BBC Russian

Page 476

�1�� Wednesday, 17 January 2007

�2�� [Motion Hearing]

�3�� [Open session]

�4�� [The accused entered court]

�5�� --- Upon commencing at 9.21 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�� I see that the Prosecution is present.� Ms. Uertz-Retzlaff.

12�� Mr. Jovanovic for the Defence.

13�� Mr. Zelenovic, can you hear me in a language you understand?

14�� THE ACCUSED: [Interpretation] Yes, yes, I can hear you.

15�� JUDGE ORIE:� Mr. Zelenovic, have you had an opportunity to briefly

16�� discuss with counsel the new document that has meanwhile been filed with

17�� the Court?

18�� THE ACCUSED: [Interpretation] Yes, yes, I had the opportunity.

19�� JUDGE ORIE:� I worked on the basis of a courtesy copy that was

20�� provided to the Chamber when I was not in the premises of this Tribunal.

21�� I take it that this document has been filed on the 16th of January.� These

22�� are the transcript pages 6560 up to and including the cover page 6580.

23�� Thank you.

24�� Then I have a few questions in relation to the latest filing,

25�� mainly to ensure that there's no ambiguity whatsoever.� I draw the

Page 477

�1�� attention to paragraph 5.4 in relation to 5.9.� Is it well understood that

�2�� because of the role Mr. Zelenovic played, that he intends to plead guilty

�3�� on rape and torture even where he did not personally commit it --

�4�� personally rape the victims, but his role in its entirety makes him a

�5�� co-perpetrator?� Is that correctly understood?

�6�� MS. UERTZ-RETZLAFF:� Your Honour, as you can see, the distinction

�7�� in relation to incident paragraph 5.4, he is actually here pleading to

�8�� have aided and abetted in relation to the victim 75 that he did not rape

�9�� on that occasion.� And he was actually at that time also not in charge,

10�� but Gojko Jankovic was.� Therefore, we have here aiding and abetting.

11�� JUDGE ORIE:� I have to apologise, because my question should have

12�� been different.� What I should have asked you is whether 5.4 should be

13�� understood as a substantial assistance by the accused in the rape of

14�� victim FWS-75 amounting to aiding and abetting.� Is that a correct

15�� understanding?

16�� MS. UERTZ-RETZLAFF:� Yes, Your Honour, that's the understanding.

17�� JUDGE ORIE:� Mr. Jovanovic, that's the understanding of the

18�� Defence as well?

19�� MR. JOVANOVIC: [Interpretation] Yes, Your Honours.� We see this as

20�� aiding and abetting.� It's not as substantial as to amount to

21�� co-perpetration.� I think that all instances where it amounts to

22�� co-perpetration, it is explicitly stated so.� And in this particular case,

23�� this is aiding and abetting.

24�� JUDGE ORIE:� That, for example, would be true for paragraph 6.14

25�� in relation to 6.6.� I'm here thinking about the two identified and two

Page 478

�1�� unidentified women where Mr. Zelenovic is co-perpetrator in relation to

�2�� all four women.� Is that correctly understood?

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

�4�� JUDGE ORIE:� Mr. Jovanovic, that's your position as well?

�5�� MR. JOVANOVIC: [Interpretation] Yes, Your Honour.

�6�� JUDGE ORIE:� Then finally I turn to paragraph 9.13 -- 9.3, I'm

�7�� sorry.� The rape under count 49 -- in 9.2 we see an incident where

�8�� Mr. Zelenovic personally raped victim FWS-87 and the other co-perpetrators

�9�� raped the other women, the other -- yes, that is FWS-75 and two other

10�� women.� In 9.3, it reads, "by the foregoing acts and omissions, Dragan

11�� Zelenovic committed, rape ..."� Is that co-perpetration for all rapes or

12�� is it limited to victim FWS-87?

13�� MS. UERTZ-RETZLAFF:� Your Honour, it is co-perpetration in

14�� relation to all the victims.� As it is also expressed in 9.2,

15�� co-perpetrators is particularly mentioned here.

16�� JUDGE ORIE:� Mr. Jovanovic, that's your position as well?

17�� MR. JOVANOVIC: [Interpretation] Your Honours, my interpretation is

18�� that in this particular case this involves the rape of victim 75 by

19�� Mr. Zelenovic.� It was qualified as rape.� My understanding is that he did

20�� not participate in the rape of victim 87.

21�� JUDGE ORIE:� Let me read 9.2.� "There, Dragan Zelenovic raped

22�� FWS-87 while the other co-perpetrators raped the other women."� It is a

23�� puzzle for me what you just said.� You said, "my interpretation is that in

24�� this particular case this involves the rape of victim 75 by Mr.

