Tribunal Criminal Tribunal for the Former Yugoslavia

Page 263

1 Tuesday, 6 May 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 5.06 p.m.

6 JUDGE LIU: Call the case, please, Madam Registrar.

7 THE REGISTRAR: Good afternoon. This is case number IT-02-60-PT,

8 the Prosecutor versus Momir Nikolic.

9 JUDGE LIU: May we have the appearances, please, for the

10 Prosecution.

11 MR. McCLOSKEY: Mr. President, Your Honours, Peter McCloskey for

12 the Office of the Prosecutor with Stefan Waespi, Anne Davis, and Janet

13 Stewart, the case manager.

14 JUDGE LIU: Thank you.

15 For the Defence?

16 MR. LONDROVIC: [Interpretation] Your Honours, Mr. Nikolic is

17 represented by me, Veselin Londrovic, and Mr. Kirsch; and Mrs. Vesna Anic

18 is our interpreter.

19 JUDGE LIU: Thank you.

20 Mr. Nikolic, can you follow the proceedings in a language that you

21 understand?

22 THE ACCUSED NIKOLIC: [Interpretation] Yes, Your Honour.

23 JUDGE LIU: Do you have anything to complain at this stage?

24 THE ACCUSED NIKOLIC: [Interpretation] No.

25 JUDGE LIU: Thank you very much. If you have any problems in

Page 264

1 following the proceedings, just let us know.

2 THE ACCUSED NIKOLIC: [Interpretation] Yes, Your Honour. Thank

3 you, I will do that.

4 JUDGE LIU: You may sit down, please.

5 Well, good afternoon, ladies and gentlemen. During the Pre-Trial

6 Conference, I understand Mr. Nikolic and his lead counsel was absent. Let

7 me introduce the Bench to you once again. Sitting on my right is

8 Judge Vassylenko from the Ukraine; sitting on my left is Judge Argibay

9 from Argentina, and my name is Liu Daqun, the Presiding Judge of the Trial

10 Chamber I.

11 This Trial Chamber is seized with a joint motion for consideration

12 of plea agreement between Momir Nikolic and the Office of the Prosecutor.

13 This motion was filed jointly by counsel for Mr. Nikolic and the

14 Prosecution on 6 May 2003. According to the plea agreement attached to

15 the joint motion, the accused Nikolic agrees to plead guilty to count 5 of

16 the amended joint indictment, dated the 27th May 2002, as a crime against

17 humanity, punishable under Article 5(H) of the Statute of the Tribunal.

18 The plea agreement contains provisions reflecting the

19 understanding of the accused Nikolic as to the nature of count 5,

20 including legal elements of persecution as a crime against humanity and

21 the factual basis agreed upon as the basis for his guilty plea to the

22 count.

23 The plea agreement also recommends a range of sentences, based on

24 the understanding that such recommendation is not binding on the Trial

25 Chamber. The Office of the Prosecutor agrees to move to dismiss, at the

Page 265

1 time of sentencing, the remaining charges set out in the indictment.

2 The Trial Chamber has observed that the plea agreement has also

3 been in the B/C/S language, which the accused Nikolic understands, and is

4 attached to the joint motion. The Trial Chamber also looked at provisions

5 of the relevant Rules, in particular Rule 62 ter, and will deal with the

6 proceedings under Rule 62 bis.

7 Since we just got this plea agreement, could we ask both parties

8 to brief us on this agreement. Then we might ask some questions to both

9 parties. Is that agreeable?

10 MR. McCLOSKEY: Yes, Mr. President.

11 JUDGE LIU: Maybe you could take the lead, Mr. McCloskey.

12 MR. McCLOSKEY: Yes, Mr. President. This is a standard form plea

13 agreement that is specifically adapted to this case that counsel for

14 Nikolic and the Prosecutor worked a long time to -- to get. It basically

15 is designed as a document to make sure that the parties understand each

16 other and that -- especially that Mr. Nikolic understands the nature and

17 consequences of the charges, the potential consequences of the plea, and

18 the promises of the Prosecution, the most important of which are that

19 these are recommendations only, as you have stated, and that the Court is

20 of course not bound by this agreement and that you are free, at the time

21 of sentencing, to do so as you wish within the Statute. And as it's

22 pointed out in the plea agreement, that Mr. Nikolic could face up to life

23 imprisonment on this, and that has been explained, I know, in the plea

24 agreement and I know by counsel of the -- for the accused, but that the

25 Prosecution has promised to recommend 15 to 20 years, and also Mr. Nikolic

Page 266

1 has promised to cooperate and testify at any Srebrenica trials.

2 And these are the -- the basics of the plea agreement, to ensure

3 that Mr. Nikolic understands what he is facing by doing this, understands

4 what the Prosecution is recommending and what his own counsel are

5 recommending. And I -- from my dealings with counsel, I believe that

6 there are no -- no misunderstandings, no problems, no issues that we're

7 aware of and that all of us are going into this freely and voluntarily.

