Page 40
1 Wednesday, 30 November 2011
2 [Open session]
3 [The accused not present]
4 --- Upon commencing at 9.04 a.m.
5 JUDGE FLUEGGE: Good morning to everybody in the courtroom.
6 We are not very complete at the moment, but we should start and I
7 would like to ask the Registrar to call the case, please.
8 THE REGISTRAR: Good morning, Your Honours.
9 This is the contempt case of Dragomir Pecanac, case number
10 IT-05-88/2-R77.2. Thank you, Your Honours.
11 JUDGE FLUEGGE: Thank you.
12 Then I would like to ask the Defence for appearances.
13 MR. DIECKMANN: Thank you very much, Your Honours. Very good
14 morning. This is Jens Dieckmann as Defence counsel for the accused,
15 together with assigned legal assistant Ms. Marie O'Leary and
16 Ms. Jasna Sajkov. Thank you very much.
17 JUDGE FLUEGGE: We noted that the accused is not present at the
18 moment. We have received an informal information by informal
19 communication that he is, due to a problem, health problem, unable to
20 attend today.
21 Mr. Dieckmann, do we have more information?
22 MR. DIECKMANN: Yes, Your Honour. Thank you very much.
23 We received this morning per e-mail from the acting Deputy
24 Registrar the information that he has an injury of his leg during sport
25 time and that it affects his mobility to move. And in fact, we have been
Page 41
1 contacted this morning and, as we know and I got the confirmation from
2 Detention Unit, he waived his presence to be in the courtroom and he
3 signed a declaration like this, and so in fact we are in a position to
4 continue with leave of Your Honours.
5 JUDGE FLUEGGE: Mr. Dieckmann, you are in the possession of such
6 a waiver?
7 MR. DIECKMANN: No, I am not. I just had a call with the
8 Detention Unit before 9.00 and they told me that it should have been
9 transferred from Detention Unit to the Tribunal. I'm not in a possession
10 of such a document.
11 JUDGE FLUEGGE: Thank you. I take it it's the position of the
12 Defence that we at least start with the trial now in the absence of the
13 accused; is that correct?
14 MR. DIECKMANN: Yes, Your Honours.
15 There is one evidentiary matter where it is necessary for the
16 Defence to consult with the accused over the day, but this is concerning
17 a very isolated or special matter, and so it is our opinion that we can
18 start and continue with the things we have to discuss this morning.
19 We met with the accused yesterday afternoon and he is fully
20 informed about the proceedings and the pending matters, and so I think it
21 is proper and due to his instructions that we can deal with this even in
22 his absence.
23 JUDGE FLUEGGE: Thank you.
24 If there is any need to have a break for you to consult your
25 client, you should indicate that.
Page 42
1 MR. DIECKMANN: Thank you, Your Honours. That is highly
2 appreciated. Thank you.
3 [Trial Chamber confers]
4 JUDGE FLUEGGE: The Chamber appreciates the position of the
5 Defence, especially to save time. We should start with the trial. There
6 are several procedural matters to deal with, and we can resolve quite a
7 lot. But, again, if there's a need for break, please let us know.
8 Before we start the trial, the Chamber notes that it received
9 three confidential submissions by the Defence yesterday. First, the
10 submissions pursuant to Rule 65 ter (G); secondly, the motion to admit
11 documents from the bar table; and thirdly, the motion to exclude the
12 VWS Internal Memorandum as an exhibit. The Chamber will deal with each
13 of these during the course of the trial today.
14 And I take it the motion to exclude the VWS Internal Memorandum
15 is, in fact, an objection to the admission of this document as an
16 exhibit.
17 The Chamber -- I think we should briefly go into private session
18 because I want to deal with some health matters of the accused.
19 We go into private session.
20 [Private session]
21 (redacted)
22 (redacted)
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25 (redacted)
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16 [Open session]
17 THE REGISTRAR: We're in open session, Your Honours. Thank you.
18 JUDGE FLUEGGE: Now some details about the conduct of the trial.
19 There will, of course, be no opening statement on the part of the
20 Prosecution but the Chamber will begin the trial with a brief summary of
21 the case against the accused. This will last no more than 15 minutes.
22 Mr. Dieckmann, the Chamber notes the Defence submission pursuant
23 to Rule 65 ter (G), filed confidentially on the 29th of November, 2011,
24 in which you informed the Chamber that you do not wish to make an opening
25 statement in this case. Can you confirm this?
Page 46
1 MR. DIECKMANN: Yes, Your Honour, thank you very much. I can
2 confirm this. There will be no opening statement from the Defence.
3 Thank you.
4 JUDGE FLUEGGE: Thank you.
5 Mr. Dieckmann, you have not indicated that the accused wishes to
6 make a statement to the Chamber under Rule 84 bis.
7 Can you confirm this is the case?
8 MR. DIECKMANN: I can confirm this, yes. There is no statement
9 from the accused.
