Tribunal Criminal Tribunal for the Former Yugoslavia

Page 476

 1                          Wednesday, 17 January 2007

 2                          [Motion Hearing]

 3                          [Open session]

 4                          [The accused entered court]

 5                           --- Upon commencing at 9.21 a.m.

 6            JUDGE ORIE:  Good morning to everyone.

 7            Madam Registrar, would you please call the case.

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

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

10            JUDGE ORIE:  Thank you, Madam Registrar.

11            I see that the Prosecution is present.  Ms. Uertz-Retzlaff.

12            Mr. Jovanovic for the Defence.

13            Mr. Zelenovic, can you hear me in a language you understand?

14            THE ACCUSED: [Interpretation] Yes, yes, I can hear you.

15            JUDGE ORIE:  Mr. Zelenovic, have you had an opportunity to briefly

16    discuss with counsel the new document that has meanwhile been filed with

17    the Court?

18            THE ACCUSED: [Interpretation] Yes, yes, I had the opportunity.

19            JUDGE ORIE:  I worked on the basis of a courtesy copy that was

20    provided to the Chamber when I was not in the premises of this Tribunal.

21    I take it that this document has been filed on the 16th of January.  These

22    are the transcript pages 6560 up to and including the cover page 6580.

23    Thank you.

24            Then I have a few questions in relation to the latest filing,

25    mainly to ensure that there's no ambiguity whatsoever.  I draw the

Page 477

 1    attention to paragraph 5.4 in relation to 5.9.  Is it well understood that

 2    because of the role Mr. Zelenovic played, that he intends to plead guilty

 3    on rape and torture even where he did not personally commit it --

 4    personally rape the victims, but his role in its entirety makes him a

 5    co-perpetrator?  Is that correctly understood?

 6            MS. UERTZ-RETZLAFF:  Your Honour, as you can see, the distinction

 7    in relation to incident paragraph 5.4, he is actually here pleading to

 8    have aided and abetted in relation to the victim 75 that he did not rape

 9    on that occasion.  And he was actually at that time also not in charge,

10    but Gojko Jankovic was.  Therefore, we have here aiding and abetting.

11            JUDGE ORIE:  I have to apologise, because my question should have

12    been different.  What I should have asked you is whether 5.4 should be

13    understood as a substantial assistance by the accused in the rape of

14    victim FWS-75 amounting to aiding and abetting.  Is that a correct

15    understanding?

16            MS. UERTZ-RETZLAFF:  Yes, Your Honour, that's the understanding.

17            JUDGE ORIE:  Mr. Jovanovic, that's the understanding of the

18    Defence as well?

19            MR. JOVANOVIC: [Interpretation] Yes, Your Honours.  We see this as

20    aiding and abetting.  It's not as substantial as to amount to

21    co-perpetration.  I think that all instances where it amounts to

22    co-perpetration, it is explicitly stated so.  And in this particular case,

23    this is aiding and abetting.

24            JUDGE ORIE:  That, for example, would be true for paragraph 6.14

25    in relation to 6.6.  I'm here thinking about the two identified and two

Page 478

 1    unidentified women where Mr. Zelenovic is co-perpetrator in relation to

 2    all four women.  Is that correctly understood?

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

 4            JUDGE ORIE:  Mr. Jovanovic, that's your position as well?

 5            MR. JOVANOVIC: [Interpretation] Yes, Your Honour.

 6            JUDGE ORIE:  Then finally I turn to paragraph 9.13 -- 9.3, I'm

 7    sorry.  The rape under count 49 -- in 9.2 we see an incident where

 8    Mr. Zelenovic personally raped victim FWS-87 and the other co-perpetrators

 9    raped the other women, the other -- yes, that is FWS-75 and two other

10    women.  In 9.3, it reads, "by the foregoing acts and omissions, Dragan

11    Zelenovic committed, rape ..."  Is that co-perpetration for all rapes or

12    is it limited to victim FWS-87?

13            MS. UERTZ-RETZLAFF:  Your Honour, it is co-perpetration in

14    relation to all the victims.  As it is also expressed in 9.2,

15    co-perpetrators is particularly mentioned here.

16            JUDGE ORIE:  Mr. Jovanovic, that's your position as well?

17            MR. JOVANOVIC: [Interpretation] Your Honours, my interpretation is

18    that in this particular case this involves the rape of victim 75 by

19    Mr. Zelenovic.  It was qualified as rape.  My understanding is that he did

20    not participate in the rape of victim 87.

