Tribunal Criminal Tribunal for the Former Yugoslavia

Page 290

1 Wednesday, 7 May 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.31 p.m.

6 JUDGE LIU: Call the case, please, Madam Registrar.

7 THE REGISTRAR: Good afternoon. This is case number IT-02-60-PT,

8 the Prosecutor versus Momir Nikolic.

9 JUDGE LIU: Thank you.

10 May we have the appearances, please, for the Prosecution.

11 MR. McCLOSKEY: Good afternoon, Mr. President, Your Honours.

12 Peter McCloskey for the Prosecution, with Janet Stewart, our case manager,

13 Stefan Waespi, and Anne Davis.

14 JUDGE LIU: Thank you.

15 For the accused?

16 MR. LONDROVIC: [Interpretation] Good afternoon, Your Honours. I,

17 Veselin Londrovic, counsel; and Mr. Stefan Kirsch, my co-counsel, and

18 Ms. Vesna Anic, who is our interpreter, are representing the accused Momir

19 Nikolic.

20 JUDGE LIU: Thank you very much. You may sit down, please.

21 This hearing is a continuation of the proceedings held yesterday.

22 We noticed that there are some adjustments of the plea agreement by both

23 parties in light of yesterday's discussion.

24 First of all, I would like to express our appreciation to both

25 parties for their effort in reaching this agreement, especially after

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1 yesterday's hearing.

2 Now could we ask both parties to brief us on those adjustments,

3 and then we might ask some questions.

4 For the Prosecution, Mr. McCloskey, please.

5 MR. McCLOSKEY: Yes, Mr. President. We dealt specifically with

6 the issue, first of all, that I believe the Court was very concerned

7 about, and that was in paragraph 4(b), where we have agreed with counsel

8 to, if the plea is accepted, that at that time we will move to dismiss

9 without prejudice the remaining charges against Mr. Nikolic. And there's

10 no problem with that, and all sides agree, and I think from our

11 discussions yesterday we did bring out that that was something that is no

12 longer necessary in this Tribunal with the protections that this Tribunal

13 has. So that was number one.

14 Then the next part was the section that had to do with the nature

15 of the charges, where we, in 5(1) we not only as originally deleted

16 references to "genocide or complicity in genocide" but also deleted the

17 references to the other charges. Initially it was thought by both parties

18 that those references were included within persecutions, but upon closer

19 look, while those references are part of persecutions, they were in the

20 indictment as part of the other charges, as you correctly pointed out, and

21 so that we have now cleared that up by deleting them and so that Mr.

22 Nikolic will not be pleading to anything related to those other charges.

23 And so we were able to work together well, like we have been over

24 the past few weeks, and I believe all parties are satisfied with the --

25 with the agreement as it -- as it now stands.

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1 JUDGE LIU: Thank you very much.

2 Could I turn to the Defence team. Are there any observations,

3 comments on that particular point?

4 MR. LONDROVIC: [Interpretation] No, Your Honour.

5 JUDGE LIU: Do you agree with that -- those adjustments in the

6 plea agreement?

7 MR. LONDROVIC: [Interpretation] Yes, Your Honour. We have told

8 our client about the changes. He has accepted them. Everything has been

9 explained to him, and everything was done in agreement with the

10 Prosecutor.

11 JUDGE LIU: Thank you very much. You may sit down, please.

12 Any questions from the Judges? I see none.

13 Now I would like to address the accused, Mr. Nikolic, at this

14 stage. Mr. Nikolic, the Trial Chamber would like to find out from you

15 whether you understand the details of this plea agreement you entered into

16 with the Prosecution.

17 THE ACCUSED NIKOLIC: [Interpretation] Yes, Your Honour. My

18 lawyers have explained to me all the details contained in the agreement,

19 and I fully understand the clauses of the agreement.

20 JUDGE LIU: This Trial Chamber also would like to find out from

21 you, when entering into this plea agreement, you understand that this

22 Trial Chamber is not bound to accept the range of sentence agreed to by

23 you and the Prosecution.

24 THE ACCUSED NIKOLIC: [Interpretation] Yes. That part of the

25 agreement was explained to me too, and I am quite clear about that.

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1 JUDGE LIU: As we understand that you have already discussed with

2 your lawyer about the details of this plea agreement, did he advise you of

3 the consequences of pleading guilty to count 5, that is, persecution?