8 And I can ask -- of course answer any questions you may have.

9 JUDGE LIU: Thank you very much.

10 Any observations or submissions from the Defence team?

11 MR. LONDROVIC: [Interpretation] Your Honours, I fully second all

12 that Mr. McCloskey, my learned friend from the Prosecution, has just

13 said. Mr. Kirsch and I have explained in detail to our client,

14 Mr. Nikolic, all the items of the agreement. We have briefed him about

15 the nature of that crime, the crime against humanity, that is,

16 persecutions, which he will plead guilty for today. We are quite sure

17 that Mr. Nikolic has understood all the items of the agreement, and there

18 are no salient questions or any misunderstandings between the Defence and

19 the Prosecution, as my learned colleague has already pointed out. Thank

20 you.

21 JUDGE LIU: Thank you very much.

22 My question to you is that do you understand, fully understand,

23 this plea agreement?

24 THE ACCUSED NIKOLIC: [Interpretation] Yes, Your Honour.

25 JUDGE LIU: Thank you very much.

Page 267

1 So we will ask some questions. My first question is addressed to

2 the Prosecution: Does the Prosecution seek to separate the case of

3 Mr. Nikolic from the other three accused in the case IT-02-60-PT?

4 MR. McCLOSKEY: Mr. President, it would be our intention and the

5 intention of the parties that once Mr. Nikolic pleads guilty and that --

6 that that plea is accepted by this Court, that he would thereby be

7 convicted of these charges and would be, in that sense, no longer a part

8 of the ongoing case. And this is the traditional method, and it's a

9 self-fulfilling procedure. Once one admits guilt, he is convicted and

10 then set down for sentencing, and that he of course is no longer part of

11 the ongoing case which the others are challenging and standing on their

12 right to trial.

13 JUDGE LIU: Thank you. We have some specific questions concerning

14 with the whole plea agreement. We will ask these questions I think

15 paragraph by paragraph.

16 In paragraph 4(b), it says: "That the Office of the Prosecutor

17 agrees to move to dismiss at time of sentencing the remaining charges set

18 out in the Indictment." What does it mean? What is the time of the

19 sentencing? What is the remaining charges set out in the indictment?

20 MR. McCLOSKEY: Mr. President, what -- that is again a traditional

21 part of a plea agreement in -- both in this Tribunal and other places, and

22 what it means is that at the time Mr. Nikolic is sentenced, at that

23 sentencing hearing and at the time of sentence, the Prosecution will move

24 to dismiss all the other charges. It's done in a -- sort of an oddly

25 conservative fashion, as you -- as you might view it, but sometimes in the

Page 268

1 common law system between a plea and an actual sentence an accused may

2 wish to challenge his guilty plea. And in that case, if the Prosecution

3 has already dismissed the charges, then they many times cannot be

4 reinstituted in a common law jurisdiction. So this is just a means by

5 which to ensure that we get to the state of sentencing, that it -- it goes

6 through as anticipated by the plea agreement, and then the other

7 charges -- the other counts in the indictment, in this case, are dismissed

8 and go away.

9 In this plea agreement, we are -- Mr. Nikolic has agreed to

10 testify in the upcoming trial, and we have requested that his sentencing

11 be set for after his testimony so that the Court can fully evaluate his --

12 his testimony and his overall contribution to the Prosecution's case,

13 which is part of the foundation of why the Prosecution has agreed to drop

14 the other charges and make this sentence recommendation.

15 JUDGE LIU: You use the terminology of "standard traditions."

16 Traditionally, you know, this is the normal practice, you know. I would

17 like to know, you know, from the previous practice or from previous cases

18 whether this is really something, you know, in the plea agreement or not.

19 Can you cite some previous cases on that issue?

20 MR. McCLOSKEY: Yes, Mr. President. It's hard to use the word

21 "tradition" when it comes to this Tribunal, since we haven't been around

22 very long. But in the sense that we can say "tradition," I was personally

23 involved in the plea agreement of Drazen Erdemovic, a soldier, that was --

24 actually pled guilty to charges in this case, and that plea agreement was

25 designed on very -- very similar format than this one. And in fact, the

Page 269

1 first time Mr. Erdemovic pled guilty, it was such a different -- a

2 different and unusual plea in a situation -- I recall at the time

3 Judge Jorda was presiding and there was some confusion, and later on it

4 was not clear that Mr. Erdemovic understood his rights and that had to be

5 done all over again. And the second time it was done, I was involved and

6 we were able to make an actual written plea agreement much along the lines

7 of this one, and I think it was then much clearer to -- to Mr. Erdemovic,

8 much clearer to counsel, much clearer to the Court, and eventually that

9 was upheld. So that is one situation.

