1. 1 Thursday, 18th March, 1999

    2 (Status Conference)

    3 (Open session)

    4 --- Upon commencing at 9.23 a.m.

    5 JUDGE JORDA: (Interpretation) Please be

    6 seated.

    7 Mr. Registrar, would you tell us the number

    8 of this case, and be sure that the accused is present

    9 here in the courtroom.

    10 THE REGISTRAR: This is IT-95-10-T.

    11 JUDGE JORDA: (Interpretation) Thank you.

    12 Have the accused brought in, please.

    13 (The accused entered court)

    14 JUDGE JORDA: (Interpretation) I would like to

    15 have the representatives of the two parties, please.

    16 Good morning, of course, to the interpreters. I assume

    17 that they can hear me. Good morning.

    18 First of all, good morning to Prosecution

    19 counsel. Perhaps you could give us the appearances,

    20 even though we know who you are.

    21 MR. NICE: Geoffrey Nice and Vladimir

    22 Tochilovsky for the Prosecution.

    23 JUDGE JORDA: (Interpretation) Counsel for the

    24 Defence, please?

    25 MR. LONDROVIC: (Interpretation) For the

  2. 1 accused, Your Honours, Veselin Londrovic and my learned

    2 colleague, Michael Greaves.

    3 JUDGE JORDA: (Interpretation) All right.

    4 Good morning to the accused as well who is now in the

    5 courtroom.

    6 We are meeting today in our public Status

    7 Conference to discuss the schedule for the Jelisic case

    8 in the light of certain events, including the fact that

    9 Judge Riad is not available, and also to set up a

    10 schedule.

    11 We can begin our discussion immediately. I

    12 have provided a draft order in which we thought that it

    13 might be good in order to deal with several of the

    14 events which have affected the composition of this

    15 Trial Chamber and which would allow us -- which is the

    16 very essence of standards in international justice,

    17 that is, to have as rapid and as equitable a trial as

    18 possible, at least as rapid as possible, if nothing

    19 else, that is, to work in such a way that we can speed

    20 the proceedings up. This is in the interests of the

    21 accused, and beyond the accused's interests, there is

    22 also the very interest of the transparency and the

    23 credibility of our international institution, and I am

    24 convinced that both the Prosecution and the Defence

    25 adhere to those principles.

  3. 1 Having said this, and before we make any

    2 decisions, we decided, as we ordinarily do, to discuss

    3 matters with you before we take any decisions and,

    4 moreover, we will take that decision in a more direct

    5 way.

    6 All right. Since we have noted that there

    7 has been an objection on the part of the Defence which

    8 it will explain and about which we will reflect after

    9 having heard the comments from the Prosecution.

    10 The schedule would be -- what will it look

    11 like? Mr. Fourmy, can you tell us what the schedule

    12 will look like? We spoke about it, but since this is a

    13 public discussion, the schedule will be reconstructed

    14 so that it will split our proceedings because, as we

    15 know, the accused pleaded guilty to all the charges

    16 except for genocide. The initial indictment included

    17 all the charges, and then there is the sentencing

    18 aspect which will become -- or joint, rather, that is,

    19 for the genocide and for the other charges. In a draft

    20 order, we gave the reasons why we might split the case

    21 into two parts.

    22 Let me give the floor to the Legal Officer of

    23 the Trial Chamber so that he can explain what we are

    24 talking about in respect of economy of our work.

    25 Mr. Fourmy, would you like to take the

  4. 1 floor?

    2 MR. FOURMY: (Interpretation) Thank you, Your

    3 Honour. In fact, in the scheduling order dated

    4 12 March, 1999, the Trial Chamber expressed the desire

    5 to hold a Status Conference so that we can discuss the

    6 appropriateness of taking a decision in respect of

    7 those charges to which Goran Jelisic pleaded guilty

    8 further to the agreement which was made between the

    9 Prosecution and the Defence and which deals with almost

    10 all of the charges originally brought against

    11 Mr. Jelisic, subject to several modifications and

    12 except for the important distinction of genocide to

    13 which the accused pleaded not guilty.

    14 During the further initial appearance of

    15 29 October, the question was quickly raised and

    16 discussed, that is, to know how the review of the case

    17 would be handled insofar as, theoretically, according

    18 to the Rules of Procedure and Evidence, when an accused

    19 pleads guilty, the Trial Chamber requests that the

    20 registry set a hearing date in order to rule on the

    21 penalty. Given the fact that there were two parts,

    22 there was one to which the accused pleaded guilty and

    23 the other part to which he pleaded not guilty, after

    24 having heard the parties, the Trial Chamber noted that

    25 it would not rule even in respect of the guilt of the

  5. 1 accused as regards the guilty plea and, therefore, even

    2 less so on any possible penalty that would be handed

    3 down and postponing that until the end of the

    4 proceedings in respect of the crime of genocide.

    5 The suggestion was agreed to by both parties,

    6 and under these conditions, the trial for genocide was

    7 supposed to begin in December, and since Judge Riad,

    8 for medical reasons, was not able to be present at the

    9 trial and because he is still away -- and we do hope

    10 that he will be able to resume his work with the Judges

    11 at this Tribunal around the beginning of May 1999 --

    12 under these conditions, the Trial Chamber wanted to

    13 hold this Status Conference in order to review once

    14 again the situation and to discuss with the parties in

    15 respect of the appropriateness of making separate

    16 decisions, that is, separate -- the plea, insofar as

    17 Goran Jelisic would have the opportunity to know what

    18 penalty, according to the Trial Chamber and in respect

    19 of proof brought by the parties, would be handed down.

