Tribunal Criminal Tribunal for the Former Yugoslavia

Page 131

1 Tuesday, 28th September, 1999

2 [Further Appearance]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.21 p.m.

6 JUDGE MAY: Call the case, please.

7 THE REGISTRAR: Good afternoon, Your

8 Honours. The Prosecutor versus Dragan Kolundzija, case

9 number IT-95-8-PT.

10 JUDGE MAY: Appearances, please.

11 MR. NIEMANN: If Your Honours please, my name

12 is Niemann, and I appear with my colleague Mr. Keegan,

13 and Ms. Reynders is the case manager.

14 JUDGE MAY: Where is Mr. Vucicevic?

15 Mr. Niemann, do you know?

16 MR. NIEMANN: I haven't heard from

17 Mr. Vucicevic.

18 JUDGE MAY: Do you know if he's in the

19 building?

20 MR. NIEMANN: Your Honour, I understand that

21 Ms. Reynders made an enquiry in the Bel Air Hotel, and

22 she did discover that they had checked in there. But

23 whether he's in the building or not, I don't know, Your

24 Honour.

25 JUDGE MAY: It may be that he's in the

Page 132

1 Defence counsel room.

2 MR. KEEGAN: Yes, Your Honour. I'm getting

3 signals from the Defence counsel in a related case

4 outside that he's apparently here and is in the back.

5 JUDGE MAY: He's apparently on his way.

6 We'll wait for him.

7 MR. VUCICEVIC: Good afternoon, Your

8 Honours. I sincerely apologise for not having my robes

9 on, but I was under the impression that this hearing

10 was to commence at 2.30, according to your previous

11 orders while I was here before you the last time. If

12 you would grant me a privilege to appear to expedite

13 these proceedings as it is.

14 JUDGE MAY: We shall, and we'll be going on

15 with the further appearance in order for your client to

16 plead to the additional counts.

17 MR. VUCICEVIC: Your Honour, if I may, there

18 is kind of a housekeeping matter here that the panel

19 has to make a decision, because I have come from

20 Prijedor. The wife of the accused and his two

21 children, 14 and 15, are in the lobby, and they would

22 like to be present in the visitors' gallery. The

23 passes have been issued. However, for the children,

24 the decision of the Chamber is needed so they could be

25 present here. What I have received -- information I

Page 133

1 have received, depending on the type of the matters

2 that are going to be discussed --

3 JUDGE MAY: Just a moment.

4 [Trial Chamber confers]

5 JUDGE MAY: Yes, very well. We shall give

6 the children leave to attend.

7 Now, Mr. Vucicevic, as far as the amended

8 indictment is concerned, I take it that the accused has

9 had a copy of the indictment in a language which he

10 understands, that you've had the chance of going

11 through it with him, and he understands it insofar as

12 he can.

13 MR. VUCICEVIC: Your Honour, I have been on a

14 field trip in Prijedor over the last ten days, and I am

15 not aware that the amended -- the last submission that

16 I have tendered to the panel was objection to the

17 indictment, to the amendment of the indictment. I do

18 not know whether or not you ruled on the amendment. As

19 such, I haven't had an opportunity to review it with my

20 client, so I could not advise him on this matter. I do

21 sincerely apologise, but I have no knowledge of this.

22 If I may continue --

23 JUDGE MAY: You must have known. Just a

24 moment. You must have known for a long time that it

25 was likely that he would be called upon to plead to

Page 134

1 these matters. The further appearance was ordered some

2 time ago. Now, is he in a position to plead or not to

3 plead to these counts?

