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1 Monday, 28 November 2011

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 11.00 a.m.

6 JUDGE FLUEGGE: Good morning to everybody in the courtroom.

7 Welcome to this Pre-Trial Conference. I would kindly ask for the

8 Registrar to call the case, please.

9 THE REGISTRAR: Good morning, Your Honour. This is case number

10 IT-05-88/2-R77.2, in the contempt case of Dragomir Pecanac. Thank you,

11 Your Honours.

12 JUDGE FLUEGGE: Mr. Pecanac, do you hear the proceedings in a

13 language you understand?

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

15 you.

16 JUDGE FLUEGGE: Thank you very much. There's no need for you to

17 rise when you will address the Court. Thank you.

18 THE ACCUSED: [Interpretation] Thank you.

19 JUDGE FLUEGGE: I would ask -- then I would kindly ask for the

20 appearances. Mr. Dieckmann.

21 MR. DIECKMANN: Thank you very much, Your Honours. This is

22 Jens Dieckmann, Defence counsel for the accused, together with my legal

23 assistant Ms. Marie O'Leary from the United States, and Ms. Jasna Sajkov,

24 assigned assistant from the bar in Belgrade.

25 JUDGE FLUEGGE: Thank you very much.

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1 Before I come on to the procedural background of the

2 Pre-Trial Conference, I should like to say a few words on the Defence

3 motion to dismiss the Order in Lieu of Indictment and Request for Stay of

4 Deadline, which was filed on the 24th of November, 2011.

5 The Chamber notes that this motion is still partially pending

6 before the Chamber. On the 25th of November, the Chamber issued the

7 partial decision on the motion granting it in part by suspending the

8 Defence obligation to provide the Chamber with its lists of witnesses and

9 exhibits and time estimates for opening and closing statements.

10 In the partial decision, the Chamber postponed its decision on

11 the Defence requests to dismiss the contempt charge against the accused

12 and to order his release from the United Nations Detention Unit, the

13 UNDU, and further ordered the scheduling of the commencement of trial

14 shall be dependent and the decision to be taken by the Chamber on this

15 request.

16 Besides this motion, all pre-trial motions, responses and replies

17 have now been received and corresponding decisions have been issued by

18 the Chamber.

19 I shall now set out the relevant Rules of Procedure and Evidence

20 that have a bearing on this Pre-Trial Conference.

21 Pursuant to Rule 73 bis (A), the Trial Chamber is required to

22 convene a Pre-Trial Conference prior to the commencement of the trial.

23 Rule 77(E) provides that the Rules of Procedure and Evidence in

24 Parts Four to Eight shall apply mutatis mutandis under Rule 77.

25 Pursuant to Rule 77(D)(ii) of the Tribunal's Rules of Procedure

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1 and Evidence, the Tolimir Chamber has decided to prosecute the charge of

2 contempt set out in the Order in Lieu of Indictment against the accused.

3 For your information, Mr. Pecanac, Rule 77 states as follows:

4 "The Tribunal in the exercise of its inherent power may hold in

5 contempt those who knowingly and wilfully interfere with the

6 administration of justice, including any person who ... without just

7 excuse fails to comply with an order to attend before ... a Chamber."

8 I will now give a brief account of the proceedings up until this

9 point. On the 28th of July, 2011, the Prosecution filed a motion in the

10 Tolimir case requesting the Chamber to issue a subpoena for Mr. Pecanac

11 to appear before it to testify as a witness. On the 31st of August, the

12 Chamber issued a subpoena, Judge Nyambe dissenting, ordering him to

13 appear at the Tribunal the week of the 5th of September, 2011, or "on a

14 date and time to be specified." On the 2nd of September, the subpoena

15 was served on Mr. Pecanac. On the 21st of September, 2011, following a

16 motion by the Prosecution, the Chamber issued the Order in Lieu of

17 Indictment, Judge Nyambe dissenting, and the Warrant of Arrest and Order

18 for Surrender of Mr. Pecanac. On the 27th of September, Mr. Pecanac was

19 arrested in Belgrade, and on the 9th of October, he was transferred to

20 The Hague. On the 10th of October, 2011, the initial appearance was

21 held, and on the 19th of October, the further initial appearance was held

22 at which Mr. Pecanac entered a plea of not guilty to the charge of

23 contempt.

24 Before we go any further forward, I should like to address the

25 accused directly.

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1 Mr. Pecanac, I should like to recall the basis for the charge of

2 contempt that you are now facing.

