Tribunal Criminal Tribunal for the Former Yugoslavia

Page 61

1 Wednesday, 8 October 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.10 a.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honours.

8 Case Number IT-95-10-PT, the Prosecutor against Ranko Cesic.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 Mr. Cesic, I'd first like to know whether you can hear me in a

11 language you understand?

12 THE ACCUSED: [Interpretation] Yes, Your Honour, I can hear you.

13 JUDGE ORIE: Yes. I was on the wrong channel, but I read that

14 your answer was that you can hear me. Yes, please be seated, Mr. Cesic.

15 THE ACCUSED: [Interpretation] Thank you.

16 JUDGE ORIE: May I first have the appearances of the parties.

17 Prosecution first.

18 MR. HARMON: Good morning, Mr. President, Your Honours. My name

19 is Mark Harmon. To my right, Mr. Vladimir Tochilovsky; to his right,

20 Mr. Tom Hannis, and to his right, the case manager, Susan Grogan. And we

21 represent the Office of the Prosecutor in these proceedings.

22 JUDGE ORIE: Thank you, Mr. Harmon.

23 For the Defence.

24 MR. BAKRAC: [Interpretation] Good morning, Mr. President,

25 Your Honours. My name is Mihajlo Bakrac. I am representing the accused

Page 62

1 Ranko Cesic in this case.

2 JUDGE ORIE: Thank you, Mr. Bakrac.

3 I first have to draw the attention of the public, because the

4 parties are already aware of it, of two orders that have been filed

5 yesterday confidentially. The orders -- one of the orders reschedules

6 this meeting which was expected to be a 65 ter meeting into a meeting

7 where we will hear a -- I'll just give the names of the orders. The one

8 is called "order to convert a Status Conference into a hearing to

9 entertain a joint motion for consideration of the plea agreement between

10 the Prosecutor and Ranko Cesic." The other order is an order designating

11 a Chamber in which the constitution of this Chamber is further explained,

12 specifically that I am presiding in this case. The confidentiality of

13 these orders is lifted on from this moment.

14 So we are here now, as the order says, to hear a joint motion, and

15 I do understand, but let me just seek confirmation of it, that the filing

16 of documents pursuant to Rule 65 ter is understood by the parties as a

17 request to hear a joint motion on the attached plea agreement.

18 MR. HARMON: Mr. President, that is correct. May I just say that

19 in respect of questions the Chamber may have about this agreement, I'm

20 prepared to have Mr. Tochilovsky address the Chamber in all respects.


22 MR. HARMON: Thank you.

23 JUDGE ORIE: Thank you very much, Mr. Harmon. Is this also the

24 understanding of you, that the filing of documents is to be understood as

25 a request to hear the joint motion on a plea agreement?

Page 63

1 MR. BAKRAC: [Interpretation] Yes, Your Honour, I am in full

2 agreement with my learned colleague.

3 JUDGE ORIE: Thank you very much, Mr. Bakrac.

4 So we'll then perhaps ask some questions on the plea agreement

5 that has been filed. As the Rules say, a plea agreement should be made

6 public unless there are reasons not to do so. Do I understand the

7 position of the parties to be, because that's what I read in the filing of

8 documents pursuant to Rule 62 ter, that the parties want the plea

9 agreement to be released as public, as a public document? So that means

10 in full publicity?

11 MR. TOCHILOVSKY: Yes, Your Honour.

12 JUDGE ORIE: Yes, thank you. That's also the view of the Defence,

13 Mr. Bakrac?

14 MR. BAKRAC: [Interpretation] Yes, Your Honour.

15 JUDGE ORIE: Therefore we can deal with the plea agreement in full

16 detail in an open session.

17 First of all, the Chamber establishes that there is a plea

18 agreement, and I'd like to know, Mr. Cesic, whether the signatures I find

19 on the copy that has been provided to you is your signature. Could,

20 perhaps, the usher show the...

21 THE ACCUSED: [Interpretation] Yes, Your Honour, it is my

22 signature.

23 JUDGE ORIE: Thank you. I used, but if any of the parties would

24 like to verify whether the copy I just presented to the accused is the

25 same as they have, but I take it that there are no other copies around.

Page 64

1 Then I'd like to go into the summary content of the plea

2 agreement. The plea agreement, Mr. Cesic, includes that you have

3 committed yourself to plead guilty on all counts of the indictment that

4 has been brought against you. The Prosecution has committed itself to

5 recommend to the Trial Chamber to impose a sentence within the range of

6 13 to 18 years. The factual basis of the plea agreement - you may remain

7 seated, Mr. Cesic. Of course, if you want to stand, fine, but if you

8 prefer to be seated, please do so - the factual basis of the plea

9 agreement is contained in an attachment to the plea agreement. And I'd

10 like to go through that in more detail.

11 The factual basis is the following: That you, Mr. Cesic, son of

12 Radovan, you were born on the 5th of September 1964 in Drvar Municipality

13 in Bosnia-Herzegovina; that in May 1992, you were initially a member of

14 the Bosnian Serb Territorial Defence in Grcica in Brcko Municipality; and

15 that you then became a member of the Intervention Platoon assigned to the

16 Bosnian Serb police force in Brcko town; your assigned duties during May

17 and June 1992 included arresting specified non-Serb individuals and

18 bringing them to the Brcko police station or the Luka detention facility

19 for interrogation; that during the time of the alleged violations, a state

20 of armed conflict existed in Bosnia and Herzegovina; and that you, Mr.

