1 Friday, 19
2 [Rule 62 bis Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 10.08 a.m.
6 JUDGE ROBINSON: Will the registrar call the case, please.
7 THE REGISTRAR: The Prosecutor versus Blagoje Simic, Milan Simic,
8 Miroslav Tadic, Stevan Todorovic, Simo Zaric, case number IT-95-9-PT.
9 JUDGE ROBINSON: May we have the appearances.
10 MS. PATERSON: Yes, Your Honour. Nancy Paterson representing of
11 the Office of the Prosecutor, and with me is case manager Diane Boles.
12 JUDGE ROBINSON: For the Defence.
13 MR. BRASHICH: Deyan Brashich for the Todorovic Defence. I'm
14 joined at the counsel table by Nikola Kostich. Good morning, Your
16 JUDGE ROBINSON: Thank you.
17 This is a hearing under Rule 62 bis, and its purpose is to have
18 the Chamber determine whether it is satisfied as to the four matters set
19 out in that Rule so that it may enter a finding of guilt on the basis of
20 the accused Todorovic's guilty plea made on December 13, 2000.
21 If the Chamber determines that a finding of guilt is to be
22 entered, it will then set a date for the sentence hearing.
23 The matters in respect of which the Chamber must be satisfied, if
24 it is to enter a finding of guilt, are that the plea is voluntary, that it
25 is informed, it is not equivocal, and that there is a sufficient factual
1 basis for it as well as of the accused's participation in the crime.
2 We have before us a document filed jointly by the Prosecutor and
3 the Defence, setting out the factual basis for the charges in respect of
4 which the accused has pleaded guilty.
5 Judge Hunt has one or two questions in relation to the factual
7 JUDGE HUNT: Ms. Paterson, perhaps you would be able to assist
8 me. The agreement which has been signed admits expressly all of the
9 relevant facts alleged against the accused in the indictment except 34(A)
10 and (B), and there is no express admission in terms of the crime alleged
11 in 36 -- I'm sorry, 29 and 30.
12 Now, I realise that this is a joint submission, this factual basis
13 for the charges, and it seems to me, having read through them, I might add
14 with some difficulty because it's very difficult to find your way through
15 it, there is certainly a factual basis there for each of 34(A) and (B).
16 The way in which the Prosecution has pleaded the indictment is
17 that if it has established all of the ingredients of paragraph 34
18 plus 40 to 47, which are all admitted, then it has established the crime
19 alleged in paragraph 29.
20 I'm curious, first, as to why we have to rely upon all this
21 extraneous material, there being no express admission to it, because the
22 Rule seems to contemplate that there must be no dispute between the
23 parties in relation to the fundamental matters upon which the plea is
24 based. Is there any significance in the fact that the agreement has not
25 expressly admitted those matters in 34(A) and (B)?
1 MS. PATERSON: No, Your Honour. As you know, this is, as far as I
2 know, only the third plea that has taken place before the Tribunal, so the
3 procedure to be followed is still somewhat new to all of us.
4 This submission was based on the previous submissions provided to
5 this Court in the earlier pleas and was, as stated, the result of
6 negotiations between Mr. Brashich and myself. I could have obviously put
7 in more information; I purposely limited the information so that
8 Mr. Brashich and I could reach an agreement.
9 I do believe that there is sufficient information in here to
10 support all of the subparagraphs -- subsections in paragraph 34. If you
11 read through the extracts that we provided, most of them cover many
12 different crimes in one statement. So that while they will talk about the
13 murder, the murder took place in the police station which was a detention
14 centre, and people were being beaten at the same time that the murder
15 happened. So it was --
16 JUDGE HUNT: That -- I'm pausing for the purposes of the
17 translators. That is actually expressly admitted elsewhere in the
19 But what I'm concerned about, and it's only a passing concern but
20 I thought I have to be satisfied so I'd raise it with you, is the fact
21 that this document which has been tendered as a joint submission by both
22 parties, does the Prosecution understand that as an admission by
23 Mr. Todorovic of the facts which are asserted in paragraphs 34(A) and
24 34(B)? I'm going to ask Mr. Brashich the same question but I thought I'd
25 start off with you.
