1 Tuesday, 16 January 2007
2 [Motion Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.09 a.m.
6 JUDGE ORIE: Good morning to everyone.
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-96-23/2-PT, the Prosecutor versus Dragan Zelenovic.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 Mr. Zelenovic, before we continue, do you hear me in a language
12 you understand?
13 THE ACCUSED: [Interpretation] [No interpretation]
14 JUDGE ORIE: I don't see your answer yet on the transcript, but I
15 think you said yes.
16 THE ACCUSED: [Interpretation] Yes.
17 JUDGE ORIE: Then I'd like to have the appearances.
18 Prosecution first.
19 MS. UERTZ-RETZLAFF: Good morning, Your Honours. My name is
20 Hildegard Uertz-Retzlaff. I appear here, accompanied by the case manager,
21 Verica Balikic.
22 JUDGE ORIE: Thank you, Madam Uertz-Retzlaff.
23 For the Defence.
24 MR. JOVANOVIC: [Interpretation] Good morning, Your Honours. My
25 name is Zoran Jovanovic. I'm representing Mr. Zelenovic, the accused.
1 JUDGE ORIE: Thank you, Mr. Jovanovic.
2 We are here to hear a joint motion, a joint motion for
3 consideration of a plea agreement between Dragan Zelenovic and the Office
4 of the Prosecutor, pursuant to Rule 62 ter, which was filed on the 14th of
5 December, confidentially. But this is a public hearing, and since plea
6 agreements should be made public, we hear this motion in a public hearing.
7 At least I did not see any request for keeping the plea agreement
8 confidential, or is there any wish on behalf of the parties to keep
9 parts - I wouldn't say the whole of the plea agreement - confidential?
10 MS. UERTZ-RETZLAFF: No, Your Honour. And as you can see from the
11 filing that we would request in this hearing today that the Trial Chamber
12 orders that the documentation attached to the motion be released as public
14 JUDGE ORIE: Yes.
15 Mr. Jovanovic, therefore, we'll have a look at the plea agreement,
16 what actually was agreed upon. The accused, Mr. Zelenovic, agreed,
17 committed himself to enter a guilty plea on some of the charges. They are
18 set out in paragraph 2. It would be a guilty plea to a total of seven
19 counts, and they are specified in -- under 1 and 2 of paragraph 2 of the
20 plea agreement. The Prosecution commits itself to dropping the remainder
21 of the counts in the indictment. We will come to that in more detail at a
22 later stage.
23 Then there seems to be no agreement on what sentence should be
24 proposed to the Trial Chamber. The Prosecution will recommend 10 to 15
25 years, and the Defence will recommend the Trial Chamber that it impose a
1 term of imprisonment within the range of 7 to 10 years. So there's no
2 full agreement, but the parties do understand from each other what to
3 expect from the other party under this plea agreement. But there's no
4 joint proposal for sentence.
5 Then attached to the plea agreement is a factual basis on which
6 the parties agree. We'll come to that in more detail in a moment as well.
7 And then we have the, if I could call that, the -- we have a close
8 cooperation by Mr. Zelenovic, and Mr. Zelenovic expresses in this plea
9 agreement that he understands certain matters, one of them being that the
10 Chamber is not bound by any agreement on sentencing, not even on the
11 ranges expressed by the Prosecution, but that the Trial Chamber can impose
12 a sentence of maximum -- a life sentence.
13 Then there's another commitment of Mr. Zelenovic, saying that
14 regardless of the sentence imposed, he will not move to withdraw his
15 guilty plea or appeal his conviction pursuant to this guilty plea.
16 Although it does not expressly say so, the Chamber understands this as
17 Mr. Zelenovic would still be free to appeal against sentence.
18 MS. UERTZ-RETZLAFF: Yes, Your Honour, that's correct.
19 JUDGE ORIE: Yes. Then in paragraph 15, there is an issue of the
20 Chamber taking into consideration any prison sentence imposed to the
21 extent already in force abroad. Is there any reason to believe for the
22 parties that for the same acts, if ever a judgement was rendered in
23 another country?
24 MS. UERTZ-RETZLAFF: No, Your Honour, there's no indication that
25 this happened elsewhere.
1 JUDGE ORIE: Yes. Well, then, the Chamber has some difficulty in
2 understanding the relevance of putting this if there is no judgement,
3 then -- because we might even be barred by a foreign judgement to exercise
4 our jurisdiction. That takes quite a lot of things before we even could
5 enter -- we could even come to a conviction, because that requires all
6 kinds of additional matters, such as that it should not be a serious
7 judgement, because otherwise we are barred by the nebis in idem. But I do
8 understand that there is no practical reason to assume that there is any
9 judgement anywhere for the same acts.
10 Mr. Zelenovic in this plea agreement waives some of his rights,
11 the right to plead not guilty. That goes almost without saying that if
12 you plead guilty, you waive the right of pleading not guilty, the right to
13 prepare and put forward a defence at a public trial, the right to be tried
14 without undue delay, although it might even go quicker this way; the right
15 to be tried in his presence. There will be no trial, just sentencing
16 proceedings. The right to examine witnesses or have examined witnesses.
17 The right not to be compelled to testify against himself or to confess
18 guilt. Yes, of course, he waives the right to confess guilt because he
19 pleads guilty. The right to testify, to remain silent, and the right to
20 appeal a finding of guilty or to appeal any pre-trial rulings.
21 This is, in short, the summary content of the plea agreement.
22 Before we continue, I'd like to see whether the plea agreement is
23 clear, whether it's -- whether there are any remaining questions in
24 relation to the plea agreement.
25 [Trial Chamber confers]
1 JUDGE ORIE: Judge Moloto may have a few questions to the parties
2 in respect of the content of the plea agreement.
3 JUDGE MOLOTO: Thank you very much. With regard to paragraph 5 of
4 the factual statement, there is a reference to -- under number 10, after
5 referring to the 52 per cent, what I do want to understand is, is the
6 number 10 the number of people or is that 10 per cent?
7 MS. UERTZ-RETZLAFF: Your Honour, it's actually 10 Muslims, as
8 persons, that remained in Foca. Not 10 per cent but 10 persons.
9 JUDGE MOLOTO: Ten persons, okay. Thank you very much.
10 It is not absolutely clear to me, and it may very well be so that
11 this paragraph refers to torture, but in paragraph 9, what crime is the
12 accused alleged to have committed in that paragraph? Is that rape or
13 torture? It may very well be that it's intended to be rape.
14 MS. UERTZ-RETZLAFF: Your Honour, it should be rape and torture.
15 It's actually cumulative charging.
16 JUDGE MOLOTO: Okay.
17 JUDGE ORIE: Is there perhaps -- could I ask for a clarification.
18 In the factual -- statement of facts, we, again, find rape, rape, rape,
19 and never torture. Is it to be understood that the facts described in the
20 factual statement on which the parties agree, although rape is mentioned
21 again and again, that it would cover the torture charges of the indictment
22 as well?
23 MS. UERTZ-RETZLAFF: Yes, Your Honour. As you can see when you
24 look into the particular charges, they relate, actually, to the conduct
25 that is described in the paragraphs before the charges. And we always
1 charged torture when the rape was actually related to, for instance, is in
2 this case here interrogation. It was a punishment for not telling the
3 truth. That's basically the torture motive.
4 JUDGE ORIE: Thank you.
5 JUDGE MOLOTO: In that respect, can we then -- because there are
6 more incidents of rape than the counts of rape themselves, or even the
7 counts of rape and torture put together. My question then would be how do
8 we compute a count for purposes of this agreement?