10 JUDGE FLUEGGE: Thank you.
11 Mr. Dieckmann, you are aware that the Chamber is not calling any
12 witnesses and that it will be presenting four documents. The three
13 documents referred to in the order regarding preparation for and conduct
14 of the trial issued on the 14th of November, 2011, and the decision on
15 Prosecution's request for an Order for Safe Conduct of witness
16 Dragomir Pecanac filed confidentially in the Tolimir case on the
17 9th of September, 2011.
18 The Chamber will not present a closing argument but the Chamber
19 notes that the Defence submission pursuant to Rule 65 ter (G), the
20 Defence requested two hours for its closing argument.
21 We will come back to that later, if two hours are really
22 proportionate or not in this case, but we will come back to that request
23 at a later stage.
24 Based on all the submissions, the trial should run approximately
25 one day. However, of course, the length of the trial will depend on the
Page 47
1 submissions of the Defence in relation to the availability of one
2 witness. We will come back to that later.
3 Now, the Chamber will give a summary of the case against the
4 accused.
5 This is a public hearing and because of this, I will publicly
6 address a number of issues which, at the time, were confidential.
7 As stated in the Order in Lieu of Indictment issued on the
8 21st of September, 2011, by majority, Judge Nyambe dissenting,
9 Mr. Pecanac is being prosecuted for contempt on the grounds that having
10 been informed on the 2nd September 2011 of the contents of a subpoena
11 ad testificandum dated 31 August 2011, and of your -- his obligation to
12 appear before the Chamber, he obstructed all attempts by the Victims and
13 Witnesses Section of the Tribunal to implement the decision on safe
14 conduct and make arrangements for his travel to The Hague. Thereby,
15 failing to appear before the Chamber as ordered or to show good cause why
16 he could not comply with the subpoena and therefore knowingly and
17 wilfully interfering with the administration of justice by refusing to
18 comply with the subpoena.
19 This is more or less a quotation for the Order in Lieu of
20 Indictment.
21 Pursuant to Rule 77 (D)(ii) of the Tribunal's Rules of Procedure
22 and Evidence, the Tolimir Chamber has decided to prosecute the charge of
23 contempt set out in the Order in Lieu of Indictment against the accused.
24 So this is a procedure without any Prosecution or Prosecutor and
25 the Prosecution is not in the courtroom. The Trial Chamber instigated
Page 48
1 the proceedings and the Prosecution is not a participant in this trial.
2 On the 28th of July, 2011, the Prosecution filed a motion
3 requesting the Chamber to issue a subpoena - and I refer here to the
4 Tolimir case - to issue a subpoena for Mr. Dragomir Pecanac to appear
5 before it to testify in the Tolimir case after Mr. Pecanac repeatedly
6 demonstrated that he was unwilling to voluntarily appear to testify.
7 On 31st of August, the Chamber answered the motion made by the
8 Prosecution by issuing a confidential subpoena, Judge Nyambe dissenting,
9 ordering Mr. Pecanac to appear at the Tribunal during the week of 5
10 September 2011 or "on a date and time to be specified."
11 On the 2nd of September, 2011, the subpoena was served on
12 Mr. Pecanac, as evidenced by the Memorandum of Service of the Subpoena
13 for witness Dragomir Pecanac dated the same day and signed by
14 Mr. Pecanac.
15 Now I will turn into private session for a moment again.
16 [Private session]
17 (redacted)
18 (redacted)
19 (redacted)
20 (redacted)
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Page 49
1 (redacted)
2 [Open session]
3 THE REGISTRAR: We're in open session, Your Honours. Thank you.
4 JUDGE FLUEGGE: On the 9th November this year, Mr. Pecanac
5 informed the Chamber that he accepts the truth of the contents of this
6 Memorandum of Service through a submission by his counsel. The
7 Memorandum of Service is evidence that the accused received the subpoena
8 on the 2nd of September and that he was aware of his obligation to come
9 to The Hague to testify.
10 On the 9th of September, 2011, the Chamber issued a decision
11 ordering safe conduct for Mr. Pecanac for the purposes of his appearance
12 as a witness in the Tolimir case. According to an internal memorandum
13 dated 13th of September from the chief of the Victims and Witnesses
14 Section of the Tribunal, in short form, VWS, beginning on the
15 9th of September, members of the VWS staff made several attempts to
16 contact Mr. Pecanac to make arrangements for his travel to The Hague to
17 testify in the Tolimir case.
18 We go again in private session.
19 [Private session]
20 (redacted)
21 (redacted)
22 (redacted)
23 (redacted)
24 (redacted)
25 (redacted)
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17 (redacted)
18 (redacted)
19 [Open session]
20 THE REGISTRAR: We're back in open session, Your Honours. Thank
21 you.
22 JUDGE FLUEGGE: The conduct of the accused as reported in the
23 memorandum from VWS indicates that he obstructed all attempts by the
24 Victims and Witnesses Section of the Tribunal to implement the decision
25 on safe conduct and make arrangements for his travel to The Hague. And
Page 51
1 again, I emphasise this is the charge in the Order in Lieu of Indictment
2 against the accused.
