Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Monday, 9th March 1998

2 (4.00pm)

3 JUDGE CASSESE: May I ask the Registrar to

4 call out the number and name of this case?

5 THE REGISTRAR: Case number IT-96-23-I,

6 the Prosecutor versus Dragoljub Kunarac.

7 MS UERTZ-RETZLAFF: Mrs Patricia Sellers

8 here -- and my name is Hildegard Uertz-Retzlaff.

9 JUDGE CASSESE: Counsel for the accused,

10 please introduce yourself and spell your name out

11 clearly. Would you also indicate of which bar you are

12 a member?

13 MR PRODANOVIC: Your Honour, my name is

14 Slavisa - S-L-A-V-I-S-A - Prodanovic, from Srbinje,

15 formerly Foca, member of the Bar of the Republika

16 Srpska.

17 JUDGE CASSESE: Have your qualifications,

18 credentials and other necessary documents been provided

19 to the Registry of the International Criminal Tribunal

20 for the former Yugoslavia?

21 MR PRODANOVIC: Yes, your Honour, they have.

22 JUDGE CASSESE: I will ask the accused

23 whether he can hear me in a language which he can

24 understand. Can you hear me?


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1 JUDGE CASSESE: We can now commence with

2 this hearing. This is the initial appearance of the

3 accused before the International Criminal Tribunal for the

4 former Yugoslavia. This hearing is being held in

5 accordance with the Tribunal's Statute and Rules of

6 Procedure and Evidence. Rule 62 of the Rules of

7 Procedure and Evidence of our Tribunal requires that

8 the accused, after having these indictments confirmed

9 by a judge, and after having been arrested and

10 surrendered to the custody of the International

11 Tribunal, or after having surrendered to the Tribunal,

12 must be formally charged under the procedure described

13 as the initial appearance.

14 Could the accused rise and state for the

15 Trial Chamber his name, date, and place of birth and

16 the name of the attorney whom he has chosen to

17 represent him?

18 MR KUNARAC: My name is Dragoljub Kunarac,

19 born on 15 May 1960, in Foca. My Defence attorney is

20 Slavisa Prodanovic from Foca, now called Srbinje.

21 JUDGE CASSESE: As you know, the procedure

22 today is governed by a set of rules laid down in our

23 Statute and in the Rules of Procedure and Evidence.

24 They may be summarised as follows: Article 20 of our

25 Statute requires us inter alia to satisfy ourselves

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1 that the rights of the accused are respected; confirm

2 that the accused understands the indictment; and call

3 upon the accused to enter a plea to the charges against

4 him in the indictment.

5 The rights of the accused are detailed in

6 Article 21 of the Statute of our International

7 Tribunal, and I am sure you are familiar with this

8 Article 21. As I have already indicated, Rule 62 of

9 our Rules of Procedure and Evidence governs the initial

10 appearance. This Trial Chamber must be satisfied that

11 the accused's rights to counsel have been respected.

12 The indictment must be read to the accused in a

13 language he speaks or understands, and the Trial

14 Chamber must be satisfied that the accused understands

15 the indictment.

16 We are then required to call upon the accused

17 to enter a plea of guilty or not guilty on each count.

18 If the accused fails to enter a plea, we are required

19 to enter a plea of not guilty on his behalf. In the

20 case of a "not guilty" plea, we will instruct the

21 Registrar to set a date for trial.

22 In the case of a "guilty" plea, we will

23 instruct the Registrar to set a date for the

24 pre-sentencing hearing, or any other appropriate dates.

25 I would like to ask Defence counsel whether

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1 he and his client have received copies of the

2 indictment in a language which they understand and

3 whether the contents therein were understood. Have you

4 had adequate time to confer with your client in

5 preparation for this initial appearance?

6 MR PRODANOVIC: Yes, your Honour, we have

7 received the indictment, we understand it, and we have

8 had sufficient time to study it.

9 JUDGE CASSESE: Thank you. The indictment

10 was issued by the Prosecutor on 18 June 1996, and

11 confirmed by Judge Vohrah on 26 June 1996. In

12 principle, under our Statute and our Rules of Procedure

13 and Evidence the entire indictment should be read out

14 in court. I wonder, however, whether the accused is

15 prepared to waive his right to a public reading of the

16 indictment. May I turn to you and ask whether the

17 accused is waiving his right?

18 MR PRODANOVIC: The accused is prepared to

19 waive his right to have the indictment read at this

20 public hearing.

21 JUDGE CASSESE: Thank you so much. I will

22 now turn to the accused.

23 Please rise, Mr Kunarac. Your counsel has

24 informed the Trial Chamber that you have received a

25 copy of the indictment in a language which you

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1 understand and that you comprehend its contents.

2 Please confirm whether this is correct and whether you

3 have any questions concerning the indictment.