9 MS. UERTZ-RETZLAFF: Your Honour, you can actually see it from the
10 indictment. When you, for instance, starting with the events in Buk
11 Bijela, if you look at the charges as they relate to Mr. Zelenovic, you
12 can see that for all the conduct that is related to Buk Bijela,
13 Mr. Zelenovic is actually charged cumulatively for torture and rape. So
14 there is in all these -- in all these incidents, there is always torture
15 and always rape charged. That same -- the same applies to the charges in
16 relation to the Foca High School. You can also -- when you look at the --
17 at torture charges, count 13, you see also that it relates to all the
18 incidents that were described in the paragraphs above. The same applies
19 to Partizan Sports Hall. If you look at -- let me just see. If you look
20 at Count 41, you have, again, the torture charge. And in the line above,
21 you can see that they apply to all the acts that are described in the
22 paragraphs above. And finally, when it comes to the event in the fish
23 restaurant, here, you have actually the only situation where only rape is
24 charged. If you look at count 49, that's on the last page of the
25 indictment, here you have the event in the fish restaurant and -- above
1 the fish restaurant, actually, and here you see only a rape charge,
2 because this event is not related to any interrogation situation or any
3 other situation that includes torture purposes.
4 JUDGE MOLOTO: Okay. If we look again at paragraph 13 of the
5 factual basis, there seems to be a reference here to three occasions when
6 FWS-75 and FWS-87 were taken to an apartment building called Brena. And
7 then the paragraph goes on to talk about the first occasion when the
8 accused and others are alleged to have raped FWS-75 in various ways, and
9 then the accused is also mentioned in respect of FWS-87. I'm not quite
10 sure now where is the third occasion where this happened within this
11 paragraph, or is the third occasion been -- there in the next paragraph?
12 MS. UERTZ-RETZLAFF: No, Your Honour, it's actually -- let me just
13 see. In paragraph 13, we have actually three occasions where these two
14 victims were raped in the apartment building Brena block --
15 JUDGE MOLOTO: Okay.
16 MS. UERTZ-RETZLAFF: -- and the next paragraph, 14, deals with two
17 further occasions.
18 JUDGE MOLOTO: Yes. But if you read paragraph 13, it says that
19 between about the 18th of July and about the 13th of July, 1992, on three
20 occasions, these two people were taken from Foca High School to an
21 apartment building called Brena in the centre of Foca. The building was
22 near the Zelengora hotel and military headquarters of the Bosnian Serb
23 forces. Then in the same paragraph you then say, the first time the women
24 went to an apartment owned by Dragan Zelenovic. I'm anticipating that
25 within that paragraph you must tell me about the second and the third
1 time, because -- now, the second and third time could not be in the next
2 paragraph if you're dealing with the three occasions in paragraph 13.
3 This is the lack of clarity that I find. I'm not quite sure, because
4 there's no further reference to the second and third time in this
5 paragraph 13.
6 MS. UERTZ-RETZLAFF: Yes, Your Honour, you are right. It's
7 actually -- I've now looked at the indictment again. It's actually -- 6.8
8 is one rape and 6.9 are the two other rapes. They are already indicated
9 in the first.
10 JUDGE MOLOTO: In the first one?
11 MS. UERTZ-RETZLAFF: Yes. The first one refers to three occasions
12 and describes the first one, and the next paragraph refers to the other
13 two occasions.
14 JUDGE MOLOTO: Yes. But then from a structural point of view, is
15 that proper? Is that helpful, to refer in one paragraph to three
16 occasions and then deal with only one occasion and then move on to the
17 next paragraph which doesn't refer to the three occasions and then deal
18 with parts of the last paragraph in that paragraph? My difficulty is, I
19 found it very difficult to marry the incidents in the agreement with the
20 indictment. And when one says that the accused is pleading guilty to
21 seven counts, three of which are torture and four of which are rape, I
22 would like to be able to see in the agreement what actual counts in the
23 indictment the accused is admitting to. This is my difficulty.
24 MS. UERTZ-RETZLAFF: But, Your Honour, the indictment is actually
25 charging in each of the counts several incidents. The first group of
1 incidents are actually the one related to Buk Bijela. That's just one
2 count of rape and one count of torture. And then there comes the next --
3 the next occasion. That's the Foca High School. And you have only one
4 torture charge and one rape charge, although you have several incidents.
5 And that's the same with the Partizan Sports Hall and the same -- the
6 last, the fish restaurant, is just one single rape.
7 JUDGE MOLOTO: Okay.
8 MS. UERTZ-RETZLAFF: And if you look at the structure of the
9 indictment, it starts, when it comes to the explanation regarding the
10 charges, it starts with an overall count. For instance, when you look at
11 6.6 -- sorry, I'm now in the wrong -- if you start again with Buk Bijela,
12 the first paragraph describes the general events there and then followed
13 by the separate rapes. And that's the same with the situation in the
14 Partizan Sports Hall that Your Honour referred to or in the Foca High
15 School; that first you have an overall description of what happened and
16 how often things happen and then you have the description of the separate
17 rapes and incidents. And there shouldn't be any problems because all
18 incidents actually are combined in one charge of torture and one charge of
19 rape. So if the accused, as he actually did say, I didn't do incident 6.5
20 or whatever, then you can easily actually see what the factual basis
21 relates to.
22 JUDGE MOLOTO: Okay.
23 MS. UERTZ-RETZLAFF: In the factual basis, you always find --
24 after a description, you always find a reference to the appropriate
25 paragraph in the indictment.
1 JUDGE MOLOTO: I didn't think I'd found that, actually. Oh, yes.
2 MS. UERTZ-RETZLAFF: It's actually always at the end of the
3 paragraph. It refers to the paragraph in the indictment.
4 JUDGE MOLOTO: Okay.
5 MS. UERTZ-RETZLAFF: And so it may be complicated, Your Honour,
6 and it may have been easier to perhaps change things more than we did, but
7 I thought it's understandable with the reference to the incidents.
8 JUDGE MOLOTO: Let me ask you this question: Do I understand you
9 to be saying the incidents under Buk Bijela constitute one charge, one
11 MS. UERTZ-RETZLAFF: Yes, Your Honour.
12 JUDGE MOLOTO: The incidents under Foca High School constitute
13 another count.
14 MS. UERTZ-RETZLAFF: Yes.
15 JUDGE MOLOTO: And then also Partizan and then also the fish
16 restaurant. So it's four incidents --
17 MS. UERTZ-RETZLAFF: It's four locations.
18 JUDGE MOLOTO: Four locations, all of which are rape, the first
19 three of which are torture, are torture and rape -- the first three are
20 torture and rape, the last is rape.
21 MS. UERTZ-RETZLAFF: That's correct.
22 JUDGE MOLOTO: Hence three counts of torture, four counts of rape.
23 MS. UERTZ-RETZLAFF: That's correct, Your Honour.
24 JUDGE MOLOTO: That's how you explain it, in short?
25 MS. UERTZ-RETZLAFF: Yes. That's correct, Your Honour.
1 JUDGE MOLOTO: It would have been very helpful if, perhaps, after
2 Buk Bijela it was written count 1, and then after Foca, count 2, whatever
3 the number. But I now understand what you say. I'm not quite sure
4 whether the explanation you gave is sufficient or whether it requires the
5 document or an amended indictment or an amended statement of agreement.
6 JUDGE ORIE: I still have some problems with it. Could we perhaps
7 do an exercise on one of the examples --
8 MS. UERTZ-RETZLAFF: Yes.
9 JUDGE ORIE: -- and then go back to the indictment. Foca High
10 School. Judge Moloto has already asked for your clarification on the
11 indictment, 6.8, where you say 6.8 describes one incident and that's,
12 therefore, a mistake. It says that on three occasions, one of them is
13 only covered by 6.8, and you say the other two are covered by 6.9, where
14 it is between the 8th of July and about the 13th of July, 1992, on two
15 occasions, you say the other two are remaining.
