BBC Russian

Page 435

�1�� Tuesday, 16 January 2007

�2�� [Motion Hearing]

�3�� [Open session]

�4�� [The accused entered court]

�5�� --- Upon commencing at 9.09 a.m.

�6�� JUDGE ORIE:� Good morning to everyone.

�7�� Madam Registrar, would you please call the case.

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

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

10�� JUDGE ORIE:� Thank you, Madam Registrar.

11�� Mr. Zelenovic, before we continue, do you hear me in a language

12�� you understand?

13�� THE ACCUSED: [Interpretation] [No interpretation]

14�� JUDGE ORIE:� I don't see your answer yet on the transcript, but I

15�� think you said yes.

16�� THE ACCUSED: [Interpretation] Yes.

17�� JUDGE ORIE:� Then I'd like to have the appearances.

18�� Prosecution first.

19�� MS. UERTZ-RETZLAFF:� Good morning, Your Honours.� My name is

20�� Hildegard Uertz-Retzlaff.� I appear here, accompanied by the case manager,

21�� Verica Balikic.

22�� JUDGE ORIE:� Thank you, Madam Uertz-Retzlaff.

23�� For the Defence.

24�� MR. JOVANOVIC: [Interpretation] Good morning, Your Honours.� My

25�� name is Zoran Jovanovic.� I'm representing Mr. Zelenovic, the accused.

Page 436

�1�� JUDGE ORIE:� Thank you, Mr. Jovanovic.

�2�� We are here to hear a joint motion, a joint motion for

�3�� consideration of a plea agreement between Dragan Zelenovic and the Office

�4�� of the Prosecutor, pursuant to Rule 62 ter, which was filed on the 14th of

�5�� December, confidentially.� But this is a public hearing, and since plea

�6�� agreements should be made public, we hear this motion in a public hearing.

�7�� At least I did not see any request for keeping the plea agreement

�8�� confidential, or is there any wish on behalf of the parties to keep

�9�� parts - I wouldn't say the whole of the plea agreement - confidential?

10�� MS. UERTZ-RETZLAFF:� No, Your Honour.� And as you can see from the

11�� filing that we would request in this hearing today that the Trial Chamber

12�� orders that the documentation attached to the motion be released as public

13�� documents.

14�� JUDGE ORIE:� Yes.

15�� Mr. Jovanovic, therefore, we'll have a look at the plea agreement,

16�� what actually was agreed upon.� The accused, Mr. Zelenovic, agreed,

17�� committed himself to enter a guilty plea on some of the charges.� They are

18�� set out in paragraph 2.� It would be a guilty plea to a total of seven

19�� counts, and they are specified in -- under 1 and 2 of paragraph 2 of the

20�� plea agreement.� The Prosecution commits itself to dropping the remainder

21�� of the counts in the indictment.� We will come to that in more detail at a

22�� later stage.

23�� Then there seems to be no agreement on what sentence should be

24�� proposed to the Trial Chamber.� The Prosecution will recommend 10 to 15

25�� years, and the Defence will recommend the Trial Chamber that it impose a

Page 437

�1�� term of imprisonment within the range of 7 to 10 years.� So there's no

�2�� full agreement, but the parties do understand from each other what to

�3�� expect from the other party under this plea agreement.� But there's no

�4�� joint proposal for sentence.

�5�� Then attached to the plea agreement is a factual basis on which

�6�� the parties agree.� We'll come to that in more detail in a moment as well.

�7�� And then we have the, if I could call that, the -- we have a close

�8�� cooperation by Mr. Zelenovic, and Mr. Zelenovic expresses in this plea

�9�� agreement that he understands certain matters, one of them being that the

10�� Chamber is not bound by any agreement on sentencing, not even on the

11�� ranges expressed by the Prosecution, but that the Trial Chamber can impose

12�� a sentence of maximum -- a life sentence.

13�� Then there's another commitment of Mr. Zelenovic, saying that

14�� regardless of the sentence imposed, he will not move to withdraw his

15�� guilty plea or appeal his conviction pursuant to this guilty plea.

16�� Although it does not expressly say so, the Chamber understands this as

17�� Mr. Zelenovic would still be free to appeal against sentence.

18�� MS. UERTZ-RETZLAFF:� Yes, Your Honour, that's correct.

19�� JUDGE ORIE:� Yes.� Then in paragraph 15, there is an issue of the

20�� Chamber taking into consideration any prison sentence imposed to the

21�� extent already in force abroad.� Is there any reason to believe for the

22�� parties that for the same acts, if ever a judgement was rendered in

23�� another country?

24�� MS. UERTZ-RETZLAFF:� No, Your Honour, there's no indication that

25�� this happened elsewhere.

Page 438

�1�� JUDGE ORIE:� Yes.� Well, then, the Chamber has some difficulty in

�2�� understanding the relevance of putting this if there is no judgement,

�3�� then -- because we might even be barred by a foreign judgement to exercise

�4�� our jurisdiction.� That takes quite a lot of things before we even could

�5�� enter -- we could even come to a conviction, because that requires all

�6�� kinds of additional matters, such as that it should not be a serious

�7�� judgement, because otherwise we are barred by the nebis in idem.� But I do

�8�� understand that there is no practical reason to assume that there is any

�9�� judgement anywhere for the same acts.

10�� Mr. Zelenovic in this plea agreement waives some of his rights,

11�� the right to plead not guilty.� That goes almost without saying that if

12�� you plead guilty, you waive the right of pleading not guilty, the right to

13�� prepare and put forward a defence at a public trial, the right to be tried

14�� without undue delay, although it might even go quicker this way; the right

15�� to be tried in his presence.� There will be no trial, just sentencing

16�� proceedings.� The right to examine witnesses or have examined witnesses.

17�� The right not to be compelled to testify against himself or to confess

18�� guilt.� Yes, of course, he waives the right to confess guilt because he

19�� pleads guilty.� The right to testify, to remain silent, and the right to

20�� appeal a finding of guilty or to appeal any pre-trial rulings.

21�� This is, in short, the summary content of the plea agreement.

22�� Before we continue, I'd like to see whether the plea agreement is

23�� clear, whether it's -- whether there are any remaining questions in

24�� relation to the plea agreement.

25�� [Trial Chamber confers]

Page 439

�1�� JUDGE ORIE:� Judge Moloto may have a few questions to the parties

�2�� in respect of the content of the plea agreement.

�3�� JUDGE MOLOTO:� Thank you very much.� With regard to paragraph 5 of

�4�� the factual statement, there is a reference to -- under number 10, after

�5�� referring to the 52 per cent, what I do want to understand is, is the

�6�� number 10 the number of people or is that 10 per cent?

�7�� MS. UERTZ-RETZLAFF:� Your Honour, it's actually 10 Muslims, as

�8�� persons, that remained in Foca.� Not 10 per cent but 10 persons.

�9�� JUDGE MOLOTO:� Ten persons, okay.� Thank you very much.

10 ��It is not absolutely clear to me, and it may very well be so that

11�� this paragraph refers to torture, but in paragraph 9, what crime is the

12�� accused alleged to have committed in that paragraph?� Is that rape or

13�� torture?� It may very well be that it's intended to be rape.

14�� MS. UERTZ-RETZLAFF:� Your Honour, it should be rape and torture.

15�� It's actually cumulative charging.

16�� JUDGE MOLOTO:� Okay.

17�� JUDGE ORIE:� Is there perhaps -- could I ask for a clarification.

18�� In the factual -- statement of facts, we, again, find rape, rape, rape,

19�� and never torture.� Is it to be understood that the facts described in the

20�� factual statement on which the parties agree, although rape is mentioned

21�� again and again, that it would cover the torture charges of the indictment

22�� as well?

23�� MS. UERTZ-RETZLAFF:� Yes, Your Honour.� As you can see when you

24�� look into the particular charges, they relate, actually, to the conduct

25�� that is described in the paragraphs before the charges.� And we always

Page 440

�1�� charged torture when the rape was actually related to, for instance, is in

�2�� this case here interrogation.� It was a punishment for not telling the

�3�� truth.� That's basically the torture motive.

�4�� JUDGE ORIE:� Thank you.

�5�� JUDGE MOLOTO:� In that respect, can we then -- because there are

�6�� more incidents of rape than the counts of rape themselves, or even the

�7�� counts of rape and torture put together.� My question then would be how do

�8�� we compute a count for purposes of this agreement?