10 Another situation was in the case of accused Milan Simic, who was

11 in the Bosanski Samac case, who was one of four defendants, who a few

12 months ago now pled guilty pursuant to a plea agreement which was, again,

13 based on the very same design as this standard form, and that has

14 withstood the test of the Tribunal.

15 And while I have not carefully reviewed the Plavsic plea

16 agreement, it is also, in my understanding, a similar -- a similar

17 agreement, though drafted by other lawyers so perhaps a little different.

18 But those are three examples of the traditions within this

19 Tribunal. And I believe it was the Erdemovic case that caused the

20 Tribunal to recognise that this was something that is important, and so it

21 became the subject of one of the plenaries and the Judges did adopt the

22 section that did recognise the validity of such agreements.

23 JUDGE LIU: Well, Mr. McCloskey, as we understand it, the practice

24 of the Tribunal, which is common with many of the domestic jurisdictions,

25 is to sentence the accused before he gives any evidence. This avoids any

Page 270

1 suggestion that he's inflated or invented his evidence which is given in

2 order to obtain a great reduction for mitigation of his sentence.

3 MR. McCLOSKEY: Mr. President, in the -- the practice in the -- in

4 North America, and not to say that any one system is any better than any

5 others, is a very practical system, and what both the Prosecution and the

6 Defence want in a plea agreement is a chance for the accused, or the

7 guilty party, to testify as truthfully and as completely as possible and

8 show the Trial Chamber who will be gauging his cooperation and his

9 truthfulness that he is fully complying with his agreement and with his

10 promise to tell the truth. And the most important act that that person

11 can do is testify under oath before the Tribunal. So I think you will

12 find that all Defence counsel will want their clients to be -- not be

13 sentenced until after they have a chance to testify under oath to show the

14 Judges that they are truly cooperating, that they have truly accepted

15 their responsibility, and they're not playing games. Because as you know,

16 Courts in this Tribunal have said repeatedly that people that accept their

17 responsibility and admit the truth of the charges and save the victims

18 from testifying and save the court time, that that is something that is

19 strongly recommended. And so accused will want to be able to show the

20 Court that there -- that they are truthful, that they are accepting their

21 responsibility, and the best way for them to do that is under

22 cross-examination by any other co-accused and by questions from the

23 Court.

24 Now, of course the Court has every right and can question an

25 accused at the sentence to ensure themselves that the plea is factual,

Page 271

1 based on facts, and is also voluntary. And that is your duty. But there

2 is nothing like testimony and the cross-examination. This is where the

3 accused has a real chance to show you his honesty, show you his -- his

4 acceptance of responsibility.

5 And there's also one very practical reason why this happens: Is

6 that if an accused is sentenced prior to giving testimony, the accused may

7 feel that he can say anything he wants afterward and there is no -- there

8 is no -- nothing to make him live up to his agreement. And this is

9 perhaps the sense that you feel that there's a sense of coercion about the

10 process, and that is the nature of the process, the practical aspects that

11 holds the defendant to his -- to his agreement, to his burden, because

12 if -- if there is no one judging him and his ability to accept his

13 responsibility and to be honest, then the belief is perhaps he won't be as

14 honest as he could be. And Defence counsel want the accused to have that

15 right, to convince you that they're being honest and accepting

16 responsibility. And of course, practically, the Prosecution wants him to

17 know that there is logical consequences to his actions. That's the nature

18 of plea agreements, the nature of the common law adversarial plea

19 agreements. And I know from many discussions over many years that that is

20 something that is not -- that is foreign to the civil law and in fact in

21 many -- many people find it offensive. However, that's why we cite to the

22 Rules and the Chamber -- the Rules, but the request to have the -- the

23 sentence after testimony is basically what I -- what I said, and that's --

24 if I can answer any other questions on that point, I certainly will.

25 JUDGE LIU: Well, I think in most of the jurisdictions the

Page 272

1 commitment itself is part of the agreement. It doesn't depend on the

2 quality of the testimony, whether, you know, the accused is truthful or

3 not to testify against other people or even the co-accused. And we are

4 worried about the credibility of the testimony of this accused without -

5 without - sentencing. We have to be fair to the accused himself as well

6 as to other people the accused will testify against.

7 Another question is: You said you are ready to dismiss the

8 remaining sentence -- the remaining charges in the indictment. Does this

9 mean that the accused pleads guilty to the Prosecution but the other

10 charges are still there against him? Do you mean that?

11 MR. McCLOSKEY: Mr. President, this is something that is so

12 fundamental that I'm trying to find out -- I'm trying to recall the -- why

13 it works the way it does. But yes, these other charges are basically put

14 on hold. They -- and if the person withdraws his plea for some reason,

15 the charges are there and they're -- the person is reincorporated into the

16 old indictment. But the -- for all intents and purposes, once the Court

17 accepts the -- the guilty plea, those charges are off the books and -- and

18 then they are finally off the books when the Prosecutor -- when the

19 sentence is given and the Prosecutor dismisses them. But once there is a

20 guilty plea accepted by the Court, agreed to by the parties, those charges

21 are put in an off-the-books situation and only to arise again if Defence

22 counsel for some reason withdraws his guilty plea or something else

23 happens.

