Tribunal Criminal Tribunal for the Former Yugoslavia

Page 72

1 Thursday, 24 July 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.16 p.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Case number IT-02-59-PT, the Prosecutor versus

8 Darko Mrdja.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 May I have the appearances, Prosecution first. Mr. Tieger.

11 MR. TIEGER: Good afternoon, Mr. President, Your Honours, learned

12 colleagues from the Defence. Alan Tieger and Timothy Resch on behalf of

13 the Office of the Prosecutor, assisted by case manager Skye Winner.

14 JUDGE ORIE: And for the Defence.

15 MR. DIMITRIJEVIC: Good morning, Your Honours. Good afternoon,

16 sorry. Vojislav Dimitrijevic, lead counsel for Defence, and as

17 co-counsel, Otmar Wachenheim. Thank you.

18 JUDGE ORIE: Thank you, Mr. Dimitrijevic.

19 Mr. Mrdja, let me first ask you whether you can hear me in a

20 language you understand.

21 THE ACCUSED: [Interpretation] Your Honours, I can hear you very

22 well.

23 JUDGE ORIE: I have to find the right channel in order to

24 understand your answer. Could perhaps the interpreters repeat the

25 translation of what Mr. Mrdja just said.

Page 73

1 THE ACCUSED: [Interpretation] Your Honours, I can hear you very

2 well.

3 JUDGE ORIE: Thank you very much.

4 Mr. Mrdja, please be seated.

5 THE ACCUSED: [Interpretation] Thank you, Your Honours.

6 JUDGE ORIE: It's the first time that you appear before this Trial

7 Chamber; therefore, I'd like to introduce the Judges of this Trial Chamber

8 to you, because your case has been transferred from another Trial Chamber

9 to this Trial Chamber. To my left is Judge Canivell, to my right is Judge

10 El Mahdi, and I, as Presiding Judge, my name is Orie.

11 Mr. Mrdja, this hearing was scheduled orally as a result of a 65

12 ter -- Rule 65 ter meeting that was held this morning, and it was on

13 specific request of the parties to have this hearing held as soon as

14 possible this afternoon. This hearing has been scheduled in order to hear

15 a joint motion for consideration of a plea agreement that has been

16 concluded between you and the Office of the Prosecution. The motion has

17 been filed confidentially and under seal, and before we further deal with

18 this motion, the Chamber would like to turn into closed session for a

19 short while to discuss a few items before we --

20 [Trial Chamber confers with registrar]

21 JUDGE ORIE: Private session would do. Private session means that

22 the public can still see what happens in this courtroom but cannot hear

23 the words spoken in this courtroom. We'll now turn into private session.

24 [Private session]

25 (redacted)

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1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 JUDGE ORIE: We are in open session again.

13 We hear the joint motion for consideration of a plea agreement, a

14 plea agreement that, according to the Rules, is required to be disclosed.

15 I would like to go through the plea agreement at least through the main

16 lines, in order to make sure, Mr. Mrdja, that everything is entirely clear

17 to you. But before doing so, I would very much like first of all to

18 verify whether it was you who signed the agreement. So if the usher would

19 please show to you especially the B/C/S version of the agreement, pages 5

20 and 6. And could you then, without showing it to the public, of course.

21 And could you confirm, Mr. Mrdja, that your signature appears on the pages

22 5 and 6.

23 THE ACCUSED: [Interpretation] Your Honour, everything is in order.

24 JUDGE ORIE: Thank you. I showed you a copy and not the original

25 of the plea agreement.

Page 81

1 Another issue, but I'm now addressing the parties. There seems to

2 be a slight problem as far as dates are concerned. If I look at the

3 English version, but the same is, as far as I can see, true, but on other

4 pages, for the B/C/S version, I find dates in handwriting on page 7 and 8,

5 the 24th of July, whereas the typed text on page 8 refers to the 23rd of

6 July. I can imagine that the explanation would be that there might have

7 been intention already to sign this agreement yesterday, and that

8 therefore the date of the 23rd of July still appears. Is that explanation

9 a correct understanding of the origin of this inconsistency?