    20 This has not yet been decided because there

    21 has been no decision from the Trial Chamber yet, that

    22 is, at the time that this order of 12 March was

    23 prepared, but the idea would be that we would take

    24 advantage as soon as possible after Judge Riad's

    25 return, that is, something would happen during the

  6. 1 month of May so that we might be able to have a

    2 decision possibly, should that be the direction that

    3 the decision is going to take in respect to the work,

    4 that is, a decision on the guilty pleas in June, which

    5 would then allow, once again, the accused Goran Jelisic

    6 to have a very clear idea of what the Trial Chamber's

    7 position is in respect of those crimes to which he

    8 pleaded guilty.

    9 Thank you, Your Honour.

    10 JUDGE JORDA: (Interpretation) And I thank

    11 you.

    12 Perhaps we could first hear what the

    13 Prosecutor has to say and then, of course, we would

    14 hear what the Defence wants to say because we know that

    15 the Defence objects to this idea.

    16 Mr. Nice?

    17 MR. NICE: The Prosecution has no objection

    18 to the Trial Chamber moving to sentencing in respect of

    19 the guilty pleas but recognises at the moment that

    20 there are Defence objections. Of course, we have yet

    21 to hear in any detail those objections.

    22 Whatever the decision may be about sentencing

    23 on the guilty pleas, the Prosecution would invite the

    24 Chamber, now or in due course, to complete the process

    25 that was started by the guilty pleas by making a

  7. 1 pronouncement of guilt in accordance with Rule 62, and

    2 I understand that that invitation or proposal by me may

    3 be non-controversial; it may be something to which the

    4 Defence will offer no objection.

    5 At the moment, I think that is all I can help

    6 with, save to say that the Prosecution's concern -- and

    7 I think this is a concern shared by everyone -- is that

    8 the maximum priority should be given to the speedy

    9 determination of the genocide issue that is important

    10 and is outstanding.

    11 I have raised informally and only very

    12 recently another proposal whereby the difficulties, the

    13 timetable difficulties, that the Chamber is facing,

    14 might be reduced or overcome, but perhaps now isn't the

    15 moment to mention that publicly. I will wait and see

    16 what else develops in the course of the morning.

    17 JUDGE JORDA: (Interpretation) All right. You

    18 can do it later in the morning. Perhaps we will hear

    19 what Judge -- but before we hear the Prosecution's new

    20 suggestion, we might first listen to what the Defence

    21 has to say, that is, the draft memorandum for setting

    22 up a calendar.

    23 Mr. Greaves, please proceed.

    24 MR. GREAVES: May it please Your Honour,

    25 there are a number of matters I want to raise

  8. 1 concerning the issue of sentencing that is now being

    2 proposed by Your Honour.

    3 The first objection that we have is that the

    4 Trial Chamber, as presently composed, being only of two

    5 Judges, does not have jurisdiction to set a date for

    6 sentencing. Can I refer Your Honour to the two Rules

    7 which deal with the issue of sentence?

    8 In the first instance, Rule 62(vi) says

    9 this: "The Trial Chamber shall, in the case of a plea

    10 of guilty act in accordance with Rule 62 bis."

    11 The phraseology of that Rule is effectively

    12 mandatory. It is not a discretionary rule, it requires

    13 Your Honour to act, in the case of a guilty plea, in

    14 the case of Rule 62 bis.

    15 Looking at Rule 62 bis, that sets out what

    16 should happen in respect of a guilty plea, and it's the

    17 final part of that order that says this: "The Trial

    18 Chamber may enter a finding of guilt and instruct the

    19 registrar to set a date for the sentencing hearing."

    20 I stress the words "Trial Chamber," because

    21 it is our position that that can only be a fully

    22 composed, three-Judge bench which can set a date for a

    23 sentencing hearing.

    24 We make the second observation that it is not

    25 a mandatory rule but a --

  9. 1 JUDGE JORDA: (Interpretation) On this point,

    2 let me stop you right now so we don't waste any time.

    3 It was never a question for the Trial Chamber to rule

    4 on the sentencing with only two Judges. There's no

    5 point, perhaps, in even wasting our time about that,

    6 because it is absolutely clear, and I think the purpose

    7 of today's discussion is not to know whether Judge

    8 Rodrigues and Judge Riad are going to rule on the fate

    9 of Mr. Jelisic, it's self-evident this could only be

    10 made once Judge Riad has returned, and that even the

    11 statement in respect of jurisdiction, the last sentence

    12 of 62 bis will be taken with two Judges.

    13 Therefore, let's try to speed things forward.

    14 So the first objection, I can tell you immediately,

    15 is that we agree with you, because that's the

    16 interpretation of the text which is perfectly clear and

    17 perfectly readable.

    18 The second objection, please move to it.

    19 MR. GREAVES: Thank you very much. That's

    20 most helpful, Your Honour.

    21 We have a number of objections on the merits

    22 of proceeding to sentence in respect of the matters to

    23 which he's pleaded guilty for the conclusion for trial

    24 in respect of genocide.

    25 At his trial for genocide we intend to call

  10. 1 witnesses. Some of those deal only with issues of

    2 fact, others deal only with issues relating to

    3 sentence. The majority, however, are witnesses we

    4 intend should give evidence both as to matters of fact

    5 and as to matters of mitigation of sentence. It is

    6 concerning that latter group that we are most anxious.

    7 There are two reasons for this.

    8 The first is this: If a hearing in respect

    9 of sentence is held, a witness who is relevant both as

    10 to sentence and as to issues of fact will, therefore,

    11 be forced to give evidence on two occasions, at a

    12 sentencing hearing and again during the trial.

    13 There is already considerable anxiety on the

    14 part of witnesses about having to attend the Tribunal.

    15 Your Honours are fully familiar with the concerns of

    16 all people in the former Yugoslavia about the potential

    17 repercussions of giving evidence before the Tribunal

    18 and it is a realistic and live problem.

