Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 19 October 2011

 2                           [Further Initial Appearance]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.01 a.m.

 6             JUDGE FLUEGGE:  Good morning to --

 7                           [B/C/S on English channel]

 8             JUDGE FLUEGGE:  I receive the B/C/S version in the English

 9     channel, but I hope it will be changed.

10             Good morning to everybody in the courtroom and to those who are

11     following these procedures.  Would the Registrar please call the case.

12             THE REGISTRAR:  Your Honour, This is case number

13     IT-05-88/2-R77.2, contempt case of Dragomir Pecanac.  Thank you.

14             JUDGE FLUEGGE:  Thank you.  Now could I have the appearances,

15     first the Defence.

16             MR. DIECKMANN:  A very good morning, Your Honour and everybody in

17     the courtroom.  This is Jens Dieckmann, from Germany, as duty counsel for

18     the accused.  Thank you.

19             JUDGE FLUEGGE:  Thank you very much.  And I note for the record

20     that Mr. Pecanac is present in the courtroom as well.

21             Although the Prosecution is not party of these proceedings, I

22     would like to ask you for your appearance.

23             MR. McCLOSKEY:  Yes, a good morning, Mr. President.

24     Peter McCloskey, Kweku Vanderpuye, and Aniko Boldog for the Prosecution.

25             JUDGE FLUEGGE:  Thank you.

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 1             Mr. Pecanac, during the Initial Appearance on the 10th of October

 2     of this year, you did not enter a plea on the matter with which you have

 3     been charged in the order in lieu of indictment.  Instead you chose to

 4     defer your plea as provided for by the rules.  It is for this purpose

 5     that the Chamber has scheduled this -- today's hearing.  The order in

 6     lieu of indictment stated that you are being prosecuted for contempt of

 7     the grounds that having been informed on the 2nd of September, 2011, of

 8     the contents of a subpoena ad testificandum dated 31st of August, 2011,

 9     and of your obligation to appear before the Chamber, you obstructed all

10     attempts by the VWS, that is, the Victims and Witnesses Section, of the

11     Tribunal to implement the decision of safe conduct and make arrangements

12     for your travel to The Hague, thereby failing to appear before the

13     Chamber as ordered or to show good cause why you could not comply with

14     the subpoena, and therefore knowingly and willfully interfering with the

15     administration of justice by refusing to comply with the subpoena.

16             I should add that at your Initial Appearance on the

17     10th of October you indicated that you did not then consider that you

18     were in a position to testify in the case of Prosecutor versus

19     Zdravko Tolimir.  At the hearing in the Tolimir case on the same day, you

20     were again asked to testify, but you were not willing to do so.  You said

21     that you would make your decision to testify after you had had certain

22     medical examinations and after consulting attorney Mr. Tomislav Visnjic.

23             Mr. Pecanac, you will recall that at the Initial Appearance you

24     waived your right to have the indictment read to you, or, I should say,

25     the order in lieu of indictment read to you.


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 1             Now, Mr. Pecanac, please rise.

 2                           [The accused stands up]

 3             MR. DIECKMANN:  Your Honours.

 4             JUDGE FLUEGGE:  Mr. Pecanac, sit down, please, again.

 5                           [The accused sits down]

 6             JUDGE FLUEGGE:  Yes, Mr. Dieckmann has the floor.

 7             MR. DIECKMANN:  Your Honours, with your leave, I will be in a

 8     position to make a declaration regarding the plea today.  But before --

 9     before this, I kindly request to go in closed session because on behalf

10     of the accused I would like to make some oral submissions on some issues

11     that demand, due to my humble opinion, a closed session.

12             JUDGE FLUEGGE:  I think you are referring to a private session.

13             MR. DIECKMANN:  I'm sorry, private session.  Thank you.

14             JUDGE FLUEGGE:  We are turning into private session.

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

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11 Pages 19-22 redacted. Private session.
















