Tribunal Criminal Tribunal for the Former Yugoslavia

Page 92

1 Thursday, 3 July 2003

2 [Initial Appearance]

3 [Open session]

4 --- Upon commencing at 3.43 p.m.

5 JUDGE AGIUS: Please be seated.

6 Madam Registrar, could you call the case, please.

7 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour.

8 This is the case number IT-95-13/1-PT, the Prosecutor of the Tribunal

9 against Veselin Sljivancanin.

10 MR. SOLLEY: Your Honour, I'm familiar with the courtroom, forgive

11 the delay on pressing the button. I'm assigned counsel today for

12 this --

13 JUDGE AGIUS: Welcome.

14 MR. SOLLEY: -- for this defendant. But it's important, I think,

15 that I tell you what the situation is.

16 The defendant -- three lawyers arrived today from Belgrade. For

17 many days now they have been taking instructions, it would appear, from

18 this defendant in some form or another. They tell me that about nine days

19 ago they sent all their credentials to the administration here so that

20 they could be checked out, ready to become this defendant's counsel for

21 the hearing today. Indeed, so confident were they that things had gone

22 smoothly according to the proper course that they at their considerable

23 expense attended today directly from Belgrade.

24 It turns out for reasons which we can't get to the bottom of and

25 probably can't be got to the bottom of today, the administration has not

Page 93

1 been in a position to be able to check their credentials.

2 This defendant has, as one may understand, considerable faith in

3 these representatives from Belgrade. Without discourtesy to me, he has no

4 particular faith in me for obvious reasons: He doesn't know me. If it be

5 -- and I'm not suggesting it is -- but if it be the fault of the

6 administration in some respect or other that the lawyers he want are not

7 properly accredited, if it be a failure on their part, then of course that

8 must not reflect upon his shoulders in any way, and he ought to be put in

9 a position where he can have assigned counsel of his choice, if that is

10 the position that finally obtains, once they've been investigated.

11 And so we're at a stage today where he tells me - and therefore I

12 tell you - that he will not in any way respond to the position he finds

13 himself in because, from his point of view, as you may understand, he

14 thinks because of a failure of the administration, counsel representing

15 him properly haven't yet been checked through and aren't in a position, as

16 it were, to my side along this bench. Now, that may be a reasonable

17 position. One doesn't know it.

18 JUDGE AGIUS: Definitely it could be.

19 MR. SOLLEY: Therefore --

20 JUDGE AGIUS: But so far I've only heard one side of the story.

21 MR. SOLLEY: And therefore, what I am proposing is, rather than

22 proceed today, recognising as I do that it is something of a formality

23 today, may I propose that these proceedings be adjourned for seven days so

24 that the position can become clear as to these other counsel. If they are

25 to be assigned to him properly, then all will be very smooth next week.

Page 94

1 In the context of what is to come over the next months, the week will not

2 be a serious delay. But if it turns out that the administration here

3 should have checked or could have checked and haven't, then to proceed

4 today may be thought to be perhaps a little unnecessary in the context of

5 the whole time frame.

6 I have clear instructions that he does not wish to, not

7 disrespect -- not out of disrespect to you, Your Honour, but he does not

8 wish to appear and to take any part in proceedings where the lawyers of

9 his choice are not present. He recognises -- forgive me. He recognises

10 that his freedom of choice is fettered and is fettered by the Rules and

11 regulations and the authorities of this Court, but we're not in the

12 position yet where, as it were, the bureaucracy has gone through that.

13 JUDGE AGIUS: I understand. I understand that. But before I

14 respond to you, I notice that Ms. Martinez is still here. Could I have an

15 update on the position as regards the accused's proposal that three

16 lawyers that haven't been mentioned by name, but I suppose you are aware

17 of their existence, what the position is and what the expectations are?

18 MS. MARTINEZ: Yes, Your Honour.

19 JUDGE AGIUS: I think I can then use Mr. Solley, who comes from a

20 jurisdiction where barristers usually know exactly how to handle such

21 situations, and I will rely entirely on you, Mr. Solley, for your

22 assistance. But before I do so and before I take a decision, believe me,

23 I want to know exactly what the position is, because this Tribunal is

24 bound by its own Rules and those Rules have to be observed. You all know

25 that the right to be assisted by counsel does not mean that you have a

Page 95

1 right to bring here a dozen lawyers to defend you and expect the Tribunal

2 to pay for them too. So let's take it up from there.

3 For the time being, I think you've been extremely reasonable and

4 moderate in your submissions. I will hear what Ms. Martinez has to say

5 and then we'll take it up from there. If it is necessary to postpone, we

6 will postpone. Don't worry.

