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1 Monday, 9th March 1998
2 (4.00pm)
3 JUDGE CASSESE: May I ask the Registrar to
4 call out the number and name of this case?
5 THE REGISTRAR: Case number IT-96-23-I,
6 the Prosecutor versus Dragoljub Kunarac.
7 MS UERTZ-RETZLAFF: Mrs Patricia Sellers
8 here -- and my name is Hildegard Uertz-Retzlaff.
9 JUDGE CASSESE: Counsel for the accused,
10 please introduce yourself and spell your name out
11 clearly. Would you also indicate of which bar you are
12 a member?
13 MR PRODANOVIC: Your Honour, my name is
14 Slavisa - S-L-A-V-I-S-A - Prodanovic, from Srbinje,
15 formerly Foca, member of the Bar of the Republika
16 Srpska.
17 JUDGE CASSESE: Have your qualifications,
18 credentials and other necessary documents been provided
19 to the Registry of the International Criminal Tribunal
20 for the former Yugoslavia?
21 MR PRODANOVIC: Yes, your Honour, they have.
22 JUDGE CASSESE: I will ask the accused
23 whether he can hear me in a language which he can
24 understand. Can you hear me?
25 MR KUNARAC: Yes.
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1 JUDGE CASSESE: We can now commence with
2 this hearing. This is the initial appearance of the
3 accused before the International Criminal Tribunal for the
4 former Yugoslavia. This hearing is being held in
5 accordance with the Tribunal's Statute and Rules of
6 Procedure and Evidence. Rule 62 of the Rules of
7 Procedure and Evidence of our Tribunal requires that
8 the accused, after having these indictments confirmed
9 by a judge, and after having been arrested and
10 surrendered to the custody of the International
11 Tribunal, or after having surrendered to the Tribunal,
12 must be formally charged under the procedure described
13 as the initial appearance.
14 Could the accused rise and state for the
15 Trial Chamber his name, date, and place of birth and
16 the name of the attorney whom he has chosen to
17 represent him?
18 MR KUNARAC: My name is Dragoljub Kunarac,
19 born on 15 May 1960, in Foca. My Defence attorney is
20 Slavisa Prodanovic from Foca, now called Srbinje.
21 JUDGE CASSESE: As you know, the procedure
22 today is governed by a set of rules laid down in our
23 Statute and in the Rules of Procedure and Evidence.
24 They may be summarised as follows: Article 20 of our
25 Statute requires us inter alia to satisfy ourselves
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1 that the rights of the accused are respected; confirm
2 that the accused understands the indictment; and call
3 upon the accused to enter a plea to the charges against
4 him in the indictment.
5 The rights of the accused are detailed in
6 Article 21 of the Statute of our International
7 Tribunal, and I am sure you are familiar with this
8 Article 21. As I have already indicated, Rule 62 of
9 our Rules of Procedure and Evidence governs the initial
10 appearance. This Trial Chamber must be satisfied that
11 the accused's rights to counsel have been respected.
12 The indictment must be read to the accused in a
13 language he speaks or understands, and the Trial
14 Chamber must be satisfied that the accused understands
15 the indictment.
16 We are then required to call upon the accused
17 to enter a plea of guilty or not guilty on each count.
18 If the accused fails to enter a plea, we are required
19 to enter a plea of not guilty on his behalf. In the
20 case of a "not guilty" plea, we will instruct the
21 Registrar to set a date for trial.
22 In the case of a "guilty" plea, we will
23 instruct the Registrar to set a date for the
24 pre-sentencing hearing, or any other appropriate dates.
25 I would like to ask Defence counsel whether
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1 he and his client have received copies of the
2 indictment in a language which they understand and
3 whether the contents therein were understood. Have you
4 had adequate time to confer with your client in
5 preparation for this initial appearance?
6 MR PRODANOVIC: Yes, your Honour, we have
7 received the indictment, we understand it, and we have
8 had sufficient time to study it.
9 JUDGE CASSESE: Thank you. The indictment
10 was issued by the Prosecutor on 18 June 1996, and
11 confirmed by Judge Vohrah on 26 June 1996. In
12 principle, under our Statute and our Rules of Procedure
13 and Evidence the entire indictment should be read out
14 in court. I wonder, however, whether the accused is
15 prepared to waive his right to a public reading of the
16 indictment. May I turn to you and ask whether the
17 accused is waiving his right?
18 MR PRODANOVIC: The accused is prepared to
19 waive his right to have the indictment read at this
20 public hearing.
21 JUDGE CASSESE: Thank you so much. I will
22 now turn to the accused.
23 Please rise, Mr Kunarac. Your counsel has
24 informed the Trial Chamber that you have received a
25 copy of the indictment in a language which you
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1 understand and that you comprehend its contents.
2 Please confirm whether this is correct and whether you
3 have any questions concerning the indictment.