3 Furthermore, the accused did not appear voluntarily before the
4 Chamber at the seat of the Tribunal during the week of the
5 5th of September, 2011, nor at a later stage, and thus, the accused did
6 not comply with the subpoena as ordered by Chamber.
7 On the 15th of September, the Prosecution filed a motion in the
8 Tolimir case requesting that the Chamber issue an Order in Lieu of
9 Indictment, a Warrant for Arrest and Order for Surrender of Mr. Pecanac.
10 On 21st of September, 2011, the Chamber issued the Order in Lieu of
11 Indictment, Judge Nyambe dissenting, and the Warrant of Arrest and Order
12 for Surrender of Mr. Pecanac.
13 On the 27th of September, Mr. Pecanac was arrested in Belgrade,
14 and on October 9th, he was transferred to The Hague.
15 On the 10 of October, 2011, the Initial Appearance of Mr. Pecanac
16 was held, and on the 19th October, the Further Initial Appearance was
17 held at which Mr. Pecanac entered a plea of not guilty to the charge of
18 contempt.
19 Now I turn to procedural matters of the case of the Chamber.
20 First, again, the Chamber notes that it is not calling any
21 witnesses and it will be presenting four documents in the case against
22 Mr. Pecanac.
23 The first document is the subpoena ad testificandum for
24 Dragomir Pecanac, filed confidentially in the Tolimir case on the
25 31st of August, 2011, which has been assigned document ID number IC-0001
Page 52
1 in e-court. I'm not aware of any objection to that. This document will
2 be received into evidence, under seal.
3 THE REGISTRAR: Your Honour, this document shall be assigned
4 Exhibit C1, admitted under seal. Thank you.
5 JUDGE FLUEGGE: Thank you. The second document is the decision
6 on Prosecution request for an Order for Safe Conduct for witness
7 Dragomir Pecanac, filed confidentially in the Tolimir case on the
8 9th of September, 2011, which has been assigned document ID number
9 IC-0003 in e-court.
10 I take it that there is no objection on the side of the Defence.
11 This document will be received into evidence under seal too.
12 THE REGISTRAR: Your Honours, the decision on safe conduct shall
13 assigned Exhibit C2, admitted under seal. Thank you.
14 JUDGE FLUEGGE: The third document is the Memorandum of Service
15 of the Subpoena for witness Dragomir Pecanac dated 2nd of September,
16 2011, and filed confidentially in the Tolimir case on the
17 9th of September, which has been assigned document ID number IC-0005 in
18 e-court. Taking into account that there is no objection, this document
19 will be received into evidence under seal as well.
20 THE REGISTRAR: Your Honours, the Memorandum of Service of
21 Subpoena to Dragomir Pecanac shall be assigned Exhibit C3, admitted under
22 seal. Thank you, Your Honours. Thank you.
23 JUDGE FLUEGGE: Thank you.
24 Finally, the fourth document is the Internal Memorandum from the
25 Victims and Witnesses Section dated 13th of September, 2011, and filed
Page 53
1 confidentially in the Tolimir case on the 15th of September as
2 confidential appendix B to the Prosecution's application for an Order in
3 Lieu of Indictment, Warrant for Arrest and Order for Surrender of
4 Dragomir Pecanac, which has been assigned document ID number IC-0007 in
5 e-court.
6 Mr. Dieckmann, you have indicated yesterday by your written
7 submission that you object to the admission of this document.
8 Will you, in brief, please explain your position.
9 MR. DIECKMANN: Yes, Your Honours. Thank you very much.
10 Indeed, yesterday we filed the confidential motion to exclude
11 this Internal Memorandum, and I am referring especially to para 16, up to
12 para 22 of this submission. In brief, our position is that this
13 memorandum contains hearsay evidence, sometimes double hearsay and even
14 further removed, that goes to the acts and conduct of the accused. This
15 was even considered by the Chamber in its order from the 11th November on
16 page 3. The Trial Chamber has further acknowledged the Defence
17 submission that this statement prevents the right of Mr. Pecanac to
18 confront his accusers as guaranteed under ICTY Statute Article 21,
19 subparagraph 4(e).
20 The recent decision also notes the special case presented
21 stating -- and perhaps we go in private session and I think the
22 11th November decision was confidential.
23 JUDGE FLUEGGE: We turn into private session.
24 [Private session]
25 (redacted)
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9 (redacted)
10 (redacted)
11 [Open session]
12 THE REGISTRAR: We're in open session, Your Honours.
13 MR. DIECKMANN: Your Honours, for these foregoing arguments,
14 Defence respectfully requests the Trial Chamber to deny the admission of
15 the VWS Internal Memorandum dated the 13th September 2011. And the
16 Milutinovic decision I referred to is specifically para 14 I quoted from.
17 Thank you very much.
18 JUDGE FLUEGGE: Thank you. The Chamber will confer.
19 [Trial Chamber confers]
20 JUDGE FLUEGGE: The Chamber has considered carefully your
21 submission, your objection to the admission of this document,
22 Mr. Dieckmann. We -- in the view of the Chamber, we have to distinguish
23 between admission of a document and using it for judgement purposes. The
24 threshold for admission is quite low in the jurisprudence of this
25 Tribunal. We have no doubt that it is a document from the Registry, from
Page 57
1 the VWS. We have no doubt, as the Chamber, that it was written and
2 signed by Mr. De Witt from VWS. Therefore, we can say, we know the
3 author. We have no doubt about the author and about the authenticity.