7 Yes, Ms. Martinez.

8 MS. MARTINEZ: Yes, Your Honour. There are indeed two lawyers who

9 came today from Belgrade. I wasn't here last week, so I don't -- I'm not

10 in a position to tell you what happened with the credentials, but I

11 checked with my office and no one has seen those papers. And all I can

12 say at the moment is that in principle -- these two lawyers, none of them

13 speak an official language of the Tribunal, so they are not, in principle,

14 qualified according to the Rules. We could make an exception in the

15 interest of justice, but obviously we would need some time to -- to review

16 the credentials and see whether it is appropriate to do so. It's why we

17 considered that it could be the best for the accused to appoint a

18 qualified counsel just for the purpose of the Initial Appearance today.

19 MR. SOLLEY: May I, I hope helpfully, respond?


21 MR. SOLLEY: Because of the unfortunate situation where

22 Ms. Martinez was not here last week --


24 MR. SOLLEY: -- as I said, I think, in my remarks, the

25 authoritative position about this can't be determined. So it may be that

Page 96

1 in some way wires have gone crossed, and I think one ought to make --

2 JUDGE AGIUS: It's possible --

3 MR. SOLLEY: One ought to make that assumption.

4 Secondly, since there is the circumstance which has been set out,

5 namely that even if they don't speak English or French, there can be an

6 exception made in the interest of justice, that too allows a door to be

7 opened. And because there are those two caveats to the position, Your

8 Honour, I would respectfully suggest that rather than proceed today and in

9 circumstances where quite a lot of difficulty may be presented, I --

10 JUDGE AGIUS: Those don't -- those don't bother me in the least,

11 believe me.

12 MR. SOLLEY: Yes. I, too, have many, many years' experience of

13 difficult situations with recalcitrant defendants. A few days' grace may

14 be a very well-oiled solution to what today may be an intractable problem.

15 JUDGE AGIUS: Right. What I'm going to do is I'm going to suspend

16 the sitting for 15 minutes.

17 Yes, Madam Registrar.

18 I'm going to suspend the sitting for 15 minutes. And the

19 following persons have got these specific tasks to play:

20 Number one: Ms. Martinez, you will check thoroughly with your

21 department, with your office, what the situation is with regard to the

22 credentials, whether they were filed, when they were filed. And I don't

23 want any justification in case they haven't been gone through and

24 verified, because I know that you are the head of the department and if

25 you weren't here and no one did go through them thoroughly, I will

Page 97

1 certainly not put any blame on you. But I will want to know how fast you

2 would be in a position or how early you would be in a position to come

3 back to us with a decision; come back to us or to the accused. That's

4 number one.

5 Mr. Wubben, I would like you to consult your superiors on whether

6 there is an objection on the part of the Prosecution that the Initial

7 Appearance be postponed to some other day next week, with the

8 understanding that by that time a decision would have been taken by

9 Ms. Martinez or whoever is responsible for -- for the Registrar.

10 And the final person with an important task is you, sir. I would

11 like you to go back to your client and explain to him that the right to

12 counsel does not mean that he can dictate to the Tribunal how many lawyers

13 and who can represent him. We've got our own Rules, our own restrictions,

14 and we have to abide by those. That's number one.

15 Number two, you need to explain to him also that I -- in me he

16 will find the best defence. I'm not saying that you will not defend him

17 well, but I am -- want you to explain to him that the person who will look

18 at a hundred per cent level, constantly and at all time will be myself as

19 a Pre-Trial Judge until we come to the trial stage. And I can promise him

20 that his interests, his rights, will be protected at all costs by me as

21 the Pre-Trial Judge. But that also means - it's not a question of respect

22 or disrespect - that if I say that he has to be here to answer questions,

23 he needs to be here. I will caution him that he has the right to remain

24 silent. But if I say he has to come in here, he will have to come in

25 here. And if he doesn't come here on his two feet, I'll make sure that he

Page 98

1 is brought in here.

2 MR. SOLLEY: Your Honour, I hope we won't get to that stage.

3 JUDGE AGIUS: I hope so. I mean --

4 MR. SOLLEY: I would like to make submissions to you about what I

5 regard as the -- what I would submit to you, respectfully, as the

6 unlawfulness of that course in due course, but we may not get to that

7 bridge.

8 I do want you to know that counsel, of course, are not meant to

9 have personal views, and so I have to tread carefully. But since you

10 asked me to put the first point, I -- about counsel of choice, it would be

11 right for me to say that I don't regard this as being truculence that

12 brings him into this position today, just sheer bloody-mindedness.