4 MR. VUCICEVIC: Your Honour, I cannot advise

5 him, you know, how to plead. I can, in general, tell

6 him -- I have talked to him. He is in a position to

7 plead not guilty, and that is, you know, his decision

8 and my advice to him from the very beginning. But I

9 think considering the fairness of the proceedings,

10 which is of the utmost, you know, concern to you, Sir,

11 it behooves me to state the fact that I'm unaware of

12 when the amendment has been confirmed and whether it

13 was confirmed by a Confirming Judge or this Trial

14 Chamber. I have no notice of that, you know.

15 JUDGE MAY: Give me the dates, please.

16 MR. VUCICEVIC: Your Honour, if I may add

17 further --

18 JUDGE MAY: No. We've heard enough for the

19 moment. It's a matter we want to consider.

20 [Trial Chamber confers]

21 MR. VUCICEVIC: Your Honour, if I may help

22 you --

23 JUDGE MAY: No. We are conferring.

24 [Trial Chamber confers]

25 JUDGE MAY: Mr. Niemann, could you help me

Page 135

1 with the dates? The dates that we have recorded is

2 that the indictment was confirmed, as amended, on the

3 30th of August; it was issued on the 9th of September.

4 I'm told it was faxed to Defence counsel that day, and

5 there was an order for this appearance on the 17th of

6 September.

7 MR. NIEMANN: That's right, yes. Those dates

8 are right.

9 JUDGE MAY: Yes. Thank you very much,

10 Mr. Niemann.

11 Mr. Vucicevic, since you have not conferred

12 on this matter with your client, it's not fair on him

13 to ask him to plead to the indictment. Obviously, he

14 should have the opportunity of your advice. But that

15 said, you should have done this before. In our

16 judgement, you had plenty of time in which to confer

17 with your client and be ready for this appearance.

18 We will put the matter back until the 11th of

19 October at 9.30, by which time we shall expect

20 Mr. Kolundzija to be in a position to plead, having

21 gone through the indictment, your having gone through

22 it with him.

23 Now, that brings us to another matter which

24 concerns your absence yesterday. This is not a matter

25 which we take lightly. The fact was this, that this

Page 136

1 case was listed with another case. Everybody was here,

2 including the four accused in that case and their

3 counsel. Everybody was ready to deal with hearings,

4 one of which was the joinder application which affected

5 your client.

6 The result of your absence was that that

7 hearing was in jeopardy. We had to consider whether we

8 could go ahead with it or not. In fact, we decided to

9 do so, having had written submissions by yourself. But

10 the upshot was that your client was left unrepresented

11 in this court, grave inconvenience was caused, at the

12 least, and not a word from yourself, let alone your

13 sending a substitute or appearing.

14 Now, these all are serious matters, because

15 it's a professional obligation for counsel to appear in

16 court in which he's instructed at the time which he is

17 to do so. We have in mind to issue you with a formal

18 warning about this sort of conduct, ignoring the orders

19 of the Court and therefore being liable to obstruct the

20 proceedings, the proper conduct of the proceedings, and

21 we have in mind to draw these matters to the attention

22 of the Registrar, for her to take what action she

23 thinks fit. We shall hear you, of course, before we

24 take that action, but would you bear in mind that we

25 have already taken up some time in this abortive

Page 137

1 hearing.

2 Now, what do you want to say?

3 MR. VUCICEVIC: Your Honour, even though you

4 and me and the Honourable Judge from Jamaica are

5 educated in the Anglo-Saxon law, my father was a lawyer

6 in the former Yugoslavia, and in growing up he had told

7 me one thing that I would forever keep in mind, and

8 that is, "Audiatur et altera pars." I am deeply hurt

9 by the words that Honourable Judge May has uttered

10 now. However --

11 JUDGE MAY: Mr. Vucicevic, we do not want to

12 know about your feelings. What we wish to hear is

13 any --

14 MR. VUCICEVIC: You will hear the facts.

15 JUDGE MAY: Just a moment. Listen. We want

16 to hear any explanation which you have as to why you

17 weren't here yesterday and why we should not report you

18 to the Registrar. Now, if there is anything you want

19 to say about that, now is your opportunity. We're

20 giving you the opportunity, but limit it to that.

21 MR. VUCICEVIC: I have not received a notice,

22 either actual or constructive, of the hearing that had

23 happened yesterday, number 1.

