Tribunal Criminal Tribunal for the Former Yugoslavia

Page 797

1 Friday, 19 January 2001

2 [Rule 62 bis Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.08 a.m.

6 JUDGE ROBINSON: Will the registrar call the case, please.

7 THE REGISTRAR: The Prosecutor versus Blagoje Simic, Milan Simic,

8 Miroslav Tadic, Stevan Todorovic, Simo Zaric, case number IT-95-9-PT.

9 JUDGE ROBINSON: May we have the appearances.

10 MS. PATERSON: Yes, Your Honour. Nancy Paterson representing of

11 the Office of the Prosecutor, and with me is case manager Diane Boles.

12 JUDGE ROBINSON: For the Defence.

13 MR. BRASHICH: Deyan Brashich for the Todorovic Defence. I'm

14 joined at the counsel table by Nikola Kostich. Good morning, Your

15 Honour.

16 JUDGE ROBINSON: Thank you.

17 This is a hearing under Rule 62 bis, and its purpose is to have

18 the Chamber determine whether it is satisfied as to the four matters set

19 out in that Rule so that it may enter a finding of guilt on the basis of

20 the accused Todorovic's guilty plea made on December 13, 2000.

21 If the Chamber determines that a finding of guilt is to be

22 entered, it will then set a date for the sentence hearing.

23 The matters in respect of which the Chamber must be satisfied, if

24 it is to enter a finding of guilt, are that the plea is voluntary, that it

25 is informed, it is not equivocal, and that there is a sufficient factual

Page 798

1 basis for it as well as of the accused's participation in the crime.

2 We have before us a document filed jointly by the Prosecutor and

3 the Defence, setting out the factual basis for the charges in respect of

4 which the accused has pleaded guilty.

5 Judge Hunt has one or two questions in relation to the factual

6 basis.

7 JUDGE HUNT: Ms. Paterson, perhaps you would be able to assist

8 me. The agreement which has been signed admits expressly all of the

9 relevant facts alleged against the accused in the indictment except 34(A)

10 and (B), and there is no express admission in terms of the crime alleged

11 in 36 -- I'm sorry, 29 and 30.

12 Now, I realise that this is a joint submission, this factual basis

13 for the charges, and it seems to me, having read through them, I might add

14 with some difficulty because it's very difficult to find your way through

15 it, there is certainly a factual basis there for each of 34(A) and (B).

16 The way in which the Prosecution has pleaded the indictment is

17 that if it has established all of the ingredients of paragraph 34

18 plus 40 to 47, which are all admitted, then it has established the crime

19 alleged in paragraph 29.

20 I'm curious, first, as to why we have to rely upon all this

21 extraneous material, there being no express admission to it, because the

22 Rule seems to contemplate that there must be no dispute between the

23 parties in relation to the fundamental matters upon which the plea is

24 based. Is there any significance in the fact that the agreement has not

25 expressly admitted those matters in 34(A) and (B)?

Page 799

1 MS. PATERSON: No, Your Honour. As you know, this is, as far as I

2 know, only the third plea that has taken place before the Tribunal, so the

3 procedure to be followed is still somewhat new to all of us.

4 This submission was based on the previous submissions provided to

5 this Court in the earlier pleas and was, as stated, the result of

6 negotiations between Mr. Brashich and myself. I could have obviously put

7 in more information; I purposely limited the information so that

8 Mr. Brashich and I could reach an agreement.

9 I do believe that there is sufficient information in here to

10 support all of the subparagraphs -- subsections in paragraph 34. If you

11 read through the extracts that we provided, most of them cover many

12 different crimes in one statement. So that while they will talk about the

13 murder, the murder took place in the police station which was a detention

14 centre, and people were being beaten at the same time that the murder

15 happened. So it was --

16 JUDGE HUNT: That -- I'm pausing for the purposes of the

17 translators. That is actually expressly admitted elsewhere in the

18 agreement.

19 But what I'm concerned about, and it's only a passing concern but

20 I thought I have to be satisfied so I'd raise it with you, is the fact

21 that this document which has been tendered as a joint submission by both

22 parties, does the Prosecution understand that as an admission by

23 Mr. Todorovic of the facts which are asserted in paragraphs 34(A) and

24 34(B)? I'm going to ask Mr. Brashich the same question but I thought I'd

25 start off with you.

