Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Tuesday, 3 July 2007

 2                          [Further appearance]

 3                          [Open session]

 4                          [The accused entered court]

 5                          --- Upon commencing at 9.03 a.m.

 6            JUDGE PROST:  Good morning, Madam Registrar.  Could you call the

 7    case, please.

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

 9    IT-05-88/2-I, the Prosecutor versus Zdravko Tolimir.

10            JUDGE PROST:  I'm not sure I have sound here, actually.

11            THE INTERPRETER:  Testing.

12            JUDGE PROST:  Better.  Thank you.  Good morning.  Good morning,

13    Mr. Tolimir.  Can you hear me?

14            THE ACCUSED: [Interpretation] I cannot hear interpretation.  I'm

15    not getting interpretation.

16            JUDGE PROST:  We are going to -- could we have -- it's working

17    now, Mr. Tolimir?

18            THE ACCUSED: [Interpretation] Yes, thank you.

19            JUDGE PROST:  And please if at any time during the course of the

20    proceedings -- if at any time during the course of the proceeding,

21    Mr. Tolimir, you're not receiving interpretation, please let me know

22    immediately.  Okay.  Thank you.

23            May I have the appearances, please?

24            MR. McCLOSKEY:  Good morning, Madam President, Peter McCloskey and

25    Nelson Thayer and Janet Stewart.

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 1            JUDGE PROST:  Thank you.  Good morning to you Mr. McCloskey and to

 2    all your team.

 3            For the Defence.

 4            MR. SAHOTA:  Good morning Madam President, Roger Sahota duty

 5    counsel for Mr. Tolimir.

 6            JUDGE PROST:  Thank you, good morning Mr. Sahota.

 7            Mr. Tolimir, I just wish to confirm, it's my understanding, that

 8    you wish is to continue to act on your own behalf during these preliminary

 9    proceedings and that Mr. Sahota is here as duty counsel throughout the

10    proceedings, but that you will be acting for yourself.  Is that correct,

11    Mr. Tolimir?

12            THE ACCUSED: [Interpretation] That is correct, I have stated that

13    already.

14            JUDGE PROST:  Thank you very much.

15            Mr. Tolimir, just to inform you that pursuant to the order of the

16    Presiding Judge of Trial Chamber II on the 14th of June, I have been

17    designated as the Pre-Trial Judge in this case.

18            Now, before we proceed to the question of a plea this morning, I

19    want to address first of all the amended indictment that has been

20    submitted by the Prosecution.

21            Mr. Tolimir, you will recall, at the initial appearance that you

22    made on the 4th of June, I raised with the Prosecution an issue regarding

23    the indictment and that related to an inconsistency between the particular

24    counts of the indictment and the final sentence of the indictment and

25    whether or not Article 7(3) on command responsibility was applicable.

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 1            At that time, the Prosecution clarified that in fact the reference

 2    in the last sentence to 7(3) was simply a mistake and they undertook to

 3    file a new amended indictment with that correction being made.

 4            Subsequently, on the 12th of June, Mr. Tolimir, the Prosecution

 5    did file the Prosecution's submission of an amended indictment with

 6    attached annexes.  And pursuant to Rule 50 of the rules of procedure, the

 7    Prosecution sought leave to amend the original indictment against you.

 8            Now, there were four corrections in that amended indictment that

 9    was submitted, three of which were corrections of purely typographical

10    errors, editorial errors.  The only substantive change which again arose

11    simply from a mistake was the deletion from the indictment of any

12    reference to command responsibility under Article 7(3) of the statute.

13            Now, I understand that attempts have been made to serve you,

14    Mr. Tolimir, with a copy of these specific amendments and the

15    Prosecution's submission explaining those amendments in your own language,

16    but I understand there's been some difficulty with you accepting that

17    service.  Do you have anything you want to say to me about the service of

18    that amended indictment, Mr. Tolimir?

19            THE ACCUSED: [Interpretation] Your Honour, Presiding Judge, ladies

20    and gentlemen, I did not receive the amended indictment because I expected

21    that my permanent counsel would be appointed in the meantime.  I have

22    already submitted the name of that counsel to the Registry of this

23    Tribunal.  Towards the end of the weekend, I received a reply from the

24    Registry that they do not accept the counsel I wish to have appointed.  I

25    expected meanwhile that the counsel would receive the amended indictment

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 1    instead of me.

 2            JUDGE PROST:  Okay.  Thank you, Mr. Tolimir.  Well, we'll deal

 3    with other issues relating to that or other matters later on but for the

 4    moment, then, I simply want to confirm with you, do you understand the

 5    nature of the amendments that the Prosecution has made to the indictment?

 6    In essence the only change of substance is that they are clarifying the

 7    indictment and making it apparent that you're -- the only allegation in

 8    terms of responsibility is that under Article 7(1) of the statute.  Do you

 9    understand that, Mr. Tolimir?

10            THE ACCUSED: [Interpretation] I have not seen the amended

11    indictment, and I am not in a position to grasp all those Articles that

12    the Prosecution invokes and that you have just mentioned.  I would like my

13    counsel, who is now here in the courtroom, Mr. Nebojsa Mrkic, to explain

14    that to me later so that I would be able to understand all the legal

15    qualifications involved in the amended indictment.

16            JUDGE PROST:  Thank you, Mr. Tolimir.  Well, what I'm going to

17    suggest here is you can certainly discuss the amended indictment, as you

18    wish, with Mr. Mrkic or others but the application has been made by the

19    Prosecution for this amendment, and I am going to decide on the proposal

20    and then it will be explained to you again.  As I've indicated to you,

21    this change is simply the correction of an error and it operates to remove

22    a form of responsibility from the indictment and to focus the indictment

23    and narrow it to one form of responsibility.

