Tribunal Criminal Tribunal for the Former Yugoslavia

Page 550

1 Wednesday, 21 May 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 11.01 a.m.

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

7 THE REGISTRAR: Good morning. Case number IT-02-60-T, the

8 Prosecutor versus Dragan Obrenovic.

9 JUDGE LIU: Thank you very much.

10 May we have the appearances, please, for the Prosecution.

11 MR. McCLOSKEY: Good morning, Mr. President, Your Honours. Peter

12 McCloskey. And with me today is Janet Stewart, Stacy de la Torre, Stefan

13 Waespi, and Anne Davis.

14 JUDGE LIU: Thank you very much.

15 For the accused?

16 MR. WILSON: Good morning, Mr. President, members of the Court. I

17 am David Wilson. Seated with me today is Mr. Dusan Slijepcevic,

18 co-counsel. We are the attorneys for Mr. Obrenovic in this matter.

19 JUDGE LIU: Thank you very much.

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

21 understand?

22 THE ACCUSED OBRENOVIC: [Interpretation] Your Honour, I can hear

23 and understand everything that's being said in the courtroom.

24 JUDGE LIU: Did you get interpretation? Oh, I'm sorry. Thank you

25 very much. You may sit down, please.

Page 551

1 Well, good morning, ladies and gentlemen. The Trial Chamber is

2 seized with a joint motion for consideration of plea agreement between

3 Dragan Obrenovic and the Office of the Prosecutor. This motion was filed

4 jointly by the counsel for Mr. Obrenovic and the Prosecution on the 20th

5 of May, 2003. According to the plea agreement attached to the joint

6 motion, the accused Obrenovic agrees to plead guilty to count 5 of the

7 amended joint indictment dated 27th May 2002 as a crime against humanity

8 punishable under Article 5(H) of the Statute of the Tribunal.

9 The plea agreement contains provisions reflecting the

10 understanding of the accused Obrenovic as to the nature of count 5,

11 including legal elements of persecution as a crime against humanity, and

12 the factual basis agreed upon as a base -- as a basis for his guilty plea

13 to this count.

14 The plea agreement also recommends a range of sentences based on

15 an understanding that such recommendation is not binding on the Trial

16 Chamber. The Office of the Prosecutor agrees to move to dismiss the

17 remaining charges against Dragan Obrenovic set out in the indictment at

18 the time of the acceptance of the plea by the Trial Chamber without

19 prejudice to either party.

20 The Trial Chamber has observed that the plea agreement has also

21 been in B/C/S language, which the accused Obrenovic understands, and is

22 attached to the joint motion.

23 The Trial Chamber also looked at the provisions of the relevant

24 Rules, in particular Rule 62 bis and Rule 62 ter. We'll proceed in

25 accordance with these Rules.

Page 552

1 Since we just got the agreement yesterday, maybe first of all I

2 would like to invite the parties to brief us on the contents of the plea

3 agreement.

4 Mr. McCloskey.

5 MR. McCLOSKEY: Thank you, Mr. President. Initially, I'd like to

6 point out the timing of this agreement, which is always an important

7 factor when the Prosecution considers the benefit to the Prosecution and

8 to the victims. And in this case, it was communicated to the Prosecution

9 that Mr. Obrenovic had taken responsibility for his actions, as pointed

10 out in count 5, prior to the start of the trial, after the plea of Momir

11 Nikolic but prior to the start of the trial. And we were able to after

12 that initial acknowledgment reach the plea agreement that you see today.

13 So the Prosecutor would like this plea agreement to be considered a

14 pre-trial agreement as for timing purposes.

15 For the actual plea agreement, it -- basically, Mr. Obrenovic is

16 admitting to count 5 of the indictment, crime against humanity,

17 persecutions, which includes the murders and the various other allegations

18 laid out in the indictment. And we are -- we will be dismissing the other

19 counts.

20 The Prosecution will be recommending, pursuant to Mr. Obrenovic's

21 continued cooperation, that a sentence of 15 to 20 years is the

22 appropriate sentence. And Mr. Obrenovic has promised to testify

23 truthfully at any trial related to Srebrenica 1995 that he has evidence

24 on, as requested by the Prosecution.

25 These are the fundamental points of the plea agreement, and I am

Page 553

1 confident, as I'm sure Mr. Wilson and Mr. Obrenovic are, that this was

2 done carefully and freely and voluntarily. Thank you.