25�� Zelenovic."� It was qualified as rape.� My understanding is that he did

Page 479

�1�� not participate in the rape of victim 87.� That's a puzzle to me in view

�2�� of the text of the submission of yesterday.

�3�� MR. JOVANOVIC: [Interpretation] I apologise, Your Honour.� Dragan

�4�� Zelenovic, according to the text of the indictment, 9.2, raped victim 87.

�5�� My interpretation is that co-perpetrators, that is to say, other persons

�6�� raped other women on that occasion.� So co-perpetration pertains to other

�7�� individuals who, on that occasion, raped other women.

�8�� JUDGE ORIE:� Does he plead guilty to, or does he intend to plead

�9�� guilty to co-perpetratorship, that is, shared responsibility for all the

10�� rapes or just for the rape he committed in respect of victim FWS-87.

11�� MR. JOVANOVIC: [Interpretation] My interpretation is that he

12�� pleads guilty to raping victim 87.

13�� JUDGE ORIE:� Madam Uertz-Retzlaff, it seems that, first of all, I

14�� do not understand under those circumstances the use of the

15�� word "co-perpetratorship," because if I understand you well, it's just

16�� Mr. Zelenovic raping one woman, another one raping another woman, which

17�� does not result in co-perpetratorship; whereas if you have other people

18�� rape women, then you could consider, and then you'd use the word

19�� co-perpetratorship, that as a shared responsibility for all the rapes,

20�� just as Mr. Zelenovic seems to accept a responsibility on the other

21�� occasion - I think I'm talking about 6.10 - where -- no, 6.6 it is, where

22�� he did not rape, himself, any of the women, but nevertheless considers

23�� himself an aider and abettor -- no, co-perpetrator in 6.6, I think it is.

24�� MS. UERTZ-RETZLAFF:� Your Honour, just one correction.� In 6.6, we

25�� have the similar situation that Mr. Zelenovic himself raped one woman and

Page 480

�1�� the others were raped.

�2�� JUDGE ORIE:� Yes.

�3�� MS. UERTZ-RETZLAFF:� And also perhaps for Mr. Jovanovic's benefit,

�4�� if we look at the factual basis of the plea agreement, paragraph 22,

�5�� actually, Mr. Zelenovic mentioned that he and his co-perpetrators took out

�6�� the four women, and that he himself raped 87 while the co-perpetrators

�7�� raped the other three women.� So I think it's probably an error by

�8�� Mr. Jovanovic.

�9�� JUDGE ORIE:� Mr. Jovanovic, so the issue is here whether

10�� Mr. Zelenovic, if he would plead guilty to this paragraph 9.3, whether he

11�� exclusively sees his role as in relation to victim FWS-87 or whether, in

12�� those circumstances, he accepts, as he does in 6.6, that although he raped

13�� only one woman, that those present raping several women were

14�� co-perpetrators and therefore share responsibility, which of course

15�� would -- is what one would understand by the term "co-perpetratorship."

16�� Because otherwise these are several separated offences.� It might not make

17�� that much of a difference on the whole of the case, as a matter of fact,

18�� but I leave it up to you to present your position.

19�� MR. JOVANOVIC: [Interpretation] Your Honours, I see the difference

20�� in relation to the description of events in paragraph 6.6, because in 6.6

21�� and similarly in the factual basis or statement of facts, it is stated

22�� that Dragan Zelenovic was the one who decided which woman will be

23�� allocated to which man, so to speak.� And on that basis, he accepts his

24�� role as a co-perpetrator, because that was his role in relation to other

25�� victims.� He was the one who decided which woman would be assigned, so to

Page 481

�1�� speak, to which man.� We don't have that type of a situation in paragraph

�2�� 9.2.

�3�� JUDGE ORIE:� Mr. Jovanovic, that's all fine.� It's not the Bench

�4�� who enters into a plea agreement; it is the parties who do so.� And now

�5�� for the second time, after yesterday, a lot of confusion, a lot of

�6�� misunderstanding, a lot of -- well, a lot of doubts as to what actually

�7�� was the subject of the agreement ...

�8�� [Trial Chamber confers]

�9�� MR. JOVANOVIC: [Interpretation] [No interpretation]

10�� JUDGE ORIE:� The Chamber will give you -- yes, Mr. Jovanovic.

11�� MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

12�� JUDGE VAN DEN WYNGAERT:� What you said wasn't translated, so will

13�� you please repeat it.

