Tribunal Criminal Tribunal for the Former Yugoslavia

Page 22

1 Friday, 13th March 1998

2 (3.00pm)

3 JUDGE CASSESE: Good afternoon. May I ask

4 the Registrar to call out the case number?

5 THE REGISTRAR: The Prosecutor versus

6 Dragoljub Kunarac, case number IT-96-23-I.

7 JUDGE CASSESE: Can I have the appearances,

8 please?

9 MS UERTZ-RETZLAFF: Your Honours for the

10 Prosecution, we have here Patricia Sellers and

11 Hildegard Uertz-Retzlaff.

12 MR PANTELIC: Your Honour, I am Igor

13 Pantelic, Defence counsel on behalf of Mr Kunarac.

14 I am acting in accordance with the authorisation of my

15 colleague, Mr Prodanovic, who is not able to be present

16 here today, and I suppose that the Trial Chamber have

17 his explanations concerning these issues.

18 JUDGE CASSESE: Thank you. Mr Kunarac, can

19 you hear me?

20 MR KUNARAC: I can, thank you.

21 JUDGE CASSESE: You may be seated.

22 We can now commence with this hearing. As

23 you know, this is the third hearing of the adjourned

24 initial appearance of the accused before the

25 International Criminal Tribunal for the former

Page 23

1 Yugoslavia. As the parties are aware, the Trial

2 Chamber issued an order after the second hearing and

3 the initial appearance of the accused on Tuesday, 10th

4 March, and the order rescheduled the continuation of

5 the initial appearance and ordered Mr Prodanovic to

6 appear before the Trial Chamber at that time -- I am

7 reading out the order -- having made adequate provision

8 for prior consultation with his client, and he was

9 ordered to explain to the Trial Chamber the

10 circumstances of his absence from the hearing, failing

11 which the Trial Chamber would consider instituting

12 proceedings for contempt.

13 The Trial Chamber has since received a

14 Defence motion filed on 11 March in which Mr Prodanovic

15 lists objective circumstances which prevent him

16 appearing this afternoon.

17 In that motion, he suggested that the accused

18 might be represented by his colleague, Mr Pantelic.

19 The Trial Chamber takes this matter very seriously for

20 three reasons: first of all, Mr Prodanovic absented

21 himself from the last hearing without leave of the

22 court, and after having formally agreed to that hearing

23 taking place. I remember that I asked him whether he

24 would be available on Tuesday afternoon at 4.30 and he

25 said "yes" -- the next day in any case after the first

Page 24

1 hearing.

2 The second reason is that Mr Prodanovic

3 failed to consult with his client following the first

4 hearing, and prior to his departure from The Hague, so

5 leaving the accused without legal advice at a crucial

6 stage in our proceedings.

7 The third reason is that the Tribunal has not

8 been informed of any apology received from

9 Mr Prodanovic. The Trial Chamber now looks to his

10 colleague, Mr Pantelic, to explain these actions by

11 Mr Prodanovic. Mr Pantelic?

12 MR PANTELIC: Thank you, your Honour. First

13 of all, I am also fully authorised on behalf of

14 Mr Prodanovic to give to this honourable Trial Chamber

15 all his personal highest apologies about this

16 inconvenient situation and, also, he has authorised me

17 to inform you in some detail how this situation

18 developed. Briefly, I would like to bring to your

19 attention some important facts on this issue.

20 Late in the evening on Monday night of March,

21 my colleague has got some very important and very

22 urgent messages from Foca and as well as in the morning

23 of 10 March. This information is fully related to this

24 particular case and, also, with some of the other

25 co-accused in this case. In the morning of 10 March,

Page 25

1 before our conference with the members of OTP, my

2 colleague informed some of the members of the Registry

3 in my presence about this, let us say, extraordinary

4 circumstances. During our conference with the Office

5 of the Prosecutor, he and me -- we also informed the

6 Prosecutor about these new events and finally,

7 immediately after this conference with the OTP, he was

8 in a situation to inform again the Registry and to

9 kindly ask to inform the Trial Chamber about these new

10 events, bearing in mind that this is a most urgent and

11 appropriate way to inform the Trial Chamber, through

12 the Registry.