21 Cesic, were aware of that fact; that during the time of the alleged

22 violations that you were required to abide by the laws and customs

23 governing the conduct of war, including the Geneva Conventions of 1949;

24 and that all the acts and omissions charged against you, Mr. Cesic, as

25 crimes against humanity, were a part of a widespread or systematic attack

Page 65

1 directed against the Muslim and Croat population of Brcko Municipality, in

2 parts of the Republic of Bosnia and Herzegovina designated as the

3 Republika Srpska; and that you, Mr. Cesic, had knowledge of the wider

4 context in which your conduct occurred.

5 None of the victims of the charged crimes were taking active part

6 in hostilities at the time of your conduct against them. This is the

7 general conduct -- the general context in which the charges brought

8 against you should be understood.

9 Then, more specifically, the factual basis of the plea agreement

10 includes that on about the 15th of May, 1992, that you went to the Brcko

11 Partizan Sports Hall where Muslim civilians were being confined, and that

12 you took the Muslim detainee Sakib Becirevic, also known as Kibe, and four

13 other men, named Pepe, Sali, and the two sons of a man called Avdo,

14 outside the hall, that you then, Mr. Cesic, shot and killed the five

15 detainees with gunfire; that you intended to kill Sakib Becirevic, Pepe,

16 Sale, and the two sons of Avdo at the time you fired your weapon at them.

17 In respect of counts 3 and 4, because what I just read was the

18 part related to counts 1 and 2 of the indictment, but in respect of counts

19 3 and 4, the factual basis of the agreement says that on or about the 9th

20 of May, 1992, at Luka count in Brcko, you, Mr. Cesic, took a Muslim

21 fisherman named Sejdo out from a small warehouse where he was detained,

22 you took him out from a corner and shot him dead. You, Mr. Cesic, agree

23 that you intended to kill Sejdo at the time you shot him.

24 In respect of counts 5 and 6, on about the 11th of May, 1992, you

25 called to the Muslim policeman Mirsad Glavovic from the main hangar

Page 66

1 building at Luka camp where Glavovic was being detained. You ordered Mr.

2 Glavovic to say good-bye and shake hands with the other detainees, and

3 then, Mr. Cesic, you took Mirsad Glavovic outside the hangar building

4 where he and others beat -- where you and others beat and killed the

5 victim. You also agree that you intended to kill Mirsad Glavovic at the

6 time of the beating I just described.

7 In respect of counts 7 and 8, the factual basis of the agreement

8 is that on about 11th of May, 1992, at Luka camp, you, Mr. Cesic, forced

9 at gunpoint the Muslim detainees A and B - they were brothers and they

10 were detained in Luka camp - that you forced them to perform sexual acts,

11 fellatio on each other, thereby causing the victims great humiliation and

12 degradation, and at that time, Mr. Cesic, you intended that a sexual

13 penetration of each of the victims would occur and that you knew that this

14 was occurring without the consent of the victims.

15 In respect of the counts 9 and 10 of the indictment against you,

16 you agreed on the factual basis that on the 12th or the 13th of May, 1992,

17 at Luka camp, that you and another Serb policeman used clubs to beat to

18 death a Muslim detainee named Nihad Jasarevic, and that you intended to

19 kill the victim at the time of the beating I just described.

20 In respect of the counts 11 and 12 brought against you, agreed

21 that between about the 14th of May and the 6th of June, that you took four

22 civilians detainees whose identities are unknown to us from the office

23 building at Luka camp to the paved road in front of the main hangar

24 building and, with the assistance of two guards known by the names of Miso

25 Cajevic and Pudic - of Pudic the first name is unknown - that with the

Page 67

1 assistance of two guards, you shot and killed at least two of the

2 detainees, and that you intended to kill the victims at the time you and

3 your associates shot them as described in the -- in what I just explained

4 to you. This is the factual basis on which the plea agreement is

5 concluded.

6 Before we go into any further details of the plea agreement, I'd

7 like to ask the parties a clarification on one issue. The indictment has

8 charged Mr. Cesic under counts 7 and 8 - let me just find it - with

9 committing humiliating and degrading treatment, a violation of the laws

10 and customs of war recognised by Article 3 of the Statute of this

11 Tribunal, and with the crime of rape, a crime against humanity under

12 Article 5 of the Statute of this Tribunal. I'd just like to clarify

13 whether the parties fully understand what they agreed upon in relation of

14 this factual basis because what I just read as part of the factual basis

15 of the plea agreement was that Mr. Cesic, that you forced two detainees to

16 commit sexual acts in respect of the other detainee, not that you yourself

17 did commit any of such sexual acts, nor that you personally raped one of

18 these detainees by penetrating the bodies of these detainees.

19 In the indictment we find that this is charged as committing these

20 crimes, not as ordering one detainee to commit such a crime against the

21 other, and the other against the first. I'd first like a clarification

22 from the Prosecution on how they interpret specifically this part of the

23 indictment, and I'd then like to seek confirmation that this is also the

24 understanding of the Defence of this part of the indictment.

25 Could I invite the Prosecution to clarify the issue.

Page 68

1 MR. TOCHILOVSKY: Thank you, Your Honour. Our interpretation of

2 this count is as follows: Both victims, both brothers are victims in this

3 case, and both of them were used as a tool for the accused to commit the

4 crime. He is the person who committed the crime by using the victims as a

5 tool to commit the crime. By using one of the brothers to penetrate

6 sexually other brother, and both of them were used as a tool. They are

7 not perpetrators of the crime; they are not rapists, none of these

8 brothers. It's Ranko Cesic who used them to commit rape.