16 MS. UERTZ-RETZLAFF: Yes.
17 JUDGE ORIE: So where is 6.10 on another occasion?
18 MS. UERTZ-RETZLAFF: That's another occasion, but you can
19 distinguish it here because it's a different location where the rape
21 JUDGE ORIE: Different location?
22 MS. UERTZ-RETZLAFF: Yes. If you see here, 6.10 happens in an
23 abandoned house of a Muslim policeman in Gornje Polje. That's a
24 distinguishing factor. It's a rape at the same point in time but at a
25 different location and actually including a third victim.
1 JUDGE ORIE: Yes, although it's still Foca High School --
2 MS. UERTZ-RETZLAFF: Yes.
3 JUDGE ORIE: -- so we have two levels of locations. One we find
4 in the headings, but there are differences in location within the
5 paragraphs as well.
6 MS. UERTZ-RETZLAFF: Yes. And there's also -- in Foca High
7 School, you actually have also in 6.6 the location where the women are
8 actually raped in the high school itself.
9 JUDGE ORIE: Yes. That's now clear to me.
10 Now, we have -- so if there is an agreement that Mr. Zelenovic
11 pleads guilty to count 13, which -- yes, in count 13, as we find it under
12 2(ii), two counts charge crime against humanity, torture, and 13 and 14,
13 that's torture and rape, that covers, as is said, 6.8, 6.9, and 6.10, from
14 what I read in 2, under -- on page 2 of the indictment. So 6.8, 6.9 and
15 6.10 in the indictment are covered by count 13, so a guilty plea --
16 MS. UERTZ-RETZLAFF: No, Your Honour, that's not correct.
17 JUDGE ORIE: Yes.
18 MS. UERTZ-RETZLAFF: What you need to read is actually -- when you
19 look into the plea agreement, paragraph 2, you have to read the chapter
20 (i) and (ii) in conjunction. You can see here we have listed the
21 paragraphs, and Foca High School, that's 6.6, 6.8, 6.9 and 6.10, and I
22 think you omitted 6.6.
23 JUDGE ORIE: Yes, that's right. But since I started asking
24 questions starting with 6.8, I limited it to that. But I fully agree that
25 6.6 is ...
1 Now, I would like to focus on 6.8, 6.9, 6.10, because you
2 explained that 6.8 is -- although it says three occasions, describes only
3 the first incident.
4 MS. UERTZ-RETZLAFF: Yes.
5 JUDGE ORIE: Then 6.9, we find the two remaining incidents that
6 were referred to in 6.8.
7 MS. UERTZ-RETZLAFF: Yes.
8 JUDGE ORIE: And now in 6.10, you say there is another incident on
9 a slightly different location. That's the abandoned house. So if
10 Mr. Zelenovic pleads guilty to count 13, does he plead guilty to 6.6, 6.8,
11 6.9 and 6.10, all these incidents?
12 MS. UERTZ-RETZLAFF: Yes, Your Honour.
13 JUDGE ORIE: Now, if I look at the agreement of facts, I see no
14 reference to the victim ZG who is mentioned in 6.10. How do I have to
15 understand that? I mean Mr. Zelenovic took ZG to that abandoned house
16 where she was raped by an unidentified soldier. Is that torture, bringing
17 her there and allowing that she was raped by this unidentified soldier?
18 Is this aiding and abetting to this rape and to torture by bringing her
19 there? ZG is not mentioned in any way in the agreement on facts.
20 Nevertheless, it is covered by 6.10 and therefore would fall within the
21 scope of a guilty plea on count 13, although nothing is said about it in
22 the agreement on facts, the factual statement. Could you explain that.
23 MS. UERTZ-RETZLAFF: Your Honour, as far as I remember, the reason
24 for not putting ZG into number 15 was that Mr. Zelenovic did not remember
25 ZG and we wanted to base the guilty plea on what he actually, himself,
2 JUDGE ORIE: So his guilty plea on 13, counts 13 and 14, would not
3 cover, as is said in the plea agreement, the whole of 6.10, but would
4 cover only part of 6.10 and would, as a matter of fact, in respect of
5 witness -- of victim ZG, would be a not guilty plea, a plea of not guilty,
6 because, as you said, he doesn't remember he wants to admit guilt on
7 victim ZG.
8 MS. UERTZ-RETZLAFF: My understanding, Your Honour, is that he
9 actually admits to have raped -- has actually taken part in the incident
10 6.10 and admits to it, but that he only does not recall a third person
11 being present.
12 JUDGE ORIE: Yes, but --
13 MS. UERTZ-RETZLAFF: So I think he pleads guilty to 6.10.
14 JUDGE ORIE: To everything, also to ZG? Even if he doesn't
15 remember, he nevertheless pleads guilty on victim ZG?
16 MS. UERTZ-RETZLAFF: I think so. I think he should be asked about
17 this. It was my understanding --
18 JUDGE ORIE: Let's ask Mr. Jovanovic on how he understands this.
19 Mr. Jovanovic, as a matter of fact, I'd like to stress that
20 whenever Madam Uertz-Retzlaff says anything about explaining what the plea
21 agreement says, that of course if you disagree, I would expect you to jump
22 up immediately and to inform us that that is not your understanding of the
23 plea agreement.
24 But specifically now your view is asked on counts 13 and 14 in
25 relation to paragraph 6.10 of the indictment mentioning victim ZG, where
1 we do not find anything about -- in the statement of facts about victim
3 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. Thank you. I
4 was sure I would have a chance to say what I have to say about this. The
5 plea agreement is quite clear. It refers to only two victims, FWS-75 and
6 FWS-87. In the statement of facts, the Prosecution agreed to orally amend
7 the indictment rather than amending the indictment in writing. Our
8 understanding was that Mr. Dragan Zelenovic would plead guilty to events
9 concerning victims FWS-75 and FWS-87, not any other victim mentioned in
10 the indictment. Therefore, the Defence expects the Prosecution to amend
11 the description of events mentioned in paragraph 6.10 of the indictment as
12 it refers to victim ZG.
13 JUDGE ORIE: Yes. Now, where do I exactly find this definition of
14 pleading guilty in respect of victims FWS-75 and 87? Because what I find,
15 as a matter of fact, in 2(i) and 2(ii) is not a reference to victims but a
16 reference to paragraphs in the indictment, one of them clearly including
17 victim ZG, and that's in 6.10. So where do I read in the agreement that
18 it's based on the identity of the victims, as you just mentioned them,
19 rather than paragraphs of the indictment and counts of the indictment?
20 Could you point to me, where do I find this? Is there any reference at
21 all to the identity of the victims, not in the statement of facts but in
22 the plea agreement?
23 Perhaps Madam Uertz-Retzlaff could assist you.
24 MS. UERTZ-RETZLAFF: Yes. Actually, in the plea agreement,
25 references are actually made to the incident Mr. Zelenovic accepted, and
1 wherever he actually accepted that other victims were involved, it is
2 expressed in the factual basis. But in relation to ZG, as she's not
3 mentioned here, he did not agree that she was present, or rather didn't
5 JUDGE ORIE: Madam Uertz-Retzlaff, you now expect this Chamber to
6 accept a guilty plea on counts and paragraphs of the indictment clearly
7 described - and I'm focusing now on 6.10 - where we find his involvement
8 in victim ZG being raped, he would then plead guilty to count 13, he would
9 plead guilty specifically in respect of the incident described in 6.10,
10 and now we have to deduce from the statement of facts that this, of
11 course, does not include one of the victims described in 6.10? Is that
12 what you expect this Chamber to do?