Page 23

 1                           [Open session]

 2             JUDGE FLUEGGE:  Mr. Dieckmann.

 3             MR. DIECKMANN:  Your Honour --

 4             THE REGISTRAR:  Hold on, please.  We are back in open session,

 5     Your Honours.  Thank you.

 6             JUDGE FLUEGGE:  Mr. Dieckmann.

 7             MR. DIECKMANN:  With regard to the question of Your Honour

 8     regarding the plea and the reading of the indictment, I can declare on

 9     behalf of the accused that he still waives his right to get the

10     indictment read in fully and, secondly, that he enters the plea of not

11     guilty.

12             JUDGE FLUEGGE:  Thank you very much.  First I would like to ask

13     the Prosecution if they have to say anything in this regard, what we have

14     heard in private session.

15             MR. McCLOSKEY:  Just briefly.  I see nothing wrong with any of

16     the fairness of the proceedings.  These medical matters are, I think, I

17     thought you'd said last time, are in the hands of the UN Detention Unit,

18     and sometimes OLAD makes mistakes and doesn't hand everything out, it

19     happens to all of us, but I don't see any other real issues here.

20             JUDGE FLUEGGE:  Thank you.

21             First of all, Mr. Dieckmann, I note and can confirm that we

22     received yesterday at around 7.00 in the evening a courtesy copy of your

23     submission which will be filed today, I assume.  I've read it carefully

24     and you repeated the main arguments in private session.

25             I hereby order the Registry to provide the Chamber with a

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 1     Rule 33 (B) submission by tomorrow end of business.

 2             Regarding the points you have raised again, this is, the medical

 3     examination and the circumstances you raised and you put on the record,

 4     the isolation in the Detention Unit and the question why the dissenting

 5     opinion was not handed out to the accused together with the other

 6     information and not to you, the Chamber was informed about this omission

 7     by the Registry yesterday or the day before yesterday by an e-mail.  I

 8     would just like to put that on the record too.  And the Chamber will take

 9     the necessary steps with regards to the -- these concerns you have raised

10     on behalf of your client.

11             I think, and I hope, that this satisfies duty counsel and the

12     accused in this proceedings and we can carry on.

13             Mr. Dieckmann.

14             MR. DIECKMANN:  Thank you very much, Your Honour.  It satisfies

15     indeed.  Thank you very much.

16             JUDGE FLUEGGE:  To follow the normal procedure, although we have

17     heard how Mr. Pecanac would plead, I would like to ask you, Mr. Pecanac,

18     to rise.

19                           [The accused stands up]

20             JUDGE FLUEGGE:  Mr. Pecanac, you are charged with contempt of

21     court under Rule 77 of the Tribunal's Rules of Procedure and Evidence.

22     How do you plead?

23             THE ACCUSED: [Interpretation] I'm not guilty, Your Honour.

24             JUDGE FLUEGGE:  Thank you very much.  I would like to ask the

25     Registrar to record your plea of not guilty.

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 1             Please be seated, Mr. Pecanac.

 2                           [The accused sits down]

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

 4             JUDGE FLUEGGE:  Mr. Pecanac, given the plea of not guilty, this

 5     means that there will be a trial, which should be a short hearing of no

 6     more than one or two days, following which the Chamber will issue its

 7     judgement.  At the trial, you will be entitled to call witnesses and you

 8     may choose to testify, yourself.  This is all for you to discuss with

 9     your counsel, whoever that is.  You should be aware, however, that in

10     light of the fact that you are charged as a result of failing to appear

11     to testify in the Tolimir proceedings, following a subpoena issued by the

12     Tolimir Chamber for you to do so, it is the Tolimir Chamber that is

13     conducting the trial proceedings in relation to this contempt matter.

14             Pursuant to Rule 77(D)(ii) of the Tribunal's Rules of Procedure

15     and Evidence, the Tolimir Chamber has decided to prosecute the charge of

16     contempt set out in the order in lieu of indictment itself.

17             I would, therefore, like to ask you, through your counsel, how

18     long you consider you will need to prepare for this trial?