�9�� MS. UERTZ-RETZLAFF:� Your Honour, you can actually see it from the

10�� indictment.� When you, for instance, starting with the events in Buk

11�� Bijela, if you look at the charges as they relate to Mr. Zelenovic, you

12�� can see that for all the conduct that is related to Buk Bijela,

13�� Mr. Zelenovic is actually charged cumulatively for torture and rape.� So

14�� there is in all these -- in all these incidents, there is always torture

15�� and always rape charged.� That same -- the same applies to the charges in

16�� relation to the Foca High School.� You can also -- when you look at the --

17�� at torture charges, count 13, you see also that it relates to all the

18�� incidents that were described in the paragraphs above.� The same applies

19�� to Partizan Sports Hall.� If you look at -- let me just see.� If you look

20�� at Count 41, you have, again, the torture charge.� And in the line above,

21�� you can see that they apply to all the acts that are described in the

22�� paragraphs above.� And finally, when it comes to the event in the fish

23�� restaurant, here, you have actually the only situation where only rape is

24 ��charged.� If you look at count 49, that's on the last page of the

25�� indictment, here you have the event in the fish restaurant and -- above

Page 441

�1�� the fish restaurant, actually, and here you see only a rape charge,

�2�� because this event is not related to any interrogation situation or any

�3�� other situation that includes torture purposes.

�4�� JUDGE MOLOTO:� Okay.� If we look again at paragraph 13 of the

�5�� factual basis, there seems to be a reference here to three occasions when

�6�� FWS-75 and FWS-87 were taken to an apartment building called Brena.� And

�7�� then the paragraph goes on to talk about the first occasion when the

�8�� accused and others are alleged to have raped FWS-75 in various ways, and

�9�� then the accused is also mentioned in respect of FWS-87.� I'm not quite

10�� sure now where is the third occasion where this happened within this

11�� paragraph, or is the third occasion been -- there in the next paragraph?

12�� MS. UERTZ-RETZLAFF:� No, Your Honour, it's actually -- let me just

13�� see.� In paragraph 13, we have actually three occasions where these two

14�� victims were raped in the apartment building Brena block --

15�� JUDGE MOLOTO:� Okay.

16�� MS. UERTZ-RETZLAFF:� -- and the next paragraph, 14, deals with two

17�� further occasions.

18�� JUDGE MOLOTO:� Yes.� But if you read paragraph 13, it says that

19�� between about the 18th of July and about the 13th of July, 1992, on three

20�� occasions, these two people were taken from Foca High School to an

21�� apartment building called Brena in the centre of Foca.� The building was

22�� near the Zelengora hotel and military headquarters of the Bosnian Serb

23�� forces.� Then in the same paragraph you then say, the first time the women

24�� went to an apartment owned by Dragan Zelenovic.� I'm anticipating that

25�� within that paragraph you must tell me about the second and the third

Page 442

�1�� time, because -- now, the second and third time could not be in the next

�2�� paragraph if you're dealing with the three occasions in paragraph 13.

�3�� This is the lack of clarity that I find.� I'm not quite sure, because

�4�� there's no further reference to the second and third time in this

�5�� paragraph 13.

�6�� MS. UERTZ-RETZLAFF:� Yes, Your Honour, you are right.� It's

�7�� actually -- I've now looked at the indictment again.� It's actually -- 6.8

�8�� is one rape and 6.9 are the two other rapes.� They are already indicated

�9�� in the first.

10�� JUDGE MOLOTO:� In the first one?

11�� MS. UERTZ-RETZLAFF:� Yes.� The first one refers to three occasions

12�� and describes the first one, and the next paragraph refers to the other

13�� two occasions.

14�� JUDGE MOLOTO:� Yes.� But then from a structural point of view, is

15�� that proper?� Is that helpful, to refer in one paragraph to three

16�� occasions and then deal with only one occasion and then move on to the

17�� next paragraph which doesn't refer to the three occasions and then deal

18�� with parts of the last paragraph in that paragraph?� My difficulty is, I

19�� found it very difficult to marry the incidents in the agreement with the

20�� indictment.� And when one says that the accused is pleading guilty to

21�� seven counts, three of which are torture and four of which are rape, I

22�� would like to be able to see in the agreement what actual counts in the

23�� indictment the accused is admitting to.� This is my difficulty.

24�� MS. UERTZ-RETZLAFF:� But, Your Honour, the indictment is actually

25�� charging in each of the counts several incidents.� The first group of

Page 443

�1�� incidents are actually the one related to Buk Bijela.� That's just one

�2�� count of rape and one count of torture.� And then there comes the next --

�3�� the next occasion.� That's the Foca High School.� And you have only one

�4�� torture charge and one rape charge, although you have several incidents.

�5�� And that's the same with the Partizan Sports Hall and the same -- the

�6�� last, the fish restaurant, is just one single rape.

�7�� JUDGE MOLOTO:� Okay.

�8�� MS. UERTZ-RETZLAFF:� And if you look at the structure of the

�9�� indictment, it starts, when it comes to the explanation regarding the

10�� charges, it starts with an overall count.� For instance, when you look at

11�� 6.6 -- sorry, I'm now in the wrong -- if you start again with Buk Bijela,

12�� the first paragraph describes the general events there and then followed

13�� by the separate rapes.� And that's the same with the situation in the

14�� Partizan Sports Hall that Your Honour referred to or in the Foca High

15�� School; that first you have an overall description of what happened and

16�� how often things happen and then you have the description of the separate

17�� rapes and incidents.� And there shouldn't be any problems because all

18�� incidents actually are combined in one charge of torture and one charge of

19�� rape.� So if the accused, as he actually did say, I didn't do incident 6.5

20�� or whatever, then you can easily actually see what the factual basis

21�� relates to.

22�� JUDGE MOLOTO:� Okay.

23�� MS. UERTZ-RETZLAFF:� In the factual basis, you always find --

24�� after a description, you always find a reference to the appropriate

25�� paragraph in the indictment.

Page 444

�1�� JUDGE MOLOTO:� I didn't think I'd found that, actually.� Oh, yes.

�2�� MS. UERTZ-RETZLAFF:� It's actually always at the end of the

�3�� paragraph.� It refers to the paragraph in the indictment.

�4�� JUDGE MOLOTO:� Okay.

�5�� MS. UERTZ-RETZLAFF:� And so it may be complicated, Your Honour,

�6�� and it may have been easier to perhaps change things more than we did, but

�7�� I thought it's understandable with the reference to the incidents.

�8�� JUDGE MOLOTO:� Let me ask you this question:� Do I understand you

�9�� to be saying the incidents under Buk Bijela constitute one charge, one

10�� count?

11�� MS. UERTZ-RETZLAFF:� Yes, Your Honour.

12�� JUDGE MOLOTO:� The incidents under Foca High School constitute

13�� another count.

14�� MS. UERTZ-RETZLAFF:� Yes.

15�� JUDGE MOLOTO:� And then also Partizan and then also the fish

16�� restaurant.� So it's four incidents --

17�� MS. UERTZ-RETZLAFF:� It's four locations.

18�� JUDGE MOLOTO:� Four locations, all of which are rape, the first

19�� three of which are torture, are torture and rape -- the first three are

20�� torture and rape, the last is rape.

21�� MS. UERTZ-RETZLAFF:� That's correct.

22�� JUDGE MOLOTO:� Hence three counts of torture, four counts of rape.

23�� MS. UERTZ-RETZLAFF:� That's correct, Your Honour.

24�� JUDGE MOLOTO:� That's how you explain it, in short?

25�� MS. UERTZ-RETZLAFF:� Yes.� That's correct, Your Honour.

Page 445

�1�� JUDGE MOLOTO:� It would have been very helpful if, perhaps, after

�2�� Buk Bijela it was written count 1, and then after Foca, count 2, whatever

�3�� the number.� But I now understand what you say.� I'm not quite sure

�4�� whether the explanation you gave is sufficient or whether it requires the

�5�� document or an amended indictment or an amended statement of agreement.

�6�� JUDGE ORIE:� I still have some problems with it.� Could we perhaps

�7�� do an exercise on one of the examples --

�8�� MS. UERTZ-RETZLAFF:� Yes.