13 And for you the same, Mr. Jovanovic. How are we going to receive
14 such a plea? We say Mr. Zelenovic, do you plead guilty to, or not guilty
15 to count 13, covering paragraphs so and so and so. He says yes. And then
16 somewhere in the back of our mind, it should be that this does not include
17 one of the victims specifically mentioned in 6.10.
18 MS. UERTZ-RETZLAFF: Your Honour, actually we thought that we
19 could clarify this when he pleads to the particular counts, if he would --
20 he would, for instance, say, when it comes to the count 13, he would say,
21 including the incidents, numbering them, and say in relation to 6.10, this
22 does not include the victim ZG. This is actually what we had in mind.
23 JUDGE ORIE: Yes, yes. Usually, as you know, if the Chamber is
24 inviting an accused to enter a plea, we usually ask him whether he pleads
25 guilty or not guilty and not to give a full statement of what is included
1 and what is not included, et cetera. That at least for me would be a
2 totally new procedure.
3 MS. UERTZ-RETZLAFF: What I actually could propose, Your Honour,
4 is we could redact the indictment, and actually redacting everything not
5 pleaded to. That means we could redact the paragraphs that are now --
6 that are not pleaded to, the paragraphs -- the incidents, basically, and
7 also redact, if it is as in 6.10, redact in 6.10 the victim ZG. And we
8 could actually redact everything that he's not pleading to.
9 JUDGE MOLOTO: Would it not be helpful, madam, if you perhaps
10 formulated an amended indictment, including only the incidents admitted
11 to? Then when we say, "Mr. Zelenovic, do you plead guilty to count 6 as
12 amended," then he pleads to guilty to count 6 as amended, and specifying
13 only the incidents he admits to. Would it -- that would cut across the
14 whole problem?
15 MS. UERTZ-RETZLAFF: If you prefer this. I thought the redactions
16 would actually have the same purpose. But if you prefer to have an
17 amended indictment, of course we can do that.
18 JUDGE MOLOTO: The amended indictment is that it would be short
19 and sweet and concise, to the point, and it would only deal with the
20 issues that he admits to and you don't have to look at what has been
21 redacted and what has not been redacted. You can say this document, as it
22 stands, encompasses the entire incidents that the accused admits, and we
23 put that to him and he agrees to it.
24 JUDGE ORIE: Yes. We'll see how we proceed. We might have some
25 other questions as well.
1 You drew my attention, Madam Uertz-Retzlaff, to 6.6 earlier. In
2 6.6, for example, we find victim FWS-50. That is 6.6 to which the accused
3 committed to plead guilty as well under count 13 and 14. But do I now
4 have to understand that FWS-50 is not included in the guilty plea, just as
5 ZG would not be included in the guilty plea?
6 MS. UERTZ-RETZLAFF: Your Honour, the incident involving,
7 actually, five women is included in the guilty plea but not the identity
8 of the women. So the accused actually says, "I was involved in taking out
9 five victims --"
10 JUDGE ORIE: Yes.
11 MS. UERTZ-RETZLAFF: -- but not specifying --
12 JUDGE ORIE: So not necessarily FWS-50. So if there would be a
13 guilty plea on counts 13 and 14 in relation to 6.6, that would be a guilty
14 plea on this incident but not including the identity at least of these --
15 MS. UERTZ-RETZLAFF: Other three, yes.
16 JUDGE ORIE: -- other --
17 MS. UERTZ-RETZLAFF: Yes. Actually, other two.
18 JUDGE ORIE: It leaves a lot of guessing, which the Chamber is not
19 very much in favour of if we're talking about guilty pleas.
20 Okay. At least we have to find a solution for this. Let's see
21 whether there are any other questions. Let me just have a look. One
23 You said there were five women in 6.6 --
24 MS. UERTZ-RETZLAFF: Four. I made a mistake, Your Honour. Four.
25 JUDGE ORIE: Yes. Yes. So it's not the other three but the other
1 two. Yes. Now I understand. This has been clarified by now, because I
2 couldn't find the five.
3 Now let's see whether all the -- may I ask your attention to
4 paragraph 9 of the factual statement. We see that Mr. Zelenovic is not
5 charged with raping, himself, victim FWS-75. How do we have to understand
6 his participation, apart from I do understand it's torture. But he didn't
7 rape her. Is it co-perpetratorship? Is it aiding and abetting? How do
8 we have to understand this?
9 MS. UERTZ-RETZLAFF: In relation to point 9, it's aiding and
11 JUDGE ORIE: It is aiding and abetting, okay. So, as a matter of
12 fact, in relation to -- let me just find the ...
13 We find that in the indictment exactly in paragraph -- paragraph 9
14 would be 5.4 in the indictment; is that correct? Where, now, is the
15 aiding and abetting --
16 MS. UERTZ-RETZLAFF: Yes, Your Honour, it's 5.4.
17 JUDGE ORIE: Where do we find that a guilty plea in relation to
18 5.4 would be pleading guilty to aiding and abetting to this incident?
19 Where do I find that? It's a form of responsibility, which is not ...
20 MS. UERTZ-RETZLAFF: It's not in there, Your Honour.
21 JUDGE ORIE: It's not in there. Okay. Let's see whether there
22 are any other matters.
23 We have to turn to, I think, paragraph 19 of the factual
24 statement. Yes. In paragraph 19 of the factual statement, it
25 says, "After July --" "During July 1992, Dragan Zelenovic took FWS-87
1 from Partizan and gang-raped her along with three other co-perpetrators."
2 Is that one incident? Because 19 starts with a pattern of sexual assaults
3 commenced. "Armed soldiers, Muslim groups of three to five, entered
4 Partizan usually in the evenings and removed --" Is Mr. Zelenovic -- he
5 is charged with one rape or with more rapes?
6 MS. UERTZ-RETZLAFF: Yes, Your Honour. One rape.
7 JUDGE ORIE: Just one rape. Of course that's enough. Then the
8 issue of rape and torture you have clarified.
9 Is it always clear for all of these incidents - because to me it's
10 not, although the general description is that women were taken and were
11 interrogated - but for each of the incidents, the link with the
12 interrogations is not always explicit. Do I have to understand this:
13 That you link the rape and the whole of the context with interrogations
14 or -- because not always we see a clear link between interrogations,
15 denying to answer and then a rape. Is it a general link that you consider
16 to be sufficient?
17 MS. UERTZ-RETZLAFF: Your Honour, it's not only -- the torture
18 charge is not only related to interrogation, it's also related, as it says
19 in the -- I think it should say -- actually, in the general allegations,
20 it should be specified.
21 JUDGE ORIE: General allegations in the indictment?
22 MS. UERTZ-RETZLAFF: Yes, in the indictment.
23 JUDGE ORIE: Yes. Would you please ...
24 MS. UERTZ-RETZLAFF: Your Honour, it's not. I thought it was but
25 it's not. You can -- in relation to the torture counts, there's not only
1 the purpose of interrogation but also the torture purpose of
2 discrimination. It says, actually, in the plea agreement, under paragraph
3 5, it refers to the torture -- the torture purposes that are actually
4 mentioned here.
5 JUDGE ORIE: Yes, but --
6 MS. UERTZ-RETZLAFF: And it refers to punishment, intimidation,
7 coercion of a third person, or discrimination as ground for the purpose --
8 the torture charge.
9 JUDGE ORIE: Yes.
10 MS. UERTZ-RETZLAFF: It's not particularly specified in the
11 indictment which one applies, but it's here mentioned in the -- in the
12 plea agreement.