13 JUDGE AGIUS: Oh, no. It's not capricious at all. I understand

14 that.

15 MR. SOLLEY: It could happen. But it is not the position here

16 today.

17 JUDGE AGIUS: I understand that.

18 MR. SOLLEY: I want Your Honour to know that.

19 JUDGE AGIUS: I understand that. And I also understand the

20 position in which you find yourself at. That's why I'm telling you you

21 don't just have my sympathy but you also have my full understanding and

22 support.

23 MR. SOLLEY: Thank you.

24 JUDGE AGIUS: And I want to show publicly my appreciation for your

25 cooperation, Mr. Solley, because that is extremely useful.

Page 99

1 So I will suspend the sitting for 15 or 20 minutes and which --

2 during which time, particularly, Mr. Wubben, I want some kind of categoric

3 feedback from the Prosecutor, because if there is an insistence that we

4 proceed today, then much depends on what Ms. Martinez will tell me.

5 The sitting is suspended for 20 minutes. Thank you.

6 --- Break taken at 3.57 p.m.

7 --- On resuming at 4.24 p.m.

8 JUDGE AGIUS: So we'll reconvene.

9 Ms. Martinez, I'm going to start with you. Have you consulted

10 your superior -- your immediate superior and found out as to what happened

11 exactly and what the situation is?

12 MS. MARTINEZ: Yes, Your Honour. I have found out that we have

13 indeed received the documents last Tuesday. My office received the

14 documents with a request for a visa for these two lawyers. Our practice

15 usually is that we don't recognise any power of attorney if it's not

16 directly coming from the accused. So we always wait until the accused

17 comes and then we meet with the accused and the lawyers and we get this

18 power of attorney together with the declaration of means and all that.

19 I must say that it's unfortunate - I don't know what happened -

20 but usually we should have contacted these lawyers to find out whether

21 they were indeed duly qualified, especially because we always check

22 whether they speak an official language. According to the -- because we

23 have only received a CV for one of them, the other one, we don't have any

24 CV, and the one we have received is not actually completed. We need

25 further information on the criminal law experience. From the CV, we can't

Page 100

1 really see whether they speak English or not, so now we found out that

2 none of them speaks actually English, an official language of the

3 Tribunal. So in principle, as I said before, they are not qualified,

4 according to Rule 44(A) of the Rules of Procedure and Evidence, so we only

5 could make an exception in the interest of justice and we only do that in

6 very exceptional circumstances, when we have really very compelling

7 reasons to -- in the interest of the accused.

8 What can I say --

9 JUDGE AGIUS: Stop, Ms. Martinez.

10 I think your client should be here to listen to all this.

11 Please. I will suspend again. Go and tell him I want him in

12 here. We will not start the proceedings proper but I want him in here to

13 know exactly what is happening.

14 MR. SOLLEY: You needn't rise, Your Honour. I have spoken to him.


16 MR. SOLLEY: And in order to avoid any kind of physical problem,

17 if you order him to be in court, he will be in court.

18 JUDGE AGIUS: Yes. So I'm making an order. We will not proceed

19 because, from what I've heard now, it's enough justification for me to

20 postpone the basic part of the Initial Appearance until some later point

21 in time. But I want him to be present.

22 MR. SOLLEY: With respect, I couldn't agree more with you, Your

23 Honour.

24 JUDGE AGIUS: Yes. Okay. So please --

25 MR. SOLLEY: Can I just mention this: I gather there were some

Page 101

1 photographers there, and I don't suppose they'll come in now.

2 JUDGE AGIUS: Not while I am sitting. Definitely not.

3 MR. SOLLEY: Good. Because since we don't know the case yet that

4 we have to meet, I'm concerned about issues of identification. But I

5 needn't even mention that now.

6 JUDGE AGIUS: No. There is, Mr. Solley, a -- an order which we

7 sign in every Initial Appearance, and that's an order authorising the

8 taking of photographs and for the release of audiovisual records. But

9 since we haven't really started with the Initial Appearance, this will be

10 postponed until when we really start with the Initial Appearance.

11 MR. SOLLEY: Thank you.

12 JUDGE AGIUS: So I give you permission to --

13 Just before he walks in, I want his lawyer to inform him of what

14 is -- what is happening.