24 JUDGE LIU: Well, the job of this Tribunal is not only to address

25 the personal responsibility of criminal activities but also to safeguard

Page 273

1 the fundamental rights of the accused.

2 Reading paragraph 17, the waiver of the rights of this agreement,

3 if those charges are still there, at the meantime, the accused waived his

4 right to defend himself, we believe that is a serious violation of this

5 person's right.

6 MR. McCLOSKEY: It's not -- it's not meant to be that way. It's

7 not, in practice, that way. Counsel doesn't think it's that way.

8 However, the reason that it's a problem in common law is that there's a

9 concern that if these charges are dismissed, they cannot be reinstated. I

10 think we can probably dismiss the charges if -- if you feel that's

11 necessary, as long as they're not dismissed with prejudice and that if, in

12 case something blew up before sentencing, they could be reinstated. That

13 might solve your concerns and solve the traditional concern of why this is

14 done.

15 JUDGE LIU: In "the time of the sentencing"; what does this mean?

16 Does it mean that for sentencing specifically for the accused himself,

17 Mr. Nikolic alone, or the sentencing in the entire case? If it's the

18 later case, we have to wait two years?

19 MR. McCLOSKEY: Mr. President, this means that at the time of

20 Mr. Nikolic's sentencing, as do all the particular elements of this.

21 But perhaps I shouldn't give you an example of how this can work,

22 because I've had cases where people have not been sentenced for two or

23 three years as a very long complicated corruption trial goes on, and that

24 the -- the Trial Chamber wants, and the accused wants, the Court to see

25 this person tell the truth and cooperate in each of the successive trials.

Page 274

1 And since they know it's a serious crime and the person is going to go to

2 prison for many, many, years, the fact that they go unsentenced for a year

3 or two years is something that both the Prosecution have no problem with

4 nor the accused, because it gives the accused a chance to assist the

5 Prosecution and therefore the value of the Prosecution is higher at the

6 time of sentencing, so the Prosecutor can get up and say, "This witness

7 testified at five Mafia trials and was a truthful witness and a key

8 witness, and as a result the -- he should not face life imprisonment, Your

9 Honour, he should face only," you know, whatever number of years. That's

10 what the accused wants, that's why the accused testifies in five Mafia

11 trials, and that's why he doesn't ask for a sentence before that. The

12 same with the Prosecution. That way, the accused gets the benefit of all

13 that cooperation and all that assistance to law enforcement. It's not

14 considered by either party as any kind of infringement to put it off that

15 long.

16 Now, in this particular case, I would intend to call Mr. Nikolic

17 sometime in June or July, and just as -- as the appropriate timing would

18 allow. And so we wouldn't expect that to be a big burden on -- on

19 anyone.

20 JUDGE LIU: Well, are you going to consider dismissing all the

21 remaining counts at the time that Mr. Nikolic enters a guilty plea to the

22 count, especially to the count 5?

23 MR. McCLOSKEY: I can do that, Your Honour, as long as we all

24 understand that it's without prejudice, that if something happens and he

25 withdraws his plea, that those can be reinstated. So that shouldn't be a

Page 275

1 problem. I think that one we can -- all systems can work around to get a

2 proper ICTY system.

3 JUDGE LIU: Thank you.

4 Any submissions from Defence team concerning paragraph 4 of the

5 plea agreement? What is your understanding of this paragraph, especially

6 of that phrase recorded?

7 MR. LONDROVIC: [Interpretation] Your Honours, in preparing this

8 agreement, the Defence has understood it just as Mr. McCloskey, my learned

9 friend from the Prosecution has explained it to you. However, if you are

10 concerned about item (b) -- or rather, para (b) of item 4, I endorse

11 Mr. McCloskey's suggestion to solve the problem by having the Prosecution

12 drop other charges against the accused Nikolic when and if you accept his

13 guilty plea on count 5, persecutions, and agree that we leave the

14 possibility to the Prosecution to reactivate either counts if the Defence

15 withdraws its signature from this agreement for whatever reason.

16 [Trial Chamber confers]

17 JUDGE LIU: I think there are some questions asked by

18 Judge Argibay. You may sit down, please.

19 JUDGE ARGIBAY: It's addressed to the Prosecution, because I have

20 a practical problem. If you don't drop the counts, you put it on hold,

21 you say, or something like that, in the freezer, let's say, but something

22 comes into the big trial with the other accused related to those counts

23 and related to Mr. Nikolic. How are we going to -- to work with that?

24 Because by this plea agreement he's waiving his right to examine witnesses

25 or to be at the trial, because these counts are out but not out of the

Page 276

1 way.

