⁶¹

Monday, 10 May 2004

[Motion Hearing]

(Open session)

[The accused entered court]

--- Upon commencing at 9.34 a.m.

JUDGE ROBINSON: Will the Registrar call the case, please.

THE REGISTRAR: Good morning, Your Honours. Case number IT-03-69-PT, the Prosecutor versus Jovica Stanisic and Franko Simatovic.

JUDGE ROBINSON: May we have the appearances for the Prosecution.

MR. GROOME: Good morning. The attorneys representing the Prosecution here this morning are myself, Dermot Groome, David Re, and Melissa Pack. We are assisted today by Skye Winner and Rachel Friedman.

JUDGE ROBINSON: For the Defence.

MR. KNOOPS: Your Honours, Mr. Knoops, lead counsel in the case of Mr. Stanisic.

JUDGE ROBINSON: Thank you, Mr. Knoops. And for Mr. Simatovic.

MR. JOVANOVIC: [Interpretation] Good morning, Your Honour. I am Zoran Jovanovic, attorney from Belgrade, representing Franko Simatovic. Thank you.

JUDGE ROBINSON: Thank you, Mr. Jovanovic. This is an application by the two accused, Franko Simatovic and Jovica Stanisic, for provisional release. The Chamber decided to hear the matters separately. The two accused are present, because, as has been indicated by the order which was issued, we will hear the government minister and representative, one after the other so that they will not ⁶² have to give evidence twice. When the minister and the government representative have finished their evidence, we'll proceed with the Simatovic application. When that application is finished, we'll have a short Status Conference, and at the end of that hearing, we'll move on to the application by the accused Stanisic.

Let me make two rulings before we proceed. First, in relation to the Defence, the Chamber decided that Defence could have a week in which to cross-examine the two Prosecution investigators, and I wanted to find out from the Defence whether they will choose to take that further time or whether they will proceed with cross-examination today. Can I hear first from Mr. Jovanovic.

MR. JOVANOVIC: [Interpretation] Your Honour, after your ruling, when you agreed to the interview with the investigator, in agreement with my learned friend Mr. Knoops, we decided to carry out the cross-examination immediately. But Mr. Knoops will present his remarks with respect to the cross-examination of these two witnesses, and I will join him in that. There's just one further point I wish to make in that context. We have just received a confidential memorandum from the Prosecution with a list of all the evidence and expert reports that have been disclosed so far. However, under number 2, a document is exhibited, that is, a newspaper article that the Defence was not disclosed, nor was it mentioned in any filing of the Prosecution. Even in the last filing, suggesting the cross-examination of these witnesses, this article was never mentioned. So it is not clear to us what the context is, and the Defence has not had a chance to respond to this. And the Defence could ⁶³ certainly respond to the facts contained in that article. So I would like the Prosecution to provide some clarification on this point, if possible. Thank you.

JUDGE KWON: I don't think the Chamber is also aware of that document.

JUDGE ROBINSON: We are not aware of it, Mr. Groome.

MR. GROOME: Your Honour, I've simply assembled the documents that I may question some of the Defence witnesses with and I've just assembled them in the same binder. At the end of the hearing today I may be requesting that some of them be accepted into evidence, but it is a document that I do wish to -- or a newspaper article which I do wish to inquire to the government witnesses are they aware of this and ask them questions about it. I'm not aware that I have any disclosure obligation regarding questions I'm going to ask their witnesses and it's simply a copy of a newspaper article that appeared recently in the Belgrade press.

JUDGE ROBINSON: All right. We'll deal with that when we come to it.

Mr. Knoops, you had some remarks to make.

MR. KNOOPS: Thank you, Your Honours. Like my learned friend Mr. Jovanovic expressed, we will not request the Trial Chamber to adjourn for a week for potential cross-examination of the two OTP investigators. We, though, like to stress again our objection against the hearing of the two investigators, because we believe that their statements do not comply with the criteria as set forth by the Appeals Chamber in the Kordic case, in the judgement of 21 July 2000, where the ⁶⁴ Appeals Chamber has set forth six specific circumstances under which hearsay evidence can be admitted into the proceedings. And we also respectfully draw your attention to the ruling of your Trial Chamber in the Milosevic case, where the OTP investigator Mr. Kelly was refused to take the stand by the Trial Chamber based on these same criteria. So therefore, we respectfully ask Your Honours to eventually reconsider your decision, but for the record, we would like to stress our objection against the hearing of the two OTP investigators. Aside from the time-frame, we think -- we believe strongly that their statements do not comply, in short, with the Appeals Chamber's criteria. Thank you.

JUDGE ROBINSON: I should say that I think there's a clear distinction between this case and that of Mr. Kelly, who was a summarising witness. The Chamber doesn't see the two OTP investigators as summarising witnesses.

The other ruling which I wish to make was in relation to an application by the Prosecutor to have the transcript of Dr. Smalc from another trial admitted under Rule 92 bis (D). This application is refused. It is clearly out of time.

Mr. Groome, I should say in relation to the witness Dr. Boomgaard, the Chamber will allow him to give evidence, and at the end of the hearing we will try to work out an appropriate time to hear him.

MR. GROOME: Yes, Your Honour. We have spoken to him this morning and we will have the most current information regarding his availability when the Chamber wishes to discuss that. ⁶⁵

JUDGE ROBINSON: Thank you. May we then begin hearing submissions, opening submissions on behalf of the accused Franko Simatovic. Mr. Jovanovic.

MR. JOVANOVIC: Thank you, Your Honours. First of all, could we deal with the application for provisional release which has been marked as confidential, because there are quotations from the disclosed material, material disclosed by the Prosecution, which was disclosed to the Defence as confidential. And that is the only reason, so we can consider this to be partially confidential, that is, only with regard to parts of the transcript that were disclosed to the Defence as being confidential, and the mention of a particular witness in that filing. As regards all the other submissions, there's no reason for this to be confidential, nor for us to consider or hear this application in closed session. Therefore, the Defence of Mr. Simatovic would like this to be made in public hearing; if the Prosecution agrees, of course.

JUDGE ROBINSON: Mr. Groome.

MR. GROOME: Your Honour, I have no objection but for tab 5 of the exhibits that the Prosecution intends to use, and that's an affidavit of Investigator O'Donnell does contain some information which might compromise current OTP operations. I would ask that reference to that be taken in closed session and that it be placed under seal.

JUDGE ROBINSON: Thank you. You have heard that.

MR. JOVANOVIC: [Interpretation] Thank you very much. May I add something? Regarding the closed session during the hearing of this witness, should I mention that straight away or when we come to that? ⁶⁶

JUDGE ROBINSON: You can mention it when we come to it.

MR. GROOME: Your Honour, I apologise for interrupting, but if I could just point out that the transcript at 9:44:33 records Mr. Knoops as speaking when it was Mr. Jovanovic was speaking.

JUDGE ROBINSON: Thank you. That amendment will be made.

MR. JOVANOVIC: [Interpretation] Thank you. Your Honours, the Defence for the accused Franko Simatovic, in its application for provisional release, as well as through responses to the filings of the Prosecution, has provided arguments in favour of the position that the conditions provided for under Rule 65 have been met. The Defence believes that on the basis of the arguments presented to the Trial Chamber, it can be confident that the accused will appear and that his provisional release will not put at risk any witness or victim. Also, as a necessary element of the application for provisional release, guarantees have also been provided by the government of the Republic of Serbia and the State Union of Serbia and Montenegro. The guarantees of the Republic of Serbia have been filed in the form of two conclusions; first, a conclusion of the previous government and a conclusion of the current government of the Republic of Serbia. And Mr. Stojkovic is the minister of justice in that government, who we will be hearing today. And Mr. Caric will also be present as a representative of the State Union of Serbia and Montenegro.

With regard to the first condition, that is, whether Franko Simatovic will appear for trial: Allow me to say that, as a relevant and most important fact stressed by the Defence, and why we feel that we can ⁶⁷ assure the Trial Chamber that the accused will appear for trial is his personal attitude towards the Tribunal. That attitude has been demonstrated by the accused Franko Simatovic on several occasions, starting from cooperation with the Prosecution, which dates back to the beginning of 2002. There was an interview that went on for about 30 hours, and Mr. Franko Simatovic stated clearly on that occasion that he considers this Tribunal to be a Tribunal of his country as well, in view of its membership in the United Nations.

On that occasion, and later on - and this is to be found in my submissions - he repeated this position of his, that is, that he would cooperate with this Tribunal in every shape and form; and perhaps most importantly, he fully recognises the jurisdiction of this Tribunal in establishing his possible guilt. And at the end of this interview that he granted to my learned friends from the Prosecution, after being presented with the suspicions and with the charges made against him - even after that - he said that he considered this Tribunal to be a Tribunal of his country as well and that he will respond to summons, considering this to be his duty. This is the first point which can serve as assurances that the accused will appear for trial. Regardless of the personal attitude of the accused which I have already described, it is essential for the state where the accused would be staying if he were to be provisionally released has to make its position clear and it has done so, to the effect that it will comply with all the obligations that may be imposed on the state by this Tribunal should the accused be provisionally released. ⁶⁸ In view of the position of the Defence, as presented with regard to the personal attitude of the accused towards the Tribunal, the Defence feels that should the accused Franko Simatovic be provisionally released and when being summoned to trial, the assistance of the state would not be necessary, in fact. It would only be necessary to the extent of issuing him with a passport which he is not in the possession of just now.

When we come to guarantees, the Prosecution's practice so far, and in this case too, has linked guarantees to the level of cooperation of the state with the Tribunal. That is the Republic of Serbia and the State Union of Serbia and Montenegro. Any lack of cooperation of this kind compromises such guarantees. The Defence is of the opinion, in view of the established practice of the Tribunal, that in each individual application for provisional release, the facts need to be established which are relevant to that case and to those charges. We feel that guarantees should not necessarily be derived out of the context of other elements typical for that particular case, and they should not be linked exclusively to the general level of cooperation of a particular state -- that is, the view that a certain state is not cooperating fully because it hasn't fulfilled all its obligations. I think this should be put in more concrete form and it should be stated that the guarantees provided by the Republic of Serbia and the Republic of Montenegro as well as the union of the two have always functioned. All persons that have been provisionally released so far did appear before the Tribunal when summoned. While those persons were on provisional release, the state ⁶⁹ authorities fully complied with all their obligations, with all their duties such as supervision of the accused, regular reporting to the Tribunal about their movements, and so on.

Therefore, in the practice of this Court so far, the Republic of Serbia has never once failed in fulfilling its obligations in any -- by any individual act, and that is why we feel that it would be a simplified attitude to link this to the fact that a state cannot or will not surrender a fugitive. This should not be linked to the application of a particular suspect for provisional release.