15 Does he understand any English at all or not?

16 MR. SOLLEY: No.

17 JUDGE AGIUS: So you need someone to assist you in interpretation?

18 MR. SOLLEY: I would hope that if I were to call him in, he would

19 come in --

20 JUDGE AGIUS: All right.

21 MR. SOLLEY: -- without --

22 JUDGE AGIUS: So do that, Mr. Solley --

23 MR. SOLLEY: If you permit me to --

24 JUDGE AGIUS: -- and we will be forever grateful. Thank you.

25 And Ms. Martinez, I suggest that perhaps if you can contact

Page 102

1 Mr. Pimentel, ask him to be present.

2 Oh, I am sorry, Mr. Pimentel. I didn't notice your presence.

3 Thank you.

4 [The accused entered court]

5 JUDGE AGIUS: Good afternoon, Mr. Sljivancanin.

6 THE ACCUSED SLJIVANCANIN: [Interpretation] Good afternoon.

7 THE INTERPRETER: Microphone for the accused, please.

8 JUDGE AGIUS: Your microphone.

9 Please take a chair.

10 THE ACCUSED SLJIVANCANIN: [Interpretation] Thank you.

11 JUDGE AGIUS: We haven't started the Initial Appearance as yet,

12 and I don't think we will start it today, considering what has been

13 submitted on your behalf by your capable lawyer here, who has been

14 assigned to you for today's sitting.

15 I am going to try and explain to you what is happening, because

16 you have a right to know. Mr. Solley informed the Tribunal, informed me,

17 actually, as soon as we started the sitting that two or three lawyers of

18 your choice had asked the Tribunal to appoint them as your legal

19 representatives and that they had contacted the Tribunal nine days ago and

20 had not received any communications from the Tribunal until they

21 themselves had to contact the Tribunal again, and that because of that,

22 you were showing a preference to be represented today by lawyers who had

23 indicated to this Tribunal that they are interested in taking over your

24 legal representation.

25 I agreed then and for some time that you could stay outside,

Page 103

1 waiting, while this was being investigated. I also told Mr. Solley to

2 explain to you that I am the Presiding Judge and my function is not to

3 accuse you, but my function is to make sure that our law is observed and

4 that your rights are fully protected, and so I suspended this sitting and

5 I instructed the Registry to make its own investigations to see exactly

6 what happened in these last nine days and what the position was.

7 I also told Mr. Solley to explain to you that the right to be

8 represented by a lawyer of your own choice is not absolute or as absolute

9 as you may think it is. You cannot, for example, choose to have half a

10 dozen lawyers come here to represent you at the expense of the Tribunal

11 with the Tribunal having no choice at all to decide whether they should

12 represent you or not. We have got our own Rules. Those Rules are applied

13 by the Registrar, and I myself as a Judge have no right to interfere with

14 the discretionary powers that the Registrar has in these regards. I have

15 other powers, powers to make sure that your rights are protected, but not

16 to decide for and instead of the Registrar.

17 I have a representative of the Registrar here present in the

18 courtroom, a high official in the Registry, and I am going to ask him now

19 to explain in your presence what happened. And after that -- I don't know

20 what he's going to say, but after hearing him, then I will take a decision

21 on how best to proceed according to our Rules and in a way in which your

22 rights will not be even minimally violated.

23 So Mr. Pimentel, you heard what Ms. Martinez had to say. Perhaps

24 you are in a position to explain to the Chamber in greater detail what

25 happened and what the position is now and how is it likely to develop so

Page 104

1 that we do not live on false illusions.

2 MR. PIMENTEL: Thank you, Your Honour. My name is David Pimentel.

3 I am the chief of Court Management at the International Criminal Tribunal

4 for the former Yugoslavia. As is already entered in the record but for

5 the benefit of the accused and at the request of the Court, let me

6 summarise what has happened that leads us to this point.

7 The attorneys in question -- the attorneys from Belgrade did fax

8 to us last week - on Tuesday of last week - some basic information,

9 including a summary of the experience of one of the attorneys and a

10 request for assistance in obtaining visas. That assistance was given by

11 Tribunal staff, but -- and powers -- a power of attorney proxy was

12 submitted as well. It is the practice of the Tribunal not to accept such

13 proxies from the attorney itself -- from attorneys themselves but to

14 accept them from the accused. And at the time this was -- these documents

15 were received, we had not -- the accused was not yet here, we had not yet

16 had a chance to meet with the accused.

17 The request of these attorneys to appear and represent the accused

18 was not adequately communicated within our office. That is the -- I

19 accept full responsibility for the oversight of staff that it was not

20 acted upon in a timely way. We did receive new copies of these materials

21 this morning. We realised that there had been some kind of oversight by

22 yesterday and made repeated attempts to contact the counsel using mobile

23 numbers that had been provided to us but were unsuccessful in making

24 contact with counsel. Consistent with the practice of the Tribunal, in

25 order to protect the rights of an accused, we appointed -- assigned,

Page 105

1 rather, a counsel who is here to represent and protect the rights of the

2 accused for purposes solely of the Initial Appearance.

