Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17962

 1                           Monday, 10 October 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 11.19 a.m.

 5             JUDGE FLUEGGE:  Good morning to everybody in the courtroom and to

 6     those also following our procedure.  As you can see, only two Judges are

 7     present.  Judge Nyambe has another commitment and is not with us.  The

 8     Chamber decided to sit pursuant to Rule 15 bis.

 9             First I would like to note that with my permission,

10     Mr. Dieckmann, counsel -- duty counsel for the witness, Pecanac, who will

11     be in court today, is present in the courtroom, if there are no

12     objections by either side.  I don't see that.

13             Then the witness should be brought in, please.

14                           [The witness entered court]

15                           WITNESS:  DRAGOMIR PECANAC

16                           [Witness answered through interpreter]

17             THE WITNESS: [Interpretation] Thank you.

18             JUDGE FLUEGGE:  Good morning again, sir.  Before we start with

19     your testimony, the Court Usher may sit down for a while.  We have to

20     deal with some other matters first.

21             Mr. Pecanac, you were the subject of a subpoena in which you were

22     ordered to appear at the seat of the Tribunal to testify before this

23     Chamber in the case of Prosecutor v. Zdravko Tolimir.  Because your

24     failure to do so, you were the subject of an order in lieu of an

25     indictment of 21st of September, 2011.  In this order in lieu of

Page 17963

 1     indictment, the Trial Chamber ordered your prosecution on the grounds

 2     that having been informed on the 2nd of September, 2011, on the contents

 3     of the subpoena and of your obligation to appear before the Chamber,

 4     obstructing all attempts by the Victims and Witnesses Section to

 5     implement the decision of safe conduct and make arrangements for your

 6     travel to The Hague, thereby failing to appear before the Chamber as

 7     ordered or to show good cause why you could not comply with the subpoena,

 8     and therefore, knowingly and willfully interfering with the

 9     administration of justice by refusing to comply with this subpoena.

10             On the same day as the Trial Chamber issued the order in lieu of

11     indictment, it also issued a warrant of arrest and order for surrender.

12     Pursuant to this order, you are present in The Hague today.

13             As you know, in the initial appearance in your contempt case this

14     morning, I said that you should be present to give testimony in the

15     Tolimir trial.  At that hearing you indicated your reluctance to testify

16     today.  However, before I formally invite you to testify, I should inform

17     you that by not testifying today, you may be in further contempt of the

18     Tribunal pursuant to Rule 77(A) of our Rules of Procedure and Evidence.

19             Mr. Pecanac, again, your duty counsel Mr. Dieckmann is present

20     here today during this hearing with the permission of the Chamber.  At

21     any point in time you may consult him again, if you so wish.  However, I

22     would now formally ask you whether you are willing to testify or not.

23             THE WITNESS: [Interpretation] Your Honour -- Your Honours,

24     gentlemen from the Registry and the Prosecution, Mr. Tolimir, Mr. Gajic,

25     I am not being hostile towards the Trial Chamber or any other personnel

Page 17964

 1     of The Hague Tribunal.  I would really appreciate your understanding for

 2     my health condition.  I apologise for the inconvenience I have caused to

 3     the Trial Chamber, the Office of the Prosecutor, the Registry, the

 4     Defence team, but I kindly ask you to show appreciation for my health,

 5     for the series of conditions that I suffer from, some of which I have

 6     been receiving treatment for for the past 10 or 11 years, and to enable

 7     me to be examined at the Detention Unit by a psychiatrist and a

 8     neurologist, because for instance, right now I have a very strong

 9     headache, and as I said at the previously hearing, I shall make my

10     decision whether to testify after those medical examinations and after

11     consulting attorney Tomislav Visnjic.

12             I want to confirm once again that never in any way have I

13     obstructed the Tribunal and its personnel in their work and that I have

14     never stated before anyone that I was not going to appear as a witness in

15     the case Prosecutor v. Tolimir.

16             That is all I have to say for now.  Thank you.

17             JUDGE FLUEGGE:  Mr. Pecanac, the problem is that you are -- that

18     you didn't provide us with any medical certification about your health

19     condition, although you were invited by order of this Chamber to do so.

20     We are, to date and until this moment, not aware of any certified

21     unability to testify.  This is what we just heard from you.  That may be

22     true or not, but we don't have -- haven't -- we didn't have -- receive

23     any certification by medical authority.  You had all the time to provide

24     us with this information.