4 And it relates to our case. It has probative value, which probative
5 value will be decided by the Chamber at a later stage if we in any way
6 can give weight to it. But in order to have a full picture of all
7 documents we can -- we have in our possession, we admit this document,
8 too, as a document in this case.
9 The Registrar is asked to assign a number of this case -- exhibit
10 number of this case to this document.
11 THE REGISTRAR: Your Honours, the VWS Internal Memorandum shall
12 be assigned Exhibit C4.
13 JUDGE FLUEGGE: Thank you very much.
14 Mr. Dieckmann, this now concludes the case of the Chamber against
15 the accused. You have indicated in your 65 ter submission that you would
16 like to make a Rule 98 bis submission at this point.
17 Are you prepared to do that now, and how much time do you
18 estimate you need?
19 MR. DIECKMANN: Thank you very much, Your Honours.
20 Yes, indeed, we are prepared to present oral submissions on
21 98 bis now and our estimation is 20 minutes.
22 JUDGE FLUEGGE: Thank you. Go ahead, please.
23 MR. DIECKMANN: Thank you.
24 THE INTERPRETER: If the counsel is going to read, the
25 interpreters wonder if there are some copies for the interpreters.
Page 58
1 JUDGE FLUEGGE: I think the Defence is considering this
2 possibility.
3 MR. DIECKMANN: Yes, Your Honour, we are prepared to give -- to
4 give the translators our submissions.
5 JUDGE FLUEGGE: Yes. And please also one copy for the
6 court reporter.
7 MR. DIECKMANN: We prepared three of them. Yes, court reporter
8 and for the translator.
9 JUDGE FLUEGGE: You need perhaps more for the interpreters. For
10 French, B/C/S ...
11 MR. DIECKMANN: We can prepare more, if necessary.
12 JUDGE FLUEGGE: How many more are needed? I was told that the
13 number is sufficient. It should be given to the interpreters.
14 THE INTERPRETER: The interpreter's note we don't have any copies
15 yet.
16 JUDGE FLUEGGE: No. I know you will receive it in a minute, and
17 Mr. Dieckmann will wait that we have the confirmation from the booth that
18 you are in the possession of these copies.
19 I -- at this point in time I would like to make a correction.
20 The last document, C4, should be admitted under seal. That was not put
21 on the record.
22 Can the booths confirm that you received copies.
23 THE INTERPRETER: Yes, the copies have been received,
24 Your Honour.
25 Yes, Your Honour.
Page 59
1 The French booth can confirm that copies are received. Thank you
2 very much.
3 JUDGE FLUEGGE: Thank you very much. This is perfect.
4 Mr. Dieckmann, please go ahead.
5 MR. DIECKMANN: Thank you very much.
6 May it please the Court, Your Honours, I'm here this morning on
7 behalf of the accused Dragomir Pecanac pursuant to Rule 98 bis requesting
8 to acquit the accused on counts in the Order in Lieu of Indictment.
9 Your Honours, first and foremost, due to Rule 77 (D), of course,
10 Rule 98 bis is fully applicable mutatis mutandis in these contempt
11 proceedings.
12 Rule 98 bis provides:
13 "At the close of the Prosecutor's case, the Trial Chamber shall,
14 by oral decision and after hearing the oral submissions of the parties,
15 enter a judgement of acquittal on any count if there is no evidence
16 capable of supporting a conviction."
17 What is the degree of proof necessary under Rule 98 bis?
18 We refer the Chamber to three precedents, starting with two oral
19 decision under Rule 98 bis. The first is from the Mrksic case,
20 IT-98-13/1-T, transcript 11311 to transcript 11313. The second decision
21 is from the Martic case, that's IT-95-11-T. The transcript reference is
22 5960 to 5961.
23 I'll quote from the Mrksic case at 11311:
24 "The standard to be applied in respect of each count is whether,
25 on the evidence as it stands and taken at its highest for the
Page 60
1 Prosecution, it would be properly open to a Trial Chamber to be persuaded
2 beyond a reasonable doubt to convict the accused."
3 It follows that a decision that there is evidence capable of
4 sustaining a conviction on a particular count is in no sense an
5 indication of the view of this Chamber as to the ultimate guilt or
6 innocence of the accused on that count. This is so because at this stage
7 of the case, the Chamber is not to evaluate the respective credit of
8 witnesses or the strengths or the weaknesses of contradictory or
9 different evidence. The Chamber is required at this stage to assume that
10 the Prosecution's evidence is, and I quote, "entitled to credence unless
11 incapable of belief."
