1 Friday, 14 October 2005

2 [Initial Appearance]

3 [The accused entered court]

4 --- Upon commencing at 1.05 p.m.

5 JUDGE ORIE: Mr. Registrar, would you please call the case.

6 THE REGISTRAR: Good afternoon, Your Honour. This is case number

7 IT-95-14 & 14/2-R77, the Prosecutor versus Josip Jovic.

8 JUDGE ORIE: Thank you, Mr. Registrar.

9 Mr. Jovic, can you hear me in a language you understand?

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

11 JUDGE ORIE: Thank you very much. May I then have the

12 appearances, Prosecution first.

13 MR. AKERSON: On behalf of the Prosecution, David Akerson, and

14 I'm here with Rebecca Graham, Salvatore Cannata, and the case manager

15 Sebastian van Hooydonk.

16 JUDGE ORIE: Thank you, Mr. Akerson.

17 For the Defence.

18 MR. KRSNIK: [Interpretation] Good afternoon, Your Honour. I'm

19 Kresimir Krsnik. I am a member of the Croatian bar association, and I'm

20 lead counsel in the case against Mr. Jovic.

21 JUDGE ORIE: Thank you, Mr. Krsnik.

22 The purpose of this Article 62 hearing is to formally charge you,

23 Mr. Jovic, and to introduce the next step in the proceedings which is to

24 hear how you plead in relation to these charges.

25 I do understand, Mr. Jovic, that Mr. Krsnik is your counsel who

1 will help you in these proceedings; is that correct?

2 THE ACCUSED: [Interpretation] Yes, it is correct.

3 JUDGE ORIE: Mr. Jovic, have you received a copy of the indictment

4 in a language you understand?

5 THE ACCUSED: [Interpretation] Yes, I have.

6 JUDGE ORIE: Mr. Jovic, did you have an opportunity to discuss the

7 content of this indictment with counsel?

8 THE ACCUSED: [Interpretation] Your Honour, I have had an

9 opportunity to discuss that with my counsel.

10 JUDGE ORIE: Yes. And you were able to fully understand the

11 charges that were brought against you?

12 THE ACCUSED: [Interpretation] Yes, I was able to understand them.

13 JUDGE ORIE: Mr. Krsnik, since you responded to a motion filed by

14 the Prosecution for joinder of several contempt cases, I take it that

15 you're aware of this motion which has not yet been decided.

16 Mr. Akerson, is it a correct understanding that the joinder of

17 the cases will result in a new indictment but not in any new charges

18 against this accused?

19 MR. AKERSON: Yes, Your Honour.

20 JUDGE ORIE: Yes. We'll then proceed on the basis of the existing

21 indictment.

22 Mr. Krsnik, have you discussed with Mr. Jovic whether he wants the

23 indictment to be read out aloud to him?

24 MR. KRSNIK: [Interpretation] Your Honour, there is no need for

25 that. Mr. Jovic has been informed of the details, so there's no need to

1 read the indictment today.

2 I wanted to say something else, Your Honour. We received a motion

3 for joinder, but we have decided to file an objection this motion, and in

4 keeping with that we will -- we shall await the decision of the Honourable

5 Chamber.

6 JUDGE ORIE: Yes. Then, Mr. Jovic, you are invited to plead on

7 the indictment within 30 days, but if you choose to enter a plea today,

8 I'll read the count, the one and only count of the indictment to you and

9 invite you to enter a plea. Do you want to do that at a later stage,

10 within 30 days, or would you prefer to enter a plea today?

11 THE ACCUSED: [Interpretation] Today, please.

12 JUDGE ORIE: Then, Mr. Jovic, I'll read the count to you, but I'll

13 briefly repeat what -- what the charges are about.

14 The charges deal with you knowingly and wilfully interfering with

15 the administration of justice by publishing the identity of a protected

16 ICTY witness, by publishing the fact that he testified in closed session,

17 and by publishing excerpts of that testimony and by violating a court

18 order issued in relation with that.