4 THE ACCUSED NIKOLIC: [Interpretation] Yes, he did, Your Honour.

5 My lawyers -- or rather, Mr. Londrovic and Mr. Kirsch told me about all

6 the details and consequences of the -- emanating from the agreement and

7 the consequences of my pleading guilty.

8 JUDGE LIU: We would like to know whether you were threatened or

9 coerced in any way to make this agreement. Was it entirely made by you

10 voluntarily?

11 THE ACCUSED NIKOLIC: [Interpretation] Your Honour, I can say here

12 that no threats were addressed to me during the discussions about the

13 agreement or here that nobody forced anything on me and that this

14 agreement is an act of my goodwill, or rather, I made my own decision.

15 JUDGE LIU: Very well, then. This Trial Chamber would like to put

16 the count to you so that you can plea as otherwise and according to your

17 own free will. That is count 5 of the charges as detailed in the plea

18 agreement. Are you ready for that?

19 THE ACCUSED NIKOLIC: [Interpretation] Yes, I am.

20 JUDGE LIU: How do you plead to count 5 of the amended indictment

21 charging you with persecution as a crime against humanity; guilty or not

22 guilty?

23 THE ACCUSED NIKOLIC: [Interpretation] Your Honour, I plead guilty

24 on count 5, that is, the charge that relates to persecutions.

25 JUDGE LIU: Very well. This Trial Chamber records a plea of

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1 guilty of count 5, persecution, by the accused.

2 This Trial Chamber has considered the particulars of the facts in

3 the plea agreement and is satisfied that they do form sufficient factual

4 basis for finding the accused guilty on the count. Therefore, makes a

5 finding of guilty and enters the conviction for count 5, persecution,

6 against the accused, Mr. Nikolic. We also accept the plea agreement with

7 the understanding that the Prosecutor will move to dismiss without

8 prejudice to either party the remaining charges against Momir Nikolic set

9 out in the indictment.

10 You may sit down, please.

11 THE ACCUSED NIKOLIC: [Interpretation] Thank you.

12 JUDGE LIU: The Trial Chamber will issue orders relating further

13 proceedings in due course.

14 Now we could move to the next stage, about a possible date for

15 hearing of sentencing. And I would like to find out from both parties how

16 they intend to make their submissions on sentencing.

17 Mr. McCloskey, can you indicate how much time you think you need

18 for the submission of your files.

19 MR. McCLOSKEY: Given the impending trial, it would be nice to

20 have at least two months to get something together for you.

21 JUDGE LIU: Could I turn to the Defence team.

22 MR. LONDROVIC: [Interpretation] Your Honour, the Defence believes

23 that our preparation for the sentencing hearing - because earlier we

24 didn't pay much attention to that; we were getting prepared for the trial

25 - but we believe we might need about three months to prepare properly for

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1 the hearing.

2 JUDGE LIU: Thank you.

3 It seems to me that it's very difficult at this stage to set a

4 particular date for that hearing because we have to get the submissions

5 from both parties. Of course, this Trial Chamber is in a very difficult

6 position at this moment. Like Mr. McCloskey said, we have a big case

7 pending; at the same time, the Judges are involved in other obligations,

8 for instance, the judgement of another case. But I hope that the parties

9 will submit their filings as soon as possible because we have to move

10 forward.

11 The Trial Chamber will issue a scheduling order on the matters of

12 further hearings in these proceedings. Now it's very difficult to fix a

13 particular date. We hope we could have it before the summer recess, but

14 which seems to me is very unlikely.

15 [Trial Chamber confers]

16 JUDGE LIU: Are there any observations at this stage from both

17 parties? Mr. McCloskey?

18 MR. McCLOSKEY: No, Mr. President.

19 JUDGE LIU: The Defence team?

20 MR. LONDROVIC: [Interpretation] No, Your Honours, we have no

21 comments. Only we'd like to ask you, in your scheduling order, to see

22 that we do it after the summer recess, and I do hope you will do so.

23 JUDGE LIU: You mean -- what do you mean by "after summer recess"?

24 You mean the filing of the submissions or the hearing on the sentencing

25 issues? I have to make it clear on this point.

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1 MR. LONDROVIC: [Interpretation] I mean the hearing. And as for

2 the submissions, we can submit that earlier.

3 JUDGE LIU: Thank you very much.

4 I think that's all. We are adjourned.

5 --- Whereupon the Motion Hearing adjourned

6 at 4.46 p.m.