9 JUDGE ORIE: Yes, so I do understand that due to the situation and

10 the threats exercised on the brothers, they couldn't make up their own

11 mind any more, but they were in the hands of the accused who used them

12 just as instruments to penetrate the body of the other detainee and the

13 same the other way around.

14 MR. TOCHILOVSKY: Yes, this is our interpretation.

15 JUDGE ORIE: That's your interpretation. May I ask you,

16 Mr. Bakrac, whether this is also your understanding of committing the

17 crimes as described in counts 7 and 8.

18 MR. BAKRAC: [Interpretation] Your Honour, thank you. I must admit

19 that with my client, given the time that we've had at our disposal, that

20 with my client, I have considered the factual aspects of the indictment

21 against him. In factual terms, as I have discussed this with my client,

22 this situation is not disputable. As far as I understand, we only have a

23 disputable legal issue, and I have not discussed this with my client.

24 What we discussed was the factual basis of counts 7 and 8.

25 As for the factual basis of counts 7 and 8 in paragraph 14, it

Page 69

1 says that the perpetrator inflicted humiliation upon victims. We believe

2 that the Trial Chamber would have in front of it the facts and the acts

3 committed by the accused, regardless of the way it is formally and legally

4 interpreted. I must say that I cannot at this point discuss the legality

5 of this issue because I believe that in this particular case, we could

6 agree with our learned friends from the Prosecution. But the Defence

7 would also have a legal position of its own. I'm afraid that the position

8 of the Defence would lead to some complications with regard to the plea

9 agreement. Because of my own conviction that the Trial Chamber will

10 consider the acts committed by the accused, regardless of the legal

11 formulation of these acts, I am inclined to accept this position by the

12 Prosecution with regard to the practical issues of the case at hand.

13 JUDGE ORIE: Let me just clarify the position of the Chamber: The

14 Chamber is aware that on the basis of the plea agreement, there is no

15 dispute about what happened, as far as I understand. But later this

16 morning, the accused will be asked whether he pleads guilty to a count --

17 or counts 7 and 8, which in the indictment appear as committing degrading

18 and humiliation, and committing rape. So that's the legal qualification

19 of what actually happened.

20 I just wanted to make sure that both parties agree that these

21 facts would amount to these crimes, specifically because in the

22 indictment, we find only that the accused committing or, in respect of

23 certain counts, aided and abetted, but not ordered, instigated, et cetera,

24 et cetera.

25 So I would like to make quite sure that the Defence understands

Page 70

1 that this behaviour where the accused, as explained in factual terms, used

2 one of the detainees to penetrate the body of another detainee, that these

3 facts could be qualified as committing the crime of rape in legal terms.

4 But take your time at a later stage to discuss it with your client. I'm

5 not asking at this moment a final answer to my question. But I just

6 wanted to clarify this - I do agree with you - this legal issue so that

7 there could be no misunderstanding between the parties about it.

8 I'll then continue with the content of the plea agreement. The

9 plea agreement further includes that you, Mr. Cesic, will not appeal any

10 sentence between 13 and 18 years. As this Chamber has expressed in

11 earlier cases, it might be not that clear what would happen if

12 nevertheless Mr. Cesic would appeal, because that's up to the Appeals

13 Chamber to decide whether any appeal in violation of that agreement could

14 be heard or not. This Trial Chamber does not express itself on that.

15 Mr. Cesic, you're also aware, I take it, that the agreement you

16 reached with the Prosecution, that is, to recommend a sentence of between

17 13 and 18 years, does not bind this Chamber. I'd like to make sure that

18 you fully understand that such a binding effect does not exist.

19 Could you confirm that you understand this.

20 THE ACCUSED: [Interpretation] Yes, Your Honour. I understand it.

21 JUDGE ORIE: Thank you, Mr. Cesic.

22 Further, the agreement contains a line saying that you'll not

23 withdraw a guilty plea once you have entered such a plea. You also

24 understand, Mr. Cesic, I take it, that the factors the Chamber will take

25 into consideration at sentencing will be the gravity of the events, your

Page 71

1 individual circumstances, any aggravating circumstances or any mitigating

2 circumstances, including substantial cooperation with the Prosecutor by

3 yourself. And you have committed yourself also to such substantial

4 cooperation with the Office of the Prosecution.

5 These are the main lines of what now is a public document, your

6 plea agreement, which further contains a clause in which you give up

7 rights you would have if you would not have pled guilty, or pleaded

8 guilty; that is, your right to a public trial and preparing for such a

9 trial, the right to be tried in your presence, to examine witnesses at

10 trial, and the right not to be compelled to testify against yourself.

11 This is a catalogue of rights you would have enjoyed if you would not have

12 pleaded guilty.

13 One of the rights you did not waive is to be assisted by counsel,

14 to be represented by counsel at all stages of the proceedings. The

15 agreement further indicates that there are no other agreements concluded

16 between the Prosecution and the Defence, and that you entered into this

17 agreement voluntarily.

18 May I ask you, Mr. Bakrac, you assisted the accused in reaching

19 this plea agreement; you also signed the agreement?

20 MR. BAKRAC: [Interpretation] Yes, Your Honour. According to my

21 conscience and knowledge, I tried to discuss with the accused all the

22 circumstances of the plea agreement. I believe that the accused has

23 understood all this. He has accepted this plea agreement voluntarily, and

24 that's why I put my signature on this plea agreement.

25 JUDGE ORIE: Yes. As far as the entering into this agreement from

Page 72

1 your own free will, Mr. Cesic, you could confirm that this is how you came

2 to this plea agreement? Voluntarily, not being forced or threatened or in

3 whatever way?