Page 800

1 MS. PATERSON: Yes, Your Honour, we do look at that as an

2 admission on Mr. Todorovic's part.

3 JUDGE HUNT: If that's so, then I'm satisfied. But I just wanted

4 to know from both parties, seeing it wasn't in the express agreement,

5 that's all.

6 Well, Mr. Brashich.

7 MR. BRASHICH: Good morning, Your Honour.

8 JUDGE HUNT: Was the intention of this joint filing of the factual

9 basis for the charges to amount to an admission by your client that those

10 facts establish the allegations in paragraphs 34(A) and (B) of the

11 indictment?

12 MR. BRASHICH: Yes, Your Honour. That was negotiated by myself

13 with Ms. Paterson.

14 JUDGE HUNT: I don't want to know the details of the negotiation,

15 obviously. But the fact that it wasn't expressly contained in the

16 agreement just put me on warning. I am happy to accept your assurance as

17 counsel that your client accepts that those facts do establish paragraphs

18 34(A) and 34(B) of the indictment.

19 MR. BRASHICH: Yes, Your Honour.

20 JUDGE HUNT: Thank you.

21 MR. BRASHICH: Because of the negotiations, things were done

22 sometimes in a hurried manner in order to meet certain deadlines, so

23 perhaps we did not dot the i's and cross the t's. We were under severe

24 time constraints.

25 JUDGE HUNT: I understand fully. I am not very familiar with

Page 801

1 plea-bargaining in the country from which I come, but, nevertheless, it's

2 been an interesting exercise to see the results from it. Thank you. You

3 have satisfied me.

4 MR. BRASHICH: Thank you, Your Honour.

5 JUDGE ROBINSON: Well, that matter having been clarified, I will

6 now ask the accused, Mr. Todorovic, certain questions in relation to the

7 matters in respect of which we have to be satisfied under Rule 62 bis.

8 Will you stand, Mr. Todorovic.

9 [The accused stands up]

10 JUDGE ROBINSON: Mr. Todorovic, you entered into a plea agreement

11 with the Office of the Prosecutor and, pursuant to that agreement, you

12 pleaded guilty on the 13th of December, 2000 to the first count of the

13 indictment, charging persecutions as a crime against humanity.

14 In accordance with that agreement, you will withdraw all motions

15 before the Chamber challenging the legality of your arrest and seeking

16 judicial assistance; is that correct?

17 THE ACCUSED: [Interpretation] Yes.

18 JUDGE ROBINSON: Pursuant to that agreement, the Prosecutor and

19 the Defence have recommended to the Chamber that the sentence falls within

20 the range of five to 12 years. You must understand, however, that the

21 sentence is ultimately a matter for the Chamber to determine, in

22 accordance with the Statute and the Rules, and that this may be for a term

23 up to and including life imprisonment. Do you understand that?

24 THE ACCUSED: [Interpretation] Yes, I do.

25 JUDGE ROBINSON: Have you discussed fully with your counsel the

Page 802

1 plea agreement that you have made with the Office of the Prosecutor?

2 THE ACCUSED: [Interpretation] Yes.

3 JUDGE ROBINSON: Were you threatened or coerced in any way to make

4 that agreement?

5 THE ACCUSED: [Interpretation] No, I was not threatened.

6 JUDGE ROBINSON: Were you threatened or coerced in any way to

7 enter a plea of guilty?

8 THE ACCUSED: [Interpretation] No.

9 JUDGE ROBINSON: You have made that plea voluntarily?

10 THE ACCUSED: [Interpretation] Yes.

11 JUDGE ROBINSON: Have you discussed the matter fully with your

12 counsel, and has he informed you of the nature of the charges against you

13 and of the consequences of pleading guilty to a crime against humanity?

14 THE ACCUSED: [Interpretation] Yes.

15 JUDGE ROBINSON: Thank you. You may sit.

16 [The accused sits down]

17 THE ACCUSED: [Interpretation] Thank you.

18 JUDGE ROBINSON: Ms. Paterson and Mr. Brashich, at the first

19 hearing, we discussed the question of the withdrawal by the Prosecution of

20 all of the counts, a withdrawal by the Defence of all motions relating to

21 the evidentiary hearing and the legality of the arrest.