12 In essence, a Rule 98 bis motion will succeed if there is no
13 evidence supporting a particular count or if the only relevant evidence
14 is so incapable of belief that it could not properly sustain a conviction
15 even when the evidence is taken at its highest for the Prosecution.
16 The Mrksic Chamber goes on to rely on Jelesic Appeals Chamber
17 decisions, Strugar Trial Chamber decision and Milosevic Trial Chamber
18 decision.
19 JUDGE FLUEGGE: Mr. Dieckmann, although the hard copies were
20 delivered, please slow down a bit.
21 MR. DIECKMANN: I'm sorry, thank you very much.
22 The Martic Trial Chamber adopted the language from Mrksic, and at
23 11312 of the Mrksic transcript the Chamber said:
24 "This may be established even though the evidence is not
25 necessarily sufficient in respect of some other allegations or
Page 61
1 particulars set out in the indictment in respect of that count or in
2 respect of one or some forms of criminal responsibility relied on by the
3 Prosecution. The Prosecution need only ultimately succeed in proving one
4 form or one of the forms of criminal responsibility it relies on for
5 there to be a conviction on a count."
6 So we say, therefore, that a 98 bis motion will succeed if there
7 is no evidence supporting a particular count or if the only relevant
8 evidence is so incapable of belief that it could not properly sustain a
9 conviction even when the evidence is taken at its highest for the
10 Prosecution.
11 Thirdly, we refer also to Trial Chamber decision on
12 Defence motions for judgement of acquittal in the case Prosecutor versus
13 Dario Kordic et al, dated from 6 April 2000. Para 26 reads as follows:
14 "The Chamber concludes that the true test to be applied on a
15 motion for acquittal under Rule 98 bis is not whether there is evidence
16 which satisfies the Trial Chamber beyond a reasonable doubt of the guilt
17 of the accused, but rather, whether there is evidence on which a
18 reasonable Trial Chamber could convict."
19 And, further, further on in the same para:
20 "It is not necessary to define what is meant by evidence on which
21 a reasonable Trial Chamber could convict; it is sufficient to say that
22 the standard is not met by any evidence; there must be some evidence
23 which could properly lead to a conviction."
24 Following this line, this Chamber states it will not take
25 questions of credibility or reliability of a special witness into account
Page 62
1 at this stage of proceedings, but in para 28, Trial Chamber prescribes --
2 describes the exceptions from these basic rules as follows:
3 "The test that the Chamber has enunciated - evidence on which a
4 reasonable Chamber could convict - proceeds on the basis that generally
5 the Chamber would not consider questions of credibility and reliability
6 in dealing with a motion under Rule 98 bis, leaving those matters to the
7 end of the case. However, there is one situation in which the Chamber is
8 obliged to consider such matters; it is where the Prosecution's case has
9 completely broken down, either on its presentation, or as a result of
10 such fundamental questions being raised through cross-examination as to
11 reliability and credibility of witnesses that the Prosecution is left
12 without a case."
13 Your Honours, on the 19th October 2011, the accused made his
14 Further Initial Appearance, where it -- the Order in Lieu of Indictment
15 became the operative charging instruments and the proceedings were set in
16 motion to try him with contempt pursuant to ICTY Rule 77. And I left the
17 quote of this special indictment out to save some time for the legal
18 argument.
19 As regarding to the contempt, Your Honours, due to Prosecutor
20 versus Brdjanin, IT-99-36-R77, decision on motion for acquittal pursuant
21 to Rule 98 bis, dated 19 March 2004, para 14, I quote --
22 JUDGE FLUEGGE: Before you quote, I'm very sorry, the name of the
23 case was not recorded properly.
24 MR. DIECKMANN: I'm sorry. All right.
25 JUDGE FLUEGGE: Please just repeat the name so that we have it on
Page 63
1 the record.
2 MR. DIECKMANN: Yes, it is Prosecutor versus Brdjanin, concerning
3 allegations against Milka Maglov. And then the number I referred to.
4 I'm sorry.
5 JUDGE FLUEGGE: The number is recorded properly.
6 MR. DIECKMANN: Thank you very much.
7 JUDGE FLUEGGE: Please continue.
8 MR. DIECKMANN: "Contempt of court is an act or omission intended
9 to interfere with the due administration of justice."
10 To convict an accused of contempt for failure to comply with an
11 order of the court under Rule 77 (A)(iii), the Tribunal's jurisprudence
12 requires an examination of the following three questions: Did the accused
13 fail to comply with an order to attend before the Chamber; secondly, if
14 so, did the accused have a just excuse; and, thirdly, where relevant, did
15 the accused knowingly and wilfully interfere with the administration of
16 justice?
17 The three questions are taken from the case in the matter of
18 Ljubisa Petkovic, IT-03-67-R77.1. Redacted version of judgement
19 pronounced on 11 September 2008, para 41.
20 In order to make a finding of mens rea of contempt, it must be
21 established "that the accused had a specific intent to interfere with the
22 Tribunal's due administration of justice."
23 This quotation is taken again from Prosecutor versus Brdjanin,
24 same decision as quoted before, para 40.