19 I'll read the count to you. That is contempt of the Tribunal,

20 punishable under the Tribunal's inherent power, Rule 77(A), Rule

21 77(A)(ii), and Rule 77(A)(iv), I should have said 77(A)(ii) and then

22 77(A)(iv), of the Rules of Procedure and Evidence of the Tribunal.

23 May I invite you to plead, to tell me whether you plead guilty or

24 not guilty to this count.

25 THE ACCUSED: [Interpretation] Not guilty, Your Honour.

1 JUDGE ORIE: Then for the Trial Chamber it's recorded that you

2 pleaded not guilty to the one and only count of the indictment brought

3 against you.

4 Usually under Rule 64, once an accused has appeared initially

5 before this Tribunal, an order for remand -- for detention on remand will

6 be issued. The Chamber has considered the matter and finds it

7 disproportionate to order your detention on remand. So I will refrain

8 from that, explicitly refrain from that.

9 The warrant of arrest which has been issued against you, served

10 for the purposes of your appearance today, that is for your appearance

11 before this Tribunal and for your return to the state from which you came,

12 that means that once you are returned that you'll be free to go.

13 This, of course, does not mean that you're free to do whatever you

14 want, because there's a general rule, both for accused and non-accused,

15 not to interfere with witnesses, not to unduly influence the course of

16 justice. Therefore, I would like to remind you that you're under an

17 obligation in this respect as well as anyone else is.

18 Mr. Jovic, this time you are summoned to appear, you prefer not to

19 appear, then a warrant of arrest was issued. Finally you're here. I

20 don't know whether on any future summons you will take the same course or

21 that you again would prefer not to come and -- it might not come as a

22 surprise to you that there's a fair chance that another warrant of arrest

23 will be issued if you repeat the same conduct.

24 Perhaps your counsel would like to say something about that,

25 because he raised his hand.

1 Mr. Krsnik, is there anything you'd like to submit in respect of

2 this?

3 MR. KRSNIK: [Interpretation] Yes, Your Honour, just briefly.

4 I Would like to clarify the situation, because I think that we may

5 have been misunderstood. In our country, there is the constitutional law

6 on cooperation with The Hague Tribunal. In my first motion I wanted to

7 explain the position of my client, and I believe that I -- we explained

8 our position very briefly.

9 I said in this motion that we respect in Tribunal and that we will

10 respond to every call by this Tribunal. However, since we are not dealing

11 with a war crime, I don't want to go into any legal discussions because

12 this is neither the time or the place, we wanted to use this

13 constitutional law before the Supreme Court of the Republic of Croatia.

14 We wanted to await their decision in which they will either confirm the

15 position that this Tribunal is not competent to hold this trial or the

16 contrary. And after that decision, we would have responded to the call

17 from this Tribunal.

18 What I'm saying here is that from this day on, we will respond to

19 every call by the Tribunal, because Mr. Jovic has come here voluntarily.

20 We will not deal with this issue before our courts. We will deal with

21 this issue here before this Tribunal.

22 JUDGE ORIE: Yes. I see a change of position, a clear change of

23 position where initially you took the position that a challenge of the

24 jurisdiction of this Tribunal should be decided by the domestic courts in

25 Croatia rather than by this Tribunal itself. Now, from what I understand,

1 there might not have been any misunderstanding at that moment. It was

2 perfectly clear, but you've changed your mind to the effect that you're

3 now -- that you'll now accept a decision of this Tribunal on jurisdiction

4 over this case.

5 I also observed that there was not --

6 MR. KRSNIK: [Interpretation] I apologise. I did not mean to

7 interrupt you. When this comes to competence, we shall deal this issue in

8 our subsequent motions, and we will raise this legal matter, but when we

9 do that it will be before this Tribunal.

10 JUDGE ORIE: Yes. As you said before, "We will not deal with this

11 issue before our courts, we will deal with this issue here before this

12 Tribunal."

13 The Chamber would have preferred that the accused would have take

14 then position right away which would have prevented us to issue an arrest

15 warrant.

