Tribunal Criminal Tribunal for the Former Yugoslavia

Page 544

1 Thursday, 16 March 2006

2 [Further Initial Appearance]

3 [The accused appear via videolink]

4 [Open session]

5 --- Upon commencing at 2.18 p.m.

6 JUDGE KWON: Good afternoon, everybody. Could the registrar

7 please call the case.

8 THE REGISTRAR: Good afternoon, Your Honour. This is case number

9 IT-03-69-PT, the Prosecutor versus Jovica Stanisic and Franko Simatovic.

10 JUDGE KWON: Thank you. Would the parties make their appearances,

11 please.

12 MR. RE: For the Prosecution David Re, trial attorney, with the

13 Prosecutor Madam Carla Del Ponte, assisted by our case manager,

14 Ms. Carmela Javier.

15 JUDGE KWON: I have to note this hearing is conducted via

16 videolink. Before going on further, I have to check whether the parties

17 in Belgrade can follow us. Can I ask Mr. Jovanovic to confirm this.

18 MR. JOVANOVIC: [Interpretation] Yes, Your Honour, I can hear you

19 very well.

20 JUDGE KWON: Thank you. Then can I have the appearances from the

21 Defence.

22 MR. KNOOPS: Yes, Your Honour. Geert-Jan Knoops, counsel for

23 Mr. Stanisic, Ms. Tanja Radosaveljevic, legal consultant of our team. She

24 is currently present with the accused in Belgrade, Mr. Stanisic.

25 JUDGE KWON: Thank you, Mr. Knoops. And Mr. Jovanovic, could you

Page 545

1 introduce yourself and your accused again, please.

2 MR. JOVANOVIC: [Interpretation] Thank you. Good afternoon, Your

3 Honour. My name is Zoran Jovanovic, attorney-at-law from Belgrade, and I

4 am appearing for the accused Franko Simatovic.

5 JUDGE KWON: Thank you, Mr. Jovanovic.

6 I have to note that at the outset this hearing, which was

7 originally scheduled to take place on Monday, 13th of March, had to be

8 postponed due to certain logistical problems that are beyond the control

9 of the Chamber, to take place today.

10 On 16th of December, 2005, the Trial Chamber issued its decision

11 on Prosecution motion for leave to amend the amended indictment granting

12 the Prosecution's motion to amend again the indictment to include new

13 charges related to events in and around Srebrenica. Since the Chamber

14 denied the Defence request for certification for appeal against this

15 amendment, the amendment has been finalised subject to further

16 consideration on the challenge on the form of indictment the Trial Chamber

17 is currently seized of.

18 So therefore, having said that, the accused need to enter a plea

19 on the new charges in the amended indictment, and that's why we are having

20 a hearing today, for the purpose of further appearance of the accused

21 pursuant to Rule 50(B) of the Rules.

22 So, Mr. Knoops and Mr. Jovanovic, it is the right of the accused

23 to have the indictment read out in full in a language they understand. Do

24 they wish to have the new charges in the indictment read out in full?

25 MR. KNOOPS: Your Honour, the accused in our case waives his right

Page 546

1 to have the indictment read out in full. Thank you.

2 JUDGE KWON: Very well. Thank you, Mr. Knoops.

3 Mr. Jovanovic?

4 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

5 Mr. Simatovic also feels it is not necessary to have the indictment read

6 out in full. Thank you.

7 JUDGE KWON: Thank you. Very well, Mr. Jovanovic.

8 Before we have a plea from the accused, I have to make sure with

9 the Prosecution as to the counts which should be applied to this new

10 indictment. What is added in the new indictment -- is added to this

11 current indictment is the new factual allegations related to in and around

12 Srebrenica. Although they are appearing in paragraphs which is related to

13 murder, but that factual allegation is related to all the other counts.

14 In other words, all five counts should apply to this allegation. Am I

15 correct in so understanding?

16 MR. RE: The allegations are related to the counts murder,

17 number 2, murder, a crime against humanity; and murder, number 3, a

18 violation of the laws or customs of war; and Count 1, which is

19 persecutions. They don't relate to Counts 4 and 5, which is deportations

20 and inhumane acts.

21 JUDGE KWON: Can I have the indictment, legal officer?

22 Can I bring your attention, Mr. Re, to the paragraph 21 of the

23 indictment, amended indictment. 21 (a) refers to paragraphs 23 to 67,

24 which include the allegation in relation to Srebrenica. And the same is

25 true with other counts.