22 The Chamber will accept an assurance given today by both counsel

23 about these matters that the withdrawal will be effective as of today.

24 You will, however, confirm it in writing within a week.

25 So I ask first Ms. Paterson: Does the Office of the Prosecutor

Page 803

1 give the assurance that it will withdraw all of the counts, that is,

2 counts other than Count 1?

3 MS. PATERSON: Yes, Your Honour. As part of the agreement, a copy

4 of which has been provided to the Court, it is quite clear that it is the

5 intention of the Office of the Prosecutor to withdraw Counts 2 to 27.

6 I would just like to point out that part of the reason we agreed

7 to that is our feeling that the persecution count, by its nature,

8 essentially encompasses the same allegations made in those counts, so that

9 for the sake of the witnesses and victims involved in those counts, they

10 can hopefully see that their interests are, nonetheless, being protected

11 by this plea. But yes, I can state that it is our intention to withdraw

12 those counts and, as you requested, I will do so in writing within a

13 week.

14 JUDGE ROBINSON: Thank you.

15 Mr. Brashich, do you give the assurance that you withdraw all

16 motions relating to the evidentiary hearing and those questioning the

17 legality of arrest?

18 MR. BRASHICH: Before I do that, Your Honour, I want to make it

19 clear, and I would request of Ms. Paterson to make the withdrawal with

20 prejudice, that it not be just a plain withdrawal. It has to be a

21 withdrawal with prejudice. And if the withdrawal is with prejudice, I

22 will, in writing, withdraw all pending motions before the Trial Chambers

23 and make a representation as called for in writing by paragraph 8 of the

24 plea agreement.

25 JUDGE ROBINSON: Ms. Paterson?

Page 804

1 MS. PATERSON: Well, Your Honour, it was not a part of the

2 negotiated plea that we would withdraw those counts with prejudice. I

3 will state that if, as Your Honours say, you will accept this plea - and I

4 see no problems with the plea being accepted - that once this hearing is

5 concluded, we will agree to do that. However, I think Mr. Brashich must

6 admit that that was not part of the negotiation, but for sake of

7 proceeding with this agreement, I am willing to take that into

8 consideration.

9 MR. BRASHICH: Well, Your Honour --

10 JUDGE ROBINSON: Yes, Mr. Brashich.

11 MR. BRASHICH: I'm sorry, Your Honour.

12 Your Honour, as I had stated before, I will readily admit that I

13 did not cross t's and dot the i's. The thought with regard to "with

14 prejudice" came to me as I was sitting, listening to Your Honour question

15 Ms. Paterson. I do not wish to be in a position of being sandbagged,

16 where my client has given up some rather valuable rights to have the

17 indictment reinstated, if I have to, and I do readily admit that this is

18 not the first or perhaps the last misstep or mistake that I might have

19 made before this Trial Chamber. However, it was clearly the intent on the

20 part of the Defence to give up certain rights and receive certain

21 benefits, and one of the benefits is the dismissal of 26 counts.

22 So I would call upon Ms. Paterson to live up to the spirit and the

23 intent of the agreement and withdraw the 26 counts with prejudice.

24 JUDGE ROBINSON: Ms. Paterson, I think what Mr. Brashich is saying

25 that the clear intent of the agreement was that the other counts would not

Page 805

1 be brought again against his client, and what he wants is a firm assurance

2 that those counts will be withdrawn and will not be brought again against

3 his client.

4 MS. PATERSON: What I can state, Your Honour, is that we are fully

5 prepared to live up to our side of the agreement. I will file in writing

6 a statement this week stating that we are withdrawing the remaining

7 counts. Assuming that the agreement is concluded to the satisfaction of

8 all parties that Mr. Todorovic lives up to his side of the agreement, then

9 of course we have absolutely no intention of ever reinstating these

10 charges, but I am not prepared today to withdraw them with prejudice. If

11 for some reason the agreement falls through, Mr. Todorovic does not live

12 up to his part of the agreement, then obviously we need to return to

13 square one and proceed accordingly.