24            Mr. McCloskey, I take it that you wouldn't have any further

25    submissions on the amended indictment, would you?

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 1            MR. McCLOSKEY:  No.

 2            JUDGE PROST:  Thank you.

 3            Therefore, having heard the parties with respect to the issue of

 4    the amended indictment, and taking into account that the nature of the

 5    amendments have been explained and can be explained again to the --

 6    Mr. Tolimir, that copies of the amendments have been made available to the

 7    accused in his language, albeit for the moment he is not prepared to

 8    accept them until counsel is appointed, that the deletion of the reference

 9    to Article 7(3) serves to correct and clarify the indictment and operates

10    in essence to the benefit of the accused and there being no issue as to

11    the supporting evidence given the nature of the changes made to the

12    indictment, pursuant to Rule 50(A)(i)(c) of the rules leave to amend the

13    indictment is granted and the amended indictment filed on the 12th of June

14    2007 is the operative indictment in the present case.

15            Mr. Tolimir, I appreciate that you would like this matter

16    explained to you again.  I have allowed the Prosecution to amend the

17    indictment as indicated, and you can take the matter up later with your

18    permanent counsel hopefully once he or she is appointed and obviously you

19    may discuss it with others in the interim.

20            I'm going to move then to the question of the indictment itself,

21    Mr. Tolimir.  At your last appearance, we discussed the indictment and we

22    confirmed that you had received a copy of the indictment in your own

23    language, and also that you had an opportunity to review it and your

24    understanding of it was confirmed on the record at the last hearing.

25            The only change since then are the amendments which I just

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 1    outlined to you in the previous matter.  You will recall from your last

 2    appearance that you were then given the opportunity, as is your right, to

 3    have the indictment read out to you in full.  Now, on that occasion, you

 4    waived the right and indicated that you had an opportunity to review the

 5    indictment.  I would like to offer to you again, at this hearing, the

 6    opportunity to have the amended indictment read out in full to you.

 7            Can you advise me, do you wish to have the amended indictment read

 8    out to you in full today or are you prepared to waive that right,

 9    Mr. Tolimir?

10            THE ACCUSED: [Interpretation] Thank you.  I said last time that I

11    wished to have clarified first the manner of my arrest before we go into

12    any further proceedings, and to have it clarified in light of the rules of

13    procedure of this Tribunal, and I asked you to undertake an inquiry into

14    all the circumstances of my illegal arrest and transfer to this Tribunal.

15    I said also that I only linguistically understood the indictment because

16    at the time it was topical, I was at the hospital, but I didn't understand

17    it legally, and I did state also whom I wished to have appointed as my

18    permanent counsel and that matter has not been resolved yet.  Only with a

19    permanent counsel can I really discuss the indictment.

20            In that connection, I also asked to receive a transcript of the

21    previous hearing so that I can have it on my own file as a document and to

22    have my own statement at that conference transcribed.  I already stated

23    all that I wished for and what I expected, but I have received no

24    response, so I would like you to explain to me what the situation is in

25    light of my stated wishes before we go any further.

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 1            JUDGE PROST:  Thank you, Mr. Tolimir.

 2            With respect to the issue that you've raised regarding the manner

 3    of your arrest, which you did raise on the previous occasion that you

 4    appeared, that is certainly a matter which you may bring to the attention

 5    of the Trial Chamber that has been constituted for pre-trial matters, but

 6    you would need to do so in the form of an actual written motion that the

 7    Trial Chamber can consider.  So if you wish to pursue that matter further

 8    as indicated to you last time, it is certainly open to you to bring a

 9    written motion to the Chamber for the consideration of that particular

10    issue.

11            But as to the situation with respect to your counsel, as I'm sure

12    you're aware, Mr. Tolimir, the primary responsibility for the assignment

13    of counsel under the rules of the Tribunal rests with the registrar.  I

14    know that you've been having discussions and meetings and liaising with

15    the Registrar and the relevant officials in order to try and assign you

16    permanent counsel which of course is a matter of utmost importance and

17    certainly the Registry is aware of that.

18            While the Chamber has always a review capacity with respect to

19    that issue, I would simply encourage you to continue the discussions which

20    are taking place in order to try and have counsel assigned to you in -- as

21    soon as possible because it is important obviously from your perspective

22    and certainly for the Trial Chamber as well.  So at this stage,

23    Mr. Tolimir, the discussions with the Registrar, I would encourage you to

24    continue those and to try and come to a conclusion that will be acceptable

25    and in your interests with respect to the appointment of counsel.

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 1            But at this stage, Mr. Tolimir, the issue at hand is the

 2    indictment and whether or not you wish to have the indictment read out to

 3    you here this morning, and I'm not clear from your response whether you

 4    would like that to be done or if you're prepared to waive the reading of

 5    the indictment at this stage.

 6            THE ACCUSED: [Interpretation] I just wanted to draw your attention

 7    to the fact that the manner of my arrest has had an impact also on the

 8    contents of the indictment.  That is why I wanted to state those

 9    circumstances which are relevant to the amending of the indictment and any

10    further proceedings.  I was arrested in Belgrade, Serbia.  After that

11    arrest I was kidnapped and illegally transferred to the location mentioned

12    in the indictment, while I had not been at that location, neither at the

13    time the indictment was brought nor in the period that is charged.  I was

14    kept there for half a day and recorded secretly or not secretly for

15    reasons unknown to me and the entire public was deceived into believing

16    that I was arrested in Bratunac, which seemed to have the effect of

17    incriminating me in the sense that the criminal was arrested at the scene

18    of the crime.

