Page 381
�1������������������������� Thursday, 13 July 2006
�2������������������������� [Further Appearance]
�3������������������������� [Open session]
�4������������������������� [The accused entered court]
�5������������������������� --- Upon commencing at 10.29 a.m.
�6����������� JUDGE ORIE:� Good morning to everyone.
�7����������� Mr. Registrar, would you please call the case.
�8����������� THE REGISTRAR:� Good morning, Your Honours.� This is case number
�9��� IT-96-23/2-I, the Prosecutor versus Dragan Zelenovic.
10����������� JUDGE ORIE:� Thank you, Mr. Registrar.
11����������� Could I have the appearances.� Prosecution first.
12����������� MS. UERTZ-RETZLAFF:� Good morning, Your Honour.� For the
13��� Prosecution, Hildegard Uertz-Retzlaff, and I appear here with case manager
14��� Verica Balikic.
15����������� JUDGE ORIE:� Thank you, Ms. Uertz-Retzlaff.
16����������� For the Defence.
17����������� MR. VAN DER SPOEL:� Good morning, Your Honour.� Tjarda Van der
18��� Spoel, duty counsel for Mr. Zelenovic.
19����� ������JUDGE ORIE:� Yes.� I see that Mr. Zelenovic is present as well.
20��� There seems to be a technical problem.
21����������� Do you hear me in a language you understand, Mr. Zelenovic?
22����������� THE ACCUSED:� [Microphone not activated].
23�������� ���JUDGE ORIE:� Yes.� I take it that you missed my first words.� I
24��� asked the registrar to call the case, and then I asked the parties to
25��� present themselves; Madam Uertz-Retzlaff for the Prosecution, Mr. Tjarda
Page 382
�1��� Van der Spoel as duty counsel.
�2����������� You may be seated, Mr. Zelenovic.
�3����������� Mr. Zelenovic, we are here this morning to invite you to enter a
�4��� plea -- you may be seated.� You don't have to stand all the time.� To
�5��� invite you to enter a plea.� You made your initial appearance on the 13th
�6��� of June, and you then have chosen to delay entering a plea.� According to
�7��� the Rules, you're allowed to do so for 30 days.� Therefore, we'll proceed.
�8����������� First of all, Mr. Zelenovic, you are still represented or assisted
�9��� by duty counsel, Mr. Van der Spoel.� I know that you wanted to be
10��� represented by another lawyer.� I also do understand that that would be
11��� Mr. Ognjanovic.� Is that correct?
12����������� THE ACCUSED:� [Microphone not activated].
13����������� JUDGE ORIE:� Mr. Zelenovic, did you have an opportunity to speak
14��� with Mr. Ognjanovic until now?
15����������� THE ACCUSED: [Interpretation] Yes.
16����������� JUDGE ORIE:� Did you discuss with him the indictment that is
17��� brought against you?
18����������� THE ACCUSED: [Interpretation] No.
19����������� JUDGE ORIE:� So therefore you then would not have discussed either
20��� whether you want to enter a plea of guilty or not guilty, or did you have
21��� an opportunity to speak with him about that?
22����������� THE ACCUSED: [Interpretation] Yes.� I spoke to him on the phone
23��� yesterday.� He is supposed to arrive at noon today.
24����������� JUDGE ORIE:� Yes.� We had scheduling problems to the extent that
25��� this hearing was scheduled.� From what I do understand, Mr. Ognjanovic did
Page 383
�1��� not fully yet qualify to be assigned as counsel.
�2����������� Let me ask Mr. Van der Spoel whether he has had any communication
�3��� with Mr. Ognjanovic.
�4����������� MR. VAN DER SPOEL:� No, Your Honour, I have not.