4 MR KUNARAC: It is correct, I have had enough
5 time to read it; I understand the indictment; I have no
6 comments to make regarding the indictment, because
7 I have understood everything it contains and,
8 therefore, I have no comments to make regarding the
9 indictment.
10 JUDGE CASSESE: Thank you, thank you. I am
11 going to recall each of the four counts against you.
12 Could you please tell the court whether you plead
13 guilty or not guilty after I have put the counts to
14 you. The form of words we wish you to use is
15 either, "I plead guilty", or "I plead not guilty."
16 Have you understood this?
17 MR KUNARAC: I have understood everything.
18 JUDGE CASSESE: Thank you. I will start
19 with count 40: A crime against humanity (torture)
20 punishable under Article 5(f) of the Statute of the
21 Tribunal. How do you plead?
22 MR KUNARAC: I plead not guilty.
23 JUDGE CASSESE: Thank you. Count 41:
24 A crime against humanity (rape) punishable under
25 Article 5(g) of the Statute of the Tribunal. How do
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1 you plead?
2 MR KUNARAC: I plead guilty on this count.
3 JUDGE CASSESE: Thank you. Count 42:
4 A grave breach (torture) punishable under Article 2(b)
5 of the Statute of the Tribunal. How do you plead?
6 MR KUNARAC: I plead not guilty.
7 JUDGE CASSESE: Thank you. Count 43:
8 A violation of the laws or customs of war punishable
9 under Article 3 of the Statute of the Tribunal and
10 recognised by Article 3(1)(a) (torture) of the Geneva
11 Conventions. How do you plead?
12 MR KUNARAC: I plead not guilty on this
13 count, too.
14 JUDGE CASSESE: Thank you, you may now be
15 seated. (Pause).
16 I will now turn to the Defence counsel.
17 Defence counsel, you have heard that the defendant has
18 pleaded guilty to count 41, crime against humanity
19 (rape) punishable under Article 5(g) of the Statute of
20 the Tribunal. Do you confirm that you were instructed
21 by the defendant to this effect?
22 MR PRODANOVIC: Yes, your Honour.
23 JUDGE CASSESE: Thank you. You may be
24 seated.
25 May I turn now to the Prosecutor and ask the
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1 Prosecutor about their position now with the guilty
2 plea by the defendant?
3 MS UERTZ-RETZLAFF: We did not have notice
4 before, so for us it is also new and we would need time
5 to consider especially the not guilty plea in regard to
6 Article 3 and crime against humanity (torture). In
7 regard to Article 2 -- count 42 -- we would be ready to
8 withdraw this count, but about the other two counts, we
9 would like to have some time for consideration.
10 JUDGE CASSESE: You said that you are
11 prepared to withdraw the count 42 -- did you say count
12 42 based on grave breach?
13 MS UERTZ-RETZLAFF: Yes, your Honour.
14 JUDGE CASSESE: But not count 43, based on
15 the violation of the laws or customs of war --
16 torture?
17 MS UERTZ-RETZLAFF: Yes.
18 JUDGE CASSESE: What about count 40, which
19 is torture, crime against humanity?
20 MS UERTZ-RETZLAFF: This is also a count that
21 we would like to consider, first, what to do.
22 JUDGE CASSESE: (Pause). On behalf of the
23 Trial Chamber, I would like again to turn to the
24 Prosecutor to ask whether they are prepared to consider
25 their position, and how much time do you need to come
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1 back with a specific position?
2 MS UERTZ-RETZLAFF: Does it mean you want us
3 to make the decision today?
4 JUDGE CASSESE: I am just asking whether you
5 need some time. Maybe we can reconvene tomorrow -- we
6 can adjourn until tomorrow morning.
7 MS UERTZ-RETZLAFF: Yes, that would be a good
8 solution.
9 JUDGE CASSESE: Or this afternoon -- do you
10 need more time?
11 MS UERTZ-RETZLAFF: I would prefer to have
12 tomorrow morning.
13 (Pause).
14 JUDGE CASSESE: First of all, let me ask
15 Defence counsel whether he is prepared to come back
16 tomorrow, because we are planning to adjourn until
17 tomorrow afternoon at 4.30pm. Would you be available
18 tomorrow afternoon?
19 MR PRODANOVIC: Yes, your Honour.
20 JUDGE CASSESE: Thank you. I wonder whether
21 it is convenient for the Prosecutor to come back
22 tomorrow afternoon at 4.30 so that they can set out
23 their position with regard to the various counts, and
24 in the light of the position of the Prosecutor, we will
25 decide how to proceed?
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1 MS UERTZ-RETZLAFF: Yes, that is convenient
2 for us.
3 JUDGE CASSESE: Therefore, the hearing
4 stands adjourned.
5 (4.17pm)
6 (The hearing adjourned)
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