13 Furthermore, Mr Heintz, Deputy Registrar,

14 around 1 o'clock on 10 March, spoke with me personally

15 about this issue, because my colleague Mr Prodanovic is

16 not an English speaker, so I was acting on his behalf,

17 and I briefly explained to Mr Heintz the reasons and

18 the circumstances why Mr Prodanovic was obliged to

19 leave The Hague before this second part of the initial

20 appearance according to Rule 62.

21 Also, at this point, please let me stress

22 that I saw this internal memorandum sent by the

23 Registry to this Trial Chamber and where the one

24 expression was that Mr Prodanovic was obliged to leave

25 The Hague in order to have some conferences in Belgrade

Page 26

1 with his clients, which is a factual error, because

2 this conference took place in Foca, in Serbinje.

3 However, I have some other explanations which may be

4 very, very important to this Trial Chamber, and in this

5 light, I think this Trial Chamber will be satisfied

6 with these expressions, but because of the nature of

7 this information and because of some kind of level of

8 confidentiality, I would prefer if it would be possible

9 to do that in closed session, maybe after this hearing,

10 or in some other appropriate time, because that was one

11 of the requests of my colleague, Mr Prodanovic, having

12 in mind the sensitivity of these issues.

13 JUDGE CASSESE: First of all, with regard to

14 the behaviour of your colleague, Mr Prodanovic, as we

15 said before, we will make a formal report of his

16 behaviour to the Registrar --

17 MR PANTELIC: Can I stand or sit?

18 JUDGE CASSESE: As you wish. I am going to

19 ask you a question. What you just said you would like

20 to explain to the Trial Chamber relates to the guilty

21 plea, or --

22 MR PANTELIC: No, it is just in relation to

23 the motives and the circumstances about his sudden

24 departure from The Hague, which might be also important

25 for this Trial Chamber, just to have in general a

Page 27

1 picture of this nature.

2 JUDGE CASSESE: It has nothing to do with

3 the plea?

4 MR PANTELIC: No, nothing.

5 JUDGE CASSESE: It will be done afterwards.

6 MR PANTELIC: That is just for your

7 information.

8 JUDGE CASSESE: Let us move on to the

9 question of the plea. I would like to ask the

10 Prosecutor whether they are now in a position to set

11 out their position in regard to the outstanding counts

12 in the indictment, counts 40 and 43 -- counts other

13 than the one count, 41, on which the accused has

14 already taken a stand.

15 MS UERTZ-RETZLAFF: The Prosecution has

16 spoken with the accused in the presence of his counsel,

17 and with the Defence counsel separately as well, to

18 determine the factual basis of the charges to which the

19 accused has pleaded guilty. The Prosecution was not

20 satisfied with the underlying facts stated by the

21 accused in his interview in regard to the charge.

22 While the Prosecution has been willing to exercise

23 flexibility to determine the factual basis of this

24 plea, in order to conclude the initial appearance of

25 the accused, we must inform the Trial Chamber that we

Page 28

1 are not prepared to concur with Defence counsel or the

2 accused, and we are also not prepared now to drop any

3 of the charges.

4 We would ask the Trial Chamber to set a date

5 for a status conference in which the future trial

6 preparation can be discussed. We appreciate very much

7 the time and attention that the Trial Chamber has

8 granted to the Prosecution and the Defence to settle

9 this pleading. The Prosecution stands now ready for

10 trial, your Honours.

11 JUDGE CASSESE: What you said applies to

12 which counts?

13 MS UERTZ-RETZLAFF: It applies to 41, to the

14 guilty plea and also to the other charges. We are not

15 dropping any charge now.

16 JUDGE CASSESE: Not even count 42, based on

17 grave breach, torture as a grave breach.

18 MS UERTZ-RETZLAFF: That might be at a later

19 stage, but not today.

20 JUDGE CASSESE: Alright. So we have now to

21 actually deal with the question of the plea to

22 count 41.