3 I might add that what -- we took this action having viewed the CV

4 that was submitted from which we could not ascertain that any of the --

5 either of the attorneys - I think there are three individuals named. One

6 was an interpreter. There's been some confusion in record about whether

7 there were two or three attorneys. I think there were two attorneys and

8 an interpreter is my understanding of it. But it did not appear that the

9 attorneys speak a language of the Tribunal, which is a requirement and

10 prerequisite for assignment as counsel under Rule 44(A).

11 Before assigning counsel, it is necessary for the Registry to

12 confirm that all qualifications are met, not only the language requirement

13 but also adequate experience in criminal law and a familiarity with

14 proceedings, similar proceedings sufficient to ensure that the rights of

15 the accused are protected. The Registry acted at all times, based on the

16 information that we had, out of a desire to protect the rights of the

17 accused and is, as a matter of policy, slow to appoint counsel and

18 reluctant to appoint counsel until all of these things can be confirmed,

19 and for this reason Mr. Solley was chosen as someone whose abilities were

20 not in question.

21 It does appear -- we've confirmed this morning that the proposed

22 counsel do not speak a language of the Tribunal, at least not adequately

23 well for the purposes of the Tribunal. While the Rules do, under Rule

24 44(B), allow an exception to be made to the language requirement, it is

25 done under exceptional circumstances and in -- solely in the interest of

Page 106

1 justice and subject to such other conditions as may be imposed by the

2 Registrar. And this is -- the granting of such exceptions is a matter of

3 some sensitivity within the Tribunal. Now that we have located all the

4 documents and been fully informed as to the current situation, we will --

5 the Registry will attempt to confirm the qualifications and to determine

6 if there are exceptional circumstances in this case to justify the

7 granting of an exception and the appointment of counsel who do not speak a

8 language of the Tribunal. At this point, we have, even with the CV that

9 has been submitted, we don't have sufficient information to verify the

10 necessary experience and qualifications and we do not have any submission

11 to suggest that exceptional circumstances exist. And so at this time it

12 -- it does not appear likely that the Registry will be able to make such

13 an exception, but that depends on what is submitted in the near future,

14 and I presume something will be submitted along these lines.

15 And also, as far as timing - this was alluded to earlier in this

16 session - how long would it take the Registry to confirm qualifications,

17 that depends on the cooperation that we receive from the proposed counsel

18 in terms of providing us information that we need to verify their

19 experience and to justify the finding of any exceptional circumstances.

20 JUDGE AGIUS: All right. I thank you, Mr. Pimentel.

21 Mr. Wubben, did you consult with your Prosecutor?

22 MR. WUBBEN: Yes, Your Honour. For the record, my name is Jan

23 Wubben, senior trial attorney, and I am accompanied with lawyers Mr. Mark

24 McKeon, Ms. Joanne Richardson, and Ms. Kristina Carey, together with case

25 manager Mr. David Bruff.

Page 107

1 Your Honour, the position of the OTP is that the accused is now

2 under the complete authority of the Court as a detainee and in that

3 position, of course, he should abide by the Rules and is not in a position

4 to set any conditions.

5 Whenever it is a condition of assigning of counsel, indigent

6 counsel, meaning that if he doesn't abide with an assignment of the

7 counsel who now appears on behalf of the accused - and I notified that you

8 yourself, Your Honour, qualified this counsel who appeared today as a

9 capable lawyer - then it means that refusal to abide with this counsel,

10 with this assignment by the Registrar, means a kind of waiver. And so far

11 there might be a kind of waiver, but the accused didn't specify that and

12 didn't give an unconditional waiver of his right to be assigned by such

13 counsel.

14 As being informed by the Registrar, Your Honour, the OTP takes the

15 position that it is up to the Registrar to decide, and we will take no

16 position in that ourself. So we fully respect that. And from the

17 beginning, as I state to you, it means that the accused is under the

18 complete authority of this Court and the Rules, and the Rules demand that

19 there will be an appearance before a Judge and that he will be fully

20 charged. So that brings us to the conclusion that a delay of seven days

21 or up to next week is not right and should be refused.

22 JUDGE AGIUS: Yes, Mr. Solley.

23 MR. SOLLEY: It seems, with respect, that once the Registrar had

24 said what he'd said, and looking at Rule 44(B), and the last line in

25 particular, which is that: "The suspect or accused may appeal a decision

Page 108

1 of the Registrar to the President," in order to make that a right which he

2 may properly exercise, with respect, Your Honour, there can be little

3 alternative but to a short delay, (A), to ensure that, as the Registrar

4 put it, that they approach their task judicially; and (B), so that there

5 can be consideration of an appeal, because until those rights are

6 exhausted, technically speaking, the Rules haven't been followed. But I

7 think, Your Honour, you understand the position.