14�� MR. JOVANOVIC: [Interpretation] Yes, I apologise.� I will repeat

15�� it.

16�� Mr. Zelenovic will plead guilty in accordance with the text of the

17�� amended and redacted indictment and as is stated in the statement of

18�� facts.� Wherever it is stated that he acted as a co-perpetrator, he pleads

19�� guilty to co-perpetratorship, just to avoid any further ambiguities.

20�� JUDGE ORIE:� Mr. Zelenovic, you have heard what Mr. Jovanovic just

21�� said.� You have the text in front of you.� I take it that you understand

22�� the difference between co-perpetratorship and committing a rape where

23�� others commit a rape as well.� That means that you accept that in this

24�� context you share with your co-perpetrators responsibility, criminal

25�� responsibility, for the rapes committed in that context, even though you

Page 482

�1�� yourself raped only victim FWS-87.� You understand the difference?

�2�� THE ACCUSED: [Interpretation] Yes, I understand the difference.

�3�� JUDGE ORIE:� Mr. Jovanovic just told us that you'll enter a plea

�4�� on the basis of your understanding of count 49, that is, in relation to

�5�� 9.2 in the indictment, that the understanding of entering a plea - and of

�6�� course we then would expect that it would be a guilty plea - would be on

�7�� the basis of accepting a shared responsibility for the whole of the events

�8�� that is in relation to all women raped.� Is that correctly understood?

�9�� THE ACCUSED: [Interpretation] Yes, I understand that, Your Honour.

10�� JUDGE ORIE:� And you accept that?

11�� THE ACCUSED: [Interpretation] Yes.

12�� JUDGE ORIE:� Then I think everything has been clarified in

13�� relation to what actually the plea will be about.

14�� Madam Uertz-Retzlaff, I suggest that we do it the following way:

15�� I take it that if Mr. Zelenovic pleads guilty to the counts specified in

16�� the new document, which is not an amended indictment but just a document

17�� which gives us further insight on what exactly is understood when

18�� Mr. Zelenovic enters a plea, that once he has entered a plea, that you'll

19�� withdraw all the remaining counts or remaining parts of the counts, and

20�� you would need leave of the Chamber to withdraw these counts.� I suggest

21�� to you that you apply for that leave now, that we'll grant leave, and that

22�� after Mr. Zelenovic has entered his pleas on certain counts, that you'll

23�� then withdraw the remainder of the counts.

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

25�� JUDGE ORIE:� But that requires that you now ask our leave to

Page 483

�1�� withdraw the remaining counts after Mr. Zelenovic has entered his pleas,

�2�� and in accordance with the document as you have filed it, together with

�3�� Mr. Jovanovic, yesterday.

�4�� MS. UERTZ-RETZLAFF:� Yes, Your Honour, I can do that.� And I have

�5�� to make -- draw your attention to one minor issue that relates to the plea

�6�� agreement.� It's the plea agreement, paragraph 3(A).� It relates to the

�7�� withdrawal of charges.

�8�� JUDGE ORIE:� Yes.

�9�� MS. UERTZ-RETZLAFF:� And what the intention was of the parties is

10�� to withdraw all accumulated charges related to the events so that he is

11�� pleading guilty to seven counts of crime against humanity and that we

12�� intended to withdraw the war crime charges, the violations of the laws and

13�� customs of war.

14�� In this context, there is a minor inaccuracy in paragraph 3(A),

15�� and we found it out yesterday when Mr. Jovanovic and I were actually

16�� redacting the indictment.� We have listed here in this paragraph six

17�� counts to be withdrawn.� It's actually seven counts.� What is omitted in

18�� the plea agreement is count 8.

19�� So today the Prosecution would request leave to be allowed to

20�� withdraw the seven counts of violations of the laws and customs of war,

21�� these counts being count 7, count 8, count 15, count 16, count 43, count

22�� 44, and count 50.� That's the -- that's what we would request the Trial

23�� Chamber to allow us to do.

24�� JUDGE ORIE:� We see that already reflected.� Let me just check

25�� that.

Page 484

�1�� MS. UERTZ-RETZLAFF:� It is reflected, actually, in the document,

�2�� and that's how we saw that it was missing.

�3�� JUDGE ORIE:� Yes.� Okay.� Thank you for this clarification.� I

�4�� suggest that the Chamber now considers whether leave should be granted.