2 MR. McCLOSKEY: Well, this is something, practically, that each

3 accused knows when they enter a plea agreement, or they're told by their

4 lawyer. And in this particular case, I know this counsel told his client

5 this, that -- tell the whole truth because at the trial and other places,

6 other material comes out, other evidence comes out, and it's very

7 important that when you're finally judged by the Court they see you as

8 telling the truth, so don't hide anything. And so they know that by

9 giving up their right and pleading guilty, they are exposing themselves to

10 evidence as it comes in before the Court and that evidence that may go

11 against them. However, they also have the confidence that at sentencing

12 and in the documents that will be filed in the sentencing both by the

13 Defence and by the Prosecution, that any such issues will be argued by

14 both sides.

15 For example, if something came up in a case that the Prosecution

16 felt was fundamental and was truthful and was not as the person in -- that

17 made the plea agreement said, then at sentencing the Prosecution is free,

18 under this agreement, to tell you that the -- that the person did not

19 cooperate as fully as we had anticipated. And however, if that same

20 information that comes out of trial is something that we believe was

21 fabricated, we would at sentencing say, "We do not believe that

22 information involving the accused is true and that it should not affect

23 his overall cooperation." So you would be hearing from both sides on such

24 material, and you would have a chance to evaluate what both sides said

25 about it as well as question the defendant on that point. But yes, you

Page 277

1 would not have the chance to have counsel cross-examine at the trial that

2 various evidence. That's given up when the person pleads guilty.

3 JUDGE ARGIBAY: Well, I'm not very clear yet about that, but then

4 I'll turn to another thing.

5 The question is, from my point of view, that the -- the accused is

6 waiving a lot of rights and the counterpart, it's not very equal to that

7 if you're not going to drop the charges, the other counts. That means

8 that he's waiving all his right, even the right to be considered innocent

9 until convicted, at least in one charge, for one charge. And he's not

10 getting, on the other side, the same waiver of rights. For instance, the

11 right to reinstate the charges should be dropped, in my -- from my point

12 of view. Don't you think that you must keep a sort of balance between the

13 two parties and it's not very fair to ask the accused to waive all of his

14 rights and not giving him at least this security on dropping the charges?

15 MR. McCLOSKEY: There -- the simple -- there is a simple answer to

16 that question. In effect, this plea agreement drops those other charges.

17 They're gone. And they're almost never reinstated. The only time that

18 one tries to reinstate them is, like I said, when the plea is withdrawn.

19 And so it's not a problem for the Prosecution to dismiss those charges

20 today, and we'll just -- as long as they're not done under prejudice.

21 You see, in the -- when charges are dismissed by prosecutors where

22 I come from, many times they can never been charged again. It's over.

23 It's an inflexible system in some respects, much less flexible than the

24 civil law system, and so that is why that particular odd -- setting the

25 charges in the freezer is there. But I think, practically, we can dismiss

Page 278

1 those charges today and not have any problem from anyone. I think we have

2 an agreement, those charges are gone, and it shouldn't be a problem.

3 Now, I can mention to you briefly what I think the Prosecution is

4 giving up in this agreement, because I believe they're giving up a lot,

5 but I think there's a lot of good reasons to do it. And I can also tell

6 you that but I don't know if perhaps you want to hear that tonight.

7 JUDGE ARGIBAY: Thank you.

8 JUDGE LIU: The next set of questions concerning of the paragraph

9 5 of the plea agreement, which is related to paragraph 31 of the

10 indictment. The plea agreement suggests that deletion of the phrase

11 "genocide -- complicity in genocide" and "murder as a violation of the

12 laws or customs of wars" in paragraph 31 of the indictment. However, the

13 phrase "crimes against humanity, including murder, persecution, forcible

14 transfer, and inhuman acts," remains in this paragraph.

15 There are several issues I would like to seek some clarifications

16 from the Prosecution: Whether this deletion is related to the particular

17 accused, that is, Mr. Nikolic, or to all the persons listed in this

18 indictment, because in the chapeau, in the first paragraph we have four

19 names there.

20 MR. McCLOSKEY: Yes. This agreement is only meant to affect

21 Mr. Nikolic. And on your particular point, this afternoon Mr. Waespi

22 pointed out to me that these -- the other murder and crimes against

23 humanity were counts that were actually being dismissed and that those

24 should be cut out also. When we left them in, we thought they were part

25 of the umbrella of persecutions, because as you know, persecutions use the

Page 279

1 same terminology. But then as I looked at that again just recently, I

2 realised no, it has to do with the other charged counts, and yes, those

3 should be deleted as well. That's -- Mr. Waespi and I had a debate on it

4 but I think I know how it should be resolved.

5 JUDGE LIU: I think you answered my second question instead of the

6 first one.