Attached to my application for provisional release, I have attached an article from New York Times, but for other reasons, but I will mention it now, since the Prosecution is asking the Trial Chamber to admit into evidence the letter of the president of the Tribunal, Mr. Theodor Meron. And his position is that Serbia and Montenegro are not cooperating at present. However, this text, dating back from July last year - actually, ten months ago - Judge Meron said that a new spirit of cooperation is coming from Belgrade and that one has to see how many people, high-ranking people had been arrested and surrendered to the Tribunal. This was stated ten months ago.

I'm just trying to say that this cooperation with respect to guarantees may be variable. The position is not that Serbia and Montenegro are definitely not cooperating with the Tribunal. The Minister of Justice, Mr. Zoran Stojkovic, and the representative of the union will have an opportunity to state clearly what the plans are of that state union with respect to cooperation with the Tribunal. ⁷⁰ It is a fact that the president of the Tribunal at this point in time feels that Serbia and Montenegro are not cooperating, but we will hear from the representatives of that union what their views are. However, we feel that this shouldn't be viewed in simplified terms. One cannot say there's no cooperation or there is cooperation. It is a more complex matter than that. And I will use a similar method as was used by my learned friend Mr. Groome in his response to the Defence application. He says that he has knowledge of a certain fact. And I would like to say the same, that I have certain knowledge which I'm sure the Prosecution shares; that is, knowledge with regard to an example of a country which, upon the invitation of the Prosecution to state whether it accepts the subpoenas of the Tribunal and subpoenas of the Trial Chamber, it answered loud and clear that it was contrary to its legal system and that it cannot comply with the requirements of this Tribunal. And it is interesting to note that that country considers this Tribunal to be an alien Tribunal. It is not under the jurisdiction of this Tribunal, but is a member of the United Nations, and it does delegate judges to this Court. This was not included in the Prosecution's report to the Tribunal's president. So it is their opinion that even though they have clearly stated that they would not accept subpoenas, they still consider them to be cooperating. I think such situations too should be taken into consideration when assessing the cooperation of the State Union of Serbia and Montenegro or the Republic of Serbia with the Tribunal. With respect to the other condition envisaged by Rule 65, and that is whether the accused will appear for trial, that is the Trial ⁷¹ Chamber must be confident that he will not threaten in any way witnesses, victims or any other persons while on provisional release. In their response, the Prosecution says that the accused Franko Simatovic was employed in the Ministry of the Interior of the Republic of Serbia; actually, the Defence explained that the state security at the time, the State Security Service, was one of two sectors of the Ministry of Internal Affairs, and the Prosecutor interprets this as meaning that the accused has knowledge and information as to where Prosecution witnesses may be residing, that he might locate them and influence them. With regard to the relationship between the accused and the Ministry of Internal Affairs of the Republic of Serbia, the Defence has explained in its application and response. The accused was arrested without any grounds by that same Ministry of Defence, and I go back to the text of the New York Times, which I have submitted and which the Prosecution has considered as insignificant but not incorrect. That article also contains those facts. Therefore, Franko Simatovic was arrested without any reason, and judging by the assertions in this article, officials of the former Serbian government asked for assistance. I'll explain what this is all about. He was arrested on the 13th of March, and this indictment was confirmed on the 1st of May. When Franko Simatovic was interviewed by the investigating judge, he ruled detention beginning on the 13th of March. This was subsequently changed. So what this means is that he was arrested without any grounds, and then every effort was made to legalise this procedure. And when they failed to do so, then - according to Madam Carla Del Ponte - the ⁷² officials of the former government asked her for her assistance, saying that they had no reason to keep in detention on remand the accused and could the Prosecution assist by indicting him, and of course arresting him.

According to the words of my learned friend, Del Ponte, the investigation was expedited. At that moment, the OTP had no intention of raising an indictment because the investigation by that time had not been completed. However, at the request of officials of the Serbian government, the OTP simply expedited their investigation in order to accommodate officials of the Serbian government so that they could use this to justify this unwarranted detention.

It is in this sense that the Defence believes that there was a third party that directly affected the time of detention itself. The raising of the indictment means that first there was an order for detention. And this was all done at a time when this proved very convenient for certain officials of the previous Serbian government and not the OTP. The beginning of Mr. Simatovic's detention chronologically follows his arrest in Belgrade and was directly affected by the third party. The Defence believes this is a violation of Article 16 of the Statute.

As for the OTP's allegations in relation to the relevance of the allegations made against Mr. Simatovic possibly leading him not to appear before this Court, the Defence has stated on several occasions before that he is familiar with such suspicions. He was interviewed for a long time and was familiarised with the general nature of the OTP's ⁷³ investigation and was fully familiar with it even in relation to the time-frame that the indictment refers to, 1992 to 1995. It is actually quite a long time-frame. Towards the end of the interview, and later, he gave all these statements that I have referred to, and these indicate that he is willing to fully cooperate with the Tribunal. He was familiarised before with what potential witnesses would be, but none of those persons who later testified in the Milosevic case - and there was quite a number of such witnesses testifying in the Milosevic case who in one context or another also referred to this accused - none of those persons ever said that they were threatened or jeopardised by the accused Franko Simatovic.

As for the weight of the accusations themselves, I believe it is a simple piece of demagoguery to state these as the reason why someone should not be provisionally released. It is clear that all the trials based on indictments raised before this Tribunal are in relation to very serious allegations against people who stand indicted. The United Nations resolution specifies that these are the most serious crimes possible, and the responsibility for these crimes is equally great. Now, in relation to indictments that have before been raised before this Tribunal -- follow the same criterion. It is perfectly clear that trials are being conducted before this Court for the most serious crimes possible, and the same applies to this case as to all the other cases before this Tribunal. Rule 65, however, provides for the possibility of provisional release, and this is a well-known procedure in the case-law of this Tribunal. As we know, a number of high-positioned ⁷⁴ persons who held political offices have been known to be provisionally released before this Tribunal and to appear for trial. Therefore, Your Honours, the Defence of the accused Franko Simatovic believes that all the conditions have been met as required by Rule 65, first through the personal attitude displayed by the accused Franko Simatovic in his statements, and as we know, these statements are relevant for this Tribunal.

I would like to remind the Court of the arguments put forward by the OTP during the procedure for the provisional release of the accused Sainovic and Ojdanic. The OTP attempted to prove that there was no goodwill on the part of the accused to surrender themselves. However, the accused Franko Simatovic, in addition to his statements, the statements that he gave clearly displayed his willingness to cooperate with the Tribunal. Was he telling the truth? I believe the OTP does not have the jurisdiction to decide over that, and there should be a conclusion, a final conclusion, as to Mr. Simatovic collaborated or not, was he telling the truth or not. He was cooperating. Indeed he was, even without the assistance of state organs. It wasn't even necessary for the OTP to appeal for help to the state organs to get Mr. Simatovic's cooperation. He cooperated without any of the state bodies knowing about it. He cooperated before the law was even adopted on cooperation with the International Criminal Tribunal that many people later referred to. Mr. Simatovic was not even familiar with that law. He sees himself in a direct relationship with this Tribunal, a personal relationship. On the basis of the guarantees that have been issued in relation ⁷⁵ to the motion for provisional release, all the conditions have been met as required by Rule 65. I pointed out that some degree of cooperation has been achieved, unfortunately, contrary to the Statute and the rules, with Serbian officials from the previous government and the OTP. I do not believe the Chamber should accept this. If the OTP agrees to have that kind of cooperation, I believe at least the Chamber should not approve this in its ruling. Therefore, I would like to ask the Trial Chamber to grant provisional release for the accused Mr. Franko Simatovic until the start of his trial. He will be staying in Yugoslavia. And please rest assured that he will answer any summons that may be sent to him from this Tribunal. Thank you very much.

JUDGE ROBINSON: Thank you, Mr. Jovanovic.

[Trial Chamber confers]

JUDGE ROBINSON: Yes, Mr. Groome.

MR. GROOME: Your Honour, I would just say I allowed my learned colleague to complete his remarks, but I would be remiss if I did not point out at this point that I do take issue with his alleged quote of Ms. Carla Del Ponte. He has misquoted the Prosecutor and he's also mischaracterised the nature of her interaction with the Serbian government around the time that the accused Mr. Simatovic was arrested. He has suggested a quite serious allegation to the Chamber. I'm not -- I don't believe it's appropriate matter for provisional release. I would ask that if he believes that such an allegation is founded that he make a proper motion so that it can be dealt with in a more proper fashion than by innuendo. Thank you. ⁷⁶

JUDGE ROBINSON: Mr. Jovanovic, your first witness. Do you want to reply to that?

MR. JOVANOVIC: [Interpretation] Your Honour, if I may just briefly. I have just quoted an article, one paragraph of the article that I attached to my motion, and it is up to the OTP to respond to that. Please believe me that the Defence of Mr. Simatovic also found this quite strange. That's why I clearly stated this in my motion, to give the OTP a chance to respond. Just as Mr. Groome has responded. This was probably a misrepresentation, and the OTP was given a chance to say that it was.

However, they themselves clearly stated they believed it irrelevant. Was this a misinterpretation on my part? Perhaps. Or perhaps the misinterpretation was contained in the original article. Had the OTP responded in a timely manner, the Defence would have been given a chance to call the author of the text himself or perhaps to make other sources available. But the OTP failed to speak about it, failed to address this issue.

Even now, I can only say that I'm sorry if the OTP believes that I have acted in an unfair manner in any way whatsoever, but this is a fact. Thank you.

JUDGE ROBINSON: Thank you. We proceed now to the hearing of the witnesses. Mr. Simatovic, your first witness. You intend to call the minister, Minister Stojkovic.

MR. JOVANOVIC: [Interpretation] Yes, Your Honour.

JUDGE ROBINSON: [Previous translation continues]... To both ⁷⁷ accused.

MR. JOVANOVIC: [Interpretation] Indeed, Your Honour.

JUDGE ROBINSON: [Previous translation continues]... Jovanovic. Let the witness be called.

[Trial Chamber and legal officer confer]

JUDGE ROBINSON: Mr. Jovanovic and Mr. Groome, I just want to confirm that the government minister will be giving evidence and will be subject to cross-examination, will make the declaration.

MR. GROOME: Your Honour, I would expect that every witness that takes the witness chair would take the declaration.

JUDGE ROBINSON: That's my expectation too, yes. Mr. Jovanovic.

MR. JOVANOVIC: [Interpretation] Yes, Your Honour. I fully agree with that.

JUDGE ROBINSON: Why is it taking so long for the witness to appear, Madam Registrar? Is there a problem?

THE REGISTRAR: Your Honour, I will check. I have no idea why it's taking so long.

JUDGE ROBINSON: The witness will be here shortly, I'm advised.

[The witness entered court]

JUDGE ROBINSON: Let the witness make the declaration.