19             Mr. Dieckmann.

20             MR. DIECKMANN:  Your Honour, well, in fact, it's difficult for me

21     to -- to respond to this question because, as you are aware, the

22     assignment proceeding of Tomislav Visnjic is still in process and so in

23     the moment we are not in a position to give any indication, but I'm quite

24     sure that in the case that Mr. Visnjic will be assigned, he will respond

25     to Chamber as soon as possible.

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 1             JUDGE FLUEGGE:  Thank you very much.

 2             A date for the hearing will be scheduled in due course.

 3     Meanwhile, you will remain in custody at the United Nations

 4     Detention Unit, the UNDU, and your counsel can inform you of any further

 5     information governing your detention.  I should like to deal with some

 6     more immediate issues related to procedure.

 7             Rule 77(E) provides that the Rules of Procedure and Evidence in

 8     parts 4 to 8 shall apply mutatis mutandis to proceedings under Rule 77,

 9     and the time-limit for disclosure pursuant to Rule 66(A)(ii) shall not

10     exceed ten days.

11             Rule 66(A)(i) provides for the disclosure of copies of the

12     supporting material which accompanied the indictment when confirmation

13     was sought as well as all prior statements obtained by the Prosecutor

14     from the accused.  In this instance of contempt there is strictly no

15     indictment, but an order in lieu of indictment, and the Chamber is

16     prosecuting the contempt itself.

17             In these circumstances, applying Rule 66(A)(i) mutatis mutandis

18     to these contempt proceedings and subject to the time-limit set forth

19     under Rule 77(E), I hereby order that the Registry shall provide the

20     Defence with the documents referred to in the order in lieu of indictment

21     in a language that the accused understands within ten days of this

22     hearing.  These documents are:  The subpoena ad testificandum for

23     Dragomir Pecanac, filed confidentially on 31st of August, 2011.  Further,

24     the order of the Government of Serbia concerning subpoena, also filed

25     confidentially on the 31st of August, 2011.  Third, the Prosecution's

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 1     application for an Order in Lieu of Indictment, a warrant for arrest, and

 2     order for surrender of Dragomir Pecanac, filed confidentially on

 3     15th of September, 2011, which includes, as its appendices, the

 4     memorandum of service of the subpoena for Mr. Pecanac dated

 5     9 September 2011, and an internal memorandum prepared by the

 6     Victims and Witnesses Section of this Tribunal and the

 7     30th of September, 2011, regarding its contact with Mr. Pecanac.

 8             I further order that the Registry shall inform the Chamber when

 9     it has completed the disclosure of these documents to the accused.

10             Now, Mr. McCloskey, does the Prosecution have any submissions to

11     make regarding the disclosure to the accused?

12             MR. McCLOSKEY:  No, Mr. President.  If we can be of any help, we,

13     of course, will be.

14             JUDGE FLUEGGE:  Thank you.

15             Then, pursuant to Rule 77(E) in conjunction with Rule 72(A), the

16     Defence may file preliminary motions no later than ten days after the

17     disclosure of these documents.

18             Then, I would first like to ask the Prosecution whether there is

19     any matter he would like to raise at this moment in this proceeding.

20             Mr. McCloskey.

21             MR. McCLOSKEY:  No, Mr. President.

22             JUDGE FLUEGGE:  Thank you.

23             Mr. Pecanac or Mr. Dieckmann, do you have any other matters which

24     you wish to raise at this point in time?

25             You may be seated, Mr. Pecanac.

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 1                           [The accused sits down]

 2             MR. DIECKMANN:  Thank you very much, Your Honours.  No further

 3     remarks in the moment.  Thank you very much.

 4             JUDGE FLUEGGE:  This now concludes the Initial Appearance.  The

 5     proceedings are adjourned until a further date to be scheduled with the

 6     Registry.  This will be communicated to the parties in due course.

 7             We adjourn.

 8                           --- Whereupon the Further Initial Appearance

 9                           adjourned at 9.27 a.m. sine die