25 The mens rea must be established on a case by case relating to
Page 64
1 the conduct charged. Same decision in Brdjanin, para 15.
2 However: "Mere negligence in failing to ascertain whether an
3 order has been made does not amount to contempt."
4 Taken from the same decision from Brdjanin, para 39.
5 That level of mens rea - indifference or reckless negligence -
6 while perhaps rising to a level that interferes in the administration of
7 justice, "could never justify imprisonment or a substantial fine."
8 Taken again from the case versus Brdjanin, same decision, again,
9 para 39.
10 In all cases where the charges cannot be supported by the
11 evidence beyond a reasonable doubt the case must be dismissed. In these
12 instances, "professional ethics and fairness to the accused are always
13 paramount."
14 Quoting a statement by Justice Louise Arbour in ICTY press
15 release CC/PIO/279-E.
16 Your Honours, coming now to the case in front of us. From the
17 now four documents of the prosecuting case just admitted, there is
18 insufficient evidence to make a finding on all three inquiries, as
19 required by the jurisprudence, to prove a contempt under Rule 77(A)(iii).
20 With regard to the first inquiry, the evidence in front of us
21 does not show that the accused failed to comply with a specific order to
22 attend before the Chamber. There is no evidence in the prosecuting case
23 that the accused was given a specific date to appear for testimony.
24 While the document subpoena ad testificandum for Dragomir Pecanac - I
25 think this is C1 - indicates testimony "during week of 5 September 2011
Page 65
1 on a date and time to be specified or at such other time as may be
2 communicated to you," the evidence in front of us does not show where or
3 if he was ever given a specific date. Therefore, he cannot be found to
4 have failed to comply with a specific order to appear before the Chamber.
5 With regard to the second inquiry, the evidence shows a number of
6 just excuses for why his testimony would not be practicable or even
7 possible on the date it was finally scheduled. From C3, the document
8 admitted into evidence, C3, it is shown that before testimony, due to the
9 information the accused gave to the institutions, the following needed to
10 be properly resolved. I don't know if I shall continue in private
11 session since of the status of this document.
12 JUDGE FLUEGGE: Out of caution it would be better, yes.
13 MR. DIECKMANN: Yes, Your Honour.
14 JUDGE FLUEGGE: We turn into private session.
15 [Private session]
16 (redacted)
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3 [Open session]
4 THE REGISTRAR: We're back in open session, Your Honours. Thank
5 you.
6 MR. DIECKMANN: As the prosecuting evidence does not show that
7 these practical matters were resolved before his scheduled testimony,
8 even the accused informs the institution on 2nd September that these
9 issues has to be resolved, contempt under 77(A)(iii) cannot be shown as
10 sufficiently proven with the evidence in front of us.
11 Finally, and perhaps most important, Your Honours, with regard to
12 the third inquiry, there is a failure to show any culpable mens rea on
13 the part of the accused that could be shown as meeting a level sufficient
14 for a contempt conviction. It is not shown on the face of these admitted
15 documents that the accused was aware that he was causing an interference,
16 much less it is not shown on the face of these documents that he has any
17 specific intent of instruction [sic], taking into account that he
18 declared -- oh, thank you very much. There must be a correction in
19 the -- in the transcript. It is page 26, line 14, it must say
20 "obstruction," not "instruction." Thank you.
21 So he did not have a specific intent of obstruction, especially
22 taking into account that in this document, C3, he declared that he is
23 willing to testify but not able.
24 Your Honours, can we go into private session again?
25 JUDGE FLUEGGE: Private.
Page 67
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13 [Open session]
14 THE REGISTRAR: We're in open session, Your Honours. Thank you.
15 JUDGE FLUEGGE: Mr. Dieckmann.
16 MR. DIECKMANN: Thank you very much.
17 Let me just repeat the last sentence.
18 The Defence has averred that there was no wilful violation of the
19 order with an intent to impede justice. Rather, as aptly characterised
20 by Honourable Judge Prisca Matimba Nyambe, the charges were premature -
21 and this is taken as a quotation from the dissenting opinion from the
22 4th of October - and lodged due to a series of misunderstanding
23 compounded by his mental instability. His conduct was not such that it
24 is the kind sought to be punishable under Rule 77(A)(iii).
25 Your Honours, I come to my conclusion. I started these
Page 69
1 submissions by saying under Rule 98 bis, a submission will succeed if
2 there's no evidence supporting a particular count, or if the only
3 relevant evidence is so incapable of belief that it could not properly
4 sustain a conviction, even when the evidence is taken at its highest for
5 the Prosecution side.
6 In the present matter, as the four documents admitted into
7 evidence as prosecution evidence are incapable of supporting a
8 conviction, pursuant to the presumption of innocence that is permitted to
9 the accused under Article 21, subparagraph 3, of the Statute, the charges
10 should be dismissed at this stage of the proceedings and he shall be
11 acquitted at this stage of the proceedings.
12 Your Honours, this concludes my 98 bis submissions. I thank you
13 very much.