WITNESS: ZORAN STOJKOVIC

[Witness answered through interpreter]

THE WITNESS: [Interpretation] I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth. ⁷⁸

JUDGE ROBINSON: Thank you. You may sit. Mr. Jovanovic.

THE WITNESS: [Interpretation] Stojkovic.

JUDGE ROBINSON: Mr. Stojkovic. Mr. Jovanovic.

MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

THE WITNESS: [Interpretation] In accordance with Article 36 of the law on co-operation -- my apologies.

JUDGE ROBINSON: Mr. Jovanovic will ask you some questions. Examined by Mr. Jovanovic:

Q. [Interpretation] Good morning, Mr. Stojkovic. My name is Zoran Jovanovic. I represent the accused Franko Simatovic before this Tribunal. Please state your name and your official position.

A. Zoran Stojkovic, minister of justice in the government of the Republic of Serbia.

Q. Thank you very much, Mr. Stojkovic. Mr. Stojkovic, the government of the Republic of Serbia, on the 6th of May, 2004, adopted a conclusion confirming the conclusion of the government of the Republic of Serbia in its previous establishment, providing the guarantees for cooperation of the Republic of Serbia with the International Criminal Tribunal in the case, in the eventuality of the provisional release of Franko Simatovic. Would you provide further clarification as to what these guarantees mean exactly and why these were provided for the accused Franko Simatovic.

A. According to Article 36 on the law of the cooperation with this Tribunal, the Council of Ministers and the republican government ⁷⁹ envisaged a possibility that the Trial Chamber would grant provisional release for any of the accused and the Republic takes upon itself the obligation to provide certain guarantees in relation to the provisional release of these persons. There are a number of considerations that are included here. The person should stay in the country, as decided by the Council of Ministers. The person should report to the police every day. There should be reports on what has been achieved and whether the person is acting in accordance with orders of the Council of Ministers. Also, it should be made sure that this person will not be given a chance to run away or fail to attend any hearings requested by the Tribunal in The Hague.

Q. Thank you very much, Mr. Stojkovic. When providing these guarantees, the conclusion was adopted at one of the government sessions, if I'm not mistaken. Please tell us: Was another matter taken into consideration? More specifically, who the guarantees are being issued in relation to, the specific person, and what was the reaction of the Council of Ministers and the Minister himself?

A. My apologies. The Council of Ministers had already adopted a decision to issue the guarantees in compliance with the decision made by the previous government. The new government found that there were no changes and that it was possible to confirm the guarantees in relation to Mr. Simatovic and Mr. Stanisic.

Q. Specifically, Mr. Stojkovic, as you represent the government of the Republic of Serbia also, the Ministry of the Interior of the Republic of Serbia, is it willing and able to arrest Mr. Franko Simatovic should ⁸⁰ he fail to respond to any of the Tribunal's summons?

A. These are the guarantees that have been provided. He should report to the Ministry of the Interior on a daily basis and file a report to the government every month. In my opinion, it would be perfectly simple to arrest him at any given time should the necessity arise.

Q. Mr. Stojkovic, in relation to previous cases before the new government was established, in which you are the minister of justice, the State Union of Serbia and Montenegro, did they function in relation to provisionally released persons? Did Serbia and Montenegro live up to its obligations?

A. Yes, as far as I know. In relation to Ms. Plavsic and Mr. Strugar, it was Montenegro specifically, and Mr. Jokic too.

Q. Mr. Stojkovic, what will the cooperation be like between the government of the Republic of Serbia and the International Criminal Tribunal? Is there an official position of the government of the Republic of Serbia, and how exactly does the Republic of Serbia see or view its obligations towards the International Criminal Tribunal?

A. As for the cooperation itself, I think this has been stated with perfect clarity. These are our obligations towards the Tribunal and we have to meet these. It would not be fair to go any further into this, as I am also about to speak to Mr. Meron and therefore I do not wish now to enter into any further detail of this matter.

Q. Thank you very much, Mr. Stojkovic. Mr. Franko Simatovic's Defence has no further questions for this witness.

JUDGE ROBINSON: Yes. Mr. Knoops. ⁸¹ Mr. KNOOPS: Thank you, Your Honour.

Examined by Mr. Knoops:

Q. Good morning, Mr. Stojkovic. I'm the Defence attorney of Mr. Stanisic. First of all, your remarks just put to the Trial Chamber, do they also count for the situation of Mr. Stanisic?

A. Yes.

Q. With respect to the specific position of Mr. Stanisic, both the federal government and your government issued a guarantee for the secure of provisional release. Now, in the guarantee of the federal government, mention is made of the existence of humanitarian grounds for provisional release. My specific question for you is: Is your government able to supervise Mr. Stanisic's potential treatment in his home country, and if so, to which extent?

A. You mean in relation to his health problems? I am not in a position to speak about that. You should ask medical experts about this. As for treatment, we have some institutions that are very good, and he had previously received treatment in those institutions. I don't think there should be any --

Q. [Previous translation continues]... Government is able to enforce the conditions in case provisional release is allowed that Mr. Stanisic would attend trial.

A. As I said before, even if there should be a problem we would be prepared to arrest him and to make sure that he would attend.

Q. According to Yugoslav law, is it correct that Mr. Stanisic surrendered voluntarily? ⁸²

A. You're asking me about something that's difficult to define. What was going on at a time when the situation in the country was very difficult. There was a state of emergency, and several measures could have been applied. Arrest was merely one of them. At the time the indictment was published, as far as I know, both Mr. Stanisic and Mr. Simatovic declared their willingness to immediately leave for The Hague and appear before the Tribunal.

Q. So is it in your view correct that at the time of the detention of Mr. Stanisic, no criminal charges were raised against him?

A. To the best of my knowledge, the same applies to the situation today, with the exception of arrest. The OTP never put forward a request for investigation.

Q. My last question for the witness. Mr. Stojkovic, were you able to verify whether or not Mr. Stanisic is in the possession of a valid passport?

A. No. This was not our obligation for the time being. This can be verified. It is down to the Ministry of the Interior to issue passports.

MR. KNOOPS: Thank you, Your Honour. No further questions.

JUDGE ROBINSON: Thank you. Mr. Groome.

Cross-examined by Mr. Groome:

Q. Good morning, Mr. Stojkovic. My name is Dermot Groome and I'll be representing the Prosecutor at these proceedings this morning. I'd like to focus the limited time that you are here and pick up on one of the answers that you gave Mr. Jovanovic. ⁸³ In response to him asking you why it was or how it was that you would fulfil the obligation of returning Mr. Simatovic, if necessary, you said, and I'm quoting the English translation: "These are our obligations toward the Tribunal." Do you fully intend to recognise your obligations towards the Tribunal?

A. With respect to this particular case, I have said that it was not only our obligation towards the Tribunal, but should there be any doubt as to the voluntary nature of Mr. Stanisic's response to summons from this Tribunal, he would be arrested and handed over to the Tribunal. I apologise if we misunderstand one another. What I was saying was that we would arrest him and make sure that he would come to The Hague.

Q. Sir, let me then ask you: Arrest warrants had been lodged with your government with respect to an indictment against Mr. Lazarevic, Mr. Pavkovic, Mr. Lukic. My question to you is: Are you aware that arrest warrants have been lodged with respect to these men?

A. As far as I know, there are quite a number of problems there. Since there has been a change in the government, a council for cooperation with the Tribunal has still not been appointed, and that is the council that has the responsibilities for future action. So we're still in an interim situation, because this body that is supposed to regulate cooperation with the Tribunal has still not been fully formed. But we are aware of the existence of these indictments and we will certainly act in accordance with our obligations.

JUDGE ROBINSON: When did the new government come into being, Mr. Stojkovic? ⁸⁴

THE WITNESS: [Interpretation] On the 4th of March, 2004.

JUDGE ROBINSON: Thank you.

MR. GROOME:

Q. Sir, it seems that you're saying that it is your intention on behalf of your government to guarantee here that the obligations towards the Tribunal will be fulfilled except if problems arise, such as the one you've just described here. Did I understand you correctly?

A. I believe that the government has so far acted accordingly, at least as far as I know. There was no request from this Tribunal that was not fulfilled in terms of the disclosure of documents, the surrender of a number of people voluntarily. So percentage-wise, the largest number of detainees here in The Hague come from Serbia.

Q. Sir, I won't go into the details of cooperation with respect to documents with you. I would refocus your attention on the fact that there are a number of publicly indicted people for which arrest warrants have been lodged, and in fact in this past December of 2003, both Mr. Lukic and Mr. Pavkovic both even ran for general election. Is that not true?

A. That is certainly true, but I'm trying to explain that obligations towards the Hague Tribunal is in the hands of the council for cooperation which currently doesn't exist. And these persons took part in the elections earlier on, before the new government came into power. That is what I was trying to explain.

Q. Sir, can I take from your answer that you are recognising that cooperation with respect to executing search warrants has been incomplete ⁸⁵ in the past, but that you are pledging here today that once this council is operating, that we can expect full compliance? Is that what you're conveying to us this morning?

A. The government has already issued an official declaration that it will cooperate, that it considers it not only a question of cooperation but its duty and obligation towards the Hague Tribunal.

JUDGE ROBINSON: Mr. Stojkovic, when will this council be established?

THE WITNESS: [Interpretation] I'm afraid this is something that doesn't depend on the government of the Republic of Serbia. It is at the level of the Union, and they have to decide about this and appoint members to the council. I'm trying to explain the procedure. The council is the one that receives indictments and passes on to -- then to the courts. The court then addresses itself to the Ministry of the Interior for the arrest and then the proceedings are started in motion with respect to the Tribunal.

JUDGE ROBINSON: Yes, Mr. Groome.

MR. GROOME:

Q. Sir, so then your guarantee that you are offering here today, it's conditioned upon something that's outside of your control, namely, that a council will be formed for cooperation; is that correct?

A. The council existed, but now that the government has changed, the composition of various bodies is changing, and all these bodies have not fully been formed yet. All I am saying now is that the government has issued an official statement saying that it will cooperate with the Hague ⁸⁶ Tribunal. I was just trying to explain, because you asked me something that is not within the competence of republican authorities but of the federal authorities.

Q. But would you agree that until that council has taken effect, that your guarantee that you offer here today is unenforceable?

A. This part is something that we can enforce. The first stage has been completed. The suspects have been surrendered to the Tribunal. Should they be released, then it is our obligation - the Ministry of the Interior - to make sure that he does respond to summons, and should the person fail to do so, we would arrest him and surrender him to the Tribunal under escort. So the situation is not identical in the two cases. It's the same -- the same applies as with Mrs. Plavsic. When she was provisionally released, the procedure of surrender to the Tribunal was fully complied with.

Q. You say that there's a difference. Can you explain to us: How is an arrest warrant for an Initial Appearance different from somebody appearing before the Court being provisionally released and being required but failing to return a second time? What is so different about those two situations, that we should accept a guarantee to return a provisionally released person but not a person who has been -- an arrest warrant has been executed or issued for?