3 JUDGE LIU: Any comments, anything to add on the part of the

4 Defence team? Mr. Wilson.

5 MR. WILSON: Yes, Mr. President, members of the panel. First I

6 would say that Mr. McCloskey's general outline of the plea agreement is

7 accurate and it does set forth the most important and most central

8 portions of the plea agreement. Mr. Slijepcevic and I would like to say

9 that we have been Mr. Obrenovic's attorneys for two years. We have

10 reviewed all of the discovery materials, hundreds of thousands of pages

11 provided us by the Prosecution. We have visited the alleged crime scenes

12 that are set out in the indictment. We have conducted our own

13 investigation. We have interviewed dozens of witnesses. We have

14 thoroughly studied the jurisprudence of the Tribunal as it applies to

15 these charges. We have spent hundreds of hours in conference with

16 Mr. Obrenovic about this case. We have spent dozens of hours in

17 conference with Mr. Obrenovic about the subject of this plea agreement.

18 We have thoroughly discussed his options of going to trial or pleading

19 guilty. We have answered all of his questions to the best of our ability

20 and we believe that he has understood our answers and that he is fully

21 informed about the nature of the process that he has begun today. We have

22 always told him that the decision must be his alone and that we would

23 support him as to either option he chose. He is aware that we were

24 prepared to go forward with trial, present an active defence. He is also

25 aware that we would continue to support him in satisfying his obligations

Page 554

1 under this agreement and in representing him through the conclusions of

2 these proceedings as they relate to him.

3 It is in this context that he is entering his plea of guilty

4 today, and it's because of this context that we respect his decision as

5 being one which was arrived at voluntarily on his part, with the advice of

6 counsel, and after thorough discussions and considerations of all the

7 factors that he should have considered. And it is for this reason that we

8 are satisfied in our own minds that Mr. Obrenovic's actions today are

9 voluntary, that he is well informed, and that he understands what is going

10 on.

11 If the Court has any other questions, we will be happy to answer

12 them. Thank you.

13 JUDGE LIU: Thank you very much. Well, I think the Judges will

14 have some questions to ask.

15 [Trial Chamber confers]

16 JUDGE VASSYLENKO: My question to both parties: Why a sentencing

17 range of the plea agreement of Nikolic and this plea agreement are the

18 same?

19 MR. McCLOSKEY: Your Honour, the -- there are certain factors that

20 we took into account. One of the primary factors was the timing of the --

21 of the plea. Both persons pled before trial. And we viewed a captain,

22 Mr. Nikolic, as a security officer who was a security officer by choice,

23 who was charged with genocide. And we looked at Mr. Obrenovic as a chief

24 of staff deputy commander who was not charged with genocide. And while

25 it's my view that a commander bears more responsibility than a staff

Page 555

1 officer, we also viewed this as a person that was only temporarily in

2 command and whose commander should bear the brunt -- not the brunt but a

3 significant part of the command responsibility for these atrocious crimes,

4 and that we believe that 15 to 20 years in the context of European law and

5 the law of Yugoslavia is a significant sentence and that the victims of

6 this crime, those that I have been speaking to on the telephone that are

7 afraid to come in, that don't want to come in but will come in, are -- are

8 benefitted by this. And the Prosecution is also benefitted by hearing the

9 truthful account of Mr. Obrenovic, which we believe we have provided

10 before you, where he has admitted taking responsibility, military

11 responsibility for accepting the murder operation of thousands. And we

12 believe that -- that 15 to 20 years is fair, in terms of a range.

13 Now, we're talking ranges for both of them, and we believe that is

14 fair and it is within the general framework of the discussions that have

15 been ongoing with both parties.

16 JUDGE VASSYLENKO: In para 4 of the plea agreement, in (a), part

17 (a), it is said that the accused will make his sentencing recommendation

18 upon the filing of this -- of his pre-sentence memorandum. What does it

19 mean?

20 MR. McCLOSKEY: Well, Your Honour, you have noticed from the

21 Nikolic plea that the Nikolic Defence chose to make their recommendation

22 of ten years in the plea agreement. That was their recommendation. That

23 was not the Prosecution's recommendation. That was the Nikolic

24 recommendation. And this -- Mr. Obrenovic and his Defence counsel chose

25 to make this particular statement and retain the right to provide you

Page 556

1 their recommendations at a later date. And from that point I will turn

2 over anything further to Mr. Wilson.

