1 Monday, 14th June, 1999
2 (Initial Appearance)
3 (Open session)
4 (The accused entered court)
5 --- Upon commencing at 2.00 p.m.
6 THE REGISTRAR: Good afternoon, Your
7 Honours. This is case number IT-95-8-I, the Prosecutor
8 against Dragan Kolundzija.
9 JUDGE MAY: This is the initial appearance of
10 the accused. May we have the appearances, please?
11 MR. NIEMANN: If Your Honours please, my name
12 is Niemann, and I appear with my colleague Mr. Keegan
13 for the Prosecution.
14 MR. O'SULLIVAN: Good afternoon, Your
15 Honours. My name is Eugene O'Sullivan, and I appear on
16 behalf of Mr. Dragan Kolundzija.
17 Might I raise a matter of some importance
18 prior to the beginning of this hearing? Your Honours,
19 in my submission, there's been an error in personam.
20 The person sitting behind me is not the man named in
21 the indictment. The indictment refers to -- I am
22 referring to paragraph 10.2(c) -- a Mr. Dragan
23 Kulundzija; the man you see sitting in the dock is
24 Dragan Kolundzija. The date of birth in the indictment
25 is 31 July, 1966; Mr. Kolundzija informs me he was born
1 19 December, 1959. The place of birth of the person
2 named in the indictment is Gradina, Bosnia-Herzegovina;
3 the man you see seated to my left was born in Bosanski
4 Novi, Bosnia-Herzegovina.
5 In my respectful submission, the error is in
6 personam. The man seated in the dock is not the man
7 named in the indictment.
8 JUDGE MAY: Mr. O'Sullivan, whether the
9 details are right or not, and I see, in any event,
10 there certainly seems to be a mistake in the spelling
11 of the name, although that may be wrong, is there a
12 dispute that he is the man who was involved with the
13 Keraterm camp?
14 MR. O'SULLIVAN: Yes.
15 JUDGE MAY: So what is challenged is as to
16 whether this accused appearing before the Court is the
17 accused whose name appears in the indictment.
18 MR. O'SULLIVAN: Correct, Your Honour.
19 JUDGE MAY: Well, I will hear the Prosecution
20 on that in a moment. What would you ask us to do to
21 resolve the problem?
22 MR. O'SULLIVAN: Yes. Well, once the
23 identity is, in fact, established as Mr. Kolundzija
24 claims, he should be released.
25 JUDGE MAY: That will require a hearing, of
1 course, to establish where the truth lies.
2 MR. O'SULLIVAN: That's correct, Your
3 Honour. That's our position.
4 JUDGE MAY: Presumably it would require the
5 hearing of evidence, you would say?
6 MR. O'SULLIVAN: Correct.
7 JUDGE MAY: Thank you, Mr. O'Sullivan.
8 Mr. Niemann, did you have notice of this application?
9 MR. NIEMANN: Not notice of the application,
10 Your Honour, but we were aware of the difficulty with
11 the spelling, and that is something we are familiar
12 with. It was, in fact, going to be the basis of an
13 application that we would make to amend the indictment.
14 We are reinforced in our belief that this
15 accused is the accused referred to in the indictment in
16 terms of the offence alleged or the offences alleged
17 having regard to the fact that I'm instructed that
18 before SFOR proceeded with this arrest of this accused,
19 they acted on information supplied to them by certain
20 of the witnesses in relation to photo identification,
21 that this, in fact, was the accused to whom they were
23 So, Your Honours, it is quite right, if there
24 is any dispute about identity, it would be a dispute
25 that would go to the heart of the matter and would be
1 the subject of the trial, I would imagine, or at least
2 grounds of the defence at the trial.
3 So far as we are informed at this stage and
4 on the information that we have, it seems to us, Your
5 Honours, that this is the person who has been charged
6 in the indictment, but we do admit that there are
7 errors in the date of birth, the spelling of the name,
8 and it could well be that there may be an error with
9 respect to the place of birth.
10 I just might add, Your Honour, that it is a
11 very old indictment. We would be seeking to review it
12 in any event, but it would seem that these are
13 particulars that are incorrect.
14 JUDGE MAY: You say you're seeking to review
15 it with a view to amendment?
16 MR. NIEMANN: Yes, Your Honours, and, of
17 course, we will follow up on these matters. This is
18 the first time we've heard it stated that there is a
19 dispute that this is the accused referred to as the
20 person having committed the offences in the
21 indictment. We have known about, for some short time,
22 known about the errors with the name and so forth, but
23 we haven't heard it before stated that it's denied that
24 he's had no contact with Keraterm. That's a matter
25 which we will review again with our witnesses. But at
1 this point in time, based on my instructions, we are
2 reinforced by the fact that certain witnesses were
3 consulted before the arrest took place.
4 JUDGE MAY: But the argument being put
5 forward is that this isn't the man who is mentioned in
6 the indictment at all.
7 MR. NIEMANN: Yes, I understand that, Your
9 JUDGE MAY: It is somebody else.
10 MR. NIEMANN: Yes. We say that's not so. We
11 say it is the person referred to in the indictment.
12 What we do admit to is that it would seem there is some
13 error in relation to the spelling.
14 JUDGE MAY: Yes. You say this is the man,
15 albeit some of the description is wrong in the
17 MR. NIEMANN: Yes.
18 JUDGE MAY: Do you invite us to proceed with
19 the initial appearance without more?