21            JUDGE ORIE:  Let me read 9.2.  "There, Dragan Zelenovic raped

22    FWS-87 while the other co-perpetrators raped the other women."  It is a

23    puzzle for me what you just said.  You said, "my interpretation is that in

24    this particular case this involves the rape of victim 75 by Mr.

25    Zelenovic."  It was qualified as rape.  My understanding is that he did

Page 479

 1    not participate in the rape of victim 87.  That's a puzzle to me in view

 2    of the text of the submission of yesterday.

 3            MR. JOVANOVIC: [Interpretation] I apologise, Your Honour.  Dragan

 4    Zelenovic, according to the text of the indictment, 9.2, raped victim 87.

 5    My interpretation is that co-perpetrators, that is to say, other persons

 6    raped other women on that occasion.  So co-perpetration pertains to other

 7    individuals who, on that occasion, raped other women.

 8            JUDGE ORIE:  Does he plead guilty to, or does he intend to plead

 9    guilty to co-perpetratorship, that is, shared responsibility for all the

10    rapes or just for the rape he committed in respect of victim FWS-87.

11            MR. JOVANOVIC: [Interpretation] My interpretation is that he

12    pleads guilty to raping victim 87.

13            JUDGE ORIE:  Madam Uertz-Retzlaff, it seems that, first of all, I

14    do not understand under those circumstances the use of the

15    word "co-perpetratorship," because if I understand you well, it's just

16    Mr. Zelenovic raping one woman, another one raping another woman, which

17    does not result in co-perpetratorship; whereas if you have other people

18    rape women, then you could consider, and then you'd use the word

19    co-perpetratorship, that as a shared responsibility for all the rapes,

20    just as Mr. Zelenovic seems to accept a responsibility on the other

21    occasion - I think I'm talking about 6.10 - where -- no, 6.6 it is, where

22    he did not rape, himself, any of the women, but nevertheless considers

23    himself an aider and abettor -- no, co-perpetrator in 6.6, I think it is.

24            MS. UERTZ-RETZLAFF:  Your Honour, just one correction.  In 6.6, we

25    have the similar situation that Mr. Zelenovic himself raped one woman and

Page 480

 1    the others were raped.

 2            JUDGE ORIE:  Yes.

 3            MS. UERTZ-RETZLAFF:  And also perhaps for Mr. Jovanovic's benefit,

 4    if we look at the factual basis of the plea agreement, paragraph 22,

 5    actually, Mr. Zelenovic mentioned that he and his co-perpetrators took out

 6    the four women, and that he himself raped 87 while the co-perpetrators

 7    raped the other three women.  So I think it's probably an error by

 8    Mr. Jovanovic.

 9            JUDGE ORIE:  Mr. Jovanovic, so the issue is here whether

10    Mr. Zelenovic, if he would plead guilty to this paragraph 9.3, whether he

11    exclusively sees his role as in relation to victim FWS-87 or whether, in

12    those circumstances, he accepts, as he does in 6.6, that although he raped

13    only one woman, that those present raping several women were

14    co-perpetrators and therefore share responsibility, which of course

15    would -- is what one would understand by the term "co-perpetratorship."

16    Because otherwise these are several separated offences.  It might not make

17    that much of a difference on the whole of the case, as a matter of fact,

18    but I leave it up to you to present your position.

19            MR. JOVANOVIC: [Interpretation] Your Honours, I see the difference

20    in relation to the description of events in paragraph 6.6, because in 6.6

21    and similarly in the factual basis or statement of facts, it is stated

22    that Dragan Zelenovic was the one who decided which woman will be

23    allocated to which man, so to speak.  And on that basis, he accepts his

24    role as a co-perpetrator, because that was his role in relation to other

25    victims.  He was the one who decided which woman would be assigned, so to

Page 481

 1    speak, to which man.  We don't have that type of a situation in paragraph

 2    9.2.

 3            JUDGE ORIE:  Mr. Jovanovic, that's all fine.  It's not the Bench

 4    who enters into a plea agreement; it is the parties who do so.  And now

 5    for the second time, after yesterday, a lot of confusion, a lot of

 6    misunderstanding, a lot of -- well, a lot of doubts as to what actually

 7    was the subject of the agreement ...

