Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10

1 Tuesday, 10 March 1998

2 (4.30pm)

3 JUDGE CASSESE: Good afternoon. Would the

4 Registrar please call the case?

5 THE REGISTRAR: Case number IT-96-23-I,

6 Prosecutor versus Dragoljub Kunarac.

7 JUDGE CASSESE: Appearances for the

8 Prosecutor, please.

9 MS UERTZ-RETZLAFF: Good afternoon, like

10 yesterday the Prosecution is represented by Mrs Sellers

11 and Hildegard Uertz-Retzlaff.

12 JUDGE CASSESE: Can you hear me?

13 MR KUNARAC: Yes, I can hear.

14 JUDGE CASSESE: Thank you. You may be

15 seated.

16 MR KUNARAC: I can hear.

17 JUDGE CASSESE: Thank you. As you can see,

18 your Defence counsel is not present in court this

19 afternoon and that, we understand, is as a result of a

20 communication received by the Deputy Registrar late

21 this morning. Please be assured, Mr Kunarac, that this

22 Trial Chamber will not take any action today that could

23 in any way adversely affect your rights. But, as the

24 continuation of these proceedings had been agreed to

25 yesterday by everyone present, including your Defence

Page 11

1 counsel, the Trial Chamber thought it only proper to

2 open the proceedings as scheduled.

3 We have received a notification from

4 Mr Prodanovic that he has been called to an urgent

5 meeting with other clients in Belgrade and that he has

6 therefore left The Hague. The Trial Chamber was only

7 informed of this fact 10 minutes to 1 -- 10 to 1

8 today. I wonder whether the Registrar could read out

9 the letter we received from the Registry.

10 THE REGISTRAR: Yes, your Honour:

11 "At approximately 11 o'clock this morning,

12 Mr Pantelic informed my assistant, Eric Frejabue, that

13 Mr Slavisa Prodanovic, counsel for Mr Drago Kunarac and

14 himself had to leave The Hague before the continuation

15 of the initial appearance scheduled to take place at

16 4.30 this afternoon.

17 Mr Pantelic informed us that he and

18 Mr Slavisa Prodanovic had just had a meeting with the

19 Office of the Prosecutor. He also mentioned he was now

20 called for an urgent meeting with his clients in

21 Belgrade and therefore had to leave immediately.

22 He said that the OTP was fully informed of

23 the situation and the Registry could contact them for

24 any additional clarifications. He finally requested

25 the Registry to inform the Trial Chamber of this force

Page 12

1 majeure, as he called it, and said that the Office of

2 the Prosecutor would do the same.

3 In a subsequent telephone conversation an

4 hour later, Mr Pantelic informed my assistant that

5 Mr Slavisa Prodanovic wanted to coordinate the

6 proceedings with his other clients. He would also send

7 an explanatory letter as to the exact circumstances of

8 this sudden departure."

9 JUDGE CASSESE: Thank you. Now, I would

10 like to put on record that the Trial Chamber views the

11 absence of counsel, be that Defence or Prosecution,

12 from a scheduled appearance without leave with grave

13 concern. The Trial Chamber particularly deplores the

14 absence of counsel today, in light of his specific

15 agreement to attend today's proceedings -- actually,

16 yesterday, before we adjourned until this afternoon at

17 4.30, I specifically asked the Defence counsel whether

18 he was agreeable and he said "yes".

19 The proceedings of this matter will have to

20 be adjourned to a later date and this delay is wholly

21 attributable to the absence of Defence counsel.

22 The Trial Chamber expects to receive as a

23 matter of urgency a written -- I say a "written" --

24 explanation and apology from the Defence counsel

25 following which we shall consider whether to exercise

Page 13

1 our powers under Rule 46 of our Rules of Procedure and

2 Evidence, which is a Rule about misconduct of counsel.

3 However, before we set a date for the

4 continuation of the initial appearance, I wonder

5 whether the Prosecution can advise the Trial Chamber

6 whether they were aware of the fact that Defence

7 counsel did not intend to appear today.

8 Maybe they could also tell us their position

9 as regards the plea to the indictment, so I wonder

10 whether the Prosecutor could address these two points.