A. In these two cases, the persons have already received the indictments during regular proceedings. They are in the Hague Tribunal. Should they be provisionally released, they would be brought back under our supervision. The council for cooperation with the Hague Tribunal has ⁸⁷ still not given the necessary instructions for the republican authorities to be able to react. That is the difference. So the procedure has not even started. However, in this case, it has, and the republican authorities take upon themselves the obligation to fully carry out the whole procedure.

Q. I'm not sure I understand the distinction, but I'm going to move on to a second area.

Part of the Chamber's consideration will be the impact on witnesses that provisional release of these men would have. In that vein, I'm sure you're aware that recently, in April, during a trial in Belgrade, a number of further Red Berets wearing their insignias and identifying shirts appeared in the court. This act was considered by some in your government as an act of intimidation, an act of intimidation not only to witnesses but to the court personnel itself. Are you aware that the indictment here alleges that both Mr. Stanisic and Mr. Simatovic were superiors of members of the Red Berets?

A. The case you are referring to is something I'm familiar with. As far as I know, after verification, not one of those persons was actually a member of the Red Berets. The man who gave an interview and provoked attention from the public proved never to have been a member of the Red Berets. And the young man who wore those T-shirts attending training but were never admitted. So they were not members of the Red Berets. But I agree that this caused some disturbance. However, all the witnesses were interrogated in the course of those proceedings.

Q. So it's your evidence here today that these people were mere ⁸⁸ supporters of the Red Berets, not actual members of the Red Berets. Would that be an accurate accounting of what you've just told us?

JUDGE ROBINSON: Yes, Mr. Jovanovic. Mr. Stojkovic, Mr. Jovanovic is on his feet. Let us hear him.

MR. JOVANOVIC: [Interpretation] Your Honours, thank you for giving me the floor. We've just come to the problem that I mentioned at the beginning. Mr. Groome is presenting certain facts here and endeavouring to extract an answer. After the text we have received here, there are a number of other articles denying the membership of those persons in the Red Berets. The Zandarmerija issued an announcement stating that they were never members of that unit, that the T-shirts that they were wearing were not --

JUDGE ROBINSON: Mr. Jovanovic, let me stop you. You will have an opportunity for re-examine the witness. Those are matters that you can raise then.

MR. JOVANOVIC: [Interpretation] Yes, Your Honours. Thank you.

THE WITNESS: [Interpretation] I apologise. What I said was based on facts. The person who granted an interview was taken into custody and the judge has started proceedings on charges of false reporting, and they were proven not to have been members, and this particular individual for who knows what reasons granted such an interview. So he's being taken to court for spreading falsehoods.

MR. GROOME:

Q. Mr. Stojkovic, accepting the facts as you have relayed them to us, would you not agree that for witnesses that may be inclined to ⁸⁹ cooperate with the Tribunal in this particular case currently living in Serbia and Montenegro, that such a public display of support for the Red Berets, and by virtue of their association with that organisation, the two accused here, would you not agree that their release provisionally would serve as a further intimidation or further frightening of witnesses inclined to come forward and testify about what they know about this organisation?

A. This is an opinion that I couldn't respond to. All I could give would be an opinion, and I'd rather talk about facts.

Q. I'm asking you --

JUDGE ROBINSON: Mr. Groome, let's move on. I think that issue has been sufficiently ventilated.

MR. GROOME:

Q. My last question to you is: You know who Milorad Lukovic, "Legija", is, do you not?

A. Yes.

Q. Last week he turned himself in voluntarily to the Serb authorities, did he not?

A. Yes.

Q. And there's no question about whether or not he is a former member of the Red Berets, is there?

A. Yes, he was a member of the Red Berets.

Q. Today, Mr. Stojkovic, was Legija provisionally released in your country or is it not true that he is detained in your country at this present time? ⁹⁰

A. As far as I know, he's in detention, and he should make an initial appearance in court today.

MR. GROOME: Thank you. No further questions.

THE WITNESS: [Interpretation] We still have obligatory detention for the most serious crimes and this is something that we shall have to adjust to the convention. But we have this provision regarding detention. There's no possibility of having him released unless the court may pass such a decision. He is now within the jurisdiction of the court.

MR. GROOME: Thank you, sir.

JUDGE ROBINSON: Mr. Jovanovic, any re-examination? Briefly. I should say that we did set a timetable with specific times, and we are beyond it now. So we need to move ahead quickly.

MR. JOVANOVIC: [Interpretation] Very briefly, Your Honours, in connection with this last question put by Mr. Groome to the witness. Re-examined by Mr. Jovanovic:

Q. [Interpretation] Of what is Mr. Lukic accused?

A. For the murder of former Prime Minister Djindjic and for some other ten acts of murder.

Q. He may apply for release?

A. Yes. Any accused may do so, and it is up to the Court to make a ruling about that.

MR. JOVANOVIC: [Interpretation] Thank you, Mr. Stojkovic.

JUDGE ROBINSON: Mr. Knoops, any re-examination?

MR. KNOOPS: Thank you, Your Honour. Thank you. ⁹¹

JUDGE ROBINSON: Mr. Stojkovic, that concludes your evidence and you may now go.

THE WITNESS: [Interpretation] Thank you.

[The witness withdrew]

JUDGE ROBINSON: Your next witness, Mr. Jovanovic and Mr. Knoops, is that Mr. Caric?

MR. JOVANOVIC: [Interpretation] Yes, Your Honour. Mr. Caric, as a representative of the State Union of the Republics of Serbia and Montenegro.

JUDGE ROBINSON: Yes. Let him be called.

JUDGE KWON: Will he be examined as a witness or just make a statement as a representative of government?

MR. JOVANOVIC: [Interpretation] Your Honour, I think that he will make a statement as a representative of the authorities, as the republican Minister of Justice has already presented his views regarding the possible actions of the Republic to which the accused may be released. The conclusion or the guarantees issued by the State Union are based on the conclusion of the republican authorities.

JUDGE ROBINSON: Mr. Groome, will you want to cross-examine this witness?

MR. GROOME: Yes, Your Honour.

JUDGE ROBINSON: He will then have to make the declaration.

MR. GROOME: Your Honour, while we're waiting, maybe we could make some productive use of the time. It occurred to me that in order to save time, if it pleases the Court, the Prosecution would be willing to ⁹² tender the exhibit under 89(F), avoid having the investigators detail that. I leave it to the Court to decide whether it's appropriate.

JUDGE ROBINSON: Yes. We'll consider that.

[Trial Chamber confers]

JUDGE ROBINSON: Yes, Mr. Knoops.

MR. KNOOPS: Your Honour, the accused Mr. Stanisic would like to make a short tour to the bathroom, if possible.

JUDGE ROBINSON: Yes. Perhaps -- should we take a break now?

[Trial Chamber confers]

JUDGE ROBINSON: Let us take the 20-minute break now. We're adjourned. Twenty minutes.

--- Recess taken at 10.51 a.m.

--- On resuming at 11.13 a.m.

JUDGE ROBINSON: Mr. Caric to be called.

[The witness entered court]

JUDGE ROBINSON: Let the witness make the declaration.

WITNESS: SLAVOLJUB CARIC

[Witness answered through interpreter]

THE WITNESS: [Interpretation] I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

JUDGE ROBINSON: Thank you. You may sit. Mr. Jovanovic.

MR. JOVANOVIC: [Interpretation] Thank you, Your Honours. Your Honours, I spoke to Mr. Caric, and he told me that he is here in the capacity of a representative of the State Union of Serbia and Montenegro ⁹³ and that he has not been authorised to answer any other questions except to confirm that guarantees have been issued by the Council of Ministers of the State Union. So I have no questions for Mr. Caric except to ask him whether he can confirm that the Council of Ministers of the State Union of Serbia and Montenegro has issued guarantees with respect to the accused Franko Simatovic. Has the State Union assumed the obligations indicated in the document that has been provided to you?

JUDGE ROBINSON: Before you answer the question, let me clarify what you're saying. You're saying that Mr. Caric is here to speak to one issue, and one issue only: That is, the issuance of the guarantee. And he has not been authorised to address any other issue.

MR. JOVANOVIC: [Interpretation] Yes, Your Honour. That is exactly what I have been told. But perhaps Mr. Caric can tell you. I can ask Mr. Caric the question that I have mentioned: Can he confirm that the procedure has been carried out, and that the state Council of Ministers has issued such guarantees.

JUDGE ROBINSON: [Previous translation continues]... Chamber will consult. Because the issue, it seems, is whether Mr. Caric will be subject to cross-examination. Mr. Groome has indicated that he wants to cross-examine him. There is a practice in proceedings of this kind for representatives to make statements as to the issuance of the guarantees. That's not usually done from the witness box. I'll consult with my colleagues on this issue.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Caric, I've heard what has been said by ⁹⁴ Mr. Jovanovic. You say you're only here to speak to the issuance of the guarantees. Would you be prepared to answer questions relating only to the issuance of the guarantees?

THE WITNESS: Thank you, Your Honour. I just want to say two things in Serbian language as a clarification.

[Interpretation] First of all, I'm here as a representative of the embassy, which means a representative of Serbia and Montenegro, of the diplomatic mission of Serbia and Montenegro in The Hague. I should come here to confirm the guarantees issued by Mr. Stojkovic. I was meant just to be present. I have no mandate to say anything further regarding the guarantees and their issuance. That is the first point I wish to make.

And secondly, with your permission, I can hand over the original copy of the conclusions of the government of Serbia with respect to Mr. Franko Simatovic. By your leave, I can hand this over to the Trial Chamber. We have already sent copies through diplomatic mail.

JUDGE ROBINSON: [Previous translation continues]...

[Trial Chamber confers]

JUDGE ROBINSON: The Chamber's decision is that you will make the statement, which is usual in these proceedings, without any questions being asked. Go ahead with your statement.

THE WITNESS: [Interpretation] I can just repeat: As I don't have the authority to make any statement, I fully abide by what has been said by Minister Stojkovic; and with your permission, I should like to hand over the original of the government conclusions confirming guarantees for ⁹⁵ Mr. Franko Simatovic.

JUDGE ROBINSON: Yes. Please hand them over. Mr. Groome.

MR. GROOME: Your Honour, one of the decisions that this Chamber will have to reach is how reliable such guarantees are. May I make the following suggestion, that we ask Mr. Caric to -- at a break, contact his government and see, is he authorised to answer questions about the guarantee, and so he can inquire about its reliability and we can move on to the next witnesses. And perhaps later in the day Mr. Caric will have obtained such authorisation and we can properly inquire about just how reliable this guarantee is.

JUDGE ROBINSON: I think Mr. Caric has been quite clear as to the instructions that he has and what he's authorised to say. It's not the Court's view that the matter should be taken any further. Mr. Jovanovic.