1 MS. PATERSON: Yes, Your Honour, we do look at that as an
2 admission on Mr. Todorovic's part.
3 JUDGE HUNT: If that's so, then I'm satisfied. But I just wanted
4 to know from both parties, seeing it wasn't in the express agreement,
5 that's all.
6 Well, Mr. Brashich.
7 MR. BRASHICH: Good morning, Your Honour.
8 JUDGE HUNT: Was the intention of this joint filing of the factual
9 basis for the charges to amount to an admission by your client that those
10 facts establish the allegations in paragraphs 34(A) and (B) of the
12 MR. BRASHICH: Yes, Your Honour. That was negotiated by myself
13 with Ms. Paterson.
14 JUDGE HUNT: I don't want to know the details of the negotiation,
15 obviously. But the fact that it wasn't expressly contained in the
16 agreement just put me on warning. I am happy to accept your assurance as
17 counsel that your client accepts that those facts do establish paragraphs
18 34(A) and 34(B) of the indictment.
19 MR. BRASHICH: Yes, Your Honour.
20 JUDGE HUNT: Thank you.
21 MR. BRASHICH: Because of the negotiations, things were done
22 sometimes in a hurried manner in order to meet certain deadlines, so
23 perhaps we did not dot the i's and cross the t's. We were under severe
24 time constraints.
25 JUDGE HUNT: I understand fully. I am not very familiar with
1 plea-bargaining in the country from which I come, but, nevertheless, it's
2 been an interesting exercise to see the results from it. Thank you. You
3 have satisfied me.
4 MR. BRASHICH: Thank you, Your Honour.
5 JUDGE ROBINSON: Well, that matter having been clarified, I will
6 now ask the accused, Mr. Todorovic, certain questions in relation to the
7 matters in respect of which we have to be satisfied under Rule 62 bis.
8 Will you stand, Mr. Todorovic.
9 [The accused stands up]
10 JUDGE ROBINSON: Mr. Todorovic, you entered into a plea agreement
11 with the Office of the Prosecutor and, pursuant to that agreement, you
12 pleaded guilty on the 13th of December, 2000 to the first count of the
13 indictment, charging persecutions as a crime against humanity.
14 In accordance with that agreement, you will withdraw all motions
15 before the Chamber challenging the legality of your arrest and seeking
16 judicial assistance; is that correct?
17 THE ACCUSED: [Interpretation] Yes.
18 JUDGE ROBINSON: Pursuant to that agreement, the Prosecutor and
19 the Defence have recommended to the Chamber that the sentence falls within
20 the range of five to 12 years. You must understand, however, that the
21 sentence is ultimately a matter for the Chamber to determine, in
22 accordance with the Statute and the Rules, and that this may be for a term
23 up to and including life imprisonment. Do you understand that?
24 THE ACCUSED: [Interpretation] Yes, I do.
25 JUDGE ROBINSON: Have you discussed fully with your counsel the
1 plea agreement that you have made with the Office of the Prosecutor?
2 THE ACCUSED: [Interpretation] Yes.
3 JUDGE ROBINSON: Were you threatened or coerced in any way to make
4 that agreement?
5 THE ACCUSED: [Interpretation] No, I was not threatened.
6 JUDGE ROBINSON: Were you threatened or coerced in any way to
7 enter a plea of guilty?
8 THE ACCUSED: [Interpretation] No.
9 JUDGE ROBINSON: You have made that plea voluntarily?
10 THE ACCUSED: [Interpretation] Yes.
11 JUDGE ROBINSON: Have you discussed the matter fully with your
12 counsel, and has he informed you of the nature of the charges against you
13 and of the consequences of pleading guilty to a crime against humanity?
14 THE ACCUSED: [Interpretation] Yes.
15 JUDGE ROBINSON: Thank you. You may sit.
16 [The accused sits down]
17 THE ACCUSED: [Interpretation] Thank you.
18 JUDGE ROBINSON: Ms. Paterson and Mr. Brashich, at the first
19 hearing, we discussed the question of the withdrawal by the Prosecution of
20 all of the counts, a withdrawal by the Defence of all motions relating to
21 the evidentiary hearing and the legality of the arrest.
