Tribunal Criminal Tribunal for the Former Yugoslavia

Page 435

 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.

Page 436

 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

13    documents.

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

Page 437

 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.

Page 438

 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]

Page 439

 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

Page 440

 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

Page 441

 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

Page 442

 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

Page 443

 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.

Page 444

 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

10    count?

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.

Page 445

 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

20    occurs.

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.

Page 446

 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 ...

Page 447

 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,

Page 448

 1    remembers.

 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

Page 449

 1    we do not find anything about -- in the statement of facts about victim

 2    ZG.

 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

Page 450

 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

 4    recall.

 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

Page 451

 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.

Page 452

 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

22    second.

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

Page 453

 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

10    abetting.

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

Page 454

 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

Page 455

 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

Page 456

 1    longer.

 2            JUDGE ORIE:  Nevertheless, but --

 3            MS. UERTZ-RETZLAFF:  But --

 4            JUDGE ORIE:  But you gave us an explanation a minute ago why it

 5    was.

 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.

Page 457

 1            JUDGE ORIE:  Okay.  That's clear to me now.

 2            JUDGE MOLOTO:  Do I understand that the other one was done in

 3    private?

 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

Page 458

 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

Page 459

 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

 8    victims?

 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

21    Uertz-Retzlaff.

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

Page 460

 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

Page 461

 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?

Page 462

 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

12    numbers.

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

Page 463

 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?

Page 464

 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

Page 465

 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

 5    evidence.

 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

21    victim.

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

Page 466

 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

 9    pleas.

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

Page 467

 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

Page 468

 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?

Page 469

 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

Page 470

 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

23    victims.

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

Page 471

 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

 7    accused.

 8            MS. UERTZ-RETZLAFF:  Yes, Your Honour.  That leaves, actually, one

 9    difficulty.

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

15    indictment.

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

Page 472

 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

14    raise?

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

Page 473

 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

Page 474

 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

11    does.

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

Page 475

 1    Uertz-Retzlaff.

 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.