MR. JOVANOVIC: [Interpretation] Thank you, Your Honours. Mr. Caric, in his statement, in fact confirmed the guarantees provided by the Republic of Serbia. Maybe he can tell us whether he can confirm the existence of the document entitled "Guarantees of the Council of Ministers of the State Union of Serbia and Montenegro." Can he confirm that such guarantees have been issued as a document by the Council of Ministers of the State Union?

JUDGE ROBINSON: Does your position confirm that? You may sit.

THE WITNESS: [Interpretation] Minister Stojkovic has explained everything with respect to the guarantees, so I don't see why the ⁹⁶ reliability of those guarantees would be called in question. He was the authorised representative to confirm those guarantees, and all I can do is to confirm the explanations that he gave. And I can say that earlier those guarantees were in some cases elaborated by a representative of the embassy, sometimes by an official coming from our country. Mr. Stojkovic was authorised to explain the guarantees. He has done so fully, and all I can do is confirm everything that he has said. And if I were to say anything else, that would go beyond my authority. So I don't see why those guarantees would be called in question, as he has explained them, and since the Council of Ministers has issued guarantees. So I don't see that anything can be in dispute.

JUDGE ROBINSON: Thank you very much, Mr. Caric. The document has been passed over to the Registrar, has it?

THE REGISTRAR: It has, Your Honour, but it has to be translated in English language. It will be filed today and translated accordingly.

JUDGE ROBINSON: Thank you, Mr. Caric. That concludes your statement. You may leave.

THE WITNESS: Thank you, Your Honour.

MR. KNOOPS: Your Honour.

JUDGE ROBINSON: Yes.

MR. KNOOPS: Do you wish to -- yes, well, the Defence has a question for the witness whether Mr. Caric has the same declaration to be issued, to be given in case of Mr. Stanisic. Because he only mentioned Mr. Simatovic. So my question for the witness is: Is he in a position to give a statement with respect to the guarantees, specifically in the ⁹⁷ case of Mr. Stanisic?

THE WITNESS: [Interpretation] Your Honour, as Minister Stojkovic has explained, the guarantees of the government of Serbia have been issued by both accused in this Tribunal, so I have nothing more to add to what the minister has already stated.

JUDGE ROBINSON: They apply to both accused. Thank you very much. You may leave.

THE WITNESS: Thank you.

[The witness withdrew]

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Groome, we will admit the statements under 89(F). I'm referring, of course, to the statements of the two investigators.

MR. GROOME: I will adjust my examination accordingly, Your Honour.

[The witness entered court]

JUDGE ROBINSON: Let the witness make the declaration.

WITNESS: BERNARD O'DONNELL

THE WITNESS: I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

JUDGE ROBINSON: Please be seated.

THE WITNESS: Thank you, Your Honour.

JUDGE ROBINSON: Mr. Groome, briefly.

MR. GROOME:

Q. Sir, can I ask you to state your name for the record. ⁹⁸

A. My full name is Bernard O'Donnell.

Q. In order to expedite matters we're going to take your evidence primarily in written form. I'd ask that a number be assigned to the binder of exhibits which the Prosecution has distributed earlier this morning.

JUDGE ROBINSON: Yes, that will be done.

THE REGISTRAR: The document will be numbered PT1.

MR. GROOME:

Q. Sir, I'd ask you ask you to take a look at tab 5 from that and ask you: Is that an affidavit authored by yourself and signed today?

MR. GROOME: If the usher would be so kind as to bring the document to Mr. O'Donnell.

A. That's correct, Your Honours. That is a document that I prepared and signed today.

Q. And does that document summarise what information you have with respect to information that was provided to the government of Serbia and Montenegro and what if any action they took on that information?

A. Yes, it does, Your Honours.

Q. Sir I'd now ask you to take a look at tab 6 of PT1. I'd ask you the same question. Is that a document that you authored and signed?

A. Yes, Your Honours. It's a document dated the 5th of May. It's a document that I authored and signed.

Q. And does that document summarise your assessment of an interview that you conducted with Mr. Stanisic some time ago?

A. Yes, it does. ⁹⁹

MR. GROOME: Your Honours -- I'm sorry.

Q. Do you affirm, now that you've been sworn under oath, that the information contained in both of these documents is true and accurate to the best of your knowledge?

A. Yes, I do, Your Honours.

MR. GROOME: Your Honour, at this time I tender both of those under 89(F).

JUDGE ROBINSON: Yes. They're admitted.

JUDGE KWON: Mr. Groome the statement signed today, we received it today?

MR. GROOME: Yes, Your Honour. If Your Honour will recall, it was forecast in the last application. Mr. O'Donnell was away on mission. The contents of that was forecast in our application last week and it was provided this morning.

JUDGE KWON: How do you expect the Defence can cross-examine upon the document which they received just today?

MR. GROOME: Your Honour, I was relying and was not opposing the Chamber's decision that they would have the opportunity to delay Mr. O'Donnell's cross-examination for one week. It seemed a perfectly fair decision by the Chamber, and they have stated, though, here in Court that they are prepared to cross-examine. If they should change their mind, Mr. O'Donnell is here, is available to be cross-examined when they feel they are ready. I do take note of Your Honour's observation that it is very short time. I would also point out that it's approximately a page and a half, though, of material, so it may very well be that they do ¹⁰⁰ feel equipped to examine him today.

Your Honour, I forgot to mention I would ask tab 5 be under seal, if it takes place today; that it be done in private session.

JUDGE ROBINSON: Yes. That will be so. Mr. Jovanovic, do you wish to revisit your decision to proceed with cross-examination today?

MR. JOVANOVIC: [Interpretation] No, Your Honour. The Defence did not have a chance to inspect this statement. The first statement was given to the Defence team on Thursday afternoon, and we expressed our disapproval. In relation to that one, however, the Defence of Mr. Simatovic would not have any questions. The contents of that statement relate to the interview with Mr. Stanisic. However, in the statement that was disclosed to us today, there is reference to Mr. Simatovic also. Regardless of that, I will cross-examine today on this basis.

However, I oppose the introduction of this statement and the questioning of this witness in relation to anything stated in this statement. We believe it is simply too late for that. We oppose the examination of the witness whose statements were delivered on Thursday afternoon. It was in the interest of justice that you ruled that all the interviewed persons be heard, but I believe this represents a misuse of your ruling. It was in the interest of justice that the Chamber has decided to hear all the persons that were interviewed, but the OTP is using that now to introduce new evidence just before the start of the trial. I believe this is simply unjust. ¹⁰¹ I propose that we cross-examine witness Tore Soldal, but I would like to move that the OTP not be allowed to tender anything contained in today's statement into evidence, the statement marked tab 6 in the list provided by the OTP.

JUDGE ROBINSON: Let me make it clear again. The issue of lateness and of possible embarrassment to the Defence is to be addressed by giving you the opportunity to delay your cross-examination. If you choose to proceed with it, that's entirely a matter for you. The Chamber, as it said before, is perfectly prepared to offer you a week in which to prepare for cross-examination. The Chamber is admitting the statements, and as I said, and I repeat, the issue of late service is to be addressed by granting you an opportunity to delay your cross-examination if you so wish. I understand that you wish to proceed in relation to one statement. Is that so?

MR. JOVANOVIC: [Interpretation] Yes, indeed, Your Honour. Thank you for offering the Defence a possibility to defer our cross-examination. However, the Defence team wishes to expedite proceedings, and we shall proceed with our cross-examination of the witness today.

JUDGE ROBINSON: Thank you. Proceed. Yes. Cross-examined by Mr. Jovanovic:

Q. [Interpretation] Mr. O'Donnell, based on the fact that Generals Lukic, Pavkovic, Djordjevic, and Lazarevic were not arrested in Serbia, is it your conclusion that there would be any danger to the carrying out of the proceedings before the International Criminal Tribunal in relation ¹⁰² to the accused Mr. Simatovic?

A. Firstly, I don't quite understand your question. If it relates to the appropriateness of conducting proceedings, I'm not qualified to answer your question.

Q. I didn't mean the appropriateness of conducting proceedings, but all the measures that need to be taken for proceedings to be carried out. More specifically, Mr. Simatovic appearing before the Court and his potential influence on the witnesses. Do you have a conclusion that you based on what you said in the statement to the effect that the generals are no longer at large pursuant to a request by the Tribunal, as well as the fact that some of them have been giving interviews to the press, specifically the references to these persons that you mentioned. Is it therefore your conclusion that Franko Simatovic for that very reason would fail to appear before the Court or that he would attempt to influence witnesses, put at risk victims, or rather, persons?

A. Your Honours, the persons mentioned in the affidavit have been indicted and three of those persons are publicly at large. I also mentioned that several people indicted publicly by the Tribunal remain at large and information has been provided to authorities in Serbia and Montenegro. In fact, of those persons publicly indicted, the 20, 16 of those persons, according to information we have, remain in that territory. Therefore, I believe that it is a factor in relation to the matter being discussed; that is, the release of Mr. Stanisic and Mr. Simatovic and undertakings given by local authorities when 16 of the 20 people publicly indicted, according to information we have at the ¹⁰³ Office of the Prosecutor, remain at large. Information has been passed to authorities in Serbia and Montenegro in relation to their locations within Serbia and Montenegro.

Q. So it is your opinion, as an OTP investigator, that the accused Franko Simatovic would not appear before the Court again, based on these arguments that you've just put forward.

A. Your Honours, I see the question going more towards whether or not -- whether -- if Mr. Simatovic did not come voluntarily, whether action would be taken, given the fact that information has been given on other indictees and not acted upon.

Q. No. No, Your Honours, my apologies. I believe the witness has misinterpreted my question. My question was: Is it his personal position or opinion that Simatovic would fail to respond to another summons by the Tribunal, based on the fact that the Generals Pavkovic, Lukic, and Lazarevic have not been arrested and are currently on the territory of the Republic of Serbia, at large, as well as other persons who have not received the indictment? Is that the position of this OTP investigator, that Mr. Simatovic would not show up in Court, based on this information?

A. No, Your Honours. I see that as being two separate factors.

MR. JOVANOVIC: [Interpretation] Thank you very much, Your Honours. I have no further questions for this witness.

JUDGE ROBINSON: Thank you. Mr. Knoops.

MR. KNOOPS: Your Honour, we would like to cross-examine the witness in private session. ¹⁰⁴

JUDGE ROBINSON: Yes. Private session, Madam Registrar.

(Private session)

(23 lines redacted) ¹⁰⁵

(16 pages redacted) ¹²¹

(2 lines redacted)

(Open session)

THE REGISTRAR: We are in open session, Your Honour.

MR. KNOOPS: Your Honours, with respect to the expert witnesses, Dr. Tarabar and Dr. Offermans, that will be no problem. The only thing is I have just learned from the case manager that your expert witness, the Minister of Health, will leave tomorrow -- today, later today.