10 MR. TIEGER: It is, Your Honour. That's correct.

11 JUDGE ORIE: And that's also the view of the Defence?

12 MR. DIMITRIJEVIC: Yes, Your Honours.

13 JUDGE ORIE: Thank you very much for this clarification.

14 Then, Mr. Mrdja, I'll go with you, briefly, through the

15 agreement. The commitment you make is that you'll enter a guilty plea on

16 counts 2 and 3 of the indictment. Because you are guilty and because you

17 take full responsibility for the acts described, in respect of counts 2

18 and 3. We'll later discuss the exact facts, but that is your commitment

19 in the agreement. You may be -- you may remain seated. You don't have to

20 stand up all the time, although I appreciate your --

21 THE ACCUSED: [Interpretation] Thank you.

22 JUDGE ORIE: Special respect. So your commitment is to enter a

23 guilty plea on counts 2 and 3. And in exchange for your guilty plea, the

24 parties have agreed that that'll make a joint recommendation that the

25 Chamber will impose a single sentence in the range of 15 to 20 years of

Page 82

1 imprisonment. And the second part is that the Prosecution will move to

2 dismiss, without prejudice to either party, the remaining charge. The

3 remaining charge is under count 1, and it's a charge of extermination.

4 Mr. Tieger, I do understand that if it says that the Prosecution

5 will move to dismiss, that it will be done by way of an application for

6 leave to amend the indictment so as to strike count 1 of the indictment.

7 Is that a correct understanding?

8 MR. TIEGER: That is correct, Your Honour.

9 JUDGE ORIE: Thank you, Mr. Tieger.

10 Then the next issue I'd like to raise with you briefly, Mr. Mrdja,

11 is the factual basis of the plea agreement which corresponds with the

12 charges that have been brought against you by the Prosecution. The

13 factual basis of the plea agreement consists, and I summarise, of the

14 following: That an armed conflict took place in August 1992 in Bosnia and

15 Herzegovina, that it involved the widespread and systematic attack upon

16 non-Serb civilian population in Prijedor, and that you acknowledge that

17 the crimes to which you intend to plead guilty were part of this

18 widespread and systematic attack.

19 Furthermore, that on the 21st of August, 1992, that you were a

20 member of the Prijedor police intervention squad and that on that day, in

21 your official capacity as a police officer, you participated in the

22 escorting of an organised convoy of Muslim or non-Serb civilians from

23 Tukovi and the Trnopolje camp in Prijedor towards the municipality of

24 Travnik, that these civilians were in buses and on trucks. And that at a

25 location along the Ilomska River, between Skender Vakuf and Mount Vlasic

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Page 84

1 that the convoy stopped, at this location you and other members of the

2 intervention squad implemented orders, actively implemented orders to

3 separate military-aged men from the rest of the convoy, including a

4 personal selection of men by yourself, being aware and expecting that

5 these men would be murdered. A large number of these men, the estimate is

6 in excess of 200, were then loaded into buses. These men were taken in

7 two buses to Koricanski Stijene.

8 Finally, they were ordered to leave those buses and either in

9 larger groups or in smaller groups, they were ordered to kneel at -- close

10 to a deep ravine and were shot and killed. The factual basis is also that

11 you, together with the others, personally and directly participated in the

12 unloading, the guarding, escorting, shooting, and killing of the unarmed

13 men at Koricanski Stijene.

14 From the context of paragraph 9 in the plea agreement, I do

15 understand that where it says that these men that left the buses and were

16 ordered to kneel were shot and killed, that not all of them were killed

17 and that a small number, 12 men, survived this massacre, but that all the

18 others were killed.

19 This is the factual basis on which you agreed with the

20 Prosecution, according to this plea agreement.

21 Then the plea agreement also contains a cooperation clause with

22 the Prosecution which does not give any specifics or details on what

23 subjects or what cases or what other accused or what events you'd give

24 information about. It's a general commitment. And even if the agreement

25 would not have said that such cooperation would have -- could result in

Page 85

1 considering such cooperation as a mitigating factor, the Rules of

2 Procedure and Evidence do so in Rule 101 under (B)(ii).

3 Furthermore, the agreement makes sure that you are aware that the

4 joint recommendation of a term of imprisonment of between 15 and 20 years

5 does not bind the Chamber, who will impose sentence, and that the Chamber

6 is free whether or not to follow that recommendation, of course, while

7 applying the rules on sentencing of the Rules of Procedure and Evidence.