24 JUDGE MAY: Very well. We'll hear -- I have

25 made enquires about this, and we'll hear from the

Page 138

1 Registrar as to what happened, as to whether any notice

2 was sent or not. I want to hear what the position is.

3 THE REGISTRAR: The Registry has faxed the

4 scheduling order on the 20th of September to

5 Mr. Vucicevic, his fax number, and the amended

6 indictment has also been faxed to the counsel on the

7 9th of September, to his fax number so ...

8 JUDGE MAY: Mr. Vucicevic, you've heard what

9 the Registry has said about this matter, that it was

10 sent to you.

11 MR. VUCICEVIC: According to the practices of

12 the Registry, the counsel travelling to the field is

13 provided with the airfare and other travelling

14 arrangements by the Registry. I departed Chicago on

15 September 15th, I was at the seat of the Tribunal on

16 September 16th, and from there on, I was in Prijedor.

17 I do not know where that notice went, but

18 when I'm in Chicago, I do have difficulties

19 communicating with Bosnia. The connections from the

20 United States cannot be obtained by telephone to

21 Belgrade, and there is a selective possibility to talk

22 to certain people.

23 Even when I was in Kovacevic's case, I could

24 not get his home, I couldn't get some of his relatives,

25 I couldn't get some of the witnesses, and now again I

Page 139

1 cannot get Kolundzija's family. I do not want that,

2 but when I ring the phone, basically, it doesn't sound

3 busy; it just sounds some different sound.

4 So nobody from Chicago could get hold of me,

5 in case it was faxed to my office in Chicago where

6 there was nobody available at that time, and I was on a

7 field trip. The Registry had known exactly where I

8 was. A simple inquiry or a simple telephone call from

9 here to Prijedor, either to the police or somebody in

10 city hall or to the SFOR, international police force in

11 town, could have located me.

12 Your Honour, I am doing my best to

13 investigate the case, to become available, to use the

14 scanty communication lines that are available, but

15 whatever I have done, sometimes the people who are

16 informing, it's just not -- this job is not done unless

17 somebody is notified. Putting the paper and sending it

18 through the fax doesn't mean that I do know.

19 That's what I would like to convey to you,

20 Your Honour, because I hold this Court in a high

21 regard. I respect my client, just as so many Muslim

22 prisoners that are in the United States whom I

23 interviewed who think that if it wasn't for him, there

24 would have been so many more victims on that night that

25 is basically -- the basis of his indictment.

Page 140

1 Your Honour, if anything, I would have

2 wanted, because that was an interest of my client and

3 also a service of our profession, and with a high

4 regard to this Court, I would have been here had I

5 known it.

6 Your Honour, I can't help --

7 JUDGE MAY: Let me interrupt to find out

8 this: Was the fax received, is there any information

9 as to that, in Chicago?

10 MR. VUCICEVIC: I don't know. I don't know

11 that, Your Honour. There was nobody in the office.

12 JUDGE MAY: I'm asking the Registrar.

13 THE REGISTRAR: We have a confirmation, an

14 okay fax, and that means that the fax has been received

15 to the place where it's sent to.

16 As far as I know, it has been sent to your

17 office in the United States, which is the office and

18 the number that you gave the Registry to have your

19 materials received.

20 JUDGE MAY: You see, Mr. Vucicevic, if you're

21 away from the office, you have an obligation to be in

22 touch to see if orders of this sort are sent out, and

23 it's no excuse to say, "Well, I was out of the office

24 and therefore I didn't receive the notification."

25 MR. VUCICEVIC: Your Honour, that would be

Page 141

1 the case if I had been vacationing or not pursuing the

2 business of this Tribunal on the explicit travel

3 arrangements provided by the Registry. The Registry

4 knew my whereabouts. This is a short-notice order, and

5 if they wanted me noticed -- and if they wanted to

6 really carry this out diligently, they could have found

7 me there.