MR. GROOME: If it's of assistance to the Chamber, Mr. Soldal is available tomorrow, whenever the Court wishes to reschedule him.

[Trial Chamber confers]

JUDGE KWON: Shall we go into private session briefly.

(Private session)

(12 lines redacted) ¹²²

(page redacted) ¹²³

(page redacted) ¹²⁴

(16 lines redacted)

(Open session)

JUDGE ROBINSON: Mr. Soldal to be called.

[The witness entered court]

JUDGE ROBINSON: Let the witness make the declaration.

WITNESS: TORE SOLDAL

THE WITNESS: I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

JUDGE ROBINSON: Please be seated. Mr. Groome. ¹²⁵ Examined by Mr. Groome:

Q. Sir, can I ask you to state your name for the record.

THE INTERPRETER: Microphone, please.

MR. GROOME:

Q. State your name, please.

A. Tore Soldal.

Q. And how long have you been an investigator in the Office of the Prosecutor here at the Tribunal?

A. Around seven years.

Q. Mr. Soldal, in order to expedite matters, I'm going to take much of your testimony in writing. I'm going to show you what is Exhibit PT 7, and ask you: Do you recognise this document?

MR. GROOME: If I could have the usher's assistance with that, I'd appreciate it. Is that a document that you authored and signed?

A. Yes.

Q. And does that document summarise your experience and your views with respect to the effect or the impact that the release of Mr. Simatovic and Mr. Stanisic would have on witnesses or potential witnesses in this case?

A. Yes, it does.

Q. I'd ask you now to take a look at tab 8 of that same Exhibit, PT1. Can you tell us what that document is?

A. It's a declaration signed by me. It's about the interview I conducted with Mr. Simatovic.

Q. And does that document contain your assessment of the value or of ¹²⁶ the contents of the information that Mr. Simatovic provided to you during that interview?

A. Yes, it does.

Q. Do both of those documents contain your signature?

A. Yes.

Q. Now that you have been sworn, do you affirm that the information contained in those documents is truthful and accurate to the best of your knowledge?

A. Yes, I do.

MR. GROOME: Your Honour, at this time I would tender those exhibits, tab 7 and tab 8 of PT1 into evidence.

JUDGE ROBINSON: Yes, they're admitted.

MR. GROOME: I have no further questions.

JUDGE ROBINSON: Mr. Jovanovic, any questions?

MR. JOVANOVIC: [Interpretation] Yes. Thank you, Your Honour. Cross-examined by Mr. Jovanovic:

Q. [Interpretation] Mr. Soldal, tell me, please: How did the interview with Mr. Simatovic take place? Or to be more specific, did you establish contact with am him yourself, directly, or through any state organ?

A. It was one of my colleagues that established the contact with Mr. Simatovic, Your Honour.

Q. So the official authorities of the Republic of Serbia had no part in it?

A. No. ¹²⁷

Q. Thank you. Mr. Soldal, do you remember whether the law on cooperation with the International Criminal Tribunal had been passed at the time by the Republic of Serbia?

A. As far as I remember, it hadn't been passed at that time.

Q. Mr. Soldal, in your statement, you said that the interview was held in a friendly atmosphere. Could you elaborate a little, and could you also tell us where it took place and a few words to elaborate the actual interview.

A. Most of the interview took place in the apartment of Mr. Simatovic. The last part was in the apartment of one of his lawyers. The interview was done in a very friendly atmosphere. Mr. Simatovic brought food, coffee, drinks, was friendly. No problems whatsoever.

Q. Mr. Soldal, do you remember that Franko Simatovic suggested that the interview take place in his apartment, and when he did so, did he mention his doubts about security? Did he mention that he or members of his family were at some sort of risk?

A. I can't remember that now. It may have happened, but the first meetings with him was done by -- one of my colleagues, Vladimir Dzuro. But it also may have happened during the interview.

Q. Mr. Soldal, so you do allow for the possibility that your colleagues may have some additional information regarding this event?

A. May have. It's quite a long time since, but they may have some additional information.

Q. Mr. Soldal, do you know what Mr. Simatovic said when he reached the Detention Unit in The Hague, when he was interviewed again? Do you ¹²⁸ perhaps recollect that he then mentioned that he was fearful for his family members?

A. Absolutely. He feared what could happen to his sons.

Q. May I infer from that that he himself considered himself to be at risk, in a sense, both in Belgrade and later when he came here he feared for the members of his family, and he told you that? Thank you. Mr. Soldal, you are certainly familiar with the indictment, which is effective after the preliminary objections were filed. Are you aware of the dates mentioned here for various crimes? Do you remember when the crimes listed in SAO Krajina were committed in Vukovar, the autonomous region of Baranja and Western Srem, Bijeljina, Bosanski Samac? I assume you will that those were the results of your own investigations. Do you remember that?

A. I am not -- I do not remember all the dates of all the crimes on the top of my head. I've only been involved in a few of the crime bases. But approximately I know when the different crimes in the indictment are supposed to happen, take place.

Q. Would you agree with me that, with the exception of Sanski Most and another crime in Mrkonjic grad, in all other cases, and this ends with paragraph 57, that they all refer to 1991 and 1992?

A. Correct.

Q. Mr. Soldal, what was Franko Simatovic's position in 1991/1992 in the Ministry of Internal Affairs, or rather, what did your investigation show?

MR. GROOME: Objection as to relevance. ¹²⁹

JUDGE ROBINSON: Yes, Mr. Jovanovic. What's the relevance of this.

THE INTERPRETER: Microphone, please, Your Honour.

JUDGE ROBINSON: What is the relevance of this? It seems more like a matter for trial.

MR. JOVANOVIC: [Interpretation] You're quite right, Your Honour, but I was prompted to refer to this because the indictment says that in the relevant time period, the accused - and I will quote from the English version - "worked in counter-intelligence." So I'm just asking whether Franko Simatovic was telling the truth with respect to his position. Did he tell Mr. Soldal this? Because Mr. Soldal says that he was insincere during the interview. But did he nevertheless provide some truthful information?

JUDGE ROBINSON: Yes. Ask the question and then move on.

THE WITNESS: As far as I remember, in 1990 or 1991, the state security got their own intelligence branch. Before that, it had been a counter-intelligence organisation, and Simatovic became involved with the intelligence part of the DB.

MR. JOVANOVIC: [Interpretation]

Q. Do you know what his formal position was with the Ministry of Internal Affairs at the time? He did hand over some documents to you. Did he tell you about his position?

A. According to himself, he had quite a low-level position at that time. I don't remember the actual position he held.

Q. You don't remember. Very well. Thank you. Mr. Soldal, your ¹³⁰ view that Mr. Simatovic respected and respects the work of the International Criminal Tribunal, was it something that he did during the interview that led you in any way to believe that this was not in fact true?

A. It's more the information he gave us than what he did during the interview. Most witnesses I interview claim they respect the work of the Tribunal and that they want to cooperate with us. The information they gave us can show that it's not actually the truth.

Q. Mr. Soldal, please, if you could view these two things separately, how Mr. Simatovic treated you, his attitude in relation to the interview itself, how he behaved. This interview lasted a couple of days. Those were altogether 30 hours of conversation. On the one hand we have your general position on that, the way he confronted you, the way he provided information. This will later be subject to evaluation. Was it your conclusion that he talked to you voluntarily and that he was willing to cooperate to provide information? Let us just limit ourselves to that. Let us not now discuss the truthfulness of this information. But is it true that he was willing to provide information?

A. Yes.

Q. So he did cooperate? Am I right in assuming that?

A. Yes. There were no problems during the interview, and I interviewed him six days altogether.

Q. Mr. Soldal, you said that certain witnesses that you interviewed for the Milosevic case informed you that while the accused were still at large they were not willing to talk to you. Did those witnesses later ¹³¹ testify in the Milosevic case?

A. No.

Q. No. Which time-frame are we talking about? Can you specify at which time you got in touch with those witnesses when they stated this to you?

A. 2001, 2002.

Q. Mr. Soldal, did those witnesses perhaps explain to you why their position was as it was? Because back then, there was no mention at all of Franko Simatovic being detained on any grounds whatsoever. What was this supposed to mean while these people were still at large? There were no signs back then, nothing to lead anyone to believe that Franko Simatovic would one day be detained.

A. No, but we very often met people that asked us why haven't you arrested Mr. Stanisic and Mr. Simatovic, and it's based on that.

Q. Can you perhaps specify who these people are. Not information on these people, of course, but in relation to which circumstances they're supposed to testify and in which case.

MR. GROOME: Your Honour, these are people that the Prosecution will be filing motion for disclosure of their identity. I'm not sure of the relevance of their actual names at this juncture, but I would want to be heard extensively if Mr. Jovanovic feels it's that important to inquire about the identity of these people.

JUDGE ROBINSON: Mr. Jovanovic.

MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. I believe there's been a misunderstanding. That's precisely what I'm ¹³² saying. I do not need these people's identity. We can't have these statements disclosed now because, to begin with, these people have never testified. What I want to know is whether Mr. Soldal can specify who these witnesses were that refused to testify in the Milosevic case, requesting that Franko Simatovic be brought in before they do anything. Who were these people who requested that Franko Simatovic be detained, and who asked questions about when he would be detained? Is there a report that he sent to the OTP in relation to this issue? Is there any paper trail?

JUDGE ROBINSON: Can you answer that? We don't want the names.

THE WITNESS: Yes, Your Honour. This is witnesses I interviewed during -- or tried to interview, more correctly, during the Milosevic investigation. And it's mostly members of the so-called Red Berets or other paramilitary units. And many of them asked if we were going to arrest Mr. Stanisic and Mr. Simatovic.

MR. JOVANOVIC: [Interpretation]

Q. Did you inform the OTP about this? Was there a report that was drafted on your part about this? I assume that before you approach a witness, you gather all the information that you can on that witness, and then you must produce something in return, following your contact with these witnesses.

A. If the witness interviews we are supposed to do in the field don't take place, we write a short report about the witness in the mission report we have to submit when we are back from mission.

Q. Did you do that in relation to the witnesses we are talking about ¹³³ now?

A. The witnesses that refused to testify?

Q. Yes.

A. It must have been done for several witnesses.

Q. Specifically these witnesses who referred to Mr. Simatovic? Did you enter that bit of information in your report?

A. This happened with a lot of witnesses, and what kind of information I entered for each witness, I do not remember today.

Q. So, to sum it up: You can't be sure that you actually wrote a report for the OTP in which you stated such-and-such witness refuses to talk to us, requesting that Franko Simatovic first be placed into custody.

A. I have submitted reports about witnesses that don't want to be interviewed because of the two accused, yes.

Q. Can you be more specific, please. Did you actually write this in your report, the specific reason?

A. I know I have written reports about it, yes. For how many or for whom of them, I can't tell.

JUDGE ROBINSON: Mr. Soldal, what he's asking you is whether in your reports you specified that the witnesses told you that they were concerned about the two accused being at large. He's asking whether you specifically mentioned that in your report.

