Tribunal Criminal Tribunal for the Former Yugoslavia

Page 381

 1                          Thursday, 13 July 2006

 2                          [Further Appearance]

 3                          [Open session]

 4                          [The accused entered court]

 5                          --- Upon commencing at 10.29 a.m.

 6            JUDGE ORIE:  Good morning to everyone.

 7            Mr. Registrar, would you please call the case.

 8            THE REGISTRAR:  Good morning, Your Honours.  This is case number

 9    IT-96-23/2-I, the Prosecutor versus Dragan Zelenovic.

10            JUDGE ORIE:  Thank you, Mr. Registrar.

11            Could I have the appearances.  Prosecution first.

12            MS. UERTZ-RETZLAFF:  Good morning, Your Honour.  For the

13    Prosecution, Hildegard Uertz-Retzlaff, and I appear here with case manager

14    Verica Balikic.

15            JUDGE ORIE:  Thank you, Ms. Uertz-Retzlaff.

16            For the Defence.

17            MR. VAN DER SPOEL:  Good morning, Your Honour.  Tjarda Van der

18    Spoel, duty counsel for Mr. Zelenovic.

19            JUDGE ORIE:  Yes.  I see that Mr. Zelenovic is present as well.

20    There seems to be a technical problem.

21            Do you hear me in a language you understand, Mr. Zelenovic?

22            THE ACCUSED:  [Microphone not activated].

23            JUDGE ORIE:  Yes.  I take it that you missed my first words.  I

24    asked the registrar to call the case, and then I asked the parties to

25    present themselves; Madam Uertz-Retzlaff for the Prosecution, Mr. Tjarda

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 1    Van der Spoel as duty counsel.

 2            You may be seated, Mr. Zelenovic.

 3            Mr. Zelenovic, we are here this morning to invite you to enter a

 4    plea -- you may be seated.  You don't have to stand all the time.  To

 5    invite you to enter a plea.  You made your initial appearance on the 13th

 6    of June, and you then have chosen to delay entering a plea.  According to

 7    the Rules, you're allowed to do so for 30 days.  Therefore, we'll proceed.

 8            First of all, Mr. Zelenovic, you are still represented or assisted

 9    by duty counsel, Mr. Van der Spoel.  I know that you wanted to be

10    represented by another lawyer.  I also do understand that that would be

11    Mr. Ognjanovic.  Is that correct?

12            THE ACCUSED:  [Microphone not activated].

13            JUDGE ORIE:  Mr. Zelenovic, did you have an opportunity to speak

14    with Mr. Ognjanovic until now?

15            THE ACCUSED: [Interpretation] Yes.

16            JUDGE ORIE:  Did you discuss with him the indictment that is

17    brought against you?

18            THE ACCUSED: [Interpretation] No.

19            JUDGE ORIE:  So therefore you then would not have discussed either

20    whether you want to enter a plea of guilty or not guilty, or did you have

21    an opportunity to speak with him about that?

22            THE ACCUSED: [Interpretation] Yes.  I spoke to him on the phone

23    yesterday.  He is supposed to arrive at noon today.

24            JUDGE ORIE:  Yes.  We had scheduling problems to the extent that

25    this hearing was scheduled.  From what I do understand, Mr. Ognjanovic did

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 1    not fully yet qualify to be assigned as counsel.

 2            Let me ask Mr. Van der Spoel whether he has had any communication

 3    with Mr. Ognjanovic.

 4            MR. VAN DER SPOEL:  No, Your Honour, I have not.

 5            I was quite worried about the lack of assignment of Defence

 6    counsel to Mr. Zelenovic.  That's why I've communicated quite often with

 7    OLAD and visited Mr. Zelenovic last week, Friday, to discuss his position

 8    again, also if he wanted to discuss the indictment or other things that

 9    could be of importance.  He said:  No, I am waiting for my fully assigned

10    counsel.  Then again I phoned OLAD on Friday and then they told me that

11    yesterday there should be a kind of language course or examination.  I was

12    informed yesterday afternoon that that did not happen, and that next week

13    again there will be another chance for the fully assigned counsel perhaps

14    to pass that examination.

15            And that's the situation as I see it, Your Honour.

16            JUDGE ORIE:  Yes.

17            Mr. Zelenovic, please be seated.  It's not necessary to stand all

18    the time.

19            Did you read the indictment in a version -- in your own language?

20            THE ACCUSED: [Interpretation] Yes.

21            JUDGE ORIE:  Did you understand what the charges against you are?

22            THE ACCUSED: [Interpretation] Yes.

23            JUDGE ORIE:  Upon the basis of your telephone conversation you

24    said you had yesterday with Mr. Ognjanovic, do you feel that you are in a

25    position to enter a plea, that is to tell me whether you consider yourself

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 1    to be guilty or not guilty?

 2            THE ACCUSED: [Interpretation] He's supposed to arrive at noon, and

 3    we are supposed to meet at 1.00.