23 We have to clarify the question of the guilty

24 plea made by the accused with regard to count 41,

25 because, as you know, under our Rules and Procedures of

Page 29

1 Evidence, Rule 62 bis, if an accused pleads guilty, the

2 Trial Chamber must be satisfied that the guilty plea

3 has been made voluntarily, the guilty plea is not

4 equivocal and there is a sufficient factual basis for

5 the crime and the accused's participation in it, either

6 on the basis of independent indicia or lack of any

7 material disagreement between the parties about the

8 facts of the case.

9 So, therefore, we have to see to it that this

10 provision is applied with regard to count 41. First of

11 all, the facts to which the guilty plea applies,

12 Mr Pantelic?

13 MR PANTELIC: Your Honour, in support of the

14 facts that we just heard from the Prosecution side,

15 I would also inform you that, in order to clarify my

16 client's mental relation and his conscience concerning

17 all the facts regarding this plea, I would say that,

18 after the analysis that we have made, I would say that

19 we were faced with some kind of legal arrachement

20 situation. It means that Mr Kunarac pleaded guilty

21 because he felt that he -- and he knows very well --

22 that he committed some crimes, but these crimes are

23 obviously not related to these charges and with this

24 kind of qualifications, so during this morning's

25 interview with the Prosecutor's Office, he openly, with

Page 30

1 his free and open mind, explained all factual bases and

2 all the details concerning his mental relation to all

3 these issues.

4 Now I think it would be appropriate to hear

5 maybe another explanation from Mr Kunarac so that we

6 can proceed with the other steps in our relevant

7 procedures and, as the Prosecutor stated, we are as a

8 Defence ready to have another status conference with

9 all possibilities of possible withdrawal of some

10 charges, or maybe some clarification, because the main

11 issue, while we were discussing all these legal

12 moments, was that some paragraphs were related to his

13 prior behaviour during 1992, but it was not related in

14 general with the qualifications made by the Prosecutor,

15 so that was the main disagreement or some kind of

16 non-clarification of some issues. I would strongly

17 suggest we can maybe hear Mr Kunarac, what he can tell

18 us with regard to these issues.

19 JUDGE CASSESE: Yes, thank you. After

20 carefully studying the indictment, it has become clear

21 to the Trial Chamber that, to enter a valid plea, the

22 accused must be aware that he is pleading guilty to the

23 various allegations listed in the indictment, and

24 I would refer to various points, so I will ask him

25 various questions and he should reply whether or not he

Page 31

1 is pleading guilty with regard to the various

2 allegations, because, as Defence counsel is aware, the

3 charge of rape is based in the indictment on various

4 provisions -- Article 7(1) of the Statute, direct

5 participation in rape, 7(1) of the Statute again, but

6 in a different respect, allegations of aiding and

7 abetting rape; 7(3) of the Statute, namely, an

8 allegation that he is responsible as a commander for

9 rapes committed by subordinates and, again, then under

10 Article 5, rape as a crime against humanity, widespread

11 assault, rape as a part of a widespread assault on the

12 Muslim population of Foca, so we have to make clear

13 that the accused is entering a plea with full knowledge

14 of the implications of this guilty plea.

15 We will first of all now ask the accused to

16 specify these various points and then I will turn to

17 the Prosecution to ask a question about the factual

18 basis of the various charges. There is one point which

19 is not very clear, at least to me, namely, whether the

20 charges of torture, rape and various other charges --

21 they are all related to the same factual basis, whether

22 the same facts have been classified by the Prosecutor

23 in their charges against the accused as torture and

24 rape. Let us start with the Prosecution then.

25 MS UERTZ-RETZLAFF: Your Honours, that is

Page 32

1 just what we mean. All of the charges are based

2 basically on the same facts. We see these charges as

3 cumulative. That is how we will do it. There are some

4 legal differences in the different charges, but

5 basically it is the same facts, of course. We

6 understand, from the merits, that he himself was

7 involved in the rape of five women, especially here

8 described in the various chapters -- 7(1) clearly. As

9 far as he himself took women, for instance, to these

10 various rape locations, we also see clearly 7(1) and,

11 in regard to these cases, where the men took out the

12 women without his presence, then we consider 7(3).