3 MR. WILSON: Your Honour, Mr. McCloskey accurately states our

4 request. We stated to him that we would prefer to retain the right to

5 make a recommendation to you with our sentencing memorandum. We would

6 like to see how events progress. There is a great deal of work to be done

7 before sentencing is reached in this case, and we felt that it was not

8 necessary or appropriate for us at this time to indicate what our

9 sentencing recommendation would be. We, of course, understand that that

10 would be our recommendation and the Court is free to proceed as it sees

11 fit. But from our standpoint, we did not want to make a recommendation at

12 this point. Mr. Nikolic chose different. We respect his reasons, but our

13 thinking on it was different.

14 [Trial Chamber confers]

15 JUDGE LIU: Well, to my understanding, that at least paragraph 14

16 will be a kind of agreement between the parties. Am I right? I think

17 that's the minimum agreement between the parties concerning with the

18 sentence issues.

19 MR. WILSON: Paragraph 14, we believe, does clearly state the

20 agreement of the parties, Your Honour, and Mr. Obrenovic understands that.

21 That's our understanding of what we're doing today.

22 JUDGE LIU: Thank you very much.

23 Yes, Mr. McCloskey.

24 MR. McCLOSKEY: Yes. We have gone over each of these paragraphs,

25 and both sides fully agree and support them.

Page 557

1 JUDGE LIU: Concerning with paragraph 5, which maybe involved the

2 amendment of the indictment in the future, and it's also related to other

3 co-accused in this case, Mr. McCloskey, are you going to file another

4 application for the third amended indictment, and when are you going to do

5 that?

6 MR. McCLOSKEY: Yes, we are, Mr. President. As this agreement

7 basically voids the filing of the -- of the indictment that didn't have

8 Mr. Nikolic on it, we will endeavour to as soon as possible file another

9 indictment that incorporates these few changes and does not have

10 Mr. Nikolic or Mr. Obrenovic on it. Of course, depending on your

11 acceptance of -- of this -- of this plea.

12 JUDGE LIU: Well, the purpose for that is to give the opportunity

13 for other co-accused, the opportunity to -- to make their response if they

14 believe that certain amendments in that indictment related to their crime.

15 MR. McCLOSKEY: Absolutely, and we are in the process and have a

16 draft of that new indictment, and it shouldn't be long in coming. We'll

17 be able to give you a more detailed view when that will come. We're --

18 we're working on our adjudicated facts motion and other motions as well,

19 but it -- this new indictment should come in very soon. I would hope

20 before the end of this week.

21 JUDGE LIU: Thank you very much.

22 On the paragraph 9, you mentioned proffer agreement, and we have

23 not seen any filing of those proffer agreement. Could I know what's the

24 exact meaning of this proffer agreement? Is this same with that filed in

25 the Nikolic case, or is it a general statement of facts or terms of the

Page 558

1 future statement?

2 MR. McCLOSKEY: Mr. President, yesterday - and you haven't

3 obviously received it yet - we did file the proffer agreement as we had in

4 Nikolic to be consistent, so that you would see that it's basically the

5 same procedures are in place here. It's basically the same agreement.

6 And we just chose at this -- in this agreement to put it in the agreement

7 so that it was clear to -- to the parties and the Court what precisely

8 occurred.

9 JUDGE LIU: Thank you very much. I just got it.

10 Well, it seems to me that the Judges have exhausted their

11 questions.

12 Could I now address to the accused, Mr. Obrenovic, at this stage.

13 Mr. Obrenovic, the Trial Chamber would like to find out from you whether

14 you understand the details of this plea agreement you entered into with

15 the Prosecution.

16 THE ACCUSED OBRENOVIC: [Interpretation] Your Honours, I fully

17 understand. I have discussed and studied this with my Defence team, and I

18 have a full understanding of what is stated therein.

19 JUDGE LIU: And this Trial Chamber would like also to find out

20 from you when entering into this plea agreement, you understand that the

21 Trial Chamber is not bound to accept the range of sentence agreed by

22 yourself and the Prosecution.

23 THE ACCUSED OBRENOVIC: [Interpretation] Your Honours, I do

24 understand that.

25 JUDGE LIU: And we also would like to ask you whether you fully

Page 559

1 discussed with your counsel the plea agreement and he advised you of the

2 consequences of pleading guilty to count 5, that is, persecution.