4 THE ACCUSED: [Interpretation] Yes, Your Honour.

5 JUDGE ORIE: In this case, there is no need to amend the

6 indictment prior to hearing another plea as we heard before. At least, if

7 the understanding of the Defence is the same as the understanding of the

8 Prosecution in respect of counts 7 and 8, perhaps I should give you some

9 time, Mr. Bakrac, at this very moment, before asking the accused whether

10 he wants to change his plea, to give you an opportunity to consult with

11 your client in respect of counts 7 and 8 so that the understanding of --

12 also the legal qualifications of counts 7 and 8 is fully consonant with

13 the Office of the Prosecution.

14 Yes, Mr. Tochilovsky.

15 MR. TOCHILOVSKY: Just a short clarification with regard to the

16 plea agreement, under paragraph 10 of the plea agreement.


18 MR. TOCHILOVSKY: Ranko Cesic agreed to provide full and complete

19 interview to the OTP. And I must say that the accused has already given

20 full and complete interview to the OTP. So this part is already addressed

21 and fulfilled.

22 JUDGE ORIE: Yes, it's already completed.

23 MR. TOCHILOVSKY: Completed.

24 JUDGE ORIE: Completed, so the cooperation has been given to the

25 extent you expected him --

Page 73


2 JUDGE ORIE: -- To give the cooperation. There's no additional

3 cooperation needed.

4 MR. TOCHILOVSKY: There could be, because there's some other

5 agreements as to testifying in other proceedings. But as to the

6 interview, it's already fulfilled.

7 JUDGE ORIE: So the cooperation in respect of giving information

8 to the Prosecution --

9 MR. TOCHILOVSKY: Has provided.

10 JUDGE ORIE: -- Has been completed already, and any further

11 cooperation is -- well, in the future. But until now, the level of

12 cooperation satisfied the Prosecution.

13 MR. TOCHILOVSKY: Yes, exactly.

14 JUDGE ORIE: Thank you very much for this information.

15 Judge Liu would like to ask you a question about it.

16 JUDGE LIU: I think this question is addressed to the Prosecution.

17 As you mentioned this obligation is already fulfilled, but some obligation

18 is kind of a future obligation, that is, to testify in future proceedings

19 before the Tribunal. Am I right?

20 MR. TOCHILOVSKY: Yes. There are some further obligations, and

21 one of them is giving testimony in future proceedings. But as you can

22 see, there is no specific trials mentioned and no specific proceedings.

23 So at this point, there is no determination as to the specific trial or

24 specific case, whether the accused may testify.

25 JUDGE LIU: I see. Well, it's very difficult to predict the

Page 74

1 future proceedings at this moment, so -- and under paragraph 15, the

2 accused, Mr. Cesic, agrees that he will not move to withdraw this guilty

3 plea. And on the other hand, if in the future case, the accused refuses

4 to testify in any case, does it mean that you have the rights to withdraw

5 from this plea agreement? Because the first sentence says clearly that

6 "this agreement is based upon Mr. Cesic's agreement to cooperate with the

7 Office of the Prosecutor."

8 MR. TOCHILOVSKY: Yes. In paragraph 15, it's about the guilty

9 plea. If he pleads guilty, the understanding of both parties is that we

10 will not withdraw this plea of guilty.

11 As to the cooperation in future trials, I just don't have the

12 rules before me. But under our rules, as I understand, it may affect --

13 the cooperation in the future with the Office of the Prosecution can

14 affect the length of his served sentence. So he can apply to reduce the

15 sentence or to -- at some point of serving, and the cooperation with the

16 Prosecution is one of the main elements, one of the main criteria for such

17 reduction. So it will affect -- it may affect in the future if the

18 accused moved to reduce the sentence he serves. But at the time, if the

19 question is whether we ask for postponement of sentence, sentencing

20 procedure, until he provides this kind of cooperation, to testify in other

21 cases, it's not our position. It should not delay sentencing, and it

22 should not affect sentencing when sentencing time comes.

23 JUDGE LIU: No, no, no, I'm not talking about sentencing

24 procedures. I'm talking about on the one hand the accused moved to give

25 up his right to withdraw from this plea agreement; on the other hand, on

Page 75

1 your side, you still have the right to withdraw from this plea agreement

2 if - if - in the future, the accused refuses to testify in the future

3 case. Is that the right understanding?

4 MR. TOCHILOVSKY: No, the Prosecution doesn't intend to withdraw

5 from this plea agreement if there are any problems or questions with

6 regard to his testimony in any other proceedings. It's not our intention,

7 and actually now it's on the record.

8 JUDGE LIU: Thank you very much. And the last one, the last

9 question is that under paragraph 10, the last sentence, it says: "Also

10 agree to testify in the future proceedings before the Tribunal if called

11 upon by the OTP to do so." And on the paragraph 18, (g), "the accused

12 waived the right to testify." Are there any contradictions?

13 MR. TOCHILOVSKY: I will just, if you allow me to explain,

14 paragraph 18 concerns this case, because actually what is in paragraph 18,

15 all this waiver of the rights, it's just confirmation of the consequences

16 of the guilty plea under our rules. Because under our rules, if a person

17 pleads guilty and the guilty plea is accepted by the Trial Chamber, the

18 next stage is sentencing because there is no trial. As a result because

19 there is no trial, he cannot call witnesses, he cannot put forward

20 a Defence. Paragraph 18 just explained the consequences is under our

21 rules -- is based on our rules and accepted by the accused. So it's only

22 about this case, Cesic case, so it doesn't prevent him to testify in any

23 other case. Paragraph 18 is the consequences of guilty plea under our

24 rules.