8 The agreement also says that you'll not appeal the sentence

9 imposed by the Trial Chamber unless the sentence imposed is above the

10 range recommended by the parties. This is a usual clause in such

11 agreements. It has never been tested to its validity by the Appeals

12 Chamber and it's not for the Trial Chamber at this moment to express

13 itself on that. The Trial Chamber noticed that your right of appeal was

14 that you restricted yourself, although not unlimited, in your right to

15 launch an appeal.

16 Similarly, you agreed that you'll not move to withdraw your guilty

17 plea or appeal against conviction, a conviction pursuant to the guilty

18 plea.

19 Then the consequences as far as sentencing is concerned, to some

20 extent I referred to that already, is mentioned under 17 and under Rule 18

21 you give up in the agreement right you would usually exercise if a case

22 would have gone to trial. I just mention a few of them. For example,

23 that you would defend yourself, that you would call witnesses, that you

24 would examine witnesses, that you would prepare for such a defence, that

25 the right to remain silent, which is often invoked by those who stand

Page 86

1 trial, that by entering a different plea, of course, you give up that

2 right. On the other hand, under 19, it says quite clearly that you do not

3 waive your right to be represented by counsel at all stages of the

4 proceedings.

5 This is the -- I would say these are the main lines of the plea

6 agreement. The agreement ends that no other agreements have been

7 concluded between -- no additional promises have been made, no additional

8 undertakings, understandings of agreements between you and the Office of

9 the Prosecutor.

10 Mr. Mrdja, I went through the plea agreement on the main lines.

11 Is there anything that is not clear to you in respect of this agreement?

12 Is there anything you would like to say adding to this agreement between

13 you and the Office of the Prosecution?

14 THE ACCUSED: [Interpretation] Your Honour, everything is clear to

15 me.

16 JUDGE ORIE: Thank you very much, Mr. Mrdja. We then come to the

17 point where I have to ask you whether you want to change your plea on

18 counts 2 and 3 of the indictment as it stands at this moment.

19 THE ACCUSED: [Interpretation] I am guilty under counts 2 and 3.

20 JUDGE ORIE: So I do understand that you want to change your

21 plea. I would like to ask Madam Registrar first to read count 2 of the

22 indictment against Mr. Darko Mrdja.

23 THE REGISTRAR: Count 2, murder, a violation of the laws or

24 customs of war, as recognised by Article 3(1)(a) of the Geneva Convention

25 of 1949, punishable under Articles 3 and 7(1) of the Statute of the

Page 87

1 Tribunal.

2 JUDGE ORIE: How do you plead to count 2, Mr. Mrdja?

3 THE ACCUSED: [Interpretation] Guilty, Your Honour.

4 JUDGE ORIE: Madam Registrar, would you please read count 3 of the

5 indictment.

6 THE REGISTRAR: Count 3: Inhumane acts, (attempted murder), a

7 crime against humanity, punishable under Articles 5(i) and 7(1) of the

8 Statute of the Tribunal.

9 JUDGE ORIE: How do you plead to count 3, Mr. Mrdja?

10 THE ACCUSED: [Interpretation] Guilty, Your Honour.

11 JUDGE ORIE: Thank you. Please be seated.

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

13 JUDGE ORIE: The Chamber has now to satisfy itself that your plea

14 has been made voluntarily, that your plea was informed, that your plea is

15 unequivocal and has a sufficient factual basis both for the crime and for

16 your participation therein. I have carefully listened to your answers

17 when we went through the plea agreement. I have no further questions in

18 respect of these issues, but would like to give an opportunity to the

19 other Judges to ask any additional questions in this respect.

20 We have no further questions in this respect. The Chamber notices

21 that on the basis of the summaries of witness statements, witnesses that

22 the Prosecution intended to call while presenting its case, that on the

23 basis of the summaries, the Chamber will try to find whether there's a

24 sufficient factual basis for your plea. The Chamber notices that among

25 these summaries of witness statements, we find statements of potential

Page 88

1 witnesses that stated that you were present during the convoy and at the

2 location of the killing of a large number of men, as we just discussed.

3 The Chamber also notices that some of the survivors have described

4 you, and the Chamber is at this moment able to verify at least a few parts

5 of that description, that is, approximate age and approximate length. The

6 Chamber also noticed that some of the witnesses described you and

7 specifically referred to your teeth, where one or more teeth would be

8 missing. The Chamber also took notice of a summary of witness statements

9 in which it was indicated that as a result of investigations, corpses were

10 found at that very place and cartridges from fire weapons.