�5�� [Trial Chamber confers]

�6�� JUDGE ORIE:� Leave is granted, which of course, Madam

�7�� Uertz-Retzlaff, doesn't mean that it's yet withdrawn.� But I take it that

�8�� once we have come to the selective invitation to enter a plea, that once

�9�� we are at a point where all the guilty pleas you expect are there, that

10�� you then withdraw the remainder of the counts, which leaves us without any

11�� need to further invite Mr. Zelenovic to enter pleas.

12�� Then, Mr. Zelenovic, I'll go -- first of all, you followed all the

13�� discussions.� They were quite some detailed discussions.� The Chamber

14�� understood both from the plea agreement and from the submission of

15�� yesterday that it's your wish to change your plea in respect of many of

16�� the counts of the indictment.� Is that correctly understood?

17�� THE ACCUSED: [Interpretation] Yes.

18�� JUDGE ORIE:� We also understood that this wish is the result of

19�� a -- is part of a plea agreement in which you voluntarily entered --

20�� assisted in the, most likely, in the legal negotiations with

21�� Mr. Jovanovic.� Is that correct?

22�� THE ACCUSED: [Interpretation] Yes.

23�� JUDGE ORIE:� Yes.� Then I'll invite you to enter your new plea on

24�� the counts of the indictment as I'll put to you, and I'll go through the

25�� indictment in some more detail, as I usually do, in order to make sure

Page 485

�1�� that you fully understand what you're pleading to.

�2�� In the indictment we find in paragraphs 1 -- in paragraph 1,

�3�� that's 1.1 to 1.4, we find a general background description.

�4�� Then we find in paragraph 2, under 2.4, we find some further

�5�� details about you, Mr. Zelenovic.� This information includes that you were

�6�� a member of the Dragan Nikolic unit and that you were a soldier and a de

�7�� facto military policeman.

�8�� Then under 4 we find some general allegations in which it is

�9�� explained - and I'm referring now to 4.5 - that witnesses and victims are

10�� identified in this indictment using codenames or pseudonyms, and one

11�� example now remains as given of such a pseudonym which is the example of

12�� victim FWS-75.� It only explains the technique used in identifying

13�� persons, victims especially, in the indictment.

14�� Then the charges against you more specifically, Mr. Zelenovic, are

15�� in relation to torture and rape committed in Buk Bijela, set out in

16�� paragraphs 5.1 up to and including 5.5 of the indictment.� 5.4 of the

17�� indictment describes an event where witness FWS-75 was interrogated, was

18�� interrogated among others by you.� She was warned not to lie or otherwise

19�� she would be raped by soldiers and killed afterwards.� But since victim

20�� FWS-75 did not answer the question sufficiently, she was taken out to

21�� another room, and there at least 10 unidentified soldiers have raped her.

22�� You did not personally rape the victim on that occasion.

23�� The other incident described under paragraph 5 is that another

24�� witness, FWS-87, a 15-year-old girl, was interrogated by you and three

25�� unidentified soldiers in a room at Buk Bijela, and that during the

Page 486

�1�� interrogation she was accused of -- the victim was accused of not telling

�2�� the truth; that then the interrogators removed her clothing and each one

�3�� raped her.� And it further gives details about the rape and the threats

�4�� and violence used.

�5�� This, Mr. Zelenovic, is legally qualified as -- as far as 5.4 is

�6�� concerned, aiding and abetting, to torture and rape; and as far as 5.5 is

�7�� concerned, committing torture and rape.� So the aiding and abetting is in

�8�� relation to victim FWS-75, and the commission of torture and rape in

�9�� relation to victim FWS-87 - that's the incident in paragraph 5.5 - is --

10�� that's the rape and the torture.

11�� Count 5 thus understood reads that you aided and abetted and/or

12�� committed torture, a crime against humanity, punishable under Article 5(f)

13�� of the Statute of the Tribunal.

14�� Mr. Zelenovic, how do you plead to count 5, guilty or not guilty?

15�� THE ACCUSED: [Interpretation] Guilty.

16�� JUDGE ORIE:� Madam Registrar, would you please record the guilty

17�� plea on count 5.

18�� THE REGISTRAR:� Yes, Your Honour.

19�� JUDGE ORIE:� Count 6, rape, a crime against humanity, punishable

20�� under Article 5(g) of the Statute of the Tribunal, as explained to you

21�� before.� How do you plead to count 6, Mr. Zelenovic?

22�� THE ACCUSED: [Interpretation] Guilty.

23�� JUDGE ORIE:� Madam Registrar, would you please record the guilty

24�� plea on count 6.

25�� THE REGISTRAR:� Yes, Your Honour.

Page 487

�1�� JUDGE ORIE:� Then we move on Mr. Zelenovic.