�9�� JUDGE ORIE:� -- and then go back to the indictment.� Foca High

10�� School.� Judge Moloto has already asked for your clarification on the

11�� indictment, 6.8, where you say 6.8 describes one incident and that's,

12�� therefore, a mistake.� It says that on three occasions, one of them is

13�� only covered by 6.8, and you say the other two are covered by 6.9, where

14�� it is between the 8th of July and about the 13th of July, 1992, on two

15�� occasions, you say the other two are remaining.

16�� MS. UERTZ-RETZLAFF:� Yes.

17�� JUDGE ORIE:� So where is 6.10 on another occasion?

18�� MS. UERTZ-RETZLAFF:� That's another occasion, but you can

19�� distinguish it here because it's a different location where the rape

20�� occurs.

21�� JUDGE ORIE:� Different location?

22�� MS. UERTZ-RETZLAFF:� Yes.� If you see here, 6.10 happens in an

23� ��abandoned house of a Muslim policeman in Gornje Polje.� That's a

24�� distinguishing factor.� It's a rape at the same point in time but at a

25�� different location and actually including a third victim.

Page 446

�1�� JUDGE ORIE:� Yes, although it's still Foca High School --

�2�� MS. UERTZ-RETZLAFF:� Yes.

�3�� JUDGE ORIE:� -- so we have two levels of locations.� One we find

�4�� in the headings, but there are differences in location within the

�5�� paragraphs as well.

�6�� MS. UERTZ-RETZLAFF:� Yes.� And there's also -- in Foca High

�7�� School, you actually have also in 6.6 the location where the women are

�8�� actually raped in the high school itself.

�9�� JUDGE ORIE:� Yes.� That's now clear to me.

10�� Now, we have -- so if there is an agreement that Mr. Zelenovic

11�� pleads guilty to count 13, which -- yes, in count 13, as we find it under

12�� 2(ii), two counts charge crime against humanity, torture, and 13 and 14,

13�� that's torture and rape, that covers, as is said, 6.8, 6.9, and 6.10, from

14�� what I read in 2, under -- on page 2 of the indictment.� So 6.8, 6.9 and

15�� 6.10 in the indictment are covered by count 13, so a guilty plea --

16�� MS. UERTZ-RETZLAFF:� No, Your Honour, that's not correct.

17�� JUDGE ORIE:� Yes.

18�� MS. UERTZ-RETZLAFF:� What you need to read is actually -- when you

19�� look into the plea agreement, paragraph 2, you have to read the chapter

20�� (i) and (ii) in conjunction.� You can see here we have listed the

21�� paragraphs, and Foca High School, that's 6.6, 6.8, 6.9 and 6.10, and I

22�� think you omitted 6.6.

23�� JUDGE ORIE:� Yes, that's right.� But since I started asking

24�� questions starting with 6.8, I limited it to that.� But I fully agree that

25�� 6.6 is ...

Page 447

�1�� Now, I would like to focus on 6.8, 6.9, 6.10, because you

�2�� explained that 6.8 is -- although it says three occasions, describes only

�3�� the first incident.

�4�� MS. UERTZ-RETZLAFF:� Yes.

�5�� JUDGE ORIE:� Then 6.9, we find the two remaining incidents that

�6�� were referred to in 6.8.

�7�� MS. UERTZ-RETZLAFF:� Yes.

�8�� JUDGE ORIE:� And now in 6.10, you say there is another incident on

�9�� a slightly different location.� That's the abandoned house.� So if

10�� Mr. Zelenovic pleads guilty to count 13, does he plead guilty to 6.6, 6.8,

11�� 6.9 and 6.10, all these incidents?

12�� MS. UERTZ-RETZLAFF:� Yes, Your Honour.

13�� JUDGE ORIE: �Now, if I look at the agreement of facts, I see no

14�� reference to the victim ZG who is mentioned in 6.10.� How do I have to

15�� understand that?� I mean Mr. Zelenovic took ZG to that abandoned house

16�� where she was raped by an unidentified soldier.� Is that torture, bringing

17�� her there and allowing that she was raped by this unidentified soldier?

18�� Is this aiding and abetting to this rape and to torture by bringing her

19�� there?� ZG is not mentioned in any way in the agreement on facts.

20�� Nevertheless, it is covered by 6.10 and therefore would fall within the

21�� scope of a guilty plea on count 13, although nothing is said about it in

22�� the agreement on facts, the factual statement.� Could you explain that.

23�� MS. UERTZ-RETZLAFF:� Your Honour, as far as I remember, the reason

24�� for not putting ZG into number 15 was that Mr. Zelenovic did not remember

25�� ZG and we wanted to base the guilty plea on what he actually, himself,

Page 448

�1�� remembers.

�2�� JUDGE ORIE:� So his guilty plea on 13, counts 13 and 14, would not

�3�� cover, as is said in the plea agreement, the whole of 6.10, but would

�4�� cover only part of 6.10 and would, as a matter of fact, in respect of

�5�� witness -- of victim ZG, would be a not guilty plea, a plea of not guilty,

�6�� because, as you said, he doesn't remember he wants to admit guilt on

�7�� victim ZG.

�8�� MS. UERTZ-RETZLAFF:� My understanding, Your Honour, is that he

�9�� actually admits to have raped -- has actually taken part in the incident

10�� 6.10 and admits to it, but that he only does not recall a third person

11�� being present.

12�� JUDGE ORIE:� Yes, but --

13�� MS. UERTZ-RETZLAFF:� So I think he pleads guilty to 6.10.

14�� JUDGE ORIE:� To everything, also to ZG?� Even if he doesn't

15�� remember, he nevertheless pleads guilty on victim ZG?

16�� MS. UERTZ-RETZLAFF:� I think so.� I think he should be asked about

17�� this.� It was my understanding --

18�� JUDGE ORIE:� Let's ask Mr. Jovanovic on how he understands this.

19�� Mr. Jovanovic, as a matter of fact, I'd like to stress that

20�� whenever Madam Uertz-Retzlaff says anything about explaining what the plea

21�� agreement says, that of course if you disagree, I would expect you to jump

22�� up immediately and to inform us that that is not your understanding of the

23�� plea agreement.

24�� But specifically now your view is asked on counts 13 and 14 in

25�� relation to paragraph 6.10 of the indictment mentioning victim ZG, where

Page 449

�1�� we do not find anything about -- in the statement of facts about victim

�2�� ZG.

�3�� MR. JOVANOVIC: [Interpretation] Yes, Your Honour.� Thank you.� I

�4�� was sure I would have a chance to say what I have to say about this.� The

�5�� plea agreement is quite clear.� It refers to only two victims, FWS-75 and

�6�� FWS-87.� In the statement of facts, the Prosecution agreed to orally amend

�7�� the indictment rather than amending the indictment in writing.� Our

�8�� understanding was that Mr. Dragan Zelenovic would plead guilty to events

�9�� concerning victims FWS-75 and FWS-87, not any other victim mentioned in

10�� the indictment.� Therefore, the Defence expects the Prosecution to amend

11 ��the description of events mentioned in paragraph 6.10 of the indictment as

12�� it refers to victim ZG.

13�� JUDGE ORIE:� Yes.� Now, where do I exactly find this definition of

14�� pleading guilty in respect of victims FWS-75 and 87?� Because what I find,

15�� as a matter of fact, in 2(i) and 2(ii) is not a reference to victims but a

16�� reference to paragraphs in the indictment, one of them clearly including

17�� victim ZG, and that's in 6.10.� So where do I read in the agreement that

18 ��it's based on the identity of the victims, as you just mentioned them,

19�� rather than paragraphs of the indictment and counts of the indictment?

20�� Could you point to me, where do I find this?� Is there any reference at

21�� all to the identity of the victims, not in the statement of facts but in

22�� the plea agreement?

23�� Perhaps Madam Uertz-Retzlaff could assist you.

24�� MS. UERTZ-RETZLAFF:� Yes.� Actually, in the plea agreement,

25�� references are actually made to the incident Mr. Zelenovic accepted, and

Page 450

�1�� wherever he actually accepted that other victims were involved, it is

�2�� expressed in the factual basis.� But in relation to ZG, as she's not

�3�� mentioned here, he did not agree that she was present, or rather didn't

�4�� recall.

�5�� JUDGE ORIE:� Madam Uertz-Retzlaff, you now expect this Chamber to

�6�� accept a guilty plea on counts and paragraphs of the indictment clearly

�7�� described - and I'm focusing now on 6.10 - where we find his involvement

�8�� in victim ZG being raped, he would then plead guilty to count 13, he would

�9�� plead guilty specifically in respect of the incident described in 6.10,

10�� and now we have to deduce from the statement of facts that this, of

11�� course, does not include one of the victims described in 6.10?� Is that

12�� what you expect this Chamber to do?

