Tribunal Criminal Tribunal for the Former Yugoslavia

Page 32

1 Tuesday, 19 July 2005

2 [Plea Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.07 p.m.

6 JUDGE LIU: Call the case, please, Mr. Court Deputy.

7 THE REGISTRAR: Yes, thank you, Your Honour. Case number

8 IT-95-17-PT, the Prosecutor versus Miroslav Bralo.

9 JUDGE LIU: Thank you very much. May we have the appearances,

10 please, for the Prosecution?

11 MR. HARMON: Good afternoon, Your Honours. Good afternoon,

12 counsel. My name is Mark Harmon. Appearing with me is Mr. Fergal Gaynor.

13 JUDGE LIU: Thank you very much for the Defence?

14 MR. COOPER: May it please Your Honours, my name is Jonathan

15 Cooper, counsel for Mr. Bralo, and I appear with Virginia Lindsay who is

16 legal consultant.

17 JUDGE LIU: Thank you.

18 Mr. Bralo, can you follow the proceedings in a language that you

19 understand?

20 THE ACCUSED: [Interpretation] I'm not receiving the

21 interpretation.

22 JUDGE LIU: That's why I asked you this question. Can you hear

23 me?

24 THE ACCUSED: [Interpretation] Yes.

25 JUDGE LIU: Can you follow the proceedings in a language that you

Page 33

1 understand?

2 THE ACCUSED: [Interpretation] I can now, yes.

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

4 Well, good afternoon, ladies and gentlemen. This is a hearing in

5 accordance with Rule 47, 50 and 62 ter of the Rules of Procedure and

6 Evidence. This Trial Chamber is seized with the filing of documents

7 relating to Rule 62 ter filed by the Prosecution dated 19th July, 2005.

8 There are three documents attached to this motion, which are the plea

9 agreement, proposed amended indictment and the factual basis.

10 Since we just received this document this morning, I would like to

11 have the parties to brief us very briefly on the contents of those

12 documents.

13 Yes, Mr. Harmon.

14 MR. HARMON: Yes, Your Honour. I would be glad to do so.

15 The three documents that the Trial Chamber has received consist of

16 a proposed amended indictment, a proposed plea agreement and a factual

17 basis to support a plea agreement. That's the nature of the three

18 documents. If you want additional details, I can give Your Honours

19 additional details in respect of those documents.

20 JUDGE LIU: Yes, please.

21 MR. HARMON: Let me start with the proposed amended indictment.

22 The proposed amended indictment is a streamlined indictment from the

23 previous indictment. The previous indictment had 21 counts. This

24 indictment is a streamlined version of the previous indictment. It has

25 eight counts. The new indictment consists of a new count, a count of

Page 34

1 persecutions, which is count 1, of the proposed amended indictment, and

2 there is a second new count, that count is unlawful confinement which is

3 found in count 6.

4 The streamlining of the indictment consists, for example, of the

5 previous indictment in counts 1 and 2 has been streamlined in the new

6 indictment. You'll find that in count 7 the amendment and the proposed

7 amendment from the old indictment to the new indictment consists of

8 essentially withdrawing the old count 2, a violation of the laws or

9 customs of war, for the same conduct. In the previous indictment, Your

10 Honours will see under counts 3 and 4, cruel and -- inhumane and cruel

11 treatment, and the new indictment has only one of the charges, the

12 original charges, from the previous indictment, and that's found now in

13 count 8. Counts 5 through 8 of the old indictment, which was -- which

14 were multiple charges relating to a set of murders that took place between

15 the 21st of April and the 10th of May, 1993, those counts have been

16 streamlined. We essentially withdrew three of those counts, and now that

17 conduct, which was found in counts 5 through 8 of the old indictment, is

18 now found in count 2 of the new indictment.

19 Yes, that's correct.

20 And the counts relating to counts 9 through 21, rape and torture,

21 now are reflected in the new indictment in counts 3 through 6. And we, as

22 I say, have added one additional count in respect of that conduct,

23 unlawful confinement. So what we are presenting in terms of the

24 indictment reflects in the new indictment the conduct, much of the

25 conduct, I should say, from the old indictment, plus the addition of a

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1 persecutions count. The persecutions count, count 1, relates to conduct

2 that relates to the attack on the village of Ahmici that occurred on the

3 16th of April, 1993. So that is what the amended indictment is, in terms

4 of what we are proposing, and we ask leave of the court to accept the

5 amendments.

6 The plea agreement document is a document that sets forth, for the

7 Court's benefit, the terms of the agreement in terms of reflecting this is

8 a knowing and intelligent waiver of rights. It outlines the nature of the

9 offences and there is a section that deal with penalty and sentencing. I

10 should say, in terms of this agreement, this is an unconditional plea.