    19 It is perhaps even more so in the area of

    20 Brcko, which the events of the genocide trial concern,

    21 because of the high tensions that continue to exist

    22 there, particularly in the light of recent decisions

    23 made in respect of the future status of that

    24 municipality. Some witnesses, who it is proposed to

    25 call, are members of one community and some are from

  11. 1 another. Many Serbian witnesses have to work in the

    2 Federation.

    3 There are very real concerns about giving

    4 evidence. We fear, and we believe this to be a

    5 realistic fear, that it will prove impossible to get

    6 witnesses to give evidence twice before this tribunal.

    7 If just one witness were to be deterred from giving

    8 evidence, both as to sentence and as to issues of fact,

    9 that would be a significant matter of prejudice to the

    10 accused.

    11 The second matter is this: Witnesses are

    12 likely to give evidence about matters which are factual

    13 matters, but which have a relevance both to sentence

    14 and as to fact. In other words, a witness may give

    15 evidence at a sentencing hearing about some set of

    16 facts which are relevant both to mitigation and as to

    17 issues of guilt or innocence.

    18 The affect of holding a sentencing hearing at

    19 which such evidence is given would enable the

    20 Prosecution to hear Defence evidence on fact before its

    21 own case has closed. That, we submit, is not in

    22 accordance with the Rules and would also have the

    23 effect of giving the Prosecution a significant and

    24 unfair advantage if it were able to hear the Defence

    25 case or part of the Defence case before its own case

  12. 1 were closed.

    2 We submit that either of those factors, taken

    3 on its own, strongly mitigates against the proposed

    4 course which is suggested. Taken together, we submit

    5 that they are very strong reasons not to proceed to the

    6 issue of sentencing.

    7 The next matter is this: The offences to

    8 which he's pleaded guilty already form, as we

    9 understand the Prosecution's case, a significant part

    10 of their case on genocide. Witnesses for the

    11 Prosecution are likely to give evidence about those

    12 matters, and it is possible that some of that evidence

    13 may yet assist the defendant on mitigation. If he's

    14 already been sentenced in respect of the murders to

    15 which he's pleaded guilty, he would not have the

    16 benefit of evidence given at the trial in mitigation of

    17 sentence. We submit that that is yet another potential

    18 unfairness.

    19 The next matter is this: The offences, as

    20 I've pointed out, to which he's pleaded guilty, form

    21 part of the basis upon which the Prosecution say he is

    22 also guilty of genocide.

    23 JUDGE JORDA: (Interpretation) Excuse me for a

    24 moment, please. I'm not sure I understood your last

    25 objection. You're saying that the accused could plead

  13. 1 guilty if there were mitigating circumstances, it would

    2 not be to his advantage. I haven't followed exactly

    3 what you said. I didn't really understand you. Could

    4 you go back again, please?

    5 MR. GREAVES: Let me explain it again. The

    6 Prosecution intends to call further witnesses, and as

    7 presently suggested, that would be after he has been

    8 sentenced in respect of the matters to which he's

    9 pleaded guilty. It is possible that such witnesses

    10 may, during the course of their evidence, give evidence

    11 which is or assists to mitigate the defendant's guilt

    12 in respect of those matters to which he's pleaded

    13 guilty. If he has already been sentenced by the time

    14 that evidence was given, he is effectively going to be

    15 deprived of the assistance of that evidence because it

    16 comes after the sentencing hearing. We submit that if

    17 he's deprived of the potential for that, it creates a

    18 potential unfairness to him.

    19 I hope I've explained better on this

    20 occasion.

    21 JUDGE JORDA: (Interpretation) Yes, yes. I'm

    22 sure I should have paid closer attention. Excuse me,

    23 Mr. Greaves. Please continue.

    24 MR. GREAVES: I was then going on to say

    25 this: As I have explained, the matters to which he's

  14. 1 pleaded guilty form part of the Prosecution's case on

    2 genocide. We would respectfully submit that it is

    3 illogical and artificial to try and separate those

    4 matters, the one from another. They essentially go

    5 together and try and sentence him piecemeal in respect

    6 of one aspect of what the Prosecution say is genocide,

    7 and that, of course, depends on him being convicted of

    8 genocide, is illogical and we would respectfully submit

    9 that it is a proper principle of sentencing that an

    10 accused should be sentenced only on one occasion in

    11 respect of all his crimes, particularly where there is

    12 such a close relationship between the matters to which

    13 he's pleaded guilty and upon the matter which he may

    14 yet be convicted.

    15 We are, of course, conscious of the

    16 importance of the expeditious trial provisions that

    17 exist in both the Statute and Rules; they are

    18 important. However, their principle purpose is this,

    19 if I may say so: They exist to ensure that if somebody

    20 is detained and has pleaded not guilty, that his trial

    21 takes place speedily, and if he's acquitted, that he is

    22 released speedily. There is some distinction to be

    23 drawn between that situation and the situation of this

    24 accused. He has pleaded guilty to matters which on any

    25 sensible and rational view will attract a substantial

  15. 1 sentence, and he is going to be remaining in custody

    2 well beyond the period in which any trial could be

    3 concluded. So the principle purpose for which the fair

    4 trial, expeditious trial provisions exist, have a

    5 rather less practical application to his situation.

    6 He's going to be staying here, the trial will take

    7 place, and will be completed well within the time of

    8 any sentence that he has to serve in respect to the

    9 guilty pleas.