�2�� THE INTERPRETER:� The interpreters can barely hear the accused,

�3�� Your Honour.

�4�� JUDGE ORIE:� Mr. Zelenovic, you are invited to speak a bit louder.

�5�� That's also because you are at a distance from the microphone now.� If you

�6�� enter any further new pleas.

�7�� We now move, Mr. Zelenovic, to torture and rape committed at the

�8�� Foca High School.

�9�� After a brief description of circumstances at the Foca High School

10�� about detention and about physical/psychological circumstances, the

11�� indictment becomes more detailed and describes incidents, and I start with

12�� 6.6; that on the 6th or 7th of July, 1992, you, in concert with other

13�� co-perpetrators, have selected four women, two of them unidentified - one,

14�� FWS-75 and one being FWS-87 - you have selected them out of a group of

15�� detainees; that you led these women to another classroom where

16�� unidentified soldiers stood waiting; and that you then decided which woman

17�� should go to which man.� The women were ordered to remove their clothes,

18�� and at that occasion, you, Mr. Zelenovic, you raped victim FWS-75 and the

19�� other perpetrators -- co-perpetrators, as a matter of fact, raped the

20�� other women.� So that's one incident including four women, you being

21�� charged with co-perpetration in respect of all women.

22�� Then 6.7, the incident described in 6.7 is not part of the new

23 ��plea, and I therefore move to 6.8, which is one incident described

24�� between -- or about 8th of July and about 13th of July, where victims

25�� FWS-75 and FWS-87 were taken from the Foca High School to an apartment

Page 488

�1�� building called Brena.� You are charged there, Mr. Zelenovic, with having

�2�� raped on that occasion both victim FWS-75 and victim FWS-87.

�3�� Then there are two other occasions described under 6.9 of the

�4�� indictment, two other occasions or incidents where you and several other

�5�� but unidentified soldiers took victims FWS-75 and FWS-87 to Brena and that

�6�� you raped them.� 6.9 reads that "On these occasions, the accused raped

�7�� FWS-75 and FWS-87."� So two occasions in which you committed rape against

�8� ��both women.

�9�� Then there's another incident described under 6.10 where victims

10�� FWS-75 and FWS-87 were taken by you to an abandoned house of a Muslim

11�� policeman in Gornje Polje where you raped victim FWS-87.

12�� By these acts I just specified to you, you are charged,

13�� Mr. Zelenovic, that you committed rape and torture in relation to two

14�� unidentified women and victim FWS-75 and FWS-87.

15�� Count 13 deals with the torture charge.� I'll read it to

16�� you.� "Torture, a crime against humanity, punishable under Article 5(f) of

17�� the Statute of the Tribunal."� Mr. Zelenovic, how do you plead, guilty or

18�� not guilty?

19�� THE ACCUSED: [Interpretation] Guilty.

20�� JUDGE ORIE:� Madam Registrar, would you please record a guilty

21�� plea on count 13.

22�� THE REGISTRAR:� Yes, Your Honour.

23�� JUDGE ORIE:� Count 14, Mr. Zelenovic, reads:� "Rape, a crime

24�� against humanity, punishable under Article 5(g) of the Statute of the

25�� Tribunal."� How do you plead?

Page 489

�1�� THE ACCUSED: [Interpretation] Guilty.

�2�� JUDGE ORIE:� Madam Registrar, would you please record a guilty

�3�� plea on count 14.

�4�� THE REGISTRAR:� Yes, Your Honour.

�5�� JUDGE ORIE:� We now move, Mr. Zelenovic, to events that happened

�6�� at the Partizan Sports Hall.� We find them in paragraphs -- in paragraph 7

�7�� of the indictment, where first a general description of the context, of

�8�� the circumstances, are given.

�9�� Specifically, one incident you are charged with we find in

10�� paragraph 7.13, which reads that "In July 1992, witness FWS-87 was

11�� frequently taken out and raped, and that on one occasion, witness FWS-87

12�� was gang-raped by four men, including Dragan Zelenovic."� And this

13�� happened in July 1992.

14�� This results in charges against you under count 41, torture, and

15�� 42, rape.� And the charges are limited to victim FWS-87 only.� This

16�� clarifies what is found at 7.26 of the indictment.

17�� Count 41, Mr. Zelenovic, torture, a crime against humanity,

18�� punishable under Article 5(f) of the Statute of the Tribunal.� In relation

19�� to this one incident at Partizan Sports Hall, how do you plead, guilty or

20�� not guilty?

21�� THE ACCUSED: [Interpretation] Guilty.