11 There are no promises or inducements made by the Prosecutor's office in

12 respect of securing the pleas that Mr. Bralo intends to tender to this

13 Court.

14 Finally, Your Honours, in support of the proposed -- of the pleas,

15 we have submitted for Your Honours a factual basis. These are facts that

16 are agreed upon by both the Prosecution and the Defence and form the basis

17 on which the Court can rely in respect of each of the charges. So those

18 are the three documents that we have submitted in the package that we

19 filed this morning, Your Honour.

20 JUDGE LIU: Thank you very much. Any observations from the

21 Defence counsel?

22 MR. COOPER: Thank you, Your Honours, no.

23 JUDGE LIU: Yes. The Judges may ask some questions to the

24 parties. Yes.

25 JUDGE ORIE: We have also been provided with some supporting

Page 36

1 material, that is, two witness statements. Do they play any role at this

2 moment in --

3 MR. HARMON: The only role they play, Your Honour, is to support

4 the proposed amendments, to establish that there is a prima facie case to

5 support the amendments.

6 JUDGE ORIE: Yes. I see that attached to both the supporting

7 documents, I do not know whether there are any protective measures but I

8 think we can deal with it without even referring to the names of the

9 witnesses who gave those statements, I see quite a number of documents

10 attached, one of them some six or seven, the other one apart from a sketch

11 which is clearly explained in the statement, also a similar document as

12 attached to the other one, of which I'm not aware, as a matter of fact,

13 what it actually is. Are these certificates of birth or are these

14 certificates of --

15 MR. HARMON: Your Honour, there were attached some death

16 certificates.

17 JUDGE ORIE: Death certificates, yes. Then I take it since they

18 are all similar and they indicate names, that these are death certificates

19 of the victims of -- because the names correspond with the names on the

20 annexes to the amended indictment.

21 MR. HARMON: Your Honour, they are death certificates for some of

22 the victims, not all of the victims. And, yes, they are the certificates

23 for some of the names in Schedule A.

24 JUDGE ORIE: Let me just check that. Yes. Thank you.

25 JUDGE LIU: Well, Mr. Harmon, in your statement, you said that

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Page 38

1 it's unconditional plea agreement. Would you please elaborate on that

2 point? What do you mean by unconditional?

3 MR. HARMON: Yes, I will be glad to, Your Honour.

4 Unconditional means that this agreement is not conditioned upon

5 Mr. Bralo doing anything or providing anything to the Prosecutor's office.

6 He is accepting the pleas. There have been -- the charges on their face.

7 He is -- has not been promised anything by the Prosecutor's office nor has

8 he been induced to plea by any recommendation, for example, of a sentence

9 range or sentence itself. There are absolutely no promises made to

10 Mr. Bralo, and the issue of how this case ultimately is resolved will be

11 through evidence that will be adduced at a later hearing, should the Court

12 accept the guilty pleas.

13 JUDGE LIU: Thank you.

14 Mr. Cooper, do you have any observations on that point?

15 MR. COOPER: Your Honour, these are indeed unconditional pleas.

16 They are entered freely and entirely voluntarily. The information which

17 underlies each of the counts was either information that was known already

18 to the Prosecutor and was included in the original indictment, or was

19 information which came new to the Prosecutor from this defendant himself,

20 and in relation to all the counts, those in the original indictment and if

21 Your Honours are so minded, in the amended indictment, the defendant

22 enters pleas entirely unconditionally, and they reflect his concern and

23 desire to express his remorse without condition.

24 JUDGE LIU: Thank you very much.

25 [Trial Chamber confers]

Page 39

1 JUDGE LIU: Yes, Judge Orie.

2 JUDGE ORIE: Mr. Harmon, having looked at what I now know are

3 death certificates, may I draw your attention to the death certificate

4 which concerns Adis Salkic? On Schedule A you give as the date of birth

5 the 20th of December, 1978, whereas the death certificate seems to

6 indicate a date of birth different. Might be a typo but ...

7 MR. HARMON: Your Honour, it might be a typo. But without a copy

8 of the death certificate here, I'm not in a position to comment.

9 JUDGE ORIE: The one is the 20th, the other is the 28th. It might

10 be a typo, but I just note it's not really consistent.

11 MR. HARMON: That is noted, Your Honour.

12 JUDGE LIU: Well, after consultations among the Judges, this Trial

13 Chamber carefully examined each of the counts in the amended indictment

14 and any supporting materials the Prosecution provided. This Trial Chamber

15 is in the position now to find out that a case existing against the

16 accused.

17 So the newly amended indictment is confirmed by this Trial

18 Chamber. It is so decided.

19 Well, since the indictment is confirmed, we believe that we should

20 ask the accused, Mr. Bralo, to re-enter his plea to all those counts.

21 Mr. Bralo, did you have an opportunity to discuss the contents of

22 the amended indictment with your counsel?