25             Does that mean that you are not willing to testify today,

Page 17965

 1     although I -- before I put this question again, you should be aware, as I

 2     told you during the initial appearance this morning, that it is in your

 3     hands whether you have to stay here in The Hague for a longer period, for

 4     the whole trial against you because of contempt of court, or whether you

 5     will be in a position to return to your home after conclusion of your

 6     testimony in this trial, which should now commence and probably end by

 7     tomorrow, tomorrow morning.  It's your decision to decide to stay here in

 8     the Detention Unit for a longer period of weeks or possibly months.

 9               You had the opportunity to consult your counsel Mr. Dieckmann

10     and to communicate with the Prosecution about the content of your

11     testimony.  It's now your decision if you want to return home tomorrow or

12     stay in the Detention Unit for a longer period of time.

13             What is your position?

14             THE WITNESS: [Interpretation] Your Honour, I had no one to submit

15     medical documentation to, because no one has asked for it so far.  You

16     are the first one right now.  I have my medical documentation, my medical

17     file, at the Detention Unit, at least past of the medical file that

18     confirms what I just said, namely that I need a medical examination by a

19     psychiatrist and a neurologist.  I have that at the Detention Unit but

20     nobody had told me that I needed and that I need to present it.  You are

21     the first one who said so right now.  From the 2nd of September when I

22     received the subpoena until today, nobody told me that I need to put

23     forward my medical documentation.

24             The original medical file, much more extensive than the documents

25     I have with me, are at -- is at my home.  All that I have of my medical

Page 17966

 1     documentation is easily verifiable at the Military Medical Centre in

 2     Karaburma, the Military Medical Centre in Belgrade and the

 3     Military Medical Academy also in Belgrade.

 4             I kindly ask you, Your Honour, as a man who's finding himself for

 5     the first time in his life in the position of an accused or a suspect, to

 6     help me clear myself and to prove that I did show respect for

 7     The Hague Tribunal, that I responded to every invitation and every

 8     summons from the judicial authorities of Serbia.  I have never refused to

 9     be served a single document, and I have never claimed, and the gentlemen

10     from the Prosecution can confirm that, to appear at the offices of the

11     prosecution in Belgrade in 2005 or last year in 2010 to be questioned

12     about the documentation that had been seized from my apartment.  I

13     believe that clearly shows that I have never had a problem with any

14     accusations of contempt of court, and that's --

15             JUDGE FLUEGGE:  I would like to stop you here.  We are not -- at

16     the moment we are not in the trial against you because of contempt.  I

17     just draw your attention on the -- to the fact that you didn't provide us

18     with any excuse why you were not in the position to testify, to come to

19     The Hague and testify.  In the subpoena you have received as you've just

20     stated, it is clearly stated that you have to appear before the Court

21     or to give us, as the Chamber, an excuse by certification.  We didn't

22     receive anything like that.  The last -- and therefore, for the last

23     time, I would ask you:  Are you willing to testify now or not?

24             THE WITNESS: [Interpretation] No, I'm not going to testify now,

25     because I'm unable to.  I cannot testify right now, Your Honour.  I am

Page 17967

 1     not mentally prepared to, and I'm really begging you for a psychiatric

 2     and neurological examination.

 3                           [Trial Chamber confers]

 4             JUDGE FLUEGGE:  Do the parties have any position in this respect?

 5             Mr. Vanderpuye, it's your witness.

 6             MR. VANDERPUYE:  Yes.  Good morning to you, Your Honour.  Good

 7     morning, Your Honour Mindua.  Good morning to the witness.  Good morning,

 8     everyone.

 9             Your Honour, we take no position with respect to this.  We defer

10     to the discretion of the Trial Chamber.

11             JUDGE FLUEGGE:  Thank you very much.

12             As the witness is not willing to testify today, this -- at this

13     stage it concludes your testimony here, and you may return to the

14     Detention Unit until further notice.

15             Thank you very much and good-bye.

16             THE WITNESS: [Interpretation] Thank you.

17                           [The witness stands down]

18             JUDGE FLUEGGE:  Thank you, Mr. Dieckmann.  As duty counsel --

19             MR. DIECKMANN:  Thank you very much, Your Honour.

20             JUDGE FLUEGGE: -- you are released too.

21             There is only one procedural matter I would like to raise at this

22     point in time.  There will be no hearing in this trial for some time.

23     The Trial Chamber would like to take advantage of the availability of the

24     parties to deal with some housekeeping and other matters.