    10 Our final concerns are these: The defendant

    11 is very much focused on the issue of his trial for

    12 genocide, and as counsel we have to spend a lot of time

    13 with him, assisting him to focus on those issues. We

    14 are extremely concerned that to raise now the issue of

    15 sentence will, in fact, particularly in the

    16 circumstances I've outlined, have a debilitating effect

    17 on the defendant's present condition. He will forgive

    18 me for saying this in public, he does suffer at times

    19 from a considerable degree of stress, and as it may be

    20 known, he is under constant surveillance within the

    21 prison concerning his condition. We are extremely

    22 anxious that the process of sentencing will distract

    23 him very considerably from the issue of his trial, and

    24 bring about a deterioration in his condition. That, we

    25 submit, is something which the Trial Chamber should, at

  16. 1 all costs, avoid. It would be most undesirable if that

    2 was brought about. It makes the task of all of us much

    3 harder if the defendant is in an unstable condition.

    4 For all those reasons, we respectfully submit

    5 that it is not appropriate, at the present time, to

    6 proceed to the issue of sentencing, that it would, in

    7 fact, be more appropriate if he's convicted of

    8 genocide, to deal with all matters in one single go

    9 than to deal with matters in a piecemeal and haphazard

    10 fashion.

    11 My leading counsel, Mr. Londrovic, also

    12 wishes to raise with Your Honours what the former

    13 Yugoslavian sentencing practice was in relation to

    14 sentencing people in a piecemeal fashion because, of

    15 course, Your Honour, I think, has to consider the issue

    16 of the practice and procedure of the former Yugoslavia

    17 when considering sentencing.

    18 I would now like to pass the floor to him, if

    19 I may with Your Honour's leave.

    20 JUDGE JORDA: (Interpretation) Mr. Londrovic?

    21 MR. LONDROVIC: (Interpretation) Your Honours,

    22 bearing in mind the provisions of the Statute of the

    23 International Court which states that the court will

    24 bear in mind the sentencing according to Yugoslav

    25 criminal law, and as far as Yugoslav criminal law is

  17. 1 concerned, it is regulated in the Law on Criminal

    2 Procedure which is a federal law, which after the

    3 disintegration of Yugoslavia was taken over by the

    4 Republika Srpska, that is to say, the Federation of

    5 Bosnia-Herzegovina, and bearing in mind the Dayton

    6 agreements and peace accords, it is in force throughout

    7 Bosnia and Herzegovina at present.

    8 It is regulated by Article 348.2, which

    9 states, "If the indictment encompasses a number of

    10 criminal acts, in just one sentence it will be stated

    11 whether and for what crime the indictment is pronounced

    12 guilty or is freed of the guilt." So in a situation

    13 where the indictment contains a number of criminal

    14 acts, it is up to the court to bring in just one

    15 sentence, and that one sentence, depending on the

    16 evidence provided, it can theoretically be -- it can

    17 find the accused guilty or not guilty or whatever, but

    18 there is just one sentencing. Under Yugoslav criminal

    19 procedure there is no possibility of bringing in two

    20 sentences on the basis of one indictment. Thank you.

    21 JUDGE JORDA: (Interpretation) Thank you,

    22 Mr. Londrovic. Before we give the floor back to the

    23 Prosecutor, I would like to say that the first

    24 objection we do not accept. We overrule that

    25 objection. The second objection could be overcome.

  18. 1 I'm making suggestions of course, I'm just reviewing

    2 your objections. The second objection, it's difficult

    3 for the witness to resolve those difficulties, once he

    4 comes here for his sentencing, we could keep him and

    5 hear what he has to say about genocide.

    6 The third objection, and we'll hear what --

    7 well, according to the third objection the Prosecution

    8 would have allegedly some advantage in hearing certain

    9 testimony before -- well, let me hear -- I'll wait for

    10 Mr. Nice to make some comments about this.

    11 The fourth objection regarding elements that

    12 have already been renounced, that is mitigating

    13 circumstances, this is an objection which I asked you

    14 to repeat, but ordinarily I think the Prosecution has

    15 the obligation already to provide you with all

    16 exculpatory materials. Therefore, I don't think this

    17 is really a valid objection. I recognise as much more

    18 valid the fifth objection, when you say there is a

    19 separation in your mind which appears artificial. The

    20 sixth objection, in my opinion, is not valid. Rather,

    21 to the contrary. I would say that if the accused is

    22 really interested in his sentence, the objection would

    23 be that the client is not really available to

    24 concentrate on genocide because he's going to be

    25 focused on the sentence. I think that that's an

  19. 1 argument which could be turned around and turned back

    2 against your objection, because in the end one could

    3 say the opposite, that is, one could say no, to the

    4 contrary, Mr. Jelisic might be focused on his sentence,

    5 but he could also, with all the time in the world

    6 before him and all the time that you have with him, he

    7 could then focus on his trial for genocide. Therefore,

    8 looking at the matter the other way.

    9 The seventh objection I also find

    10 significant, however, in fact, yes, is the

    11 psychological condition of the accused.

    12 Lastly, Mr. Fourmy has given me a

    13 counter-objection to what I said about hearing

    14 witnesses at the same time. Yes, those would be

    15 Defence witnesses, and we could not perhaps hear them

    16 immediately. I do acknowledge that that objection is

    17 valid.

    18 All right. I throw this out to you. There

    19 are seven objections that you have raised. I have

    20 counted seven here. Some, in my opinion, can be gotten

    21 around and others which do merit discussion.

    22 I would like to turn to Mr. Jelisic, because

    23 it is your trial, Mr. Jelisic, and independently, of

    24 course, of any confidence that you have in your

    25 attorneys, both of the Judges would like to hear what

  20. 1 you have to say.