8 JUDGE AGIUS: Yes, I understand. And the position is quite clear

9 in my mind. And my decision is as follows:

10 I know that I can, technically speaking, today, irrespective of

11 what has happened or what has not happened inside the Registry, that I am

12 perfectly entitled, if I wanted to, to proceed with the Initial Appearance

13 today since you are lawfully and properly appointed and everything else is

14 in order. However, I have been taught from the very first day when I

15 became a judge in my own country that the law unaccompanied by humanity

16 sometimes can easily end up with making mistakes. So what I am going to

17 do is that I am going to take a decision which hopefully will make your

18 client understand that this is a serious court, Tribunal, that has no

19 interest at all in bringing to your client more frustration than what he

20 definitely is going through at this moment, two days after his arrival

21 here in The Hague. So my decision is mostly motivated by a humanitarian

22 reason more than by a legal reason.

23 I am going to delay the Initial Appearance to Thursday of next

24 week - that's today week - if necessary, also to Friday, but for the time

25 being to Thursday of next week, by which time hopefully the Registrar

Page 109

1 should have cleared up this matter and come to a decision. But I also

2 want to make it clear to your client here that if the Registrar comes to a

3 conclusion that neither of the two lawyers that have asked to be appointed

4 as his representatives are indeed accepted by the Registrar, and you

5 retain your assignment as his counsel for the purposes of the Initial

6 Appearance, at least, then today week I will proceed with the Initial

7 Appearance.

8 The Initial Appearance basically is one very important step in the

9 whole course of the proceedings that have been instituted against your

10 client. Other sittings following the initial proceedings, if he wants to

11 -- if he wants to stay in the detention centre unit, he can stay there, it

12 will not be any problem for me, but for the Initial Appearance, he needs

13 to be here.

14 MR. SOLLEY: I don't anticipate a problem.

15 Forgive my rudeness in not standing up when you were addressing

16 me. I knew you were but I thought that your direct line of sight might

17 be useful to --

18 JUDGE AGIUS: He is not the first high army officer that I have

19 had to deal with in my career, and I consider high army officers as

20 officers and gentlemen too, so I hope that your client will behave

21 accordingly.

22 The Initial Appearance will take place as I said --

23 Yes, Mr. Wubben.

24 MR. WUBBEN: Your Honour, can I take it that a delay of the

25 Initial Appearance will also mean that the transfer of the supporting, the

Page 110

1 confirming material, will also -- should also be delayed? Because we have

2 now the supporting material with us. We can --

3 JUDGE AGIUS: You can -- the handing over of the supporting

4 material does not necessarily depend on whether the Initial Appearance

5 takes place today or afterwards. I mean, if I were you, I would -- I

6 would just hand it over and get it over and done with.

7 MR. WUBBEN: We will hand it over to the accused. Thank you, Your

8 Honour.

9 JUDGE AGIUS: Had we proceeded further, Colonel, today I would

10 have explained precisely what your rights are and how they will be

11 protected. However, that will be explained to you the next time you will

12 come -- you will attend here in this courtroom, which will be next week.

13 I can also inform you that by then probably there would be a

14 revised, amended indictment. I don't know.

15 I think you ought to know this, that the indictment, on the basis

16 of which he has been detained and brought here is an old indictment, which

17 is in the course of being amended. You know that initially they were

18 four; now they are three. There is already a decision that goes back to

19 roughly a year ago which made it clear that the three accused, Mrksic,

20 Radic, and your client will be joined together as far as the trial is

21 concerned. There's only going to be one trial. I am the Pre-Trial Judge

22 in the case of the other two accused, Mrksic and Radic. I had a Status

23 Conference, a conference yesterday. And eventually, for the next Status

24 Conference, your client will be joined with them. He will -- he will join

25 them.

Page 111

1 But there is in the process a -- an amended indictment. So what

2 he will be pleading to probably will be the original indictment, but we

3 will immediately -- almost immediately after come to an amended

4 indictment, which will contain less charges and somewhat different charges

5 as well. All right?

6 MR. WUBBEN: Your Honour.


8 MR. WUBBEN: Just to make it clear, and in addition to your

9 information, I confirm to you that there will be a new indictment, it will

10 be an amended indictment.


12 MR. WUBBEN: I can't get into details for less or more charges,

13 but what I can say, that it will be filed before or on the 21st of July.


15 MR. WUBBEN: Thank you.

16 JUDGE AGIUS: Thank you. That is an agreement we have and we --

17 which we confirmed yesterday during the Status Conference.