19            This is well known to the representatives of this Tribunal and all

20    the authorities that were involved in my arrest and transfer to this

21    Tribunal.  That is why I wanted to draw your attention to these

22    circumstances because I don't wish them to be portrayed as the truth, the

23    legal truth, while being a complete lie.  That is why I wanted this

24    Tribunal to take statements from persons in Belgrade, Serbia, and persons

25    from this Tribunal, from the OTP and from NATO, that would serve as a

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 1    basis for further proceedings.  I still emphasise that I was kidnapped and

 2    that members of the Prosecution were involved in this kidnapping.  All the

 3    authorities of Serbia and Republika Srpska, beginning with Prime

 4    Ministers, heads of state, ministers of justice, ministers of Interior,

 5    and all the other bodies cooperating with this Tribunal continue saying

 6    after my arrest that I was not arrested by official authorities.  If I was

 7    not arrested by official authorities, as they confirmed through their

 8    spokesmen, that means that I was arrested by whom?  Persons in camouflage

 9    uniforms.  So that I can't know even who arrested me and who had me

10    extradited from Serbia to Republika Srpska without a warrant after which

11    the authorities of Republika Srpska transferred me to the Tribunal.  That

12    is why I wanted those statements taken so that they can serve as a basis

13    to complement all the other material supporting the indictment.

14            I asked you even last time to have this done, but I was not told

15    that a written submission is required.  If my counsel had been allowed to

16    discuss with me all the -- these matters and the circumstances of my

17    arrest, I would have had that submission prepared.  However, what we have

18    here is a manipulation of public opinion and a manipulation of this

19    Tribunal at the expense of taxpayers because I seem to have been

20    compromised in this sense.  I don't know whose money is involved, the

21    money of the states involved or the money of NATO --

22            JUDGE PROST:  If I could stop you there.  I appreciate that this

23    is an issue of concern to you and as I've indicated to you, it is a matter

24    that the Chamber will certainly have regard to but we would need to have

25    full submissions on it.  I'm sorry if that was not clear to you from the

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 1    previous occasion.  But I would invite you to make your submissions on

 2    these issues relating to your arrest in writing to the Chamber and

 3    hopefully, the appointment process for your counsel will proceed such that

 4    he or she can assist you in that process, but today's hearing is for a

 5    very specific purpose, Mr. Tolimir, and we need to proceed to consider

 6    that specific issue, which is the entrance of your pleas to the

 7    indictment.

 8            So I appreciate that it is an important issue for you and you have

 9    strong feelings regarding it, and as indicated we are certainly prepared

10    to hear your submissions on it but today's hearing has been carried out

11    under Rule 62 as a further appearance with regard to your plea.  So I have

12    to ask you to return to that issue at this time, Mr. Tolimir.

13            Once again, would you like the indictment read out to you prior to

14    the taking of the pleas today or are you prepared to waive the reading of

15    that indictment and proceed directly to the question of your plea?

16            THE ACCUSED: [Interpretation] Thank you for your understanding.  I

17    beg of you, in view of the fact that I do not have counsel and I am not

18    allowed to have contact with the counsel I have chosen, to allow me, in

19    view of the kidnapping and my illegal transfer to the Tribunal, to state

20    verbally my request because I'm not in a position to present written

21    submission because I have -- I'm not legally represented before this

22    Court.  All my documents have been taken away from me, and I have no

23    rights.  I don't even know to which state I belong.  I have four proposals

24    to make, if you allow, before we follow the procedure as you planned it.

25    Thank you.

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 1            JUDGE PROST:  Mr. Tolimir, it would be my reference if we could

 2    deal with the matters at hand today that are of importance in terms of

 3    the proceedings, which is of importance, not to suggest that the matters

 4    you wish to raise are not of importance, but the hearing is a very

 5    specific one with a specific purpose.  What I would suggest is that we

 6    proceed with the issue of the plea and some other matters and then at the

 7    end, I will give you an opportunity to highlight to me the four issues

 8    that you wish to bring to my attention.

 9            Would that be -- that would be my suggested way to proceed.  So we

10    will deal with the questions relating to the purpose of the hearing,

11    Rule 62, and then at the end I will give you an opportunity to bring to my

12    attention the matters that you wish to put forward.

13            THE ACCUSED: [Interpretation] Thank you.  But I hope you will take

14    into account that I do not wish to embark upon a legal procedure

15    proceeding from an illegal basis, in view of my illegal arrest.  In light

16    of that I won't be able to make a plea.  It's been already a month since

17    my kidnapping and arrest, and I have had no news that anything has been

18    done in terms of my requests.  If you do not allow me to make these

19    proposals, then I cannot proceed from an illegal basis into a legal

20    procedure.  And I don't want this lie dressed into a legal truth.  I don't

21    want it to be represented, portrayed, as a legal fact.

22            JUDGE PROST:  I appreciate those -- that position, Mr. Tolimir,

23    and as indicated, I will allow you to bring forward your arguments but

24    obviously there would be no decisions taken on them today in any event

25    such that we need to proceed in accordance with the rules of procedure

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 1    applicable in the Tribunal and obviously any subsequent determinations

 2    would then have their recourse in law.  So it is not that you're being

 3    denied any opportunity to present your arguments regarding your arrest, as

 4    indicated.  We will receive any such submissions and that would obviously

 5    allow you to present your points.  As indicated I'm also prepared to hear

 6    you make your submissions today, but we do need first of all to deal with

 7    the pleas.  So unless you indicate that you wish the reading waived, I am

 8    at this stage going to ask Madam Registrar to read the indictment to you

 9    in full.  Do you wish to have the indictment read to you, Mr. Tolimir?