14 JUDGE HUNT: Ms. Paterson, this raises a vital issue that has yet

15 to be resolved about this agreement. The agreement appears to contemplate

16 that Mr. Todorovic will not be sentenced until he has fulfilled all his

17 obligations under the agreement, one of which is to give evidence against

18 other people, including his co-accused. That in itself is a very real

19 problem because if he does give his evidence before he is sentenced, then

20 there will be an even greater attack upon the credibility of that

21 evidence, that he is inflating his evidence or lying in order to get a

22 greater degree of mitigation.

23 Now, if you are also going to hold over his head this issue of

24 prejudice so that it's up to the Prosecution to be satisfied that he has

25 given evidence, et cetera, you are going -- are you not going to destroy a

Page 806

1 great deal of the credibility of the evidence which he is going to give in

2 these other trials?

3 And if I may add another matter that you should consider. Having

4 conceded that this count of persecution is going to include all of the

5 factual matter that's in that indictment, you will surely face an

6 application for a stay of any further indictment you may try to bring on

7 the basis it's an abuse of process.

8 MS. PATERSON: Your Honour, it was not our intention that

9 Mr. Todorovic should not be sentenced until he complies with all aspects

10 of the agreement.

11 JUDGE HUNT: You've signed it.

12 MS. PATERSON: The agreement anticipates that this understanding

13 could potentially go on for years. We don't know how many trials there

14 may be that he might be asked to testify at, how long this will take. It

15 is our assumption that he would actually be sentenced in the relatively

16 near future and that we would then proceed in good faith, with the

17 understanding that if at some point in the future he fails to live up to

18 that, to his part of the agreement, we will have to come back, revisit the

19 issue, and consider the appropriate resolution at that time. But we did

20 not intend that he not be sentenced, and we had no intention whatsoever of

21 holding any counts over his head.

22 JUDGE HUNT: How do you anticipate that it could be resolved in

23 the future if you say that he has, sometime in a few years time, not lived

24 up to his part of the agreement? Is he going to be brought back for

25 resentencing?

Page 807

1 This is the problem that I see with the way this agreement has

2 been drafted about the sentencing part of it. And you will also have to

3 face up to, will you not, the other matter I raised, and that is that it

4 would be a complete abuse of process, whether it's with or without

5 prejudice, to bring further proceedings based on the same facts. And

6 having had to look at this recently in another context, how do you get

7 over all of that United States authority that was relied upon in

8 Kupreskic?

9 MS. PATERSON: Your Honour, our intention was simply that we would

10 live up to the agreement, which we felt was quite simple and, I think, was

11 understood as well by Mr. Brashich. I have no reason to think that

12 Mr. Todorovic does not fully intend to live up to his part of the

13 bargain.

14 If, in fact, at some point in time the bargain falls through,

15 whether it is next week or five years from now, the clear understanding of

16 the agreement, as I believe Mr. Brashich and I understand it, is that we

17 all go back to square one again, the indictment is reinstated, the charges

18 proceed against Mr. Todorovic as if the plea had never happened, and we

19 proceed accordingly. This is the way it operates in other jurisdictions

20 and I would assume it would operate that way here.

21 JUDGE HUNT: And what happens to the plea itself, the admission

22 made by the plea if the whole proceedings have to restart?

23 MS. PATERSON: I would assume that the Court would have to rule on

24 that, whether that could be used against him or not. There is obviously

25 precedents in different jurisdictions, but the precedents are somewhat

Page 808

1 different. I don't know that I'm in a position today to answer that

2 question unequivocally. I believe that would be a decision for the Court

3 to make.

4 JUDGE HUNT: That's precisely what the word "prejudice" means, I

5 would have thought.

6 MR. BRASHICH: Your Honour, I wonder if I could be heard. I think

7 that Ms. Paterson and I are in agreement with regard to the way that we

8 envisaged the plea and the sentence to take place in a relatively short

9 time so that the plea agreement could be effected, and I believe that we

10 were talking yesterday about a sentence imposed within a period of 60 to

11 90 days so that the required cooperation would be almost in the immediate

12 future.