11 MS UERTZ-RETZLAFF: We very much regret the

12 absence of the Defence counsel. After having been

13 surprised by yesterday's development, we had prepared

14 an oral submission regarding the factual basis for the

15 charge count 41 to which the accused had pleaded

16 guilty. Only after discussion this morning with the

17 Defence, we suddenly were told that they had to leave

18 immediately. We said that there would be the hearing

19 this afternoon and they said they could not attend and

20 that was it. We did, of course, not agree to their not

21 attending here.

22 But, in the light of the discussion with the

23 Defence, we would rather not proceed today and read out

24 our submission on the facts. We suggest an

25 adjournment, but we want to stress that we are very

Page 14

1 much interested in proceeding as soon as possible.

2 JUDGE CASSESE: If I understood you

3 correctly, you are not in a position to set out your

4 position with regard to the plea to the indictment

5 today, but you would rather put it off until our next

6 hearing?

7 MS UERTZ-RETZLAFF: Yes, your Honour.

8 JUDGE CASSESE: Thank you.

9 (Pause).

10 MR KUNARAC: It is a surprise for me, too.

11 I know what happened yesterday from my own side and

12 I also know what happened from the Prosecution side.

13 There have been two steps taken. Do I have the right

14 -- and I see that you have -- this was done in the

15 presence of the media and I see the monitors on, so

16 I assume that this is a public hearing?


18 MR KUNARAC: Has this been broadcast until

19 now?


21 MR KUNARAC: Because I have not seen

22 anything. There was nothing on my monitor.

23 JUDGE CASSESE: It is a public hearing, so

24 everything has been broadcast. Would you like to add

25 anything?

Page 15

1 MR KUNARAC: Personally, after yesterday's

2 move on the part of the Prosecution, I wanted to

3 consult with my counsel and I have tried today -- this

4 morning since 7 o'clock to contact my attorneys, and

5 I was unable to do so and I feel powerless here. But

6 I have a suggestion that I think would be to the

7 benefit of the Prosecution -- and this is all in the

8 interests of the entire truth and I think that all

9 present here -- that we have met here in order to

10 pursue the truth and I want the truth to be found and

11 I want justice to be done and we want to -- I would

12 like to come to the point at which a certain amount of

13 guilt can be ascertained.


15 MR KUNARAC: This is what is necessary.

16 (Pause).

17 JUDGE CASSESE: Mr Kunarac, you have, of

18 course, a right to speak in court, but I would strongly

19 advise you to consult with your counsel, and we, too,

20 are, of course, interested in expediting our

21 proceedings so that you may state your reasons and your

22 position. Therefore, we have just decided that our

23 next hearing will be held in a few days -- on Friday --

24 next Friday, 13 March, at 8.30, and we will ask your

25 counsel -- we will issue an order under contempt powers

Page 16

1 so that your counsel will be present on Friday at

2 8.30. So, I would strongly suggest that you then

3 should, first of all, consult with your counsel before

4 stating your views and your reasons.

5 I wonder whether the Prosecutor is agreeable

6 -- Friday, 13 March, 8.30.


8 JUDGE CASSESE: It is 8.30, because at 10

9 another trial is going to take place.

10 MR KUNARAC: Let me tell you -- may I ask you

11 as the President of the Trial Chamber in whom I have

12 unlimited trust -- I think you are the neutral side in

13 this case between me and the Prosecutor -- I ask you to

14 give me an answer to a short question, or maybe any

15 kind of legal adviser, but I would wish that you answer

16 this question for me.

17 JUDGE CASSESE: Let me state that, under our

18 Statute, Article 21, you have a basic right to defend

19 yourself in person, or through legal assistance of your

20 own choosing. You are now choosing to defend yourself

21 in person, or to state your own views, or state your

22 position without consulting with your Defence counsel

23 -- you are aware of that, that you are now going to

24 speak without prior consultation with your Defence

25 counsel?

Page 17

1 MR KUNARAC: I am aware of what I am doing,

2 but I am going to ask -- my counsel left without

3 consulting me, without my approval, without my knowing

4 anything. Is there anybody here at the Tribunal whom

5 I can ask something in clarification? I am not a

6 lawyer, so I have one single question, so we can finish

7 this very quickly.

8 (Pause).