8 Your Honour, let me just be as candid as

9 possible. I couldn't talk to my wife for the time that

10 I was in Chicago either because communications -- there

11 is something. It is ten dollars a minute to call from

12 Bosnia. The people that I was staying with,

13 considering all the economics of the scale, that would

14 be too much, and I do not want to finance anybody who

15 is tied up with the case and is extending

16 me hospitality. Your Honour, this was a very sensitive

17 matter, and I'm sorry that that happened, although I

18 feel no personal fault at this.

19 JUDGE MAY: Very well.

20 MR. VUCICEVIC: May I just continue with

21 something else?

22 JUDGE MAY: No. Unless you've got something

23 relevant to say, we've got another case to hear,

24 Mr. Vucicevic. Now, unless there's something else

25 relevant you want to say, we can't deal with it.

Page 142


2 JUDGE MAY: Very well.

3 MR. VUCICEVIC: Your Honour, relevant to the

4 confirmation of the indictment, on September 9th, I

5 have received the same copy of the indictment without

6 any decision of the Court. I did not know whether that

7 was a copy of the indictment that was either rejected

8 by this Chamber, that was confirmed by this Chamber, or

9 whether that was, you know, sent to the Confirming

10 Judge. I did not receive a decision of this Court on

11 the 9th.

12 When I came, I was hoping that something is

13 going to be in my locker, that usually is, that copies

14 are being sent to the counsel's locker. I hadn't found

15 the decision in my locker either at that time. As I

16 was in a hurry to proceed, I proceeded to -- because in

17 my submissions to you, there was quite a bit of

18 indecision on the part of the Prosecution whether the

19 proposed amendment is still before the Confirming

20 Judge, is it before you?

21 I considered that an attempt -- in my mind, I

22 considered that an attempt of the Prosecutor to secure

23 perhaps an amended indictment before the Confirming

24 Judge should you, as the panel, decline to decide, and

25 I haven't read the decision.

Page 143

1 I do have -- since I have -- if you give us

2 half an hour or 15 minutes, I could confer with my

3 client, I could advise him, and he would be ready to

4 plead, because we had gone over that proposed

5 indictment. The only thing that I'm unaware of, I'm

6 unaware of who confirmed the indictment, and if I read

7 a decision of such a body, if it's yours, I'm happy to

8 accommodate the schedule.

9 But, Your Honours, that would be a little bit

10 because I'm flying from Chicago to here, and kindly,

11 since I've already spent 10 days, and by the time I

12 leave here, it will be 15 days in Europe, to come back

13 on short notice, it is going to be a difficulty. I

14 think we can finish this matter -- it would be

15 absolutely possible if you give us a recess of 15

16 minutes, we could come back and plead.

17 [Trial Chamber confers]

18 JUDGE MAY: Mr. Vucicevic, we will

19 accommodate your difficulties to this extent: that the

20 matter will be dealt with at 2.30 tomorrow, but you

21 must understand that by doing so, you affect other

22 cases, other counsel, other accused whose cases can't

23 be heard while we'll dealing with matters which, in our

24 view, you should have dealt with to allow us to go

25 ahead with this hearing today.

Page 144

1 Now, these are, as I've said, all serious

2 matters. We hear your explanation. We've heard that

3 these documents have been sent to your professional

4 address. We are not satisfied with the state of

5 affairs at all. We shall report the matter to the

6 Registrar, it's then a matter for her what action she

7 takes, and also issue a warning under Rule 46(A) to

8 yourself due to your absence from the hearing

9 yesterday.

10 We will adjourn this until half past two

11 tomorrow when we shall expect your client to be in the

12 position to plead to this indictment. Very well. Half

13 past two tomorrow.

14 MR. VUCICEVIC: Thank you, Your Honours.

15 --- Whereupon the Further Initial

16 Appearance adjourned at 2.50 p.m., to be

17 reconvened on Wednesday, the 29th

18 day of September, 1999, at 2.30 p.m.