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1 THE INTERNATIONAL CRIMINAL TRIBUNAL Case No. IT-96-22-PT

2 FOR THE FORMER YUGOSLAVIA IN THE TRIAL CHAMBER

3 Friday, 31st May 1996

4 Before: JUDGE JORDA (The Presiding Judge) JUDGE ODIO BENITO

5 JUDGE RIAD

6 THE PROSECUTOR OF THE TRIBUNAL -v- DRAZEN ERDEMOVIC

7 MR. ERIC OSTBERG and MR. MARK HARMON appeared on behalf of

8 the Office of the Prosecutor

9 MR. JOVAN BABIC appeared on behalf of the Defence

10 (Open Session) (9.00 a.m.)

11 THE PRESIDING JUDGE [Original in French]: Turning to the Registrar,

12 first, I would like to be sure that the interpretation is going

13 through and that everybody is hearing. Does everybody hear me?

14 Prosecution? Registrar? Mr. Babic? The accused? Do you hear?

15 THE ACCUSED ERDEMOVIC [Original in Serbo-Croat]: Yes.

16 THE PRESIDING JUDGE: Turning to the Registrar, would you please call

17 the case on our agenda this morning?

18 THE REGISTRAR [Original in French]: This is case IT-96-22-PT, the

19 Prosecutor of this Tribunal against Drazen Erdemovic.

20 THE PRESIDING JUDGE: Thank you, Registrar. For this hearing we have

21 the initial appearance. Pursuant to Rule 62, I would like to ask,

22 first of all, who is representing Office of the Prosecution?

23 MR. OSTBERG: I am Eric Ostberg; I appear this morning with my learned

24 friend Mr. Mark Harmon.

25 THE PRESIDING JUDGE: The Defence?

Page 18

1 MR. BABIC [Original in Serbo-Croat]: The Defence is represented by

2 Jovan Babic, a solicitor from Yugoslavia.

3 THE PRESIDING JUDGE: Thank you. You may be seated. The accused, would

4 you rise, please, and state your identity? Mr. Erdemovic, date of

5 your birth, your nationality, the place of your birth and where you

6 are currently residing or where you were currently residing before

7 you were transferred to the Tribunal.

8 THE ACCUSED ERDEMOVIC: My name is Drazen Erdemovic. I was born in

9 Tuzla in 1971. I am a Croat by nationality. Before coming to The

10 Hague, I was an inhabitant of the Republika Srpska.

11 THE PRESIDING JUDGE: You may be seated. This initial hearing is based

12 on the rules and our statutes, specifically Articles 20 and 21 of the

13 Statute of the Tribunal, 21(B) devoted the rights of the accused and

14 62, having the rules of procedure and evidence, which provides that

15 as soon as the accused has had the indictment confirmed by the

16 confirming judge, the accused must be presented to a Trial Chamber

17 which is composed of judges who did not confirm the indictment. First

18 of all, I would like to turn to Mr. Babic: Mr. Babic, have you

19 received a copy of the indictment in a language which you understand

20 and which, of course, the accused understands?

21 MR. BABIC: Yes, your Honour. We have received the text of the

22 indictment in Serbo-Croatian and both the accused and myself have

23 understood it.

24 THE PRESIDING JUDGE: Please remain standing. I would like to ask you

25 another question. Have you deliberated a long time about the contents

Page 19

1 of this indictment with the accused and explained what defence

2 strategy can be used, which you are going to use with him?

3 MR. BABIC: With my client, I spent some time, several hours, studying

4 the indictment and studying his rights according to the Statute and

5 Rules of the Tribunal. I think that he had enough time to comprehend

6 what he is charged with by this indictment and to understand his

7 rights on that basis.

8 THE PRESIDING JUDGE: Thank you, Mr. Babic. You may be seated. Mr.

9 Erdemovic, would you please rise? You have heard what you your

10 counsel has just said. On behalf of my colleagues and on behalf of

11 the International Tribunal, I would like to ask you the same

12 question, the one that I asked your attorney: Have you read the

13 indictment, have you had the opportunity, have you had the time, to

14 speak about it with Mr. Babic? Have the facts in that indictment been

15 presented to you, have they been presented to you in a language which

16 you understand, that is, Serbo-Croat?