13 JUDGE CASSESE: That means, if you do not

14 mind I would like to say at this point, for instance,

15 count 40 is crime against humanity; count 41 is again

16 crime against humanity; and count 40 is crime against

17 humanity (torture); count 41, crime against humanity

18 (rape). This double classification is related to the

19 same facts.

20 MS UERTZ-RETZLAFF: Yes, your Honour.

21 JUDGE CASSESE: And, again, then you have

22 put forward the charge of grave breach (torture) and

23 war crime (count 43), again for the same facts.


25 JUDGE CASSESE: Which you, in this case,

Page 33

1 label, as it were, or classify as torture.

2 MS UERTZ-RETZLAFF: Yes. The difference, of

3 course, is international armed conflict -- just armed

4 conflict.

5 JUDGE CASSESE: You said before you have not

6 yet now decided whether or not to drop count 42, grave

7 breach.

8 MS UERTZ-RETZLAFF: We would like to do that

9 after the status conference.

10 JUDGE CASSESE: Thank you. Now we are in a

11 position, I think, having clarified the position of the

12 Prosecution, to move on to the guilty plea of the

13 accused, and, as I say, first of all, under our Rules

14 of Procedure, he must be -- the guilty plea must be

15 made voluntarily. I would like to ask the accused to

16 stand up and to answer my questions.

17 (The accused stands).

18 JUDGE CASSESE: Mr Kunarac, did you make

19 this plea voluntarily, no-one has forced you to do so?

20 MR KUNARAC: When I made a plea of guilty,

21 I did so because that is what I felt at the time,

22 morally and mentally, and if there is any problem here,

23 then it is because I want to tell the truth. The truth

24 is that I participated in an offence and I tried to

25 explain in my interview with the Prosecutor why I feel

Page 34

1 guilty regarding what I personally said I had done --

2 I still say that I am guilty, in the context

3 that I explained it to the Prosecutor, at least I tried

4 to explain myself. Whether or not I managed I do not

5 know. If that has not been made clear, then I must

6 betray my own feelings and consciousness and say that

7 I am not guilty, because when the Trial Chamber hears

8 all the evidence, then they will be able to decide

9 whether I am guilty or not. In any event, I want to

10 admit my guilt to those acts that I personally

11 committed.

12 I do not know how all these things stand in

13 legal terms. I said before my plea that I did not want

14 to lie. I came voluntarily, in full consciousness to

15 tell the truth, the whole truth. That is why I am

16 here.

17 How great my guilt is, it is up to you to

18 judge. I am here for that purpose. It is up to you to

19 decide.

20 JUDGE CASSESE: Thank you. Mr Kunarac, my

21 question was more specific. Did anybody force you to

22 enter a guilty plea to a crime against humanity, or did

23 you plead guilty in a voluntary way.

24 MR KUNARAC: Nobody forced me to say that

25 I was guilty.

Page 35

1 JUDGE CASSESE: Thank you. Now we have to

2 move on to the second requirement set out in Rule 62

3 bis, namely that the guilty plea must not be

4 equivocal. That means that you must be aware of the

5 legal import and the legal implications of your guilty

6 plea. First of all, as I mentioned before, you have

7 been accused in the indictment with a crime against

8 humanity (rape) in various respects. First of all,

9 direct participation in rape -- Article 7(1) of the

10 Statute (this is one point). Then you have been

11 accused, because it is claimed by the Prosecutor that

12 you aided and abetted in the commission of rape, under

13 7(1) of the Statute; also, that you had command

14 responsibility, because you were responsible as a

15 commander for the rapes committed by your subordinates,

16 and you failed to stop your subordinates from

17 committing rape.

18 Are you aware of all these implications which

19 are set out in the indictment.