7 My second question is that the accused only pleads to Article

8 5(H), that is, the persecution. But, however, the remaining phrase in

9 paragraph 31 indicates other crimes against humanity, such as murder,

10 forcible transfer, and inhuman acts in addition to that of the persecution

11 as a crime against humanity. I think you somehow answered this question,

12 you know.

13 But my question is that: In the chapeau or in the first sentence

14 of this paragraph, there are four accused named as committing such kind of

15 crimes. So this deletion is applicable only to the accused, that is,

16 Mr. Nikolic himself, alone, or to all the four accused in this

17 indictment?

18 MR. McCLOSKEY: Yes, only -- only Mr. Nikolic alone. That

19 language stays for all the rest, because they have chosen to go to trial

20 on that.

21 JUDGE LIU: Thank you.

22 And the next question is concerning with the paragraph 5.3. It

23 says: "Paragraph 45 (second subparagraph, third sentence): Instead of

24 'in compliance with the orders of Mr. Blagojevic,' it should say 'under

25 the authority of Mr. Blagojevic.'"

Page 280

1 This change or amendment of the indictment concerning another

2 person, another accused, I wonder if it's proper to change any contents of

3 the indictment without the presence and the knowledge of that particular

4 person.

5 MR. McCLOSKEY: Well, Mr. President, this was just identified as

6 the correct way to factually and legally view this, and this plea

7 agreement and its changes have been sent to all Defence, so they have been

8 put on notice of this -- of this change. And in fact, the change benefits

9 Mr. Blagojevic because at first we thought there was an order and then,

10 going over the facts with Mr. Nikolic, it was determined that he was

11 acting under the authority of his commander but not under direct orders.

12 So we felt it would be important to clear that up legally first in this

13 document for Mr. Nikolic but then, as soon as we get a little breathing

14 space, present to you an amended indictment for the other accused, leaving

15 off Mr. Nikolic and fixing this change. We also just found another typo

16 in the indictment which we would fix also. And so in that event, counsel

17 have been notified, and it is to their benefit, and we fully intend to do

18 that and correct it. But it was, of course, something we didn't learn

19 until the last day or two, as we had discussions with the accused.

20 JUDGE LIU: Well, I also hope that the Defence counsel and Defence

21 team of Mr. Blagojevic will think along your way, but at least I think

22 Mr. Blagojevic should be given the notice of this suggested change to the

23 indictment. And in case of objections, it might impact his case

24 adversely.

25 MR. McCLOSKEY: Yes, Mr. President. This has been sent today to

Page 281

1 counsel for Mr. Blagojevic. And the actual motion to amend the

2 indictment, to fix it, will give Mr. Blagojevic and anyone else a chance

3 to challenge any changes and litigate that issue. And so I -- I think

4 that that is well -- well taken care of and that we have acted timely and

5 we're trying to get at the truth and be as accurate as we can as events

6 unfold.

7 JUDGE LIU: Thank you. Any submissions from the Defence team?

8 MR. LONDROVIC: [Interpretation] Nothing at this moment, Your

9 Honour.

10 JUDGE LIU: Thank you.

11 Yes, the next set of questions are concerning with paragraph 9 to

12 11 of the plea agreement; namely, cooperation by Mr. Nikolic.

13 In the paragraph 9, the agreement is contingent upon Mr. Nikolic's

14 acceptance of the responsibility and the decision to cooperate with the

15 OTP whenever requested. What does it mean by "contingent upon"? Do the

16 parties mean contingency upon or based on? We need some clarifications on

17 that word. Maybe Mr. McCloskey could help us.

18 MR. McCLOSKEY: [Microphone not activated]

19 JUDGE LIU: Your mike, please.

20 MR. McCLOSKEY: Sorry. Basically, Mr. Nikolic is promising to

21 cooperate with us, meaning, as we state, he's agreeing to meet with us

22 when we can, go over the facts with us, and testify truthfully and provide

23 us the truth. And if he does that, the continue -- the agreement stays in

24 force, and at the time of sentencing he will bear the benefit of his

25 agreement, and we will so tell the Court that he is able to do that.

Page 282

1 However, if in a situation like this an accused decided he didn't

2 want to speak with the Prosecution any more or didn't want to testify any

3 more, that -- then he would be in breach of this agreement and the

4 Prosecution would not be bound by its promises, which are the

5 recommendation of the 15 to 20 years. It's an agreement for him to

6 cooperate and tell the truth and that we provide our sentencing agreement

7 based on that cooperation.

8 JUDGE LIU: And now, what points do you consider that Mr. Nikolic

9 has fulfilled his obligations and the agreement will take effect?

10 MR. McCLOSKEY: Practically, this works at the -- at the time of

11 his sentencing, where it's fully evaluated, his -- his ability to meet

12 with us, tell us the truth, his ability to truthfully testify at trial,

13 his ability to accept his responsibility, and then once -- once the

14 sentence is sent, after he's had a chance to show you that and cooperate

15 with the Prosecution, then he will bear the benefit of that agreement and

16 be sentenced as a result of it.