13 JUDGE ORIE: Now you said that in the count in the indictment
14 where only rape is charged - that was, I think, 41 --
15 MS. UERTZ-RETZLAFF: Yes, it's the last incident.
16 JUDGE ORIE: Was that not discriminatory, then, or -- you
17 explained to us why it was -- no, it's not 41, it's --
18 MS. UERTZ-RETZLAFF: It's 49, Your Honour.
19 JUDGE ORIE: -- 49, yes. Was there no discrimination there? You
20 explained to us why it was just rape, and you said it was because there
21 was no interrogation. I now understand that it's not only interrogation
22 but discrimination which raises immediately the question whether the rape,
23 under count 49, was not of a discriminatory nature.
24 MS. UERTZ-RETZLAFF: Your Honour, we decided it to charge it this
25 way, and it's a long time ago. I must admit I do not recall it any
2 JUDGE ORIE: Nevertheless, but --
3 MS. UERTZ-RETZLAFF: But --
4 JUDGE ORIE: But you gave us an explanation a minute ago why it
6 MS. UERTZ-RETZLAFF: Yes, that's right, but I do not recall the
7 reason why in this particular incident we did only charge rape.
8 JUDGE ORIE: Yes. When it would come to your mind, then we'd like
9 to further hear from you. Yes.
10 MS. UERTZ-RETZLAFF: I seem to recall, Your Honour --
11 JUDGE ORIE: Yes.
12 MS. UERTZ-RETZLAFF: -- when you look at the indictment, what we
13 have here, the other two locations are actually camp locations where the
14 women were actually abused and taken away in the front of others,
15 terrifying others, showing openly to the audience what is happening or
16 going to happen to the victims. And here with the last rape, it's sort of
17 a different scenario. I seem to recall that that was the reason why we
18 said this was more the regular rape scenario, while in the other
19 incidents, with the camp situation and all the other victims that were
20 detained watching what's going on, that has quite a different impact on
21 the group of the victims as such, as the Muslim -- as the Muslims as such.
22 JUDGE ORIE: It now seems that the public character, more or less,
23 becomes the criteria rather than --
24 MS. UERTZ-RETZLAFF: I seem to recall that we made a distinction
25 between the two scenarios.
1 JUDGE ORIE: Okay. That's clear to me now.
2 JUDGE MOLOTO: Do I understand that the other one was done in
4 MS. UERTZ-RETZLAFF: Yes. The women were actually taken away from
5 Karaman's House, relocated to Foca, and in the course of this relocation,
6 they were raped as one incident in the fish -- above the fish restaurant,
7 and it was not so obvious to other groups of victims. At that time there
8 was no -- the groups of victims that were actually taken from the villages
9 were no more together, and it was -- it had, in the other locations, the
10 effect that the women were taken out and raped. It was actually also a
11 huge impact on the other victims that were not raped at that time, but it
12 had a severe impact on them.
13 JUDGE MOLOTO: What then constitutes torture from the point of
14 view of the Prosecution? Is it the public nature of the incident --
15 MS. UERTZ-RETZLAFF: No, the purpose.
16 JUDGE MOLOTO: Well, fair enough. The purpose could be, we're
17 going to do it publicly so as a intimidate and terrorise the audience as
18 well as the victims. But I'm asking you, what is the purpose, from the
19 point of view of the Prosecution, that what constitutes torture? Is it
20 the public nature of the incident? Is it the discriminatory nature of the
21 incident? Or is it what you mentioned in the beginning which was that
22 a -- I can't remember now, the very first reason why you distinguished
23 between the three occasions and the last occasion. You gave a reason.
24 MS. UERTZ-RETZLAFF: Your Honour, we have listed in the plea
25 agreement the situations of torture, the torture purposes that applied in
1 this case, and it is actually -- the first one is obtaining information or
2 confession. That is clearly related to Buk Bijela. And the second one is
3 actually punishing and intimidating or coercion of victim or third person;
4 that is clearly related to the other camp conditions. And finally there
5 is also discrimination that also applies.
6 JUDGE ORIE: So do I understand you well that you say that by the
7 incident near to the fish restaurant, there was not like in other
8 situations intimidation of third persons --
9 MS. UERTZ-RETZLAFF: Yes.
10 JUDGE ORIE: -- who were observing the victims to be taken away
11 for purposes of being raped, where to that extent there were no third
12 persons present there?
13 MS. UERTZ-RETZLAFF: Yes, Your Honour, that was the distinction, I
14 think, that we made at that time.
15 JUDGE ORIE: Well, there's still discrimination, or is it not?
16 MS. UERTZ-RETZLAFF: Yes, Your Honour.
17 JUDGE ORIE: So for that reason, torture could have been there
18 under --
19 MS. UERTZ-RETZLAFF: Yes, but we have chosen not to do that.
20 JUDGE ORIE: Okay. That at least answers some of the questions.
21 Now, you've just told us that victim ZG was not included in the
22 agreement because Mr. Zelenovic did not remember witness ZG. At the same
23 time we see that the victims, for example, FWS-50, which he doesn't
24 remember, is still included as one out of four women. Was the position --
25 perhaps I'd better ask Mr. Jovanovic. Is the position that the witness ZG
1 and the other two witnesses that are, I would say, more or less, excluded
2 from the guilty plea - these are -- let me just have a look. These are
3 witnesses -- well, the two other witnesses - let me just find them - that
4 Mr. Zelenovic -- it is witness FWS-95 and FWS-50. Is it that
5 Mr. Zelenovic does not remember their identity or does he not remember
6 that they were victimised -- no, it is 48, 50, and 95. What's the
7 position of the Defence to enter a plea of not guilty in relation to these
9 MR. JOVANOVIC: [Interpretation] Your Honour, as I have already
10 mentioned, the view of the Defence and Mr. Zelenovic himself is that he
11 accepts the events alleged in relation to FWS-75 and 87. So I don't think
12 that it is correct to say that he does not remember their identity. He
13 simply does not plead guilty in relation to the events as described in the
14 indictment in which the victims were 48, FWS-48 and 95 and ZG. So that's
15 our agreement with the Prosecution. And as I have already said, we have
16 the agreement that the Prosecution was going to amend the indictment
17 orally here today at this hearing. That's what we expected.
18 So let me repeat: Mr. Zelenovic does not plead guilty about the
19 events in which other victims were involved, except FWS-75 and 87.
20 JUDGE ORIE: Well, then, perhaps I should ask Madam
22 Madam Uertz-Retzlaff, it seems that for unknown reasons, apart
23 from the four persons I just mentioned, for unknown reasons, Mr. Zelenovic
24 does not plead guilty, whether he doesn't remember their identity or
25 whether for any other reason, on charges you've brought against him and
1 where the Confirming Judge has established that there's a prima facie case
2 for that. What's your view on what this means for the other victims, the
3 victims to which Mr. Zelenovic does not plead guilty and where you stated
4 in the beginning of the proceedings that you had a prima facie case? And
5 have you discussed with Mr. Jovanovic that in order to amend the
6 indictment, you need the approval of the Chamber?
7 I mean, let me put it quite bluntly: To what extent is the
8 Prosecution involved in an exercise in which half of the victims are just
9 devictimised for unknown reasons?