25 JUDGE LIU: Thank you very much for your clarification.

Page 76












12 Blank pages inserted to ensure pagination corresponds between the French and

13 English transcripts. Pages 76 to 80.













Page 81

1 JUDGE ORIE: Judge El Mahdi, do you have any questions?

2 JUDGE EL MAHDI: [Interpretation] Thank you, Mr. President. I

3 would like to turn to the Prosecution, please. In respect of the count

4 involving rape, you have certainly very well explained that you are

5 talking about a commission of a rape, and you understand it to mean that

6 the accused used someone else to rape a third person, and you understand

7 these facts as a commission of a rape committed by the accused himself.

8 The Defence, if I understand properly, is somewhat hesitant to

9 follow the Prosecutor when it comes to the legal qualification of the act.

10 I should like to hear you a bit more concerning this legal issue so that

11 the Defence can explain in more precise details their position, and so

12 that the accused can plead in full consciousness when it comes to this

13 particular fact, the guilty plea in respect of the crime of rape.

14 So I should like the Prosecutor to explain to us once again

15 briefly their position on the crime of rape as committed by the accused

16 himself.

17 MR. TOCHILOVSKY: Your Honour, our position is any crime can be

18 committed through using tools and using even physical persons, sometimes

19 persons who are underage, who are not criminally responsible for any

20 crimes. Using these persons as a tool. And again, I don't have the

21 ICC Statute before me, but as far as I know, as a result of long

22 negotiations of the parties to the ICC Statute, they drafted a practical

23 provision in the ICC Statute exactly with this wording, that if the person

24 used other person as a tool to commit a crime, he is the perpetrator. He

25 committed the crime. That's what happened in this situation. Those two

Page 82

1 brothers are victims of the crime. The accused used each of them as a

2 tool to commit sexual assault. And otherwise, we would have to come to

3 the conclusion that both brothers are rapists and both of them are

4 responsible for the crime which is not the case in this situation. So

5 taken this specific situation is what the Prosecution is not the issue,

6 it's clear that the accused used these victims as the tools to commit

7 sexual assault.

8 And I don't see the position of the Defence as hesitating. I

9 understand that they need -- the Defence needs some time to consult with

10 the client, rather than hesitation of accepting our position. But this is

11 our position, that in this case, the accused is the perpetrator, and the

12 victims are tools used by him to penetrate each other sexually.

13 JUDGE EL MAHDI: [Interpretation] Thank you.

14 Thank you, Mr. President.

15 JUDGE ORIE: Then, Mr. Bakrac, before I ask the used whether he

16 wants to change his plea in respect of all counts, I'd like to adjourn

17 just for a short moment so that you are in a position to consult with

18 Mr. Cesic. And upon return, well, let's say I think 5 to 10 minutes would

19 be sufficient, I'd like to know from you whether you need more time, or

20 that on the basis of your consultation with your client, you could agree

21 specifically on the issue in respect of counts 7 and 8. And if you need

22 more time, please tell us, we'll then adjourn and continue at a later

23 stage. If not, then we'll hear from you and we'll then continue, and I'll

24 ask the accused whether he wants to change his plea.

25 We'll adjourn for 5 to 10 minutes.

Page 83

1 --- Recess taken at 10.56 a.m.

2 --- On resuming at 11.17 a.m.

3 JUDGE ORIE: Mr. Bakrac, I'd like to hear from you whether your

4 consultations with your client resulted in a position clear enough to

5 continue or whether you would need more time.

6 MR. BAKRAC: [Interpretation] Your Honour, I shall attempt to

7 present the position of the Defence and the accused on this issue. And

8 you will be able to assess what the situation is. I don't think we will

9 need more time.

10 I cannot a priori agree with the position of the Prosecutor as a

11 professional lawyer. I think that if we were to simplify and look at the

12 very specific crime, such as the rape, I think that this could have an

13 impact on future cases, and this is the reason why when I addressed the

14 Chamber a moment ago I said that we would provide our opinion on this

15 issue. The crime of rape has its specificity, its special elements which

16 distinguish it from the crime of murder. We agree that the crime of

17 murder can be used through another person, used as a tool, as is the case

18 with the crime of theft. When we're talking about the crime of rape, in

19 this case we should address the issue of intent. What was the intent?

20 Was the intent to satisfy a sexual impulse, sexual instinct or something

21 else? It is the intent that points to the nature of the act itself and

22 the way we are able to qualify in legal terms the act itself.

23 On the factual side, and if we look at the factual basis which was

24 signed by the Prosecutor, we read in points 7 and 8 that the accused

25 forced at gunpoint Muslim detainees A and B to perform sexual acts on each

Page 84

1 other in the presence of others, thereby causing the victims A and B great

2 humiliation and degradation. These facts show the intent. The intent was

3 not to satisfy sexual instincts so that this could be qualified as a crime

4 of rape, in the opinion of this Defence team. The intent goes to Article

5 2 of the Statute, and that is to cause great humiliation and degradation.

6 And finally, as Defence counsel, I had to present my opinion and my

7 position on the issue, although we didn't have a very long time, I managed

8 to discuss the issue with my client, the accused Cesic. In view of the

9 fact that the accused is sure that the Chamber will consider the gravity

10 of his acts, he agrees to - when it comes to this particular count - to

11 agree with the position of the Prosecutor.

