⁴¹

Friday, 1 February 2002

[Provisional Release Hearing]

(Open session)

[The accused entered court]

--- Upon commencing at 2.32 p.m.

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

THE REGISTRAR: Good afternoon, Your Honours. Case number IT-01-46-PT, the Prosecutor versus Rahim Ademi.

JUDGE LIU: May we have the appearances, please, for the Prosecution?

MR. IERACE: Good afternoon, Mr. President, and Your Honours. My name is Mark Ierace. I appear for the Prosecution together with, on my right, Anura Meddegorda, Claire Harris and Gary Garland. On my left is my case manager, Lakshmie Walpita.

JUDGE LIU: Thank you. For the Defence?

MR. PRODANOVIC: [Interpretation] Good afternoon. I'm Cedo Prodanovic, attorney at law, and I'm Defence counsel for General Ademi, together with my colleague Jadranka Slokovic-Glumac, who is here sitting on my right.

JUDGE LIU: Thank you. Now, may I turn to the distinguished representative from the government of the Republic of Croatia? Would you please identify yourself?

MR. GRANIC: [Interpretation] I am Goran Granic, Vice-President and Deputy Prime Minister of the government of the Republic of Croatia.

JUDGE LIU: Are you going to introduce your colleagues to us? ⁴²

MR. GRANIC: [Interpretation] On my right is Mr. Orsat Miljenic, who is in charge of the Department for Cooperation with the Tribunal. On my left is Ms. Mira Martinec, from the embassy of the Republic of Croatia. To the far left is Sinisa Milevoj, who is an attache in the embassy of the Republic of Croatia.

JUDGE LIU: Thank you very much. This trial Chamber is very grateful for your appearance in such a short notice. We appreciate your coming to The Hague with your delegation, which shows the willingness of the government of the Republic of Croatia to cooperate with this Tribunal. We may ask you to address the Chamber and ask you some questions concerning the provisional release of the General Ademi at a later stage.

This hearing is for the provisional release for General Ademi in accordance with Rule 65 of the Rules of Procedure of the Tribunal. This Trial Chamber is seized of its two motions and some attachments, namely motions for the provisional release filed on December 14th, 2001, and the other is the Prosecution's response to the Defence motion dated December 21st, 2001. On the same day, Judge Orie, acting as Duty Judge, made a decision remitting the motion and all related filings or related documents to the Trial Chamber seized of this case, for it to decide on the merits of the motion.

Here is the full Trial Chamber. Sitting on my right is Honourable Judge, Judge El Mahdi, and sitting on my left is Honourable Judge, Judge Orie. My name is Liu Daqun, the Presiding Judge of Trial Chamber one. Since the Defence counsel applied for the provisional release of ⁴³ General Ademi, could we ask Mr. Prodanovic to brief the Chamber on the main point of his motion, and after that, we may ask some questions. Mr. Prodanovic, you may have the floor.

MR. PRODANOVIC: [Interpretation] Thank you, Mr. President. Your Honours, the Defence of the accused General Ademi has submitted a motion for his provisional release, guided primarily by the fact that we believe that the requirements of 60(B) of the Rules of Procedure and Evidence have been met, and therefore, the Honourable Trial Chamber can rule that General Ademi be provisionally released.

First and foremost, we believe that the fact that General Ademi voluntarily surrendered as soon as he realised that there was an indictment against him is grounds to assure that he would appear before the Court any time and on any occasion. Because after all, the very moment he found out about the indictment, he became aware of all the circumstances, and without any strings attached, he surrendered himself to the Tribunal.

We also believe that the other requirement of this Rule has been met, and that is that there is no danger or any indication that if he were to be provisionally released, he would constitute a danger to any victim, witness, or other person related to these proceedings. What happened in Meducki Dzep [phoen], which is part of the indictment, happened in 1993. Since then, General Ademi held many important positions in general headquarters in the Croatian army, and he permanently was in a position to exercise certain influence over witnesses. He never did any such thing, nor is there any record of him ⁴⁴ having done any such thing. After this action was completed, his name was often mentioned in the media, in addition to other names, because this action occurred within his area of responsibility.

In addition to that, the witnesses that are mentioned in the supporting material provided by the Office of the Prosecutor are persons who are primarily inaccessible to General Ademi, because these are either persons who were injured parties and who left the Republic of Croatia - most of them live in the territory of the Federal Republic of Yugoslavia - or they are representatives of international organisations. Even if he wanted to exercise any influence over them, he could not. However, the most important thing that should be noted is that he never expressed any such wish, nor does he intend to do so in the future. The fact that he meets these two requirements, along with the fact that the beginning of his trial is uncertain, or rather, the date is uncertain -- he has been in detention for the past six months now. To the best of our knowledge, this trial could not begin until early next year, under the best of conditions. So although he surrendered himself to the Tribunal, desirous of having his case resolved as early as possible, he would nevertheless, objectively speaking, be in a position to wait for his trial for at least a year and a half. And there is no need for that, because he voluntarily surrendered, as I said, and whenever called to appear before the Court, he will do so.

In support of everything that we stated, we have attached to our request certain annexes, documents provided by the Government of Croatia, and also a letter, including the opinion of Mr. Stjepan Mesic, President ⁴⁵ of the Republic of Croatia, who is also commander-in-chief of the armed forces of the Republic of Croatia, and in this capacity he knows the work of General Ademi very well, and he is also aware of his personality and his personal characteristics. He also expressed his conviction that, in keeping with his ethics of a soldier, he will go by his word. The third annex is an affidavit provided by General Ademi himself. He made it incumbent upon himself to respond to any call to appear before this Tribunal at any point, and also that he will abide by any ruling made by the Trial Chamber, related to his provisional release included.