17 THE ACCUSED ERDEMOVIC: Yes, your Honour. Yes.

18 THE PRESIDING JUDGE: Were you reminded as well that before this

19 international court you could be defended equitably and in public? Do

20 you understand the scope of these terms?

21 THE ACCUSED ERDEMOVIC: Your Honour, allow me to explain. Before the

22 indictment was issued against me

23 THE PRESIDING JUDGE: Excuse me, Mr. Erdemovic, for the moment, like

24 everybody in this Tribunal, I am following rules which are the Rules

25 of our Statute, the Rules of the International Tribunal. This is a

Page 20

1 procedure which is applied for all accused. You have been accused

2 before this Tribunal. I would like to be sure about a certain number

3 of conditions. It is self-evident the Tribunal will listen to any

4 statement that you wish to make and you will have the opportunity to

5 make them at the point when the Tribunal orders you to do so. For the

6 moment you may be seated, Mr. Erdemovic. I would like now, pursuant

7 to the Rules of Procedure and Evidence, to ask the Registrar to read

8 the indictment.

9 THE REGISTRAR: The Prosecutor of the Trial Chamber against Drazen

10 Erdemovic. Indictment. The Prosecutor of the International Criminal

11 Tribunal for the former Yugoslavia, pursuant to his authority under

12 Article 18 of the Statute of the Tribunal charges: Drazen Erdemovic

13 with a Crime Against Humanity or, alternatively, a Violation of the

14 Laws or Customs of War, as set forth below: On 16th April 1993, the

15 Security Council of the United Nations, acting pursuant to Chapter

16 VII of the United Nations Charter, adopted resolution 819, in which

17 it demanded that all parties to the conflict in the Republic of

18 Bosnia and Herzegovina treat Srebrenica and its surroundings as a

19 safe area which should be free from any armed attack or any other

20 hostile act. Resolution 819 was reaffirmed by resolution 824 on 6th

21 May 1993 and by resolution 836 on 4th June 1993. On or about 6th July

22 1995, the Bosnian Serb army commenced an attack on the UN "safe area"

23 of Srebrenica. This attack continued through until 11th July 1995,

24 when the first units of the Bosnian Serb army entered Srebrenica.

25 Thousands of Bosnian Muslim civilians who remained in Srebrenica

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1 during this attack fled to the UN compound in Potocari and sought

2 refuge in and around the compound. Between 11th and 13th July 1995,

3 Bosnian Serb military personnel summarily executed an unknown number

4 of Bosnian Muslims in Potocari and Srebrenica. Between 12th and 13th

5 July 1995, the Bosnian Muslim men, women and children who had sought

6 refuge in and around the UN compound in Potocari were placed on buses

7 and trucks under the control of Bosnian Serb military personnel and

8 police and transported out of the Srebrenica enclave. Before boarding

9 these buses and trucks, Bosnian Muslim men were separated from

10 Bosnian Muslim women and children and were transported to various

11 collection centres around Srebrenica. A second group of approximately

12 15,000 Bosnian Muslim men, with some women and children, fled

13 Srebrenica on 11th July 1995 through the woods in a large column in

14 the direction of Tuzla. A large number of the Bosnian Muslim men who

15 fled in this column were captured by or surrendered to Bosnian Serb

16 army or police personnel. Thousands of Bosnian Muslim men who had

17 been either separated from women and children in Potocari or who had

18 been captured by or surrendered to Bosnian Serb military or police

19 personnel were sent to different collection sites outside of

20 Srebrenica including, but not limited to, a hangar in Bratunac, a

21 soccer field in Nova Kasaba, a warehouse in Kravica, the primary

22 school and gymnasium of "Veljko Lukic-Kurjak" in Grbavci, Zvornik

23 municipality and diverse fields and meadows along the Bratunac-Milici

24 road. Between 13th July 1995 and approximately 22nd July 1995,

25 thousands of Bosnian Muslim men were summarily executed by members of

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1 the Bosnian Serb army and Bosnian Serb police at diverse locations

