Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

 1                           Monday, 10 October 2011

 2                           [Initial Appearance]

 3       [Closed session]   [Confidentiality partially lifted by order of the Chamber]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.02 a.m.

 6             JUDGE FLUEGGE:  Good morning to everybody in the courtroom.

 7     Would the Registrar call the case, please.

 8             THE REGISTRAR:  Your Honour, this is case number

 9     IT-05-88/2-R77.2, the Prosecutor versus Dragomir Pecanac [Realtime

10     transcript read in error "Percanac"].  Thank you.

11             JUDGE FLUEGGE:  Thank you.

12             I am Judge Christoph Fluegge, Presiding Judge of Trial Chamber II

13     of the Tribunal, and I have been designated to hear this initial

14     appearance of Mr. Dragomir Pecanac.

15             First of all, I would like to ensure that Mr. Pecanac is

16     following the proceedings in a language he understands.

17             Mr. Pecanac, are you receiving the interpretation in your own

18     language?

19             THE ACCUSED: [Interpretation] Good morning, Your Honour.  Yes,

20     I'm receiving interpretation in the Serbian.  However, on the screen I

21     see English in front of me, so that I cannot monitor the interpretation

22     into Serbian, and also, my last name is misspelt.  His not "Percanac,"

23     but it's "Pecanac."

24             JUDGE FLUEGGE:  Thank you for this clarification.  We will come

25     to that a little bit later.  We all have only the English record in front

Page 2

 1     of us.

 2             I would like now the counsel appearing for Mr. Pecanac to

 3     introduce himself.

 4             MR. DIECKMANN:  Good morning, Your Honours.  Jens Dieckmann, from

 5     Germany, as duty counsel for the accused.  Thank you.

 6             JUDGE FLUEGGE:  Thank you ver much.  And I note the presence of

 7     the Prosecution.  Would you introduce yourself, please.

 8             MR. McCLOSKEY:  Yes.  Good morning, Mr. President.

 9     Peter McCloskey, Kweku Vanderpuye and Janet Stewart.

10             JUDGE FLUEGGE:  Thank you very much.  Now we first have to go

11     through certain formalities, Mr. Pecanac.  Can you please now state your

12     full name and date and place of birth for the record, please.  And then

13     check the spelling of your name.

14             THE ACCUSED: [Interpretation] Thank you, Your Honour.  My name is

15     Dragomir Pecanac.  I was born on the 6th of June, 1964 [Realtime

16     transcript read in error "1694"], in Sarajevo, the Socialist Federal

17     Republic of Yugoslavia.  Thank you.

18             JUDGE FLUEGGE:  Could you please repeat the date of your birth.

19     It was not properly recorded.

20             THE ACCUSED: [Interpretation] 6th of June, 1964.

21             JUDGE FLUEGGE:  The place of your birth?

22             THE ACCUSED: [Interpretation] Sarajevo.  Thank you.

23             JUDGE FLUEGGE:  It is my understanding that you were transferred

24     from Belgrade to the United Nations Detention Unit here in The Hague

25     yesterday.  Can I take it that your family is aware of your transfer to

Page 3

 1     The Hague?

 2             THE ACCUSED: [Interpretation] Thank you.  With the kindness of

 3     the staff of the Serbia MUP, I did that from the airport in Amsterdam,

 4     but I have not been able to notify them yet from the Detention Unit that

 5     I have been transferred to the Detention Unit.

 6             JUDGE FLUEGGE:  Thank you for this information.  The Registry

 7     will do what has to be done in that respect.

 8             Mr. Pecanac, do you have any issues related to your health or

 9     detention to raise with the Chamber at this point.

10             Mr. Dieckmann.

11             MR. DIECKMANN:  Your Honours, if I may, and please the Court, to

12     give a short introduction and to address these matters also, with your

13     leave.

