1 Thursday, 18th March, 1999
2 (Status Conference)
3 (Open session)
4 --- Upon commencing at 9.23 a.m.
5 JUDGE JORDA: (Interpretation) Please be
7 Mr. Registrar, would you tell us the number
8 of this case, and be sure that the accused is present
9 here in the courtroom.
10 THE REGISTRAR: This is IT-95-10-T.
11 JUDGE JORDA: (Interpretation) Thank you.
12 Have the accused brought in, please.
13 (The accused entered court)
14 JUDGE JORDA: (Interpretation) I would like to
15 have the representatives of the two parties, please.
16 Good morning, of course, to the interpreters. I assume
17 that they can hear me. Good morning.
18 First of all, good morning to Prosecution
19 counsel. Perhaps you could give us the appearances,
20 even though we know who you are.
21 MR. NICE: Geoffrey Nice and Vladimir
22 Tochilovsky for the Prosecution.
23 JUDGE JORDA: (Interpretation) Counsel for the
24 Defence, please?
25 MR. LONDROVIC: (Interpretation) For the
1 accused, Your Honours, Veselin Londrovic and my learned
2 colleague, Michael Greaves.
3 JUDGE JORDA: (Interpretation) All right.
4 Good morning to the accused as well who is now in the
6 We are meeting today in our public Status
7 Conference to discuss the schedule for the Jelisic case
8 in the light of certain events, including the fact that
9 Judge Riad is not available, and also to set up a
11 We can begin our discussion immediately. I
12 have provided a draft order in which we thought that it
13 might be good in order to deal with several of the
14 events which have affected the composition of this
15 Trial Chamber and which would allow us -- which is the
16 very essence of standards in international justice,
17 that is, to have as rapid and as equitable a trial as
18 possible, at least as rapid as possible, if nothing
19 else, that is, to work in such a way that we can speed
20 the proceedings up. This is in the interests of the
21 accused, and beyond the accused's interests, there is
22 also the very interest of the transparency and the
23 credibility of our international institution, and I am
24 convinced that both the Prosecution and the Defence
25 adhere to those principles.
1 Having said this, and before we make any
2 decisions, we decided, as we ordinarily do, to discuss
3 matters with you before we take any decisions and,
4 moreover, we will take that decision in a more direct
6 All right. Since we have noted that there
7 has been an objection on the part of the Defence which
8 it will explain and about which we will reflect after
9 having heard the comments from the Prosecution.
10 The schedule would be -- what will it look
11 like? Mr. Fourmy, can you tell us what the schedule
12 will look like? We spoke about it, but since this is a
13 public discussion, the schedule will be reconstructed
14 so that it will split our proceedings because, as we
15 know, the accused pleaded guilty to all the charges
16 except for genocide. The initial indictment included
17 all the charges, and then there is the sentencing
18 aspect which will become -- or joint, rather, that is,
19 for the genocide and for the other charges. In a draft
20 order, we gave the reasons why we might split the case
21 into two parts.
22 Let me give the floor to the Legal Officer of
23 the Trial Chamber so that he can explain what we are
24 talking about in respect of economy of our work.
25 Mr. Fourmy, would you like to take the
2 MR. FOURMY: (Interpretation) Thank you, Your
3 Honour. In fact, in the scheduling order dated
4 12 March, 1999, the Trial Chamber expressed the desire
5 to hold a Status Conference so that we can discuss the
6 appropriateness of taking a decision in respect of
7 those charges to which Goran Jelisic pleaded guilty
8 further to the agreement which was made between the
9 Prosecution and the Defence and which deals with almost
10 all of the charges originally brought against
11 Mr. Jelisic, subject to several modifications and
12 except for the important distinction of genocide to
13 which the accused pleaded not guilty.
14 During the further initial appearance of
15 29 October, the question was quickly raised and
16 discussed, that is, to know how the review of the case
17 would be handled insofar as, theoretically, according
18 to the Rules of Procedure and Evidence, when an accused
19 pleads guilty, the Trial Chamber requests that the
20 registry set a hearing date in order to rule on the
21 penalty. Given the fact that there were two parts,
22 there was one to which the accused pleaded guilty and
23 the other part to which he pleaded not guilty, after
24 having heard the parties, the Trial Chamber noted that
25 it would not rule even in respect of the guilt of the
1 accused as regards the guilty plea and, therefore, even
2 less so on any possible penalty that would be handed
3 down and postponing that until the end of the
4 proceedings in respect of the crime of genocide.
5 The suggestion was agreed to by both parties,
6 and under these conditions, the trial for genocide was
7 supposed to begin in December, and since Judge Riad,
8 for medical reasons, was not able to be present at the
9 trial and because he is still away -- and we do hope
10 that he will be able to resume his work with the Judges
11 at this Tribunal around the beginning of May 1999 --
12 under these conditions, the Trial Chamber wanted to
13 hold this Status Conference in order to review once
14 again the situation and to discuss with the parties in
15 respect of the appropriateness of making separate
16 decisions, that is, separate -- the plea, insofar as
17 Goran Jelisic would have the opportunity to know what
18 penalty, according to the Trial Chamber and in respect
19 of proof brought by the parties, would be handed down.