20 MR KUNARAC: I am aware of the way in which

21 the Prosecution has compiled the indictment. I think

22 that the Prosecution is totally unaware of what was

23 actually happening on the ground at the time. If my

24 confession, which I tried to clarify this morning,

25 regarding my guilt is not sufficient, then I will have

Page 36

1 to say that I do not feel guilty of committing a crime

2 against humanity, because, when I said I was guilty,

3 when I pleaded guilty, I did not want to conceal my

4 guilt; I wanted to say that I felt guilty. It is a

5 fact, and these are facts that I tried to explain to

6 the Prosecutor in my interview this morning and, if

7 that act, under the circumstances under which it was

8 committed, was wrong in my plea, because I could not

9 find under counts 41, 42, 43 under which one of those

10 my feeling of guilt fits, so I do not know whether

11 I chose the worst or the least of the offences.

12 There is the word "rape" without resort to

13 force, and that is how I thought -- that is why

14 I thought that this was the count to which I could

15 plead guilty. If the Prosecution rejects this

16 possibility of my admission being adequate, in that

17 case I will have to withdraw my guilty plea, not

18 because I wish to confuse anyone, but I want to

19 understand the entire indictment, all the circumstances

20 of the whole event and knowing the facts such as they

21 were. I think that the Prosecution is absolutely in

22 the wrong and --

23 JUDGE CASSESE: Mr Kunarac -- (pause) --

24 what you just said probably indicates that you are not

25 clear about the legal implications of the charge

Page 37

1 preferred by the Prosecution. Now, the Prosecution is

2 claiming that you committed rapes and/or failed to stop

3 a rape being committed by your subordinates and, in

4 this way, you have perpetrated a crime against

5 humanity. Now, what is meant by a crime against

6 humanity? I am sure that your legal counsel has

7 already explained everything. You are aware of that.

8 That means a serious attack on human dignity -- a very

9 serious attack on human dignity, which may take the

10 form of murder, rape, enslavement, extermination and so

11 on, in this case rape, which has a target of civilians,

12 so not committed against soldiers but against

13 civilians. This is the second legal ingredient, so a

14 very serious attack on human dignity in the form which

15 I have just set out, then, having as a target one or

16 more civilians, and the third legal ingredient of this

17 offence is that this serious attack on human dignity is

18 part of a widespread or systematic practice in the area

19 or in the country where the offence has allegedly been

20 committed.

21 So, therefore, this particular offence, in

22 this case rape, has been classified by the Prosecution

23 as a crime against humanity and you pleaded guilty to

24 this count -- crime against humanity -- rape as a crime

25 against humanity. I understand, but you may clarify

Page 38

1 your position, that you do not feel that you are guilty

2 of rape as a form of torture, because one of the other

3 counts is that what you committed must be regarded or

4 classified -- legally classified as a form of torture.

5 Is it clear to you what is meant by "crime against

6 humanity"? As you know, we have under our Statute

7 various -- we deal with various classes of offences --

8 genocide, crimes against humanity, war crimes, grave

9 breaches.

10 A crime against humanity, as has been held by

11 a Trial Chamber, is an offence which is more serious or

12 may be regarded as more serious as a war crime. You

13 are pleading guilty to a serious offence, namely, a

14 crime against humanity. Are you aware of these various

15 legal issues which I have tried to explain to you? Are

16 you aware of the implications?

17 MR KUNARAC: I am now, what crime against

18 humanity means in the case of rape. When I pleaded

19 guilty that day, I did not plead that I had in an

20 organised fashion, motivated by genocide, committed any

21 rape, and I must explain myself, that I was wrong at

22 the time I made that plea. The only thing I did not

23 want to do was to lie against myself. I did not commit

24 a crime against humanity, but I did commit one offence

25 from this indictment, and an act as referred to in that

Page 39

1 count, in my opinion, it is not worded in a clear

2 manner. At the top it says that I committed acts

3 against such and such and such persons, and then the

4 numbers 9.3, 9.4, et cetera, and then we have counts 41,

5 but no reference is made to the previous paragraphs.