2 including, but not limited to, a warehouse at Kravica, a meadow and a

3 dam near Lazete and diverse other locations. On or about 16th July

4 1995, Drazen Erdemovic other members of the 10th Sabotage Detachment

5 of the Bosnian Serb army were ordered to a collective farm near

6 Pilica. The farm is located northwest of Zvornik in the Zvornik

7 Municipality. On or about 16th July 1995, Drazen Erdemovic and other

8 members of his unit were informed that bus loads of Bosnian Muslim

9 civilian men from Srebrenica, who had surrendered to Bosnian Serb

10 military or police personnel, would be arriving throughout the day at

11 this collective farm. On or about 16th July 1995, buses containing

12 Bosnian Muslim men arrived at the collective form in Pilica. Each bus

13 was full of Bosnian Muslim men, ranging from approximately 17-60

14 years of age. After each bus arrived at the farm, the Bosnian Muslim

15 men were removed in groups of about 10, escorted by members of the

16 10th Sabotage Detachment to a field adjacent to farm buildings and

17 lined up in a row with their backs facing Drazen Erdemovic and

18 members of his unit. On or about 16th July 1995, Drazen Erdemovic did

19 shoot and kill and did participate with other members of his unit and

20 soldiers from another brigade in the shooting and killing of unarmed

21 Bosnian Muslim men at the Pilica collective farm. These summary

22 executions resulted in the deaths of hundreds of Bosnian Muslim male

23 civilians. The Accused. Drazen Erdemovic was born on 25th November

24 1971 in the municipality of Tuzla. He was a soldier in the 10th

25 Sabotage Detachment of the Bosnian Serb army. He is currently in

Page 23

1 custody in the UN detention facility in The Hague. General

2 allegations. At all relevant times to this indictment, a state of

3 armed conflict and partial occupation existed in the Republic of

4 Bosnia and Herzegovina in the territory of the former Yugoslavia.

5 Drazen Erdemovic is individually responsible for the crime alleged

6 against him in this indictment pursuant to Article 7(1) of the

7 Statute of the Tribunal. Individual criminal responsibility includes

8 committing, planning, instigating, ordering or otherwise aiding and

9 abetting in the planning, preparation or execution of any crimes

10 referred to in Articles 3 and 5 of the Statute of the Tribunal.

11 Counts 1 and 2 (Crime Against Humanity) (Violation of the Laws or

12 Customs of War). By his acts in relation to the events described in

13 paragraph 12, Drazen Erdemovic committed: Count 1: A Crime Against

14 Humanity punishable under Article 5(a) (murder) of the Statute of the

15 Tribunal. Alternatively, count 2: A violation of the Laws or Customs

16 of War punishable under Article 3 of the Statute of the Tribunal and

17 recognised by Article 3(1)(a) (murder) of the Geneva Conventions.

18 Signed, Richard Goldstone, Prosecutor of this Tribunal, 22nd May

19 1996.

20 THE PRESIDING JUDGE: Thank you, Registrar. Mr. Erdemovic, would you

21 rise, please? According to what you said before, you understood what

22 is contained in this indictment as well as the charges against you,

23 those charges which the Prosecution has made against you. Have you

24 spoken about these charges with your counsel, Mr. Babic? I am asking

25 you a question now.

Page 24

1 THE ACCUSED ERDEMOVIC: Yes.

2 THE PRESIDING JUDGE: Are you prepared to plead, given the fact that

3 the Tribunal would like to recall to you that you can plead either

4 guilty or not guilty? This is the procedure which was adopted in this

5 Tribunal with it being understood, of course, that the consequences

6 are not the same. I will explain them to you. If you plead not

7 guilty, you are entitled to a trial during which, of course, with

8 your lawyer you will contest the charges and the allegations and the

9 charges presented against you by the Prosecutor, as I will remind

10 you. Alternatively, either one or the other violations, crime against

11 humanity or war crime, violation of laws or customs of war. If you

12 plead guilty, the trial will continue but completely differently,

13 which I am sure you understand but which I have to explain to you. At

14 that point you will have the opportunity during another hearing at a

15 date which we will set at that point in agreement with everybody, you

16 will plead guilty but you will plead under other circumstances, that

17 is, that there were attenuating circumstances, mitigating

18 circumstances, or aggravating circumstances. Then there will be a

19 discussion between your attorney and the Prosecution which will not

20 be same. Having explained this to you, the Tribunal must now ask you

21 whether you are prepared to plead and do you plead guilty or not

22 guilty?