14             JUDGE FLUEGGE:  Yes.  Please go ahead.

15             MR. DIECKMANN:  Your Honours, I was contacted by the Registry on

16     Friday, and I arrived also on Sunday and had a meeting on Sunday

17     afternoon with the accused, and we were able with the interpreter to

18     discuss all legal and factual issues at this stage of proceedings.  And

19     first of all, the accused informed me that he has already chosen a

20     counsel of his choice.  It is Tomislav Visnjic, but he was fine to talk

21     with me and to consult with me and he accepts my representation today for

22     this initial appearance.  So I'm entitled to give here declaration and

23     submissions in -- on his behalf.

24    (redacted)

25    (redacted)

Page 4











11 Page 4 redacted. Closed session.















Page 5

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14             JUDGE FLUEGGE:  Thank you very much for that.

15             Mr. Pecanac, you represented today by Mr. Dieckmann.  Are you

16     satisfied with your representation here today?

17             THE ACCUSED: [Interpretation] I am extremely satisfied, and I'm

18     thankful for his exceptionally professional attitude, for all the advice

19     he has given to me, and I very much appreciate everything that he is

20     doing in these proceedings against me.  I would like to thank him.

21             JUDGE FLUEGGE:  Thank you very much for these kind words.  Now I

22     would like to check that you have received a copy of the order in lieu of

23     indictment dated 21st of September, 2011, in your own language and that

24     you have understood its content.

25             THE ACCUSED: [Interpretation] Your Honour, I have received the

Page 6

 1     indictment, the order in lieu of the indictment, on the

 2     27th of September, 2011, at the premises of the MUP of Serbia.  I

 3     received a photocopy of the order in lieu of indictment without any kind

 4     of official stamp, and that is when I was arrested.  I responded to the

 5     first summons from the MUP of Serbia, and I received the order in lieu of

 6     the indictment and am familiar with its contents.  Thank you.

 7             JUDGE FLUEGGE:  Mr. Pecanac, now the most important question.  I

 8     would like to ask you if you are willing to testify in the Tolimir

 9     proceedings.

10             MR. DIECKMANN:  Your Honours, if I may.

11             JUDGE FLUEGGE:  Mr. Dieckmann, yes, please.

12             MR. DIECKMANN:  This is the second part of my oral submissions

13     today, Your Honour.  We discussed about his situation and the question of

14     testimony and the content proceedings.  As I mentioned in my first part

15     of my oral submissions, he has a counsel of free choice and he was not

16     able to meet him or to contact him here in The Hague, and therefore on

17     his behalf, I am in a position to declare that he is not in a position to

18     enter a plea today, that he wants to organise and to proceed on

19     assignment of his counsel of choice and wants to discuss in detail all

20     these issues with him, including the issue of his -- his testimony.  He

21     did not make up his mind up to now, and this is also one of the reasons

22    (redacted)

23    (redacted)

24    (redacted)

25    (redacted)

Page 7

 1   (redacted)

 2   (redacted)

 3     requesting to -- not to enter a plea today and give him a chance as soon

 4     as possible to meet with his counsel of choice.

 5             I'm also in a position to inform the Chamber and the parties that

 6     yesterday evening I had contact with Mr. Tomislav Visnjic, and he

 7     informed me that he is able and willing to accept the mandate and that he

 8     is able to be here in The Hague very quickly, even this week.  So that

 9     the next initial appearance could be on a very short notice.  It could be

10     done in one week or ten days even.  So there is no very much delay in

11     these proceedings.  So the position is that he does not make up his mind

12     regarding testimony today.  He wants to discuss it with his counsel of

13     choice and wants to come to the Chamber and parties in this issue in some

14     days.

15             Thank you.

16             JUDGE FLUEGGE:  Thank you, Mr. Dieckmann.  Nevertheless, I would

17     like to inform Mr. Pecanac about his position.

18             You have two alternative options.  If you would be willing to

19     testify in the Tolimir case, the Chamber is prepared, after conclusion of

20     your testimony, to drop the order in lieu of indictment and to withdraw

21     it and then you can return home immediately.