18 I am going to address your client indirectly through you,

19 Mr. Solley, even though we are not proceeding with the Initial Appearance

20 today. It is the practice of the Judge conducting the pre-trial -- the

21 Initial Appearance and also the Pre-Trial Judge during the whole process

22 of the pre-trial stage and during Pre-Trial Status Conferences to enquire

23 from and with the accused about his state of health, mental and physical,

24 and also about the state of his detention. I want to convey to your

25 client a message loud and clear that he has a right, while he is being

Page 112

1 detained in Scheveningen Detention Unit, to have his health properly

2 looked after. And if that -- his reason for him to complain about that or

3 to make any representations in regard, he is to feel free to let me know.

4 That's number one.

5 Secondly, the same thing, but I don't have any reason to suspect

6 that this will ever happen: If he has a reason to complain about the

7 conditions of detention, also please ask him to feel free to contact me

8 and I will look into the matters promptly and efficiently. This is

9 something that we communicate to all detainees over there and something

10 which we check upon, and that's one of the reasons why we have periodical

11 Status Conferences. I hope he is receiving proper interpretation, in his

12 own language. I hope he has understood me.

13 THE ACCUSED SLJIVANCANIN: [Interpretation] Mr. President, I have

14 understood everything you said. May I say something now too?

15 JUDGE AGIUS: Yes, certainly, Mr. Sljivancanin.

16 THE ACCUSED SLJIVANCANIN: [Interpretation] Mr. President, I

17 respect all that you said. On the basis of the documents I received after

18 my arrival in the Detention Unit in Scheveningen, I already studied the

19 matter in Belgrade and some 20 days ago I selected lawyers who I believed

20 could represent me during the Initial Appearance. I did not ask either

21 for a delay or anything that will be contrary to the Rules. And now all

22 of a sudden, when I arrived to the Tribunal, Mr. Solley turned up. I have

23 never seen him before, and I simply did not want him to represent me,

24 because I think that my rights as the accused are in jeopardy today. I

25 think, and I have agreed with the lawyers, that if they see that something

Page 113

1 is wrong with these lawyers, that they will tell them and that they will

2 deny them and withdraw my power of attorney that I gave them. But I

3 wanted to appear today before the Court. I indeed wanted it.

4 You were addressing Mr. Solley. I have not yet chosen him as my

5 counsel for the time being. I have two counsel of my own choice. Of

6 course, I have to respect all the decisions that the Tribunal is passing,

7 but please allow me to make use of my rights and to enjoy the same rights

8 as everybody else.

9 Your Statute says that there is an equality of arms on all sides

10 before this Court. I will respect the decisions that you take. You said

11 that you hold in high regard high-ranked officers. I am an educated man,

12 I understand all that you said, but I'm entitled to defend myself and to

13 choose lawyers who I deem to be the best. If the Registrar of this

14 Tribunal manages to persuade me that they are not, perhaps I will change

15 my decision. But yesterday I explained that during the interview that we

16 had; I said that the lawyers had arrived. I gave them telephone numbers.

17 Yesterday I spoke to him five times. I could reach them whenever I

18 wanted. I told them the problems that I had, and they said that they were

19 coming and that they would manage to reach an understanding. I simply do

20 not understand this, and why was I brought in this unenviable position in

21 difference with all the others? Because it is my right to choose my

22 lawyer, of course, with fully respecting the Rules. But if I chose bad

23 lawyers, then my defence will be bad, and I believe, however, that the

24 Court will pass honourable and correct decisions. I do not want to tax

25 your patience any longer, but please allow me to choose the lawyers

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1 myself.

2 JUDGE AGIUS: Yes. Mr. Sljivancanin, please take a chair.

3 THE ACCUSED SLJIVANCANIN: [Interpretation] Thank you,

4 Mr. President.

5 JUDGE AGIUS: As I tried to explain to you, the choice of counsel

6 can take place in two ways: You can show a preference and then that

7 preference is communicated to the Registrar. You can even pay your own

8 lawyers, and in that case also the name of the lawyer who you intend to

9 pay from your own pocket will be communicated to the Registrar. But it is

10 the Registrar who decides whether that lawyer will defend you or not.

11 This is why I tried to explain to you that I as a Judge have got

12 absolutely no right to replace the Registrar in the decision that needs to

13 be taken with regard to the either appointment or assignment of counsel.