Page 547

1 I should have made clear before this further appearance. I wonder

2 whether you are in a position to answer the question.

3 MR. RE: I'm sorry, what is the question, if I could clarify, Your

4 Honour?

5 JUDGE KWON: Paragraphs from 19 to 22 deals with the counts of

6 persecutions. In setting out the factual allegation, you refer to murder

7 of people as described in paragraphs 23 to 67, which includes the

8 allegation related to Srebrenica.

9 MR. RE: That's correct, Your Honour.

10 JUDGE KWON: So you indicted -- you wish to indict these accused

11 on the count of persecution.

12 MR. RE: That's correct.

13 JUDGE KWON: In relation to the allegation in relation to

14 Srebrenica.

15 MR. RE: That's quite correct.

16 JUDGE KWON: But could you check what you answered? Let me take a

17 look.

18 Could you take a look at paragraph 68. So Counts 4 and 5 deal

19 with deportation and inhumane acts; i.e., forcible transfer. But you

20 included there the word of -- the name of Srebrenica there. So I wanted

21 to clarify your position.

22 MR. RE: I understand now entirely Your Honour's point. No, if

23 the word Srebrenica is there in the last count, it's not intended to

24 relate to these --

25 JUDGE KWON: Could you speak up a bit.

Page 548

1 MR. RE: It's not intended to relate to these particular fresh

2 allegations. Counts 1, 2 and -- I put it the other way around. The new

3 charges from the Srebrenica video relate to Counts 1, persecution;

4 Counts 2 and 3 which are both murder, but not Counts 4 and 5.

5 I notice Your Honour has directed our attention to the fact that

6 the word Srebrenica erroneously appears in paragraph 68. It is not

7 intended to include that in relation to Counts 4 and 5, deportation or

8 inhumane acts and forcible transfer. We will attend to that in due

9 course.

10 JUDGE KWON: I thank you for your clarification.

11 Then I will put to the accused the counts of the indictment, then

12 I would ask the accused to enter their pleas to each count I will put.

13 Please confine your answer either guilty or not guilty to each count.

14 If both of the accused could rise, please.

15 [The accused stand up]

16 JUDGE KWON: Count 1 of the amended indictment in relation to the

17 added allegation in relation to Srebrenica alleges persecutions on

18 political, racial, or religious grounds, a crime against humanity -- as a

19 crime against humanity, which is punishable under Article 5(h) and 7(1) of

20 the Statute of the Tribunal.

21 Mr. Stanisic, how do you plead?

22 THE ACCUSED STANISIC: [Interpretation] Your Honour, not guilty.

23 JUDGE KWON: Mr. Simatovic, how do you plead?

24 THE ACCUSED SIMATOVIC: [Interpretation] Not guilty, Your Honour.

25 JUDGE KWON: Count 2 alleges a murder as a crime against humanity,

Page 549

1 punishable under Articles 5(a) and 7(1) of the Statute.

2 Mr. Stanisic, how do you plead?

3 THE ACCUSED STANISIC: [Interpretation] Not guilty.

4 JUDGE KWON: Mr. Simatovic, how do you plead?

5 THE ACCUSED SIMATOVIC: [Interpretation] Not guilty, Your Honour.

6 JUDGE KWON: Finally, Count 3, alleges a murder as a violation of

7 the laws or customs of war, as recognised by Common Article 3(1)(a) of the

8 Geneva Conventions of 1949, punishable under Articles 3 and 7(1) of the

9 Statute.

10 Mr. Stanisic, how would you plea?

11 THE ACCUSED STANISIC: [Interpretation] Not guilty, Your Honour.

12 JUDGE KWON: Mr. Simatovic, how do you plead?

13 THE ACCUSED SIMATOVIC: [Interpretation] Not guilty, Your Honour.

14 JUDGE KWON: Very well. Please have a seat.

15 [The accused sit down]

16 JUDGE KWON: I'd like to note to the registrar that both accused

17 have pled not guilty on all the new charges.

18 That concludes our further appearance for today, but I wonder we

19 can take this opportunity to use a part of Status Conference to discuss

20 anything in relation to the case.

21 The Chamber is currently seized of the motion challenging on the

22 form of the indictment from the Defence and also this motion relating to

23 the health of the accused. Is there -- the Chamber is considering this

24 motion and will make its determination in due course.

25 Apart from that, I wonder if there's anything for the parties to

Page 550

1 raise at this moment.