10 MS. UERTZ-RETZLAFF: Your Honour, it was a long discussion between
11 the Prosecution and the Defence, and I actually have a memo on what the
12 discussion was. And the position of Mr. Zelenovic always was, "I admit to
13 certain incidents, but I have no recollection of being Foca 8, involved
14 FWS-50, being FWS-95 involved." This is why the factual basis actually
15 refers -- and ZG. I forgot to mention here. This is why the factual
16 basis refers in these cases to either not mentioning a third women, like
17 in the case of ZG, or in the other cases, referring to other women, two
18 other women or referring to -- yeah, basically two other women. And
19 that's -- that was the agreement, that when Mr. Zelenovic does not recall
20 certain victims, but it was clear from the evidence in the Kunarac case
21 that in a certain incident, four women were involved, then actually the
22 four women are mentioned in the factual basis but only given the two
23 identities that Mr. Zelenovic knows about. Because if all the victims
24 basically say, "We were taken out in a group from the classroom in Foca
25 High School and Mr. Zelenovic took us out, and we were four," then it
1 can't be that in the factual basis and in the plea that it's only two now.
2 But where -- where Mr. Zelenovic, on the other hand, says, "I do recall
3 the incident as such with the four women, but I don't know two
4 identities," then that's why we changed it. So that's why the incident in
5 6.6 involves four victims and the incidents above the fish restaurant
6 involves four victims. We're not actually dropping those.
7 JUDGE ORIE: Yes. Nevertheless it seems that Mr. Jovanovic has a
8 bit of a different understanding of the plea agreement. He says that the
9 not guilty pleas are not based on not knowing the identity, because we are
10 now faced with a not easy situation. There will be a guilty plea on count
11 49, from what I understand. Let me just verify that. A guilty plea on 49
12 with two witnesses mentioned by name and two witnesses of which we do not
13 have the identity. Mr. Zelenovic pleads guilty also to the two other
14 women. For Mr. Jovanovic, I understand that he says there's a guilty plea
15 only on FWS-75 and 87, not on anyone else. And he also says that the
16 pleas of not guilty on the other counts is not because he doesn't remember
17 the identity.
18 The Chamber is puzzled by where it takes it that the Confirming
19 Judge considered to be a prima facie there, that just on the basis of
20 Mr. Zelenovic saying, "I do not remember," to just take out these victims.
21 And the other issue being that Mr. Jovanovic tells us that it's only 75
22 and 87, whereas you explained to us that count 49, under 9.1 in the
23 indictment, covers two known and two unknown women, that Mr. Jovanovic
24 seems to suggest that it's only 75 and 87. Could you, perhaps, clarify?
25 Is there a misunderstanding, Mr. Jovanovic?
1 MS. UERTZ-RETZLAFF: But, Your Honour, if you look at paragraph 22
2 of the -- of the factual basis --
3 JUDGE ORIE: Yes.
4 MS. UERTZ-RETZLAFF: -- it's clearly here stating, "on or about 30
5 October 1992, victim 75 and 87 and two other females were taken from
6 Karaman's House."
7 JUDGE ORIE: Yes.
8 MS. UERTZ-RETZLAFF: -- "and were raped in the apartment above the
9 fish restaurant." And Mr. Zelenovic rapes 87.
10 JUDGE ORIE: I agree that it's in the factual statement, but
11 Mr. Jovanovic tells us it's only 75 and 87. I hate to use only the
13 Mr. Jovanovic, would I have to understand your earlier remark that
14 it was only a guilty plea on victims FWS-75 and 87 to be extended also to
15 unknown victims or unidentified victims specifically mentioned in the
16 counts, in the incidents, and in the factual statement?
17 MR. JOVANOVIC: [Interpretation] Your Honours, it is precisely what
18 it says in paragraph 2 of the factual basis. This is what Mr. Zelenovic
19 accepted. He accepted that on that occasion women FWS-75 and 87 were
20 taken out, plus two other women. So that is not contentious. But for him
21 to say that he doesn't remember or doesn't know the identity, that allows
22 for the possibility that these were the victims stated in the indictment.
23 However, Mr. Zelenovic simply cannot accept the counts for torture and
24 rape of 48, 95 and ZG, which was described in paragraph 60.
25 His plea agreement covers his admission of events in relation to
1 75 and 87 and the events as described in paragraph 2 -- 22, namely, that
2 two other women were present. However, the formulation cannot be such
3 that those two other women were mentioned in the indictment but were not
4 75 and 87.
5 JUDGE ORIE: Now, you say in 60, paragraph 60, he could not accept
6 that. Is that because he says that such an incident did not take place,
7 or does he say "it may have taken place but I don't remember," or "I do
8 not remember whether these women were victims in such an incident"?
9 MR. JOVANOVIC: [Interpretation] Your Honour, let me make a
10 correction. It says paragraph 60 in the transcript, whereas what I had in
11 mind was the paragraph of the indictment 6.10, where it says that an
12 unidentified soldier raped ZG; that is to say, that Mr. Zelenovic does not
13 accept responsibility for this rape of victim ZG by an unidentified
14 soldier. And this is why the Defence insisted that the victim ZG, as
15 described in paragraph 6.10 of the indictment, not be included in the
16 statement of facts.
17 JUDGE ORIE: Again, and that's the basic question, if he says "I
18 can't plead guilty," of course he's not under any duty -- he's entirely
19 free to plead guilty or not guilty, but the Chamber will be confronted
20 with a different matter, and that is if the supporting material for the
21 indictment strongly supports that not only victims 75 and 87 were victims
22 of these crimes but others as well, whether the Chamber is much inclined
23 to say a guilty plea on one or two victims and that is good enough, in
24 other words, let the rest go. Therefore, more or less, I'm inquiring into
25 what is the basis of your agreement on this?
1 MS. UERTZ-RETZLAFF: Your Honour, the basis of the -- when
2 discussing the different incidents, the Prosecution looked, of course,
3 what was the outcome of the Kunarac case and we also looked at the
4 statements that were given by the victims involved. And in relation to,
5 for instance, the fish restaurant incident or the first incident in the
6 Foca High School, the witnesses are very precise. They said, "Four of us
7 were taken and we were raped by the perpetrators, including
8 Mr. Zelenovic."
9 In relation to the incident involving ZG, only, as far as I
10 remember it now correctly, only one of the victims - I think it's 75 -
11 actually said, "We were three." And I seem -- so many details, but I seem
12 to recall that the other one did not mention ZG. But I would have to
13 check that now. And that was always then the result, as it is not 100 per
14 cent clear whether it was ZG involved there. And that's actually the
15 incident here that is -- that we are most concerned with. That's why we
16 then dropped ZG.
17 JUDGE ORIE: Yes. So I do understand that whenever you accepted
18 an agreement on a non-guilty plea, that you had in the back of your mind
19 that you might face some problems in producing sufficient evidence; is
20 that it?
21 MS. UERTZ-RETZLAFF: Yes, Your Honour, that's the point. And
22 also -- I have to also stress the point that in the Kunarac case,
23 Mr. Zelenovic, of course, was not an issue, so the witnesses were not
24 really asked much during that trial about Mr. Zelenovic. So a lot of
25 details that now relate to Mr. Zelenovic's involvement were not fully
1 explored in the case that has already been run here. So we actually did
2 make some concessions from the side of the Prosecution.
3 JUDGE ORIE: But always in view of potential, let's say, risks in
4 the procedure that you might not be in a position to produce sufficient
6 MS. UERTZ-RETZLAFF: Yes. We looked at the evidence that we had,
7 and where we also had some differences in the statements of the victims,
8 we actually felt it was better to actually make a decision in favour of
9 the accused.