20 This has not yet been decided because there
21 has been no decision from the Trial Chamber yet, that
22 is, at the time that this order of 12 March was
23 prepared, but the idea would be that we would take
24 advantage as soon as possible after Judge Riad's
25 return, that is, something would happen during the
1 month of May so that we might be able to have a
2 decision possibly, should that be the direction that
3 the decision is going to take in respect to the work,
4 that is, a decision on the guilty pleas in June, which
5 would then allow, once again, the accused Goran Jelisic
6 to have a very clear idea of what the Trial Chamber's
7 position is in respect of those crimes to which he
8 pleaded guilty.
9 Thank you, Your Honour.
10 JUDGE JORDA: (Interpretation) And I thank
12 Perhaps we could first hear what the
13 Prosecutor has to say and then, of course, we would
14 hear what the Defence wants to say because we know that
15 the Defence objects to this idea.
16 Mr. Nice?
17 MR. NICE: The Prosecution has no objection
18 to the Trial Chamber moving to sentencing in respect of
19 the guilty pleas but recognises at the moment that
20 there are Defence objections. Of course, we have yet
21 to hear in any detail those objections.
22 Whatever the decision may be about sentencing
23 on the guilty pleas, the Prosecution would invite the
24 Chamber, now or in due course, to complete the process
25 that was started by the guilty pleas by making a
1 pronouncement of guilt in accordance with Rule 62, and
2 I understand that that invitation or proposal by me may
3 be non-controversial; it may be something to which the
4 Defence will offer no objection.
5 At the moment, I think that is all I can help
6 with, save to say that the Prosecution's concern -- and
7 I think this is a concern shared by everyone -- is that
8 the maximum priority should be given to the speedy
9 determination of the genocide issue that is important
10 and is outstanding.
11 I have raised informally and only very
12 recently another proposal whereby the difficulties, the
13 timetable difficulties, that the Chamber is facing,
14 might be reduced or overcome, but perhaps now isn't the
15 moment to mention that publicly. I will wait and see
16 what else develops in the course of the morning.
17 JUDGE JORDA: (Interpretation) All right. You
18 can do it later in the morning. Perhaps we will hear
19 what Judge -- but before we hear the Prosecution's new
20 suggestion, we might first listen to what the Defence
21 has to say, that is, the draft memorandum for setting
22 up a calendar.
23 Mr. Greaves, please proceed.
24 MR. GREAVES: May it please Your Honour,
25 there are a number of matters I want to raise
1 concerning the issue of sentencing that is now being
2 proposed by Your Honour.
3 The first objection that we have is that the
4 Trial Chamber, as presently composed, being only of two
5 Judges, does not have jurisdiction to set a date for
6 sentencing. Can I refer Your Honour to the two Rules
7 which deal with the issue of sentence?
8 In the first instance, Rule 62(vi) says
9 this: "The Trial Chamber shall, in the case of a plea
10 of guilty act in accordance with Rule 62 bis."
11 The phraseology of that Rule is effectively
12 mandatory. It is not a discretionary rule, it requires
13 Your Honour to act, in the case of a guilty plea, in
14 the case of Rule 62 bis.
15 Looking at Rule 62 bis, that sets out what
16 should happen in respect of a guilty plea, and it's the
17 final part of that order that says this: "The Trial
18 Chamber may enter a finding of guilt and instruct the
19 registrar to set a date for the sentencing hearing."
20 I stress the words "Trial Chamber," because
21 it is our position that that can only be a fully
22 composed, three-Judge bench which can set a date for a
23 sentencing hearing.
24 We make the second observation that it is not
25 a mandatory rule but a --
1 JUDGE JORDA: (Interpretation) On this point,
2 let me stop you right now so we don't waste any time.
3 It was never a question for the Trial Chamber to rule
4 on the sentencing with only two Judges. There's no
5 point, perhaps, in even wasting our time about that,
6 because it is absolutely clear, and I think the purpose
7 of today's discussion is not to know whether Judge
8 Rodrigues and Judge Riad are going to rule on the fate
9 of Mr. Jelisic, it's self-evident this could only be
10 made once Judge Riad has returned, and that even the
11 statement in respect of jurisdiction, the last sentence
12 of 62 bis will be taken with two Judges.
13 Therefore, let's try to speed things forward.
14 So the first objection, I can tell you immediately,
15 is that we agree with you, because that's the
16 interpretation of the text which is perfectly clear and
17 perfectly readable.
18 The second objection, please move to it.
19 MR. GREAVES: Thank you very much. That's
20 most helpful, Your Honour.
21 We have a number of objections on the merits
22 of proceeding to sentence in respect of the matters to
23 which he's pleaded guilty for the conclusion for trial
24 in respect of genocide.
25 At his trial for genocide we intend to call
1 witnesses. Some of those deal only with issues of
2 fact, others deal only with issues relating to
3 sentence. The majority, however, are witnesses we
4 intend should give evidence both as to matters of fact
5 and as to matters of mitigation of sentence. It is
6 concerning that latter group that we are most anxious.
7 There are two reasons for this.
8 The first is this: If a hearing in respect
9 of sentence is held, a witness who is relevant both as
10 to sentence and as to issues of fact will, therefore,
11 be forced to give evidence on two occasions, at a
12 sentencing hearing and again during the trial.
13 There is already considerable anxiety on the
14 part of witnesses about having to attend the Tribunal.
