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�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

Page 385

�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.

Page 387

�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.

�9