10            THE ACCUSED: [Interpretation] Thank you.  I wanted to say that I

11    have already given a month to this Tribunal to investigate the

12    circumstances of my arrest, to be able to embark on a really legal

13    procedure.  I do not wish to make any pleas until this Tribunal starts a

14    real inquiry into the manner of my arrest, kidnapping and transfer to this

15    Tribunal by persons who did it illegally, unlawfully and contrary to the

16    laws where I -- of the country where I was arrested and contrary to the

17    rules of this Tribunal, and even the rules followed by the Office of the

18    Prosecutor.  That is my personal position, and in light of that, I do not

19    wish to enter into any other proceedings, including the reading of the

20    indictment, which is already on my desk in front of me, and I do not wish

21    to make a plea either.

22            JUDGE PROST:  Mr. Tolimir, do I take it, then, that you do not

23    wish to have the indictment read, that you're waiving that right?  Because

24    if not, we will proceed with the reading of the indictment immediately.

25            THE ACCUSED: [Interpretation] I am waiving the right.  I'm opposed

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 1    to having the amended indictment read.  I am opposed to entering a plea at

 2    this point because I have not had any opportunity to discuss either the

 3    indictment or any other matters concerning my arrest with my chosen

 4    counsel.  The registrar has denied me the right to have my chosen counsel

 5    represent me in these proceedings.  Thank you.

 6            JUDGE PROST:  Thank you, Mr. Tolimir.

 7            Pursuant to the rules of the Tribunal, you are called upon, as you

 8    were, as was explained to you at the initial appearance, within 30 days of

 9    your initial appearance, you will be called upon to enter a plea of guilty

10    or not guilty in respect of each count of the indictment.  I appreciate

11    the statement that you have made, which makes it very clear that you do

12    not wish to enter a plea at this time, and I am satisfied that tomorrow,

13    which would be the 30th day, your position would remain the same, that you

14    do not wish to enter a plea prior to the appointment of permanent counsel,

15    so on that basis, the rules provide that a plea will be entered on your

16    behalf, should you not be prepared to enter pleas to the counts to the

17    indictment.

18            So with your having waived the reading of the indictment,

19    Mr. Tolimir, what I'm going to do is I am going to read to you the charges

20    in each count of the indictment so that you are aware of them, and I will

21    ask you in relation to each of them how you plead to the charge, guilty or

22    not guilty, and I understand from your statement that you do not wish to

23    enter pleas today and I anticipate you may therefore remain silent in

24    response to those questions but I will put them to you in any event, and

25    should you decide to remain silent in response to those questions, that

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 1    combined with your statement, I will take to mean that you failed to enter

 2    a plea and in accordance with the rules, I will proceed to enter pleas of

 3    not guilty on your behalf.

 4            For the purposes of the pleas, Mr. Tolimir, I would invite you,

 5    please, to stand while I put the counts in the indictment to you.  Would

 6    you stand, please, Mr. Tolimir?

 7            THE ACCUSED: [Interpretation] May I just say one sentence?

 8            JUDGE PROST:  Certainly, Mr. Tolimir.

 9            THE ACCUSED: [Interpretation] I did not say that I don't want to

10    enter a plea, but I don't want to enter a plea for as long as each legal

11    aspect of each count has not been explained to me by my counsel because in

12    the period since my last appearance before this Court, I have not been

13    allowed to talk to my counsel about anything to do with my arrest or the

14    indictment.  The only topic of our conversation under supervision, had to

15    do with the choice of my permanent counsel.  I said that I do want to

16    enter a plea but only when I have a legal understanding of the indictment.

17            I have not had any problems with understanding it linguistically,

18    as I told you last time.  When I'm assigned my chosen counsel to represent

19    me, then he will explain each count to me and I will enter a plea on each

20    count.  Don't take away this right from me with your decree as to whether

21    I plead guilt/or not.  Thank you.

22            JUDGE PROST:  Thank you, Mr. Tolimir.  The difficulty,

23    Mr. Tolimir, is that the requirement is that you enter the -- a plea today

24    or within the 30 day period, in accordance with the rules and it is not

25    clear at this time when your permanent counsel will be appointed.  Those

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 1    discussions are ongoing.  And what I would suggest, Mr. Tolimir, is if we

 2    deal with your pleas today, it will certainly be open to you, in

 3    accordance with Rule 62 bis, should you enter a not guilty pleas today or

 4    those not guilty pleas are entered today, you will have an opportunity,

 5    pursuant to Rule 62 bis, to change a plea at a later point in time.

 6            But I would suggest that today, we proceed with the pleas and I

 7    will read to you each charge.  Now, if you would like an opportunity to

 8    discuss the matter further with duty counsel with respect to the

 9    indictment, I'm certainly prepared to grant you an opportunity to do that

10    right now, but otherwise, it is necessary to proceed with the entering of

11    a plea today, as I know these matters have been discussed with you.

12            I appreciate your position with regard to the appointment of your

13    counsel, but you can understand that in terms of the proceedings in the

14    Tribunal that it is necessary to have an indication on the indictment in

15    accordance with the rules.  Would you like an opportunity to discuss the

16    matter with Mr. Sahota at this time?

17            THE ACCUSED: [Interpretation] Thank you.  I do not wish to discuss

18    the matter with Mr. Sahota.  I asked you that I not enter a plea in view

19    of my poor health and unclear legal situation until my permanent counsel

20    is appointed and until he explains to me each count of the indictment.