Those were the reasons that we stipulated, in the conviction that on this basis the Trial Chamber can make a positive decision in terms of his provisional release.

JUDGE LIU: Thank you very much. I may ask you some questions, and then my colleagues will do some follow-up questions. I read your motion for the provisional release. In your motion, you argued that since the Government of Croatia failed to arrest the other accused and did not deliver the 2.000 documents requested by the Prosecution's office, so your client, General Ademi, could not suffer harmful consequences because of somebody else making negligence and behaviour that he cannot be guilty of. But the cooperation between the government and the ICTY is the most important factor the Trial Chamber has to take into consideration when deliberating on the motion on provisional release. Since the ICTY has no police force, no enforcement, what is your assessment of the cooperation between the Government of Croatia and ICTY ^{46BLANK PAGE 47} at this moment?

MR. PRODANOVIC: [Interpretation] Thank you, Mr. President. First and foremost, I included this in our motion, motivated by the objection raised by the Office of the Prosecutor in relation to our submissions. They mentioned certain facts that are incorrect. The Honourable Deputy Prime Minister is going to speak more on that subject. At this point I can say that the cooperation between the Government of the Republic of Croatia and the Tribunal is at an absolutely satisfactory level. The government adopted regulations, a law on cooperation with the International Criminal Tribunal, and the parliament of Croatia also passed a law on cooperation with the Tribunal. This was not only by way of a declaration, but it also stipulates the ways and means in which cooperation will be evolved. Also, institutions for cooperation with the Tribunal have been established, and there is a council for cooperation with the Tribunal that is headed by the Deputy Prime Minister and which shows what importance the government attaches to this, and also an office for cooperation with the ICTY, and it is in charge of day-to-day matters and technical arrangements related to cooperation.

As for these 2.000 documents, it is important to say that since April 2000, the Government of Croatia handed over to the ICTY 7.000 documents, that access was given to the archives of the Republic of Croatia, where it was made possible for them to photocopy 10.000 documents. A request was also put forth to obtain documents related to the Medecki Dzep [phoen] action, and these are 930 documents, and the ⁴⁸ government is going to provide these documents related to the Medak Pocket to the Tribunal within 90 days at the latest.

Taking all of this into account, we can say that after these changes -- I mean, we can link this cooperation to two stages in the development of the Croatian state. That is to say, when the new government was instated, this cooperation was in place up to a degree because you may recall that the Republic of Croatia organised the voluntary surrender of the 11 members of the so-called Vitez group and also detained one of these persons, namely Mr. Pero Skopljak. Therefore, one cannot accept a vague allegation that the government is not cooperating with the Tribunal.

JUDGE LIU: Thank you. Another question is according to the media, namely the Croatian news agency, on January 13th, 2002, the Croatian Minister of Defence, Mr. Jozo Rados told Croatian television that General Ademi could return to work at the Croatian army's chief inspectorate if he's released. What's your comment to this news report?

MR. PRODANOVIC: [Interpretation] Well, my comment, or rather the standpoint, the joint standpoint of General Ademi and myself as his Defence counsel is he's not going to avail himself of that opportunity. And the question is whether this decision was passed at the level of a certain authority or whether this is simply the mentioned general's statement that was made in his own name and perhaps it was given a broad interpretation. At any rate, General Ademi, if he were to be provisionally released, would not carry out any significant duties in the authorities or the military structures of the Republic of Croatia. ⁴⁹

JUDGE LIU: What do you mean by "significant duties"?

MR. PRODANOVIC: [Interpretation] Well, at present, he is the Assistant General Inspector of the armed forces, attached to the Ministry of Defence of the Republic of Croatia, so there is no question that he would continue to perform that particular duty. Whether he will try to resolve his livelihood in some other way, I really don't know about that, but it is certain that he will abide by any ruling of the Tribunal, whatever limitations may be imposed upon him in this sense.

JUDGE LIU: Well, later on, we may ask the same question to the representatives from the government.

Are there any questions from the Judges? Yes, Judge Orie?

JUDGE ORIE: I'd like to put a question to you in relation to the cooperation General Ademi has provided to the Prosecution. That's one of the arguments in your motion, and it's -- I would say it's almost firmly denied, that there is substantial cooperation, by the Prosecution. Could you please respond to what the Prosecution has put in their response, in this respect?

MR. PRODANOVIC: [Interpretation] I can say two things. General Ademi did not know that the Office of the Prosecutor, as far back as 1998, had put forth a request to interview him. Allegedly, this request was put forth to the Office for Cooperation with the International Criminal Tribunal. However, information concerning this request never actually reached General Ademi. At that point, he certainly would have made a statement, in the belief that already at that stage he would have resolved many dilemmas or ambiguities, and in that way, he would have redressed the ⁵⁰ possibility of an indictment at all.

However, right now, he is in that position. He has been indicted. Within this authority, the most -- within the powers given to him, the greatest is perhaps to give a statement at that stage and at that point in time when he considers it to be the most favourable of all for him. This is a privilege that is accorded to him on the basis of law and also it is in accordance with the presumption of innocence, which is built into the documents of this Tribunal. As a form of cooperation, we also mentioned the voluntary surrender of documents to the Office of the Prosecutor, those that were in the possession of General Ademi. We were not aware of the fact that the Office of the Prosecutor already had some of these documents, because until now, the Office of the Prosecutor has not disclosed to us all the evidence that they have. Also, at the session we had on the 5th of December last year, we proposed reciprocal disclosure. So to that end, we are going to provide all the material that we have.