13�� And for you the same, Mr. Jovanovic.� How are we going to receive

14�� such a plea?� We say Mr. Zelenovic, do you plead guilty to, or not guilty

15�� to count 13, covering paragraphs so and so and so.� He says yes.� And then

16�� somewhere in the back of our mind, it should be that this does not include

17�� one of the victims specifically mentioned in 6.10.

18�� MS. UERTZ-RETZLAFF:� Your Honour, actually we thought that we

19�� could clarify this when he pleads to the particular counts, if he would --

20�� he would, for instance, say, when it comes to the count 13, he would say,

21�� including the incidents, numbering them, and say in relation to 6.10, this

22�� does not include the victim ZG.� This is actually what we had in mind.

23�� JUDGE ORIE:� Yes, yes.� Usually, as you know, if the Chamber is

24�� inviting an accused to enter a plea, we usually ask him whether he pleads

25�� guilty or not guilty and not to give a full statement of what is included

Page 451

�1�� and what is not included, et cetera.� That at least for me would be a

�2�� totally new procedure.

�3�� MS. UERTZ-RETZLAFF:� What I actually could propose, Your Honour,

�4�� is we could redact the indictment, and actually redacting everything not

�5�� pleaded to.� That means we could redact the paragraphs that are now --

�6�� that are not pleaded to, the paragraphs -- the incidents, basically, and

�7�� also redact, if it is as in 6.10, redact in 6.10 the victim ZG.� And we

�8�� could actually redact everything that he's not pleading to.

�9�� JUDGE MOLOTO:� Would it not be helpful, madam, if you perhaps

10�� formulated an amended indictment, including only the incidents admitted

11�� to?� Then when we say, "Mr. Zelenovic, do you plead guilty to count 6 as

12�� amended," then he pleads to guilty to count 6 as amended, and specifying

13�� only the incidents he admits to.� Would it -- that would cut across the

14�� whole problem?

15�� MS. UERTZ-RETZLAFF:� If you prefer this.� I thought the redactions

16�� would actually have the same purpose.� But if you prefer to have an

17�� amended indictment, of course we can do that.

18�� JUDGE MOLOTO:� The amended indictment is that it would be short

19�� and sweet and concise, to the point, and it would only deal with the

20�� issues that he admits to and you don't have to look at what has been

21�� redacted and what has not been redacted.� You can say this document, as it

22�� stands, encompasses the entire incidents that the accused admits, and we

23�� put that to him and he agrees to it.

24�� JUDGE ORIE:� Yes.� We'll see how we proceed.� We might have some

25�� other questions as well.

Page 452

�1�� You drew my attention, Madam Uertz-Retzlaff, to 6.6 earlier.� In

�2�� 6.6, for example, we find victim FWS-50.� That is 6.6 to which the accused

�3�� committed to plead guilty as well under count 13 and 14.� But do I now

�4�� have to understand that FWS-50 is not included in the guilty plea, just as

�5�� ZG would not be included in the guilty plea?

�6�� MS. UERTZ-RETZLAFF:� Your Honour, the incident involving,

�7�� actually, five women is included in the guilty plea but not the identity

�8�� of the women.� So the accused actually says, "I was involved in taking out

�9�� five victims --"

10�� JUDGE ORIE:� Yes.

11�� MS. UERTZ-RETZLAFF:� -- but not specifying --

12�� JUDGE ORIE:� So not necessarily FWS-50.� So if there would be a

13�� guilty plea on counts 13 and 14 in relation to 6.6, that would be a guilty

14�� plea on this incident but not including the identity at least of these --

15�� MS. UERTZ-RETZLAFF:� Other three, yes.

16�� JUDGE ORIE:� -- other --

17�� MS. UERTZ-RETZLAFF:� Yes.� Actually, other two.

18�� JUDGE ORIE:� It leaves a lot of guessing, which the Chamber is not

19�� very much in favour of if we're talking about guilty pleas.

20�� Okay.� At least we have to find a solution for this.� Let's see

21�� whether there are any other questions.� Let me just have a look.� One

22�� second.

23�� You said there were five women in 6.6 --

24�� MS. UERTZ-RETZLAFF:� Four.� I made a mistake, Your Honour.� Four.

25�� JUDGE ORIE:� Yes.� Yes.� So it's not the other three but the other

Page 453

�1�� two.� Yes.� Now I understand.� This has been clarified by now, because I

�2�� couldn't find the five.

�3�� Now let's see whether all the -- may I ask your attention to

�4�� paragraph 9 of the factual statement.� We see that Mr. Zelenovic is not

�5�� charged with raping, himself, victim FWS-75.� How do we have to understand

�6�� his participation, apart from I do understand it's torture.� But he didn't

�7�� rape her.� Is it co-perpetratorship?� Is it aiding and abetting?� How do

�8�� we have to understand this?

�9�� MS. UERTZ-RETZLAFF:� In relation to point 9, it's aiding and

10�� abetting.

11�� JUDGE ORIE:� It is aiding and abetting, okay.� So, as a matter of

12�� fact, in relation to -- let me just find the ...

13�� We find that in the indictment exactly in paragraph -- paragraph 9

14�� would be 5.4 in the indictment; is that correct?� Where, now, is the

15�� aiding and abetting --

16�� MS. UERTZ-RETZLAFF:� Yes, Your Honour, it's 5.4.

17�� JUDGE ORIE:� Where do we find that a guilty plea in relation to

18�� 5.4 would be pleading guilty to aiding and abetting to this incident?

19�� Where do I find that?� It's a form of responsibility, which is not ...

20�� MS. UERTZ-RETZLAFF:� It's not in there, Your Honour.

21�� JUDGE ORIE:� It's not in there.� Okay.� Let's see whether there

22�� are any other matters.

23�� We have to turn to, I think, paragraph 19 of the factual

24�� statement.� Yes.� In paragraph 19 of the factual statement, it

25�� says, "After July --"� "During July 1992, Dragan Zelenovic took FWS-87

Page 454

�1�� from Partizan and gang-raped her along with three other co-perpetrators."

�2�� Is that one incident?� Because 19 starts with a pattern of sexual assaults

�3�� commenced.� "Armed soldiers, Muslim groups of three to five, entered

�4�� Partizan usually in the evenings and removed --"� Is Mr. Zelenovic -- he

�5�� is charged with one rape or with more rapes?

�6�� MS. UERTZ-RETZLAFF:� Yes, Your Honour.� One rape.

�7�� JUDGE ORIE:� Just one rape.� Of course that's enough.� Then the

�8�� issue of rape and torture you have clarified.

�9�� Is it always clear for all of these incidents - because to me it's

10�� not, although the general description is that women were taken and were

11�� interrogated - but for each of the incidents, the link with the

12�� interrogations is not always explicit.� Do I have to understand this:

13�� That you link the rape and the whole of the context with interrogations

14�� or -- because not always we see a clear link between interrogations,

15�� denying to answer and then a rape.� Is it a general link that you consider

16�� to be sufficient?

17�� MS. UERTZ-RETZLAFF:� Your Honour, it's not only -- the torture

18�� charge is not only related to interrogation, it's also related, as it says

19�� in the -- I think it should say -- actually, in the general allegations,

20�� it should be specified.

21�� JUDGE ORIE:� General allegations in the indictment?

22�� MS. UERTZ-RETZLAFF:� Yes, in the indictment.

23�� JUDGE ORIE:� Yes.� Would you please ...

24�� MS. UERTZ-RETZLAFF:� Your Honour, it's not.� I thought it was but

25�� it's not.� You can -- in relation to the torture counts, there's not only

Page 455

�1�� the purpose of interrogation but also the torture purpose of

�2�� discrimination.� It says, actually, in the plea agreement, under paragraph

�3�� 5, it refers to the torture -- the torture purposes that are actually

�4�� mentioned here.

�5�� JUDGE ORIE:� Yes, but --

�6�� MS. UERTZ-RETZLAFF:� And it refers to punishment, intimidation,

�7�� coercion of a third person, or discrimination as ground for the purpose --

�8�� the torture charge.

�9�� JUDGE ORIE:� Yes.