13 The reason why I had raised the issue -- I said it came to my

14 mind, the with-prejudice issue, as I was sitting here and listening to

15 Judge Robinson question Ms. Paterson.

16 On the other hand, my co-counsel pointed out to me that in

17 paragraph 6(A) of the agreement, the Prosecutor has accepted the accused's

18 plea to Count 1 in the satisfaction of the remaining counts of the

19 indictment. Had I been redrafting the agreement, and perhaps in the

20 future for other counsel, it should have read: "... in full satisfaction

21 of the remaining counts in the indictment."

22 I might be also guilty of wanting to have both a belt and

23 suspenders for my client, but I want to afford my client the full

24 protection of the intent of the agreement. I did not, in any way, want to

25 derail the agreement that Ms. Paterson and I worked quite intensely to

Page 809

1 achieve.

2 JUDGE ROBINSON: The Chamber will consult.

3 [Trial Chamber confers]

4 JUDGE ROBINSON: Ms. Paterson and Mr. Brashich --

5 MR. BRASHICH: Yes, Your Honour.

6 JUDGE ROBINSON: -- the Chamber has considered this matter. What

7 we are minded to do is to give the parties half an hour in which to try to

8 resolve this.

9 I would like to say to Ms. Paterson that the Chamber's

10 understanding, certainly based on paragraph 6(A) in particular, the words

11 "the Prosecutor will accept the accused's plea to Count 1 in satisfaction

12 of the remaining counts," is that the Prosecutor would withdraw all the

13 remaining counts and that all those counts would not be brought again. So

14 we are sympathetic and understand the position taken by Mr. Brashich when

15 he asks that the withdrawal be with prejudice.

16 We will give you half an hour in which to try to resolve this

17 matter, and you can seek advice from your appropriate authorities,

18 Ms. Paterson, on this matter.

19 We will rise.

20 --- Recess taken at 10.35 a.m.

21 --- On resuming at 11.05 a.m.

22 JUDGE ROBINSON: Mr. Brashich, do you have good news for us?

23 MR. BRASHICH: Yes, Your Honour, I do. We have conferred with the

24 Prosecution, and I would like to turn over this issue to my co-counsel,

25 Mr. Kostich, to address the Court, with your leave.

Page 810


2 MR. KOSTICH: This sounds like one of the filibusters in the U.S.

3 Senate, because what I'm going to have to do, Your Honour, is to actually

4 ask Ms. Paterson to speak with you.

5 We've had a chance to meet and draft some additional language,

6 which Ms. Paterson will go into, and hopefully we will be able to have

7 that language approved by you. Of course, certainly, you may have some

8 questions. If I may, I would like to pass the torch on to Ms. Paterson.

9 JUDGE ROBINSON: The relay continues.

10 Ms. Paterson.

11 MS. PATERSON: Yes, Your Honour, we discussed this, as you

12 requested, and I think it was somewhat of a -- I don't wish to speak for

13 Defence counsel, but somewhat of a misunderstanding on their part, and

14 obviously they can speak to that when I finish.

15 We've drafted an agreement which is simply two additional

16 sentences, and what I suggest is that I would read this into the record.

17 Then what we can do is add it as a corrigendum to the plea agreement when

18 I also file my written agreement to withdraw the additional counts, and

19 all three of us can sign it so that it would become part of the official

20 record.

21 The additional sentences we have agreed to are:

22 "It is the understanding of the parties that the accused is to

23 fulfil his obligations pursuant to the plea agreement in return of which

24 the Office of the Prosecutor shall withdraw Counts 2 through 27 of the

25 Indictment, in full satisfaction with the accused's plea to Count 1 of the

Page 811

1 indictment.

2 "Should the accused fail to fulfil his obligations under the plea

3 agreement, it is understood that the Office of the Prosecutor can

4 reinstate the full indictment, including Counts 1 to 27."

5 And there is no language in this agreement concerning prejudice.

6 I think Mr. Kostich can address that issue.

7 JUDGE ROBINSON: Mr. Kostich.

8 MR. KOSTICH: Your Honour, you have heard the language that we

9 have agreed upon. We have discussed with Mr. Todorovic the language in

10 question. He approves it; Mr. Brashich and I also. We feel satisfied

11 that the language, as indicated by Ms. Paterson, takes care of any

12 concerns that we have. We will no longer insist on a withdrawal with

13 prejudice.