 8                          [Trial Chamber confers]

 9            MR. JOVANOVIC: [Interpretation] [No interpretation]

10            JUDGE ORIE:  The Chamber will give you -- yes, Mr. Jovanovic.

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

12            JUDGE VAN DEN WYNGAERT:  What you said wasn't translated, so will

13    you please repeat it.

14            MR. JOVANOVIC: [Interpretation] Yes, I apologise.  I will repeat

15    it.

16            Mr. Zelenovic will plead guilty in accordance with the text of the

17    amended and redacted indictment and as is stated in the statement of

18    facts.  Wherever it is stated that he acted as a co-perpetrator, he pleads

19    guilty to co-perpetratorship, just to avoid any further ambiguities.

20            JUDGE ORIE:  Mr. Zelenovic, you have heard what Mr. Jovanovic just

21    said.  You have the text in front of you.  I take it that you understand

22    the difference between co-perpetratorship and committing a rape where

23    others commit a rape as well.  That means that you accept that in this

24    context you share with your co-perpetrators responsibility, criminal

25    responsibility, for the rapes committed in that context, even though you

Page 482

 1    yourself raped only victim FWS-87.  You understand the difference?

 2            THE ACCUSED: [Interpretation] Yes, I understand the difference.

 3            JUDGE ORIE:  Mr. Jovanovic just told us that you'll enter a plea

 4    on the basis of your understanding of count 49, that is, in relation to

 5    9.2 in the indictment, that the understanding of entering a plea - and of

 6    course we then would expect that it would be a guilty plea - would be on

 7    the basis of accepting a shared responsibility for the whole of the events

 8    that is in relation to all women raped.  Is that correctly understood?

 9            THE ACCUSED: [Interpretation] Yes, I understand that, Your Honour.

10            JUDGE ORIE:  And you accept that?

11            THE ACCUSED: [Interpretation] Yes.

12            JUDGE ORIE:  Then I think everything has been clarified in

13    relation to what actually the plea will be about.

14            Madam Uertz-Retzlaff, I suggest that we do it the following way:

15    I take it that if Mr. Zelenovic pleads guilty to the counts specified in

16    the new document, which is not an amended indictment but just a document

17    which gives us further insight on what exactly is understood when

18    Mr. Zelenovic enters a plea, that once he has entered a plea, that you'll

19    withdraw all the remaining counts or remaining parts of the counts, and

20    you would need leave of the Chamber to withdraw these counts.  I suggest

21    to you that you apply for that leave now, that we'll grant leave, and that

22    after Mr. Zelenovic has entered his pleas on certain counts, that you'll

23    then withdraw the remainder of the counts.

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

25            JUDGE ORIE:  But that requires that you now ask our leave to

Page 483

 1    withdraw the remaining counts after Mr. Zelenovic has entered his pleas,

 2    and in accordance with the document as you have filed it, together with

 3    Mr. Jovanovic, yesterday.

 4            MS. UERTZ-RETZLAFF:  Yes, Your Honour, I can do that.  And I have

 5    to make -- draw your attention to one minor issue that relates to the plea

 6    agreement.  It's the plea agreement, paragraph 3(A).  It relates to the

 7    withdrawal of charges.

 8            JUDGE ORIE:  Yes.

 9            MS. UERTZ-RETZLAFF:  And what the intention was of the parties is

10    to withdraw all accumulated charges related to the events so that he is

11    pleading guilty to seven counts of crime against humanity and that we

12    intended to withdraw the war crime charges, the violations of the laws and

13    customs of war.

14            In this context, there is a minor inaccuracy in paragraph 3(A),

15    and we found it out yesterday when Mr. Jovanovic and I were actually

16    redacting the indictment.  We have listed here in this paragraph six

17    counts to be withdrawn.  It's actually seven counts.  What is omitted in

18    the plea agreement is count 8.

19            So today the Prosecution would request leave to be allowed to

20    withdraw the seven counts of violations of the laws and customs of war,

21    these counts being count 7, count 8, count 15, count 16, count 43, count

22    44, and count 50.  That's the -- that's what we would request the Trial

23    Chamber to allow us to do.

24            JUDGE ORIE:  We see that already reflected.  Let me just check

25    that.

Page 484

 1            MS. UERTZ-RETZLAFF:  It is reflected, actually, in the document,

 2    and that's how we saw that it was missing.

 3            JUDGE ORIE:  Yes.  Okay.  Thank you for this clarification.  I

 4    suggest that the Chamber now considers whether leave should be granted.