15 Your Honours are fully familiar with the concerns of
16 all people in the former Yugoslavia about the potential
17 repercussions of giving evidence before the Tribunal
18 and it is a realistic and live problem.
19 It is perhaps even more so in the area of
20 Brcko, which the events of the genocide trial concern,
21 because of the high tensions that continue to exist
22 there, particularly in the light of recent decisions
23 made in respect of the future status of that
24 municipality. Some witnesses, who it is proposed to
25 call, are members of one community and some are from
1 another. Many Serbian witnesses have to work in the
3 There are very real concerns about giving
4 evidence. We fear, and we believe this to be a
5 realistic fear, that it will prove impossible to get
6 witnesses to give evidence twice before this tribunal.
7 If just one witness were to be deterred from giving
8 evidence, both as to sentence and as to issues of fact,
9 that would be a significant matter of prejudice to the
11 The second matter is this: Witnesses are
12 likely to give evidence about matters which are factual
13 matters, but which have a relevance both to sentence
14 and as to fact. In other words, a witness may give
15 evidence at a sentencing hearing about some set of
16 facts which are relevant both to mitigation and as to
17 issues of guilt or innocence.
18 The affect of holding a sentencing hearing at
19 which such evidence is given would enable the
20 Prosecution to hear Defence evidence on fact before its
21 own case has closed. That, we submit, is not in
22 accordance with the Rules and would also have the
23 effect of giving the Prosecution a significant and
24 unfair advantage if it were able to hear the Defence
25 case or part of the Defence case before its own case
1 were closed.
2 We submit that either of those factors, taken
3 on its own, strongly mitigates against the proposed
4 course which is suggested. Taken together, we submit
5 that they are very strong reasons not to proceed to the
6 issue of sentencing.
7 The next matter is this: The offences to
8 which he's pleaded guilty already form, as we
9 understand the Prosecution's case, a significant part
10 of their case on genocide. Witnesses for the
11 Prosecution are likely to give evidence about those
12 matters, and it is possible that some of that evidence
13 may yet assist the defendant on mitigation. If he's
14 already been sentenced in respect of the murders to
15 which he's pleaded guilty, he would not have the
16 benefit of evidence given at the trial in mitigation of
17 sentence. We submit that that is yet another potential
19 The next matter is this: The offences, as
20 I've pointed out, to which he's pleaded guilty, form
21 part of the basis upon which the Prosecution say he is
22 also guilty of genocide.
23 JUDGE JORDA: (Interpretation) Excuse me for a
24 moment, please. I'm not sure I understood your last
25 objection. You're saying that the accused could plead
1 guilty if there were mitigating circumstances, it would
2 not be to his advantage. I haven't followed exactly
3 what you said. I didn't really understand you. Could
4 you go back again, please?
5 MR. GREAVES: Let me explain it again. The
6 Prosecution intends to call further witnesses, and as
7 presently suggested, that would be after he has been
8 sentenced in respect of the matters to which he's
9 pleaded guilty. It is possible that such witnesses
10 may, during the course of their evidence, give evidence
11 which is or assists to mitigate the defendant's guilt
12 in respect of those matters to which he's pleaded
13 guilty. If he has already been sentenced by the time
14 that evidence was given, he is effectively going to be
15 deprived of the assistance of that evidence because it
16 comes after the sentencing hearing. We submit that if
17 he's deprived of the potential for that, it creates a
18 potential unfairness to him.
19 I hope I've explained better on this
21 JUDGE JORDA: (Interpretation) Yes, yes. I'm
22 sure I should have paid closer attention. Excuse me,
23 Mr. Greaves. Please continue.
24 MR. GREAVES: I was then going on to say
25 this: As I have explained, the matters to which he's
1 pleaded guilty form part of the Prosecution's case on
2 genocide. We would respectfully submit that it is
3 illogical and artificial to try and separate those
4 matters, the one from another. They essentially go
5 together and try and sentence him piecemeal in respect
6 of one aspect of what the Prosecution say is genocide,
7 and that, of course, depends on him being convicted of
8 genocide, is illogical and we would respectfully submit
9 that it is a proper principle of sentencing that an
10 accused should be sentenced only on one occasion in
11 respect of all his crimes, particularly where there is
12 such a close relationship between the matters to which
13 he's pleaded guilty and upon the matter which he may
14 yet be convicted.
15 We are, of course, conscious of the
16 importance of the expeditious trial provisions that
17 exist in both the Statute and Rules; they are
18 important. However, their principle purpose is this,
19 if I may say so: They exist to ensure that if somebody
20 is detained and has pleaded not guilty, that his trial
21 takes place speedily, and if he's acquitted, that he is
22 released speedily. There is some distinction to be
23 drawn between that situation and the situation of this
24 accused. He has pleaded guilty to matters which on any
25 sensible and rational view will attract a substantial
1 sentence, and he is going to be remaining in custody
2 well beyond the period in which any trial could be
3 concluded. So the principle purpose for which the fair
4 trial, expeditious trial provisions exist, have a
5 rather less practical application to his situation.
6 He's going to be staying here, the trial will take
7 place, and will be completed well within the time of
8 any sentence that he has to serve in respect to the
9 guilty pleas.