23 THE ACCUSED ERDEMOVIC: Your Honour, I have told my counsel that I

24 plead guilty.

25 THE PRESIDING JUDGE: If you plead guilty, I must also ask you another

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1 question. You heard that in the indictment which was drafted by the

2 Office of the Prosecution against you, it provides for a charge which

3 may be one or the other, that either a crime against humanity or a

4 violation of the laws or customs of war. The text of our Statute

5 obliges me to ask you whether you are pleading guilty on one of the

6 charges, that is, there are acts, they were read to you, the Tribunal

7 understands that you accept these facts and that they have been

8 classified a certain way legally. This is part of international law.

9 It is a bit difficult for you, but I will try to explain it to you in

10 a more simple fashion, that is, there are acts and these are the acts

11 which you have just recognised that, yes, you were at Srebrenica at

12 such and such a moment. I think that the Prosecutor will make things

13 very clear for us. The Prosecutor classifies them, which means that

14 it determines a certain number of conditions from which a criminal

15 violation has been charged. At the stage that we are now in these

16 proceedings, which is at the beginning, the proceedings against you,

17 Mr. Erdemovic, given the facts as they are today, that is, the fact

18 that you have recognised what happened, that you were present, the

19 various acts could either be classified as a crime against humanity

20 or what we call violations of the laws or customs of war. Having said

21 this, if there had been a trial, after the Tribunal would decide

22 what, in fact, you were guilty of or not guilty of. In this case,

23 since you have just said that you are pleading guilty, I must ask you

24 if you are pleading guilty to the crime against humanity, that is,

25 the version of the facts which for the Prosecutor would be a crime

Page 26

1 against humanity, or if it is a violation of the laws or customs of

2 war. I suppose that you have spoken about this with your attorney?

3 Mr. Erdemovic, could you answer us on that point which is an

4 important one?

5 THE ACCUSED ERDEMOVIC: I plead guilty for point one, crime against

6 humanity.

7 THE PRESIDING JUDGE: You may be seated for now, Mr. Erdemovic. The

8 Tribunal is now noting what you have said. It will have the

9 opportunity to ask you later on about other questions to make sure

10 that this has been an honest plea which has been entered. Now I am

11 turning to the Office of the Prosecution, noting the fact that what

12 has been said has just been recorded in the records of this hearing

13 by the Registrar, therefore, Mr. Erdemovic is pleading guilty to the

14 count, crime against humanity. I believe that we will most likely

15 reject the other count, that is, violation of the laws or customs of

16 war. But, before doing so, I would like to turn to the Office of the

17 Prosecution and ask whether it would like to explain the acts, what

18 are the facts of which Mr. Erdemovic is being accused and what you

19 are accusing him of.

20 MR. OSTBERG: Thank you. Yes, your Honour. We have just heard through

21 the reading of the indictment by the Registrar the facts behind the

22 indictment. I would just shortly summarise them and using the words I

23 used when we the other day had the deferral hearing before another

24 Trial Chamber: Drazen Erdemovic present here in the courtroom today

25 was a soldier in the 10th Sabotage Detachment of what was then the

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1 Bosnian-Serb army. This unit and soldiers from another brigade of the

2 same army were ordered to this collective farm, which we just heard

3 of and by the name of Pilica. There he was ordered to go to receive

4 bus loads of Muslim civilian men who had surrendered or had been

5 apprehended fleeing from Srebrenica by military or police personnel.

6 They were brought by these buses to this remote farm. The date was

7 16th July, 1995. The soldiers ordered to this farm were given the

8 task to summarily execute those civilian men who were brought on the

9 buses. These executions at the farm resulted, as we heard in the

10 indictments, in the death of hundreds of Muslim men. Drazen Erdemovic

11 was a member of this squad who had the task to execute the people

12 and, indeed, he did do what he was tasked to do, and took part in the

13 execution of these people which we have no exact figure of, but we

14 are talking about hundreds of Muslim men. These, your Honours, are

15 the facts behind the indictment now put into two different counts.