6 I am guilty of paragraph 9.10, so please

7 understand I do not find where those acts referred to

8 in 9.10 appear again in the counts, so that, if it was

9 in count 41, I plead guilty of a crime against humanity

10 as defined in paragraphs 9.10, 11, 12 and so on. Then

11 I would know what I was pleading guilty to. I hope

12 I have managed to explain how I was misled, not knowing

13 the law.

14 I wish to repeat that I do not want to tell a

15 lie at all, ever. I came here consciously to be

16 honest, to be decent, to tell you what exactly I did,

17 and it is up to you to say how guilty I am, and to mete

18 out a sentence. I hope I have made myself clear.

19 I hope you understand why I pleaded guilty. But could

20 you please tell me where in these counts is paragraph

21 9.10. If the Prosecution could tell me whether it is

22 under count 40, 41, 42 or 43 and then I would be able to

23 plead guilty; of course, taking into account the

24 circumstances under which the offence was committed .

25 As for other counts, I am absolutely not

Page 40

1 guilty -- I am not guilty regarding all the other

2 charges made in the indictment, so I am now trying to

3 explain the amount of hesitation in my mind. I said

4 I was guilty of one act and not of all the three others

5 and that I have said quite clearly. I do not know if

6 I have legally made any violations of the Rules or the

7 Statute, but that was not my wish. I did not want to

8 cause any problems. I just wanted to honestly tell you

9 what I am guilty of.

10 I tried to explain to Madam, the Prosecutor.

11 Maybe she did not understand me. Maybe she does not

12 believe me. Then I am ready to plead not guilty on

13 each of those counts, and then the proceedings will

14 follow as they should if I plead not guilty. So, could

15 my counsel or somebody help me, if I am failing to make

16 myself clear in legal terms, which I do not understand.

17 JUDGE CASSESE: I now turn to the Defence

18 counsel and the Prosecution. If I understood the

19 accused correctly, he means to say that he is ready to

20 repeat his guilty plea to count 41, crime against

21 humanity, only with reference to the facts set out in

22 paragraph 9.10 of the indictment. Is this correct?

23 MR PANTELIC: Your Honour, let me be very

24 precise. We have got enough time yesterday for a

25 conference -- this morning, especially with the

Page 41

1 presence of the Prosecutor's Office, and these

2 conferences were very, very important for Mr Kunarac.

3 Unfortunately, we cannot expect here that every client,

4 especially in this first period of appearances, is

5 fully aware. Maybe after -- maybe after six months,

6 one year, a year and a half, he would be more familiar

7 with all these events and all of the offences here.

8 I would ask Mr Kunarac to explain to you, if it was

9 clearly explained to him the difference between the

10 crime against humanity, which as you stressed is a most

11 serious crime, and, for example, the grave breaches of

12 the Geneva Conventions or some other forms, where we

13 theoretically and hypothetically might find a place for

14 his actions. So, I explained to him, in various ways,

15 all these things and my guess is -- my conclusion is

16 that, having in mind all these details, he is not

17 pleading guilty under the count 41, crimes against

18 humanity, relating to rapes.

19 He expressed his willingness very, very

20 precisely this morning to the Prosecutor's Office,

21 also, so my conclusion is not that he pleaded guilty

22 with all this explanation now to crime against

23 humanity. What I understood from his statements was

24 that he said that he committed some crimes, but are

25 these crimes fully related with some qualification in

Page 42

1 the indictment, or maybe it will be amended in a future

2 period. Let us see. Up to now, my guess is that my

3 client is fully aware about these differences and that

4 he cannot consider himself guilty in particular to

5 count 41, crimes against humanity -- not to mention

6 sub-rule 3(E) that we have to discuss more after.

7 JUDGE CASSESE: Mr Pantelic, do you want to

8 say -- do you intend to say that now your client is

9 aware of -- more aware of the differences between the

10 various crimes -- offences provided for in our Statute

11 and that he does not know whether he should plead

12 guilty to, say, crime against humanity or war crime or

13 a grave breach of the Geneva Conventions. However, he

14 admits to committing the offences which are set out in

15 paragraph 9.10 of the indictment, because he made

16 reference before to the facts listed there?