3 THE ACCUSED OBRENOVIC: [Interpretation] Yes, Your Honour.

4 JUDGE LIU: This Trial Chamber would like to know whether you are

5 threatened or coerced in any way to make this agreement. Was it entirely

6 made by you voluntarily?

7 THE ACCUSED OBRENOVIC: [Interpretation] Your Honours, I was never

8 threatened or coerced. This is entirely of my own free will.

9 JUDGE LIU: Thank you very much.

10 At this stage I would like to have Madam Registrar to read

11 paragraph 59 of the indictment, that is, the contents of the persecutions.

12 THE REGISTRAR: "As described in this Amended Joinder Indictment,

13 the crime of persecutions was perpetrated, executed, and carried out by

14 and through the following means:

15 a) the murder of thousands of Bosnian Muslim civilians, including

16 men, women, children, and elderly persons;

17 b) the cruel and inhumane treatment of Bosnian Muslim civilians,

18 including severe beatings at Potocari and in detention facilities in

19 Bratunac and Zvornik;

20 c) the terrorising of Bosnian Muslim civilians in Srebrenica and

21 at Potocari;

22 d) the destruction of personal property and effects belonging to

23 the Bosnian Muslims; and

24 e) the forcible transfer of Bosnian Muslims from the Srebrenica

25 enclave.

Page 560

1 JUDGE LIU: Thank you. The Trial Chamber would like to put the

2 count to you so that you can plea as advised and according to your own

3 free will, that is, count 5 of the charges, as detailed in the plea

4 agreement. How do you plea to count 5 of the amended indictment, charging

5 you with persecution as a crime against humanity; guilty or not guilty?

6 THE ACCUSED OBRENOVIC: [Interpretation] Your Honours, my plea is

7 guilty.

8 JUDGE LIU: Very well. The Trial Chamber records the plea of

9 guilty or count 5, persecution, by the accused.

10 You may sit down, please.

11 The Trial Chamber has considered the particulars of the facts in

12 the plea agreement and is satisfied that they do form sufficient factual

13 basis for finding the accused guilty on this count, and therefore makes a

14 finding of guilty and enters the conviction for count 5, persecution,

15 against the accused, Mr. Obrenovic. We also accept the plea agreement

16 with the understanding that the Prosecutor will move to dismiss without

17 prejudice to either party the remaining charges against Dragan Obrenovic

18 set out in the indictment.

19 The Trial Chamber will issue orders relating further proceedings

20 in due course.

21 Now we would like to move to the next stage, about possible date

22 for hearing of sentencing and would like to find out from both parties how

23 they intend to make their submissions on sentencing and when.

24 Mr. McCloskey.

25 MR. McCLOSKEY: Mr. President, ideally we'd do this jointly with

Page 561

1 the Nikolic sentencing, just for efficiency and the time frames that you

2 have set out and that are workable for the Prosecution. But we would not

3 object if the Defence needs some more time in that regard. We're -- we're

4 very open to the Court and counsel on this point.

5 JUDGE LIU: Could I hear the response from Mr. Wilson.

6 MR. WILSON: Your Honour, we are also quite flexible, if the Court

7 decides to do those sentencings at the same time, we of course will

8 prepare for it on whatever schedule the Court sets.

9 There's a question in my mind and perhaps Mr. McCloskey knows at

10 this time or perhaps he doesn't, as to when these two individuals would be

11 ready for sentencing, that is, when they will have testified or be ready

12 to go forward, whether the two defendants will be testifying near to each

13 other in the stage of the trial or whether we are talking about different

14 periods of time. So we are quite flexible for whatever time the Court

15 sets.

16 JUDGE LIU: Well, maybe Mr. McCloskey could shed some light on

17 this issue.

18 MR. McCLOSKEY: Mr. President, I would still like to have

19 Mr. Nikolic and Mr. Obrenovic testify before the summer break. I'm hoping

20 that's realistic. As you can imagine, we're in the process of reassessing

21 our case, our 92 bis motions, our -- our factual motions regarding

22 adjudicated facts. And I would like to get this done prior to the summer

23 break, and I think I can do it.

24 JUDGE LIU: Thank you very much.

25 The Trial Chamber are take into consideration the views expressed

Page 562

1 by both parties and issue a scheduling order on matters for further

2 hearing in this procedure.

3 I think that's all. We are adjourned.

4 --- Whereupon the Motion Hearing adjourned

5 at 11.28 a.m.