12 JUDGE ORIE: Yes. Let me try to clarify the issue. I'm not quite

13 sure that you did not mix up the intent with the motive.

14 As far as rape is concerned, this Chamber will, in accordance

15 with - I think it's the Kupreskic case - will understand that the intent

16 is needed to effect the sexual penetration for whatever motive. So it's

17 not necessary that it is intended in order to satisfy any sexual feelings

18 of the perpetrator. But the intent should be that the actor intends this

19 sexual penetration to take place. On the basis of the facts if, at

20 gunpoint, you instruct someone to invade the body of another person, there

21 might not be that much doubt as to whether that intent exists or not.

22 In order to give you further guidance, if Mr. Cesic would plead

23 guilty on counts 7 and 8, and especially on the count of rape as a crime

24 against humanity, the Chamber would accept such a guilty plea on the

25 understanding of the following: Rape can be committed not only by

Page 85

1 penetrating with part of your own body into the body of another person,

2 but also by penetrating with any object into the body of another person.

3 I think that's part of the -- part of the definition as given in the

4 Kunarac case, and it would also be in accordance with the crime against

5 humanity of rape as it has been defined in the elements of the crime,

6 Article 7, under(1)(g) of the ICC. In both definitions, we find that's

7 commonly accepted in many jurisdictions, that rape can also be committed

8 by penetrating with an object in another person. The question then arises

9 whether another person could be this object or instrument.

10 In general terms, a person is not considered to be an object. But

11 you could use another person as an object or an instrument if you

12 depersonalise him, if you take from him what makes him a person; that is,

13 his own free will. Under the circumstances as set out in the factual

14 basis of the plea agreement, it seems that both detainees instructed to

15 penetrate in the body of the other detainee were deprived of their own

16 free will and, therefore, were, just as small children or insane people,

17 deprived of what really makes them a person, a person being more than an

18 object.

19 Therefore, if Mr. Cesic would enter a guilty plea on count 8, when

20 considering whether or not to accept this guilty plea, the Chamber would

21 take this into consideration. The Chamber might even decide that if a

22 guilty plea would be entered on count 8, to give an oral decision on

23 whether or not to accept it, but give its reasoning in writing at a later

24 stage in order to clarify this legal issue so that this case law which

25 might be unprecedented - of course I'm not talking about national, but

Page 86

1 this case here - that by using the body of another person as an instrument

2 of rape, that it should be clear on what basis such a guilty plea would be

3 accepted.

4 So if you would please keep in mind and if you would need more

5 time upon this explanation to consult with Mr. Cesic, please tell us. If

6 not, both Mr. Cesic you are aware of how the Chamber considers

7 provisionally this legal matter, and you should keep that many mind if you

8 take a decision on whether or not to change your plea on count 8. If you

9 want to consult just briefly, Mr. Bakrac, there's no problem there. But

10 put out the microphone, please.

11 MR. BAKRAC: [Interpretation] Yes, Your Honour, just one minute.

12 Thank you.

13 [Defence counsel and the accused confer].

14 MR. BAKRAC: [Interpretation] Your Honour, with your indulgence,

15 the accused will plead guilty on this count of the indictment today.

16 JUDGE ORIE: Thank you, Mr. Bakrac.

17 Then Mr. Cesic, my next question to you is you have pleaded not

18 guilty until now on all counts of the indictment. Do you want to change

19 your plea?

20 THE ACCUSED: [Interpretation] Yes, Your Honour. I wish to change

21 my statement.

22 JUDGE ORIE: Yes. Then, Mr. Cesic, we could read the entire

23 indictment to you and ask you to enter a new plea on each of the counts.

24 We also could limit ourselves to reading the counts of the indictment,

25 counts of the indictment related to the facts we already discussed before

Page 87

1 in the context of the factual basis of the plea agreement. Would you

2 prefer to have the entire indictment read to you, or would you be

3 satisfied if the counts are read by the Registrar?

4 THE ACCUSED: [Interpretation] I don't think it's necessary to read

5 the entire indictment. Counts alone will suffice. Thank you.

6 JUDGE ORIE: Then, Madam Registrar, may I ask you to read each

7 count of the indictment, and after each count I'll ask the accused to

8 enter his new plea.

9 THE REGISTRAR: Count 1, a violation of the laws or customs of war

10 recognised by Article 3 of the Tribunal Statute and Article 3(1)(a) murder

11 of the Geneva Conventions.

12 JUDGE ORIE: Mr. Cesic, how do you plead on count 1? Guilty or

13 not guilty.

14 THE ACCUSED: [Interpretation] Guilty.

15 JUDGE ORIE: The Trial Chamber records the plea of guilty on

16 count 1.

17 Madam Registrar, would you please read count 2.

18 THE REGISTRAR: Count 2, a crime against humanity, recognised by

19 Article 3 of the Tribunal Statute.

20 JUDGE ORIE: How do you plead, Mr. Cesic, guilty or not guilty?

21 THE ACCUSED: [Interpretation] Guilty, Your Honour.

22 JUDGE ORIE: The Trial Chamber records the plea of guilty on

23 count 2.

24 Would you please read count 3, Madam Registrar.

25 THE REGISTRAR: Count 3, a violation of the laws or customs of

Page 88

1 war, recognised by Article 3 of the Tribunal Statute and Article 3(1)(a)

2 of the Geneva Conventions.