21    Please take my suggestion into account and don't deny me this right, but

22    you may decide of course in accordance with your procedures.  Thank you.

23            JUDGE PROST:  Thank you, Mr. Tolimir.  I'm going to proceed to

24    read the counts in the indictment to you at this stage, and as indicated,

25    if you do not wish to enter your plea today for the reasons that you have

Page 35

 1    expressed, then I will enter the pleas accordingly with reference to the

 2    indictment.  Are you prepared to stand, Mr. Tolimir, for the reading of

 3    the counts?

 4            THE ACCUSED: [Interpretation] Yes, but please consider this once

 5    again.  Why are you denying me the right to plead after receiving legal

 6    advice from my lawyer who has been here in The Hague ever since the 6th of

 7    June but has not been allowed to discuss the indictment with me?  I'm

 8    surprised to have all this imposed on me.  I don't wish it to be read, I'm

 9    asking you not to read it, but you may do as you see fit.

10            Thank you.  Excuse me.

11            JUDGE PROST:  Mr. Tolimir, as indicated the matter of your

12    appointment of counsel is an ongoing matter under discussion, as you know,

13    with the registrar.  There are certain requirements that must be dealt

14    with for the appointment of counsel and so at this time I will read to you

15    the counts of the indictment.

16            Count 1 charges you with genocide, punishable under

17    Articles 4(3)(a) and 7(1) of the statute.  How do you plead, guilty or not

18    guilty?

19            On the basis of your silence and the statements that you have made

20    a plea of not guilty will be entered to count 1 of the indictment.

21            Counts 2 of the indictment charges you with conspiracy to commit

22    genocide, punishable under Articles 4(3)(b) and 7(1) of the Statute.  How

23    do you plead, guilty or not guilty?

24            On the basis of your silence and the statements made, a plea of

25    not guilty will be entered to count 2 of the indictment.

Page 36

 1                          [Trial Chamber and registrar confer]

 2            JUDGE PROST:  Mr. Tolimir, Mr. Tolimir, are you prepared to put

 3    your headphones on, please, sir?  Madam Registrar?

 4                          [Registrar and accused confer]

 5                          [Trial Chamber and registrar confer]

 6            JUDGE PROST:  Mr. Tolimir, you have decided to fail to place your

 7    headphones on so that you're not receiving interpretation.  I'm going to

 8    suggest that we take a short break, at which time I'll ask

 9    Madam Registrar, through the -- through an interpreter to speak with you

10    regarding the headphones, and I would invite duty counsel, Mr. Sahota, if

11    you could please speak with Mr. Tolimir and we will reconvene in ten

12    minutes' time.  Thank you.

13                          --- Break taken at 9.43 a.m.

14                          --- On resuming at 10.01 a.m.

15            JUDGE PROST:  Mr. Tolimir, I will confirm on the record that I've

16    been advised during the break you were given an opportunity to meet with

17    duty counsel and to have duty counsel explain anything you wished to you

18    through an interpreter.  You have also had access to duty counsel during

19    the course of your time at the Tribunal.

20            We have now placed speakers into the courtroom so that the

21    proceedings are being translated to you into a language that you

22    understand.  I wish that to be on the record.

23            I'm going to proceed again with the reading of the counts of the

24    indictment with a view to the pleas.

25            Count 1 charges you with genocide, punishable under Articles

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 1    4(3)(a) and 7(1) of the Statute.  How do you plead, guilty or not guilty?

 2            On the basis of your silence and statements made, a plea of not

 3    guilty will be entered on count 1 of the indictment.

 4            On count 2 you are charged with conspiracy to commit genocide

 5    punishable under Articles 4(3)(b) and 7(1) of the Statute.  How do you

 6    plead, guilty or not guilty?

 7            On the basis of your silence and statement made, a plea of not

 8    guilty will be entered to count 2.

 9            Count 3 of the indictment charges you with extermination, a crime

10    against humanity, punishable under Articles 5(b) and 7(1) of the Statute.

11    How do you plead, guilty or not guilty?

12            On the basis of your silence and statement made, a plea of not

13    guilty will be entered to count 3 of the indictment.

14            Count 4 charges you with murder, a crime against humanity,

15    punishable under Articles 5(a) and 7(1) of the Statute.  How do you plead,

16    guilty or not guilty?

17            Again on the basis of your silence and statement made, a plea of

18    not guilty will be entered on count 4 of the indictment.

19            Count 5 charges you with murder, a violation of the laws or

20    customs of war, punishable under Articles 3 and 7(1) of the Statute.  How

21    do you plead, guilty or not guilty?

22            On the basis of your silence and statement made a plea of not

23    guilty will be entered to count 5.

24            Count 6 charges you with persecutions on political, racial, and

25    religious grounds, a crime against humanity, including murder, cruel and

Page 38

 1    inhuman treatment, terrorising the civilian population, destruction of

 2    personal property, and forcible transfer, punishable under Articles 5(h)

 3    and 7(1) of the Statute.  How do you plead, guilty or not guilty?

 4            On the basis of your silence and statement made, a plea of not

 5    guilty will be entered on your behalf.

 6            Count 7 charges you with inhumane acts, forcible transfer, a crime

 7    against humanity punishable under Articles 5(i) and 7(1) of the Statute.

 8    How do you plead, guilty or not guilty?

 9            On the basis of your silence and statement made a plea of not

10    guilty will be entered to count 7 of the indictment.

11            Count 8 charges you with deportation, a crime against humanity,

12    punishable under Articles 5(d) and 7(1) of the Statute.  How do you plead,

13    guilty or not guilty?

14            Again on the basis of your silence and statement made, a plea of

15    not guilty will be entered on count 8 of the indictment.