17 MR PANTELIC: Yes, your Honour, but if these

18 factual grounds mentioned in paragraphs 9.10, 9.21, let

19 us say and 10.1, which he mentioned this morning in

20 this interview, are related to a crime against

21 humanity, his position is that he is not guilty. But,

22 on the contrary, if this description of these actions

23 is related, for example, to some form of grave breaches

24 or customs of war, maybe in that case we can discuss

25 another light of his possible plea of guilty. That is

Page 43

1 the main issue.

2 Now, if you are facing all these factual

3 grounds and qualifications, my guess is -- and that was

4 my advice to him, finally not to plead guilty under

5 these circumstances, because, as you well know, we have

6 to have some basic and important elements of one

7 crime. You very precisely explained to my client and

8 to the audience these differences and he is very well

9 of it, especially because of the third element of this

10 crime.

11 JUDGE CASSESE: Namely, the offence must be

12 part of --

13 MR PANTELIC: Part of widespread --

14 JUDGE CASSESE: Or systematic practice.

15 MR PANTELIC: Yes. I asked him precisely,

16 "Mr Kunarac, are you aware or can you explain to us

17 this general atmosphere and do you consider this

18 atmosphere as a widespread situation of torture or

19 massive terror and have you been a part of all these

20 actions, hypothetically?". He said "no". I cannot say

21 that that is a crime against humanity under these

22 circumstances.

23 JUDGE CASSESE: As I say, regardless of the

24 legal classification of the offence, war crime, crime

25 against humanity, grave breach, am I correct in saying

Page 44

1 that Mr Kunarac admits to the commission of the facts

2 listed in paragraph 9.10 of the indictment -- leaving

3 aside the legal characterisation of the offence?

4 MR PANTELIC: That is right, your Honour.

5 JUDGE CASSESE: He is admitting --


7 JUDGE CASSESE: I wonder whether the

8 Prosecution can state their position?

9 MS UERTZ-RETZLAFF: Your Honour, if it would

10 have been about legal problems only, we would not have

11 had any problems and we would have been very flexible

12 and would have been willing to do any possible

13 amendment on short notice. But, that is not what it is

14 about. It is about the factual basis and even about

15 the factual basis of this count 9.10. In 9.10 it is

16 clearly stated that two women were taken to these

17 headquarters, one was raped -- gang-raped brutally and

18 one was personally raped by this accused, but,

19 according to what he has told us, he hardly committed

20 any offence at all, because what he described was not

21 that what is here said in the indictment -- not at all.

22 JUDGE CASSESE: Thank you. (Pause). In the

23 light of what has just been said, it is clear to the

24 court that we have to enter a not guilty plea, and set

25 a date for the status conference.

Page 45

1 However, let me, before we adjourn, point out

2 that this awkward situation has been created by the

3 fact that the accused has not been duly instructed --

4 has not been duly advised by the legal counsel.

5 Normally, before entering a guilty plea, or not guilty

6 plea, the accused should be advised by the Defence

7 counsel, who should explain to him or to her the

8 difference between the various offences, which are

9 listed in our Statute and which are charged in the

10 indictment.

11 If he had been well advised, probably we

12 would not have been put in this rather awkward

13 position.

14 I wonder whether -- since you said that you

15 would like to make some explanation in camera, in

16 closed session, I wonder whether we could adjourn now

17 and we could even -- would you be in a position to hold

18 the status conference, maybe in half an hour?



21 JUDGE CASSESE: We move to a closed session,

22 you give us some confidential information and then we

23 discuss various matters within the framework of a

24 status conference. Thank you. So, half an hour, is

25 that too much or too little?

Page 46

1 MS UERTZ-RETZLAFF: 20 minutes.

2 MR PANTELIC: 15, it is up to you.

3 JUDGE CASSESE: 20 minutes. We stand

4 adjourned for 20 minutes.

5 (3.45pm)

6 (A short break)