17 JUDGE LIU: Does that mean that this agreement will take effect

18 after his signing of this agreement?

19 MR. McCLOSKEY: No, it's meant to take effect upon his signing. I

20 would expect that if we needed to speak to him in the next few days, that

21 he would, based on his agreement, speak to us, and I'm sure he would. So

22 the agreement is in effect at the signing. He agrees to continue to

23 cooperate; we agree to tell you about that cooperation so you can evaluate

24 it in relation to the appropriate sentence. Of course, it's just one

25 factor in sentencing, cooperation, but as you know, it's an important one

Page 283

1 because how important it is to save the Tribunal time and to have people

2 step up and take responsibility, it is only one factor. Of course the

3 nature of the crime, the events, everything else, is -- is also part of

4 the sentencing, but this is just one -- one important factor. And this

5 ability to let you see him cooperate and tell the truth is one of the

6 biggest values he has to himself and to this Tribunal. That's why

7 sentencing should be after you have a chance to see that.

8 JUDGE LIU: In paragraph 10, you use terminology as "the upcoming

9 trial." What do you mean by that? Does it mean only the trial of the

10 three other accused in that case or the trial, if you do not drop the

11 other charges, do you mean the trial still against the accused?

12 MR. McCLOSKEY: The -- we meant -- "the upcoming trial," we meant

13 this trial, and we can be more specific on that, but that's -- that's the

14 one that is hovering over all of us, so there was no -- for us, there was

15 no issue of which one it was, but we can be more specific. And if you

16 accept this plea, I will dismiss those other charges today.

17 JUDGE LIU: We are still, you know, wondering what is the criteria

18 for the -- for the accused to testify as truthful and candid, and how is

19 that measured and enforced? What's the criteria for you to judge whether

20 the accused give truthful testimony?

21 MR. McCLOSKEY: Well, first of all, it's most important for you to

22 make that determination, based on all you know about the case, be it from

23 the written record or the -- in this case there may be a trial. And we'll

24 basically be doing the same thing you are; we'll be going on our knowledge

25 of the written investigation and what other people say and our knowledge

Page 284

1 of the case to determine whether we believe he is in fact telling the

2 truth or -- and cooperating in meeting his side of the burden.

3 JUDGE LIU: Do you mean that you will not decide that, you know,

4 arbitrarily, or by yourself?

5 MR. McCLOSKEY: We do make that decision ourselves. We do not

6 make it arbitrarily. But it is the Judges' prerogative in the end to make

7 that decision. We will make our recommendations to you, but it is, of

8 course, your discretion to decide whether you believe he is cooperating,

9 based on what we say, what Defence says, what you see him do in court;

10 everything before you. But that's -- that is principally your

11 responsibility and -- but we will hopefully help you with that, based on

12 our knowledge of the case and -- and what we -- what we -- you know, seven

13 years of the investigation and watching him testify. So I think we can

14 add to that and be helpful. But fundamentally you're the most important

15 arbiters of that -- of that situation.

16 JUDGE LIU: When do you expect the accused to testify in that

17 case?

18 MR. McCLOSKEY: Prior to the summer break. June or July, I would

19 hope.

20 JUDGE LIU: Thank you.

21 Any submissions from the Defence team or any observations

22 concerning with those paragraphs?

23 MR. LONDROVIC: [Interpretation] Your Honours, the accused Nikolic

24 agreed to testify, to tell the truth, and to cooperate with the

25 Prosecution in the belief that in that way he will achieve significant

Page 285

1 cooperation, which under the Rules - and I'm sure you are familiar with

2 that - is the only mitigating circumstance under the Rules of Procedure

3 and Evidence.

4 Mr. Nikolic, assuming -- on assuming his responsibility and guilt,

5 is prepared to also assume responsibility, and in assuming this

6 responsibility, he's prepared to tell the truth. He has promised that he

7 will tell the truth, that he will not lie at all. He's prepared to

8 cooperate with the Prosecution in order to achieve this cooperation and so

9 that he could receive a recommendation by the Prosecution during the

10 sentencing that he sincerely and honestly cooperated with the

11 Prosecution. And I hope that we will come to this point and that this

12 will have an effect on the severity of the sentence that will be passed

13 down. And I completely agree with all that Mr. McCloskey has said.

14 JUDGE LIU: Thank you.

15 The next set of questions concerning with paragraphs 17 and 18,

16 which is about the waiver of the rights of the accused that we have

17 already been touched upon. But we believe that those conditions are very

18 strict. There are some fundamental rights that the accused should not be

19 deprived of. For instance, the right not to be compelled to testify

20 against himself or to confess guilty, the right to be tried without undue

21 delay, the right to testify or to remain silent at trial. Based on what

22 circumstances those conditions, those waiver, were drafted? We would like

23 to know some background.