10 JUDGE ORIE: Yes, I do understand.
11 [Trial Chamber confers]
12 MS. UERTZ-RETZLAFF: Your Honour, can I add one more point --
13 JUDGE ORIE: Yes.
14 MS. UERTZ-RETZLAFF: -- and that relates actually to the victim 48
15 which we also do not find in the charges here. The judgement, the Kunarac
16 judgement, was also not based on her evidence, because this victim was
17 raped so often that she could not identify any more the particular
18 incident and the particular perpetrators. Therefore, also in the Kunarac
19 case, the evidence of this victim also, it was believed, was not actually
20 used for the conviction, because that was really a problem with that
22 JUDGE ORIE: Okay. I do understand.
23 We'll have a break now. The Chamber -- one of the things the
24 Chamber will do during the break is to consider whether we could proceed
25 on the basis of the -- of the plea agreement as we find it here, with all
1 the confusion, where it's not clearly set out what a guilty plea on count
2 so and so in relation to incident so and so would actually mean, whether
3 it would cover all the victims or whether it would cover only one of the
4 victims. We'll consider whether we can proceed on the basis of the
5 existing plea agreement, and then, of course, we'd have to specify in
6 quite some detail, when inviting the accused to enter a plea, or whether
7 we would require the parties to be more clear in their agreement so that
8 we avoid whatever confusion when asking from the accused to enter his
10 We'll adjourn for half an hour. We'll resume at 11.00.
11 --- Recess taken at 10.28 a.m.
12 --- On resuming at 11.04 a.m.
13 JUDGE ORIE: Let us see whether there are any questions remaining.
14 [Trial Chamber confers]
15 JUDGE ORIE: I've got one last question in relation to the factual
16 statements -- factual statement. In paragraph 8, it reads at the end, "On
17 or about the 3rd of July, 1992, during and after the interrogation, Dragan
18 Zelenovic and the other co-perpetrators gang-raped several of the women
19 they suspected of lying, in particular ..." How does the Chamber
20 understand "in particular"? Is that, apart from the incidents mentioned,
21 I take it, in 9 and 10, there may have been more which are not specified,
22 or is it limited to the incident mentioned in 9 and 10?
23 MS. UERTZ-RETZLAFF: Your Honour, it is limited to the two
24 incidents mentioned here, but of course in Buk Bijela, more perpetrators
25 were involved in other incidents but they are not charged in relation to
1 Mr. Zelenovic. As you see, the other indictment includes a lot of -- a
2 lot more incidents than actually are redacted, and they relate to other
3 perpetrators. That's why it says here "in particular." That's why the
4 words are used. But, of course, the accused Zelenovic is only -- it's
5 only -- is only charged in relation to these two incidents, and he also
6 only admits these two incidents.
7 JUDGE ORIE: Yes.
8 May I take it, Mr. Jovanovic, that you agree with this, which is,
9 I would say, the favourable explanation to Mr. Zelenovic?
10 MR. JOVANOVIC: [Interpretation] Yes, Your Honour, that is how the
11 Defence understands the statement of facts as it relates to paragraphs 9
12 and 10.
13 JUDGE ORIE: Yes. Thank you, Mr. Jovanovic.
14 The Chamber has considered how to proceed. The Chamber is not
15 satisfied with the plea agreement as a written basis for receiving pleas
16 from this accused. The Chamber would very much like the parties to
17 produce this same afternoon, as an annex to your plea agreement, a copy of
18 the indictment in which you strike out exactly all parts to which
19 Mr. Zelenovic does plead not guilty. For example, this would mean that,
20 on the basis of what we heard, that in 6.10, victim ZG would be removed,
21 and the rape of witness ZG, because Mr. Zelenovic is charged with
22 involvement in that and I do understand that he pleads not guilty to that.
23 If you would produce such a document this afternoon, we would have
24 clear guidance to continue tomorrow and to invite Mr. Zelenovic to enter
25 pleas on the counts with clear specification of which incidents are
1 covered by the counts and whether the whole of the incidents or only part
2 of the incidents are covered by the plea to be entered.
3 We'll then proceed to asking Mr. Zelenovic to plea on those counts
4 and those incidents as specified in this document. And from the plea
5 agreement, I understand that then the Prosecution will ask for approval of
6 withdrawing the remaining counts or portions of counts. The Chamber will
7 then deal with that, and then we could conclude tomorrow.
8 MS. UERTZ-RETZLAFF: Your Honour, let me ask a clarification.
9 What -- it's clear for ZG, to actually simply strike her, but in -- and
10 also we have discussed the fish restaurant incident which isn't a problem
11 because it doesn't specify the two other women involved. But in relation
12 to the incident 6.6 --
13 JUDGE ORIE: 6.6.
14 MS. UERTZ-RETZLAFF: -- we have actually the witnesses mentioned,
15 50 and 95, and the position of the accused here is that, "Yes, I did rape
16 four victims, but I'm not able to say it's 50 and 95." That would mean
18 That's ...
19 JUDGE ORIE: Well, whether it's adding or not. What could be said
20 is selected, and then give an X or a Y, if that is what is on your mind.
21 But I do understand that there is an agreement on a guilty plea on the
22 other two women, although unidentified.
23 MS. UERTZ-RETZLAFF: Yes.
24 JUDGE ORIE: Is that, Mr. Jovanovic, how you understand the plea
25 agreement as well?
1 MR. JOVANOVIC: [Interpretation] Your Honour, specifically in
2 reference to paragraph 6.6, the witnesses mentioned here, or rather the
3 victims, are FWS-50, 75, 87 and 95, and Dragan Zelenovic is charged with
4 raping FWS-75 and that is the plea he entered. Neither in the indictment
5 nor in the plea agreement is it stated that Dragan Zelenovic raped four
6 women. Therefore, in the factual statement, it is stated that he was
7 among a group of soldiers which separated off four women, including these
8 two, and that he raped 75, not as my learned friend said, that he raped
9 four women.
10 JUDGE ORIE: At the same time, I do understand that his
11 involvement, although he did not rape the other women himself, is
12 considered by the Prosecution to be aiding and abetting to the rape
13 committed by others, although -- is that ...
14 MS. UERTZ-RETZLAFF: Your Honour, that actually was my next
15 question that I wanted to raise. In relation to this incident, we
16 actually see the four perpetrators doing the rapes as co-perpetrators.
17 It's not aiding and abetting but it's co-perpetration. Only in relation
18 to the Buk Bijela incident, that's -- the Buk Bijela incident -- sorry.
19 JUDGE ORIE: I now see that there seems to be a basic disagreement
20 on what Mr. Zelenovic is charged with under 6.6. You say it's --
21 MS. UERTZ-RETZLAFF: Yes. He's actually -- he is in a group of
22 four people, and he's actually the man in charge. He's the man who, in
23 this incident, is actually dividing the victims among the perpetrators.
24 So that's co-perpetration. In contrast to that, so that also
25 Mr. Jovanovic understands it now more fully, in relation to the incident
1 with the victim 75 being raped at Buk Bijela, the man Gojko Jankovic is in
2 charge and Mr. Zelenovic is basically aiding and abetting here in this
3 incident 5.3.
4 JUDGE ORIE: Okay.
5 MS. UERTZ-RETZLAFF: That's the distinction to make.
6 JUDGE ORIE: Mr. Jovanovic, Madam Uertz-Retzlaff tells us that a
7 guilty plea on 6.6 would include a guilty plea to co-perpetration of the
8 rapes committed by others against victims that were not raped personally
9 by Mr. Zelenovic. Is there agreement? And apart from whether he could
10 identify the other victims by their pseudonyms, is that your understanding
11 of the agreement on 6.6 as well?
12 MR. JOVANOVIC: [Interpretation] No, Your Honour. I abide by the
13 standpoint that Mr. Zelenovic can identify only witnesses 75 and 87. In
14 paragraph 12 of the statement of facts, it is already stated that together
15 with other co-perpetrators from the group, he separated off four women and
16 girls -- he selected four women and girls from the classroom in which the
17 detainees were kept. I understand Ms. Uertz-Retzlaff to say that he raped
18 four women. However, it is the standpoint of the Defence -- I do
19 apologise, then. It must be my mistake. It must be misinterpretation.