14 We have had instances here of lawyers appointed by the Registrar

15 and then sent back home, either because they were not capable or because

16 we found out that there were instances in the past that would make it

17 incompatible for them to represent anyone in this Tribunal. What I can

18 assure you of is that the Registrar takes everything into consideration

19 before taking -- reaching a decision. But the decision is reached by the

20 Registrar and not by myself.

21 The Rules also provide for a right of appeal, which you will have

22 in case the Registrar decides against assigning the lawyer that you would

23 like to have representing you. You have a right to appeal -- of appeal to

24 the President of - that's not me - but the President of the Tribunal

25 himself, and he has the final say in this.

Page 115

1 So this is why I'm trying to explain to you what your rights are.

2 And I also invite you to make a distinction between the Initial Appearance

3 and other stages of the proceedings, and I can inform you that since the

4 Initial Appearance usually takes place pretty soon after the arrival of

5 the accused, of the indicted person, into The Hague, most of the time -

6 and almost always - the lawyer who is appointed to represent the accused

7 for the purposes of the Initial Appearance is a lawyer who's never seen

8 the face of his client. This is how it is here.

9 Then there are certain safeguards that the Statute and the Rules

10 provide for which would make it possible for you to remain silent, not to

11 enter a plea, and you will be given time, by which time perhaps you will

12 have proper counsel assigned to you for the purposes of the subsequent

13 stages, and then you will enter a plea if you want to enter a plea. If

14 you don't want to enter a plea, then I will enter it on your behalf, and I

15 will plead not guilty on your behalf. But that's how the proceedings go.

16 So my decision, as I tried to explain to you today, is I feel that

17 at the present moment I should not proceed with the Initial Appearance

18 since a decision has not really been taken with regard to the lawyers that

19 you would have preferred to have here with you today, knowing that this

20 decision wasn't taken when it could have perhaps been taken. So because

21 of that and simply because of that, and to give you the opportunity to

22 know where you stand, I am going to put off the Initial Appearance for

23 seven days, for next week, by which time the situation should have

24 crystallised.

25 If we are still where we stand today, or worse still, if by then

Page 116

1 you would have received communication from the Registrar that they cannot

2 appoint either of the two lawyers that were referred to before, then we

3 will proceed with the Initial Appearance and I will safeguard your rights,

4 leaving it until later to enter a plea. I will give you every right to

5 remain silent and time within which you can then think it over and enter a

6 plea and time within which you can appeal against the decision of the

7 Registrar if the decision of the Registrar is against you, because it

8 could well be in your favour.

9 But let me make it clear to you: If you are expecting that as

10 from now you will be assigned two lawyers, you might as well forget it. I

11 am dealing with a trial that has been going on for a year and a half where

12 I personally believe there should be more lawyers in the Defence, or at

13 least the presence of more lawyers would make the task of the Defence much

14 lighter than it is, and there is only one lead counsel with a co-counsel

15 assisting. And that's the trial stage. At the pre-trial stage, I know

16 very few cases, if at all, where you have lead counsel and also a

17 co-counsel, let alone two counsels of the same standing. So I am making

18 that clear, because I would imagine that although you would have already

19 obtained some information about this Tribunal and how things go here, I'm

20 pretty sure that you don't know or you're not aware of the whole -- of the

21 whole scenario, and I am just explaining it to you. I mean, if you want

22 to pay for lawyers out of your own pocket to come here, provided they have

23 got the okay from the Registrar, I suppose you can -- you can have them,

24 but don't expect the Registrar to appoint more than one lawyer to

25 represent you, especially for the purpose of this pre-trial stage, unless

Page 117

1 there is, of course, other compelling reasons to go beyond one counsel and

2 to appoint more than one.

3 So we'll leave it at that.

4 Yes, Mr. Solley.

5 MR. SOLLEY: I merely wish to thank you.

6 JUDGE AGIUS: Thank you.

7 MR. SOLLEY: So if you rise now, it will give the lawyers an

8 opportunity to speak to him.

9 JUDGE AGIUS: Yes. Yes.

10 I thank you, and we'll have the Initial Appearance next time, when

11 everything is in order and the accused is feeling a little bit more

12 tranquil and not feeling as if he has been abused by -- or disregarded.

13 So we'll meet again today week.

14 MR. SOLLEY: Thank you.

15 JUDGE AGIUS: The time will be communicated, because I don't know

16 if I'm sitting in the morning or I'm sitting in the afternoon next week.

17 So to tell you the truth, I can't remember. And we will have it either

18 Thursday, and if it's not possible Thursday, we'll have the Initial

19 Appearance on Friday. In the meantime, try to keep in contact with your

20 client and the Registrar will try and finalise the matter about

21 representation.

22 Thank you.

23 --- Whereupon the Initial Appearance adjourned

24 at 5.08 p.m.