THE WITNESS: I have mentioned that in reports, yes, Your Honour.

MR. JOVANOVIC: [Interpretation]

Q. Could you perhaps show us these reports? ¹³⁴

A. I don't have them. I have to search through the system on my reports.

Q. Thank you very much, Mr. Soldal. In relation to witness B 190, during your interview of witness 190, you decided to view this witness as a suspect following information that he disclosed to you. He provided information on Croatia, as you said, refusing to provide information on Bosnia, because of the accused Simatovic and the alleged involved 9as interpreted] of this witness in a DB unit; is that correct?

A. That's correct.

Q. Did he talk about what happened in Croatia?

A. Yes, he did.

Q. Regardless of the fact that Franko Simatovic stands accused also of crimes committed in Croatia?

A. According to this witness, the reason why he was willing to talk about Croatia was that he belonged to another unit during that time-frame.

Q. Mr. Soldal, what is the procedure when a statement is taken from a suspect? What is the specific value of what a suspect tells you before or during the interview, the recorded interview, in view of Rule 42, of course?

A. The procedure is that we always interview the suspect by using video or audio equipment. We read their rights. We don't discuss any facts related to the investigation outside the time. And the value is for the lawyers to review.

Q. However, what you talked about to witness 190 is essential, after ¹³⁵ all. It's about his involvement in the war in Bosnia. Do you believe that witness 190, by virtue of the fact that he asked you to stop the recording, wanted to avoid disclosing that particular information? Within his rights as a suspect, he refused to incriminate himself, and that's why he requested that the recording itself be stopped.

A. According to the witness, that wasn't the reason. He was afraid because he belonged to the so-called Red Berets during the war in Bosnia.

Q. Do you believe that his statement to the effect that he was a member of the Red Berets during the conflict in Bosnia is something that incriminates him?

A. It doesn't necessarily have to incriminate him, that he was a member of that unit.

Q. But he certainly did not want to make this information public, did he?

A. No.

Q. Witness 190, was he informed, or rather, did you inform him that today you would be speaking about his rights under Rule 42 and how he refused to talk about this?

A. No.

Q. Mr. Soldal, paragraph 7 of your statement in relation to witness B073, is this your comment on what happened?

A. Yes.

Q. Therefore, this was a public testimony, if I'm not mistaken, wasn't it? There is a transcript on the website of this Tribunal. Therefore, the public has access to what happened. You saw it fit to ¹³⁶ comment on what happened, didn't you?

A. Yes. I followed it on TV.

Q. Therefore, this only represents your own opinion and not necessarily shared by others, does it. As to the nature of these events, that's your opinion. Thank you.

MR. JOVANOVIC: [Interpretation] Thank you very much, Your Honours. I have no further questions.

JUDGE ROBINSON: Thank you, Mr. Jovanovic. Mr. Knoops.

MR. KNOOPS: Thank you, Your Honours. Cross-examined by Mr. Knoops:

Q. Mr. Soldal, if I understand your statement correctly, you actually refer with respect to specific the situation of Mr. Stanisic to one occurrence, which you elaborate on in paragraph 6 of your affidavit, a so-called sensitive source, indicating that there was some kind of a meeting at the house of Mr. Stanisic. Is that correct? So this is -- considering your statement, the only concrete incident you describe about Mr. Stanisic?

A. That's correct.

Q. Now --

MR. GROOME: Excuse me. Your Honour, I believe that this next line of questioning may compromise the identity of that witness. Could I ask the Court to inquire from Mr. Soldal if he does believe that it will. And if it will, I'd asked that it occur in private session. Because of how events occurred in this matter. ¹³⁷

JUDGE ROBINSON: Yes. Mr. Soldal, is there some matter that should be taken in private session?

THE WITNESS: I'm not sure I understood Mr. Groome.

JUDGE ROBINSON: I think let us hear the question. Good.

MR. KNOOPS: Defence will not try to find out the identity of the source, Your Honour, so can offer comfort to the Prosecution on that.

Q. My question is: First of all -- so I understand your answer, you say this is the only concrete incident I described about the potential involvement of Mr. Stanisic. I just -- I understood your question as affirming.

A. Yes, in this affidavit.

Q. In this affidavit, right.

A. And of course when witnesses are telling, you have -- I mentioned witness 174, 235. That is also related to DBS or state security as such.

Q. Right. But I'm speaking now on your affidavit on the 6th of May. Mr. Soldal, first of all, the information you obtained was from a person. Was the person himself present during the meeting?

A. No, he was not.

Q. Okay. You describe that the way of conduct seemed to you as Mr. Stanisic wanted to screen the interviews we had with them. First of all, did you inquire about the nature of that meeting?

A. No.

Q. Were you able to verify the nature of the meeting?

A. There were no way I could get that verified.

Q. Okay. Did you approach the two persons you mentioned as the two ¹³⁸ former members? Did you approach these persons as to the content of that meeting?

A. No.

Q. Did you in any way, in any other way, verify your impression that it seemed to you that Mr. Stanisic wanted to screen these interviews?

A. I reviewed the statement of these two witnesses, and I also compared them with the statements of the two accused, and I could see similarities in the story they gave us.

Q. So you deduced from some similarities your observation or your suggestion that conversation was apparently meant, in your view, to screen persons.

A. Yeah.

Q. Have you any other arguments to substantiate your suggestion?

A. No. And as I wrote in the affidavit, the dates for this meeting fall together with the dates for the interview. I think I wrote that.

Q. Right. But you mentioned that as an argument to corroborate the time and the place. But I mean the contents of the meeting, apparently at the place of Mr. Stanisic, was that in any other way verified by you or only by comparing the statements?

A. Only by --

Q. Comparison of the statements?

A. Yes.

Q. My second question to you, Mr. Soldal, is: You refer to potential witnesses who refused to be interviewed because they feared their own safety or the safety of their families at paragraph 3. And you ¹³⁹ also refer to the argument that, I quote: "Real power in the country was held by Mr. Stanisic and Mr. Simatovic." Did you in any way verify at what time Mr. Stanisic was dismissed from service?

A. 1997 sometime, I think, or 1996. I don't have the exact time.

Q. And the interviews you refer to, were they undertaken after the period you just mentioned?

A. Yeah. A long time after.

Q. So actually, at the time of the interviews, Mr. Stanisic was not actually head of the State Security Service.

A. He was not.

Q. Still, these people you refer to apparently told you that the real power in the country remained -- was held by Mr. Stanisic and Mr. Simatovic.

A. Yes.

Q. Was that for you a credible argument, considering the fact that, according to your statement, Mr. Stanisic was already for some years not in power of the DB?

A. It's very difficult to tell whether -- anything credible or not. First of all, I'm not a political analyst. And secondly, there have been many governments down there. There have been a lot of problems with the different governments. So who is in power at any time has been difficult to say, at least for me.

Q. But Mr. Soldal, you agree on first sight that this is not quite logical that people allegedly saying that somebody is in power of a whole country, a whole state, while that person merely was during his service ¹⁴⁰ the civilian head of a security service and already left the service for years?

A. None of them held any de jure power at that time in Serbia or Montenegro.

Q. Were you in any way in the position to verify that suggestion made by these witnesses?

A. No.

Q. I have a last question for you, Mr. Soldal. Did you ever receive any concrete evidence that Mr. Stanisic himself tried to influence any witness, concrete evidence that he himself tried to influence a witness?

A. Never.

Q. Thank you.

JUDGE ROBINSON: Thank you. Mr. Groome.

MR. GROOME: Your Honour, I have no questions.

JUDGE ROBINSON: Thank you. Mr. Soldal, that is your evidence and you may go.

[The witness withdrew]

[Trial Chamber and legal officer confer]

JUDGE ROBINSON: In the programme that was issued on Friday, the order for the work today, we had scheduled a Status Conference, and we consider it appropriate to carry out that conference now in relation to the accused Simatovic.

MR. JOVANOVIC: [Interpretation] Yes, Your Honour. I quite agree. Before this hearing, talking to the Prosecution, I accepted the proposal suggested by Mr. Groome, and that is that he would suggest that we have a ¹⁴¹ Status Conference. But I will be guided by your instructions.

JUDGE KWON: Yes. We'll have a Status Conference, taking this opportunity. But if there's any issues to raise at this moment, the Chamber would like to hear from the parties now.

--- Motion Hearing adjourned for Simatovic Status Conference]

--- On resuming Motion Hearing

[Trial Chamber and legal officer confer]

JUDGE ROBINSON: Mr. Jovanovic, we are coming to the close of your case, the hearing in respect of the accused Simatovic. Do you have any closing remarks to make, on the provisional release, of course?

MR. JOVANOVIC: [Interpretation] Yes, Your Honour, very briefly. With respect to the two witnesses heard and the information they provided us, first of all, we were able to see for ourselves that these were investigators who did not work alone. In the process of investigation, there are tasks performed by their colleagues and we had occasion to hear these witnesses saying that they are not fully informed as to what their colleagues had done. This is a system of work which is functioning perfectly, probably, with respect to the collection of information; but this supports what the Defence of the accused has been claiming, and that is only once all the relevant information have been collected and analysed, together with Defence evidence, can you, Your Honours, determine the facts beyond any reasonable doubt and proclaim someone guilty. So I feel that it is not up to the investigators of the OTP to pass such opinions. ¹⁴² Mr. O'Donnell, in his statement, which we received this morning, said something that is common knowledge, that is, who is accused and who is not by this Tribunal, for one reason or another. But I think we were given a clear explanation by the minister of justice, Mr. Stojkovic, that in some situations there may be differences from one situation to another.

Mr. Soldal, on the other hand, was very clear in saying that Mr. Simatovic was more than willing to receive the investigators in his own apartment and to cooperate with them. He was interviewed as a suspect. He didn't take the oath. He was defending himself. Now, when the information he provided were accurate, it is up to you to establish [as interpreted]. I think up to this point in time, we cannot rely on the information of the Prosecution as to what is truthful and what is not. It is quite clear that there are some facts that are contradictory, even facts in the possession of the Prosecution, and it is only with time and with the assistance of the Defence will all this be cleared up. And before all that is done, I think we cannot find facts to be established. I think the Prosecution is trying to prejudge certain things. If the accused were not to be provisionally released, this would be a way of justifying their position, and I think that is not acceptable. And I feel that the testimony of the two witnesses confirms the position of the Defence, that the accused fully cooperated. There was no evidence of any kind of threat by Mr. Franko Simatovic. Mr. Soldal mentioned some witnesses who allegedly refused to testify, but there was no evidence that he could provide. He can't remember who those witnesses are, how ¹⁴³ many witnesses, et cetera.