3 The Order in Lieu of Indictment issued on the 21st of September,

4 2011, Judge Nyambe dissenting, stated that you are being prosecuted for

5 contempt on the grounds that having been informed on the

6 2nd of September, 2011, of the contents of a subpoena ad testificandum

7 dated 31st of August, 2011, and of your obligation to appear before the

8 Chamber, you obstructed all attempts by the Victims and Witnesses Section

9 of the Tribunal to implement the Decision on Safe Conduct and make

10 arrangements for your travel to The Hague, thereby failing to appear

11 before the Chamber as ordered or to show good cause why you could not

12 comply with the subpoena, and therefore knowingly and wilfully

13 interfering with the administration of justice by refusing to comply with

14 the subpoena. To avoid any misunderstanding, that was just a reference

15 for the Order in Lieu of Indictment.

16 At your initial appearance on the 10th of October, you indicated

17 that you did not consider that you were in a position to testify in the

18 case of Prosecutor v. Zdravko Tolimir.

19 At a hearing in the Tolimir case on the same day, you were again

20 asked to testify, but you were not willing to do so. Before I formally

21 invited you to testify, I informed you that by not testifying, you may be

22 in further contempt of the Tribunal pursuant to Rule 77(A) of our

23 Rules of Procedure and Evidence. You nevertheless refused to testify at

24 least that same day.

25 It was made clear to your counsel on the 8th of November, 2011,

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1 that the charge in the Order in Lieu of Indictment does not cover the

2 refusal to testify in the Tolimir case on the 11th of October, 2011.

3 However, it remains the case that you could still be prosecuted also for

4 that refusal.

5 Mr. Pecanac, I ask you to bear all this in mind, and now I ask

6 you once again whether you would be willing to testify in the

7 Tolimir case. If necessary, you could consult your counsel before

8 answering my question.

9 Are you willing to testify?

10 THE ACCUSED: [Interpretation] I'd like to consult my counsel,

11 please.

12 JUDGE FLUEGGE: How many minutes do you need for that?

13 Mr. Dieckmann.

14 MR. DIECKMANN: Your Honours, perhaps ten minutes?

15 JUDGE FLUEGGE: Then we will have a short break now, and we will

16 resume at 11.25. Thank you.

17 --- Break taken at 11.11 a.m.

18 --- On resuming at 11.27 a.m.

19 JUDGE FLUEGGE: Now we are going to continue our

20 Pre-Trial Conference. Before the break I have put a question to you,

21 Mr. Pecanac, and in the meantime you had the opportunity to consult your

22 counsel. You have the floor to provide us -- no. Mr. Dieckmann, you

23 have the floor to provide us with the answer of the accused.

24 MR. DIECKMANN: Your Honours, thank you very much. After

25 consulting with my client, I'm instructed and I can declare on behalf of

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1 him the following, and perhaps we shall go in private session, because it

2 has to deal with medical issues I would not like to share with the

3 public.

4 JUDGE FLUEGGE: We go into private session.

5 [Private session]

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11 Pages 35-36 redacted. Private session.

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1 the issue for today, because as we have been informed today, the decision

2 is how to proceed in regard to the Order in Lieu of Indictment regarding

3 the situation in September, 2011, and so in fact these issues are of a

4 premature -- are premature, and I think it shall be addressed in a later

5 stage of proceedings after a decision on our request from last week.

6 Thank you, Your Honours.

7 JUDGE FLUEGGE: Thank you very much. At this point in time I

8 would put on the record one small addition to what I've said at the

9 beginning of this Pre-Trial Conference just for the sake of clarity of

10 the record.

11 Page 2, line 25, through page 3, line 2, I would like to add that

12 the Tolimir Chamber has decided to prosecute the charge of contempt set

13 out in the Order in Lieu of Indictment against the accused by majority,

14 Judge Nyambe dissenting.

15 [Trial Chamber confers]

16 JUDGE FLUEGGE: Mr. Dieckmann, Mr. Pecanac, we will consider your

17 submission carefully. We need a break to decide how to proceed after

18 having heard your submission. We will have a break until 12.15. We

19 adjourn.

20 --- Recess taken at 11.38 a.m.

21 --- On resuming at 12.30 p.m.

22 JUDGE FLUEGGE: First of all, our apologies for the delayed

23 return to the courtroom. We discussed the whole matter and took

24 especially into consideration what we heard today during this

25 Pre-Trial Conference by the Defence, the part in public and also the part

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1 in -- submitted in private session.

2 We will consider this submission further, and we will render a

3 written decision as soon as possible on that remaining part of your

4 submission from last week, last Thursday, and we'll carefully consider

5 all the arguments we have heard, and we'll render this decision as soon

6 as possible.

7 At the moment, there is no further -- no other decision to be

8 taken. It will be done by written decision.

9 This concludes this Pre-Trial Conference, and we will adjourn.

10 --- Whereupon the Pre-Trial Conference adjourned

11 at 12.32 p.m.