23 THE ACCUSED: [Interpretation] Yes, Your Honour.

24 JUDGE LIU: Do you understand --

25 THE ACCUSED: [Interpretation] Yes.

Page 40

1 JUDGE LIU: Thank you. Do you understand the meaning of each

2 count?

3 THE ACCUSED: [Interpretation] Yes.

4 JUDGE LIU: I have to remind you that you have the right to have

5 the newly amended indictment read out, or you could waive this right.

6 Which way do you prefer?

7 THE ACCUSED: [Interpretation] I waive the right.

8 JUDGE LIU: Thank you very much. Therefore, my suggestion is that

9 I read out each count in the newly amended indictment. You may plead

10 guilty or not guilty, as the case may be. Are you ready to plead at this

11 stage?

12 THE ACCUSED: [Interpretation] Yes.

13 JUDGE LIU: Thank you. Let's begin.

14 How do you plead to count 1: Persecution as a crime against

15 humanity, punishable under Article 5(h) and 7(1) of the Statute of the

16 Tribunal, guilty or not guilty?

17 THE ACCUSED: [Interpretation] I'm guilty and I honestly regret it.

18 JUDGE LIU: Count 2: Murder as a violation of the laws or customs

19 of war, punishable under Article 3 and 7(1) of the Statute of the

20 Tribunal. How do you plead, guilty or not guilty?

21 THE ACCUSED: [Interpretation] I'm guilty, and I very much regret

22 it.

23 JUDGE LIU: Very well. Count 3: Torture or inhumane treatment as

24 a grave breach of the Geneva Conventions as punishable under Article 2(b)

25 and 7(1) of the Statute of the Tribunal. How do you plead, guilty or not

Page 41

1 guilty?

2 THE ACCUSED: [Interpretation] Guilty, and I truly regret it.

3 JUDGE LIU: Very well. Count 4: Torture as a violation of the

4 laws or customs of war, punishable under Article 3 and 7(1) of the Statute

5 of the Tribunal. How do you plead, guilty or not guilty?

6 THE ACCUSED: [Interpretation] Guilty, and I truly regret it.

7 JUDGE LIU: Count 5: Outrages upon personal dignity, including

8 rape, as a violation of the laws or customs of war, punishable under

9 Article 3 and 7(1) of the Statute of the Tribunal. How do you plead,

10 guilty or not guilty?

11 THE ACCUSED: [Interpretation] Guilty and I truly regret it.

12 JUDGE LIU: Count 6: Unlawful confinement as a grave breach of

13 the Geneva Conventions, punishable under Article 2(g) and 7(1) of the

14 Statute of the Tribunal. How do you plead, guilty or not guilty?

15 THE ACCUSED: [Interpretation] Guilty, and I truly regret it.

16 JUDGE LIU: Count 7: Unlawful confinement of civilians as a grave

17 breach of the Geneva Conventions, punishable under Article 2(g) and 7(1)

18 of the Statute of the Tribunal. How do you plead, guilty or not guilty?

19 THE ACCUSED: [Interpretation] Guilty, and I truly regret it.

20 JUDGE LIU: Count 8: Inhumane treatment as a grave breach of the

21 Geneva Conventions, punishable under Article 2(b) and 7(1) of the Statute

22 of the Tribunal. How do you plead, guilty or not guilty?

23 THE ACCUSED: [Interpretation] Guilty, and I truly regret it.

24 JUDGE LIU: Very well. The Trial Chamber records pleas of guilty

25 of eight counts by the accused.

Page 42

1 Mr. Bralo, since you pleaded guilty to eight counts in the newly

2 amended indictment, the Trial Chamber would like to find out from you

3 whether you understand the details of the plea agreement you entered into

4 with the Prosecution. Do you understand my question, Mr. Bralo?

5 THE ACCUSED: [Interpretation] No.

6 JUDGE LIU: Well, we have received a plea agreement between you

7 and the Prosecution. I just want to know whether you have had an

8 opportunity to read the contents of this plea agreement. Did you sign

9 that plea agreement? And did you discuss it with your counsel about the

10 contents of this plea agreement?

11 THE ACCUSED: [Interpretation] Yes. I'm informed of everything.

12 JUDGE LIU: Thank you. I also would like to know whether you have

13 entered guilty plea voluntarily and out of your free will, whether you

14 were threatened or coerced in any way to make this plea.

15 THE ACCUSED: [Interpretation] Of my own free will.

16 JUDGE LIU: Thank you. Did your counsel have an opportunity to

17 advise you of the consequences of pleading guilty to eight counts in the

18 newly amended indictment?

19 THE ACCUSED: [Interpretation] Yes.

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

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

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

23 and the Prosecution, if there is any in the future. Do you understand

24 that?

