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
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
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
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
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.
11 Page 4 redacted. Closed session.
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
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
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
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
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
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
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.
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
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]
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
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.
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
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
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
16 This concludes the initial appearance. We adjourn.
17 --- Whereupon the Initial Appearance adjourned
18 at 9.37 a.m. sine die