It seems to us that the insistence upon cooperation with the Office of the Prosecutor - I repeat, not with the Tribunal but with the Office of the Prosecutor - in a way is conducive to creating a third precondition for the provisional release of General Ademi - for any person, for that matter - which is not on the other hand contained in the mentioned Rule 65(B). I am afraid that this kind of cooperation, in this way, during the previous practice of this Tribunal, was not the third but the first precondition for the rulings of the Tribunal on provisional release. I am aware of the change in the practice of the Tribunal, after ⁵¹ the conditions in Rule 65 were changed, when exceptional circumstances are no longer required. A few days ago I also read the decision related to the provisional release of the three generals of the BH army. That is precisely on the basis of the presumption of innocence, which is contained in the Statute.

The rule for Pre-Trial detention, especially over a longer period of time, cannot really be a rule but rather an exception, namely that such accused persons should be provisionally released and should be defended as free men -- of course, if all the other preconditions stipulated in Rule 65 have been met, that is.

JUDGE ORIE: Do I understand you correctly that it's your position that once the two conditions specifically mentioned before an accused may be released by a Trial Chamber - because that's the wording of Article 65(B), may be released - if these two conditions are met, that no other considerations in the interests of justice might give some discretionary powers to the Chamber?

MR. PRODANOVIC: [Interpretation] No. On the contrary. I very much insisted on the wording, "may," "may be released." I realise that it is this Trial Chamber that is ultimately going to decide precisely on the basis of their discretionary powers.

JUDGE ORIE: Then I have a last question. You indicated that -- I think you mentioned a number of 950 documents that would be delivered within 90 days. I don't know exactly when have they been asked for for the first time and what -- what information you have available to know that it will be within 90 days? ^{52BLANK PAGE 53}

MR. PRODANOVIC: [Interpretation] I can say that I have this information from the Office for Cooperation with the ICTY. It is precisely 846 documents, and the last request put forth for these documents dates back to the month of November, 2001. So this is the assessment I refer to, that this request would be met within 90 days. I hope that Mr. Granic will also explain this, that there are certain problems after purely technical nature, that is to say collating originals and copies, and this requires the cooperation and the participation of the OTP, which to a certain extent extended the process. But the goodwill of the government is there, and that is shown by the fact that already 17.000 documents have been handed over to the Tribunal.

JUDGE ORIE: Thank you for your answers.

MR. PRODANOVIC: [Interpretation] Thank you.

JUDGE LIU: Judge El Mahdi?

JUDGE EL MAHDI: [Interpretation] Thank you, Mr. President. Let me please ask you two very short questions. The first is to do with the competent authority, or the authority that would be competent under the rules presently applicable in the Republic of Croatia in order to provide guarantees that would commit the state or the Republic of Croatia. Which is the authority? Which is the relevant and competent authority?

MR. PRODANOVIC: [Interpretation] It depends on the conditions that will be set by the Court and, of course, the Deputy Prime Minister will say a little more about this, but it seems to me that these things are first of all in the domain of the Ministry of the Interior relating to the issuing of passports and so on, but the Ministry of the Interior would be ⁵⁴ the body which would be responsible for the fulfillment of the majority of these conditions, with certain other bodies which would be entrusted with these duties by the ministry themselves.

JUDGE EL MAHDI: [Interpretation] The reason why I am asking this question is this: In Annex C, which is joined to your application, and I quote, [In English] This is a letter emanating from the president of the republic. I am quoting: "The Croatian government formally promise to ensure," [Interpretation] So I'm seeking some further information. "Formally promised," what does that mean? Is there a formal promise, a pledge, that would not be contained in the file or is this a reference being made to the letter previously sent to General Ademi, which is in that letter being found in your annex?

MR. PRODANOVIC: [Interpretation] Yes. That's precisely the point. President Mesic which did not issue a guarantee but a recommendation, because according to his legal and constitutional powers, he's not in a position to provide a guarantee, so he addressed the Court and referred to a written guarantee from the government, being aware of the fact that this guarantee was provided to the Tribunal along with our own documentation.

JUDGE EL MAHDI: [Interpretation] So if I understand you properly, the Vice-President is the relevant authority who commits the state in this respect?

MR. PRODANOVIC: [Interpretation] If I may speak on his behalf, yes, absolutely.

JUDGE EL MAHDI: [Interpretation] Thank you. ⁵⁵

MR. PRODANOVIC: [Interpretation] Thank you.

JUDGE LIU: Could I now turn to the Prosecution? Could you please summarise your positions in your filings, or any response to the statement made by the Defence counsel, if there is any?

Mr. Ierace, please?

MR. IERACE: Thank you, Mr. President. The position of the Prosecutor is that we continue to oppose the grant of provisional release to the accused. The reasons as set out in the written response which was filed on the 21st of December, should be modified in this respect, that in relation to the issue of cooperation, firstly, I submit that that issue is relevant in two respects: first, as to an indication of the attitude of the relevant state so that if required it will take the necessary measures to redeliver the accused to the Tribunal; secondly, there is the issue of what powers the state possesses to enforce any conditions which are imposed.

In relation to the first issue, my learned colleague has expressed in effect to you that the record of Croatia is one of, in effect, full cooperation. The Prosecution would respectfully disagree with that summation, although there has certainly been some improvement in the last few months.

My learned colleague has referred to some 17.000 documents being turned over to the Tribunal. That may be the case in relation to the entirety of documents which have been provided over years. But the raw number of documents which are produced is not the appropriate measure of assistance. One must turn to relevant documents and particular documents ⁵⁶ which have been sought, although I hasten to add there has been improvement.