3 JUDGE ORIE: How do you plead, Mr. Cesic?

4 THE ACCUSED: [Interpretation] Guilty, Your Honour.

5 JUDGE ORIE: The Trial Chamber records the guilty plea on count 3.

6 Could you please read count 4, Madam Registrar.

7 THE REGISTRAR: Count 4, a crime against humanity, recognised by

8 Article 5(a), murder, of the Tribunal Statute.

9 JUDGE ORIE: How do you plead, Mr. Cesic, guilty or not guilty?

10 THE ACCUSED: [Interpretation] Guilty, Your Honour.

11 JUDGE ORIE: The Trial Chamber records the plea of guilty on

12 count 4.

13 Would you please read count 5, Madam Registrar.

14 THE REGISTRAR: Count 5, a violation of the laws or customs of

15 war, recognised by Article 3 of the Tribunal Statute, and Article 3(1)(a),

16 murder, of the Geneva Conventions.

17 JUDGE ORIE: How do you plead, Mr. Cesic?

18 THE ACCUSED: [Interpretation] Guilty, Your Honour.

19 JUDGE ORIE: The Trial Chamber records the plea of guilty on

20 count 5.

21 Could you please read count 6, Madam Registrar.

22 THE REGISTRAR: Count 6, a crime against humanity, recognised by

23 Article 5(a), murder, of the Tribunal Statute.

24 JUDGE ORIE: Do you plead guilty or not guilty, Mr. Cesic?

25 THE ACCUSED: [Interpretation] Guilty, Your Honour.

Page 89

1 JUDGE ORIE: The Trial Chamber records the plea of guilty on

2 count 6 of the indictment.

3 Madam Registrar, would you please read count 7.

4 THE REGISTRAR: Count 7, a violation of the laws or customs of

5 war, recognised by Article 3 of the Tribunal Statute, and Article 3(1)(c),

6 humiliating or degrading treatment, of the Geneva Conventions.

7 JUDGE ORIE: Mr. Cesic, do you plead guilty or not guilty?

8 THE ACCUSED: [Interpretation] Guilty, Your Honour.

9 JUDGE ORIE: The Chamber records the plea of guilty on count 7.

10 Would you please continue to read, Madam Registrar, count 8.

11 THE REGISTRAR: Count 8, a crime against humanity, recognised by

12 Article 5(g), rape, which includes other form of sexual assault, of the

13 Tribunal Statute.

14 JUDGE ORIE: Mr. Cesic, in view of what has been discussed on the

15 meaning of this count this morning, do you plead guilty or not guilty on

16 count 8?

17 THE ACCUSED: [Interpretation] Guilty, Your Honour.

18 JUDGE ORIE: The chamber records the plea of guilty on count 8.

19 Would you please read count 9, Madam Registrar.

20 THE REGISTRAR: Count 9, a violation of the laws or customs of

21 war, recognised by Article 3 of the Tribunal Statute, and Article 3(1)(a),

22 murder, of the Geneva Conventions.

23 JUDGE ORIE: How do you plead, Mr. Cesic, on count 9?

24 THE ACCUSED: [Interpretation] Guilty, Your Honour.

25 JUDGE ORIE: The Chamber records the plea of guilty on count 9.

Page 90

1 Could you please read count 10, Madam Registrar.

2 THE REGISTRAR: Count 10, a crime against humanity recognised by

3 Article 5(a), murder, of the Tribunal Statute.

4 JUDGE ORIE: Mr. Cesic, how do you plead on count 10?

5 THE ACCUSED: [Interpretation] Guilty, Your Honour.

6 JUDGE ORIE: The Trial Chamber records the plea of guilty on

7 count 10.

8 Could you please read count 11, Madam Registrar.

9 THE REGISTRAR: Count 11, a violation of the laws or customs of

10 war, recognised by Article 3 of the Tribunal Statute, and Article 3(1)(a),

11 murder, of the Geneva Conventions.

12 JUDGE ORIE: Mr. Cesic, how do you plead on count 11?

13 THE ACCUSED: [Interpretation] Guilty, Your Honour.

14 JUDGE ORIE: The Trial Chamber records the plea of guilty on

15 count 11.

16 Could you please read count 12, Madam Registrar.

17 THE REGISTRAR: Count 12, a crime against humanity, recognised by

18 Article 5(a), murder, of the Tribunal Statute.

19 JUDGE ORIE: Do you plead guilty or not guilty on count 12,

20 Mr. Cesic?

21 THE ACCUSED: [Interpretation] Guilty, Your Honour.

22 JUDGE ORIE: The Trial Chamber records the plea of guilty on

23 count 12.

24 Mr. Cesic, the Trial Chamber now has to satisfy itself that your

25 guilty plea on all 12 counts has been made voluntarily, that no threats or

Page 91

1 no coercion was exercised upon you, and that you were informed about the

2 content of your plea. We already discussed it at some length in the

3 previous stages of this hearing.

4 The Trial Chamber has also to satisfy itself that the guilty plea

5 is not equivocal. And finally, the Trial Chamber has to satisfy itself

6 that the guilty plea finds a sufficient factual basis for the crime and

7 the accused's participation therein. So your participation therein.

8 We have dealt with you being -- the plea being informed. We have

9 dealt with the free will on which you based your guilty pleas. I think by

10 explaining and trying to find out what your understanding of the plea is

11 and whether this is the same understanding as the understanding of the

12 Prosecution of the charges brought against you, that whether the plea is

13 or is not equivocal has been dealt with also.