10 Our final concerns are these: The defendant
11 is very much focused on the issue of his trial for
12 genocide, and as counsel we have to spend a lot of time
13 with him, assisting him to focus on those issues. We
14 are extremely concerned that to raise now the issue of
15 sentence will, in fact, particularly in the
16 circumstances I've outlined, have a debilitating effect
17 on the defendant's present condition. He will forgive
18 me for saying this in public, he does suffer at times
19 from a considerable degree of stress, and as it may be
20 known, he is under constant surveillance within the
21 prison concerning his condition. We are extremely
22 anxious that the process of sentencing will distract
23 him very considerably from the issue of his trial, and
24 bring about a deterioration in his condition. That, we
25 submit, is something which the Trial Chamber should, at
1 all costs, avoid. It would be most undesirable if that
2 was brought about. It makes the task of all of us much
3 harder if the defendant is in an unstable condition.
4 For all those reasons, we respectfully submit
5 that it is not appropriate, at the present time, to
6 proceed to the issue of sentencing, that it would, in
7 fact, be more appropriate if he's convicted of
8 genocide, to deal with all matters in one single go
9 than to deal with matters in a piecemeal and haphazard
11 My leading counsel, Mr. Londrovic, also
12 wishes to raise with Your Honours what the former
13 Yugoslavian sentencing practice was in relation to
14 sentencing people in a piecemeal fashion because, of
15 course, Your Honour, I think, has to consider the issue
16 of the practice and procedure of the former Yugoslavia
17 when considering sentencing.
18 I would now like to pass the floor to him, if
19 I may with Your Honour's leave.
20 JUDGE JORDA: (Interpretation) Mr. Londrovic?
21 MR. LONDROVIC: (Interpretation) Your Honours,
22 bearing in mind the provisions of the Statute of the
23 International Court which states that the court will
24 bear in mind the sentencing according to Yugoslav
25 criminal law, and as far as Yugoslav criminal law is
1 concerned, it is regulated in the Law on Criminal
2 Procedure which is a federal law, which after the
3 disintegration of Yugoslavia was taken over by the
4 Republika Srpska, that is to say, the Federation of
5 Bosnia-Herzegovina, and bearing in mind the Dayton
6 agreements and peace accords, it is in force throughout
7 Bosnia and Herzegovina at present.
8 It is regulated by Article 348.2, which
9 states, "If the indictment encompasses a number of
10 criminal acts, in just one sentence it will be stated
11 whether and for what crime the indictment is pronounced
12 guilty or is freed of the guilt." So in a situation
13 where the indictment contains a number of criminal
14 acts, it is up to the court to bring in just one
15 sentence, and that one sentence, depending on the
16 evidence provided, it can theoretically be -- it can
17 find the accused guilty or not guilty or whatever, but
18 there is just one sentencing. Under Yugoslav criminal
19 procedure there is no possibility of bringing in two
20 sentences on the basis of one indictment. Thank you.
21 JUDGE JORDA: (Interpretation) Thank you,
22 Mr. Londrovic. Before we give the floor back to the
23 Prosecutor, I would like to say that the first
24 objection we do not accept. We overrule that
25 objection. The second objection could be overcome.
1 I'm making suggestions of course, I'm just reviewing
2 your objections. The second objection, it's difficult
3 for the witness to resolve those difficulties, once he
4 comes here for his sentencing, we could keep him and
5 hear what he has to say about genocide.
6 The third objection, and we'll hear what --
7 well, according to the third objection the Prosecution
8 would have allegedly some advantage in hearing certain
9 testimony before -- well, let me hear -- I'll wait for
10 Mr. Nice to make some comments about this.
11 The fourth objection regarding elements that
12 have already been renounced, that is mitigating
13 circumstances, this is an objection which I asked you
14 to repeat, but ordinarily I think the Prosecution has
15 the obligation already to provide you with all
16 exculpatory materials. Therefore, I don't think this
17 is really a valid objection. I recognise as much more
18 valid the fifth objection, when you say there is a
19 separation in your mind which appears artificial. The
20 sixth objection, in my opinion, is not valid. Rather,
21 to the contrary. I would say that if the accused is
22 really interested in his sentence, the objection would
23 be that the client is not really available to
24 concentrate on genocide because he's going to be
25 focused on the sentence. I think that that's an
1 argument which could be turned around and turned back
2 against your objection, because in the end one could
3 say the opposite, that is, one could say no, to the
4 contrary, Mr. Jelisic might be focused on his sentence,
5 but he could also, with all the time in the world
6 before him and all the time that you have with him, he
7 could then focus on his trial for genocide. Therefore,
8 looking at the matter the other way.
9 The seventh objection I also find
10 significant, however, in fact, yes, is the
11 psychological condition of the accused.
12 Lastly, Mr. Fourmy has given me a
13 counter-objection to what I said about hearing
14 witnesses at the same time. Yes, those would be
15 Defence witnesses, and we could not perhaps hear them
16 immediately. I do acknowledge that that objection is
18 All right. I throw this out to you. There
19 are seven objections that you have raised. I have
20 counted seven here. Some, in my opinion, can be gotten
21 around and others which do merit discussion.
22 I would like to turn to Mr. Jelisic, because
23 it is your trial, Mr. Jelisic, and independently, of
24 course, of any confidence that you have in your
25 attorneys, both of the Judges would like to hear what
1 you have to say.