In our written submissions, we also referred to the record of the State of Croatia in relation to the sealed indictment in respect of the accused, which was served upon representatives of the state in June of last year, and also its record in relation to the sealed indictment and warrant which it received at the same time in respect of General Ante Gotovina. It is a matter of public record now that, in relation to Ante Gotovina, we still await his arrival at the Tribunal; that in the period that the indictment remained sealed, which was some six weeks, the Croatian authorities were unable to secure his presence at the Tribunal; in respect of the accused, as the accused has put forward, through his counsel, it wasn't until he became aware, following the lifting of the seal, that he then approached the Croatian authorities and the Tribunal and, in effect, handed himself in. Given his position at the time, one wonders why it was that the Croatian authorities were unable, whilst the indictment was sealed, to secure the accused's attendance. Therefore, Mr. President, whilst I fully acknowledge the improvement in the attitude of the Croatian authorities to cooperation with the Tribunal - it remains in relation to documents. One hopes it continues - but I anticipate that a matter that you will want to give particular attention to is whether you can be confident that should it be required, the State of Croatia will cooperate in relation to the -- would cooperate in relation to the carrying out and enforcing of any conditions. That is a relevant matter in determining whether, in the ⁵⁷ exercise of your discretion, even if the preconditions are made out, the accused should be granted provisional release.

Apart from that observation, Mr. President, our grounds remain the same as they are expressed in the response to the application made by the accused.

I should add, in relation to the issue of cooperation by the accused himself: The accused, through his counsel, has said that he was unaware that as early as 1998 the Office of the Prosecutor wished to question him, and if he had known that, then he would have done so. One notes that in spite of abundant opportunity, he chooses to operate under the right of silence, which is rightfully his under the Rules of Procedure and Evidence of this Tribunal. I simply make the observation that if it was the case that the accused had agreed to be interviewed, then undoubtedly his position in seeking provisional release would have been significantly expanded. He elected to exercise his right, he continues to exercise his right to silence, and so be it, but that does not in any way assist him in terms of the additional measure of support he would otherwise have had he not so elected.

The accused, through his counsel, has provided some documents, 20 in number, 16 of which we already have. Therefore, in spite of what is said as to an attitude of cooperation by the accused, one must have regard to what he has actually done apart from surrendering himself. Whilst that is an important factor that he surrendered himself, one must, of course, take into account what he would have known at that point of time of the case against him and what he now knows, for this ^{58BLANK PAGE 59} reason: that being equipped now with a significantly higher degree of knowledge of the case against him, as a result of disclosure on the part of the Office of the Prosecutor, as required by the Rules, of more of the substance of the case, he's in a better position to judge the weight of the evidence that will be called against him at his trial, and therefore he has a motive to not reappear.

Mr. President, they are the observations I would make at this stage in relation to what has been said by my learned friend. If you could just excuse me for one moment.

Yes, thank you.

JUDGE LIU: Well, Mr. Ierace, I'll ask you two questions. The first is about that sealed indictment against General Ante Gotovina. In your response, you alleged that this sealed indictment was leaked to the accused by the government. Is there any sound basis for that allegation?

MR. IERACE: Excuse me, Mr. President.

[Prosecution counsel confer]

MR. IERACE: Mr. President, the reason that that is expressed in the written response at page 6 is because the fact that General Gotovina was indicted by the War Crimes Tribunal appeared in the local press, in the Croatian press, and that was at the stage that it was still a sealed indictment. As to where the leak came from, there is no direct evidence. It is a matter of inference that when, in the circumstances that the sealed indictment had been delivered to the Croatian authorities directly, indeed, as it happens, to representatives of the Office for Cooperation with the Tribunal, and then such an item appears in the local media, one ⁶⁰ is inclined to draw an inference that's what has occurred.

JUDGE LIU: Another question is that in your response you put the cooperation between the accused and the OTP as a precondition of guarantees for the provisional release. Is there any legal basis for this requirement?

MR. IERACE: Mr. President --

JUDGE LIU: Don't you think it is outside the scope of the Rule 65? You mentioned that the accused has a right of remaining silent.

MR. IERACE: Yes, Mr. President. I don't seek to submit in support of that being included in any conditions if you are against the Prosecutor in relation to this application. I seek to recast that issue as one which would have entitled the accused to a far greater degree of sympathy in his application for provisional release had he chosen to cooperate fully. It's his right to not cooperate fully; however, if he so chooses, he cannot, at the same time, claim, in support of his application for provisional release, to have cooperated fully. Thank you.

JUDGE LIU: Well, there must be a difference between the cooperation with this Tribunal, which means abide by any guarantees imposed to him if he's released, and the cooperation with your office, the Prosecutor's office. That's two different matters.

MR. IERACE: That's so, Mr. President, and that's why I have made that observation in my last response.

JUDGE LIU: Any questions from the Judges? Judge Orie.

JUDGE ORIE: Thank you, Mr. President. May I just first refer to the last issue, the cooperation of the ⁶¹ accused. I think his submission is two-fold: first, that he cooperates; and second, that it's relevant that he cooperates. As far as I can see your answer, you're denying that he has cooperated in such a way that it's substantial. You do not give as an answer that it's not relevant. Now, today, I heard that you say, "Well, it could have given him some sympathy from the Prosecution." I think, to have a valid legal basis, it's far more important to have the sympathy from the other party where a legal basis is lacking. So I'm just a bit surprised at the relevance of the argument, which now tends to be of importance, is not, as such, dealt with in your response.