22             The other option is that you have to stay here until your

23     decision to plead guilty or not guilty, and then there may be a longer

24     procedure while you are here in the Detention Unit.  This is, in fact,

25     the alternative, and it is, of course, up to you.  It's your own

Page 8

 1     decision, with the assistance of the counsel of today present here in the

 2     courtroom or with the counsel of your own choice, but you should be aware

 3     that it's now in your hands to decide if you want to stay here longer in

 4     the Detention Unit or if you want to be set free and to return to your

 5     home.  In that case, you should consider the option to testify in the

 6     Tolimir case, which could start shortly after this initial appearance and

 7     could conclude tomorrow morning.

 8             Again, I would like to ask you and to invite you to consider your

 9     personal situation and which would be the best for you and would be in

10     your interest.

11             Mr. Pecanac.  Before you got the floor, perhaps --

12             THE ACCUSED: [Interpretation] Thank you.

13             JUDGE FLUEGGE:  Before you take the floor, I would give the floor

14     to Mr. McCloskey for the Prosecution.  He may have a position on that,

15     although he is not party of this procedure.

16             MR. McCLOSKEY:  Thank you, Mr. President, and I understand.  I

17     just wanted to offer for -- for what it's worth, I know Mr. Visnjic very

18     well.  He is a colleague.  He tried -- he represented General Krstic, and

19     I bring that up because OLAD will be looking into his potential for a

20     conflict of interest in this case, and that just further -- is a further

21     complication that may take some days to sort out.  We're considering it

22     ourselves.  Mr. Visnjic is a fine lawyer, and we have no concern there

23     whatsoever, but he did represent General Krstic.  And as for -- we

24     absolutely are -- share -- the Prosecution's concern is to have

25     Mr. Pecanac testify and that's it.  The only complication there would be

Page 9

 1     we would ask the Court to give the standard caution so that he would

 2     understand and his counsel would understand.  That is the only thing the

 3     Prosecution would be asking here.

 4             JUDGE FLUEGGE:  Mr. Pecanac, you may comment on my guidance I've

 5     given to you, but if you want first to consult counsel again, you have

 6     the opportunity for that.  It's up to you.  You may give an answer

 7     immediately or after consultation with your counsel.

 8             THE ACCUSED: [Interpretation] Thank you, Your Honour.  My

 9     position or my decision is not to plead this time for the sake of justice

10     and truth.  I'm prepared for this whole process to take longer in order

11     for me to prove my innocence of which I'm convinced, and I would kindly

12     ask you to allow me to be in contact with attorney Tomislav Visnjic,

13     after which I would make my decision how to proceed in future.

14             I would also like to inform you that never to date did I ever

15     tell anyone that I did not wish or was not willing to appear as a witness

16     in the proceedings against General Tolimir.

17             This is all that I wish to say at this point.  Thank you.

18             JUDGE FLUEGGE:  Mr. Pecanac, I think you didn't understand quite

19     clear the situation.  I'm not asking you if you are prepared to enter a

20     plea of guilty or not guilty.  This is not my question.  My question is

21     if you are willing to testify in the Tolimir case.  If you say yes, then

22     there is no need for entering any plea.  Then we just proceed and see

23     what is the situation after your testimony in the Tolimir case, and then

24     as I told you already, the Chamber would consider to withdraw the order

25     in lieu of indictment and there will be no proceeding at all against you.

Page 10

 1     But if you decide, at least for the moment, not to testify, then you have

 2     to enter a plea or we delay that for ten days, up to ten days, according

 3     to our Rules of Procedure and Evidence.  But at the moment we are only

 4     focusing on the question if you are willing to testify or not in the

 5     Tolimir case.  And again, if you wish to consult the counsel present here

 6     in the courtroom, you may do that, but it's up to you to decide.