2 First of all, do you understand what is at
3 stake here and what the concern of the Judges is, that
4 is, a concern which is one of having expediency and to
5 be sure that you know what is going to happen to you
6 after having pleaded guilty to the charges, and there
7 are other problems -- I can also point this out to
8 Mr. Greaves -- there are other problems; for example,
9 where will the sentence be served? What is he going to
10 do? We are not making any arbitrary kinds of decisions
11 here, but I would like to tell you, Mr. Greaves, that
12 contrary to what you may have thought, the Trial
13 Chamber was not struck all of a sudden by a kind of
14 legal whim according to which it would have put aside
15 its intelligence and its foresight or its legal
16 understanding. You are dealing with professional
17 Judges, let me remind you, and it is as professionals
18 that we studied all the conditions under which this
19 Jelisic trial could be held.
20 Mr. Jelisic, what do you think? You. I am
21 speaking about you personally.
22 THE ACCUSED: (Interpretation) Well, my
23 personal opinion is that I support the proposal made by
24 my lawyers and that we continue the trial for genocide
25 because there has been a great deal of problems in
1 bringing witnesses twice here for the reasons we all
2 know. In view of the fact that I am under supervision
3 and my state of health -- I don't want you to
4 misunderstand me, but I don't think that there will be
5 another sentence brought in -- I don't want to be in a
6 position where there will be no sentence.
7 JUDGE JORDA: (Interpretation) Tell us about
8 your health. Speak to us a little bit about your
9 detention conditions, about your health. First, speak
10 to us about your mental condition, if you want to --
11 how do you feel now? You don't have to go into all the
12 details. If you prefer to be seated, please be seated.
13 THE ACCUSED: (Interpretation) I did not hear
14 the question, I'm sorry. I wasn't getting the
16 JUDGE JORDA: (Interpretation) I was asking
17 you what your health is, how is your health, how do you
18 feel, and I was saying that if you prefer to sit down
19 in order to answer, you may sit down.
20 Have you heard what I said now? Has it been
21 interpreted? Do you hear me, Mr. Jelisic?
22 THE ACCUSED: (Interpretation) Yes, I can
24 JUDGE JORDA: (Interpretation) If you prefer
25 to be seated, please be seated.
1 THE ACCUSED: (Interpretation) There's no
2 need. I will remain standing.
3 JUDGE JORDA: (Interpretation) How do you
4 feel? Are you tired? How is your detention going?
5 Are you getting medical attention? Are people taking
6 care of you properly? I hope they are. Would you
7 explain it to us? Tell us about it.
8 THE ACCUSED: (Interpretation) Well, all my
9 problems are being very successfully treated by the
10 warden of the detention unit, Mr. McFadden. I said
11 that I did not take therapy yesterday until I learnt
12 about this, that is to say, what is going to be the
13 subject of discussion. Perhaps this is not the time or
14 place for me to disclose what I have in my defence, but
15 I think that, as my attorney has said, it will be a
16 historical trial -- I think it will be a little bit
17 more than historical when I present my defence and my
18 evidence because I know that there is a very ugly
19 picture of me here, an ugly image, but there is quite
20 another picture that I am going to present, and so I am
21 not going to say that here now.
22 JUDGE JORDA: (Interpretation) All right.
23 Thank you.
24 Judge Rodrigues, you want to ask some
1 Thank you. You may be seated, Mr. Jelisic.
2 All right. Please be seated.
3 THE ACCUSED: (Interpretation) Thank you.
4 JUDGE JORDA: (Interpretation) I have
5 understood that there were six or seven objections
6 raised by the Defence that the accused -- and with all
7 of these, there are some objections that are stronger
8 than others, but I forgot to speak about what
9 Mr. Londrovic said. Yes, of course, the practice of
10 the former Yugoslavia is, of course, our reference, but
11 we also have a Rule in our Rules which says that we
12 ourselves have to give a sentence for each of the
13 charges or each of the counts.
14 Is that true, Mr. Fourmy?
15 MR. FOURMY: (Interpretation) Your Honour,
16 yes, that is the practice which has been held up to
17 this point.
18 JUDGE JORDA: (Interpretation) Well, this is a
19 practice which could be challenged, of course, let me
20 point that out to you, that it is not, in and of
21 itself, absurd to think that we might have two
22 sentences and then bring them together later on.
23 Turning to the Prosecution, do you have any
24 responses to what the Defence has said and perhaps some
25 proposals, suggestions, which we hope will be
1 constructive ones?
2 Mr. Nice, please proceed.
3 MR. NICE: So far as the...
4 [Technical/interpretation difficulty]
5 JUDGE JORDA: (Interpretation) ...
6 Interpretation. Just a moment, please. I'm not
7 getting interpretation. I hear you speaking, but I
8 would like to hear the interpretation.
9 Is it working now? All right. Let's try.
10 Let's go ahead.
11 MR. NICE: I will repeat what I was saying --
12 JUDGE JORDA: (Interpretation) I hear you.
13 Yes, all right. Now, proceed please. Excuse me.
14 MR. NICE: I have nothing to say about the
15 defendant's state of health save respectfully to
16 suggest you may wish to be sure you understand from his
17 own counsel what lay behind his observation about there
18 being no second sentence if that part of his own
19 address was other than clear to you. I believe that
20 his counsel will be able to assist you with an
21 interpretation of that.