22 The Chamber will accept an assurance given today by both counsel
23 about these matters that the withdrawal will be effective as of today.
24 You will, however, confirm it in writing within a week.
25 So I ask first Ms. Paterson: Does the Office of the Prosecutor
1 give the assurance that it will withdraw all of the counts, that is,
2 counts other than Count 1?
3 MS. PATERSON: Yes, Your Honour. As part of the agreement, a copy
4 of which has been provided to the Court, it is quite clear that it is the
5 intention of the Office of the Prosecutor to withdraw Counts 2 to 27.
6 I would just like to point out that part of the reason we agreed
7 to that is our feeling that the persecution count, by its nature,
8 essentially encompasses the same allegations made in those counts, so that
9 for the sake of the witnesses and victims involved in those counts, they
10 can hopefully see that their interests are, nonetheless, being protected
11 by this plea. But yes, I can state that it is our intention to withdraw
12 those counts and, as you requested, I will do so in writing within a
14 JUDGE ROBINSON: Thank you.
15 Mr. Brashich, do you give the assurance that you withdraw all
16 motions relating to the evidentiary hearing and those questioning the
17 legality of arrest?
18 MR. BRASHICH: Before I do that, Your Honour, I want to make it
19 clear, and I would request of Ms. Paterson to make the withdrawal with
20 prejudice, that it not be just a plain withdrawal. It has to be a
21 withdrawal with prejudice. And if the withdrawal is with prejudice, I
22 will, in writing, withdraw all pending motions before the Trial Chambers
23 and make a representation as called for in writing by paragraph 8 of the
24 plea agreement.
25 JUDGE ROBINSON: Ms. Paterson?
1 MS. PATERSON: Well, Your Honour, it was not a part of the
2 negotiated plea that we would withdraw those counts with prejudice. I
3 will state that if, as Your Honours say, you will accept this plea - and I
4 see no problems with the plea being accepted - that once this hearing is
5 concluded, we will agree to do that. However, I think Mr. Brashich must
6 admit that that was not part of the negotiation, but for sake of
7 proceeding with this agreement, I am willing to take that into
9 MR. BRASHICH: Well, Your Honour --
10 JUDGE ROBINSON: Yes, Mr. Brashich.
11 MR. BRASHICH: I'm sorry, Your Honour.
12 Your Honour, as I had stated before, I will readily admit that I
13 did not cross t's and dot the i's. The thought with regard to "with
14 prejudice" came to me as I was sitting, listening to Your Honour question
15 Ms. Paterson. I do not wish to be in a position of being sandbagged,
16 where my client has given up some rather valuable rights to have the
17 indictment reinstated, if I have to, and I do readily admit that this is
18 not the first or perhaps the last misstep or mistake that I might have
19 made before this Trial Chamber. However, it was clearly the intent on the
20 part of the Defence to give up certain rights and receive certain
21 benefits, and one of the benefits is the dismissal of 26 counts.
22 So I would call upon Ms. Paterson to live up to the spirit and the
23 intent of the agreement and withdraw the 26 counts with prejudice.
24 JUDGE ROBINSON: Ms. Paterson, I think what Mr. Brashich is saying
25 that the clear intent of the agreement was that the other counts would not
1 be brought again against his client, and what he wants is a firm assurance
2 that those counts will be withdrawn and will not be brought again against
3 his client.
4 MS. PATERSON: What I can state, Your Honour, is that we are fully
5 prepared to live up to our side of the agreement. I will file in writing
6 a statement this week stating that we are withdrawing the remaining
7 counts. Assuming that the agreement is concluded to the satisfaction of
8 all parties that Mr. Todorovic lives up to his side of the agreement, then
9 of course we have absolutely no intention of ever reinstating these
10 charges, but I am not prepared today to withdraw them with prejudice. If
11 for some reason the agreement falls through, Mr. Todorovic does not live
12 up to his part of the agreement, then obviously we need to return to
13 square one and proceed accordingly.