16            Madam Registrar, please note that as the accused has failed to

17    enter a plea, pleas of not guilty have been entered in relation to each

18    count of the indictment.

19            Mr. Tolimir, let me emphasise to you again that the pleas that

20    have been entered today, once you have permanent counsel appointed, there

21    are provisions in Rule 62 bis that would allow you at a later stage at any

22    time to change your plea if you chose to do so.  And so that your rights

23    in that respect are not affected.  Also, I appreciate that you wish to

24    have permanent counsel, but through these preliminary stages pending that

25    determination, you have now and still have available to you duty counsel

Page 39

 1    to explain any matters to you.

 2            As the matter of the appointment of your permanent counsel may

 3    take more time, I emphasise to you that you do have available to you in

 4    the interim, should you wish to take advantage of it, the use of duty

 5    counsel and I would encourage you to continue the discussions that you

 6    have been having with the Registrar towards a successful conclusion on the

 7    appointment of your permanent counsel.  I understand the importance of

 8    that matter to you obviously, and hope that your discussions will lead to

 9    a successful conclusion in that respect.

10            I would also reiterate, and I will give you an opportunity at the

11    end of our proceedings today, that you may bring to the Chamber's

12    attention any matters you wish to raise regarding your arrest, as you have

13    outlined both at your first appearance and today, and if you could bring a

14    written motion forward on that, that will certainly be given

15    consideration.

16            Mr. Tolimir, I wanted to deal with you on a couple of other

17    matters.  First of all, I was in receipt of your submission dated the 19th

18    of June, which I received on the 22nd, asking that the orders that had

19    been served upon you, orders of the Trial Chamber, be translated into a

20    language that you can understand.  In response to that, there have been

21    discussions and I understand that arrangements have been made for any such

22    orders to be provided to you in a language that you understand.  Are you

23    able to confirm for me that you are receiving the Chamber's orders in

24    a language that you understand?

25            THE ACCUSED: [Interpretation] Thank you.  I have not received any

Page 40

 1    orders of the Chamber so far, and as for notices about this conference and

 2    the appointment of the Pre-Trial Judge, I have received those.

 3            JUDGE PROST:  You have received those?

 4            THE ACCUSED: [Interpretation] [In English] Thank you.

 5            JUDGE PROST:  I will -- the only other order I believe,

 6    Mr. Tolimir, that you should have received was the order, which actually

 7    relates to the next topic, was the order suspending temporarily the filing

 8    deadlines with respect to the motion for joinder.  And I believe that

 9    that -- that attempts were made to serve that upon you.  But in any event

10    I do wish to discuss with you at this stage the joinder motion.  On the

11    26th of June, Mr. Tolimir, the Trial Chamber received your filing that you

12    made, the submission that you made on the 19th of June, in which you

13    advised us of some of your submissions regarding the Prosecution's motion

14    for the joinder of your case to that of Popovic et al.  We have taken note

15    of the substantive points you have made against joinder, and we also note

16    your statement that you will define other reasons for -- in relation to

17    the joinder motion after permanent counsel has been assigned to you.

18            The Trial Chamber is of course, Mr. Tolimir, wishes -- we wish

19    very much to hear your full submissions on the issue of joinder, and we

20    appreciate that it would be beneficial obviously to have the assistance of

21    your permanent counsel for that purpose.  But as we know, the discussions

22    relating to appointment of counsel are ongoing.  At the same time,

23    Mr. Tolimir, I'm sure you can appreciate that the issue of joinder

24    concerns not only your interests but also impacts directly on the rights

25    of seven other accused in Popovic et al, as you yourself acknowledged in

Page 41

 1    the filing that you've made to the Trial Chamber.  There are also public

 2    interests as represented by the Prosecution in relation to this motion.

 3    And the Trial Chamber also has an overarching responsibility to ensure a

 4    fair and efficient trial process in both cases.  And for that reason,

 5    while we would very much like to receive your full submissions with the

 6    benefit of your counsel, we simply cannot delay the responses on the

 7    joinder motion and a decision on that motion indefinitely while the issue

 8    of counsel is settled.

 9            To that end, last Thursday, the Defence teams in Popovic et al

10    were given the deadline of July 13th to make their responses to the

11    motion.  We have not yet set any deadline for you and before doing so, I

12    would invite you to make any submissions on this issue to me, submissions

13    regarding deadlines on the submissions with respect to the joinder motion.

14    Do you have anything you wish to say to me, Mr. Tolimir, on that question?

15            THE ACCUSED: [Interpretation] Thank you.  I have nothing to say on

16    that issue, but I said that I wish to consult my lawyer who has been here

17    since the 6th of June, and he's now in the public gallery, on all issues

18    including entering a plea.  However, the Registry has insisted on

19    maintaining this illegal situation in which I am in.

20            JUDGE PROST:  Thank you, Mr. Tolimir.

21            Mr. McCloskey, does the Prosecution have any submissions they wish

22    to make regarding the filing of response by Mr. Tolimir in relation to the

23    joinder motion?

24            MR. McCLOSKEY:  Not at this time, Madam President.

25            JUDGE PROST:  Thank you.

Page 42

 1            Mr. Tolimir, having heard the submissions of parties, and taking

 2    into consideration the urgency of the matter, balancing the various rights

 3    in issue, I am ordering that you file any further submissions on the issue

 4    of joinder no later than the 17th of July 2007.