16 From the point of view of the Prosecutor, of course, we accept the

17 plea made today by Erdemovic. Thank you, your Honour.

18 THE PRESIDING JUDGE: Thank you, Mr. Ostberg. Mr. Erdemovic, would you

19 rise, please? You heard the version of the facts which the Prosecutor

20 has just stated. Do you agree with what he said, that you were

21 present on the premises, the way the buses arrived and then the facts

22 which resulted in the deaths of this still undetermined number of

23 civilians? Do you agree with what the Prosecution has just stated?

24 THE ACCUSED ERDEMOVIC: I agree with everything that the Prosecutor

25 has said and I have more to add.

Page 28

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

13 English transcripts. Pages 28 to 31.

Page 32

1 THE PRESIDING JUDGE: Do you want to add something? You may do this

2 before the Tribunal. You know that from this point on I will explain

3 to you that there will be another hearing which will the hearing to

4 determine the penalty which may be applied to you. What would you

5 like to add, Mr. Erdemovic?

6 THE ACCUSED ERDEMOVIC: Your Honour, I had to do this. If I had

7 refused, I would have been killed together with the victims. When I

8 refused, they told me: "If you are sorry for them, stand up, line up

9 with them and we will kill you too". I am not sorry for myself but

10 for my family my wife and son who then had nine months, and I could

11 not refuse because then they would have killed me. That is all I wish

12 to add.

13 THE PRESIDING JUDGE: All right, Mr. Erdemovic. Try to get a hold of

14 yourself. Sit down for a moment. I will ask you some other questions.

15 Mr. Erdemovic, would you rise, please, again? The Tribunal must be

16 sure that you know what you are doing because you know that pleading

17 guilty or not guilty does not have the same consequences. You are

18 before a Tribunal and the Tribunal must determine a penalty for your

19 behaviour. At the proper time it will do so and, of course, we will

20 hear all the parties. We will attempt to organise that hearing in

21 order to see at the end of this one how we are going to organise the

22 second one where you can explain yourself, but you cannot go back on

23 the facts to which you have pleaded guilty. This is finished now and

24 this is something that the Tribunal wants to be sure you really

25 understand and that you your plea is sincere. You are represented by

Page 33

1 Mr. Babic. Are you satisfied with his representation, with your

2 counsel? Have you been able to discuss things with your attorney

3 under the most desirable conditions?

4 THE ACCUSED ERDEMOVIC: Your Honour, I am satisfied with the

5 indictment.

6 THE PRESIDING JUDGE: Yes. This is not the indictment now I am talking

7 about. I want to know whether through the contacts that you have had,

8 were you able to have counsel of your choice? If I ask you this

9 question it is because the Tribunal had to appoint counsel that was

10 not on the list of counsel which the Registrar maintains. You wish to

11 have Mr. Babic and the Tribunal agreed to your request. Therefore,

12 you spoke about everything you would use for your defence. Therefore,

13 from this point on you have given up the right to a trial to

14 determine whether or not you are guilty. This must be clear to you,

15 clear between you and the Tribunal. At the same time, do you

16 understand the penalties which will be imposed on you, if they are,

17 which is something that the Tribunal will determine? Has Mr. Babic

18 explained what these penalties consist of? I believe Mr. Babic did

19 so, but I would like to remind you that the crimes that this Tribunal

20 is charged with punishing can be punished by a sentence of life

21 imprisonment. In this respect, I would like the Registrar to read the

22 relevant Articles of the Statute and of the Rules dealing with the

23 penalties. You may sit down now. This is a bit long, what has to be

24 read. Turning to the Registrar, could you read so that the accused

25 really understands all of our rules and procedures having to do with

Page 34

1 penalties, 24 of the Statute and 101 in the Rules.