 4            JUDGE ORIE:  Yes, Mr. Zelenovic, but --

 5            THE ACCUSED: [Interpretation] And he told me:  If you have to

 6    enter a plea, enter a plea of not guilty, if you have to.  However, I

 7    would like to see him first.  He did instruct me to plead not guilty if I

 8    am asked to enter a plea before I meet with him.

 9            JUDGE ORIE:  Yes.  I suggest to the parties -- I'm informing the

10    parties that I'm considering not to hear any plea today under the present

11    circumstances.  It would be -- well, let's call of it a kind of an

12    emergency not guilty plea, which doesn't make much sense under the present

13    circumstances.  At the same time, I'm very concerned about the loss of

14    time because if you have no plea this could delay further working on the

15    case, both for Prosecution and Defence.

16            I also keep in mind that we're about to start a recess, which

17    might cause a situation in which no substantial progress will be made

18    anyhow.  So I'd like to hear from you, Madam Uertz-Retzlaff, and from you,

19    Mr. Van der Spoel, whether you would be in favour of a decision not to

20    hear any plea by the defendant today.

21            MS. UERTZ-RETZLAFF:  Your Honour, it's unfortunately -- the

22    defendant didn't have time to discuss the matters with his chosen counsel.

23    However, I think the Rule 62 doesn't really allow for delaying the plea

24    any further because I think it's very firm about the 30 days from the

25    initial appearance, and that's actually today.  And therefore, I think the

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 1    best cause that I would suggest would be that you, Your Honour, declare a

 2    not guilty plea on behalf of the Trial Chamber.

 3            JUDGE ORIE:  Yes.  Madam Uertz-Retzlaff, Rule 62 is one rule, but

 4    Rule 127 -- would Rule 127 not apply in relation to Rule 62, in your view?

 5            MS. UERTZ-RETZLAFF:  Your Honour, I think it may apply, yes.

 6            JUDGE ORIE:  So therefore, Rule 62 might not be that cogent for me

 7    to enter a plea on behalf of the accused if he does not enter a plea.  By

 8    the way, he said that if he's -- has to enter a plea, he will enter a plea

 9    of not guilty, which would give the same result.  But we then agree that

10    under Rule 62, together with Rule 127, I'm not -- I don't have to force


11    the accused to enter a plea today; and if he doesn't, to enter a plea on

12    his behalf, which would be a not guilty plea.

13            MS. UERTZ-RETZLAFF:  Yes, Your Honour.

14            JUDGE ORIE:  Yes, Mr. Van der Spoel.

15            MR. VAN DER SPOEL:  I think your observations are quite correct

16    concerning Rule 127 and 62.  And a good cause, of course, is something

17    that you can't blame my client for.  He always wanted assigned counsel,

18    and due to the proceedings, he hasn't been able to communicate with the

19    chosen counsel, and he is very clear in his -- in his view that he does

20    not want me to advise him.  I've tried on several occasions, tried to

21    discuss the indictment with me.  But quite frankly -- and he said:  Yes,

22    but you won't defend me in Bosnia and Herzegovina.  Perhaps you could

23    defend me here but not there.  That's one of the reasons he wants a lawyer

24    not only to defend him here at the ICTY in The Hague, but also if his case

25    will be referred to Bosnia and Herzegovina.

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 1            So I think that your proposition is a very good one, that you

 2    delay the decision until my client has been able to discuss his situation

 3    and the indictment with his assigned counsel.

 4            JUDGE ORIE:  Yes.  This of course, Mr. Van der Spoel, is almost an

 5    implicit not guilty plea because I do not remember that once in this

 6    Tribunal a case was referred after an accused had entered a guilty plea.

 7    Usually sentencing is dealt with by this Tribunal.

 8            So therefore, it's -- from everything I hear at this moment it is

 9    a likelihood that there will be a not guilty plea entered, both from what

10    you say and from what Mr. Zelenovic tells us.  So therefore, from a

11    practical point of view it might not make that much of a difference, apart

12    from disclosure perhaps.

13            Disclosure has not been done yet?

14            MS. UERTZ-RETZLAFF:  Your Honour, disclosure has been done.

15            JUDGE ORIE:  Has been done.

16            MS. UERTZ-RETZLAFF:  To the accused himself.

17            JUDGE ORIE:  Today to the accused himself?

18            MS. UERTZ-RETZLAFF:  No, actually yesterday.

19            JUDGE ORIE:  Yesterday.  Last time I made a mistake on the 13th of

20    June about duty counsel, et cetera, what was still under discussion with

21    the Association of Defence Counsel.  I remembered the discussions.  I'd

22    forgotten that it had not resulted in any change of the Rules and it still

23    has not resulted in any change of the Rules.  That would also mean that

24    the time-limit for preliminary motions would then start as from today.