14 JUDGE FLUEGGE: Thank you very much.
15 To inform the public, our Rules of Procedure and Evidence
16 contains a Rule 98 bis judgement of acquittal, and I read from the Rules.
17 I quote:
18 "At the close of the Prosecutor's case, the Trial Chamber shall,
19 by oral decision and after hearing the oral submissions of the parties,
20 enter a judgement of acquittal on any count if there is no evidence
21 capable of supporting a conviction."
22 We have heard the oral submission by the Defence. The Chamber
23 will consider the arguments before it. And, therefore, we need a longer
24 break for that, to consider all arguments we have heard.
25 Before we break, I would like to ask the Court Officer if he is
Page 70
1 in the position to make a Rule 33(B) submission as asked for earlier in
2 today's hearing.
3 [Trial Chamber and Registrar confer]
4 JUDGE FLUEGGE: I was informed by the Court Officer that he is
5 not in possession of enough information to provide us with Rule 33(B)
6 submission.
7 So I think looking at the time, Mr. Dieckmann, you indicated that
8 you need to consult your client in any case. How much time do you need
9 for that? Have you any idea about it?
10 MR. DIECKMANN: Your Honours, the problem is that, up to 9.00
11 this morning, I was not aware of the schedule of Detention Unit, so I was
12 not aware if he is brought to a clinic or if the problems could be solved
13 there. So in fact, now I would have -- I would need some time to conduct
14 Detention Unit and to find out in what kind and what time-period I could
15 get in contact with him, so at least one hour.
16 JUDGE FLUEGGE: In that case, to combine the needs to consider
17 your application, and for you to contact the accused, we should adjourn
18 now, and my proposal would be to resume at 12.00 and to continue.
19 MR. DIECKMANN: Very well. Thank you very much.
20 JUDGE FLUEGGE: We must have a break now, and we will resume at
21 12.00.
22 --- Recess taken at 10.23 a.m.
23 --- On resuming at 1.14 p.m.
24 JUDGE FLUEGGE: First of all, our deep apologies for the delayed
25 continuation of our hearing today. The longer break shows that we had
Page 71
1 deliberations and considerations on the position of the Defence and how
2 to proceed.
3 Before I come to the Defence 98 bis motion, I just wanted to
4 state for the record that, in the meantime, we received the declaration
5 of Mr. Pecanac about the waiver of his right to be present. I just
6 wanted to put that on the record.
7 Now I would like to render our oral decision pursuant to
8 Rule 98 bis.
9 The Chamber begins by recalling the Rule 98 bis provides, and I
10 quote:
11 "At the close of the Prosecutor's case the Trial Chamber shall,
12 by oral decision and after hearing the oral submissions of the parties,
13 enter a judgement of acquittal on any count if there is no evidence
14 capable of supporting a conviction."
15 The Chamber has carefully, really carefully considered the
16 submissions of the accused. The Chamber notes in particular the
17 subpoena ad testificandum which the Chamber issued on the 31st of August,
18 2011. Then the Memorandum of Service dated the 2nd of September, 2011,
19 which indicates that the accused was -- has not only received the
20 subpoena but was also aware of its contents at the time that he received
21 it. The Chamber notes further that the Defence notice of the
22 9th of November, 2011 -- that in the Defence notice the accused accepted
23 the truth of the contents of the Memorandum of Service.
24 On the basis of this evidence, the Chamber, by majority,
25 Judge Nyambe dissenting, reaches the conclusion that, at the close of the
Page 72
1 case of the Chamber against the accused it is not the case that there is
2 no evidence, and I emphasise no evidence, capable of supporting a
3 conviction of the accused, and it will be necessary to hear the Defence
4 case.
5 Accordingly, the Chamber denies the oral motion of the accused
6 for acquittal pursuant to Rule 98 bis.
7 That means that we are now proceeding with the Defence case.
8 Perhaps at this point in time, I would like to ask the Court Officer if
9 he has received information to be able to submit a 33(B) submission on
10 the question of the nightly monitoring in the Detention Unit.
11 [Trial Chamber and Registrar confer]
12 JUDGE FLUEGGE: I was not aware of the fact that it was already
13 filed, the Registrar's submission pursuant to Rule 33(B), further to
14 Trial Chamber's oral order of today. We received that, and I think,
15 Mr. Dieckmann, you have had the opportunity to read it, which I didn't
16 have up until now. Do you want to add something or comment on it? You
17 have the floor.
18 MR. DIECKMANN: Thank you very much, Your Honours. Indeed, I had
19 a chance to read it and I would like to go in private --
20 JUDGE FLUEGGE: Yes, we have -- just a moment.
21 MR. DIECKMANN: I'm sorry.
22 JUDGE FLUEGGE: The transcript stopped. We need a short break
23 because there is no transcript at the moment.
24 I hope it is now working.
25 I had asked Defence counsel if he wants to comment on that
Page 73
1 submission or if he has further information.
2 Mr. Dieckmann, you have the floor.
3 MR. DIECKMANN: Thank you very much, Your Honours.
4 I would like to go into private session for further oral
5 submissions.