    2 First of all, do you understand what is at

    3 stake here and what the concern of the Judges is, that

    4 is, a concern which is one of having expediency and to

    5 be sure that you know what is going to happen to you

    6 after having pleaded guilty to the charges, and there

    7 are other problems -- I can also point this out to

    8 Mr. Greaves -- there are other problems; for example,

    9 where will the sentence be served? What is he going to

    10 do? We are not making any arbitrary kinds of decisions

    11 here, but I would like to tell you, Mr. Greaves, that

    12 contrary to what you may have thought, the Trial

    13 Chamber was not struck all of a sudden by a kind of

    14 legal whim according to which it would have put aside

    15 its intelligence and its foresight or its legal

    16 understanding. You are dealing with professional

    17 Judges, let me remind you, and it is as professionals

    18 that we studied all the conditions under which this

    19 Jelisic trial could be held.

    20 Mr. Jelisic, what do you think? You. I am

    21 speaking about you personally.

    22 THE ACCUSED: (Interpretation) Well, my

    23 personal opinion is that I support the proposal made by

    24 my lawyers and that we continue the trial for genocide

    25 because there has been a great deal of problems in

  21. 1 bringing witnesses twice here for the reasons we all

    2 know. In view of the fact that I am under supervision

    3 and my state of health -- I don't want you to

    4 misunderstand me, but I don't think that there will be

    5 another sentence brought in -- I don't want to be in a

    6 position where there will be no sentence.

    7 JUDGE JORDA: (Interpretation) Tell us about

    8 your health. Speak to us a little bit about your

    9 detention conditions, about your health. First, speak

    10 to us about your mental condition, if you want to --

    11 how do you feel now? You don't have to go into all the

    12 details. If you prefer to be seated, please be seated.

    13 THE ACCUSED: (Interpretation) I did not hear

    14 the question, I'm sorry. I wasn't getting the

    15 interpretation.

    16 JUDGE JORDA: (Interpretation) I was asking

    17 you what your health is, how is your health, how do you

    18 feel, and I was saying that if you prefer to sit down

    19 in order to answer, you may sit down.

    20 Have you heard what I said now? Has it been

    21 interpreted? Do you hear me, Mr. Jelisic?

    22 THE ACCUSED: (Interpretation) Yes, I can

    23 hear.

    24 JUDGE JORDA: (Interpretation) If you prefer

    25 to be seated, please be seated.

  22. 1 THE ACCUSED: (Interpretation) There's no

    2 need. I will remain standing.

    3 JUDGE JORDA: (Interpretation) How do you

    4 feel? Are you tired? How is your detention going?

    5 Are you getting medical attention? Are people taking

    6 care of you properly? I hope they are. Would you

    7 explain it to us? Tell us about it.

    8 THE ACCUSED: (Interpretation) Well, all my

    9 problems are being very successfully treated by the

    10 warden of the detention unit, Mr. McFadden. I said

    11 that I did not take therapy yesterday until I learnt

    12 about this, that is to say, what is going to be the

    13 subject of discussion. Perhaps this is not the time or

    14 place for me to disclose what I have in my defence, but

    15 I think that, as my attorney has said, it will be a

    16 historical trial -- I think it will be a little bit

    17 more than historical when I present my defence and my

    18 evidence because I know that there is a very ugly

    19 picture of me here, an ugly image, but there is quite

    20 another picture that I am going to present, and so I am

    21 not going to say that here now.

    22 JUDGE JORDA: (Interpretation) All right.

    23 Thank you.

    24 Judge Rodrigues, you want to ask some

    25 questions?

  23. 1 Thank you. You may be seated, Mr. Jelisic.

    2 All right. Please be seated.

    3 THE ACCUSED: (Interpretation) Thank you.

    4 JUDGE JORDA: (Interpretation) I have

    5 understood that there were six or seven objections

    6 raised by the Defence that the accused -- and with all

    7 of these, there are some objections that are stronger

    8 than others, but I forgot to speak about what

    9 Mr. Londrovic said. Yes, of course, the practice of

    10 the former Yugoslavia is, of course, our reference, but

    11 we also have a Rule in our Rules which says that we

    12 ourselves have to give a sentence for each of the

    13 charges or each of the counts.

    14 Is that true, Mr. Fourmy?

    15 MR. FOURMY: (Interpretation) Your Honour,

    16 yes, that is the practice which has been held up to

    17 this point.

    18 JUDGE JORDA: (Interpretation) Well, this is a

    19 practice which could be challenged, of course, let me

    20 point that out to you, that it is not, in and of

    21 itself, absurd to think that we might have two

    22 sentences and then bring them together later on.

    23 Turning to the Prosecution, do you have any

    24 responses to what the Defence has said and perhaps some

    25 proposals, suggestions, which we hope will be

  24. 1 constructive ones?

    2 Mr. Nice, please proceed.

    3 MR. NICE: So far as the...

    4 [Technical/interpretation difficulty]

    5 JUDGE JORDA: (Interpretation) ...

    6 Interpretation. Just a moment, please. I'm not

    7 getting interpretation. I hear you speaking, but I

    8 would like to hear the interpretation.

    9 Is it working now? All right. Let's try.

    10 Let's go ahead.

    11 MR. NICE: I will repeat what I was saying --

    12 JUDGE JORDA: (Interpretation) I hear you.

    13 Yes, all right. Now, proceed please. Excuse me.

    14 MR. NICE: I have nothing to say about the

    15 defendant's state of health save respectfully to

    16 suggest you may wish to be sure you understand from his

    17 own counsel what lay behind his observation about there

    18 being no second sentence if that part of his own

    19 address was other than clear to you. I believe that

    20 his counsel will be able to assist you with an

    21 interpretation of that.