�5����������� I was quite worried about the lack of assignment of Defence
�6��� counsel to Mr. Zelenovic.� That's why I've communicated quite often with
�7��� OLAD and visited Mr. Zelenovic last week, Friday, to discuss his position
�8��� again, also if he wanted to discuss the indictment or other things that
�9��� could be of importance.� He said:� No, I am waiting for my fully assigned
10��� counsel.� Then again I phoned OLAD on Friday and then they told me that
11��� yesterday there should be a kind of language course or examination.� I was
12��� informed yesterday afternoon that that did not happen, and that next week
13��� again there will be another chance for the fully assigned counsel perhaps
14��� to pass that examination.
15����������� And that's the situation as I see it, Your Honour.
16����������� JUDGE ORIE:� Yes.
17����������� Mr. Zelenovic, please be seated.� It's not necessary to stand all
18��� the time.
19����������� Did you read the indictment in a version -- in your own language?
20����������� THE ACCUSED: [Interpretation] Yes.
21����������� JUDGE ORIE:� Did you understand what the charges against you are?
22����������� THE ACCUSED: [Interpretation] Yes.
23����������� JUDGE ORIE:� Upon the basis of your telephone conversation you
24��� said you had yesterday with Mr. Ognjanovic, do you feel that you are in a
25��� position to enter a plea, that is to tell me whether you consider yourself
Page 384
�1��� to be guilty or not guilty?
�2����������� THE ACCUSED: [Interpretation] He's supposed to arrive at noon, and
�3��� we are supposed to meet at 1.00.
�4����������� JUDGE ORIE:� Yes, Mr. Zelenovic, but --
�5����������� THE ACCUSED: [Interpretation] And he told me:� If you have to
�6��� enter a plea, enter a plea of not guilty, if you have to.� However, I
�7��� would like to see him first.� He did instruct me to plead not guilty if I
�8��� am asked to enter a plea before I meet with him.
�9����������� JUDGE ORIE:� Yes.� I suggest to the parties -- I'm informing the
10��� parties that I'm considering not to hear any plea today under the present
11��� circumstances.� It would be -- well, let's call of it a kind of an
12��� emergency not guilty plea, which doesn't make much sense under the present
13��� circumstances.� At the same time, I'm very concerned about the loss of
14��� time because if you have no plea this could delay further working on the
15��� case, both for Prosecution and Defence.
16����������� I also keep in mind that we're about to start a recess, which
17��� might cause a situation in which no substantial progress will be made
18��� anyhow.� So I'd like to hear from you, Madam Uertz-Retzlaff, and from you,
19��� Mr. Van der Spoel, whether you would be in favour of a decision not to
20��� hear any plea by the defendant today.
21����������� MS. UERTZ-RETZLAFF:� Your Honour, it's unfortunately -- the
22��� defendant didn't have time to discuss the matters with his chosen counsel.
23��� However, I think the Rule 62 doesn't really allow for delaying the plea
24��� any further because I think it's very firm about the 30 days from the
25��� initial appearance, and that's actually today.� And therefore, I think the
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�1��� best cause that I would suggest would be that you, Your Honour, declare a
�2��� not guilty plea on behalf of the Trial Chamber.
�3����������� JUDGE ORIE:� Yes.� Madam Uertz-Retzlaff, Rule 62 is one rule, but
�4��� Rule 127 -- would Rule 127 not apply in relation to Rule 62, in your view?
�5����������� MS. UERTZ-RETZLAFF:� Your Honour, I think it may apply, yes.
�6����������� JUDGE ORIE:� So therefore, Rule 62 might not be that cogent for me
�7��� to enter a plea on behalf of the accused if he does not enter a plea.� By
�8��� the way, he said that if he's -- has to enter a plea, he will enter a plea
�9��� of not guilty, which would give the same result.� But we then agree that
10��� under Rule 62, together with Rule 127, I'm not -- I don't have to force
11��� the accused to enter a plea today; and if he doesn't, to enter a plea on
12��� his behalf, which would be a not guilty plea.
13����������� MS. UERTZ-RETZLAFF:� Yes, Your Honour.
14����������� JUDGE ORIE:� Yes, Mr. Van der Spoel.