 5                          [Trial Chamber confers]

 6            JUDGE ORIE:  Leave is granted, which of course, Madam

 7    Uertz-Retzlaff, doesn't mean that it's yet withdrawn.  But I take it that

 8    once we have come to the selective invitation to enter a plea, that once

 9    we are at a point where all the guilty pleas you expect are there, that

10    you then withdraw the remainder of the counts, which leaves us without any

11    need to further invite Mr. Zelenovic to enter pleas.

12            Then, Mr. Zelenovic, I'll go -- first of all, you followed all the

13    discussions.  They were quite some detailed discussions.  The Chamber

14    understood both from the plea agreement and from the submission of

15    yesterday that it's your wish to change your plea in respect of many of

16    the counts of the indictment.  Is that correctly understood?

17            THE ACCUSED: [Interpretation] Yes.

18            JUDGE ORIE:  We also understood that this wish is the result of

19    a -- is part of a plea agreement in which you voluntarily entered --

20    assisted in the, most likely, in the legal negotiations with

21    Mr. Jovanovic.  Is that correct?

22            THE ACCUSED: [Interpretation] Yes.

23            JUDGE ORIE:  Yes.  Then I'll invite you to enter your new plea on

24    the counts of the indictment as I'll put to you, and I'll go through the

25    indictment in some more detail, as I usually do, in order to make sure

Page 485

 1    that you fully understand what you're pleading to.

 2            In the indictment we find in paragraphs 1 -- in paragraph 1,

 3    that's 1.1 to 1.4, we find a general background description.

 4            Then we find in paragraph 2, under 2.4, we find some further

 5    details about you, Mr. Zelenovic.  This information includes that you were

 6    a member of the Dragan Nikolic unit and that you were a soldier and a de

 7    facto military policeman.

 8            Then under 4 we find some general allegations in which it is

 9    explained - and I'm referring now to 4.5 - that witnesses and victims are

10    identified in this indictment using codenames or pseudonyms, and one

11    example now remains as given of such a pseudonym which is the example of

12    victim FWS-75.  It only explains the technique used in identifying

13    persons, victims especially, in the indictment.

14            Then the charges against you more specifically, Mr. Zelenovic, are

15    in relation to torture and rape committed in Buk Bijela, set out in

16    paragraphs 5.1 up to and including 5.5 of the indictment.  5.4 of the

17    indictment describes an event where witness FWS-75 was interrogated, was

18    interrogated among others by you.  She was warned not to lie or otherwise

19    she would be raped by soldiers and killed afterwards.  But since victim

20    FWS-75 did not answer the question sufficiently, she was taken out to

21    another room, and there at least 10 unidentified soldiers have raped her.

22    You did not personally rape the victim on that occasion.

23            The other incident described under paragraph 5 is that another

24    witness, FWS-87, a 15-year-old girl, was interrogated by you and three

25    unidentified soldiers in a room at Buk Bijela, and that during the

Page 486

 1    interrogation she was accused of -- the victim was accused of not telling

 2    the truth; that then the interrogators removed her clothing and each one

 3    raped her.  And it further gives details about the rape and the threats

 4    and violence used.

 5            This, Mr. Zelenovic, is legally qualified as -- as far as 5.4 is

 6    concerned, aiding and abetting, to torture and rape; and as far as 5.5 is

 7    concerned, committing torture and rape.  So the aiding and abetting is in

 8    relation to victim FWS-75, and the commission of torture and rape in

 9    relation to victim FWS-87 - that's the incident in paragraph 5.5 - is --

10    that's the rape and the torture.

11            Count 5 thus understood reads that you aided and abetted and/or

12    committed torture, a crime against humanity, punishable under Article 5(f)

13    of the Statute of the Tribunal.

14            Mr. Zelenovic, how do you plead to count 5, guilty or not guilty?

15            THE ACCUSED: [Interpretation] Guilty.

16            JUDGE ORIE:  Madam Registrar, would you please record the guilty

17    plea on count 5.

18            THE REGISTRAR:  Yes, Your Honour.

19            JUDGE ORIE:  Count 6, rape, a crime against humanity, punishable

20    under Article 5(g) of the Statute of the Tribunal, as explained to you

21    before.  How do you plead to count 6, Mr. Zelenovic?

22            THE ACCUSED: [Interpretation] Guilty.

23            JUDGE ORIE:  Madam Registrar, would you please record the guilty

24    plea on count 6.