20 But the factual statement actually does include co-perpetration.
21 JUDGE ORIE: Yes, co-perpetration --
22 MR. JOVANOVIC: [Interpretation] But not identifying the other
24 JUDGE ORIE: Co-perpetration of rape of four victims, two of them
25 being identified as FWS-75 and 87, the other two, in the admission of
1 guilt, not identified specifically as the persons mentioned in the
2 indictment. Yes, that's clear.
3 Then, as an annex -- we're just talking at this moment about an
4 annex to the plea agreement and not yet an amendment of the indictment.
5 Madam Uertz-Retzlaff, I think then you could replace FWS-50 and
6 FWS-95 by X and Y, which stands for victims not further identified by the
8 MS. UERTZ-RETZLAFF: Yes, Your Honour. That leaves, actually, one
10 JUDGE ORIE: Yes.
11 MS. UERTZ-RETZLAFF: And that relates to the Buk Bijela rape of 75
12 where the position is --
13 JUDGE ORIE: Let's just have a look.
14 MS. UERTZ-RETZLAFF: I'm talking now about paragraph 5.3 in the
16 JUDGE ORIE: 5.3, yes.
17 MS. UERTZ-RETZLAFF: Where, actually, Mr. Zelenovic is party to
18 the interrogation process that leads finally to the gang-rape of 75. And
19 it's the position, the joint position, that this is only aiding and
20 abetting to the gang-rape of 75. And that's not entirely clear from the
21 indictment. Therefore, either a sentence is added to paragraph 4.6 in the
22 indictment, where the mode of liability is mentioned. We could here add a
23 sentence that, in relation to 5.3, aiding and abetting is charged. Or the
24 other option is that in 5.9, that's the sentence immediately foregoing
25 count 5 and count 6, one could also mention here, by the foregoing acts
1 and omissions in relation to the victim 75, Dragan Zelenovic aided and
2 abetted; 2, in relation to the victim FWS-87, Dragan Zelenovic committed.
3 And I think that also would clarify the situation.
4 JUDGE ORIE: I think that would be sufficient. So what the
5 Chamber then expects is an attachment to the plea agreement which further
6 specifies on what exactly the parties agreed by striking out anything on
7 which it is not agreed; by striking out and putting in bold anything that
8 further specifies, for example, unknown identity by X or Y, or by adding
9 words "aiding and abetting." Please put that in bold clearly visible for
10 the Chamber. And then we can proceed on the basis of this document to
11 receive pleas tomorrow with the necessary level of detail which would
12 avoid confusion as to what exactly the conviction will be about.
13 Is there any other matter at this moment the parties would like to
15 MR. JOVANOVIC: [Interpretation] Your Honour, I do apologise. In
16 principle, we agree that the other victims be identified as X and Y. I
17 just want to make it clear that the standpoint of the Defence, which I
18 have reiterated more than once, is that this will not refer to those
19 victims who are mentioned in the indictment who are not 75 and 87; that in
20 no way will it be stated that these are 50, 95, ZG and 48 whose testimony
21 was not accepted by the Chamber in Kunarac et al.
22 JUDGE ORIE: Yes, but I do understand that wherever in the
23 indictment, as you will produce this afternoon, if a witness identified by
24 a pseudonym where the accused does not admit that it was this witness that
25 was a victim of that rape but admits that a woman was a victim of rape at
1 that time, that then the identification through the pseudonym will be
2 replaced by a general identification, by a letter X or Y.
3 I am not very much inclined to enter into any further discussions
4 on what should be in and what should not be in. That's a matter for the
5 parties. And it only shows that it's good for the Chamber to ask for the
6 position. So I leave it up to you. We'll see whether we receive this
7 afternoon this clarification. If so, fine; if not, there's no basis to
8 further hear any pleas on the basis of an agreement which seems to be
9 incomplete. The parties should agree on the matter, not the Chamber.
10 Anything else?
11 Mr. Zelenovic, I would like to ask you, because you are not
12 participating in this exchange of views, first of all, could you follow
13 the discussions, and are you in agreement with all the further details and
14 positions given by counsel?
15 THE ACCUSED: [Interpretation] Yes, Your Honour.
16 JUDGE ORIE: Because tomorrow we'll have to establish, if we have
17 received this new attachment to -- this new annex to the plea agreement,
18 we'll have to establish whether you voluntarily and with full
19 understanding entered into this agreement. Therefore, I want to verify at
20 this moment whether you could follow it and whether you agree with
21 everything that has been said. You'll be given an opportunity tomorrow to
22 briefly consult with counsel to see what exactly then remains.
23 Mr. Jovanovic, perhaps you could try to make a copy of the B/C/S
24 version so that Mr. -- you don't have to produce a B/C/S version of this
25 stricken-out indictment to the Chamber. We'll be happy with the English
1 version. But if you do a similar exercise for Mr. Zelenovic so that he's
2 fully aware - and that's the only thing that matters for the Chamber -
3 that he's fully aware as to what he pleads guilty to and to what counts,
4 what incidents, what parts of it he pleads not guilty to. Yes?
5 MR. JOVANOVIC: [Interpretation] Yes, Your Honour, I hope we will
6 be able to complete this task this afternoon. I would only ask that, if
7 possible, tomorrow's hearing be set at a later time so that I have the
8 opportunity to inform Mr. Zelenovic of whatever is agreed with the
9 Prosecution this afternoon.
10 As for the indictment, I do not need it in B/C/S, but he certainly
12 JUDGE ORIE: Yes. Mr. Jovanovic, if you would apply with the
13 Registry to have an opportunity to briefly meet with Mr. Zelenovic
14 tomorrow morning, I would say to start with, 15 minutes might do it. It's
15 easy to explain, I take it. And Mr. Zelenovic has been able to follow all
16 of the discussions of today. So therefore, of course, if it would turn
17 out that you haven't got sufficient time to discuss the matter with
18 Mr. Zelenovic, we'll hear an application for further time. But ...
19 [Trial Chamber and registrar confer]
20 JUDGE ORIE: Yes. I take it that the transportation of
21 Mr. Zelenovic will take place at the usual time. Would 15 minutes, to
22 start with, and so a later start of 15 minutes, which would allow you to
23 see Mr. Zelenovic, would that help you out, to start with?
24 MR. JOVANOVIC: [Interpretation] Yes, I agree, Your Honour.
25 JUDGE ORIE: Yes. Then we'll adjourn -- yes, Madam
2 MS. UERTZ-RETZLAFF: Your Honour, just one more clarification. Do
3 you also want us to strike those paragraphs that relate to Gojko Jankovic
4 and Radovan Stankovic?
5 JUDGE ORIE: If it's exclusively about them. I think most of them
6 are -- no, they are not stricken out yet.
7 MS. UERTZ-RETZLAFF: So we can do that, too.
8 JUDGE ORIE: Yes, perhaps that would make it -- of course, it
9 doesn't relate in any way to Mr. Zelenovic. But if that's out, it's
10 easier to use it as a working document.
11 MS. UERTZ-RETZLAFF: Yes.
12 JUDGE ORIE: Yes. Anything else?
13 MS. UERTZ-RETZLAFF: No, Your Honour.
14 JUDGE ORIE: Then we'll adjourn until tomorrow morning, quarter
15 past 9.00, in this same courtroom.
16 --- Whereupon the Motion Hearing adjourned at
17 11.26 a.m., to be reconvened on Wednesday, the
18 17th day of January, 2007, at 9.15 a.m.