2 THE REGISTRAR: Article 24 of the Statute of the International

3 Tribunal, Penalties, (1): "The penalty imposed by the Trial Chamber

4 shall be limited to imprisonment. In determining the terms of

5 imprisonment, the Trial Chambers shall have recourse to the general

6 practice regarding prison sentences in the courts of the former

7 Yugoslavia". Paragraph 2: "In imposing the sentences, the Trial

8 Chambers should take into account such factors as the gravity of

9 the offence and the individual circumstances of the convicted

10 person". Paragraph 3: "In addition to imprisonment, the Trial

11 Chambers may order the return of any property and proceeds acquired

12 by criminal conduct, including by means of duress to their rightful

13 owners". Rule 101 of the Rules of Procedure and Evidence, (A): "(A)

14 Any convicted person may be sentenced to life imprisonment for a term

15 up to and including the remainder of his life; (B) In determining the

16 sentence, the Trial Chamber shall take into account the factors

17 mentioned in Article 24(2) of the Statute, as well as such factors as

18 (i) any aggravating; (ii) any mitigating circumstance, including the

19 substantial co-operation with the Prosecution by the convicted person

20 before or after conviction; (iii) the general practice regarding

21 prison sentences in the courts of the former Yugoslavia; (iv) the

22 extent to which any penalty imposed by a court of any state on the

23 convicted person for the same act has already been served as referred

24 to in Article 10(3) of the Statute. (C) The Trial Chamber shall

25 indicate whether multiple sentences shall be served consecutively

Page 35

1 or concurrently; (D) the sentence shall be pronounced in public and

2 in the presence of the convicted person, subject to sub-rule 102(B).

3 (E) credit shall be given to the convicted person for the period, if

4 any, during which the convicted person was detained in custody

5 pending his surrender to the Tribunal or pending trial or appeal".

6 THE PRESIDING JUDGE: Mr. Erdemovic, would you rise again? On behalf

7 of my colleagues and on behalf the Tribunal, I would like to ask you

8 before you decided to plead guilty or not guilty whether you were

9 threatened or promised anything in order to orientate you in one

10 direction rather than another? Were you told, for example, you must

11 plead guilty, or you have to do this, you must do that? This is a

12 question I must ask you.

13 THE ACCUSED ERDEMOVIC: No, no one threatened me.

14 THE PRESIDING JUDGE: In these conditions then, I believe you can be

15 seated again, Mr. Erdemovic. The Trial Chamber notes definitively the

16 plea of guilty by Mr. Erdemovic and asks that it be placed on the

17 record of this hearing. The Trial Chamber also decides that for the

18 follow-up of this hearing to work only with count 1, and to reject

19 and ask the Prosecution whether it has any objection in giving up the

20 second count?

21 MR. OSTBERG: No, none, your Honour.

22 THE PRESIDING JUDGE: Mr. Babic, do you have any objection to giving

23 up the second count since it was an alternative? MR. BABIC: No, I have no objection.

24 THE PRESIDING JUDGE: Then we now have the following situation and I

25 am saying this so that the accused understands fully what is being

Page 36

1 said. The accused Erdemovic has just pleaded guilty to count 1, crime

2 against humanity. Therefore, at this point the Tribunal must

3 determine the appropriate sentence. Of course, the trial is not in a

4 position to pronounce this sentence since it does not have a great

5 many elements that it needs, elements which no longer have to do with

6 guilt but have to do with the personality of Erdemovic and also of

7 the environment and the context of motivation which was present when

8 the acts were committed as related by the Prosecution in the

9 indictment. Mr. Registrar, would you now read us Rule 100 which will

10 determine how we will set up the hearing, which will take us to the

11 hearing.

12 THE REGISTRAR: Rule 100, pre-sentencing procedure: "If a Trial

13 Chamber finds the accused guilty of a crime, the Prosecutor and the

14 Defence may submit any relevant information that may assist the Trial

15 Chamber in determining an appropriate sentence".

16 THE PRESIDING JUDGE: Thank you, Registrar. I would now like to

17 consult very briefly with my colleagues at the Bench. (The Judges conferred)

18 THE PRESIDING JUDGE: The Tribunal has deliberated and has taken the

19 decision, first, having to do with the organisation of the hearing

20 which will lead to a sentence. The Tribunal has just decided that it

21 will ask for a psychiatric evaluation of Mr. Erdemovic without

22 prejudice, of course, to the requests which the Office of the

23 Prosecutor might make or which the Defence might make. But, for the

24 moment, it will be an evaluation which the Tribunal has ordered.