10�� MS. UERTZ-RETZLAFF:� It's not particularly specified in the

11�� indictment which one applies, but it's here mentioned in the -- in the

12�� plea agreement.

13�� JUDGE ORIE:� Now you said that in the count in the indictment

14�� where only rape is charged - that was, I think, 41 --

15�� MS. UERTZ-RETZLAFF:� Yes, it's the last incident.

16�� JUDGE ORIE:� Was that not discriminatory, then, or -- you

17�� explained to us why it was -- no, it's not 41, it's --

18�� MS. UERTZ-RETZLAFF:� It's 49, Your Honour.

19�� JUDGE ORIE:� -- 49, yes.� Was there no discrimination there?� You

20�� explained to us why it was just rape, and you said it was because there

21�� was no interrogation.� I now understand that it's not only interrogation

22�� but discrimination which raises immediately the question whether the rape,

23�� under count 49, was not of a discriminatory nature.

24�� MS. UERTZ-RETZLAFF:� Your Honour, we decided it to charge it this

25�� way, and it's a long time ago.� I must admit I do not recall it any

Page 456

�1�� longer.

�2�� JUDGE ORIE:� Nevertheless, but --

�3�� MS. UERTZ-RETZLAFF:� But --

�4�� JUDGE ORIE:� But you gave us an explanation a minute ago why it

�5�� was.

�6�� MS. UERTZ-RETZLAFF:� Yes, that's right, but I do not recall the

�7�� reason why in this particular incident we did only charge rape.

�8�� JUDGE ORIE:� Yes.� When it would come to your mind, then we'd like

�9�� to further hear from you.� Yes.

10�� MS. UERTZ-RETZLAFF:� I seem to recall, Your Honour --

11�� JUDGE ORIE:� Yes.

12�� MS. UERTZ-RETZLAFF:� -- when you look at the indictment, what we

13�� have here, the other two locations are actually camp locations where the

14�� women were actually abused and taken away in the front of others,

15�� terrifying others, showing openly to the audience what is happening or

16�� going to happen to the victims.� And here with the last rape, it's sort of

17�� a different scenario.� I seem to recall that that was the reason why we

18�� said this was more the regular rape scenario, while in the other

19�� incidents, with the camp situation and all the other victims that were

20�� detained watching what's going on, that has quite a different impact on

21�� the group of the victims as such, as the Muslim -- as the Muslims as such.

22�� JUDGE ORIE:� It now seems that the public character, more or less,

23�� becomes the criteria rather than --

24�� MS. UERTZ-RETZLAFF:� I seem to recall that we made a distinction

25�� between the two scenarios.

Page 457

�1�� JUDGE ORIE:� Okay.� That's clear to me now.

�2�� JUDGE MOLOTO:� Do I understand that the other one was done in

�3�� private?

�4�� MS. UERTZ-RETZLAFF:� Yes.� The women were actually taken away from

�5�� Karaman's House, relocated to Foca, and in the course of this relocation,

�6�� they were raped as one incident in the fish -- above the fish restaurant,

�7�� and it was not so obvious to other groups of victims.� At that time there

�8�� was no -- the groups of victims that were actually taken from the villages

�9�� were no more together, and it was -- it had, in the other locations, the

10�� effect that the women were taken out and raped.� It was actually also a

11�� huge impact on the other victims that were not raped at that time, but it

12�� had a severe impact on them.

13�� JUDGE MOLOTO:� What then constitutes torture from the point of

14�� view of the Prosecution?� Is it the public nature of the incident --

15�� MS. UERTZ-RETZLAFF:� No, the purpose.

16�� JUDGE MOLOTO:� Well, fair enough.� The purpose could be, we're

17�� going to do it publicly so as a intimidate and terrorise the audience as

18�� well as the victims.� But I'm asking you, what is the purpose, from the

19�� point of view of the Prosecution, that what constitutes torture?� Is it

20�� the public nature of the incident?� Is it the discriminatory nature of the

21�� incident?� Or is it what you mentioned in the beginning which was that

22�� a -- I can't remember now, the very first reason why you distinguished

23�� between the three occasions and the last occasion.� You gave a reason.

24�� MS. UERTZ-RETZLAFF:� Your Honour, we have listed in the plea

25�� agreement the situations of torture, the torture purposes that applied in

Page 458

�1�� this case, and it is actually -- the first one is obtaining information or

�2�� confession.� That is clearly related to Buk Bijela.� And the second one is

�3�� actually punishing and intimidating or coercion of victim or third person;

�4�� that is clearly related to the other camp conditions.� And finally there

�5�� is also discrimination that also applies.

�6�� JUDGE ORIE:� So do I understand you well that you say that by the

�7�� incident near to the fish restaurant, there was not like in other

�8�� situations intimidation of third persons --

�9�� MS. UERTZ-RETZLAFF:� Yes.

10�� JUDGE ORIE:� -- who were observing the victims to be taken away

11�� for purposes of being raped, where to that extent there were no third

12�� persons present there?

13�� MS. UERTZ-RETZLAFF:� Yes, Your Honour, that was the distinction, I

14�� think, that we made at that time.

15�� JUDGE ORIE:� Well, there's still discrimination, or is it not?

16�� MS. UERTZ-RETZLAFF:� Yes, Your Honour.

17�� JUDGE ORIE:� So for that reason, torture could have been there

18�� under --

19�� MS. UERTZ-RETZLAFF:� Yes, but we have chosen not to do that.

20�� JUDGE ORIE:� Okay.� That at least answers some of the questions.

21�� Now, you've just told us that victim ZG was not included in the

22�� agreement because Mr. Zelenovic did not remember witness ZG.� At the same

23�� time we see that the victims, for example, FWS-50, which he doesn't

24�� remember, is still included as one out of four women.� Was the position --

25�� perhaps I'd better ask Mr. Jovanovic.� Is the position that the witness ZG

Page 459

�1�� and the other two witnesses that are, I would say, more or less, excluded

�2�� from the guilty plea - these are -- let me just have a look.� These are

�3�� witnesses -- well, the two other witnesses - let me just find them - that

�4�� Mr. Zelenovic -- it is witness FWS-95 and FWS-50.� Is it that

�5�� Mr. Zelenovic does not remember their identity or does he not remember

�6�� that they were victimised -- no, it is 48, 50, and 95.� What's the

�7�� position of the Defence to enter a plea of not guilty in relation to these

�8�� victims?

�9�� MR. JOVANOVIC: [Interpretation] Your Honour, as I have already

10�� mentioned, the view of the Defence and Mr. Zelenovic himself is that he

11�� accepts the events alleged in relation to FWS-75 and 87.� So I don't think

12�� that it is correct to say that he does not remember their identity.� He

13�� simply does not plead guilty in relation to the events as described in the

14�� indictment in which the victims were 48, FWS-48 and 95 and ZG.� So that's

15�� our agreement with the Prosecution.� And as I have already said, we have

16�� the agreement that the Prosecution was going to amend the indictment

17�� orally here today at this hearing.� That's what we expected.

18�� So let me repeat:� Mr. Zelenovic does not plead guilty about the

19�� events in which other victims were involved, except FWS-75 and 87.

20�� JUDGE ORIE:� Well, then, perhaps I should ask Madam

21�� Uertz-Retzlaff.

22�� Madam Uertz-Retzlaff, it seems that for unknown reasons, apart

23�� from the four persons I just mentioned, for unknown reasons, Mr. Zelenovic

24�� does not plead guilty, whether he doesn't remember their identity or

25�� whether for any other reason, on charges you've brought against him and

Page 460

�1�� where the Confirming Judge has established that there's a prima facie case

�2�� for that.� What's your view on what this means for the other victims, the

�3�� victims to which Mr. Zelenovic does not plead guilty and where you stated

�4�� in the beginning of the proceedings that you had a prima facie case?� And

�5�� have you discussed with Mr. Jovanovic that in order to amend the

�6�� indictment, you need the approval of the Chamber?

�7�� I mean, let me put it quite bluntly:� To what extent is the

�8�� Prosecution involved in an exercise in which half of the victims are just

�9�� devictimised for unknown reasons?