But let me put another question to you about the documents. I would be inclined to agree with you that numbers, as such, might not be impressive. We are talking about relevance. Could you tell us: Among these, you said, some 840 documents, how vital are they for the Prosecution's case?

MR. IERACE: Thank you, Your Honour.

THE INTERPRETER: Microphone, please.

MR. IERACE: Thank you, Your Honour. Firstly, I would respond to the observation that you made in relation to the cooperation of the accused. At page 9 of the response by the Prosecutor to the accused's application, under the subheading "Cooperation," these words appear: "The extent of voluntary cooperation, should the accused choose to offer it, is a valuable indication of the accused's attitude and, accordingly, of the reliance that may be placed on his assurances." So in our response, I had, in different words, acknowledged the ⁶² relevance of that issue.

JUDGE ORIE: But aren't you then mixing up two totally different things: the reliability of what he says in coming back and cooperation? You can be absolutely reliable in your assurances that you'll appear, as you have appeared before, and, at the same time, choose not to cooperate in whatever way. So I would feel it a bit of a mixing up of two different elements. But let's perhaps not spend too much time on that issue.

MR. IERACE: Certainly, Your Honour. In relation to the second issue, would Your Honour allow me a moment?

JUDGE ORIE: Yes, how vital these documents are.

MR. IERACE: Well, Your Honour, the Prosecutor had sufficient evidence at the time that the indictment was confirmed. The remaining documentation is important. It is not without significance. It is not critical, clearly, in the sense that the indictment had been confirmed. Excuse me just for one moment.

[Prosecution counsel confer]

MR. IERACE: Your Honour, perhaps I could make this observation: that not only were the documents in question significant, but it would have been apparent from the nature of the documents, including from where they emanated, that they had potential significance to the Prosecution. And in that context, I note that there has been some difficulties, indeed considerable difficulties, between the Office of the Prosecutor and the Croatian authorities in recent -- over the last, say, six months at least. However, I hasten to add that there has been an improvement in the attitude of the Croatian authorities in the last few months in relation to ⁶³ documents.

JUDGE ORIE: May I also ask you: It was referred to by the Defence, when I understood the Defence well, that there were also some -- these were merely practical problems instead of signs of unwillingness or lack of cooperation, whatever you would call it. Could you explain a bit more about whether these practical problems -- are these practical problems you are facing or are these other problems?

MR. IERACE: Your Honour, in relation to the relationship which existed between the two bodies up until a few months ago, if there were practical problems that were being experienced by the Croatian authorities, then they had reached such proportions as to stifle quite seriously the flow of relevant documentation. There have been meetings between the OTP and representatives of the Croatian government and we are encouraged to see that the flow is now beginning to occur. If I could perhaps add this, I suspect that Your Honour is interested in the attitude behind the problems, and in the last few months, in relation to documentation, there appears to have been a change in attitude.

JUDGE ORIE: I'm apart from being interested in attitude, I'm also interested in the interests of justice to the extent that if, for example, these documents would be destroyed at any moment before at least copies would reach the OTP, then this might highly influence the procedure that will follow. Do you fear any destruction of documents? Would it change your position if these documents were already in the hands of the OTP? I know that it's only part of the arguments, but would that change your ^{64BLANK PAGE 65} position or not?

MR. IERACE: Well, if that was to occur, Your Honour, then the natural result would be that our position in relation to this application would express a greater degree of confidence, or at least some confidence, that any conditions imposed would be complied with on the part of the Croatian government authorities. The primary concern of the Prosecutor in referring to this issue at all, is that if, contrary to our submission, provisional release is granted, and therefore, a great responsibility then weighs on the shoulders of the Croatian government, one must look to what degree of confidence one can have that those conditions will be enforced if necessary. One can only look to the general attitude by the Croatian government towards the Tribunal in other respects in order to make a sensible assessment. One of those areas is cooperation in relation to such matters as documents, and indeed, important evidence. The other, perhaps even more important area, is the manner in which, in the past, and especially in the recent past, that same government has responded to the issuing of indictments and warrants for arrest. So my response at this stage, in January 2002, is we note fairly that there has been significant improvement in relation to documents. There has been no recent testing of the attitude of the government in relation to the handing over of indicted persons. One must go back to, as it happens, this same case, and the other indictment that was issued at the same time to make an assessment of that.

JUDGE ORIE: Thank you, Mr. Ierace.

JUDGE LIU: Now could I turn to the representative from the ⁶⁶ government of Croatia? May I invite Your Excellency to address to this Chamber on this very issue as a friend of the Court?

MR. GRANIC: [Interpretation] Your Honours, my appearance here before this Tribunal is not only for the purpose of providing guarantees in relation to Mr. Ademi but it is also an expression of respect towards the Tribunal and the importance which the Croatian government attaches to the cooperation with this Tribunal.

The Croatian government has completely opened all of its documentation to this Tribunal, i.e., to the Office of the Prosecutor, and it is with regret that today I am listening to superficial information, partially true information, and only partially topical or current information.

There is not a single open question at the moment in cooperation between the Prosecution and the Croatian government. While preparing for my visit here, I asked my office to make, together with the Tribunal office in Zagreb, a review of all of the requests and also the status of all of those requests, whether they have been fulfilled or not, and it was determined jointly that there isn't a question of any kind of blockade. Many questions have been resolved and many things are in the process of being resolved.

For example, there is mention here about 846 documents which have been obtained during access to 107 record books and also records of the units of the Croatian army or war logs. The Croatian government, 15 days ago, informed the Zagreb office that these documents have been prepared, but they have not yet been taken over, so this is not our problem but a ⁶⁷ problem of the Office of the Prosecutor. I could also mention other problems, but I think that there is no need to do that because we believe that our cooperation with the Office of the Prosecutor is good, that we have exceptionally good relations with Madam Carla Del Ponte and that we are able to resolve all of our problems jointly.