22 As to the arguments that have been raised by
23 my two learned friends, there is, of course, some logic
24 in some or all of those arguments, but the potential
25 for logic has to be seen beside the weight to be
1 attached to each of those arguments. So, for example,
2 the difficulty of getting witnesses here twice is
3 something that will be recognised, I think, by this
4 Tribunal, for it is something that is referred to not
5 only by Defence, when they have witnesses to call, but
6 also by the Prosecution. What I can't help you with,
7 because it is a matter known only to my learned
8 friends, is the number of witnesses that that would
9 involve and what material, if any, they have to show
10 that there would be a real risk with those particular
11 witnesses that the witnesses would not attend.
12 I can see a way to weighing or evaluating, in
13 quantum terms, that objection. The method might be for
14 the Defence to have, on this occasion, some ex parte
15 access to the Court to identify the witnesses and the
16 particular problems, but that will be a matter both for
17 them to decide to seek such access and then for the
18 Court to grant it.
19 So far as the objection that the Prosecution
20 would hear the Defence case in advance, it may be that
21 that is only a slight risk, if risk at all, for
22 evidence on mitigation can be narrowly confined --
23 JUDGE JORDA: (Interpretation) Are you talking
24 about an ex parte hearing, but for what purpose? I
25 didn't understand that, Mr. Nice.
1 MR. NICE: Because the Defence say that they
2 would have a difficulty calling witnesses twice and
3 because I can't deal with that in quantum terms, in
4 quantity terms -- I don't know how many witnesses and I
5 don't know to what extent any particular witness is
6 fragile or has already expressed anxiety about
7 attending twice -- I can't help further. But it may
8 be, if the Defence sought an ex parte hearing and if
9 the Chamber granted one, that they would be able more
10 openly to explain the particular risks or problems with
11 calling witnesses that they perceive. I hope that
12 makes that clear.
13 Dealing then with the next point, the problem
14 of the Defence case being heard in advance, evidence in
15 mitigation should, it may be thought, be capable of
16 being closely confined, and there would be, of course,
17 be no right to cross-examine beyond the substance of
18 the evidence, bearing in mind the purpose for which it
19 was being led, and it may be that that objection is one
20 that in real terms has little weight.
21 The potential for Prosecution witnesses to
22 assist in mitigation, I can understand why it is
23 raised, and it seems to me, yes, there is a theoretical
24 possibility that that is a good ground of objection.
25 The witness whose witness statement paints a black
1 picture but who, in cross-examination, or indeed simply
2 of his own volition, says one or more things favourable
3 to the accused, would be giving evidence that might
4 affect the picture at the time of sentencing. At
5 present, we are not aware of any possibility, let alone
6 probability, that the witnesses we propose to call
7 would be likely to give any such evidence, so again,
8 although it is logically a possible ground for
9 objection, the Chamber might decide that it is an
10 objection that, in fact, has little weight.
11 The illogicality of separating sentence for
12 some crimes from the sentence for other crimes part of
13 the same course of conduct is something that Your
14 Honour has recognised and that I think systems around
15 the world tend to recognise, and it may be that in the
16 absence of good and compelling reason, it is prudent to
17 sentence a defendant on a single occasion for all the
18 matters to which he falls for sentence, whether by plea
19 of guilty or otherwise.
20 So far as Mr. Londrovic's point is
21 concerned -- and he will correct me on this, of course,
22 if I am wrong -- I understand that there is at least
23 this distinction between the system in the former
24 Yugoslavia and the system for this Tribunal, namely,
25 that in the former Yugoslavia, there was never the
1 potential for moving directly from a plea of guilty to
2 sentence because even where a defendant pleaded
3 guilty -- and I hope I'm right in this -- there was
4 nevertheless a full trial. So that a Trial Chamber
5 would always be seized of the whole case or dossier,
6 and one can understand why there would be simply
7 formally no potential for separate sentencing in
8 respect of separate counts. I think I'm right in that,
9 and I am very grateful for Mr. Tochilovsky for his
10 wider knowledge of the practice in the former
11 Yugoslavia than I myself have.
12 The consent of a defendant to deferment of
13 sentencing in his case may be thought to cure problems
14 which understandably concern the Trial Chamber because
15 one well recognises that the pressure of work on the
16 Chamber is bringing difficulties not, of course, of its
17 creation, and that it is anxious, wherever possible, to
18 move to conclusions; but, as I say, consent of the
19 defendant himself may go some way to allaying those
20 concerns and curing the problem but if and only if, in
21 our respectful submission at this stage, first the
22 Chamber moves toward that --
23 THE INTERPRETER: Counsel speak into the
24 microphone, please.
25 MR. NICE: -- sorry, moves towards that
1 decision allowed for in 62 bis, namely, the finding of
2 guilt, and there has been no objection raised by my
3 learned friends to that step being taken in an
4 appropriate way and providing, of course, that the
5 Chamber has in mind, as it knows it does, the proper
6 interest in a speedy trial.
7 I don't know if I can assist further.
8 (Trial Chamber deliberates)
9 JUDGE JORDA: (Interpretation) Mr. Greaves,
10 excuse me. Please go ahead.