9 JUDGE CASSESE: Mr Kunarac, we do appreciate

10 the predicament in which you have been put by your

11 Defence counsel, who left without telling you, without

12 consulting with you, and you have, of course, a right,

13 a basic right to have some legal advice -- of

14 course, not from the court. We have just been told by

15 the Registrar that a lawyer is available here in the

16 building, and he will be asked to provide legal counsel

17 to you as soon as we adjourn our hearing. So,

18 therefore, rest assured that you will get legal

19 assistance from this attorney, who will come and give

20 you some legal advice and discuss with you legal points

21 relating to your case.

22 But, as I say, we will adjourn now until

23 Friday -- a few days -- this week, 13 March, at 8.30.

24 We will make sure that your counsel will be present

25 here to give you legal assistance. I see that you are

Page 18

1 not satisfied. Yes, please.

2 MR KUNARAC: I am not satisfied by the

3 decision, because what is important to me -- I am the

4 only one here who knows the real truth. The

5 Prosecution knows partially the truth and so does my

6 Defence counsel. I am the only one who knows the real

7 truth. I know why I said yesterday that I was guilty

8 of count 41. I also know why the public Prosecutor did

9 drop the count 42 and I think that it was in my

10 interest.

11 Yesterday, the indictment was not read to

12 me. This was done on my request and so maybe the other

13 persons who were present here did not know what was

14 involved, because it was only maybe that the

15 Prosecution and myself who knew the charges here.

16 So, this is in relationship to count 43 --

17 this is in 4.8, where they said that there was no proof

18 for 43. I would like the 4.8 to be read out now,

19 especially the last sentence, or I can read it.

20 JUDGE CASSESE: Could you repeat again?

21 Which particular point of the indictment are you

22 referring to -- are you referring to the indictment?

23 MR KUNARAC: Yes, yes, the indictment, which

24 was given to me, and this is the indictment against me

25 and another seven individuals.

Page 19

1 (Pause).

2 JUDGE CASSESE: We have decided that we will

3 now adjourn until 5.30. Meanwhile, you will be able to

4 get in touch with the lawyer, who will give you legal

5 assistance. When we come back here, we will reconvene

6 for the continuation of this hearing -- you will

7 probably be in a position then to set out your views

8 after getting legal advice from a lawyer, who is in the

9 building. So, we stand adjourned until 5.30 sharp.

10 (4.50pm)

11 (A short break)

12 (5.37pm)

13 JUDGE CASSESE: Before we start, let me say

14 at the outset and remind the defendant, Mr Kunarac,

15 that under our Statute, which I quoted before, Article 21,

16 he has a basic right to defence, but he can conduct his

17 defence by himself. He also has the right to dismiss

18 his present Defence counsel and appoint a new one of

19 his choice. Having said that, I wonder whether

20 Mr Moran, who has been so kind as to come to court,

21 whether he can state the position of the defendant.

22 MR MORAN: Yes. I am Tom Moran. I have met

23 with the defendant for about five or 10 minutes and

24 there are some things he needs to go over with his

25 counsel. He does have some questions about the

Page 20

1 procedures and the Rules. I have no reason to believe

2 he wishes to dismiss his counsel. I think he is quite

3 happy with the lawyers he has. I do not know all the

4 facts, or why they did not make their appearance

5 today. I presume there is a good reason and I am sure

6 the court will learn what the reason is at some point.

7 What we would like to ask for at this point is an

8 adjournment so that he can meet with counsel. There

9 are some questions that he has, both as to procedures

10 and as to the effects of various types of pleas.

11 I think that he needs to discuss that with

12 his counsel probably at some length before you continue

13 the initial appearance, your Honour.

14 JUDGE CASSESE: Thank you. Therefore, we

15 can confirm that we adjourn now until next Friday, 13

16 March, at 8.30. The defendant will be, I hope,

17 assisted by his Defence counsel.

18 MR MORAN: Your Honour, I will be here for

19 that appearance -- I will be in The Hague on Friday, so

20 I will show up early, and even if we are not in

21 session, just to make sure there is someone here to

22 represent the defendant.

23 JUDGE CASSESE: Thank you very much. It is

24 very kind of you and we appreciate your cooperation.

25 We now stand adjourned until Friday at 8.30.

Page 21

1 (5.40pm)

2 (The hearing adjourned until 8.30 am

3 on Friday, 13th March 1998)