14 One of the issues that has not been dealt with now is the factual

15 basis. The factual basis, of course, you agreed upon is what you agreed

16 upon with the Prosecution. But this agreement as such is an important

17 issue for an existing factual basis, but if there are any other

18 remarkable, independent indicia, that means, any evidence that is

19 independent from what you've told us today, I'd like to hear from the

20 parties whether such independent indicia do exist, and whether the parties

21 do agree on the existence of such indicia, such as testimonies of other

22 witnesses, or whatever, documentary evidence or whatever, that would

23 support the guilty plea entered by the accused.

24 MR. TOCHILOVSKY: Yes, the Prosecutor has witness statements, and

25 we have also some documentary evidence which support the charges and the

Page 92

1 facts in the factual basis.

2 JUDGE ORIE: Yes. Does the Defence agree that such witness

3 statements and such material exists and supports the plea entered by the

4 accused? Mr. Bakrac.

5 MR. BAKRAC: [Interpretation] Yes, Your Honour, the Defence agrees

6 with that.

7 JUDGE ORIE: Thank you, Mr. Bakrac. That means that the Chamber

8 will now have to deliberate on whether it accepts the plea and whether it

9 could decide on acceptance right away, or that we need more time. So

10 we'll adjourn for 5 minutes. And upon return, we'll inform the parties

11 whether a decision will be given right away or at a later stage.

12 --- Recess taken at 11.40 a.m.

13 --- On resuming at 11.44 a.m.

14 JUDGE ORIE: The Chamber has decided that a decision could be

15 delivered now. The Chamber doesn't need any more time to deliberate on

16 whether or not to accept the guilty plea on each count.

17 Mr. Cesic, the Chamber accepts your guilty plea on all 12 counts

18 of the indictment brought against you as amended in November 2002. And

19 this Chamber finds you guilty on each of the 12 counts as they have been

20 read to you prior to entering your guilty plea. In respect of count 8,

21 the Chamber has considered as explained before during this hearing how one

22 detainee was used as an object or an instrument to commit rape as a crime

23 against humanity. The Chamber will further consider whether it is

24 appropriate to give its reasoning specifically in respect of count 8 in

25 writing at a later stage.

Page 93

1 Please be seated, Mr. Cesic.

2 I'd like to ask the parties about their views on how much time

3 they need to prepare a sentencing hearing. Could I first --

4 MR. TOCHILOVSKY: Yes. I understand that...


6 MR. TOCHILOVSKY: Yes, Your Honour. We understand that you're

7 asking for the time we need both for filing sentencing brief and for

8 sentencing hearing.

9 JUDGE ORIE: Yes, of course, those are the two stages to prepare

10 for the sentencing hearing, how much time you would need to file the brief

11 and how much time you would consider to be needed.

12 MR. TOCHILOVSKY: For filing the sentencing brief, we would need

13 four weeks. Say deadline, 5th November. That's how we consider. And for

14 sentencing hearing, two more weeks, which means 19 November. And if the

15 Chamber would allow us this time. Thank you.

16 JUDGE ORIE: Yes. In view of the fact that your interviews with

17 the accused have taken already place, a slightly shorter period would be

18 possible, let's say two or three weeks?

19 MR. TOCHILOVSKY: Yes, three weeks.

20 JUDGE ORIE: And the time needed after having studied the

21 sentencing brief of the Defence which, we'll say, seven to ten days, would

22 that do as well?

23 MR. TOCHILOVSKY: Yes, ten days.

24 JUDGE ORIE: Yes. I'd then like to hear from you, Mr. Bakrac, how

25 much time you would consider you would need in order to file a

Page 94

1 presentencing brief and prepare for the sentencing hearing.

2 MR. BAKRAC: [Interpretation] Your Honour, I was going to ask the

3 Trial Chamber to give me some time to prepare, and I agree with my learned

4 friends, and I would kindly ask the Chamber to give me four weeks for the

5 brief. But there is a slight difference with regard to the Prosecution.

6 I also intend to ask the Chamber to give me an additional four weeks for

7 the sentencing hearing. Thank you very much.

8 JUDGE ORIE: I do understand that you would like to have some more

9 time. On the other hand, we're now early October. If we would grant you

10 four weeks to file your presentencing brief and another four weeks to

11 prepare for the sentencing hearing, then we might come quite close to the

12 winter recess. And taking into consideration that usually the Judges have

13 their plenary meeting just briefly before the winter recess, I'd like to

14 ask you, short of delays, would that cause you insurmountable problems?

15 I'm putting the same question to you as I did to the Prosecution.

16 MR. BAKRAC: [Interpretation] Your Honour, with all due respect, if

17 I have understood you correctly, the recess starts on the 19th of

18 December. Before that, we are going to have a plenary session. What I

19 would have in mind was the end of November, beginning of December. With

20 all due respect, I believe that if the Defence is granted this period of

21 time for preparation, that no series consequences would arise from that.

22 JUDGE ORIE: Okay. Well, having heard your observations in

23 respect of the time needed, I'd like to instruct the Registrar to set a

24 date for sentencing hearing, but not until you have consulted with the

25 Chamber after this hearing.

Page 95

1 Is there anything else, any other motion or any other submission

2 to be made by the parties at this moment?

3 MR. TOCHILOVSKY: No, no submission by the Prosecution.

4 JUDGE ORIE: Thank you.

5 MR. BAKRAC: [Interpretation] Nothing from the Defence, Your

6 Honour.

7 JUDGE ORIE: Then we'll adjourn, and the Chamber will give a

8 scheduling order in respect of the filing of presentencing briefs. And

9 after having consulted with the Registrar, you'll hear from the Registry

10 when a sentencing hearing is scheduled. We stay adjourned.

11 --- Whereupon the Motion Hearing adjourned

12 at 11.52 a.m.