Please permit me to say something about the arrest of Mr. Gotovina. I am sorry that facts are not being presented in a complete manner before this Tribunal. These facts are known to the Prosecution. The indictments for Mr. Gotovina and Mr. Ademi were handed over to the Croatian government on the 12th of June last year, and they were not sealed. On the 19th of June, we sent our objections to Madam Carla Del Ponte to sections of the indictment which, in the view of the government of the Republic of Croatia, were incorrect factually, and as such, could cause considerable political problems. On the 19th of April, I personally -- seven days after the indictments were handed over, I came to this building, and I presented the objections of the government of the Republic of Croatia, and together with the Justice Minister, I spent more than an hour and a half in talks with Madam Carla Del Ponte. We asked the Office of the Prosecutor to respond in writing to the objections of the Croatian government. Only on the 6th of July did Madam Carla Del Ponte visit Zagreb, and she brought the response to the objections by the Croatian government, and based on our talks at that time, which were quite lengthy, she noted that it is not possible, regardless of whether the reasons by the government of Croatia were justified or not, it was not possible on the side -- on the part of ⁶⁸ the Prosecution to change anything, but that she was prepared to discuss this before this Tribunal, but only once Mr. Gotovina makes his appearance before the Tribunal. One day after that, the Croatian government reached a decision to comply with the requests of the court.

It is true that, in this three-week period, the information did appear in the Croatian public that indictments had been issued, but according to my information, this information came from Bosnia and Hercegovina, and I also think that lack of caution on the part of the investigators could also have been the reason for this, because they provided this information to Mr. Strbac, who then published it in the Croatian media.

If I may be permitted to say something else concerning Mr. Ademi, it is true that the summons arrived in 1998 for Mr. Ademi, and it is also true that the summons was not delivered to Mr. Ademi. At that time, there was a decision by the parliament and the government at that time, there was also a dispute with the Office of the Prosecutor, that the Medak Pocket was not a topic of interest, i.e., that the government, the Croatian government, and the Croatian authorities, do not agree to have the Medak Pocket, as well as Flash and Storm, to be the subjects of investigations by this Tribunal.

My government, which began its term at the beginning of February, 2000, already in April of the same year, changed this decision and reached the conclusion, accepted by parliament, that the Court does have jurisdiction for the entire duration of the war and that the government will cooperate on all issues. From that point on, up until the issuance ⁶⁹ of the indictment, there were no requests for testimony. My office received no such requests for testimony. So that is the reason why Mr. Ademi was not in a position to respond to any such requests. As far as my government is concerned, cooperation with The Hague Tribunal is of crucial importance. The Croatian government will comply with all requests from this Tribunal. And I believe that Your Honours, it is not necessary to link the case of Mr. Ademi - who immediately responded, as soon as he was officially informed about an indictment being issued against him, so he responded, he voluntarily surrendered and decided to defend himself from these charges regarding - so I believe that this should not be linked with the case of Mr. Gotovina. The Croatian government provides guarantees that Mr. Ademi will not be performing any official duties. The Croatian government provides guarantees that it will undertake all technical steps necessary, and which are named in your request, so that General Ademi remains in Croatia and that each time he is able to respond to any summons by this Court, and he will comply with the wishes of the Tribunal.

Your Honours, on behalf of the government of the Republic of Croatia, I would like to state the following: Your decision, if it should be positive, is very important for the overall perception of justice of this Tribunal, of fairness of this Tribunal, which is a very important question in Croatia, and with the efforts of the government of the Republic of Croatia, Croatian citizens, ordinary people, will be able to affirm their conviction that this Tribunal is a fair institution and that it treats everybody in exactly the same way. ^{70BLANK PAGE 71} Your Honours, once again, I would like to express my deep respect for this Tribunal and the conviction of the government of the Republic of Croatia that it will cooperate with the Tribunal.

JUDGE LIU: Thank you very much for your remarks. I have some questions, but first of all, let me make some comments on your remarks. We notice that in the proposal for provisional release made by the President of the Republic of Croatia, Mr. Mesic, dated 7 December, 2001, he also said that the decision to let General Ademi temporarily out of jail could have a positive impact on attitude of the public opinion in Croatia towards further and full cooperation with The Hague Tribunal, which correspond to your remarks made just now, but in my personal view, the obligation of cooperation between your government and the ICTY is the commitment made by your government to the Charter of the United Nations and the resolutions adopted by the Security Council. There should be no preconditions for that cooperation, so no matter whether we let General Ademi out of jail temporarily or not, no matter if the decision is positive or negative, we believe - I believe - that the cooperation between your government and the ICTY should be continued and unaffected. What do you think of this view?

MR. GRANIC: [Interpretation] Your Honour, you are right. The President of the Republic of Croatia, or I, did not speak about obligations, and it is true that your decision, either positive or negative, will not affect the cooperation of the Republic of Croatia with this Tribunal. Both the President and I spoke about perceptions in the public, not about the obligations of this government. May I reiterate yet ⁷² again that there is no denying that, and this certainly does not depend on your ruling concerning General Ademi.

JUDGE LIU: Thank you. I'm very glad to hear that you reaffirmed that if General Ademi is released, he will not take any official positions in the government or in the army, no matter how insignificant it is. We also heard that the Minister of Defence, Mr. Jozo Rados made a statement to the Croatian television about Mr. Ademi's future work. What we want to know is whether this remark is on behalf of your government or his own personal opinions.