 7             Mr. Dieckmann.

 8             MR. DIECKMANN:  Your Honour, just -- just for the record, of

 9     course yesterday afternoon we discussed about these issues, and from

10     former assignment, I'm aware of this option or these proceedings.  We are

11     very grateful that Registry and the Court Officers informed us about the

12     schedule that there is an option for him to testify if he wants, and so

13     we extensively discussed this issue, and so he -- in fact he is in a

14     position to declare his position here without further consultations.

15             Thank you.

16             JUDGE FLUEGGE:  Thank you, Mr. Dieckmann.

17             Mr. Pecanac, I'm interested to hear your position again.

18             THE ACCUSED: [Interpretation] Your Honour, at this point I'm not

19     prepared to testify in the case Prosecutor v. Tolimir, but probably I

20     would be prepared to do so after consulting with my attorney

21     Mr. Tomislav Visnjic and also after undergoing the medical tests.

22             JUDGE FLUEGGE:  I take it that you are at the moment not willing

23     to testify in the Tolimir case.  That means that this initial appearance

24     has to continue, and we will see how the outcome of this procedure

25     against you will be.  You may at any point in time consider your position

Page 11

 1     again.

 2             Mr. Pecanac, and again I would like to make sure that you are

 3     aware of the Chamber's authority to order appropriate measures for the

 4     privacy and protection of witnesses.  We have begun this hearing in

 5     private session in order to preserve this possibility for you.

 6             Do you understand that we are in closed session the whole morning

 7     up to now, that if you were to testify, the Chamber would consider an

 8     application for measures for your privacy and protection?

 9             What is the position in relation to protective measures?

10             THE ACCUSED: [Interpretation] Your Honour, I have been informed

11     by my counsel that this session would be closed to the public.  However,

12     I would like to inform you that I don't have any problems, that anything,

13     any information or anything that is discussed in the hearings is made

14     public.  I don't have any reasons for confidentiality, and what I have to

15     say anyway would be something that I would state in the proceedings

16     Prosecutor v. Tolimir in open session.

17             JUDGE FLUEGGE:  Thank you.

18             Mr. McCloskey, are there -- what is the position of the

19     Prosecution in relation to possible protective measures?

20             MR. McCLOSKEY:  We have no objection to this being open, as he's

21     suggesting.  I can't think of any reason for any protective measures at

22     this point, especially given the response of Mr. Pecanac.

23             JUDGE FLUEGGE:  Thank you.

24             If that is the case, we turn into open session.

25                           [Open session]

Page 12

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

 2                           [Trial Chamber and Legal Officer confer]

 3             JUDGE FLUEGGE:  Mr. Pecanac, we are now in open session.

 4     Everything what is said in court will be available for the public not

 5     only here in the public gallery but also on the internet.  We were in

 6     private session earlier today due to the confidential nature of the

 7     filings in this case and to preserve the possibility that you,

 8     Mr. Pecanac, would testify in the Tolimir case with protective measures.

 9     As this is not the case, no submission was made in this respect, I will

10     just briefly state for the record that while in private session, I

11     confirmed with you your full name and date of birth, that you are

12     receiving the proceedings in a language you understand, that you were

13     transferred to the Detention Unit of the United Nations yesterday, on the

14     9th of October, 2011, the state of your health and detention, and that

15     you have received the order in lieu of an indictment and that you have

16     understood its contents.

17             Now you have the right, you're entitled to have the order in lieu

18     of indictment read out to you in court today, but you may choose to

19     dispense with that.  Do you -- do you wish it to be read out now, or do

20     you waive that right, Mr. Pecanac?

21             THE ACCUSED: [Interpretation] Thank you, Your Honour.  I've read

22     the order many times, believe me, so I don't think it's necessary to have

23     it read out to me again.  Thank you.

24             JUDGE FLUEGGE:  Thank you.  I take it that you waived your right.

25             Now, pursuant to Rule 62(A)(3) of our Rules of Procedure and

Page 13

 1     Evidence you can enter a plea to the charge of contempt set out in the

 2     order in lieu of indictment today if you so choose, or as you indicated

 3     earlier, you can decide to postpone your plea for a period up to ten days

 4     in accordance with Rule 77(E) of our Rules of Procedure and Evidence.