15����������� MR. VAN DER SPOEL:� I think your observations are quite correct
16��� concerning Rule 127 and 62.� And a good cause, of course, is something
17��� that you can't blame my client for.� He always wanted assigned counsel,
18��� and due to the proceedings, he hasn't been able to communicate with the
19��� chosen counsel, and he is very clear in his -- in his view that he does
20��� not want me to advise him.� I've tried on several occasions, tried to
21��� discuss the indictment with me.� But quite frankly -- and he said:� Yes,
22��� but you won't defend me in Bosnia and Herzegovina.� Perhaps you could
23��� defend me here but not there.� That's one of the reasons he wants a lawyer
24��� not only to defend him here at the ICTY in The Hague, but also if his case
25��� will be referred to Bosnia and Herzegovina.
Page 386
�1����������� So I think that your proposition is a very good one, that you
�2��� delay the decision until my client has been able to discuss his situation
�3��� and the indictment with his assigned counsel.
�4����������� JUDGE ORIE:� Yes.� This of course, Mr. Van der Spoel, is almost an
�5��� implicit not guilty plea because I do not remember that once in this
�6��� Tribunal a case was referred after an accused had entered a guilty plea.
�7��� Usually sentencing is dealt with by this Tribunal.
�8����������� So therefore, it's -- from everything I hear at this moment it is
�9��� a likelihood that there will be a not guilty plea entered, both from what
10��� you say and from what Mr. Zelenovic tells us.� So therefore, from a
11��� practical point of view it might not make that much of a difference, apart
12��� from disclosure perhaps.
13����������� Disclosure has not been done yet?
14����������� MS. UERTZ-RETZLAFF:� Your Honour, disclosure has been done.
15����������� JUDGE ORIE:� Has been done.
16����������� MS. UERTZ-RETZLAFF:� To the accused himself.
17����������� JUDGE ORIE:� Today to the accused himself?
18����������� MS. UERTZ-RETZLAFF:� No, actually yesterday.
19����������� JUDGE ORIE:� Yesterday.� Last time I made a mistake on the 13th of
20��� June about duty counsel, et cetera, what was still under discussion with
21��� the Association of Defence Counsel.� I remembered the discussions.� I'd
22��� forgotten that it had not resulted in any change of the Rules and it still
23��� has not resulted in any change of the Rules.� That would also mean that
24��� the time-limit for preliminary motions would then start as from today.
25����������� MS. UERTZ-RETZLAFF:� Yes, Your Honour, that's correct.
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�1����������� JUDGE ORIE:� That also means that Mr. Ognjanovic, if he will be
�2��� assigned counsel, if he takes over responsibilities from you, Mr. Van der
�3��� Spoel, he should be informed that since disclosure has taken place today
�4��� that he should keep in mind the time-limits set for any preliminary
�5��� motions under the Rules.� May I take it that you'll communicate with
�6��� Mr. Ognjanovic about this matter?� I do understand that he's passing a
�7��� language test, which at least gives us a fair expectation that you'll be
�8��� able to communicate with him?
�9����������� MR. VAN DER SPOEL:� Your Honour, I can promise you I will phone
10��� with OLAD and see if they can communicate with the chosen counsel.� If
11��� not, I will communicate myself with the chosen counsel to explain these
12��� proceedings and, indeed, that yesterday the disclosure has taken place.
13�� ���������JUDGE ORIE:� Yes.
14����������� Mr. Zelenovic, the fact that your counsel of choice has not,
15��� either directly or indirectly, discussed with you the indictment, has not
16��� advised you and has not gone with you through all the elements of the
17��� indictment advising you on whether to enter a guilty plea or a not guilty
18��� plea is of great concern to the Trial Chamber.� You had 30 days, and
19��� counsel, who was not qualified yet, could have taken steps in order to
20��� avoid further days.� He should have been aware of the time-limits set by
21��� Chamber, time-limit under Rule 62; he also should have been aware and
22��� should have contacted Mr. Van der Spoel if he wanted a variation of the
23��� time-limits under Rule 127, because Rule 127 asks for a motion and good
24��� cause being shown.� So it's of great concern to this Chamber that the
25��� counsel of preference has not, in anticipation of any assignment, has done
Page 388
�1��� what he should have done.