25            THE REGISTRAR:  Yes, Your Honour.

Page 487

 1            JUDGE ORIE:  Then we move on Mr. Zelenovic.

 2            THE INTERPRETER:  The interpreters can barely hear the accused,

 3    Your Honour.

 4            JUDGE ORIE:  Mr. Zelenovic, you are invited to speak a bit louder.

 5    That's also because you are at a distance from the microphone now.  If you

 6    enter any further new pleas.

 7            We now move, Mr. Zelenovic, to torture and rape committed at the

 8    Foca High School.

 9            After a brief description of circumstances at the Foca High School

10    about detention and about physical/psychological circumstances, the

11    indictment becomes more detailed and describes incidents, and I start with

12    6.6; that on the 6th or 7th of July, 1992, you, in concert with other

13    co-perpetrators, have selected four women, two of them unidentified - one,

14    FWS-75 and one being FWS-87 - you have selected them out of a group of

15    detainees; that you led these women to another classroom where

16    unidentified soldiers stood waiting; and that you then decided which woman

17    should go to which man.  The women were ordered to remove their clothes,

18    and at that occasion, you, Mr. Zelenovic, you raped victim FWS-75 and the

19    other perpetrators -- co-perpetrators, as a matter of fact, raped the

20    other women.  So that's one incident including four women, you being

21    charged with co-perpetration in respect of all women.

22            Then 6.7, the incident described in 6.7 is not part of the new

23    plea, and I therefore move to 6.8, which is one incident described

24    between -- or about 8th of July and about 13th of July, where victims

25    FWS-75 and FWS-87 were taken from the Foca High School to an apartment

Page 488

 1    building called Brena.  You are charged there, Mr. Zelenovic, with having

 2    raped on that occasion both victim FWS-75 and victim FWS-87.

 3            Then there are two other occasions described under 6.9 of the

 4    indictment, two other occasions or incidents where you and several other

 5    but unidentified soldiers took victims FWS-75 and FWS-87 to Brena and that

 6    you raped them.  6.9 reads that "On these occasions, the accused raped

 7    FWS-75 and FWS-87."  So two occasions in which you committed rape against

 8    both women.

 9            Then there's another incident described under 6.10 where victims

10    FWS-75 and FWS-87 were taken by you to an abandoned house of a Muslim

11    policeman in Gornje Polje where you raped victim FWS-87.

12            By these acts I just specified to you, you are charged,

13    Mr. Zelenovic, that you committed rape and torture in relation to two

14    unidentified women and victim FWS-75 and FWS-87.

15            Count 13 deals with the torture charge.  I'll read it to

16    you.  "Torture, a crime against humanity, punishable under Article 5(f) of

17    the Statute of the Tribunal."  Mr. Zelenovic, how do you plead, guilty or

18    not guilty?

19            THE ACCUSED: [Interpretation] Guilty.

20            JUDGE ORIE:  Madam Registrar, would you please record a guilty

21    plea on count 13.

22            THE REGISTRAR:  Yes, Your Honour.

23            JUDGE ORIE:  Count 14, Mr. Zelenovic, reads:  "Rape, a crime

24    against humanity, punishable under Article 5(g) of the Statute of the

25    Tribunal."  How do you plead?

Page 489

 1            THE ACCUSED: [Interpretation] Guilty.

 2            JUDGE ORIE:  Madam Registrar, would you please record a guilty

 3    plea on count 14.

 4            THE REGISTRAR:  Yes, Your Honour.

 5            JUDGE ORIE:  We now move, Mr. Zelenovic, to events that happened

 6    at the Partizan Sports Hall.  We find them in paragraphs -- in paragraph 7

 7    of the indictment, where first a general description of the context, of

 8    the circumstances, are given.

 9            Specifically, one incident you are charged with we find in

10    paragraph 7.13, which reads that "In July 1992, witness FWS-87 was

11    frequently taken out and raped, and that on one occasion, witness FWS-87

12    was gang-raped by four men, including Dragan Zelenovic."  And this

13    happened in July 1992.

14            This results in charges against you under count 41, torture, and

15    42, rape.  And the charges are limited to victim FWS-87 only.  This

16    clarifies what is found at 7.26 of the indictment.

17            Count 41, Mr. Zelenovic, torture, a crime against humanity,

18    punishable under Article 5(f) of the Statute of the Tribunal.  In relation

19    to this one incident at Partizan Sports Hall, how do you plead, guilty or

20    not guilty?