10�� MS. UERTZ-RETZLAFF:� Your Honour, it was a long discussion between

11�� the Prosecution and the Defence, and I actually have a memo on what the

12�� discussion was.� And the position of Mr. Zelenovic always was, "I admit to

13�� certain incidents, but I have no recollection of being Foca 8, involved

14�� FWS-50, being FWS-95 involved."� This is why the factual basis actually

15�� refers -- and ZG.� I forgot to mention here.� This is why the factual

16�� basis refers in these cases to either not mentioning a third women, like

17�� in the case of ZG, or in the other cases, referring to other women, two

18�� other women or referring to -- yeah, basically two other women.� And

19�� that's -- that was the agreement, that when Mr. Zelenovic does not recall

20�� certain victims, but it was clear from the evidence in the Kunarac case

21�� that in a certain incident, four women were involved, then actually the

22�� four women are mentioned in the factual basis but only given the two

23�� identities that Mr. Zelenovic knows about.� Because if all the victims

24�� basically say, "We were taken out in a group from the classroom in Foca

25�� High School and Mr. Zelenovic took us out, and we were four," then it

Page 461

�1�� can't be that in the factual basis and in the plea that it's only two now.

�2�� But where -- where Mr. Zelenovic, on the other hand, says, "I do recall

�3�� the incident as such with the four women, but I don't know two

�4�� identities," then that's why we changed it.� So that's why the incident in

�5�� 6.6 involves four victims and the incidents above the fish restaurant

�6�� involves four victims.� We're not actually dropping those.

�7�� JUDGE ORIE:� Yes.� Nevertheless it seems that Mr. Jovanovic has a

�8�� bit of a different understanding of the plea agreement.� He says that the

�9�� not guilty pleas are not based on not knowing the identity, because we are

10�� now faced with a not easy situation.� There will be a guilty plea on count

11�� 49, from what I understand.� Let me just verify that.� A guilty plea on 49

12�� with two witnesses mentioned by name and two witnesses of which we do not

13�� have the identity.� Mr. Zelenovic pleads guilty also to the two other

14�� women.� For Mr. Jovanovic, I understand that he says there's a guilty plea

15�� only on FWS-75 and 87, not on anyone else.� And he also says that the

16�� pleas of not guilty on the other counts is not because he doesn't remember

17�� the identity.

18�� The Chamber is puzzled by where it takes it that the Confirming

19�� Judge considered to be a prima facie there, that just on the basis of

20�� Mr. Zelenovic saying, "I do not remember," to just take out these victims.

21�� And the other issue being that Mr. Jovanovic tells us that it's only 75

22�� and 87, whereas you explained to us that count 49, under 9.1 in the

23�� indictment, covers two known and two unknown women, that Mr. Jovanovic

24�� seems to suggest that it's only 75 and 87.� Could you, perhaps, clarify?

25�� Is there a misunderstanding, Mr. Jovanovic?

Page 462

�1�� MS. UERTZ-RETZLAFF:� But, Your Honour, if you look at paragraph 22

�2�� of the -- of the factual basis --

�3�� JUDGE ORIE:� Yes.

�4�� MS. UERTZ-RETZLAFF:� -- it's clearly here stating, "on or about 30

�5�� October 1992, victim 75 and 87 and two other females were taken from

�6�� Karaman's House."

�7�� JUDGE ORIE:� Yes.

�8�� MS. UERTZ-RETZLAFF:� -- "and were raped in the apartment above the

�9�� fish restaurant."� And Mr. Zelenovic rapes 87.

10�� JUDGE ORIE:� I agree that it's in the factual statement, but

11�� Mr. Jovanovic tells us it's only 75 and 87.� I hate to use only the

12�� numbers.

13�� Mr. Jovanovic, would I have to understand your earlier remark that

14�� it was only a guilty plea on victims FWS-75 and 87 to be extended also to

15�� unknown victims or unidentified victims specifically mentioned in the

16�� counts, in the incidents, and in the factual statement?

17�� MR. JOVANOVIC: [Interpretation] Your Honours, it is precisely what

18�� it says in paragraph 2 of the factual basis.� This is what Mr. Zelenovic

19�� accepted.� He accepted that on that occasion women FWS-75 and 87 were

20�� taken out, plus two other women.� So that is not contentious.� But for him

21�� to say that he doesn't remember or doesn't know the identity, that allows

22�� for the possibility that these were the victims stated in the indictment.

23�� However, Mr. Zelenovic simply cannot accept the counts for torture and

24�� rape of 48, 95 and ZG, which was described in paragraph 60.

25�� His plea agreement covers his admission of events in relation to

Page 463

�1�� 75 and 87 and the events as described in paragraph 2 -- 22, namely, that

�2�� two other women were present.� However, the formulation cannot be such

�3�� that those two other women were mentioned in the indictment but were not

�4�� 75 and 87.

�5�� JUDGE ORIE:� Now, you say in 60, paragraph 60, he could not accept

�6�� that.� Is that because he says that such an incident did not take place,

�7�� or does he say "it may have taken place but I don't remember," or "I do

�8�� not remember whether these women were victims in such an incident"?

�9�� MR. JOVANOVIC: [Interpretation] Your Honour, let me make a

10�� correction.� It says paragraph 60 in the transcript, whereas what I had in

11�� mind was the paragraph of the indictment 6.10, where it says that an

12�� unidentified soldier raped ZG; that is to say, that Mr. Zelenovic does not

13�� accept responsibility for this rape of victim ZG by an unidentified

14�� soldier.� And this is why the Defence insisted that the victim ZG, as

15�� described in paragraph 6.10 of the indictment, not be included in the

16�� statement of facts.

17�� JUDGE ORIE:� Again, and that's the basic question, if he says "I

18�� can't plead guilty," of course he's not under any duty -- he's entirely

19�� free to plead guilty or not guilty, but the Chamber will be confronted

20�� with a different matter, and that is if the supporting material for the

21�� indictment strongly supports that not only victims 75 and 87 were victims

22�� of these crimes but others as well, whether the Chamber is much inclined

23�� to say a guilty plea on one or two victims and that is good enough, in

24�� other words, let the rest go.� Therefore, more or less, I'm inquiring into

25�� what is the basis of your agreement on this?

Page 464

�1�� MS. UERTZ-RETZLAFF:� Your Honour, the basis of the -- when

�2�� discussing the different incidents, the Prosecution looked, of course,

�3�� what was the outcome of the Kunarac case and we also looked at the

�4�� statements that were given by the victims involved.� And in relation to,

�5�� for instance, the fish restaurant incident or the first incident in the

�6�� Foca High School, the witnesses are very precise.� They said, "Four of us

�7�� were taken and we were raped by the perpetrators, including

�8�� Mr. Zelenovic."

�9�� In relation to the incident involving ZG, only, as far as I

10�� remember it now correctly, only one of the victims - I think it's 75 -

11�� actually said, "We were three."� And I seem -- so many details, but I seem

12�� to recall that the other one did not mention ZG.� But I would have to

13�� check that now.� And that was always then the result, as it is not 100 per

14�� cent clear whether it was ZG involved there.� And that's actually the

15�� incident here that is -- that we are most concerned with.� That's why we

16�� then dropped ZG.

17�� JUDGE ORIE:� Yes.� So I do understand that whenever you accepted

18�� an agreement on a non-guilty plea, that you had in the back of your mind

19�� that you might face some problems in producing sufficient evidence; is

20�� that it?

21�� MS. UERTZ-RETZLAFF:� Yes, Your Honour, that's the point.� And

22�� also -- I have to also stress the point that in the Kunarac case,

23�� Mr. Zelenovic, of course, was not an issue, so the witnesses were not

24�� really asked much during that trial about Mr. Zelenovic.� So a lot of

25�� details that now relate to Mr. Zelenovic's involvement were not fully

Page 465

�1�� explored in the case that has already been run here.� So we actually did

�2�� make some concessions from the side of the Prosecution.

�3�� JUDGE ORIE:� But always in view of potential, let's say, risks in

�4�� the procedure that you might not be in a position to produce sufficient

�5�� evidence.

�6�� MS. UERTZ-RETZLAFF:� Yes.� We looked at the evidence that we had,

�7�� and where we also had some differences in the statements of the victims,

�8�� we actually felt it was better to actually make a decision in favour of

�9�� the accused.

10�� JUDGE ORIE:� Yes, I do understand.

11�� [Trial Chamber confers]

12�� MS. UERTZ-RETZLAFF:� Your Honour, can I add one more point --

13�� JUDGE ORIE:� Yes.