MR. GRANIC: [Interpretation] Your Honour, that statement is in a different context. The law is clear, and the Government of Croatia has to respect the law, not only the law on cooperation with The Hague Tribunal, but all of its laws. If I can freely interpret this statement made by the minister, this is a question of respect towards General Ademi and his work, and him as an individual, who proved, by his voluntary surrender, that he believes that he can defend himself before this Tribunal, and defend himself successfully, at that. This is apart from the decision of the Government of Croatia, and also what I said, that during these proceedings, General Ademi cannot hold any official position whatsoever.

JUDGE LIU: Another question is that I have to say that we are very sorry that up to now we have received no guarantees provided by the Croatian government directly addressed to this Trial Chamber. The letter on behalf of the government only states that all the necessary measures to ensure the accused, if provisionally released, would appear for trial would be carried out, and it does not set out any specific measures at ⁷³ all.

My question is: Are you willing to address to this Trial Chamber directly and specifically list all the guarantees that your government will provide for the provisional release of General Ademi?

MR. GRANIC: [Interpretation] Your Honour, since we have not been involved in this process, so to speak, we did not address this Trial Chamber directly, in writing, that is. We offered to the attorney the possibility of proposing to the Trial Chamber that I appear directly before this Trial Chamber and explain the position of the Government of Croatia to you.

May I reiterate this once again: On behalf of the Government of Croatia, I take the obligation to provide for the organisation, and all costs of transporting the detainee from his place of residence to the airport and back be covered by the Government of Croatia; that the Government of the Republic of Croatia is going to ensure the personal safety and security of Mr. Ademi while he was in the Republic of Croatia, according to the relevant ruling of the Trial Chamber, if, of course, your decision on this matter is positive; that it will report to the Registry of the Tribunal any possible threat to the safety or security of General Ademi; that it will, upon request of the Trial Chamber, provide a full report on the results of the investigation on this particular case; that it will ensure all possible channels of communication between the parties concerned and that it will ensure the confidentiality of such communication; that, within a time deadline to be stipulated by this Trial Chamber, it will submit reports to the Registry of the Tribunal pertaining ⁷⁴ to the presence of the accused and his adherence to all the conditions laid down by the Tribunal, i.e., reporting to a particular police station at his place of residence, having his passport taken and kept, or any other obligation that may be decided upon by this Trial Chamber; that it will arrest the accused if he violates any one of the conditions set forth in a decision on provisional release; and that it will respect the priority and supremacy of this Court in relation to any court and/or proceedings in the Republic of Croatia.

JUDGE LIU: Thank you very much for your remarks made just now. I believe there's still some additional requests which might be imposed by this Trial Chamber if we make a positive decision on this issue. For instance, that is, the accused should not have any contact whatsoever, any interference with the victims or the potential witnesses, or otherwise interferes in any way with the proceedings or the administration of justice; not to discuss the case with anyone, especially not with the media, other than the counsels and immediate family members; and not to have any contact with any other co-accused in that case. We believe those preconditions are also very important for the administration of justice. Thank you very much.

Yes. Judge Orie will have some questions.

JUDGE ORIE: I have a question concerning the measures you'll have to take in order to assure, if this Chamber would decide so, any conditions to be met by General Ademi.

You well understand that the Gotovina history causes great concern about the ability to keep control over someone who might be willing -- I'm ⁷⁵ not saying that General Ademi is willing, but you have to look at all possible, all potential situations. So your ability to prevent someone from escaping. If, finally, it would be necessary to put General Ademi under direct surveillance, would that be, as the ultimate consequence of your assurances, also be accepted by the government?

MR. GRANIC: [Interpretation] Your Honour, yes.

JUDGE ORIE: Thank you for your answer. And if you would allow me, I have listened quite well to what you said, and it's especially on the basis of what you've told us that I would like to put one additional question to the Prosecution, because there seems to be some difference of view on whether these 840 or 860 documents are available. You told us that they were prepared and it was the Prosecution's office which just didn't pick them up. So I'd like to confront the Prosecution now with this information and ask for their response.

MR. IERACE: Your Honour, would you allow me a moment while I obtain some instructions in relation to that?

JUDGE ORIE: Yes, please.

[Prosecution counsel confer]

JUDGE ORIE: Yes, please. If you want to add something, then ...

MR. GRANIC: [Interpretation] Your Honour, I was not sufficiently precise at one point. The information went to Mrs. Carla Del Ponte's office, and I personally had signed it.

JUDGE ORIE: Yes.

MR. IERACE: I thank you, Your Honour. As I understand the situation, there had been some documents recently provided to the Zagreb ^{76BLANK PAGE 77} office, and there are some further documents to pick up by the representatives of the OTP, and that is in keeping with the recent improvement in our dealings with the Croatian government authorities. In relation to whether there are 840 or so documents which have been available for two weeks and which have not been picked up, at this stage, at short notice, I can't clarify what the situation is. That's probably as far as I can assist you at this stage in relation to that, Your Honour.

If there is one further matter I could raise, I noted that Dr. Granic said that the indictments which were handed over in June of last year were unsealed. I don't know if that was a problem with the translation, but I simply note that that's what the written transcript records, and simply wish to make the point that they were indeed sealed indictments. Thank you.

JUDGE ORIE: Perhaps if you would allow me, Mr. President, to raise the issue, if we would leave this courtroom, Dr. Granic told us that the documents are available, if this could not be at this moment be clarified by the Prosecution, merely from a procedural point, would it be possible that this Chamber will be informed, perhaps even after this hearing, about whether this difference of view still exist or does not exist any more? And I would say that both parties have a keen interest, I think, in providing the Chamber with this information. Of course, it would very good if the information provided by the parties would be supported by the authorities of the government of Croatia. Since we cannot clarify it right at the spot and since it might be of some ⁷⁸ importance, would that be a procedural solution for that? I'm just looking to the Defence first.