22�� JUDGE ORIE:� Madam Registrar, would you please record a guilty

23�� plea on count 41.

24�� THE REGISTRAR:� Yes, Your Honour.

25�� JUDGE ORIE:� Count 42, rape, a crime against humanity, punishable

Page 490

�1�� under Article 5(g) of the Statute of the Tribunal.� Again, Mr. Zelenovic,

�2�� in relation to the event just described, how do you plead?

�3�� THE ACCUSED: [Interpretation] Guilty.

�4�� JUDGE ORIE:� Madam Registrar, would you please record the guilty

�5�� plea on count 42.

�6�� THE REGISTRAR:� Yes, Your Honour.

�7�� JUDGE ORIE:� Then we move to the last count brought against you,

�8�� Mr. Zelenovic.

�9�� The specific event is described in 9.2 of the indictment, which

10�� I'll read to you:� "On or about the 30th of October, 1992, the three

11�� above-mentioned perpetrators, that is Dragan Zelenovic, Gojko Jankovic and

12�� Janko Janjic, took FWS-75, FWS-87 and two other women into an apartment

13�� near the fish restaurant in Foca."� There, Dragan Zelenovic, you raped

14�� FWS-87, while the other co-perpetrators raped the other women.

15�� By these acts, Mr. Zelenovic, by these acts and omissions, you are

16�� charged with having committed rape, co-perpetration of rape, in respect of

17�� all these women, although you personally raped only - that means the act

18�� of rape was committed by you only - in respect of witness FWS-87.

19�� In respect of all these four women, and understanding the charges

20�� to be co-perpetrators, on count 49, rape, a crime against humanity,

21�� punishable under Article 5(g) of the Statute of the Tribunal, how do you

22�� plead, Mr. Zelenovic?

23�� THE ACCUSED: [Interpretation] Guilty.

24�� JUDGE ORIE:� Madam Registrar, would you please record the guilty

25�� plea on count 49.

Page 491

�1�� THE REGISTRAR:� Yes, Your Honour.

�2�� JUDGE ORIE:� Mr. Zelenovic, the Chamber will have to satisfy

�3�� itself that the guilty pleas you have now entered have been made

�4�� voluntarily, that no threat or coercion was exercised, that you're

�5�� informed, that your guilty pleas are not equivocal, and that there is a

�6�� sufficient factual basis for the crime and for your participation in it.

�7�� We have spent a lot of time on a proper understanding of what you

�8�� actually pleaded guilty to, and the Chamber, until now, has no reason to

�9�� assume that your plea was not made voluntarily or that any threats or

10�� coercion was exercised, that your plea was entered uninformed, that your

11�� plea was not unequivocal, that there was no sufficient factual basis for

12�� the crime and for your participation.

13� ��If there's anything one of the parties would like to submit in

14�� relation to these requirements, they are invited to do so at this moment.

15�� Madam Uertz-Retzlaff.

16�� MS. UERTZ-RETZLAFF:� Your Honour, nothing from the Prosecution.

17�� JUDGE ORIE:� Mr. Jovanovic.

18�� MR. JOVANOVIC: [Interpretation] Likewise for the Defence, Your

19�� Honours.

20�� JUDGE ORIE:� Yes.� The Defence includes counsel and accused.

21�� Mr. Zelenovic, may I take it that you share the view of

22�� Mr. Jovanovic?

23�� THE ACCUSED: [Interpretation] Yes, that's right.

24�� [Trial Chamber confers]

25�� JUDGE ORIE:� Mr. Jovanovic, the newly entered pleas are accepted

Page 492

�1�� by the Trial Chamber.� This means that the Chamber makes a corresponding

�2�� finding of guilt on each of these counts, and again the findings of guilt

�3�� should be understood together with the document filed yesterday, where the

�4�� details were set out, and should also be understood in light of the

�5�� clarifications that have been given during today's hearing.

�6�� Mr. Zelenovic, this Chamber finds you guilty under count 5 of the

�7�� indictment, torture, a crime against humanity, punishable under Article

�8�� 5(f) of the Statute of the Tribunal.

�9�� This Chamber finds you guilty on count 6, rape, a crime against

10�� humanity, punishable under Article 5(g) of the Statute of the Tribunal.

11�� The Chamber, Mr. Zelenovic, finds you guilty under count 13,

12�� torture, a crime against humanity, punishable under Article 5(f) of the

13�� Statute of the Tribunal.

14�� And the Chamber finds you guilty under count 14, rape, a crime

15�� against humanity, punishable under Article 5(g) of the Statute of the

16�� Tribunal.