14 We understand that the Office of the Prosecutor has negotiated

15 with us in good faith, and essentially it is an agreement that has been

16 reached. We feel that we can carry out our part of the obligations, and

17 we feel that the Prosecutor's Office will carry out their part of the

18 obligations, and it is, therefore, contemplated that we will sign and

19 enter into this addition, correction to the agreement, and we would

20 withdraw our request for a dismissal with prejudice.

21 JUDGE ROBINSON: Thank you.

22 JUDGE HUNT: May I ask you a question about that? The expression

23 "until the Defence fulfils its obligation," has been used, which is the

24 very expression I raised earlier as to what it meant. As an ordinary

25 lawyer, I would read the agreement as saying that the conditions or the

Page 812

1 obligations are not fulfilled until your client has given evidence, which

2 suggests then that these additional counts will not be withdrawn until

3 he's given evidence.

4 Now, I would like to have it made clear at least between the

5 parties as to whether that was what it was intended. It's contrary now to

6 what Ms. Paterson had said earlier.

7 MS. PATERSON: Respectfully, Your Honour, I don't think it's

8 contrary. The understanding between us is that we will withdraw Counts 2

9 to 27 as of now. We are assuming that we can proceed with the sentencing

10 in, as suggested, 60 to 90 days, and that we realise that that means that

11 the fulfillment of the agreement will take place in the future.

12 The clear understanding, however, is that at some point in time,

13 if Mr. Todorovic fails to fulfil the agreement, which, as Your Honour

14 knows, involves more than simply testifying at a trial, if the agreement

15 falls through, then we all return to square one as we were before this

16 agreement, which means we can reinstate the entire indictment, Counts 1 to

17 27. We do not lose the right to bring back Counts 2 to 26 - clearly

18 that's the benefit that we're getting out of the agreement - and we

19 proceed to trial as if there had been no plea agreement and Mr. Todorovic

20 is not prejudiced in any way. The agreement simply dissolves and we

21 proceed as if it had never existed in the first place.

22 JUDGE ROBINSON: You withdraw first and then you reinstate if he

23 doesn't fulfil his obligations. Of course, how a Chamber will view such a

24 reinstatement is perhaps a matter that we need not concern ourselves with

25 here.

Page 813

1 JUDGE HUNT: But I still am concerned, and I'm not merely trying

2 to help the Prosecution, although it may sound like this, I'm trying to

3 take a quite neutral stance about it, but what does the Trial Chamber

4 before whom Mr. Todorovic gives evidence make of that? They will make of

5 it that he is giving evidence with the threat that if he doesn't give

6 evidence in accordance with what the Prosecution expects, he will have

7 these counts reinstated, subject to any Trial Chamber allowing you to do

8 so. What I'm concerned about is what the Trial Chamber who hears his

9 evidence is to make of that evidence received in those circumstances.

10 Now, you may have considered that and you're prepared to take the

11 risk, but if so, I think we should hear you say that so that that Trial

12 Chamber will know precisely how to approach Mr. Todorovic's evidence in

13 those cases.

14 MS. PATERSON: Yes, Your Honour, but the scenario that we envision

15 is -- the scenario you have just painted is going to be the situation no

16 matter what. If Mr. Todorovic is going to testify at a trial, even if we

17 weren't going to reinstate Counts 2 to 27, he's still going to have the

18 threat of Count 1 hanging over his head that could be reinstated if he

19 fails to comply with the agreement. Correct?

20 JUDGE HUNT: No, because he's been sentenced on that.

21 MS. PATERSON: And if the agreement falls through, if he fails to

22 comply with the agreement, we all go back to where we started, which

23 includes Count 1 and Counts 2 to 27.

24 JUDGE HUNT: So the Prosecution is prepared to put him forward as

25 a witness who you're going to ask the Trial Chamber to believe that

Page 814

1 evidence with that hanging over his head in any event. That certainly

2 seems to me to be a very strange situation for the Prosecution to be

3 putting itself in, but if that's what it wants to do, at least we all know

4 that that's what it wants to do.

5 MS. PATERSON: Respectfully, Your Honour, that is the procedure

6 that is followed in other jurisdictions. Obviously, it's up to the Trial

7 Chamber, as you say, to evaluate that. There are many ways that they will

8 have to choose to evaluate the testimony of Mr. Todorovic. That is only

9 one. But, yes, that is the understanding that we're prepared to proceed

10 with.