21            THE ACCUSED: [Interpretation] Guilty.

22            JUDGE ORIE:  Madam Registrar, would you please record a guilty

23    plea on count 41.

24            THE REGISTRAR:  Yes, Your Honour.

25            JUDGE ORIE:  Count 42, rape, a crime against humanity, punishable

Page 490

 1    under Article 5(g) of the Statute of the Tribunal.  Again, Mr. Zelenovic,

 2    in relation to the event just described, how do you plead?

 3            THE ACCUSED: [Interpretation] Guilty.

 4            JUDGE ORIE:  Madam Registrar, would you please record the guilty

 5    plea on count 42.

 6            THE REGISTRAR:  Yes, Your Honour.

 7            JUDGE ORIE:  Then we move to the last count brought against you,

 8    Mr. Zelenovic.

 9            The specific event is described in 9.2 of the indictment, which

10    I'll read to you:  "On or about the 30th of October, 1992, the three

11    above-mentioned perpetrators, that is Dragan Zelenovic, Gojko Jankovic and

12    Janko Janjic, took FWS-75, FWS-87 and two other women into an apartment

13    near the fish restaurant in Foca."  There, Dragan Zelenovic, you raped

14    FWS-87, while the other co-perpetrators raped the other women.

15            By these acts, Mr. Zelenovic, by these acts and omissions, you are

16    charged with having committed rape, co-perpetration of rape, in respect of

17    all these women, although you personally raped only - that means the act

18    of rape was committed by you only - in respect of witness FWS-87.

19            In respect of all these four women, and understanding the charges

20    to be co-perpetrators, on count 49, rape, a crime against humanity,

21    punishable under Article 5(g) of the Statute of the Tribunal, how do you

22    plead, Mr. Zelenovic?

23            THE ACCUSED: [Interpretation] Guilty.

24            JUDGE ORIE:  Madam Registrar, would you please record the guilty

25    plea on count 49.

Page 491

 1            THE REGISTRAR:  Yes, Your Honour.

 2            JUDGE ORIE:  Mr. Zelenovic, the Chamber will have to satisfy

 3    itself that the guilty pleas you have now entered have been made

 4    voluntarily, that no threat or coercion was exercised, that you're

 5    informed, that your guilty pleas are not equivocal, and that there is a

 6    sufficient factual basis for the crime and for your participation in it.

 7            We have spent a lot of time on a proper understanding of what you

 8    actually pleaded guilty to, and the Chamber, until now, has no reason to

 9    assume that your plea was not made voluntarily or that any threats or

10    coercion was exercised, that your plea was entered uninformed, that your

11    plea was not unequivocal, that there was no sufficient factual basis for

12    the crime and for your participation.

13            If there's anything one of the parties would like to submit in

14    relation to these requirements, they are invited to do so at this moment.

15            Madam Uertz-Retzlaff.

16            MS. UERTZ-RETZLAFF:  Your Honour, nothing from the Prosecution.

17            JUDGE ORIE:  Mr. Jovanovic.

18            MR. JOVANOVIC: [Interpretation] Likewise for the Defence, Your

19    Honours.

20            JUDGE ORIE:  Yes.  The Defence includes counsel and accused.

21            Mr. Zelenovic, may I take it that you share the view of

22    Mr. Jovanovic?

23            THE ACCUSED: [Interpretation] Yes, that's right.

24                          [Trial Chamber confers]

25            JUDGE ORIE:  Mr. Jovanovic, the newly entered pleas are accepted

Page 492

 1    by the Trial Chamber.  This means that the Chamber makes a corresponding

 2    finding of guilt on each of these counts, and again the findings of guilt

 3    should be understood together with the document filed yesterday, where the

 4    details were set out, and should also be understood in light of the

 5    clarifications that have been given during today's hearing.

 6            Mr. Zelenovic, this Chamber finds you guilty under count 5 of the

 7    indictment, torture, a crime against humanity, punishable under Article

 8    5(f) of the Statute of the Tribunal.

 9            This Chamber finds you guilty on count 6, rape, a crime against

10    humanity, punishable under Article 5(g) of the Statute of the Tribunal.