17�� The Chamber further finds you guilty, Mr. Zelenovic, under count

18�� 41, torture, a crime against humanity, punishable under Article 5(f) of

19�� the Statute of the Tribunal, and count 42, rape, a crime against humanity,

20�� punishable under Article 5(g) of the Statute of the Tribunal.

21�� Finally, Mr. Zelenovic, this Chamber finds you guilty under count

22�� 49 of the indictment, rape, a crime against humanity, punishable under

23�� Article 5(g) of the Statute of the Tribunal.

24�� Madam Uertz-Retzlaff, may I take it that this is the moment where

25�� you will use the leave granted to you to withdraw the remaining counts of

Page 493

�1�� the indictment?

�2�� MS. UERTZ-RETZLAFF:� Yes, Your Honour.� With the leave of the

�3�� Trial Chamber, the Prosecution withdraws the remaining counts, them being

�4�� count 7, count 8, count 15, count 16, count 43, count 44, and count 50.

�5�� JUDGE ORIE:� Yes.� And I take it also those parts of the counts

�6�� that were not covered by the newly entered guilty pleas, the Chamber

�7�� would, in order to avoid whatever confusion, would like you to file a

�8�� precise specification of all the counts withdrawn.

�9 ��MS. UERTZ-RETZLAFF:� Yes, Your Honour, I will do that.

10�� JUDGE ORIE:� Yes.� Then there's no need at this moment to deal

11�� with any of the other counts, them being withdrawn and no new pleas

12�� entered there.

13�� Next issue is the scheduling of a sentencing hearing.� Could I

14�� hear from the parties how much time -- Mr. Zelenovic, you may be seated.

15�� We're dealing now with practical and technical matters.

16�� Can I get an indication from the parties how much time they need

17�� for the preparation of a sentencing hearing.

18�� MS. UERTZ-RETZLAFF:� Your Honour, the Prosecution does not need

19�� much time because the Prosecution does not intend to call witnesses in

20�� that hearing.� So we actually need only, I would say, two weeks to file

21�� the sentencing briefs.

22�� JUDGE ORIE:� Two weeks for filing the sentencing brief.� Yes.

23�� MS. UERTZ-RETZLAFF:� But I assume that --

24�� JUDGE ORIE:� Yes.� Of course I will ask Mr. Jovanovic how much

25�� time he would use and what he intends to present in support of the

Page 494

�1�� position of the Defence.

�2�� MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.� I would

�3�� ask for a longer period of time, perhaps around 30 days.� The reason being

�4�� that when presenting our case, when presenting our position pertaining to

�5�� our proposal for the sentence, I would like to provide some details about

�6�� the health condition of the accused, which is not great.� He is under

�7�� observation of doctors at the Detention Unit.� We are expecting to receive

�8�� his medical history.� And let me just inform you that Mr. Zelenovic

�9�� recently was hospitalised; therefore, his health condition is rather poor.

10�� In addition to supporting our sentence proposal with our

11�� arguments, we would also like to enclose the opinion of a medical expert

12�� as well as an opinion of a psychologist who would speak of traumas that

13�� victims suffered.� Given that Mr. Zelenovic pleaded guilty to these

14�� crimes, it will not be necessary for the victims to come again to testify

15�� here and to be traumatised again.� This is something that we want to

16�� support with the finding of our expert psychologist, and we need more time

17�� for that than the two weeks that the Prosecution asked for.

18�� JUDGE ORIE:� How much time would you need?

19�� MR. JOVANOVIC: [Interpretation] Your Honours, we believe that four

20�� weeks would be sufficient.

21�� JUDGE ORIE:� The parties are granted four weeks to file their

22�� pre-sentencing briefs.� Of course it makes no sense at this moment to have

23�� a date already set, but the registrar is instructed to consult with the

24�� Chamber in the near future for setting a date for a sentencing hearing.

25�� Mr. Jovanovic, do you intend to -- you said that you did not want

Page 495

�1�� to call victims as witnesses.� Do you have in mind at all to call any

�2�� witnesses for the purposes of sentencing?

�3�� MR. JOVANOVIC: [Interpretation] No, Your Honours, except for the

�4�� experts, should the Chamber find this necessary, the psychologist whose

�5�� expert report would be enclosed with our brief.� We can call the expert,

�6�� if necessary, for him or her to answer questions by the Bench or the

�7�� Prosecution.