14 JUDGE HUNT: Ms. Paterson, this raises a vital issue that has yet
15 to be resolved about this agreement. The agreement appears to contemplate
16 that Mr. Todorovic will not be sentenced until he has fulfilled all his
17 obligations under the agreement, one of which is to give evidence against
18 other people, including his co-accused. That in itself is a very real
19 problem because if he does give his evidence before he is sentenced, then
20 there will be an even greater attack upon the credibility of that
21 evidence, that he is inflating his evidence or lying in order to get a
22 greater degree of mitigation.
23 Now, if you are also going to hold over his head this issue of
24 prejudice so that it's up to the Prosecution to be satisfied that he has
25 given evidence, et cetera, you are going -- are you not going to destroy a
1 great deal of the credibility of the evidence which he is going to give in
2 these other trials?
3 And if I may add another matter that you should consider. Having
4 conceded that this count of persecution is going to include all of the
5 factual matter that's in that indictment, you will surely face an
6 application for a stay of any further indictment you may try to bring on
7 the basis it's an abuse of process.
8 MS. PATERSON: Your Honour, it was not our intention that
9 Mr. Todorovic should not be sentenced until he complies with all aspects
10 of the agreement.
11 JUDGE HUNT: You've signed it.
12 MS. PATERSON: The agreement anticipates that this understanding
13 could potentially go on for years. We don't know how many trials there
14 may be that he might be asked to testify at, how long this will take. It
15 is our assumption that he would actually be sentenced in the relatively
16 near future and that we would then proceed in good faith, with the
17 understanding that if at some point in the future he fails to live up to
18 that, to his part of the agreement, we will have to come back, revisit the
19 issue, and consider the appropriate resolution at that time. But we did
20 not intend that he not be sentenced, and we had no intention whatsoever of
21 holding any counts over his head.
22 JUDGE HUNT: How do you anticipate that it could be resolved in
23 the future if you say that he has, sometime in a few years time, not lived
24 up to his part of the agreement? Is he going to be brought back for
1 This is the problem that I see with the way this agreement has
2 been drafted about the sentencing part of it. And you will also have to
3 face up to, will you not, the other matter I raised, and that is that it
4 would be a complete abuse of process, whether it's with or without
5 prejudice, to bring further proceedings based on the same facts. And
6 having had to look at this recently in another context, how do you get
7 over all of that United States authority that was relied upon in
9 MS. PATERSON: Your Honour, our intention was simply that we would
10 live up to the agreement, which we felt was quite simple and, I think, was
11 understood as well by Mr. Brashich. I have no reason to think that
12 Mr. Todorovic does not fully intend to live up to his part of the
14 If, in fact, at some point in time the bargain falls through,
15 whether it is next week or five years from now, the clear understanding of
16 the agreement, as I believe Mr. Brashich and I understand it, is that we
17 all go back to square one again, the indictment is reinstated, the charges
18 proceed against Mr. Todorovic as if the plea had never happened, and we
19 proceed accordingly. This is the way it operates in other jurisdictions
20 and I would assume it would operate that way here.
21 JUDGE HUNT: And what happens to the plea itself, the admission
22 made by the plea if the whole proceedings have to restart?
23 MS. PATERSON: I would assume that the Court would have to rule on
24 that, whether that could be used against him or not. There is obviously
25 precedents in different jurisdictions, but the precedents are somewhat
1 different. I don't know that I'm in a position today to answer that
2 question unequivocally. I believe that would be a decision for the Court
3 to make.
4 JUDGE HUNT: That's precisely what the word "prejudice" means, I
5 would have thought.
6 MR. BRASHICH: Your Honour, I wonder if I could be heard. I think
7 that Ms. Paterson and I are in agreement with regard to the way that we
8 envisaged the plea and the sentence to take place in a relatively short
9 time so that the plea agreement could be effected, and I believe that we
10 were talking yesterday about a sentence imposed within a period of 60 to
11 90 days so that the required cooperation would be almost in the immediate
13 The reason why I had raised the issue -- I said it came to my
14 mind, the with-prejudice issue, as I was sitting here and listening to
15 Judge Robinson question Ms. Paterson.
16 On the other hand, my co-counsel pointed out to me that in
17 paragraph 6(A) of the agreement, the Prosecutor has accepted the accused's
18 plea to Count 1 in the satisfaction of the remaining counts of the
19 indictment. Had I been redrafting the agreement, and perhaps in the
20 future for other counsel, it should have read: "... in full satisfaction
21 of the remaining counts in the indictment."