 5            If there are delays with the appointment of counsel, I would urge

 6    you again to consider making use of duty counsel to assist you.  You may

 7    also seek advice outside of the context of your permanent counsel

 8    relationship, you may certainly seek advice from advisers, and I would ask

 9    you to try and make any further submissions to the Trial Chamber by the

10    17th of July.  However, I emphasise that if no further submissions are

11    forthcoming by that date, the Trial Chamber will proceed to deal with the

12    motion taking into account, of course, the submissions that we have

13    already received from you on the 19th of June, and I hope very much,

14    Mr. Tolimir, that prior to the date of the 17th of July, you will have

15    permanent counsel in place.  But as indicated you may use duty counsel or

16    other advisers to help you with the preparation of any such submissions if

17    you choose so.  A written order setting out those deadlines will be

18    provided to you.

19            Now, Mr. McCloskey, could you update me as to the service or

20    disclosure of the supporting material under Rule 66?  I understand there

21    has been some progress but some difficulties.

22            MR. McCLOSKEY:  It's my understanding that all the material was

23    delivered to the Registrar for delivery to the accused on 27 of June.  And

24    that can be reflected in a 27 June letter to the Registrar where we've

25    listed that.

Page 43

 1            JUDGE PROST:  You've received nothing further, I take it,

 2    Mr. McCloskey, since that service?

 3            MR. McCLOSKEY:  No.  We -- there is a receipt that goes along with

 4    it, and it does take some time to go through the material in order to sign

 5    off the receipt.  We normally get the receipt signed initially by counsel

 6    and then if there are problems later we find out about it, but that hasn't

 7    happened yet.  We have received nothing, though we have received word from

 8    the Registry that they did receive that material and sent it on.

 9            JUDGE PROST:  Thank you, Mr. McCloskey.

10            Mr. Tolimir, I take it that -- or perhaps I can ask you:  Have you

11    received the material referenced here, which is the disclosure required

12    under Rule 66(A)(i) of the supporting materials with respect to the

13    indictment served by the Registry?

14            THE ACCUSED: [Interpretation] Thank you.  I have received nothing

15    and I would appreciate it if you could take into account my statement of

16    the 4th of June that I do not accept the appointed counsel and that

17    pending the appointment of my permanent counsel I will represent myself.

18    Since that time I have no contact with my permanent counsel, and I wish to

19    apologise now to Mr. Sahota for being forced to be here at all, and the

20    precedent for my situation already exists in the case of Blagojevic where

21    counsel was present despite the will of the accused.

22            JUDGE PROST:  Madam Registrar, can you confirm that attempts were

23    made to serve the material?

24            THE REGISTRAR:  Yes.  That is the case, Madam President.

25            JUDGE PROST:  Thank you.  I'm satisfied that the Prosecution has

Page 44

 1    fulfilled their obligations under the rule in terms of disclosure as best

 2    possible for the purposes of that rule.

 3            Now, however, due to the absence, Mr. Tolimir, I appreciate that

 4    no permanent counsel has been appointed to you, and normally, under

 5    Rule 72(A), once the material is disclosed to you, the material under

 6    66(A)(i), there is a 30 day time limit for motions, preliminary motions,

 7    to be brought by the Defence.  However, I wish to confirm clearly on the

 8    record that in this case, because no permanent counsel has yet been

 9    appointed, those deadlines are not running, they are suspended.  Now, the

10    only question is when the running of them will commence, and it is rather

11    complicated because of, as foreshadowed by Mr. McCloskey, it is a

12    complicated situation because of service issues on the accused and then

13    transfer of the material to counsel.  So what I'm going to suggest is that

14    we will not run the deadlines from the actual appointment of counsel,

15    given it's not clear when counsel will see the material.  I would prefer

16    if, once counsel is appointed, if you could arrange to have the material

17    served on counsel and by a filing indicate that that has been done, and

18    then the deadline, the 30 day deadline, can run from that point in time.

19            Mr. McCloskey, does that seem an acceptable process to you?

20            MR. McCLOSKEY:  Yes, Madam President.  We have a second complete

21    packet in English and B/C/S for counsel when that time arrives.

22            JUDGE PROST:  Thank you.  So, Mr. Tolimir, there will be no issues

23    with respect to preliminary motions.  There will be no deadlines running

24    at the moment with respect to those preliminary motions.  We'll deal with

25    those issues only after you are appointed permanent counsel and permanent

Page 45

 1    counsel will have a 30 day period in discussion with you in which to bring

 2    those motions, after having received the material.  So that will give you

 3    the opportunity to discuss those issues with your counsel and for the

 4    moment, no deadlines will be running in respect of that material.  Is that

 5    clear?

 6            THE ACCUSED: [Interpretation] Thank you.  I understood what you

 7    said.

 8            JUDGE PROST:  Okay.  Madam Registrar, may we go into private

 9    session, please, for a moment?

10                          [Private session]

11   (redacted)

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)

Page 46











11 Page 46 redacted. Private session.















Page 47

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13                          [Open session]

14            THE REGISTRAR:  We are in open session.

15            JUDGE PROST:  Thank you, Madam Registrar.

16            Mr. Tolimir, before I move to the final -- any final matters, you

17    indicated that you wished to make four particular points to me regarding

18    the issue of your arrest, and I'm happy for you to relate those four

19    points to me at this time.

20            THE ACCUSED: [Interpretation] Thank you.

21            I suggest to this Court that proceedings be instigated before this

22    Court because of the illegal arrest in which representatives of the OTP,

23    NATO, the country of which I am a national, all participated.

24            I also propose that the statements made by all the legal

25    representatives who made statements on behalf of the countries in which I

Page 48

 1    was arrested and from which I was illegally transferred be taken into

 2    account.