Therefore, it is my submission that Franko Simatovic, on the basis of what has been said by these two witnesses, have not managed to convince the Trial Chamber that Franko Simatovic will influence witnesses, victims, or any third persons, and that the submissions of the Defence have been corroborated.

Also, regarding Mr. Soldal, who watched trial by TV, that is not relevant. And in the response of the Prosecution does not clearly identify the status of that transcript. Any transcript, any statement by that witness, has not been produced on the basis of which we might be able to investigate that event, and I think this is an allegation by the Prosecution which the Chamber should not rely on. Therefore, I stand by the proposal that I made in my opening statement.

Thank you, Your Honours.

JUDGE ROBINSON: Thank you, Mr. Jovanovic. Any reply?

MR. GROOME: Yes, Your Honour. Before I begin, I think I have about five to ten minutes of remarks. Does time permit me to begin?

[Trial Chamber confers]

JUDGE ROBINSON: I think it will be in the interest of expediting the proceedings if you proceeded.

MR. GROOME: Your Honour, in October of 2002, the Appeals Chamber issued a decision denying the provisional release, the applications of Nikola Sainovic and Dragoljub Ojdanic. In paragraph 6, the judgement of the Appeals Chambers set out nine factors which it said it expected the ¹⁴⁴ Trial Chamber to consider in that case, and found that the Trial Chamber had committed an error of law in not addressing them. Recognising that the facts of each case may be somewhat different, will nonetheless construct my remarks around the nine factors set out by the Appeals Chamber.

The first two are seriousness of the charges and likelihood of long sentences. I will deal with those together.

They are firstly -- I'm sorry. As the Trial Chamber in the Brdjanin case stated, "It is a matter of common experience that the more serious the charge the greater the likely sentence if convicted and the greater reasons for not appearing at trial." I will not summarise the indictment charges or the underlying crimes. As has been pointed out by a number of Trial Chambers considering provisional release, the cases heard in this building are by mandate and by their very nature cases of a very grave nature. I think it is useful for the Chamber to consider that on the spectrum of cases running from the very grave to the even graver still, this case falls somewhere in the vicinity of one of the gravest indictments brought before a Trial Chamber.

THE INTERPRETER: Could counsel please slow down for the interpreters.

MR. GROOME: Not only by the serious and large numbers of victims by perpetrators it is alleged these men employed in their criminal plan, men such as Arkan, Legija, Lugar, and Debeli. It is the Prosecution's view that both of these men were centrally placed and responsible for ¹⁴⁵ many of the crimes that were perpetrated in Croatia and Bosnia, that the machinery and mechanisms that they personally built and supplied under the patronage and direction of Mr. Milosevic played a critical and criminal law in the excesses of the Yugoslav conflict. I am sufficiently familiar with the evidence and victims in this case that I am reasonably sure at the conclusion of a trial I would be arguing to the Chamber that if it finds the Prosecution has proven this indictment beyond reasonable doubt, I would be arguing that a maximum sentence should be imposed.

In summary, there are few indictments more serious than the one before the Chamber, on indictment which, if the Prosecution meets its burden, will likely result in a significant sentence. With respect to the circumstances under which they came into custody, this would be the third factor in the Sainovic Appeals Chamber judgement. Common sense dictates that if an accused surrendered voluntarily, once more he is likely to do so in the future, and this factor admittedly has always been an important one.

I do recognise and report to the Chamber that Mr. Simatovic did tell the investigators who were interviewing him that should he be indicted, he requested that he be informed so he could turn himself in voluntarily. What transpired after his arrest in Serbia did not give him the opportunity to demonstrate that intention. So we have no basis of knowing whether or not he would have in fact voluntarily surrendered. But I do recognise that he did explicitly state that to the investigators who spoke with him. ¹⁴⁶ The fourth factor: Guarantees of the relevant governments. One of the important evaluations a Trial Chamber must engage itself in when presented with an application for provisional release is the reliability of any guarantees presented. The Appeals Chamber in the 8th of October, 2002 decision, in the case of the Prosecutor versus Mrksic, defined the test as follows, in paragraph 9: "The reliability of a guarantee given by the relevant authority must be determined in relation to the circumstances which arise in the particular case. The issue in each particular case is what would occur if the relevant authority were obliged, under its guarantee, to arrest the accused person seeking provisional release in that case."

The Appeals Chamber went on to illustrate this point, citing an example of two hypothetical accused, one which had a bona fide intention to appear for trial, and the other which was in possession of highly important and sensitive information. And the Appeals Chamber said the following: "Accused B may have been a high-level government official at the time he is alleged to have committed the crimes charged; and he may have since then lost political influence but yet possesses very valuable information which he could disclose to the Tribunal if minded to cooperate, should he be kept in custody. There would be a substantial disincentive for that authority to enforce its guarantee to arrest that particular accused if he did not comply with the conditions of his provisional release."

Based upon the indictment and based upon the evidence that the Chamber has heard here today, I would submit that Mr. Simatovic would ¹⁴⁷ very well fit into the category of an accused B, a high-level person no longer in power, with very valuable information.

I also point out with respect to reliability of the guarantee, President Meron's letter of last week in which he stated in one of the latter paragraph of that letter quoting: "I view the report of the Prosecutor as indicating extremely serious failures on the part of Serbia and Montenegro, and the Prosecutor has satisfied me that Serbia and Montenegro is failing to comply with its obligations under Article 29 of the Statute and Rule 39 of the Rules of Procedure and Evidence. I do not question the sincerity of Minister Stojkovic in his testimony today when he said he was willing to abide by the obligation towards the Tribunal. It is the Prosecution's position, though, that the most reliable indication of whether or not these guarantees will be adhered to, if necessary, is the past track record. And as the Chamber has heard from Mr. O'Donnell -- I believe the number he gave was 16 indictees for whom information in possession of the Prosecution, that these people were in Serbia and Montenegro of -- when that information was passed on, there were no tangible results as a result of passing on that information. The fifth factor in the Sainovic Appeals Chamber judgement was the level of position held by the accused in relation to the weight accorded the guarantee. I believe I've covered that. The sixth factor was the law on cooperation. I think it's very important to note Minister Stojkovic's testimony regarding there is no council for cooperation in effect at present. There is no body to regulate cooperation. ¹⁴⁸ The seventh is the personal guarantees provided by the accused. Again, I would ask the Chamber to take them in light of my comments with respect to the first two factors.

The eighth factor is the likelihood that relevant authorities will rearrest the accused if he refuses to surrender. Throughout the jurisprudence of this Tribunal, one repeating theme or recurring theme is that this Tribunal lacks the capacity to go out and make arrests itself and it is very dependent upon the countries where the accused are living to do that.

One of the important factors that I think the Chamber should consider - and I suggest this to distinguish the cases of Plavsic and Strugar and Jokic - is that if these men, or if Mr. Simatovic, for today's purposes, was not to adhere to his obligation to return, who is it who would be sent out to arrest him? It would be people from the Ministry of the Interior, the very organisation where it is alleged that he held a very high and very influential position.

With respect to passport, in Serbia and Montenegro, it's the Ministry of the Interior that regulates those passports. Again, Mr. Simatovic had a very important position.

JUDGE ROBINSON: Mr. Groome, that was in a different era, when he held the high position in the DB.

MR. GROOME: I recognise that, Your Honour. And tomorrow when I make my comments with respect to Mr. Stanisic, I will point out that one of the things he said to the Doctor, Mr. Offermans, was Mr. Stanisic admitted that he still has very important contacts in among his old ¹⁴⁹ contacts who are from the positions he held. I would ask the Court -- suggest to the Court although Mr. Simatovic has not made a similar admission, is also still -- quite possible that Mr. Simatovic would have a considerable amount of influence. And even though he does not hold the same position, I think it's safe to say that many of the people who are his subordinates who were there when he did hold that position still are in the ministry today and still would be subject to some of the influence of Mr. Simatovic. I propose to the Court that it would be a very difficult thing for some of those people to have to go out and arrest him if that became necessary.

With respect to the agreement or their willingness to be interviewed, I will rely on the testimony and the affidavits of the two investigators, in particular with respect to Mr. Simatovic, that of Mr. Soldal, and would suggest to the Court that their eagerness to cooperate and to give statements is equally consistent with somebody who is aware that they are being investigated and gives a self-serving statement as it is with somebody who is honestly trying to report their truthful account of events as they recall them. In fact, I would suggest that given the testimony we've heard today, that the first proposition is the more likely one.

And I would conclude my remarks with respect to Mr. Simatovic there, Your Honour.

JUDGE ROBINSON: Thank you, Mr. Groome.

[Trial Chamber confers]

JUDGE ROBINSON: That concludes the hearing in respect of the ¹⁵⁰ accused Simatovic. We adjourn, and we'll resume tomorrow. Before we break, a comment on the availability of witnesses. Senior Legal Officer.

[Trial Chamber and legal officer confer]

JUDGE ROBINSON: I understand -- I think this concerns Mr. Knoops - that the minister of health, the professor, is not available; Dr. Tarabar is available; Dr. Offermans is not available. And for the Prosecution, Dr. Smalc is available, is she?

MR. GROOME: Yes, Your Honour. She arrives today.

JUDGE ROBINSON: Yes. And we are to discuss a suitable date for Dr. Boomgaard.

MR. GROOME: Yes, Your Honour.

JUDGE ROBINSON: We'll do that later. Are you aware of that -- were you aware of that position?

MR. KNOOPS: No, Your Honour, we weren't. No. But I've just confirmed that we also for the sake of time, we will waive the hearing of the minister of health. But we do like to hear Dr. Offermans, and perhaps if you have a chance to schedule him on Thursday, we would try to contact him today. Whether he is available on Thursday. I'm sure he must have a possibility this week.

JUDGE ROBINSON: Perhaps you'd like to investigate.

MR. KNOOPS: Yes.

JUDGE ROBINSON: In relation to the minister of health before waiving him.

MR. KNOOPS: Yes. But we were just informed that he already left. He checked out. So I'm expecting to -- but we will check it and ¹⁵¹ inform your Chamber about his exact location.

JUDGE ROBINSON: Yes. It's always good to carry out investigations of your own.

Mr. Groome.

MR. GROOME: Your Honour, I was just going to say, in a slightly related manner, that my comments with respect to conducting an examination in the back, of course, are the same. We do now have the English translation of the Detention Unit medical records giving the most up-to-date diagnostic information about the accused Mr. Stanisic. I would have no objection to Mr. Knoops giving his experts a copy of these documents if they want to review the medical records of people who have done recent examination of Mr. Stanisic and have recorded their observations.

JUDGE ROBINSON: The Chamber had already made a ruling on that and we expect it to be respected.

We are adjourned until tomorrow.

--- Whereupon the hearing adjourned at 2 p.m., to be reconvened on Tuesday, the 11th day of May,

2004, at 3p.m.