25            MS. UERTZ-RETZLAFF:  Yes, Your Honour, that's correct.

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 1            JUDGE ORIE:  That also means that Mr. Ognjanovic, if he will be

 2    assigned counsel, if he takes over responsibilities from you, Mr. Van der

 3    Spoel, he should be informed that since disclosure has taken place today

 4    that he should keep in mind the time-limits set for any preliminary

 5    motions under the Rules.  May I take it that you'll communicate with

 6    Mr. Ognjanovic about this matter?  I do understand that he's passing a

 7    language test, which at least gives us a fair expectation that you'll be

 8    able to communicate with him?

 9            MR. VAN DER SPOEL:  Your Honour, I can promise you I will phone

10    with OLAD and see if they can communicate with the chosen counsel.  If

11    not, I will communicate myself with the chosen counsel to explain these

12    proceedings and, indeed, that yesterday the disclosure has taken place.

13            JUDGE ORIE:  Yes.

14            Mr. Zelenovic, the fact that your counsel of choice has not,

15    either directly or indirectly, discussed with you the indictment, has not

16    advised you and has not gone with you through all the elements of the

17    indictment advising you on whether to enter a guilty plea or a not guilty

18    plea is of great concern to the Trial Chamber.  You had 30 days, and

19    counsel, who was not qualified yet, could have taken steps in order to

20    avoid further days.  He should have been aware of the time-limits set by

21    Chamber, time-limit under Rule 62; he also should have been aware and

22    should have contacted Mr. Van der Spoel if he wanted a variation of the

23    time-limits under Rule 127, because Rule 127 asks for a motion and good

24    cause being shown.  So it's of great concern to this Chamber that the

25    counsel of preference has not, in anticipation of any assignment, has done

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 1    what he should have done.

 2            The Registry is invited to send this portion of the transcript to

 3    Ognjanovic once he is assigned, and Mr. Van der Spoel is invited to ensure

 4    that Mr. Ognjanovic is aware of this criticism I'm expressing at this

 5    moment.

 6            Of course we could, at this moment, choose the very formal route

 7    that I would tell you that you have to enter a plea, or if you would not

 8    do so that I would enter a plea on your behalf.  I prefer to hear a plea

 9    entered after you have had an opportunity to discuss matters with your

10    counsel of preference.

11            Therefore, although Rule 127 requires a motion, I consider it in

12    the interests of justice that you'll be given another opportunity to enter

13    a plea.  I will look after it that the hearing on which I'll hear that

14    plea will be scheduled immediately after the recess, independent on

15    whether your counsel has made any arrangements for his holidays.  I do not

16    want to wait one minute more.  Of course, preferably, we would have

17    scheduled another plea hearing tomorrow.  I will even look at it whether

18    it's possible, but until now we did our utmost best to have another

19    hearing tomorrow, but for scheduling reasons it was impossible.  I would

20    even explore an opportunity to have a very early hearing, perhaps at 8.00

21    or 8.30, so that we will not suffer any further delays.  But until now it

22    turned out to be practically impossible, but I'll give it another effort.

23            So therefore, additional time will be given to you to discuss a

24    plea with counsel of preference.  Counsel of preference should communicate

25    with Mr. Van der Spoel because I do not expect him to be assigned before

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 1    tomorrow, although you never know, but I do not expect him to be assigned.

 2    Therefore, he should communicate with Mr. Van der Spoel after the meeting

 3    you have later today what the advice is.  Mr. Van der Spoel is invited to

 4    actively initiate such communication.  At the earliest possibility, we'll

 5    schedule a hearing, if possible tomorrow, but if not immediately after the

 6    recess, the recess that ends on the 7th of -- the recess that ends the

 7    weekend before the 7th of August.

 8            Mr. Zelenovic, have you understood my decision, that is to give

 9    you further time, either until tomorrow or certainly not later than

10    immediately after the recess?

11            THE ACCUSED: [Interpretation] Yes, yes.  I can enter a plea

12    tomorrow.  He told me it would take us three hours to discuss things, and

13    after that you will be able to enter a plea.  In other words, I'm sure

14    that I can enter a plea tomorrow.  He should be here at noon talking to

15    me.

16            JUDGE ORIE:  Mr. Zelenovic, counsel should have been aware that

17    this is the last of the 30 days, I think.  Counsel should have been aware

18    that if he arrives only midday that he might be late, and the Trial

19    Chamber did its utmost best to schedule for tomorrow but we had practical

20    problems.  I mean, we've got three courtrooms, they're occupied the whole

21    of the day by different Chambers.  So therefore, counsel should be aware

22    that it's the Court that schedules the hearings and not counsel.  But I do

23    understand that you're willing to cooperate and to enter a plea tomorrow

24    if we can find a courtroom.

25            Then is there anything else related to your detention situation or

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 1    to your health which you would like to raise?

 2            THE ACCUSED: [Interpretation] No, no, everything is normal.

 3            JUDGE ORIE:  Then we'll adjourn and the parties should remain

 4    stand-by to receive information on when a new hearing will take place,

 5    either tomorrow or immediately after the recess.

 6            We stand adjourned.

 7                          --- Whereupon the Further Appearance

 8                          adjourned at 10.53 a.m.