Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 16 December 2011

 2                           [Initial Appearance]

 3                           [Open session]

 4                           --- Upon commencing at 2.16 p.m.

 5             JUDGE KWON:  Good afternoon, everyone.  Would the registrar

 6     please call the case.

 7             THE REGISTRAR:  Good afternoon, Your Honour.  This is the

 8     contempt case of Milan Tupajic, case number IT-95-5/18-R77.2.

 9             JUDGE KWON:  I am Presiding Judge O-Gon Kwon in

10     Trial Chamber III.  I have been designated to hear this Initial

11     Appearance of Mr. Tupajic.  Before we proceed further, I would like to

12     apologies to everyone for the delay which was caused by the technical

13     difficulties which were not fixed yet, so we will do without the LiveNote

14     unless parties are opposed to it.

15             First I would like the counsel appearing for Mr. Tupajic to now

16     introduce himself.

17             MR. O'SULLIVAN:  Good afternoon, Your Honour.  Eugene O'Sullivan

18     for Mr. Tupajic.

19             JUDGE KWON:  Good afternoon, Mr. O'Sullivan.

20             Although the Chamber decided to prosecute this matter itself

21     pursuant to Rule 77(D)(2), the Prosecution has also been given the option

22     to attend this hearing if it so wishes.  I see that Prosecution is also

23     present here today.  Could I have the appearances.

24             MR. TIEGER:  Yes, Mr. President.  Alan Tieger appearing.

25             JUDGE KWON:  Mr. Tupajic, I would now like to ask you whether you

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 1     are able to follow the proceedings in a language that you understand.

 2     Are you receiving the interpretation into your own language?

 3             THE ACCUSED: [Interpretation] Yes, Mr. Kwon, I am receiving

 4     interpretation.

 5             JUDGE KWON:  Thank you.  I first have to go through certain

 6     formalities.  I'd first like to ask you to state your full name.

 7             THE ACCUSED: [Interpretation] I am Milan Tupajic.

 8             JUDGE KWON:  Thank you, Mr. Tupajic.  And your date and place of

 9     your birth for the record.

10             THE ACCUSED: [Interpretation] I was born on the 2nd of June,

11     1954, at Knezina municipality of Sokolac.

12             JUDGE KWON:  Thank you.  Thank you, Mr. Tupajic.  You were

13     transferred to the United Nations Detention Unit in The Hague yesterday,

14     i.e., 15th of December, 2011, and can I take it that your family is aware

15     of that transfer?

16             THE ACCUSED: [Interpretation] Upon my arrival to the

17     Detention Unit, I briefly contacted my wife so that she is aware of my

18     whereabouts.

19             JUDGE KWON:  Thank you.  I would like to check as well that you

20     have received a copy of the Order in Lieu of indictment dated 30th of

21     November, 2011, in your own language and that you have understood its

22     content.

23             THE ACCUSED: [Interpretation] Yes, I received it, and I fully

24     understood it.

25             JUDGE KWON:  Now you are represented here today by

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 1     Mr. Eugene O'Sullivan.  Are you satisfied with your representation here

 2     today?

 3             THE ACCUSED: [Interpretation] Well, I had the chance to speak to

 4     Mr. O'Sullivan twice and for the time being I'm satisfied.  How things

 5     will develop, I don't know, but I expect the situation to remain

 6     unchanged.

 7             JUDGE KWON:  Thank you.  Mr. Tupajic, you are being charged with

 8     one count of contempt for refusing to comply with the Chamber's first

 9     subpoena ad testificandum issued on 23rd September 2011, and the second

10     subpoena ad testificandum issued on 3rd of November, 2011.

11             After you failed to comply with the first subpoena, the Chamber,

12     having found that your reasons put forth in your response did not

13     constitute a just excuse justifying your noncompliance with the subpoena

14     issued a second subpoena, but you continued to refuse to comply.

15             So can I now ask that it is still your position today,

16     Mr. Tupajic?  If necessary, we may go into private session.

17             THE ACCUSED: [Interpretation] I don't think my reply requires

18     private session.  I maintain that the reasons that I stated before the

19     subpoena was served, and I stated them to the OTP in writing, and I also

20     gave them to Mr. Tieger orally, and as well as other reasons that I did

21     not put in writing are justified and constitute a valid foundation for my

22     decision.

23             JUDGE KWON:  So we continue with this initial, Mr. O'Sullivan.

24             Now, Mr. O'Sullivan, the accused is entitled to have the

25     indictment read out in court.  Does Mr. Tupajic wish the Order in Lieu of

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 1     Indictment to be read out now or does he waive that right?

 2             MR. O'SULLIVAN:  Your Honour, I will defer to Mr. Tupajic on

 3     this -- on this point.

 4             JUDGE KWON:  Mr. Tupajic, you are entitled to have the indictment

 5     read out in this courtroom now.  Would you like that Order in Lieu of

 6     Indictment to be read out now?

 7             THE ACCUSED: [Interpretation] I understood the order fully, and

 8     as for me personally, there is no need for it to be read out.  If it is,

 9     however, required for the public, I do not oppose that.