MR. PRODANOVIC: [Interpretation] Well, the Defence believes that this can be resolved very fast. It can be faxed to the OTP or the OTP can state directly to us that they do have this in their possession.

JUDGE ORIE: Yes, Dr. Granic?

MR. GRANIC: [Interpretation] Yes. May I just explain this, how documents are technically taken over? A team has to come from the Office of the Prosecutor, that then verifies the copies, sees that they are identical to the originals, and that is how they are taken over. So that was probably the question concerned, that the people who were supposed to take over the documents did not come at given dates. And I did, indeed, write to Madam Carla Del Ponte stating that the documents were ready and sent -- ready to be sent, and this letter does exist in Madam Carla Del Ponte's office.

JUDGE ORIE: I have no doubt about that, to believe you, but as you know, usually in a courtroom, all parties give their views on it and we then finally establish what the situation is. I think I have no further questions.

JUDGE LIU: Yes?

MR. PRODANOVIC: [Interpretation] Your Honour, my proposal is that we take a five-minute break and that the Office of the Prosecutor check this out immediately. Since my learned friends are not aware of this particular point, I think they can check this very briefly and very fast right now. ⁷⁹

JUDGE LIU: Well, I believe that the best way is that the Prosecutor will provide us with this information before Monday. The proceedings will continue.

MR. PRODANOVIC: [Interpretation] Very well.

JUDGE LIU: Thank you. Now, could I turn to the accused? General Ademi, do you have any statement to make? Please.

THE ACCUSED: [Interpretation] Yes, I do, Your Honours. Your Honours, first of all, I would like to thank you for permitting me to address you.

I heard from the media for the first time about speculations that I was among the indicted generals. This was in mid-July of last year. I contacted the President of the Republic of Croatia right away, as well as the Commander-in-Chief of the armed forces of Croatia, in order to check about -- check these rumours. The President at that time checked this information with the government and found out that I was indeed among the indicted. At that very moment, I expressed my readiness to surrender voluntarily to The Hague Tribunal. After that, I was in contact with the government. I had personal contacts with Dr. Granic, and I asked him to allow me to prepare myself for this journey. The government contacted the Tribunal and I was granted a two-week deferral.

On the 25th of July, 2001, I arrived at The Hague and surrendered myself to the Tribunal. I surrendered to this Tribunal because I support its work and I accept all of its decisions. I believe that this Court is the only place where the question of my guilt or my innocence could be ⁸⁰ reviewed.

If this Tribunal grants provisional release to me, I guarantee with my soldier's honour - and I have been a military man for over 20 years and I give my word -- 28 years -- and I give my word that I will come back voluntarily to respond to requests by the Tribunal, in the same way that I came initially. I promise that I will abide by all the decisions and orders of the court regarding the terms of my provisional release. I also promise that I will not try to influence witnesses and victims, just as I had not tried to do that during the past eight years. The biggest guarantee that I will keep all of my promises is the fact that I surrendered voluntarily to the Tribunal as soon as I found out about the indictment. If my request for provisional release is granted, I solemnly promise that I will not betray the confidence and the trust of this Tribunal, the trust of the government of the Republic of Croatia, or my Commander-in-Chief of the armed forces of the Republic of Croatia, who have also provided guarantees on my behalf.

Your Honours, thank you.

JUDGE ORIE: I have one question perhaps for you. You have heard that, in the end of the observations made by Dr. Granic, he very much emphasised the overall perception of this Tribunal in Croatia. If you follow press clippings - and of course that's what judges do as well - then you see that the overall perception of your position in Croatia might not be primarily one of being accused of serious violations of humanitarian law in this Tribunal but rather a totally different position, mainly in respect of your military activities in the past. ⁸¹ Are you aware that it might be very, very attractive to speak to the media and especially to play a role in this, I would say, public opinion differences of view, perhaps, with how other people would primarily look at you, and that if the condition would be imposed upon you to stay away from the media, that it might be very difficult to keep that condition? Are you aware of that?

THE ACCUSED: [Interpretation] Your Honour, I promise you, as far as I'm concerned, that I will not be giving any interviews or provide any information to the media, and I will completely abide by all the decisions that you make. As far as what the Defence Minister, Jozo Rados stated, I stated already in my request for provisional release that I would like to use that time to learn English, so this is one of the things that I am planning to do, go to a language institute and learn English.

JUDGE ORIE: I understand your answer is that you are fully aware of how difficult that might be but nevertheless that you'll do it. Thank you.

JUDGE LIU: You may sit down, please.

THE ACCUSED: [Interpretation] Thank you, Your Honours.

JUDGE LIU: Are there any other matters that both parties would like to bring to the attention to this Chamber at this moment?

MR. IERACE: No, Mr. President.

JUDGE LIU: Thank you.

MR. PRODANOVIC: [Interpretation] Thank you. We don't have anything to add.

JUDGE LIU: Thank you. This Trial Chamber will deliberate on ⁸² these issues and make proper decisions on this matter at a later stage, taking into consideration the arguments put forward by both parties, as well as the statement made by the distinguished representative from the government of Croatia. Finally, we would like to reiterate our appreciation to the distinguished representatives from Croatia for their participation in this hearing.

Having said that, I believe that's all in the agenda. We'll rise.

--- Whereupon the Provisional Release Hearing adjourned at 4.06 p.m.