20 MR. NIEMANN: Your Honours, it is a matter
21 for Your Honours as to what you do. I was going to
22 make an application to -- not to, in fact, take a plea
23 today under the Rules because I was going to intimate
24 to the Trial Chamber that we would seek to amend the
25 indictment and we would seek to amend the indictment
1 involving the accused Kvocka and others so that this
2 accused could be added to that indictment. We would
3 submit that that is the most efficient course having
4 regard to the fact that it would bring this accused's
5 trial on much faster than what would otherwise be the
6 case if he was to be tried alone and, secondly, in our
7 submission, it wouldn't delay the other trial having
8 regard to the fact that there will be some little time
9 now before it proceeds to trial.
10 So because the evidence, at least against one
11 of the accused in the Kvocka and other indictments, is,
12 in many ways, applicable to this accused, in our
13 allegation, then it would be a case of hearing the
14 evidence twice if there was to be a separate trial.
15 JUDGE MAY: So you will be making an
16 application for the indictment not to be put today in
17 this form but for the matter to be listed for an
18 application to amend and the indictment to be put
20 MR. NIEMANN: There's two ways of doing it.
21 That could be the case, Your Honours. The matter could
22 be left to rest now and brought on at an early date,
23 hopefully when the indictment is amended;
24 alternatively, Your Honours, the allegations in the
25 current indictment could be read to this accused
1 without then inviting him to enter a plea, just the
2 allegations read and that's the end of the matter, and
3 then it be adjourned. There is a period of 30 days,
4 Your Honours, before it is necessary for Your Honours
5 to take a plea under Rule 63 -- 62, I'm sorry, 62(3).
6 Your Honours don't have to take the plea today.
7 We will, of course, Your Honours, look
8 further into this question about identity. If it
9 proves that there is validity to the allegation that he
10 is in no way connected with Keraterm, we will act with
11 all due speed to bring the matter back before Your
12 Honours and inform you of that. But my current state
13 of instructions are that that is not so.
14 So subject to anything unforeseen happening,
15 it will be merely a case of putting forward fairly
16 simple amendments to the two indictments: one would be
17 merely removing the name from this indictment, and the
18 other would be simply adding a few particulars to the
19 Kvocka indictment. It could be done without doing very
20 much alteration at all, Your Honours.
21 We could undertake to have that before the
22 Chamber -- sorry, before a confirming Judge within
23 seven days, we could do that, such as the amendments.
24 We could have them down -- and then it is a matter for
25 the confirming Judge as to how long it might take from
1 there. But it is conceivable that, if the confirming
2 Judge was to deal with it expeditiously, we could come
3 back, say, within 10 to 14 days, and Your Honours could
4 then proceed with a fresh indictment against this
5 accused and then a plea could be taken and we could
6 then rapidly move to trial with the other accused in
7 the Kvocka case.
8 Meanwhile, Your Honour, we will verify it to
9 the best of our ability, this question of whether or
10 not he was in Keraterm, and we will inform you on the
11 next occasion what our findings are. If we are still
12 of the same mind that it is the same person, then we
13 will be seeking the matter go to trial, and any dispute
14 as to identity would hopefully be dealt with as part of
15 the trial.
16 JUDGE MAY: You can make inquiries and you
17 can present such evidence you have in, say, 14 days?
18 MR. NIEMANN: Yes, Your Honour.
19 JUDGE MAY: Mr. O'Sullivan.
20 MR. O'SULLIVAN: Yes. Might I add, Your
21 Honour, I met Mr. Kolundzija for the first time a
22 little over an hour ago, and that's the first time he's
23 had access to counsel since his arrest, which was on
24 the 7th of June.
25 In my respectful submission, this matter
1 requires a hearing. If I've understood Your Honour
2 correctly, you're suggesting that in 7 to 14 days the
3 matter regarding his identity be resolved. The
4 legality and legitimacy of detention must be determined
5 in regards to this individual.
6 JUDGE MAY: And, of course, an initial
7 appearance in the sense of the indictment being put.
8 That must be done, according to the Rules, within 30
9 days. So we shall require, if we find that this is the
10 person in the indictment, him to answer the charges.
11 MR. O'SULLIVAN: Correct.
12 (Trial Chamber deliberates)
13 JUDGE MAY: We shall determine whether the
14 accused before the Trial Chamber is, in fact, the
15 accused named before the indictment. To do that, we
16 will order the parties to put their submissions into
17 writing by next Monday, and we shall hold a hearing at
18 2.00 p.m. on Thursday next week. I will be informed of
19 the dates. That is about ten days' time.
20 The dates are Monday the 21st for written
21 submissions of the parties. The hearing will be on the
22 24th at 2.30 in the afternoon. By that time, I hope
23 that the Prosecution will have their amended indictment
24 ready by the Thursday and served on the accused in
25 reasonable time so that if possible, and if we do find
1 that he is the man named, the indictment can then be
3 MR. NIEMANN: Certainly, Your Honour. Yes.
4 Your Honours, would the hearing on the 24th at 2.30 --
5 do Your Honours anticipate any evidence on that day?
6 JUDGE MAY: Yes, if need be. If the accused
7 wants to give evidence about it, he can, and you can
8 submit any evidence you want, Mr. Niemann.
9 Are there any other matters you want to
11 MR. NIEMANN: No, Your Honour, not at this
13 JUDGE MAY: Mr. O'Sullivan, we shall remand
14 the accused in custody. Is there anything you want to
16 MR. O'SULLIVAN: Nothing further, Your
18 JUDGE MAY: Thank you. Thank you for your
20 Mr. Kolundzija, would you stand up, please?
21 You've heard that next week we shall determine the
22 question of whether you are the man named in the
23 indictment or not. Meanwhile, you must remain in the
24 custody of the detention unit, to appear next
1 That is all today. We'll adjourn now till
2 next week.
3 --- Whereupon the hearing adjourned
4 at 2.22 p.m., to be reconvened on
5 Thursday, the 24th day of June, 1999
6 at 2:30 p.m.