�8�� JUDGE ORIE:� If the expert report would be submitted to the

�9�� Chamber, then, of course, the Prosecution could, I would say, in analogy

10�� with Rule 94 bis, could express whether it accepts the report, whether it

11�� wants the expert to be called for -- to be cross-examined.� Of course the

12�� Chamber, even if the Prosecution would not wish to call the expert, the

13�� Chamber might have the wish to call the expert.� So let's first wait and

14�� see what the expert report tells us, and then we can decide whether

15�� there's any need to have the expert to be called.

16�� Thank you for that.� So the four weeks -- today we are the 17th of

17�� January.� Four weeks from now would be -- Madam Registrar, the exact date,

18�� four weeks would be?� I haven't got my agenda with me here.� That would be

19�� the 15th of February?

20�� THE REGISTRAR:� 14th of February.

21�� JUDGE ORIE:� So sentencing briefs to be filed not later than the

22�� 14th of February.

23�� Are there any other motions?� Are there any matters to be raised

24�� at this moment, apart from - and I'll pay some attention to that - the

25�� health of Mr. Zelenovic?� We'll ask him before we adjourn whether the

Page 496

�1�� Chamber should be informed about details of what happened to him.

�2�� Yes, Madam Uertz-Retzlaff.

�3�� MS. UERTZ-RETZLAFF:� Yes, Your Honour, there is one matter.

�4�� JUDGE ORIE:� Yes.

�5�� MS. UERTZ-RETZLAFF:� And I'll refer to our confidential filing,

�6�� the confidential joint motion for a consideration of guilty plea, which

�7�� was filed on the 14th of December, 2006.� We have actually mentioned

�8�� already in that motion that during this hearing, the parties would request

�9�� that a Trial Chamber's order, that the documents filed in that motion be

10�� made public --

11�� JUDGE ORIE:� Yes.

12�� MS. UERTZ-RETZLAFF:� -- because we filed it confidentially, but

13�� there is no need now any longer for this confidentiality.

14�� JUDGE ORIE:� Yes.

15�� Mr. Jovanovic, any objection against this?

16�� MR. JOVANOVIC: [Interpretation] No, Your Honour.� Thank you.

17�� JUDGE ORIE:� Yes.

18�� [Trial Chamber confers]

19�� JUDGE ORIE:� The Trial Chamber, having in mind the requirement of

20�� transparency as already expressed in Rule 62 ter, under (C), grants your

21� ��request, Madam Uertz-Retzlaff.� Therefore, the confidentiality of filed

22�� documents as mentioned by you now are public documents.

23�� Any other matter?

24�� MS. UERTZ-RETZLAFF:� No, Your Honour.

25�� JUDGE ORIE:� Mr. Jovanovic?

Page 497

�1�� MR. JOVANOVIC: [Interpretation] Nothing else, Your Honour.� Thank

�2�� you.

�3�� JUDGE ORIE:� Mr. Zelenovic, before we adjourn, it was mentioned

�4�� that you recently were hospitalised and that your health situation was not

�5�� very good.� Apart from what role that may play in sentencing, if you'd

�6�� like to inform the Chamber whether or not, in private session, about it,

�7�� if you consider it good for the Chamber to know what health problems you

�8�� are facing at this moment, please inform us.� At the same time, I say that

�9�� there's no duty, no obligation, to inform us.� It's up to you whether you

10�� consider it wise to inform us.

11�� THE ACCUSED: [Interpretation] I am being treated now at the

12� ��Detention Unit.

13�� JUDGE ORIE:� Yes.� I understand your answer to be that your

14�� medical problems are taken care of and that further details about your

15�� health problems are not such that the Chamber should know about it.� Is

16�� that correctly understood?

17�� THE ACCUSED: [Interpretation] My Defence counsel will inform you.

18�� My Defence counsel talked to the doctor.

19�� JUDGE ORIE:� Mr. Jovanovic, do you see any reason at this moment

20�� to inform the Chamber?� If you'd prefer to do so in private session,

21�� please ask to go into private session.� If you say no, it's not relevant,

22�� then we'll leave it up to you.

23�� MR. JOVANOVIC: [Interpretation] Your Honour, in my brief,

24�� sentencing brief, I will inform you of the medical history and everything

25�� else that is necessary.� As for the treatment that Mr. Zelenovic is

Page 498

�1�� receiving, I think that everything is in order.� I'm in contact with the

�2�� relevant authorities in the Detention Unit.� Mr. Zelenovic is receiving

�3�� the necessary treatment.

�4�� JUDGE ORIE:� Thank you very much for this information.

�5�� We will adjourn sine die.

�6�� --- Whereupon the Motion Hearing adjourned

�7�� at 10.21 a.m. sine die

�8

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