25 THE ACCUSED: [Interpretation] I do.

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1 JUDGE LIU: Thank you very much.

2 [Trial Chamber confers]

3 JUDGE LIU: Well, at this stage -- you may sit down, please,

4 Mr. Bralo.

5 THE ACCUSED: [Interpretation] Thank you very much.

6 JUDGE LIU: At this stage, I believe that the Bench will withdraw

7 to deliberate whether we are going to accept the guilty plea as well as

8 the plea agreement.

9 We will break for 15 minutes, and we will resume at quarter

10 to 4.00.

11 --- Break taken at 3.30 p.m.

12 --- On resuming at 3.46 p.m.

13 JUDGE LIU: Well, I believe this Bench is in the position to make

14 the ruling.

15 The Trial Chamber has considered the particulars of the facts in

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

17 basis for finding that the accused is guilty on those counts and therefore

18 makes a finding of guilty and enters the conviction of eight counts

19 against the accused, Mr. Bralo.

20 The Trial Chamber will issue orders relating further proceedings

21 in due course.

22 At the same time, as for the Schedule A, there is a mistake, in

23 our view, concerning the date of the birth. I hope that the party could

24 be -- address it at this moment.

25 Yes.

Page 45

1 MR. HARMON: Yes, Your Honour. It appears to be a typo -- a

2 typographical error and the death certificate controls so we will -- if

3 Your Honours wish, we can make that change orally or we can submit a new

4 Schedule A with the correct date for that particular individual.

5 JUDGE LIU: Well, maybe we could just leave out the date. I think

6 the month will be quite enough, and the oral submission is sufficient.

7 There is no need to fly papers everywhere.

8 MR. HARMON: All right. Thank you.

9 JUDGE LIU: Well, the Trial Chamber will now move to the next

10 stage, about the possible date for hearing on the sentencing, and we would

11 like to find out from both parties how they intend to make their

12 submissions on the sentencing issue.

13 Mr. Harmon?

14 MR. HARMON: Your Honour, we will be making, at this point in

15 time, written submissions, and if there is an evidentiary hearing, we hope

16 but I can't say for certain to be having viva voce testimony as well.

17 JUDGE LIU: Thank you. How about the specific date?

18 MR. HARMON: Any date that's convenient for the Trial Chamber is

19 convenient for me. I can tell Your Honours with one exception, on the

20 25th of September, I will be occupied. We are to start the Krajisnik

21 case, as I recall, either on the 5th or the 12th of September, and in that

22 first two-week period of the recommencement of the Krajisnik trial, I

23 suspect I will be fully engaged.

24 JUDGE LIU: Yes. And how about the Defence?

25 MR. COOPER: Your Honour, as to the form of the submissions, we

Page 46

1 intend to file written submissions. There are inquiries that are

2 necessary in the course of the next four to six weeks but we anticipate

3 being in a position to file a written submission by -- certainly by the

4 second week in September, if that's convenient to the Court, and then to

5 be in a position to proceed with a sentence hearing, I would suggest, if

6 convenient with the Court, in the second or third week of October. That

7 would give us sufficient time to conduct the inquiries we need and to

8 present the submissions that we need to in a form which is appropriate.

9 JUDGE LIU: Thank you. At this stage, are you in a position to

10 inform us about whether you would like to call any witnesses concerning of

11 the mitigating aspect?

12 MR. COOPER: Forgive me, Your Honour, that's a matter that we need

13 to consider. I don't anticipate any great number or any great length of

14 evidence, and if that's of assistance, then I'm glad. But the question of

15 calling evidence is a matter that we need to review carefully.

16 JUDGE LIU: Thank you. I hope you could inform us in your final

17 briefs on this aspect. Maybe you have to file some 65 ter documents.

18 Well, so tentatively, could we set on the 16th of September as the

19 date for the parties to submit their written briefs? And if there is any

20 sentence hearings, we will set it on the 10th of October. Of course, this

21 is subject to the further notice in the future.

22 I see both parties are nodding. And are there any other matters

23 that the parties would like to raise at this stage?

24 Yes, Mr. Harmon?

25 MR. HARMON: Not on behalf of the Prosecution, Your Honour.

Page 47

1 JUDGE LIU: Thank you.

2 And Mr. Cooper?

3 MR. COOPER: Thank you. And nor for the Defence.

4 JUDGE LIU: Thank you.

5 Mr. Bralo, do you have anything to say at this stage?

6 THE ACCUSED: [Interpretation] No.

7 JUDGE LIU: How about your health?

8 THE ACCUSED: [Interpretation] Excellent.

9 JUDGE LIU: Thank you. You may sit down.

10 Well, I believe that's all for this hearing. So the hearing is

11 adjourned.

12 --- Whereupon the hearing adjourned at 3.53 p.m.