11 JUDGE ROBINSON: Thank you.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: The Trial Chamber, having heard all the

14 submissions, is satisfied as to the four matters set out in Rule 62 bis:

15 First, that the guilty plea was made voluntarily, that the guilty plea was

16 informed, that it is not equivocal, and that there is a sufficient factual

17 basis for the crime of persecution to which the accused has pleaded guilty

18 and his participation in it.

19 The Chamber enters a finding of guilty on the basis of the guilty

20 plea.

21 There are some other matters that have to be raised. There's the

22 date for sentencing. The Chamber will fix, but only in a provisional

23 way -- Mr. Brashich, yes?

24 MR. BRASHICH: Your Honour, I was wondering, in taking the

25 provisional date, the Court would allow a request by the Defence that we

Page 815

1 do need 60 days to prepare.

2 JUDGE ROBINSON: We had in mind April the 4th. What does your

3 arithmetic make of that?

4 MR. BRASHICH: We had been thinking, if it was convenient for the

5 Court, the week of March 19th, and we would suggest that the sentencing

6 phase, at least in consultation with Mr. Kostich and Mr. Todorovic, that

7 we would request of the Court a day, a full trial day.

8 JUDGE ROBINSON: The senior legal officer.

9 [Trial Chamber and legal officer confer]

10 JUDGE ROBINSON: Mr. Brashich, we will certainly take into account

11 the submissions that you have made, but we can't give an assurance. There

12 are various organisational matters to be considered, but we will take

13 account of what you have said, and you will be informed of the date by the

14 senior legal officer, who will, as usual, consult with you.

15 MR. BRASHICH: Thank you, Your Honour.

16 JUDGE ROBINSON: Prior to the sentencing hearing, of course, a

17 Scheduling Order will be issued requiring information as to the level of

18 cooperation of the accused with the Prosecution. A Scheduling Order will

19 also be issued seeking submissions on the question of the separation of

20 the proceedings following the accused's guilty plea.

21 The hearing is adjourned.

22 JUDGE HUNT: Just if I may add, Ms. Paterson, in case this is not

23 the procedure that you're accustomed to, the procedure that I am

24 accustomed to would be that we would be supplied with a statement, signed

25 by Mr. Todorovic, of the evidence that he is going to give. Some of it

Page 816

1 may obviously be confidential in nature. But we have to judge from the

2 statement the degree of cooperation he's giving in order to assess the

3 proper amount of mitigation.

4 Now, is it contemplated we'll get such a statement, or have you

5 got some other way of telling us what his cooperation has been?

6 MS. PATERSON: I think that we can probably comply with what

7 you're requesting, Your Honour.

8 JUDGE HUNT: Now, it's no good stating in general terms that he

9 will cooperate or as it is expressed in the agreement. I think we are

10 obliged to have more detail than that. That's why in my jurisdiction we

11 usually get a statement from the accused of the evidence that he is going

12 to give.

13 MS. PATERSON: I believe that we'll be able to comply with that

14 requirement, Your Honour.

15 JUDGE HUNT: Thank you.

16 JUDGE ROBINSON: The Scheduling Order will address the precise

17 terms.

18 MR. BRASHICH: Your Honour, may I just have a moment with

19 Ms. Paterson? Can I just have a moment to speak with Ms. Paterson,

20 please?


22 MR. BRASHICH: Thank you.

23 [Prosecution and Defence counsel confer]

24 MR. BRASHICH: Your Honour, we've solved the problem.

25 JUDGE ROBINSON: Thank you.

Page 817

1 Ms. Paterson.

2 MS. PATERSON: Yes, Your Honour. Just before we adjourn, I had

3 brought to the attention of the Senior Legal Officer that there was one

4 other matter we needed to discuss in a closed session or a private

5 session.


7 MR. BRASHICH: I would join in that respect with regard to closed

8 session.

9 JUDGE ROBINSON: We will go into closed session. The blinds will

10 have to be drawn.

11 [Closed session]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

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13 Page 818 redacted in closed session.













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13 Page 819 redacted in closed session.













Page 820

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 --- Whereupon the Rule 62 bis Hearing adjourned

9 at 11.25 a.m.