25             On the 29th of September, 2011, the Chamber ordered the

Page 17968

 1     Prosecution to upload the written evidence of Behara Krdzic as contained

 2     in Annex A to its Rule 92 bis motion regarding Krdzic under a new 65 ter

 3     number.

 4             On the 30th of September, 2011, the Chamber received a

 5     notification that this written evidence has been uploaded into e-court

 6     under 65 ter 7571.  The Chamber hereby instructs the Registry to assign

 7     the next available exhibit number to this document.

 8             THE REGISTRAR:  Your Honours, 65 ter document 7571 shall be

 9     assigned Exhibit P2743.  Thank you.

10             JUDGE FLUEGGE:  Thank you very much.

11             Mr. Tolimir has requested that the Trial Chamber in the Tolimir

12     case not sit in the week 17th to 21st of October.  I can confirm that the

13     Trial Chamber has agreed to this request.  No hearing next week.

14             The Chamber is exploring the possibilities of hearing Witness 192

15     during the first week of November and will keep the parties notified.

16             Are there any other procedural matters to be dealt with today?

17             Mr. Vanderpuye.

18             MR. VANDERPUYE:  Thank you, Mr. President.  I don't believe that

19     there are any other procedural matters.  Personally, I was just wondering

20     with respect to these proceedings as concerns this witness if it will be

21     adjourned sine die or we will have a specific adjourned date.  My

22     understanding was that his counsel of choice would become available at

23     some point, and I think that was maybe at the end of the week or so.  So

24     just for those purposes I was just wondering if we will have an adjourned

25     date.

Page 17969

 1             JUDGE FLUEGGE:  Not at the moment, and the Chamber would invite

 2     the Prosecution to file a motion to that respect.  We are, at the moment,

 3     only in the position to realise the witness was not willing to testify,

 4     whatever that means for the future.

 5             We are open for every motion filed by either party in this

 6     respect.

 7             A different matter is, of course, the contempt case.

 8             Mr. Vanderpuye.

 9             MR. VANDERPUYE:  I'm reminded that we do have one other witness

10     that we were in the process of trying to schedule, Witness 192, that we

11     were in the process of trying to schedule a videolink testimony.  I

12     believe that -- and I'm not sure what the position is at this moment.  My

13     understanding was that the Trial Chamber was investigating whether or not

14     that was possible, and the Registry has determined that it is in fact

15     possible.  It is not clear at this point what has been done further in

16     respect of verifying with the witness whether or not the accommodations

17     that have been made by the Registry are sufficient to suit his needs and

18     interests.  We have not been in contact with the witness to that effect,

19     so I just wanted to find out what the position is on that.  If necessary,

20     we will contact the witness, but I think it might be better if it's

21     either done through the Chamber directly or through the Registry.

22             JUDGE FLUEGGE:  Yes, I just indicated before we are exploring the

23     possibilities of the testimony of this witness, number 192, during the

24     first week of November via videolink.  We have received information that

25     this would be technically possible, but we don't know if the witness is,

Page 17970

 1     due to his health condition, in a position to testify at that specific

 2     location in the region.  And we are, as I'm aware of, we are, via VWS,

 3     contacting the witness about this possibility.

 4             Are there any other matters?

 5             Mr. McCloskey.

 6             MR. McCLOSKEY:  Yes, Mr. President.  Good morning again.  Good

 7     morning, Your Honour.

 8             Just as I was sitting here, I remembered that we were planning

 9     one more short filing.  Our review has indicated that we did not put on

10     evidence regarding the Sandici meadow killings as alleged in the

11     indictment and we will be filing a very short motion for you finding that

12     there is no evidence on that particular paragraph so that that is clear

13     for the Defence case and for the Tribunal, and that -- that should be

14     coming very soon.

15             JUDGE FLUEGGE:  And you are aware of the decision of the Chamber

16     about the conclusion of the Prosecution case.

17             MR. McCLOSKEY:  Yes, we are.  Yes.  Yes, we are, and I just

18     wanted to clear up that factual situation so no one thinks that this is a

19     fact that is still part of the indictment.  I hope that is all right.

20             JUDGE FLUEGGE:  Thank you very much for that.

21             Any other matter to be raised?  This is not the case.  Therefore,

22     we have to adjourn, and we will notify the parties about the next day of

23     the hearing, probably -- probably in the first week of November.

24             We adjourn.

25                           --- Whereupon the hearing adjourned

Page 17971

 1                           at 11.44 a.m. sine die