    22 As to the arguments that have been raised by

    23 my two learned friends, there is, of course, some logic

    24 in some or all of those arguments, but the potential

    25 for logic has to be seen beside the weight to be

  25. 1 attached to each of those arguments. So, for example,

    2 the difficulty of getting witnesses here twice is

    3 something that will be recognised, I think, by this

    4 Tribunal, for it is something that is referred to not

    5 only by Defence, when they have witnesses to call, but

    6 also by the Prosecution. What I can't help you with,

    7 because it is a matter known only to my learned

    8 friends, is the number of witnesses that that would

    9 involve and what material, if any, they have to show

    10 that there would be a real risk with those particular

    11 witnesses that the witnesses would not attend.

    12 I can see a way to weighing or evaluating, in

    13 quantum terms, that objection. The method might be for

    14 the Defence to have, on this occasion, some ex parte

    15 access to the Court to identify the witnesses and the

    16 particular problems, but that will be a matter both for

    17 them to decide to seek such access and then for the

    18 Court to grant it.

    19 So far as the objection that the Prosecution

    20 would hear the Defence case in advance, it may be that

    21 that is only a slight risk, if risk at all, for

    22 evidence on mitigation can be narrowly confined --

    23 JUDGE JORDA: (Interpretation) Are you talking

    24 about an ex parte hearing, but for what purpose? I

    25 didn't understand that, Mr. Nice.

  26. 1 MR. NICE: Because the Defence say that they

    2 would have a difficulty calling witnesses twice and

    3 because I can't deal with that in quantum terms, in

    4 quantity terms -- I don't know how many witnesses and I

    5 don't know to what extent any particular witness is

    6 fragile or has already expressed anxiety about

    7 attending twice -- I can't help further. But it may

    8 be, if the Defence sought an ex parte hearing and if

    9 the Chamber granted one, that they would be able more

    10 openly to explain the particular risks or problems with

    11 calling witnesses that they perceive. I hope that

    12 makes that clear.

    13 Dealing then with the next point, the problem

    14 of the Defence case being heard in advance, evidence in

    15 mitigation should, it may be thought, be capable of

    16 being closely confined, and there would be, of course,

    17 be no right to cross-examine beyond the substance of

    18 the evidence, bearing in mind the purpose for which it

    19 was being led, and it may be that that objection is one

    20 that in real terms has little weight.

    21 The potential for Prosecution witnesses to

    22 assist in mitigation, I can understand why it is

    23 raised, and it seems to me, yes, there is a theoretical

    24 possibility that that is a good ground of objection.

    25 The witness whose witness statement paints a black

  27. 1 picture but who, in cross-examination, or indeed simply

    2 of his own volition, says one or more things favourable

    3 to the accused, would be giving evidence that might

    4 affect the picture at the time of sentencing. At

    5 present, we are not aware of any possibility, let alone

    6 probability, that the witnesses we propose to call

    7 would be likely to give any such evidence, so again,

    8 although it is logically a possible ground for

    9 objection, the Chamber might decide that it is an

    10 objection that, in fact, has little weight.

    11 The illogicality of separating sentence for

    12 some crimes from the sentence for other crimes part of

    13 the same course of conduct is something that Your

    14 Honour has recognised and that I think systems around

    15 the world tend to recognise, and it may be that in the

    16 absence of good and compelling reason, it is prudent to

    17 sentence a defendant on a single occasion for all the

    18 matters to which he falls for sentence, whether by plea

    19 of guilty or otherwise.

    20 So far as Mr. Londrovic's point is

    21 concerned -- and he will correct me on this, of course,

    22 if I am wrong -- I understand that there is at least

    23 this distinction between the system in the former

    24 Yugoslavia and the system for this Tribunal, namely,

    25 that in the former Yugoslavia, there was never the

  28. 1 potential for moving directly from a plea of guilty to

    2 sentence because even where a defendant pleaded

    3 guilty -- and I hope I'm right in this -- there was

    4 nevertheless a full trial. So that a Trial Chamber

    5 would always be seized of the whole case or dossier,

    6 and one can understand why there would be simply

    7 formally no potential for separate sentencing in

    8 respect of separate counts. I think I'm right in that,

    9 and I am very grateful for Mr. Tochilovsky for his

    10 wider knowledge of the practice in the former

    11 Yugoslavia than I myself have.

    12 The consent of a defendant to deferment of

    13 sentencing in his case may be thought to cure problems

    14 which understandably concern the Trial Chamber because

    15 one well recognises that the pressure of work on the

    16 Chamber is bringing difficulties not, of course, of its

    17 creation, and that it is anxious, wherever possible, to

    18 move to conclusions; but, as I say, consent of the

    19 defendant himself may go some way to allaying those

    20 concerns and curing the problem but if and only if, in

    21 our respectful submission at this stage, first the

    22 Chamber moves toward that --

    23 THE INTERPRETER: Counsel speak into the

    24 microphone, please.

    25 MR. NICE: -- sorry, moves towards that

  29. 1 decision allowed for in 62 bis, namely, the finding of

    2 guilt, and there has been no objection raised by my

    3 learned friends to that step being taken in an

    4 appropriate way and providing, of course, that the

    5 Chamber has in mind, as it knows it does, the proper

    6 interest in a speedy trial.

    7 I don't know if I can assist further.

    8 (Trial Chamber deliberates)

    9 JUDGE JORDA: (Interpretation) Mr. Greaves,

    10 excuse me. Please go ahead.

    11 MR. GREAVES: I just wanted to deal with two

    12 matters that were raised by my friend. As to the

    13 formal entering of verdicts of guilty, neither my

    14 learned friend Mr. Londrovic nor I, I anticipate, would

    15 have any objection to the formality of that being done,

    16 unless the defendant has any particular objection, and

    17 I'm sorry not to have dealt with that earlier. I

    18 apologise.