 5             I take it that you discussed this matter with your counsel, but I

 6     would like to ask you again to put your answer on the record.  How do you

 7     wish to proceed, to enter a plea or to postpone this?

 8             THE ACCUSED: [Interpretation] Your Honour, I shall postpone my

 9     plea for the next ten days.  Thank you.

10             JUDGE FLUEGGE:  Mr. Pecanac, it is clearly in your interest to

11     have this matter resolved as quickly as possible.  However, I would like

12     to ask you how much time do you think you will need to consider your

13     plea, bearing in mind that you have up to ten days, as well as the nature

14     of the charge against you.

15             THE ACCUSED: [Interpretation] Your Honour, after my first meeting

16     with attorney Tomislav Visnjic, I will decide immediately.  It's a

17     technical matter.  If I could have a meeting with him today, I would be

18     able to decide already today.  It all depends on when he comes.  After I

19     meet him for the first time, my decision will be ready.  I believe

20     Mr. Tomislav Visnjic will be here at The Hague Tribunal tomorrow or the

21     day after tomorrow.

22             JUDGE FLUEGGE:  Thank you.  Mr. Pecanac, you have heard the

23     comment of Mr. McCloskey and the Prosecutor about a possible conflict of

24     interest as counsel has worked for another accused in our Tribunal.  This

25     is the question the Registry has to decide.

Page 14

 1             Are there any other matters to discuss during the initial

 2     appearance of today?

 3             Mr. Pecanac.

 4             THE ACCUSED: [Interpretation] Thank you, Your Honour.

 5             First of all, I wish to say that I have never become familiar

 6     with the issues on which I would have to testify in the case of

 7     General Tolimir, and as Prosecutor, Mr. McCloskey, probably knows, there

 8     will probably be no conflict of interest.  General Krstic and

 9     General Tolimir are two very different things.  I believe there will be

10     no conflict of interest, and I believe Mr. Tomislav Visnjic will be

11     approved by the Registry or whatever other competent service.  As far as

12     I know, there are not many points of contact between General Tolimir and

13     General Krstic on issues that I assume I would have to testify on in the

14     Tolimir case.

15             Thank you.

16             JUDGE FLUEGGE:  Mr. McCloskey.

17             MR. McCLOSKEY:  Yes, Mr. President.  I will look forward should

18     OLAD decide, the Registry decide to appoint Mr. Visnjic to speak to him,

19     but I also wanted Mr. Pecanac to know that should he have any questions

20     of us at this time after court, we're certainly ready to meet with him

21     and his lawyer, answer any of his questions and that -- that we can and

22     try to help this -- this matter along so he can get back to Belgrade as

23     soon as possible.

24             JUDGE FLUEGGE:  Mr. Pecanac, the Tolimir case is scheduled for

25     10.30 this morning.  Probably -- probably we will not be able to start at

Page 15

 1     10.30, but at 11.00.

 2             I would invite you and ask you to be present at 11.00 in the

 3     Tolimir case.  Up to that point in time, you may still have the

 4     opportunity to decide to testify or not to testify.  It's still your

 5     decision.

 6             In the meantime, you may consult Mr. Dieckmann, you may have

 7     contact with the Prosecution, it's up to you, but this is in fact a last

 8     chance for you to decide to testify or not to testify.  Therefore, we

 9     will have the Tolimir case commencing at 11.00 in your presence, and then

10     I will ask you again.

11             Furthermore, a further initial appearance will be scheduled after

12     consultation with the Registry if there is a need for that.  Meanwhile,

13     you will remain in custody at the United Nations Detention Unit, and your

14     counsel can inform you of any further information governing your

15     detention.

16             This concludes the initial appearance.  We adjourn.

17                           --- Whereupon the Initial Appearance adjourned

18                           at 9.37 a.m. sine die