11 MR. GREAVES: I just wanted to deal with two
12 matters that were raised by my friend. As to the
13 formal entering of verdicts of guilty, neither my
14 learned friend Mr. Londrovic nor I, I anticipate, would
15 have any objection to the formality of that being done,
16 unless the defendant has any particular objection, and
17 I'm sorry not to have dealt with that earlier. I
19 My learned friend also raised a query as to
20 what was precisely meant by the defendant's
21 observation. I think what was meant and I stand to be
22 corrected by my client, that when he said there is no
23 need for a second sentence, that he was anticipating
24 that if he was acquitted for the offence of genocide
25 then there would be no second sentencing hearing in the
1 circumstances that are now being proposed. But as I
2 understood what he was saying, was he thankfully
3 supporting his counsel in their observations about this
5 JUDGE JORDA: (Interpretation) Well, maybe we
6 should ask him what he meant, because to tell you the
7 truth, I don't understand. I'm completely lost.
8 All right. The accused is here and both of
9 us Judges would like to ask the accused, pursuant to
10 our rules, ask the accused what he meant when he said
11 there wouldn't be a second sentence.
12 If you would please explain what you meant
13 Mr. Jelisic, if you want to. If you don't want to, it
14 doesn't matter, then don't, but I don't want to make an
15 exegesis of your thoughts, since you are the person
16 most concerned by all of this.
17 All right. Mr. Jelisic, what did you mean
18 when you said there would not be a second sentence?
19 THE ACCUSED: (Interpretation) Perhaps my
20 counsel did not understand me and they may have
21 expected a different answer, but I had had something
22 else in mind.
23 MR. LONDROVIC: (Interpretation) Excuse me,
24 Your Honours. I understood my client perfectly well,
25 and I think if you want to hear the answer to this
1 question we should lower the blinds.
2 JUDGE JORDA: (Interpretation) You're
3 correct. Absolutely. We'll go into a closed session.
4 Just a moment, please, Mr. Jelisic. Let me
5 remind Mr. Jelisic that if he does not want to respond,
6 he does not have to. I simply do not -- well, since
7 we're talking about Mr. Jelisic's mind, this is a
8 Status Conference, and he was asked about his health
9 and his detention conditions. I don't accept his
10 having said something that I don't understand.
11 Therefore, I would like things to be very, very clear
12 and it will be private session. We don't have to go
13 into a closed session, private session will be
14 sufficient, as long as it takes for Mr. Jelisic to
15 explain what he means.
16 (Private session)
13 Page 306 redacted – in private session
13 Page 307 redacted – in private session
10 (Open session)
11 JUDGE JORDA: (Interpretation) I'll give the
12 floor back to Mr. Greaves if he has anything further to
13 say, because we were now at the second point. After
14 that, I think, we will be able to close the session.
15 Mr. Greaves, we can move back into a public
16 session now.
17 MR. GREAVES: I have nothing to add. Thank
18 you very much.
19 JUDGE JORDA: (Interpretation) Judge
20 Rodrigues? No, he has nothing to add.
21 Mr. Londrovic, do you want to add something?
22 MR. LONDROVIC: (Interpretation) Your Honours,
23 I have nothing further to add. I'm convinced that the
24 Chamber will adopt the best decision, that it will
25 consider the need of a fair trial. Thank you.
1 JUDGE JORDA: (Interpretation) Let me turn to
2 Mr. Fourmy to ask whether there are any other
3 suggestions or any other comments. Perhaps the
4 Prosecutor has something to state, Mr. President.
5 Mr. Nice, would you care to say something?
6 MR. NICE: I have one proposal.
7 JUDGE JORDA: (Interpretation) Yes, you've got
8 proposals. I thought that you had given up the idea of
9 making constructive proposals, but you said that you
10 would make proposals. Yes, it's true, you did say
11 that. All right. I'm opening my notebook again and I
12 am all ears.
13 MR. NICE: My proposal relates to the
14 timetable difficulties faced by the Chamber, of which
15 we are all aware, and the proposal for consideration is
16 that evidence might, in this case, be taken by way of
17 deposition. The timetable problems constituting the
18 special circumstances will be required to justify the
19 taking of depositions.
20 I go a little further with my proposal,
21 hoping not to be thought to be presumptuous in doing
22 so, and observe that Judge Riad, on his return to
23 health and to the Tribunal, just may, and of course we
24 can't know the answer to this, may have time
1 There may, of course, be a courtroom in this
2 building available, and the taking of evidence by
3 deposition not only would speed the process to trial
4 but would also meet some of the witness difficulties
5 that both sides may face, in particular, those
6 difficulties of timetabling witnesses, for were there
7 to be a programme of deposition taking in a courtroom
8 that was otherwise free, then witnesses could be
9 brought according to a fairly gentle programme, and
10 there should be neither pressure of time on the
11 witness, the advocates, nor were it to be Judge Riad,
12 the Judge taking the deposition.
13 Depositions, can, of course, with the
14 machinery available in these courts, be taken in such a
15 way that at closing argument, counsel on one side or
16 another could replay, as if live, relevant passages of
17 the evidence.
18 That's the proposal that I had in mind. I
19 only had an opportunity to mention it very briefly to
20 Mr. Greaves this morning, because I know that he's been
21 out of the country right up until last night, and,
22 indeed, I didn't take the opportunity of mentioning it
23 to Mr. Fourmy until yesterday.
24 That is a specific proposal to deal with
25 timetable problems, and if it finds favour or if it may
1 find favour, we'll draft the appropriate motion which
2 should really support such procedure.