�2����������� The Registry is invited to send this portion of the transcript to
�3��� Ognjanovic once he is assigned, and Mr. Van der Spoel is invited to ensure
�4��� that Mr. Ognjanovic is aware of this criticism I'm expressing at this
�5��� moment.
�6����������� Of course we could, at this moment, choose the very formal route
�7��� that I would tell you that you have to enter a plea, or if you would not
�8��� do so that I would enter a plea on your behalf.� I prefer to hear a plea
�9��� entered after you have had an opportunity to discuss matters with your
10��� counsel of preference.
11����������� Therefore, although Rule 127 requires a motion, I consider it in
12��� the interests of justice that you'll be given another opportunity to enter
13��� a plea.� I will look after it that the hearing on which I'll hear that
14��� plea will be scheduled immediately after the recess, independent on
15��� whether your counsel has made any arrangements for his holidays.� I do not
16��� want to wait one minute more.� Of course, preferably, we would have
17��� scheduled another plea hearing tomorrow.� I will even look at it whether
18��� it's possible, but until now we did our utmost best to have another
19��� hearing tomorrow, but for scheduling reasons it was impossible.� I would
20��� even explore an opportunity to have a very early hearing, perhaps at 8.00
21��� or 8.30, so that we will not suffer any further delays.� But until now it
22��� turned out to be practically impossible, but I'll give it another effort.
23����������� So therefore, additional time will be given to you to discuss a
24��� plea with counsel of preference.� Counsel of preference should communicate
25��� with Mr. Van der Spoel because I do not expect him to be assigned before
Page 389
�1��� tomorrow, although you never know, but I do not expect him to be assigned.
�2��� Therefore, he should communicate with Mr. Van der Spoel after the meeting
�3��� you have later today what the advice is.� Mr. Van der Spoel is invited to
�4��� actively initiate such communication.� At the earliest possibility, we'll
�5��� schedule a hearing, if possible tomorrow, but if not immediately after the
�6��� recess, the recess that ends on the 7th of -- the recess that ends the
�7��� weekend before the 7th of August.
�8����������� Mr. Zelenovic, have you understood my decision, that is to give
�9��� you further time, either until tomorrow or certainly not later than
10��� immediately after the recess?
11����������� THE ACCUSED: [Interpretation] Yes, yes.� I can enter a plea
12��� tomorrow.� He told me it would take us three hours to discuss things, and
13��� after that you will be able to enter a plea.� In other words, I'm sure
14��� that I can enter a plea tomorrow.� He should be here at noon talking to
15��� me.
16����������� JUDGE ORIE:� Mr. Zelenovic, counsel should have been aware that
17��� this is the last of the 30 days, I think.� Counsel should have been aware
18��� that if he arrives only midday that he might be late, and the Trial
19��� Chamber did its utmost best to schedule for tomorrow but we had practical
20��� problems.� I mean, we've got three courtrooms, they're occupied the whole
21��� of the day by different Chambers.� So therefore, counsel should be aware
22��� that it's the Court that schedules the hearings and not counsel.� But I do
23��� understand that you're willing to cooperate and to enter a plea tomorrow
24��� if we can find a courtroom.
25����������� Then is there anything else related to your detention situation or
Page 390
�1��� to your health which you would like to raise?
�2����������� THE ACCUSED: [Interpretation] No, no, everything is normal.
�3����������� JUDGE ORIE:� Then we'll adjourn and the parties should remain
�4��� stand-by to receive information on when a new hearing will take place,
�5��� either tomorrow or immediately after the recess.
�6����������� We stand adjourned.
�7������������������������� --- Whereupon the Further Appearance
�8������������������������� adjourned at 10.53 a.m.
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