11 I am putting this to you because, of course, this evidence has not

12 been presented. If, for any reason, the parties would consider that the

13 Chamber would not have found an appropriate basis for an eventual finding

14 that there's a sufficient factual basis, then I would like to invite the

15 parties at this moment to give comments on what I just said. The Rules

16 indicate that the Chamber should consider independent indicia and a lack

17 of disagreement between the parties. It seems that there's no

18 disagreement between the parties. What I just did is to see whether the

19 material, as it has been presented during the pre-trial stage of the

20 proceedings, would be a proper basis for us to consider whether

21 independent indicia would support the plea. And I'm especially addressing

22 at this moment the Defence, because the material came from the

23 Prosecution, but it has not ever been challenged.

24 Could the Chamber use these statements as independent indicia in

25 order to answer the question whether the Chamber will find a sufficient

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Page 90

1 factual basis for accepting the plea? Mr. Dimitrijevic.

2 MR. DIMITRIJEVIC: Thank you, Your Honour. I will be very short.

3 I think that those evidences presented by OTP can be a sufficient basis

4 for your decision.

5 JUDGE ORIE: Thank you very much, Mr. Dimitrijevic.

6 The plea has been entered by the accused. Mr. Tieger, would this

7 be an appropriate time for an oral motion to ask leave to amend the

8 indictment?

9 MR. TIEGER: Certainly, Your Honour. Contingent upon the Court's

10 acceptance of that plea, the Prosecution would move for leave to amend the

11 indictment to strike count 1 without prejudice from the indictment.

12 JUDGE ORIE: Yes. We previously have asked you a question about

13 what without prejudice meant, and especially what it did not mean.

14 Keeping this in mind, your oral motion is to strike on page 4 of the

15 English version of the indictment count 1, reading extermination, a crime

16 against humanity, punishable under Article 5(b) and 7(1) of the Statute of

17 the Tribunal.

18 The Chamber is aware that, of course, it's under the condition

19 that the Chamber will accept the plea, the Chamber would like to adjourn

20 for perhaps a very short while to deliberate on whether we could continue

21 this day or whether the Chamber would need more time to consider the

22 applications and to consider the plea as entered by the accused, whether

23 to accept it or not.

24 Yes. We'll adjourn, presumably for not more than five to ten

25 minutes.

Page 91

1 --- Recess taken at 5.01 p.m.

2 --- On resuming at 5.08 p.m.

3 JUDGE ORIE: In order to avoid whatever misunderstanding,

4 Mr. Tieger, the Chamber does understand well that under count 3, we are

5 talking about other inhumane acts, and that's the crime, because it says

6 attempted murder, which is considered to be a crime in many domestic

7 jurisdictions. But is our understanding correct that by saying inhumane

8 acts and referring to Article 5, under (i) that you would say that the

9 crime is inhumane acts and that you just summarised what these inhumane

10 acts were and that it is an attempt to murder those who survived?

11 MR. TIEGER: That is correct, Your Honour.

12 JUDGE ORIE: Thank you very much. If this would cause any further

13 comments from the Defence, I'd like to hear. If not, we'll proceed.

14 Mr. Mrdja, would you please stand. The Chamber accepts your plea

15 and immediately enters its finding of guilt. This Chamber, Mr. Mrdja,

16 finds you guilty of count 2, murder, a violation of the laws or customs of

17 war, as recognised by Article 3(1)(a) of the Geneva Convention of 1949,

18 punishable under Article 3 and 7(1) of the Statute of the Tribunal. The

19 Chamber further finds you guilty of count 3 of the indictment brought

20 against you, inhumane acts, a crime against humanity, punishable under

21 Articles 5(i) and 7(1) of the Statute of the Tribunal. Please be seated.

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

23 JUDGE ORIE: Mr. Tieger, the Chamber grants your application for

24 amendment of the indictment to the extent that the indictment will be

25 amended by taking out of it count 1, extermination, a crime against

Page 92

1 humanity, punishable under Article 5(b) and 7(1) of the Statute of the

2 Tribunal. The Prosecution is ordered to file the amended indictment so

3 that the new indictment is available in the registry and is put on paper.

4 Then finally, the registry is instructed to set a date for a

5 sentencing hearing, but not after having consulted with the Chamber and

6 the parties.

7 We will adjourn until the sentencing hearing, still to be set.

8 --- Whereupon the Motion Hearing adjourned

9 at 5.13 p.m.