3 There's a second discreet procedural matter
4 that I'd like to mention now, although it won't take
5 very long, and it concerns the extended interviews of
6 the defendant with an investigator.
7 Those interviews exist, at the moment, in
8 their original language and in translation into
9 English, and I do not believe at present they exist in
10 the French form.
11 In cases like this, where what is at stake is
12 the state of mine of an accused, it is typically the
13 case that each side will regard substantial passages of
14 those interviews as of value to the finder of fact. In
15 some jurisdictions, either the whole interview will be
16 played as a tape recording, or extensive passages will
17 be read out to the court, sometimes with an advocate
18 taking one role, perhaps the role of the investigator,
19 and an investigator, as witness, taking the role of the
20 accused, or some such system.
21 That plainly cannot happen in this Tribunal
22 where we have to work in two languages, and where, as
23 we recognise, it is the misfortune of the presiding
24 Judge not to have the advantages that the English
25 practitioners have of LiveNote. Therefore, it presents
1 a practical problem for resolution, and a resolution
2 that we know should be one that is economic in the use
3 of time.
4 I've discussed this with Mr. Fourmy, and one
5 proposal that he's raised which seems sensible,
6 although again I've only been able to mention it
7 briefly to Mr. Greaves, is that if the parties, that
8 is, Prosecution and Defence, were to identify within
9 the overall transcript the passages each would want
10 read, then we can ensure in good time that those
11 passages are translated into the appropriate languages,
12 and if the court accepted this as a practice, we could
13 then invite the court to read those documents in an
14 appropriate language, making such limited points in
15 live evidence as would be appropriate.
16 I should say that the interviews occupy a
17 full lever-arch binder, as at present constituted. One
18 would hope, of course, that large passages would not
19 have to be read, if they're just background and matters
20 that don't touch on the defendant's state of mind.
21 Those are the only two specific proposals
22 that I wanted to mention now. Thank you.
23 JUDGE JORDA: (Interpretation) Thank you.
24 Mr. Greaves? Mr. Londrovic?
25 MR. GREAVES: Your Honour, as far as those
1 two suggestions are concerned, my friend is right. We
2 and I had only very briefly discussed them before Your
3 Honours came in. I have not had an opportunity to
4 discuss them with my leading counsel and, in turn, we
5 have not had an opportunity to discuss them with the
6 accused, and I would really like not to be asked to
7 comment any further at this present stage, please. You
8 can understand that I'm not in a position to give a
9 definitive answer on our behalf.
10 JUDGE JORDA: (Interpretation) Yes, I
11 understand. The difficulty in respect of depositions
12 is the following: You're referring to Rule 71, I
13 suppose; is that correct?
14 MR. NICE: Yes.
15 JUDGE JORDA: (Interpretation) The difficulty
16 is that Rule 71 that we have already used in this Trial
17 Chamber when one of the Judges was unable to be with
18 us, and that was, of course, with the agreement of the
19 accused, it was done with the agreement of the accused,
20 in this Trial Chamber we have a very exponential
21 interpretation of this Rule which was accepted by the
22 parties, but I think the difficulty, and I think
23 subject to anything that Mr. Fourmy or my colleague
24 want to say, is I do not see under what exceptional
25 circumstances could justify Judge Riad's sitting as
1 kind of a presiding officer, whereas the two other
2 Trial Chamber Judges would be sitting in another case.
3 I'm not sure that that would be very transparent.
4 What do you think, Mr. Fourmy?
5 MR. FOURMY: (Interpretation) I think that
6 Mr. Nice, in advance, had both the possibility that the
7 Trial Chamber might consider that the scheduling
8 problems in and of themselves would constitute
9 exceptional circumstances covered by Rule 71. Having
10 said that, in terms of the transparency of two Trial
11 Chambers and one Trial Chamber are sitting in a public
12 session, whereas the third would also be somewhere
13 else, that would be difficult.
14 JUDGE JORDA: (Interpretation) What do you
15 think, Judge Rodrigues? We're speaking very freely
17 When we had a Judge who was ill, we did that,
18 and we wanted to make it very clear that it was a
19 specific proceeding and we wore civilian clothes. In
20 other Trial Chambers we did wear robes, but we used
21 Rule 71.
22 Therefore, I am in favour of a very extended
23 conception of this Rule but I do wonder whether a
24 Judge -- well, if a Judge can hear depositions, that
25 means that he's not ill. You always come up against
1 that problem. If one of the Judges is designated as
2 the presiding officer, that means he is capable of
3 being a Judge full time. If he's full time, then he
4 has to be here with us at the bench. That's what I
6 All right. I think that we can't say
7 anything further than what we've said already.
8 Thank you, Mr. Nice, for having tried to make
9 a contribution to resolve the scheduling problems that
10 the Trial Chamber is facing.
11 Comment? All right. We are going to adjourn
12 the hearing, unless Judge Rodrigues would like to say
13 something. No objections?
14 Thank you very much for coming. We close
15 this Status Conference now and, of course, the Judges,
16 in respect of what has been said, the useful
17 contributions that you've made, thanks to that
18 contributions, the Judges will be able to give you a
20 All right. The court stands adjourned.
21 --- Whereupon the Status Conference
22 adjourned at 10.30 a.m. sine die