14�� MS. UERTZ-RETZLAFF:� -- and that relates actually to the victim 48

15�� which we also do not find in the charges here.� The judgement, the Kunarac

16�� judgement, was also not based on her evidence, because this victim was

17�� raped so often that she could not identify any more the particular

18�� incident and the particular perpetrators.� Therefore, also in the Kunarac

19�� case, the evidence of this victim also, it was believed, was not actually

20�� used for the conviction, because that was really a problem with that

21�� victim.

22�� JUDGE ORIE:� Okay.� I do understand.

23�� We'll have a break now.� The Chamber -- one of the things the

24�� Chamber will do during the break is to consider whether we could proceed

25�� on the basis of the -- of the plea agreement as we find it here, with all

Page 466

�1�� the confusion, where it's not clearly set out what a guilty plea on count

�2�� so and so in relation to incident so and so would actually mean, whether

�3�� it would cover all the victims or whether it would cover only one of the

�4�� victims.� We'll consider whether we can proceed on the basis of the

�5�� existing plea agreement, and then, of course, we'd have to specify in

�6�� quite some detail, when inviting the accused to enter a plea, or whether

�7�� we would require the parties to be more clear in their agreement so that

�8�� we avoid whatever confusion when asking from the accused to enter his

�9�� pleas.

10�� We'll adjourn for half an hour.� We'll resume at 11.00.

11�� --- Recess taken at 10.28 a.m.

12�� --- On resuming at 11.04 a.m.

13�� JUDGE ORIE:� Let us see whether there are any questions remaining.

14�� [Trial Chamber confers]

15�� JUDGE ORIE:� I've got one last question in relation to the factual

16�� statements -- factual statement.� In paragraph 8, it reads at the end, "On

17�� or about the 3rd of July, 1992, during and after the interrogation, Dragan

18�� Zelenovic and the other co-perpetrators gang-raped several of the women

19�� they suspected of lying, in particular ..."� How does the Chamber

20�� understand "in particular"?� Is that, apart from the incidents mentioned,

21�� I take it, in 9 and 10, there may have been more which are not specified,

22�� or is it limited to the incident mentioned in 9 and 10?

23�� MS. UERTZ-RETZLAFF:� Your Honour, it is limited to the two

24�� incidents mentioned here, but of course in Buk Bijela, more perpetrators

25�� were involved in other incidents but they are not charged in relation to

Page 467

�1�� Mr. Zelenovic.� As you see, the other indictment includes a lot of -- a

�2�� lot more incidents than actually are redacted, and they relate to other

�3�� perpetrators.� That's why it says here "in particular."� That's why the

�4�� words are used.� But, of course, the accused Zelenovic is only -- it's

�5�� only -- is only charged in relation to these two incidents, and he also

�6�� only admits these two incidents.

�7�� JUDGE ORIE:� Yes.

�8�� May I take it, Mr. Jovanovic, that you agree with this, which is,

�9�� I would say, the favourable explanation to Mr. Zelenovic?

10�� MR. JOVANOVIC: [Interpretation] Yes, Your Honour, that is how the

11�� Defence understands the statement of facts as it relates to paragraphs 9

12�� and 10.

13�� JUDGE ORIE:� Yes.� Thank you, Mr. Jovanovic.

14�� The Chamber has considered how to proceed.� The Chamber is not

15�� satisfied with the plea agreement as a written basis for receiving pleas

16�� from this accused.� The Chamber would very much like the parties to

17�� produce this same afternoon, as an annex to your plea agreement, a copy of

18�� the indictment in which you strike out exactly all parts to which

19�� Mr. Zelenovic does plead not guilty.� For example, this would mean that,

20�� on the basis of what we heard, that in 6.10, victim ZG would be removed,

21�� and the rape of witness ZG, because Mr. Zelenovic is charged with

22�� involvement in that and I do understand that he pleads not guilty to that.

23�� If you would produce such a document this afternoon, we would have

24�� clear guidance to continue tomorrow and to invite Mr. Zelenovic to enter

25�� pleas on the counts with clear specification of which incidents are

Page 468

�1� ��covered by the counts and whether the whole of the incidents or only part

�2�� of the incidents are covered by the plea to be entered.

�3�� We'll then proceed to asking Mr. Zelenovic to plea on those counts

�4�� and those incidents as specified in this document.� And from the plea

�5�� agreement, I understand that then the Prosecution will ask for approval of

�6�� withdrawing the remaining counts or portions of counts.� The Chamber will

�7�� then deal with that, and then we could conclude tomorrow.

�8�� MS. UERTZ-RETZLAFF:� Your Honour, let me ask a clarification.

�9�� What -- it's clear for ZG, to actually simply strike her, but in -- and

10�� also we have discussed the fish restaurant incident which isn't a problem

11�� because it doesn't specify the two other women involved.� But in relation

12�� to the incident 6.6 --

13�� JUDGE ORIE:� 6.6.

14�� MS. UERTZ-RETZLAFF:� -- we have actually the witnesses mentioned,

15�� 50 and 95, and the position of the accused here is that, "Yes, I did rape

16�� four victims, but I'm not able to say it's 50 and 95."� That would mean

18�� That's ...

19�� JUDGE ORIE:� Well, whether it's adding or not.� What could be said

20�� is selected, and then give an X or a Y, if that is what is on your mind.

21�� But I do understand that there is an agreement on a guilty plea on the

22�� other two women, although unidentified.

23�� MS. UERTZ-RETZLAFF:� Yes.

24�� JUDGE ORIE:� Is that, Mr. Jovanovic, how you understand the plea

25�� agreement as well?

Page 469

�1�� MR. JOVANOVIC: [Interpretation] Your Honour, specifically in

�2�� reference to paragraph 6.6, the witnesses mentioned here, or rather the

�3�� victims, are FWS-50, 75, 87 and 95, and Dragan Zelenovic is charged with

�4�� raping FWS-75 and that is the plea he entered.� Neither in the indictment

�5�� nor in the plea agreement is it stated that Dragan Zelenovic raped four

�6�� women.� Therefore, in the factual statement, it is stated that he was

�7�� among a group of soldiers which separated off four women, including these

�8�� two, and that he raped 75, not as my learned friend said, that he raped

�9�� four women.

10�� JUDGE ORIE:� At the same time, I do understand that his

11�� involvement, although he did not rape the other women himself, is

12�� considered by the Prosecution to be aiding and abetting to the rape

13�� committed by others, although -- is that ...

14�� MS. UERTZ-RETZLAFF:� Your Honour, that actually was my next

15�� question that I wanted to raise.� In relation to this incident, we

16�� actually see the four perpetrators doing the rapes as co-perpetrators.

17�� It's not aiding and abetting but it's co-perpetration.� Only in relation

18�� to the Buk Bijela incident, that's -- the Buk Bijela incident -- sorry.

19�� JUDGE ORIE:� I now see that there seems to be a basic disagreement

20�� on what Mr. Zelenovic is charged with under 6.6.� You say it's --

21�� MS. UERTZ-RETZLAFF:� Yes.� He's actually -- he is in a group of

22�� four people, and he's actually the man in charge.� He's the man who, in

23�� this incident, is actually dividing the victims among the perpetrators.

24�� So that's co-perpetration.� In contrast to that, so that also

25�� Mr. Jovanovic understands it now more fully, in relation to the incident

Page 470

�1�� with the victim 75 being raped at Buk Bijela, the man Gojko Jankovic is in

�2�� charge and Mr. Zelenovic is basically aiding and abetting here in this

�3�� incident 5.3.

�4�� JUDGE ORIE:� Okay.

�5�� MS. UERTZ-RETZLAFF:� That's the distinction to make.

�6�� JUDGE ORIE:� Mr. Jovanovic, Madam Uertz-Retzlaff tells us that a

�7�� guilty plea on 6.6 would include a guilty plea to co-perpetration of the

�8�� rapes committed by others against victims that were not raped personally

�9�� by Mr. Zelenovic.� Is there agreement?� And apart from whether he could

10�� identify the other victims by their pseudonyms, is that your understanding

11�� of the agreement on 6.6 as well?

12�� MR. JOVANOVIC: [Interpretation] No, Your Honour.� I abide by the

13�� standpoint that Mr. Zelenovic can identify only witnesses 75 and 87.� In

14�� paragraph 12 of the statement of facts, it is already stated that together

15�� with other co-perpetrators from the group, he separated off four women and

16�� girls -- he selected four women and girls from the classroom in which the

17�� detainees were kept.� I understand Ms. Uertz-Retzlaff to say that he raped

18�� four women.� However, it is the standpoint of the Defence -- I do

19�� apologise, then.� It must be my mistake.� It must be misinterpretation.