 3            I further propose that my suggestion about appointing

 4    Mr. Nebojsa Mrkic as my counsel, my permanent Defence counsel, not be

 5    rejected, because he is acting for me in solving my problems with these

 6    authorities in Serbia, and he has already been appointed legal adviser in

 7    some of the previous proceedings.

 8            For this reason, I ask that he not be eliminated.  He is fully

 9    conversant with all the procedures before this Tribunal.

10            Further, I propose that the Court issue an order that public

11    statements be obtained about my arrest.  The statements made after my

12    arrest by representatives of the governments of Serbia and

13    Republika Srpska, their presidents of their governments and ministers of

14    foreign and interior affairs, their representatives for cooperation with

15    the ICTY, their spokespersons and the persons who made public statements

16    on behalf of this Tribunal, and that they be used as exhibits, as

17    evidence, to show that I was not arrested by the regular authorities but

18    by criminal groups who arrested me in cooperation with the representatives

19    of this Tribunal and the SFOR in Bosnia-Herzegovina.  They have all stated

20    that they did not arrest me or participate in my arrest.

21            I also propose that documents of the competent authorities,

22    courts, the OTP and NATO, be submitted to this Tribunal in order to

23    establish the chain of legal responsibility and to show that no legal

24    document was issued about my arrest or manner of my arrest or anything

25    else in this regard.

Page 49

 1            I wish this to be on the record as evidence.

 2            I ask that my counsel be appointed according to my will and my

 3    choice.  I am a believer.  I believe in our lord Jesus Christ and for me

 4    every one of God's words in the holy scriptures is the law of life and

 5    nothing can contribute to your rules of procedure that would make me act

 6    in opposition to the holy scriptures.  Therefore, I ask that I be allowed

 7    to choose my Defence counsel according to my own will and that he choose

 8    the team which will act for me before this Tribunal.  He is already

 9    registered as counsel before this Tribunal, and he is fully familiar with

10    all your rules and procedures so there would be no obstacle to him

11    representing me.

12            Further, I ask that you bear in mind that this illegal, unlawful

13    situation, my unlawful kidnapping and arrest, and my current state of

14    health, are having an impact on my recovery, and therefore, I do not like

15    having a duty counsel appointed to me against my will.  I ask you to stop

16    appointing him, and I have not been allowed to consult my counsel who has

17    been here for a month about entering a plea and a plea was entered on my

18    behalf.  I think you shouldn't have denied me this right, but who am I to

19    interfere in your decisions?  Further, I ask you that I not enter any

20    pleas on any of the counts in the indictment until I have consulted

21    Nebojsa Mrkic as my counsel and until he is appointed my personal counsel.

22            As for my health, I think I am not disrupting anything either for

23    this Tribunal or for the Detention Unit, that I'm doing everything in

24    accordance with the rules of procedure.  I have allowed all sorts of

25    medical examinations to be carried out, but I have refused to take

Page 50

 1    medicine as a form of personal protest against the denial of my rights and

 2    what has been done to me so far.

 3            Therefore, I ask you once again that before any proceedings begin,

 4    proceedings be instigated before this Tribunal to deal with my arrest and

 5    kidnapping in Serbia and that this be done in view of what has been done

 6    by the representatives of NATO and the Hague Tribunal in Bosnia.  Thank

 7    you.

 8            JUDGE PROST:  Thank you, Mr. Tolimir.  Your comments are all here

 9    on the record, and we will be considering the statements that you have

10    made.  In the meantime, though, Mr. Tolimir, the Trial Chamber may wish to

11    follow up with you on certain issues, so I would encourage you to please

12    accept service of documents coming from the Tribunal in your language,

13    coming from the Chamber, so that you will be informed if we are seeking

14    further information from you.  So, please, we understand your wish to

15    represent yourself, and that's acceptable, but in relation to the issues

16    you've raised, and other issues, please do accept the material that may be

17    served on you in this interim period until the appointment of your

18    counsel.  Otherwise, I will obviously not provide any reaction today on

19    the matters you have raised.

20            Mr. McCloskey, is there anything the Prosecution wishes to say in

21    relation to the issues raised by Mr. Tolimir today?

22            MR. McCLOSKEY:  Briefly, regarding the arrest issue, we are

23    getting the various statements from parties involved in that and will

24    provide that material to Mr. Tolimir when we get it.

25            Regarding the -- his request for Mr. Mrkic, that is an OLAD matter

Page 51

 1    at this point.  I don't think I will take any position until that matter

 2    is resolved from that level.

 3            JUDGE PROST:  Thank you, Mr. McCloskey.  I think that's a wise

 4    choice.

 5            Mr. Tolimir, the matters you've raised will be taken into

 6    consideration.  Is there anything else you wish to raise at this stage?

 7            THE ACCUSED: [Interpretation] No, thank you.

 8            JUDGE PROST:  Thank you.  Mr. McCloskey, anything further from the

 9    Prosecution?

10            MR. McCLOSKEY:  No, Madam President.

11            JUDGE PROST:  Thank you very much.

12            Then I believe -- I will simply advise you, Mr. Tolimir, that

13    there will be, as I mentioned last time, a status conference.  It's

14    mandated within 120 days of this appearance, but hopefully well in advance

15    of that, you will have your counsel in place and that -- the purpose of

16    that will be to exchange information between the parties and facilitate

17    preparations for trial, and secondly to review the status of this case and

18    allow you to raise any issues you wish.  You will receive further

19    information about that, but as I say hopefully within that time period you

20    will have your counsel.

21            But until such Status Conference, these proceedings are adjourned.

22      I wish a good day to everyone present.

23                          --- Whereupon the hearing adjourned at 10.39