24 MR. McCLOSKEY: Mr. President, when an accused voluntarily decides

25 to plead guilty, he is waiving his right to remain silent because he is

Page 286

1 standing up and saying, "I am guilty." So by definition, he's waiving his

2 right to remain silent and he is gaining a great benefit in doing so

3 because he's accepting responsibility, and as Mr. Londrovic said, he hopes

4 to be benefitted that by you. So he has to set aside his right to remain

5 silent in order to stand and tell you, and tell the world, that he accepts

6 responsibility for this. There's no way to do that without saying --

7 standing -- setting aside his right to remain silent.

8 The -- for the other two rights you mentioned, the same thing

9 applies. By doing that, he has to set aside those rights, just by his

10 very act that will benefit him.

11 JUDGE LIU: Well, some of the rights listed here are so

12 fundamental, I, of course -- you know, maybe that is a theoretical issue,

13 but we believe that some of the rights is inalienable, is not deprived of,

14 not by anybody, some of them even by himself. But that's -- that's

15 another matter. Yes.

16 Another question is concerning of the paragraph 18, that "the

17 accused does not waive his right to be represented by Counsel at all

18 stages of the proceedings." What do you mean by "the proceedings"? It

19 means the proceedings in the sentencing proceedings of this particular

20 accused or the proceedings of the case with the three accused?

21 MR. McCLOSKEY: It means the sentencing proceedings, or perhaps

22 when he testifies, counsel would like to be present while he was

23 testifying. Sometimes counsel does like to be present. And any other

24 court proceedings or any other time that he needs his counsel. This is

25 just designed to let him know that he always has his counsel, that while

Page 287

1 in order to plead guilty and agree to testify you're waiving your

2 fundamental rights, you never ever waive your right to have counsel. And

3 that's -- that paragraph is there for the very purpose that I think

4 concerned you in the previous one. There are certain things that should

5 never been waived. And again, we do get into philosophical arguments and

6 the view of the individual and his rights, but that's probably for another

7 day.

8 JUDGE LIU: Any submissions from Defence team, or any comments?

9 MR. LONDROVIC: [Interpretation] No, Your Honour.

10 JUDGE LIU: Thank you very much.

11 I think this is all the questions, you know, concerning with this

12 plea agreement. I must confess that we do not have enough time to study

13 it. And by reading this plea agreement, we understand it's -- it was

14 drafted in a hasty manner and that there's something to be corrected and

15 amended.

16 I hope, after this hearing, that both parties will get together,

17 while taking into consideration of the observations made by this Trial

18 Chamber, they'll try to work out a presentable agreement. We are ready to

19 entertain it whenever you are ready.

20 Is that agreeable, Mr. McCloskey?

21 MR. McCLOSKEY: Yes, Mr. President. We will try to reassess,

22 based on your -- your comments. However, I would like to tell you this

23 was not done hastily. This was done in great consideration. We spent a

24 lot of time and we carefully went over each paragraph of the indictment.

25 We have spent hours and hours and hours together, all of us. We've taken

Page 288

1 this responsibility very gravely. And I can see the -- one of your main

2 concerns is -- I can dismiss the other counts and get -- though, frankly,

3 I -- and we will try to see if there are other significant concerns,

4 but -- and we will try.

5 JUDGE LIU: Thank you very much for your cooperation.

6 [Trial Chamber confers]

7 JUDGE LIU: Yes, Judge Vassylenko.

8 JUDGE VASSYLENKO: Mr. McCloskey, my question relates to the para

9 17. Do you mean that Mr. Nikolic is giving up his rights in relation to

10 all charges or only to the charges dismissed by para 4(b)?

11 MR. McCLOSKEY: Practically, he's giving up his rights for all

12 charges and the charges that are put in the freezer as well. But we can

13 get around that problem by putting those charges elsewhere, so they're

14 gone. So I think we can solve that one very simply.

15 JUDGE VASSYLENKO: Do you mean that the Bench can ask the accused

16 the questions and the accused had obligation to answer these questions?

17 MR. McCLOSKEY: Absolutely. Once he pleads guilty, it's required

18 of the Court - and counsel and the accused know this - that you be

19 satisfied that there's a factual basis for this charge, and questions from

20 the Court are absolutely appropriate in that context, and I am sure

21 Mr. Nikolic and his counsel are prepared to answer any questions you

22 have.

23 JUDGE VASSYLENKO: Thank you. I have no more questions.

24 JUDGE LIU: Any comments and submissions from Defence team? Are

25 you agreeable with this solution?

Page 289

1 MR. LONDROVIC: [Interpretation] Yes, Your Honour.

2 JUDGE LIU: Thank you very much.

3 So I hope both parties could get together to go over the whole

4 plea agreement. And as I said, that we are ready to entertain it at any

5 time when you are ready.

6 So the hearing is adjourned.

7 --- Whereupon the Motion Hearing adjourned

8 at 6.12 p.m.