22 I might be also guilty of wanting to have both a belt and
23 suspenders for my client, but I want to afford my client the full
24 protection of the intent of the agreement. I did not, in any way, want to
25 derail the agreement that Ms. Paterson and I worked quite intensely to
2 JUDGE ROBINSON: The Chamber will consult.
3 [Trial Chamber confers]
4 JUDGE ROBINSON: Ms. Paterson and Mr. Brashich --
5 MR. BRASHICH: Yes, Your Honour.
6 JUDGE ROBINSON: -- the Chamber has considered this matter. What
7 we are minded to do is to give the parties half an hour in which to try to
8 resolve this.
9 I would like to say to Ms. Paterson that the Chamber's
10 understanding, certainly based on paragraph 6(A) in particular, the words
11 "the Prosecutor will accept the accused's plea to Count 1 in satisfaction
12 of the remaining counts," is that the Prosecutor would withdraw all the
13 remaining counts and that all those counts would not be brought again. So
14 we are sympathetic and understand the position taken by Mr. Brashich when
15 he asks that the withdrawal be with prejudice.
16 We will give you half an hour in which to try to resolve this
17 matter, and you can seek advice from your appropriate authorities,
18 Ms. Paterson, on this matter.
19 We will rise.
20 --- Recess taken at 10.35 a.m.
21 --- On resuming at 11.05 a.m.
22 JUDGE ROBINSON: Mr. Brashich, do you have good news for us?
23 MR. BRASHICH: Yes, Your Honour, I do. We have conferred with the
24 Prosecution, and I would like to turn over this issue to my co-counsel,
25 Mr. Kostich, to address the Court, with your leave.
1 JUDGE ROBINSON: Yes.
2 MR. KOSTICH: This sounds like one of the filibusters in the U.S.
3 Senate, because what I'm going to have to do, Your Honour, is to actually
4 ask Ms. Paterson to speak with you.
5 We've had a chance to meet and draft some additional language,
6 which Ms. Paterson will go into, and hopefully we will be able to have
7 that language approved by you. Of course, certainly, you may have some
8 questions. If I may, I would like to pass the torch on to Ms. Paterson.
9 JUDGE ROBINSON: The relay continues.
10 Ms. Paterson.
11 MS. PATERSON: Yes, Your Honour, we discussed this, as you
12 requested, and I think it was somewhat of a -- I don't wish to speak for
13 Defence counsel, but somewhat of a misunderstanding on their part, and
14 obviously they can speak to that when I finish.
15 We've drafted an agreement which is simply two additional
16 sentences, and what I suggest is that I would read this into the record.
17 Then what we can do is add it as a corrigendum to the plea agreement when
18 I also file my written agreement to withdraw the additional counts, and
19 all three of us can sign it so that it would become part of the official
21 The additional sentences we have agreed to are:
22 "It is the understanding of the parties that the accused is to
23 fulfil his obligations pursuant to the plea agreement in return of which
24 the Office of the Prosecutor shall withdraw Counts 2 through 27 of the
25 Indictment, in full satisfaction with the accused's plea to Count 1 of the
2 "Should the accused fail to fulfil his obligations under the plea
3 agreement, it is understood that the Office of the Prosecutor can
4 reinstate the full indictment, including Counts 1 to 27."
5 And there is no language in this agreement concerning prejudice.
6 I think Mr. Kostich can address that issue.
7 JUDGE ROBINSON: Mr. Kostich.
8 MR. KOSTICH: Your Honour, you have heard the language that we
9 have agreed upon. We have discussed with Mr. Todorovic the language in
10 question. He approves it; Mr. Brashich and I also. We feel satisfied
11 that the language, as indicated by Ms. Paterson, takes care of any
12 concerns that we have. We will no longer insist on a withdrawal with
14 We understand that the Office of the Prosecutor has negotiated
15 with us in good faith, and essentially it is an agreement that has been
16 reached. We feel that we can carry out our part of the obligations, and
17 we feel that the Prosecutor's Office will carry out their part of the
18 obligations, and it is, therefore, contemplated that we will sign and
19 enter into this addition, correction to the agreement, and we would
20 withdraw our request for a dismissal with prejudice.
