to a third country, either under full release or temporary release. In fact our texts do not provide for either or one of the two solutions. There could also be the possibility that General Dukic be sent back to his country of origin. I am simply listing the possibilities here, such is my role. The accused could be returned to his country of origin given that he can no longer be called as a witness, given the fact that he has already been indicted. This could occur upon withdrawal of the indictment or for humanitarian reasons. I think I have listed all of the various hypotheses. We are going to have to discuss this amongst ours. Based on what I have just said, do you have any additional comments before we go on to the issue of handcuffs? In any case, this Chamber is going to be handing down its decision next Friday as regards the indictment. We will make a decision regardless of the decisions we have made on the two points we have just discussed. Friday morning at 10 o'clock ¹⁵² the official decision of the court will be presented, perhaps at 10.30, we will have to decide. So I believe now that we are in a position to envisage the various possible legal elements. Before we discuss the handcuff issue, do you have anything else to add or can we consider that the discussion is closed? The Prosecutor wants to make a comment and the Defence seems to be ready.

MR. VUJIN: Thank you, your Honour. I would wish to remind the Trial Chamber that we made an appeal to the Chamber to reach the decision as soon as possible. Since this hearing was moved two days in advance, we believe that your decision should come much earlier than Friday in view of the situation, of the current situation.

THE PRESIDING JUDGE: Mr. Prosecutor? MR. BLEWITT: Your Honour, if the Tribunal was minded to order the provisional release under Rule 65, then the Prosecutor would seek to have some of the conditions required to be spelt out, your Honour. They would include that the Tribunal be given access to regular medical reports as to the accused's health. It may also be necessary to consider the posting of a bail bond as well, your Honour, under Rule 65(c). Additionally, your Honour, I think it is necessary for the Chamber to have some assurances certainly firstly on the part of the accused that he will appear for trial and, as I stated in my earlier submissions, your Honour, I think it is necessary also to have an undertaking from the Government of the Federal Republic of Yugoslavia that they will also return the accused. We would submit, your Honour, it is only once the Trial Chamber is satisfied of those matters that provisional release under Rule 65(b) ¹⁵³ can be contemplated.

THE PRESIDING JUDGE: Thank you very much. Mr. Vujin, the court will announce its decision on Wednesday at 11 o'clock.

MR. VUJIN: Thank you, your Honour.

THE PRESIDING JUDGE: Of course, the court will hand down its decision on the other preliminary motions on Friday morning. We still need to discuss the issue of handcuffs. This was a request on the part of the Defence. You have the floor, Mr. Vujin.

MR. VUJIN: Your Honour, I believe that at this particular moment it is useless to discuss a motion and we will withdraw this motion at this moment.

THE PRESIDING JUDGE: Well, since the motion is withdrawn, do you still want to comment, Prosecutor?

MR. BLEWITT: No, your Honour, no comments.

THE PRESIDING JUDGE: In that case, we have thus decided that there is no need to deal with this issue at this point, unless of course at some future time it should occur necessary. I believe we have dealt with the various issues at hand. We have made a decision as regards the indictment, the state of health and the decisions that need to be taken. As I said this will be announced on Wednesday, that is April 24th at 11 a.m. As regards the remaining decisions, these will be announced on Friday morning at 10.30 , as regards the preliminary motions that have already been pleaded March 25th. Th session is adjourned at 18.47 pm. (The hearing adjourned until Wednesday, April 24th 1996)