11            The Chamber, Mr. Zelenovic, finds you guilty under count 13,

12    torture, a crime against humanity, punishable under Article 5(f) of the

13    Statute of the Tribunal.

14            And the Chamber finds you guilty under count 14, rape, a crime

15    against humanity, punishable under Article 5(g) of the Statute of the

16    Tribunal.

17            The Chamber further finds you guilty, Mr. Zelenovic, under count

18    41, torture, a crime against humanity, punishable under Article 5(f) of

19    the Statute of the Tribunal, and count 42, rape, a crime against humanity,

20    punishable under Article 5(g) of the Statute of the Tribunal.

21            Finally, Mr. Zelenovic, this Chamber finds you guilty under count

22    49 of the indictment, rape, a crime against humanity, punishable under

23    Article 5(g) of the Statute of the Tribunal.

24            Madam Uertz-Retzlaff, may I take it that this is the moment where

25    you will use the leave granted to you to withdraw the remaining counts of

Page 493

 1    the indictment?

 2            MS. UERTZ-RETZLAFF:  Yes, Your Honour.  With the leave of the

 3    Trial Chamber, the Prosecution withdraws the remaining counts, them being

 4    count 7, count 8, count 15, count 16, count 43, count 44, and count 50.

 5            JUDGE ORIE:  Yes.  And I take it also those parts of the counts

 6    that were not covered by the newly entered guilty pleas, the Chamber

 7    would, in order to avoid whatever confusion, would like you to file a

 8    precise specification of all the counts withdrawn.

 9            MS. UERTZ-RETZLAFF:  Yes, Your Honour, I will do that.

10            JUDGE ORIE:  Yes.  Then there's no need at this moment to deal

11    with any of the other counts, them being withdrawn and no new pleas

12    entered there.

13            Next issue is the scheduling of a sentencing hearing.  Could I

14    hear from the parties how much time -- Mr. Zelenovic, you may be seated.

15    We're dealing now with practical and technical matters.

16            Can I get an indication from the parties how much time they need

17    for the preparation of a sentencing hearing.

18            MS. UERTZ-RETZLAFF:  Your Honour, the Prosecution does not need

19    much time because the Prosecution does not intend to call witnesses in

20    that hearing.  So we actually need only, I would say, two weeks to file

21    the sentencing briefs.

22            JUDGE ORIE:  Two weeks for filing the sentencing brief.  Yes.

23            MS. UERTZ-RETZLAFF:  But I assume that --

24            JUDGE ORIE:  Yes.  Of course I will ask Mr. Jovanovic how much

25    time he would use and what he intends to present in support of the

Page 494

 1    position of the Defence.

 2            MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.  I would

 3    ask for a longer period of time, perhaps around 30 days.  The reason being

 4    that when presenting our case, when presenting our position pertaining to

 5    our proposal for the sentence, I would like to provide some details about

 6    the health condition of the accused, which is not great.  He is under

 7    observation of doctors at the Detention Unit.  We are expecting to receive

 8    his medical history.  And let me just inform you that Mr. Zelenovic

 9    recently was hospitalised; therefore, his health condition is rather poor.

10            In addition to supporting our sentence proposal with our

11    arguments, we would also like to enclose the opinion of a medical expert

12    as well as an opinion of a psychologist who would speak of traumas that

13    victims suffered.  Given that Mr. Zelenovic pleaded guilty to these

14    crimes, it will not be necessary for the victims to come again to testify

15    here and to be traumatised again.  This is something that we want to

16    support with the finding of our expert psychologist, and we need more time

17    for that than the two weeks that the Prosecution asked for.

18            JUDGE ORIE:  How much time would you need?

19            MR. JOVANOVIC: [Interpretation] Your Honours, we believe that four

20    weeks would be sufficient.

21            JUDGE ORIE:  The parties are granted four weeks to file their

22    pre-sentencing briefs.  Of course it makes no sense at this moment to have

23    a date already set, but the registrar is instructed to consult with the

24    Chamber in the near future for setting a date for a sentencing hearing.

25            Mr. Jovanovic, do you intend to -- you said that you did not want

Page 495

 1    to call victims as witnesses.  Do you have in mind at all to call any

 2    witnesses for the purposes of sentencing?

 3            MR. JOVANOVIC: [Interpretation] No, Your Honours, except for the

 4    experts, should the Chamber find this necessary, the psychologist whose

 5    expert report would be enclosed with our brief.  We can call the expert,

 6    if necessary, for him or her to answer questions by the Bench or the

 7    Prosecution.

 8            JUDGE ORIE:  If the expert report would be submitted to the

 9    Chamber, then, of course, the Prosecution could, I would say, in analogy

10    with Rule 94 bis, could express whether it accepts the report, whether it

11    wants the expert to be called for -- to be cross-examined.  Of course the

12    Chamber, even if the Prosecution would not wish to call the expert, the

13    Chamber might have the wish to call the expert.  So let's first wait and

14    see what the expert report tells us, and then we can decide whether

15    there's any need to have the expert to be called.