    19 My learned friend also raised a query as to

    20 what was precisely meant by the defendant's

    21 observation. I think what was meant and I stand to be

    22 corrected by my client, that when he said there is no

    23 need for a second sentence, that he was anticipating

    24 that if he was acquitted for the offence of genocide

    25 then there would be no second sentencing hearing in the

  30. 1 circumstances that are now being proposed. But as I

    2 understood what he was saying, was he thankfully

    3 supporting his counsel in their observations about this

    4 matter.

    5 JUDGE JORDA: (Interpretation) Well, maybe we

    6 should ask him what he meant, because to tell you the

    7 truth, I don't understand. I'm completely lost.

    8 All right. The accused is here and both of

    9 us Judges would like to ask the accused, pursuant to

    10 our rules, ask the accused what he meant when he said

    11 there wouldn't be a second sentence.

    12 If you would please explain what you meant

    13 Mr. Jelisic, if you want to. If you don't want to, it

    14 doesn't matter, then don't, but I don't want to make an

    15 exegesis of your thoughts, since you are the person

    16 most concerned by all of this.

    17 All right. Mr. Jelisic, what did you mean

    18 when you said there would not be a second sentence?

    19 THE ACCUSED: (Interpretation) Perhaps my

    20 counsel did not understand me and they may have

    21 expected a different answer, but I had had something

    22 else in mind.

    23 MR. LONDROVIC: (Interpretation) Excuse me,

    24 Your Honours. I understood my client perfectly well,

    25 and I think if you want to hear the answer to this

  31. 1 question we should lower the blinds.

    2 JUDGE JORDA: (Interpretation) You're

    3 correct. Absolutely. We'll go into a closed session.

    4 Just a moment, please, Mr. Jelisic. Let me

    5 remind Mr. Jelisic that if he does not want to respond,

    6 he does not have to. I simply do not -- well, since

    7 we're talking about Mr. Jelisic's mind, this is a

    8 Status Conference, and he was asked about his health

    9 and his detention conditions. I don't accept his

    10 having said something that I don't understand.

    11 Therefore, I would like things to be very, very clear

    12 and it will be private session. We don't have to go

    13 into a closed session, private session will be

    14 sufficient, as long as it takes for Mr. Jelisic to

    15 explain what he means.

    16 (Private session)

    17 (redacted)

    18 (redacted)

    19 (redacted)

    20 (redacted)

    21 (redacted)

    22 (redacted)

    23 (redacted)

    24 (redacted)

    25 (redacted)

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  34. 1 (redacted)

    2 (redacted)

    3 (redacted)

    4 (redacted)

    5 (redacted)

    6 (redacted)

    7 (redacted)

    8 (redacted)

    9 (redacted)

    10 (Open session)

    11 JUDGE JORDA: (Interpretation) I'll give the

    12 floor back to Mr. Greaves if he has anything further to

    13 say, because we were now at the second point. After

    14 that, I think, we will be able to close the session.

    15 Mr. Greaves, we can move back into a public

    16 session now.

    17 MR. GREAVES: I have nothing to add. Thank

    18 you very much.

    19 JUDGE JORDA: (Interpretation) Judge

    20 Rodrigues? No, he has nothing to add.

    21 Mr. Londrovic, do you want to add something?

    22 MR. LONDROVIC: (Interpretation) Your Honours,

    23 I have nothing further to add. I'm convinced that the

    24 Chamber will adopt the best decision, that it will

    25 consider the need of a fair trial. Thank you.

  35. 1 JUDGE JORDA: (Interpretation) Let me turn to

    2 Mr. Fourmy to ask whether there are any other

    3 suggestions or any other comments. Perhaps the

    4 Prosecutor has something to state, Mr. President.

    5 Mr. Nice, would you care to say something?

    6 MR. NICE: I have one proposal.

    7 JUDGE JORDA: (Interpretation) Yes, you've got

    8 proposals. I thought that you had given up the idea of

    9 making constructive proposals, but you said that you

    10 would make proposals. Yes, it's true, you did say

    11 that. All right. I'm opening my notebook again and I

    12 am all ears.

    13 MR. NICE: My proposal relates to the

    14 timetable difficulties faced by the Chamber, of which

    15 we are all aware, and the proposal for consideration is

    16 that evidence might, in this case, be taken by way of

    17 deposition. The timetable problems constituting the

    18 special circumstances will be required to justify the

    19 taking of depositions.

    20 I go a little further with my proposal,

    21 hoping not to be thought to be presumptuous in doing

    22 so, and observe that Judge Riad, on his return to

    23 health and to the Tribunal, just may, and of course we

    24 can't know the answer to this, may have time

    25 available.

  36. 1 There may, of course, be a courtroom in this

    2 building available, and the taking of evidence by

    3 deposition not only would speed the process to trial

    4 but would also meet some of the witness difficulties

    5 that both sides may face, in particular, those

    6 difficulties of timetabling witnesses, for were there

    7 to be a programme of deposition taking in a courtroom

    8 that was otherwise free, then witnesses could be

    9 brought according to a fairly gentle programme, and

    10 there should be neither pressure of time on the

    11 witness, the advocates, nor were it to be Judge Riad,

    12 the Judge taking the deposition.

    13 Depositions, can, of course, with the

    14 machinery available in these courts, be taken in such a

    15 way that at closing argument, counsel on one side or

    16 another could replay, as if live, relevant passages of

    17 the evidence.

    18 That's the proposal that I had in mind. I

    19 only had an opportunity to mention it very briefly to

    20 Mr. Greaves this morning, because I know that he's been

    21 out of the country right up until last night, and,

    22 indeed, I didn't take the opportunity of mentioning it

    23 to Mr. Fourmy until yesterday.