6 JUDGE FLUEGGE: Private.
7 [Private session]
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6 [Open session]
7 THE REGISTRAR: We're in open session, Your Honours. Thank you.
8 JUDGE FLUEGGE: Thank you very much.
9 Mr. Dieckmann at the beginning of today's hearing, you indicated
10 you will not make an opening statement. We are seized of the
11 Dragomir Pecanac motion to admit documents from the bar table. It was
12 filed confidentially. Perhaps because of some contents in it. I take it
13 that number 8 on this list can't be used and you are withdrawing the
14 admission of this specific document.
15 All others are still on your list to be admitted. Is that
16 correct?
17 MR. DIECKMANN: Yes, Your Honours. With your leave, I'm prepared
18 to make some submissions on this issue.
19 JUDGE FLUEGGE: Yes, please, you have the floor.
20 MR. DIECKMANN: Thank you very much.
21 I have prepared some copies for translators, just a short
22 submission, but ... could help. Thank you.
23 JUDGE FLUEGGE: Is this for the interpreters?
24 MR. DIECKMANN: Translators. Yes.
25 JUDGE FLUEGGE: And the court reporter.
Page 76
1 MR. DIECKMANN: Yes.
2 JUDGE FLUEGGE: To have it clear on the record and to have a
3 better understanding, will this be a kind of opening statement or will it
4 be an explanation why this specific witness and possible statement of the
5 witness is withdrawn?
6 MR. DIECKMANN: Exactly, Your Honours. It's just related to this
7 specific issue.
8 JUDGE FLUEGGE: Thank you.
9 MR. DIECKMANN: As a kind of housekeeping matters.
10 THE INTERPRETER: The interpreters have got the text. Thank you.
11 JUDGE FLUEGGE: Thank you.
12 Did the court reporter get one? No.
13 Just wait a minute, please, Mr. Dieckmann.
14 Now, you may continue.
15 MR. DIECKMANN: Thank you very much, Your Honours.
16 Your Honours, the Defence would like to make an oral amendment to
17 the 65 ter list filed yesterday and to the bar table motion. And if we
18 could go briefly into private session for this reason.
19 JUDGE FLUEGGE: Private.
20 [Private session]
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16 [Open session]
17 THE REGISTRAR: We're in open session, Your Honours. Thank you.
18 JUDGE FLUEGGE: Mr. Dieckmann.
19 MR. DIECKMANN: Thank you.
20 Therefore, Your Honours, the Defence has put its case before you
21 in the form of the bar table submission of yesterday and requests all
22 documents, when withdrawing 65 ter number 8 as discussed. If you would
23 like further submissions on the relevance or reliability of documents
24 tendered, the Defence is happy to make oral or even written submission to
25 the Chamber. Otherwise, pending decision of the bar table motion, the
Page 80
1 Defence rests its case.
2 Thank you very much, Your Honours.
3 [Trial Chamber confers]
4 JUDGE FLUEGGE: Mr. Dieckmann, there's no need for further
5 explanation why these documents should be admitted. You have set out the
6 reasons in your bar table motion, and the Chamber will receive all except
7 number 8, all documents listed in your bar table motion, into evidence.
8 We ask the Court Officer to assign document exhibit numbers by
9 meanings of an internal memorandum to save some time.
10 So we have now everything in evidence.
11 We -- I'm noting that we don't have a witness. We don't have
12 anymore evidence to be tendered. The remaining thing is closing
13 argument. Looking at the clock, we can say the Defence case is closed
14 but you will have, of course, the opportunity to submit your closing
15 arguments. I would suggest to do that tomorrow morning at 9.00.
16 You requested two hours. In light of your submission pursuant to
17 Rule 98 bis, I think it should be appropriate to have one hour. If that
18 would be in agreement with your ...
19 MR. DIECKMANN: Your Honours, we are in Your Honours' hands, and
20 we will be fine to do it tomorrow at 9.00. We are grateful to have this
21 time to prepare for tomorrow, and I will do my utmost to be precise and
22 understandable in one hour.
23 Thank you very much.
24 JUDGE FLUEGGE: Thank you very much too. And I would like to
25 express my appreciation for the -- for what the Defence has done to make
Page 81
1 sure that we have an expeditious trial; nevertheless a fair trial.
2 Thank you very much for that.
3 Perhaps the accused is able to attend tomorrow, although I -- in
4 this statement of the medical unit of the UNDU, it was said:
5 "Including today, I assess that he will require a two-day absence
6 before he should be fit to attend court once more."
7 So that is up to the development or the approval of his status.
8 We will see what happens. We have the waiver. We can proceed in his
9 absence but it would, of course, be appreciated if he could have the
10 opportunity to take part.
11 Thank you very much. This concludes today's hearing.
12 We adjourn, and resume tomorrow morning at 9.00 in this
13 courtroom.
14 --- Whereupon the hearing adjourned at 1.44 p.m.,
15 to be reconvened on Thursday, the 1st day of
16 December, 2011, at 9.00 a.m.
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