16 I also then do understand that any further summons to appear will

17 be followed immediately without -- by your nodding, yes, I do understand

18 that that's the present position of the accused and the Defence.

19 Mr. Jovic, and Mr. Krsnik, although the issue of health usually is

20 of more importance if someone is detained, I nevertheless want to raise

21 it. Is there anything in your health or any personal circumstances the

22 Chamber should know about? If so, please tell me, and if you'd prefer to

23 deal with the matter in private session so that the audience will not hear

24 it, please apply for private session.

25 THE ACCUSED: [Interpretation] Thank you, Your Honour. I don't

1 have any health problems which would pose an obstacle to my participation

2 in these proceedings.

3 JUDGE ORIE: It's always good to hear that someone is free of

4 health problems, Mr. Jovic.

5 Then this concludes this Initial Appearance. Upon a plea of not

6 guilty usually a day will be set for trial, but it's also common practice

7 that it's not done immediately, but that is dependent on scheduling

8 considerations and especially in this case where still a decision has to

9 be taken on the motion for joinder, and where you have applied in your

10 response to that motion to first receive supporting material, a date

11 cannot be set by the Registry at this very moment, but Registry will do so

12 in due course.

13 Mr. Akerson, as far as the disclosure of supporting material is

14 concerned, it would be very practical, of course, if you would have it

15 ready so that Mr. Krsnik could receive it immediately.

16 MR. AKERSON: Yes, Your Honour. There is -- we're happy to

17 provide that today.

18 JUDGE ORIE: Yes.

19 MR. AKERSON: I'll make arrangements after this hearing with

20 Mr. Krsnik. There is the bar on disclosure that you would need to lift in

21 order for us to do that.

22 JUDGE ORIE: Yes. It's lifted, orally by this decision.

23 MR. AKERSON: Thank you.

24 JUDGE ORIE: Is there anything else to be raised?

25 MR. AKERSON: A few other matters, Your Honour. First of all,

1 the time for preliminary motions in the other matter in the case against

2 Mr. Krizic the time was set at ten days.

3 JUDGE ORIE: That was at a moment when we had a different

4 expectation of when to hear the case.

5 Let me first ask, Mr. Krsnik, do you intend to file any

6 preliminary motions?

7 MR. KRSNIK: [Interpretation] Yes, Your Honour.

8 JUDGE ORIE: And could you tell us what motions you would have in

9 mind? Is it about the form of the indictment? Is it about any other

10 preliminary -- is it about jurisdiction?

11 MR. KRSNIK: [Interpretation] In any case, we will use Rule 73

12 first to deal with the issue of competence of the Court.

13 JUDGE ORIE: Jurisdiction. Let me -- are you -- are you aware of

14 the case law of this Tribunal on two matters, the first whether in

15 contempt cases preliminary motions on jurisdiction can be received, and

16 the second issue, the case law on jurisdiction, case law by the Appeals

17 Chamber on the inherent powers already from the Tadic case to hear

18 contempt cases, also not, of course, being one of the crimes under

19 Articles 2, 3, 4 and 5 of the Statute? You're fully aware of that.

20 Since you indicated that you want to file a preliminary motion on

21 jurisdiction, what -- what are the reasons why you would depart from the

22 existing case law although not from the Appeals Chamber on filing

23 preliminary motions on jurisdiction in contempt cases?

24 MR. KRSNIK: [Interpretation] Your Honour, I have studied the case

25 law, and as you know I've been defending the accused before this court for

1 a number of years, and when I studied the case law when it comes to

2 contempt, I have not come across a final decision. We have only had the

3 first-instance court decisions on jurisdiction. Only a few days ago I

4 filed a few interlocutory appeals against my motions in which why I raised

5 the issue of jurisdictions -- jurisdiction, and I received the decisions

6 of the Chamber. If I had a final decision, and if I -- if I knew the law

7 of this, I would not decide to do that unless it went against the merit of

8 the case.