4 MR KUNARAC: It is correct, I have had enough

5 time to read it; I understand the indictment; I have no

6 comments to make regarding the indictment, because

7 I have understood everything it contains and,

8 therefore, I have no comments to make regarding the

9 indictment.

10 JUDGE CASSESE: Thank you, thank you. I am

11 going to recall each of the four counts against you.

12 Could you please tell the court whether you plead

13 guilty or not guilty after I have put the counts to

14 you. The form of words we wish you to use is

15 either, "I plead guilty", or "I plead not guilty."

16 Have you understood this?

17 MR KUNARAC: I have understood everything.

18 JUDGE CASSESE: Thank you. I will start

19 with count 40: A crime against humanity (torture)

20 punishable under Article 5(f) of the Statute of the

21 Tribunal. How do you plead?

22 MR KUNARAC: I plead not guilty.

23 JUDGE CASSESE: Thank you. Count 41:

24 A crime against humanity (rape) punishable under

25 Article 5(g) of the Statute of the Tribunal. How do

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1 you plead?

2 MR KUNARAC: I plead guilty on this count.

3 JUDGE CASSESE: Thank you. Count 42:

4 A grave breach (torture) punishable under Article 2(b)

5 of the Statute of the Tribunal. How do you plead?

6 MR KUNARAC: I plead not guilty.

7 JUDGE CASSESE: Thank you. Count 43:

8 A violation of the laws or customs of war punishable

9 under Article 3 of the Statute of the Tribunal and

10 recognised by Article 3(1)(a) (torture) of the Geneva

11 Conventions. How do you plead?

12 MR KUNARAC: I plead not guilty on this

13 count, too.

14 JUDGE CASSESE: Thank you, you may now be

15 seated. (Pause).

16 I will now turn to the Defence counsel.

17 Defence counsel, you have heard that the defendant has

18 pleaded guilty to count 41, crime against humanity

19 (rape) punishable under Article 5(g) of the Statute of

20 the Tribunal. Do you confirm that you were instructed

21 by the defendant to this effect?

22 MR PRODANOVIC: Yes, your Honour.

23 JUDGE CASSESE: Thank you. You may be

24 seated.

25 May I turn now to the Prosecutor and ask the

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1 Prosecutor about their position now with the guilty

2 plea by the defendant?

3 MS UERTZ-RETZLAFF: We did not have notice

4 before, so for us it is also new and we would need time

5 to consider especially the not guilty plea in regard to

6 Article 3 and crime against humanity (torture). In

7 regard to Article 2 -- count 42 -- we would be ready to

8 withdraw this count, but about the other two counts, we

9 would like to have some time for consideration.

10 JUDGE CASSESE: You said that you are

11 prepared to withdraw the count 42 -- did you say count

12 42 based on grave breach?

13 MS UERTZ-RETZLAFF: Yes, your Honour.

14 JUDGE CASSESE: But not count 43, based on

15 the violation of the laws or customs of war --

16 torture?


18 JUDGE CASSESE: What about count 40, which

19 is torture, crime against humanity?

20 MS UERTZ-RETZLAFF: This is also a count that

21 we would like to consider, first, what to do.

22 JUDGE CASSESE: (Pause). On behalf of the

23 Trial Chamber, I would like again to turn to the

24 Prosecutor to ask whether they are prepared to consider

25 their position, and how much time do you need to come

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1 back with a specific position?

2 MS UERTZ-RETZLAFF: Does it mean you want us

3 to make the decision today?

4 JUDGE CASSESE: I am just asking whether you

5 need some time. Maybe we can reconvene tomorrow -- we

6 can adjourn until tomorrow morning.

7 MS UERTZ-RETZLAFF: Yes, that would be a good

8 solution.

9 JUDGE CASSESE: Or this afternoon -- do you

10 need more time?

11 MS UERTZ-RETZLAFF: I would prefer to have

12 tomorrow morning.

13 (Pause).

14 JUDGE CASSESE: First of all, let me ask

15 Defence counsel whether he is prepared to come back

16 tomorrow, because we are planning to adjourn until

17 tomorrow afternoon at 4.30pm. Would you be available

18 tomorrow afternoon?

19 MR PRODANOVIC: Yes, your Honour.

20 JUDGE CASSESE: Thank you. I wonder whether

21 it is convenient for the Prosecutor to come back

22 tomorrow afternoon at 4.30 so that they can set out

23 their position with regard to the various counts, and

24 in the light of the position of the Prosecutor, we will

25 decide how to proceed?

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1 MS UERTZ-RETZLAFF: Yes, that is convenient

2 for us.

3 JUDGE CASSESE: Therefore, the hearing

4 stands adjourned.

5 (4.17pm)

6 (The hearing adjourned)