2 Mr. Re?

3 MR. RE: There is just one small matter arising from the matter

4 Your Honour mentioned of the challenge to the indictment or the amended

5 indictment. Both accused have filed challenges. The challenge filed by

6 the Defence for Mr. --

7 JUDGE KWON: Could you speak up a bit or speak to the microphone.

8 MR. RE: It's these new microphones.

9 JUDGE KWON: Oh, yes.

10 MR. RE: I'm just getting used to them.

11 The Defence -- Defence counsel for both accused have filed

12 separate challenges. Mr. Knoops for Mr. Stanisic has filed his publicly.

13 Mr. Jovanovic has filed his confidentially. The Prosecution thinks that

14 it might have been filed confidentially in error because there seems to

15 be -- it's basically simply a legal challenge. Perhaps Mr. Jovanovic

16 would be able to address Your Honour as to why there's any need for its

17 confidentiality or whether it's been filed, as such, in error.

18 JUDGE KWON: Thank you for bringing that matter to my attention.

19 Can I hear from Mr. Jovanovic on that issue.

20 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

21 This morning I attempted to contact my learned friend to clarify

22 this. In the preliminary Defence brief, the name of a witness is

23 mentioned and part of a statement, which is confidential annex 5, and this

24 was disclosed as part of the indictment. That is why --

25 THE INTERPRETER: The interpreters are finding it very hard to

Page 551

1 follow this. The sound is very poor.

2 JUDGE KWON: Could I interrupt you, Mr. Jovanovic. Could you

3 repeat the last part of your statement again, please. Could you start

4 from "that is why."

5 MR. JOVANOVIC: [Interpretation] Because in the preliminary

6 objection in paragraph 16, the name of a witness is mentioned and part of

7 that witness's statement. It was disclosed to the Defence as confidential

8 annex B. This material is attached to the motion to amend the indictment,

9 and it was disclosed to the Defence as part of annex B, which is

10 confidential.

11 JUDGE KWON: I take it, Mr. Jovanovic, from your statement that

12 there would be no problem on your part to file a public version of your

13 motion.

14 MR. JOVANOVIC: [Interpretation] Of course, Your Honour. This

15 morning I attempted to clarify this with Mr. Re. If the Prosecution does

16 not object, the preliminary objection can be made public.

17 JUDGE KWON: I don't see any reason why not, so could you do that

18 as soon as practicable?

19 MR. JOVANOVIC: [Interpretation] Yes, Your Honour, I will do this.

20 JUDGE KWON: Thank you, Mr. Jovanovic.

21 Mr. Re, can I hear about the status of disclosure in relation to

22 these new charges?

23 MR. RE: The -- as far as I'm aware, all supporting material has

24 been disclosed. Today, we have some further information from witness

25 statements taken by the Belgrade -- the war crimes chamber of the Belgrade

Page 552

1 district court of witnesses to the incident relating to Srebrenica, the

2 subject of the indictment we're disclosing to Mr. Jovanovic and

3 Mr. Knoops. But that's the latest of it. It's up-to-date, as far as I

4 know, as of today.

5 JUDGE KWON: Thank you. Having heard that, is there anything to

6 raise for the Defence?

7 MR. KNOOPS: Thank you, Your Honour. May I take this opportunity

8 to address your Chamber also to be helpful to the Prosecution in relation

9 to the motion on the fitness to stand trial.

10 This afternoon, we have filed a reply to the Prosecution's

11 response on the fitness of the accused to stand trial, and we noted that

12 the Prosecution indicated in its response that the medical reports we

13 refer to were not disclosed during the Status Conference of the 3rd of

14 June, 2005.

15 As we remember, we have filed these reports prior to the Status

16 Conference as an addendum to the memorandum to prepare the Status

17 Conference for Your Honour, but in addition to that these reports which

18 were referred to in our initial motion were also attached as confidential

19 annexes 1 and 2. So just to clarify that the motions we refer to as being

20 submitted during or on behalf of the Status Conference of the 3rd of June

21 last year were also appended as confidential annexes 1 and 2 to the

22 current motion.

23 I think this is further clarification, perhaps also for Your

24 Honour, that these -- that these reports were also filed in support of the

25 motion which lies now for Your Honours.

Page 553

1 JUDGE KWON: Thank you for the clarification, Mr. Knoops.

2 So I take it there's no further issues to raise at this moment.

3 Then the hearing is now adjourned.

4 --- Whereupon the Further Initial Appearance

5 adjourned at 2.43 p.m.