20�� But the factual statement actually does include co-perpetration.

21�� JUDGE ORIE:� Yes, co-perpetration --

22�� MR. JOVANOVIC: [Interpretation] But not identifying the other

23�� victims.

24�� JUDGE ORIE:� Co-perpetration of rape of four victims, two of them

25�� being identified as FWS-75 and 87, the other two, in the admission of

Page 471

�1�� guilt, not identified specifically as the persons mentioned in the

�2�� indictment.� Yes, that's clear.

�3�� Then, as an annex -- we're just talking at this moment about an

�4�� annex to the plea agreement and not yet an amendment of the indictment.

�5�� Madam Uertz-Retzlaff, I think then you could replace FWS-50 and

�6�� FWS-95 by X and Y, which stands for victims not further identified by the

�7�� accused.

�8�� MS. UERTZ-RETZLAFF:� Yes, Your Honour.� That leaves, actually, one

�9�� difficulty.

10�� JUDGE ORIE:� Yes.

11�� MS. UERTZ-RETZLAFF:� And that relates to the Buk Bijela rape of 75

12�� where the position is --

13�� JUDGE ORIE:� Let's just have a look.

14�� MS. UERTZ-RETZLAFF: �I'm talking now about paragraph 5.3 in the

15�� indictment.

16�� JUDGE ORIE:� 5.3, yes.

17�� MS. UERTZ-RETZLAFF:� Where, actually, Mr. Zelenovic is party to

18�� the interrogation process that leads finally to the gang-rape of 75.� And

19�� it's the position, the joint position, that this is only aiding and

20�� abetting to the gang-rape of 75.� And that's not entirely clear from the

21�� indictment.� Therefore, either a sentence is added to paragraph 4.6 in the

22�� indictment, where the mode of liability is mentioned.� We could here add a

23�� sentence that, in relation to 5.3, aiding and abetting is charged.� Or the

24�� other option is that in 5.9, that's the sentence immediately foregoing

25�� count 5 and count 6, one could also mention here, by the foregoing acts

Page 472

�1�� and omissions in relation to the victim 75, Dragan Zelenovic aided and

�2�� abetted; 2, in relation to the victim FWS-87, Dragan Zelenovic committed.

�3�� And I think that also would clarify the situation.

�4�� JUDGE ORIE:� I think that would be sufficient.� So what the

�5�� Chamber then expects is an attachment to the plea agreement which further

�6�� specifies on what exactly the parties agreed by striking out anything on

�7�� which it is not agreed; by striking out and putting in bold anything that

�8�� further specifies, for example, unknown identity by X or Y, or by adding

�9�� words "aiding and abetting."� Please put that in bold clearly visible for

10�� the Chamber.� And then we can proceed on the basis of this document to

11�� receive pleas tomorrow with the necessary level of detail which would

12�� avoid confusion as to what exactly the conviction will be about.

13�� Is there any other matter at this moment the parties would like to

14�� raise?

15�� MR. JOVANOVIC: [Interpretation] Your Honour, I do apologise.� In

16�� principle, we agree that the other victims be identified as X and Y.� I

17�� just want to make it clear that the standpoint of the Defence, which I

18�� have reiterated more than once, is that this will not refer to those

19�� victims who are mentioned in the indictment who are not 75 and 87; that in

20�� no way will it be stated that these are 50, 95, ZG and 48 whose testimony

21�� was not accepted by the Chamber in Kunarac et al.

22�� JUDGE ORIE:� Yes, but I do understand that wherever in the

23�� indictment, as you will produce this afternoon, if a witness identified by

24�� a pseudonym where the accused does not admit that it was this witness that

25�� was a victim of that rape but admits that a woman was a victim of rape at

Page 473

�1�� that time, that then the identification through the pseudonym will be

�2�� replaced by a general identification, by a letter X or Y.

�3�� I am not very much inclined to enter into any further discussions

�4�� on what should be in and what should not be in.� That's a matter for the

�5�� parties.� And it only shows that it's good for the Chamber to ask for the

�6�� position.� So I leave it up to you.� We'll see whether we receive this

�7�� afternoon this clarification.� If so, fine; if not, there's no basis to

�8�� further hear any pleas on the basis of an agreement which seems to be

�9�� incomplete.� The parties should agree on the matter, not the Chamber.

10�� Anything else?

11�� Mr. Zelenovic, I would like to ask you, because you are not

12�� participating in this exchange of views, first of all, could you follow

13�� the discussions, and are you in agreement with all the further details and

14�� positions given by counsel?

15�� THE ACCUSED: [Interpretation] Yes, Your Honour.

16�� JUDGE ORIE:� Because tomorrow we'll have to establish, if we have

17�� received this new attachment to -- this new annex to the plea agreement,

18�� we'll have to establish whether you voluntarily and with full

19�� understanding entered into this agreement.� Therefore, I want to verify at

20�� this moment whether you could follow it and whether you agree with

21�� everything that has been said.� You'll be given an opportunity tomorrow to

22�� briefly consult with counsel to see what exactly then remains.

23�� Mr. Jovanovic, perhaps you could try to make a copy of the B/C/S

24�� version so that Mr. -- you don't have to produce a B/C/S version of this

25�� stricken-out indictment to the Chamber.� We'll be happy with the English

Page 474

�1�� version.� But if you do a similar exercise for Mr. Zelenovic so that he's

�2�� fully aware - and that's the only thing that matters for the Chamber -

�3�� that he's fully aware as to what he pleads guilty to and to what counts,

�4�� what incidents, what parts of it he pleads not guilty to.� Yes?

�5�� MR. JOVANOVIC: [Interpretation] Yes, Your Honour, I hope we will

�6�� be able to complete this task this afternoon.� I would only ask that, if

�7�� possible, tomorrow's hearing be set at a later time so that I have the

�8�� opportunity to inform Mr. Zelenovic of whatever is agreed with the

�9�� Prosecution this afternoon.

10� ��As for the indictment, I do not need it in B/C/S, but he certainly

11�� does.

12�� JUDGE ORIE:� Yes.� Mr. Jovanovic, if you would apply with the

13�� Registry to have an opportunity to briefly meet with Mr. Zelenovic

14�� tomorrow morning, I would say to start with, 15 minutes might do it.� It's

15�� easy to explain, I take it.� And Mr. Zelenovic has been able to follow all

16�� of the discussions of today.� So therefore, of course, if it would turn

17�� out that you haven't got sufficient time to discuss the matter with

18�� Mr. Zelenovic, we'll hear an application for further time.� But ...

19�� [Trial Chamber and registrar confer]

20�� JUDGE ORIE:� Yes.� I take it that the transportation of

21�� Mr. Zelenovic will take place at the usual time.� Would 15 minutes, to

22�� start with, and so a later start of 15 minutes, which would allow you to

23�� see Mr. Zelenovic, would that help you out, to start with?

24�� MR. JOVANOVIC: [Interpretation] Yes, I agree, Your Honour.

25�� JUDGE ORIE:� Yes.� Then we'll adjourn -- yes, Madam

Page 475

�1�� Uertz-Retzlaff.

�2�� MS. UERTZ-RETZLAFF:� Your Honour, just one more clarification.� Do

�3�� you also want us to strike those paragraphs that relate to Gojko Jankovic

�4�� and Radovan Stankovic?

�5�� JUDGE ORIE:� If it's exclusively about them.� I think most of them

�6�� are -- no, they are not stricken out yet.

�7�� MS. UERTZ-RETZLAFF:� So we can do that, too.

�8�� JUDGE ORIE:� Yes, perhaps that would make it -- of course, it

�9�� doesn't relate in any way to Mr. Zelenovic.� But if that's out, it's

10�� easier to use it as a working document.

11�� MS. UERTZ-RETZLAFF:� Yes.

12�� JUDGE ORIE:� Yes.� Anything else?

13�� MS. UERTZ-RETZLAFF:� No, Your Honour.

14�� JUDGE ORIE:� Then we'll adjourn until tomorrow morning, quarter

15�� past 9.00, in this same courtroom.

16�� --- Whereupon the Motion Hearing adjourned at

17�� 11.26 a.m., to be reconvened on Wednesday, the

18�� 17th day of January, 2007, at 9.15 a.m.