    24 That is a specific proposal to deal with

    25 timetable problems, and if it finds favour or if it may

  37. 1 find favour, we'll draft the appropriate motion which

    2 should really support such procedure.

    3 There's a second discreet procedural matter

    4 that I'd like to mention now, although it won't take

    5 very long, and it concerns the extended interviews of

    6 the defendant with an investigator.

    7 Those interviews exist, at the moment, in

    8 their original language and in translation into

    9 English, and I do not believe at present they exist in

    10 the French form.

    11 In cases like this, where what is at stake is

    12 the state of mine of an accused, it is typically the

    13 case that each side will regard substantial passages of

    14 those interviews as of value to the finder of fact. In

    15 some jurisdictions, either the whole interview will be

    16 played as a tape recording, or extensive passages will

    17 be read out to the court, sometimes with an advocate

    18 taking one role, perhaps the role of the investigator,

    19 and an investigator, as witness, taking the role of the

    20 accused, or some such system.

    21 That plainly cannot happen in this Tribunal

    22 where we have to work in two languages, and where, as

    23 we recognise, it is the misfortune of the presiding

    24 Judge not to have the advantages that the English

    25 practitioners have of LiveNote. Therefore, it presents

  38. 1 a practical problem for resolution, and a resolution

    2 that we know should be one that is economic in the use

    3 of time.

    4 I've discussed this with Mr. Fourmy, and one

    5 proposal that he's raised which seems sensible,

    6 although again I've only been able to mention it

    7 briefly to Mr. Greaves, is that if the parties, that

    8 is, Prosecution and Defence, were to identify within

    9 the overall transcript the passages each would want

    10 read, then we can ensure in good time that those

    11 passages are translated into the appropriate languages,

    12 and if the court accepted this as a practice, we could

    13 then invite the court to read those documents in an

    14 appropriate language, making such limited points in

    15 live evidence as would be appropriate.

    16 I should say that the interviews occupy a

    17 full lever-arch binder, as at present constituted. One

    18 would hope, of course, that large passages would not

    19 have to be read, if they're just background and matters

    20 that don't touch on the defendant's state of mind.

    21 Those are the only two specific proposals

    22 that I wanted to mention now. Thank you.

    23 JUDGE JORDA: (Interpretation) Thank you.

    24 Mr. Greaves? Mr. Londrovic?

    25 MR. GREAVES: Your Honour, as far as those

  39. 1 two suggestions are concerned, my friend is right. We

    2 and I had only very briefly discussed them before Your

    3 Honours came in. I have not had an opportunity to

    4 discuss them with my leading counsel and, in turn, we

    5 have not had an opportunity to discuss them with the

    6 accused, and I would really like not to be asked to

    7 comment any further at this present stage, please. You

    8 can understand that I'm not in a position to give a

    9 definitive answer on our behalf.

    10 JUDGE JORDA: (Interpretation) Yes, I

    11 understand. The difficulty in respect of depositions

    12 is the following: You're referring to Rule 71, I

    13 suppose; is that correct?

    14 MR. NICE: Yes.

    15 JUDGE JORDA: (Interpretation) The difficulty

    16 is that Rule 71 that we have already used in this Trial

    17 Chamber when one of the Judges was unable to be with

    18 us, and that was, of course, with the agreement of the

    19 accused, it was done with the agreement of the accused,

    20 in this Trial Chamber we have a very exponential

    21 interpretation of this Rule which was accepted by the

    22 parties, but I think the difficulty, and I think

    23 subject to anything that Mr. Fourmy or my colleague

    24 want to say, is I do not see under what exceptional

    25 circumstances could justify Judge Riad's sitting as

  40. 1 kind of a presiding officer, whereas the two other

    2 Trial Chamber Judges would be sitting in another case.

    3 I'm not sure that that would be very transparent.

    4 What do you think, Mr. Fourmy?

    5 MR. FOURMY: (Interpretation) I think that

    6 Mr. Nice, in advance, had both the possibility that the

    7 Trial Chamber might consider that the scheduling

    8 problems in and of themselves would constitute

    9 exceptional circumstances covered by Rule 71. Having

    10 said that, in terms of the transparency of two Trial

    11 Chambers and one Trial Chamber are sitting in a public

    12 session, whereas the third would also be somewhere

    13 else, that would be difficult.

    14 JUDGE JORDA: (Interpretation) What do you

    15 think, Judge Rodrigues? We're speaking very freely

    16 here.

    17 When we had a Judge who was ill, we did that,

    18 and we wanted to make it very clear that it was a

    19 specific proceeding and we wore civilian clothes. In

    20 other Trial Chambers we did wear robes, but we used

    21 Rule 71.

    22 Therefore, I am in favour of a very extended

    23 conception of this Rule but I do wonder whether a

    24 Judge -- well, if a Judge can hear depositions, that

    25 means that he's not ill. You always come up against

  41. 1 that problem. If one of the Judges is designated as

    2 the presiding officer, that means he is capable of

    3 being a Judge full time. If he's full time, then he

    4 has to be here with us at the bench. That's what I

    5 meant.

    6 All right. I think that we can't say

    7 anything further than what we've said already.

    8 Thank you, Mr. Nice, for having tried to make

    9 a contribution to resolve the scheduling problems that

    10 the Trial Chamber is facing.

    11 Comment? All right. We are going to adjourn

    12 the hearing, unless Judge Rodrigues would like to say

    13 something. No objections?

    14 Thank you very much for coming. We close

    15 this Status Conference now and, of course, the Judges,

    16 in respect of what has been said, the useful

    17 contributions that you've made, thanks to that

    18 contributions, the Judges will be able to give you a

    19 response.

    20 All right. The court stands adjourned.

    21 --- Whereupon the Status Conference

    22 adjourned at 10.30 a.m. sine die