9 And one more thing. We would like to clarify one more thing when

10 it comes to the case law. The position has its position, but we're

11 waiting for the decision. Our learned friends from the Prosecution are

12 not authorised to issue contempt indictments of their own will. As

13 Article 77(B) says, it is only the Trial Chamber that is authorised to do

14 that and only upon the decision of the Chamber can the Prosecutor act with

15 such an indictment. And this is certainly a legal issue that has to be

16 resolved.

17 JUDGE ORIE: You say you have got documents to file to such

18 preliminary motions. We'll see what happens.

19 How much time you think you'd need for those motions?

20 MR. KRSNIK: [Interpretation] In any case by the end of next week

21 I'll be able to complete them. We have been waiting for this Initial

22 Appearance to take place. As soon as I come back from -- to Croatia I

23 will start working on them, and I believe I will finish within ten to 15

24 days.

25 JUDGE ORIE: Yes. Without any -- you said by the end of next

1 week. Without giving any indication on whether the motions and dependent

2 on the subjects you'd like to raise could be received, the date, the time

3 limit for preliminary motions is set to Wednesday, the 26th of October.

4 So please keep in mind that they should be filed by then.

5 Any other issue, Mr. Akerson?

6 MR. AKERSON: I need to go back to the disclosure of supporting

7 materials. The one thing I need to ask the Court to do is to make sure

8 that the accused and his counsel knows that the Court -- or I need the

9 Court to instruct them that they're not to disclose it.

10 JUDGE ORIE: Yes. Once disclosed, there is now an additional

11 order for you to -- although the disclosure is now permitted, that you

12 should not in the terms as usually put in written decisions, you should

13 not disclose the content to the public, to any third party. It's for the

14 accused and the Defence and for no one else.

15 Mr. Akerson.

16 MR. AKERSON: One last issue.

17 JUDGE ORIE: Yes.

18 MR. AKERSON: The Prosecution received a motion from this

19 accused, I think two days ago, maybe yesterday, and it is a request for

20 certification of interlocutory appeal to challenge the decision to deny

21 the Defence's motion for rescission of warrant of arrest and order for

22 surrender. The Prosecution is deeming this to be moot now. I've spoken

23 to Defence counsel, and I believe he is prepared to withdraw the motion

24 now based on this hearing today.

25 JUDGE ORIE: Mr. Krsnik.

1 MR. KRSNIK: [Interpretation] Yes, of course, Your Honour. It is

2 pointless now. My motive to write this was the fact that my request to

3 attend the initial appeal was denied, and I received a written

4 notification to that effect only a few days ago, and that's why I thought

5 that this order was premature. In any case, it is now moot and I orally

6 withdraw this motion.

7 And one more thing, Your Honour. I don't want to impede on your

8 time --

9 JUDGE ORIE: Let me just -- one second. It is on the record now

10 that the motion for certification for appeal has been withdrawn.

11 Please proceed, Mr. Krsnik.

12 MR. KRSNIK: [Interpretation] The situation is clear as far as the

13 disclosure is concerned. We are participants in the case, and we're

14 duty-bound to keep the secret.

15 And now we have come to the legal issue. What if a third party

16 finds out what was going on? Are they under the same legal obligation as

17 we are? This is going to be one of the issues in one of my motions, and

18 this is what I wanted to say at this point.

19 JUDGE ORIE: Yes. I may remind you that the indictment against

20 your client, Mr. Jovic, has been confirmed. You know what is in this

21 indictment. You could understand from that, that everyone, whether you

22 find the information in the garbage bin, whether you find it anywhere

23 else, that you're under a duty, that everyone is under a duty to not make

24 any protective measure of this Tribunal without effect, and it's not --

25 let me leave it to that.

1 Mr. Akerson, any further issue.

2 MR. AKERSON: No further issues from the Prosecution.

3 JUDGE ORIE: Any further issues by the Defence?

4 MR. KRSNIK: [Interpretation] No, thank you, Your Honour.

5 JUDGE ORIE: This concludes this Initial Appearance.

6 We stand adjourned sine die.

7 --- Whereupon the Initial Appearance was

8 adjourned at 1.31 p.m., sine die

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