10             JUDGE KWON:  Thank you.  I don't think it's necessary.

11             Now pursuant to Rule 62(A)(iii), Mr. Tupajic, you can enter a

12     plea to the charges of contempt set out in the Order in Lieu of

13     Indictment today if you so choose, or you can decide to postpone your

14     plea for a period of up to ten days in accordance with Rule 77(E).

15             Did you discuss this with your counsel, and how do you wish to

16     proceed?

17             THE ACCUSED: [Interpretation] I've spoken to counsel about this.

18     We spoke today.  But I took my decision earlier, in 2009, and informed

19     the OTP in writing.  I believe that a copy of this letter of mine to the

20     OTP should be available.  Since June 2009, I have not changed my decision

21     and couldn't change it either, and I stand by it still.

22             JUDGE KWON:  I don't think you understood my question.  I was

23     asking whether you would like to plead today or postpone it up to ten

24     days.  Are you prepared to plead to the charges?

25             THE ACCUSED: [Interpretation] I wish to state my plea today.

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 1             JUDGE KWON:  Mr. Tupajic, if you could rise, please.

 2                           [The accused stands up]

 3             JUDGE KWON:  Mr. Tupajic, you are charged with contempt of court

 4     under Rule 77(A)(iii) of the Tribunal's Rules of Procedure and Evidence.

 5     How do you plead?

 6             THE ACCUSED:  [No interpretation]

 7             JUDGE KWON:  I'm not sure I heard the interpretation.  Could you

 8     repeat your answer.

 9             THE ACCUSED: [Interpretation] I plead innocent.

10             JUDGE KWON:  Thank you.  Please be seated.

11             I would ask the Registrar to record your plea of not guilty.

12             Mr. Tupajic, in light of the nature of the charge against you and

13     all the circumstances, it is in your interest to have this matter

14     resolved as quickly as possible.  Given your plea, this means setting a

15     date for the trial which should be a short hearing of no more than a day

16     or two following which the Chamber will issue its judgement.  At that

17     trial you will be entitled to call witnesses, and you may choose to

18     testify yourself.  This is all for you to discuss with your counsel.

19             Therefore, I would like to ask you through your counsel how long

20     you consider you will need to prepare for the trial.

21             Mr. O'Sullivan.

22             MR. O'SULLIVAN:  Your Honour, may I request that we move into

23     private session very briefly.

24             JUDGE KWON:  Very well.  Could the Chamber move into private

25     session.

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 1                           [Private session]

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11  Page 7 redacted.  Private session.















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 9                           [Open session]

10             THE REGISTRAR:  Your Honour, we're back in open session.  Thank

11     you.

12             JUDGE KWON:  As this is a contempt case and I do not believe that

13     there are any issues of disclosure or that these proceedings should be

14     prolonged unnecessarily, should you wish to file any preliminary motions,

15     you should do so within ten days from today in accordance with

16     Rule 77(E).

17             Do you understand that, Mr. Tupajic?

18             THE ACCUSED: [Interpretation] Yes.  However, I need assistance

19     by -- by an attorney, because I'm not a lawyer, although I did learn much

20     through my participation in proceedings here.  But I cannot afford to

21     hire a lawyer of my own choice whom I would be able to pay, so I ask the

22     Tribunal to appoint a Defence counsel for me so that we can embark on

23     that new process together.

24             JUDGE KWON:  I believe that Registry would pay utmost care in

25     appointing a Defence counsel for you.

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 1             Mr. Tupajic or Mr. O'Sullivan, are there any other matters to be

 2     raised today?

 3             MR. O'SULLIVAN:  The -- the only other matter, Your Honour, is --

 4     it seemed to be suggested that a trial date will be fixed, and I -- it

 5     appears that this will not take place before the end of the winter

 6     recess, and therefore I would be requesting that Mr. Tupajic be released

 7     and allowed to return home pending the -- the trial in this matter.

 8             JUDGE KWON:  I would prefer to have it in writing.  Could you do

 9     that?

10             MR. O'SULLIVAN:  I'm sorry.  I didn't hear you.

11             JUDGE KWON:  I wonder if you can put it in writing in a motion

12     for provisional release.

13             MR. O'SULLIVAN:  Yes.  Yes.  Immediately.

14             JUDGE KWON:  With all the formalities.

15             MR. O'SULLIVAN:  Yes.

16             JUDGE KWON:  Thank you.

17             Mr. Tupajic, do you have anything to raise with the Chamber

18     before we adjourn the proceedings?

19             THE ACCUSED: [Interpretation] Well, I don't really have any

20     matters to raise.  I'm sorry that I didn't have the opportunity to

21     acquaint this Trial Chamber with all relevant facts.  I don't want you to

22     get the impression that I'm doing all I can to -- to not to appear here

23     before this court.  That's all that I have, actually.

24             JUDGE KWON:  Then -- Mr. Tieger, do you have any observation?

25             MR. TIEGER:  No, Mr. President.  As the Court noted, I was here

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 1     on the off chance that some contextual or background information might be

 2     helpful, but I don't have anything to add at this time.

 3             JUDGE KWON:  Very well.  That said, considering the court

 4     schedule of the Tribunal, the Chamber will issue a Scheduling Order for

 5     the trial in due course and will consider the motion if filed by

 6     Mr. O'Sullivan.

 7             The hearing is now adjourned.

 8                           --- Whereupon the hearing adjourned at 3.39 p.m.