16            Thank you for that.  So the four weeks -- today we are the 17th of

17    January.  Four weeks from now would be -- Madam Registrar, the exact date,

18    four weeks would be?  I haven't got my agenda with me here.  That would be

19    the 15th of February?

20            THE REGISTRAR:  14th of February.

21            JUDGE ORIE:  So sentencing briefs to be filed not later than the

22    14th of February.

23            Are there any other motions?  Are there any matters to be raised

24    at this moment, apart from - and I'll pay some attention to that - the

25    health of Mr. Zelenovic?  We'll ask him before we adjourn whether the

Page 496

 1    Chamber should be informed about details of what happened to him.

 2            Yes, Madam Uertz-Retzlaff.

 3            MS. UERTZ-RETZLAFF:  Yes, Your Honour, there is one matter.

 4            JUDGE ORIE:  Yes.

 5            MS. UERTZ-RETZLAFF:  And I'll refer to our confidential filing,

 6    the confidential joint motion for a consideration of guilty plea, which

 7    was filed on the 14th of December, 2006.  We have actually mentioned

 8    already in that motion that during this hearing, the parties would request

 9    that a Trial Chamber's order, that the documents filed in that motion be

10    made public --

11            JUDGE ORIE:  Yes.

12            MS. UERTZ-RETZLAFF:  -- because we filed it confidentially, but

13    there is no need now any longer for this confidentiality.

14            JUDGE ORIE:  Yes.

15            Mr. Jovanovic, any objection against this?

16            MR. JOVANOVIC: [Interpretation] No, Your Honour.  Thank you.

17            JUDGE ORIE:  Yes.

18                          [Trial Chamber confers]

19            JUDGE ORIE:  The Trial Chamber, having in mind the requirement of

20    transparency as already expressed in Rule 62 ter, under (C), grants your

21    request, Madam Uertz-Retzlaff.  Therefore, the confidentiality of filed

22    documents as mentioned by you now are public documents.

23            Any other matter?

24            MS. UERTZ-RETZLAFF:  No, Your Honour.

25            JUDGE ORIE:  Mr. Jovanovic?

Page 497

 1            MR. JOVANOVIC: [Interpretation] Nothing else, Your Honour.  Thank

 2    you.

 3            JUDGE ORIE:  Mr. Zelenovic, before we adjourn, it was mentioned

 4    that you recently were hospitalised and that your health situation was not

 5    very good.  Apart from what role that may play in sentencing, if you'd

 6    like to inform the Chamber whether or not, in private session, about it,

 7    if you consider it good for the Chamber to know what health problems you

 8    are facing at this moment, please inform us.  At the same time, I say that

 9    there's no duty, no obligation, to inform us.  It's up to you whether you

10    consider it wise to inform us.

11            THE ACCUSED: [Interpretation] I am being treated now at the

12    Detention Unit.

13            JUDGE ORIE:  Yes.  I understand your answer to be that your

14    medical problems are taken care of and that further details about your

15    health problems are not such that the Chamber should know about it.  Is

16    that correctly understood?

17            THE ACCUSED: [Interpretation] My Defence counsel will inform you.

18    My Defence counsel talked to the doctor.

19            JUDGE ORIE:  Mr. Jovanovic, do you see any reason at this moment

20    to inform the Chamber?  If you'd prefer to do so in private session,

21    please ask to go into private session.  If you say no, it's not relevant,

22    then we'll leave it up to you.

23            MR. JOVANOVIC: [Interpretation] Your Honour, in my brief,

24    sentencing brief, I will inform you of the medical history and everything

25    else that is necessary.  As for the treatment that Mr. Zelenovic is

Page 498

 1    receiving, I think that everything is in order.  I'm in contact with the

 2    relevant authorities in the Detention Unit.  Mr. Zelenovic is receiving

 3    the necessary treatment.

 4            JUDGE ORIE:  Thank you very much for this information.

 5            We will adjourn sine die.

 6                           --- Whereupon the Motion Hearing adjourned

 7                          at 10.21 a.m. sine die