21 JUDGE ROBINSON: Thank you.
22 JUDGE HUNT: May I ask you a question about that? The expression
23 "until the Defence fulfils its obligation," has been used, which is the
24 very expression I raised earlier as to what it meant. As an ordinary
25 lawyer, I would read the agreement as saying that the conditions or the
1 obligations are not fulfilled until your client has given evidence, which
2 suggests then that these additional counts will not be withdrawn until
3 he's given evidence.
4 Now, I would like to have it made clear at least between the
5 parties as to whether that was what it was intended. It's contrary now to
6 what Ms. Paterson had said earlier.
7 MS. PATERSON: Respectfully, Your Honour, I don't think it's
8 contrary. The understanding between us is that we will withdraw Counts 2
9 to 27 as of now. We are assuming that we can proceed with the sentencing
10 in, as suggested, 60 to 90 days, and that we realise that that means that
11 the fulfillment of the agreement will take place in the future.
12 The clear understanding, however, is that at some point in time,
13 if Mr. Todorovic fails to fulfil the agreement, which, as Your Honour
14 knows, involves more than simply testifying at a trial, if the agreement
15 falls through, then we all return to square one as we were before this
16 agreement, which means we can reinstate the entire indictment, Counts 1 to
17 27. We do not lose the right to bring back Counts 2 to 26 - clearly
18 that's the benefit that we're getting out of the agreement - and we
19 proceed to trial as if there had been no plea agreement and Mr. Todorovic
20 is not prejudiced in any way. The agreement simply dissolves and we
21 proceed as if it had never existed in the first place.
22 JUDGE ROBINSON: You withdraw first and then you reinstate if he
23 doesn't fulfil his obligations. Of course, how a Chamber will view such a
24 reinstatement is perhaps a matter that we need not concern ourselves with
1 JUDGE HUNT: But I still am concerned, and I'm not merely trying
2 to help the Prosecution, although it may sound like this, I'm trying to
3 take a quite neutral stance about it, but what does the Trial Chamber
4 before whom Mr. Todorovic gives evidence make of that? They will make of
5 it that he is giving evidence with the threat that if he doesn't give
6 evidence in accordance with what the Prosecution expects, he will have
7 these counts reinstated, subject to any Trial Chamber allowing you to do
8 so. What I'm concerned about is what the Trial Chamber who hears his
9 evidence is to make of that evidence received in those circumstances.
10 Now, you may have considered that and you're prepared to take the
11 risk, but if so, I think we should hear you say that so that that Trial
12 Chamber will know precisely how to approach Mr. Todorovic's evidence in
13 those cases.
14 MS. PATERSON: Yes, Your Honour, but the scenario that we envision
15 is -- the scenario you have just painted is going to be the situation no
16 matter what. If Mr. Todorovic is going to testify at a trial, even if we
17 weren't going to reinstate Counts 2 to 27, he's still going to have the
18 threat of Count 1 hanging over his head that could be reinstated if he
19 fails to comply with the agreement. Correct?
20 JUDGE HUNT: No, because he's been sentenced on that.
21 MS. PATERSON: And if the agreement falls through, if he fails to
22 comply with the agreement, we all go back to where we started, which
23 includes Count 1 and Counts 2 to 27.
24 JUDGE HUNT: So the Prosecution is prepared to put him forward as
25 a witness who you're going to ask the Trial Chamber to believe that
1 evidence with that hanging over his head in any event. That certainly
2 seems to me to be a very strange situation for the Prosecution to be
3 putting itself in, but if that's what it wants to do, at least we all know
4 that that's what it wants to do.
5 MS. PATERSON: Respectfully, Your Honour, that is the procedure
6 that is followed in other jurisdictions. Obviously, it's up to the Trial
7 Chamber, as you say, to evaluate that. There are many ways that they will
8 have to choose to evaluate the testimony of Mr. Todorovic. That is only
9 one. But, yes, that is the understanding that we're prepared to proceed
11 JUDGE ROBINSON: Thank you.
12 [Trial Chamber confers]
13 JUDGE ROBINSON: The Trial Chamber, having heard all the
14 submissions, is satisfied as to the four matters set out in Rule 62 bis:
15 First, that the guilty plea was made voluntarily, that the guilty plea was
16 informed, that it is not equivocal, and that there is a sufficient factual
17 basis for the crime of persecution to which the accused has pleaded guilty
18 and his participation in it.
19 The Chamber enters a finding of guilty on the basis of the guilty
21 There are some other matters that have to be raised. There's the
22 date for sentencing. The Chamber will fix, but only in a provisional
23 way -- Mr. Brashich, yes?
24 MR. BRASHICH: Your Honour, I was wondering, in taking the
25 provisional date, the Court would allow a request by the Defence that we
1 do need 60 days to prepare.
2 JUDGE ROBINSON: We had in mind April the 4th. What does your
3 arithmetic make of that?
4 MR. BRASHICH: We had been thinking, if it was convenient for the
5 Court, the week of March 19th, and we would suggest that the sentencing
6 phase, at least in consultation with Mr. Kostich and Mr. Todorovic, that
7 we would request of the Court a day, a full trial day.
8 JUDGE ROBINSON: The senior legal officer.
9 [Trial Chamber and legal officer confer]
10 JUDGE ROBINSON: Mr. Brashich, we will certainly take into account
11 the submissions that you have made, but we can't give an assurance. There
12 are various organisational matters to be considered, but we will take
13 account of what you have said, and you will be informed of the date by the
14 senior legal officer, who will, as usual, consult with you.
15 MR. BRASHICH: Thank you, Your Honour.
16 JUDGE ROBINSON: Prior to the sentencing hearing, of course, a
17 Scheduling Order will be issued requiring information as to the level of
18 cooperation of the accused with the Prosecution. A Scheduling Order will
19 also be issued seeking submissions on the question of the separation of
20 the proceedings following the accused's guilty plea.
21 The hearing is adjourned.
22 JUDGE HUNT: Just if I may add, Ms. Paterson, in case this is not
23 the procedure that you're accustomed to, the procedure that I am
24 accustomed to would be that we would be supplied with a statement, signed
25 by Mr. Todorovic, of the evidence that he is going to give. Some of it
1 may obviously be confidential in nature. But we have to judge from the
2 statement the degree of cooperation he's giving in order to assess the
3 proper amount of mitigation.
4 Now, is it contemplated we'll get such a statement, or have you
5 got some other way of telling us what his cooperation has been?
6 MS. PATERSON: I think that we can probably comply with what
7 you're requesting, Your Honour.
8 JUDGE HUNT: Now, it's no good stating in general terms that he
9 will cooperate or as it is expressed in the agreement. I think we are
10 obliged to have more detail than that. That's why in my jurisdiction we
11 usually get a statement from the accused of the evidence that he is going
12 to give.
13 MS. PATERSON: I believe that we'll be able to comply with that
14 requirement, Your Honour.
15 JUDGE HUNT: Thank you.
16 JUDGE ROBINSON: The Scheduling Order will address the precise
18 MR. BRASHICH: Your Honour, may I just have a moment with
19 Ms. Paterson? Can I just have a moment to speak with Ms. Paterson,
21 JUDGE ROBINSON: Yes.
22 MR. BRASHICH: Thank you.
23 [Prosecution and Defence counsel confer]
24 MR. BRASHICH: Your Honour, we've solved the problem.
25 JUDGE ROBINSON: Thank you.
1 Ms. Paterson.
2 MS. PATERSON: Yes, Your Honour. Just before we adjourn, I had
3 brought to the attention of the Senior Legal Officer that there was one
4 other matter we needed to discuss in a closed session or a private
6 JUDGE ROBINSON: Yes.
7 MR. BRASHICH: I would join in that respect with regard to closed
9 JUDGE ROBINSON: We will go into closed session. The blinds will
10 have to be drawn.
11 [Closed session]
13 Page 818 redacted – in closed session.
13 Page 819 redacted – in closed session.
8 --- Whereupon the Rule 62 bis Hearing adjourned
9 at 11.25 a.m.