25 Registrar, are you capable or in a position to have the accused

Page 37

1 examined by an authorised physician?

2 THE REGISTRAR: Your Honour, we can have a psychiatric evaluation

3 carried out quickly, if the Tribunal so wishes. I believe that a

4 reasonable time period would be, say, three weeks.

5 THE PRESIDING JUDGE: The Tribunal has now ordered a psychiatric

6 evaluation that can be given to two practitioners, a psychiatrist and

7 a psychologist. Registrar, would you note in the Minutes of this

8 hearing that this request has been made and that it will appear in an

9 order and ask the Registrar to draft this order as quickly as

10 possible since Mr. Erdemovic must be examined, and for the

11 organisation of the hearing which will lead to the sentence. During

12 the hearing the Tribunal must have all information about everything

13 that Mr. Erdemovic wants to say about the facts which led to his

14 indictment, the circumstances surrounding it, the motivation

15 particularly, and as well perhaps to call in witnesses the Prosecutor

16 must be able to bring in any information which is relevant. I would

17 first like to turn to the Defence and ask Mr. Babic whether he

18 intends to request that the Tribunal do this or that or to call in

19 any number of witnesses?

20 MR. BABIC: Your Honour, I intend to make two requests and proposals,

21 two motions. One will be incomplete because it pertains to a witness

22 of whom my client said that on one occasion during certain

23 operations, (redacted)

24 (redacted)

25 (redacted). This would be very important from

Page 38

1 the standpoint of the elucidation of the character of Mr. Erdemovic.

2 Mr. Erdemovic only knows the witness's name (redacted)

3 (redacted). That is my first motion. I take upon

4 myself the obligation, but since our communication with

5 Bosnia-Herzegovina is very difficult and it is highly problematic,

6 whether the authorities of Bosnia will fulfil a request of this kind

7 coming from me as the Defence of the accused, I would like to ask if

8 the court could through the police authorities of Bosnia-Herzegovina

9 trace this witness and call him to a witness at this trial. Secondly,

10 I fully agree with the decision of the court for psychological and

11 psychiatric examination of Mr. Erdemovic. These will certainly be

12 highly qualified experts from the Netherlands. I have absolutely no

13 reservations regarding the quality of the findings of the experts

14 from the Netherlands. However, we all know what happened in

15 Yugoslavia. One of the consequences of all that has happened is that

16 there are many young people who have suffered very grave

17 psychological traumas and who simply cannot readjust to the society

18 in which they live. In view of such a situation, psychologists and

19 psychiatrists in Yugoslavia were faced with this challenge of

20 studying the consequences in depth, not only theoretically but also

21 in practice at various trials of individuals, so that a practice has

22 developed, a certain amount of scientific knowledge has been gained,

23 regarding the condition of such persons in Yugoslavia. So I think

24 that it would be very useful for this court if the expert opinion

25 could include two experts from Yugoslavia. They are court experts

Page 39

1 whom I would propose. They are university professors and together

2 with the Dutch physicians they could jointly give an opinion on the

3 condition and state of mind of Mr. Erdemovic.

4 THE PRESIDING JUDGE: Turning to the Prosecution, you have heard two

5 requests from Mr. Babic. The Tribunal has decided to order a

6 psychiatric evaluation. I am asking the question about whether in the

7 request for the evaluation Mr. Babic, if necessary, when both parties

8 are present have Mr. Erdemovic examined. I would like to know what

9 your opinion is about this, and having to do specially with the first

10 point, that is, hearing a witness (redacted) in a territory which,

11 apparently, is difficult to gain access in order to find him. This

12 would take a certain amount of time and we would like to move quickly

13 in order to move to the hearing with the sentence. What is your

14 opinion, please, about the two proposals of the Defence?

15 MR. HARMON: Your Honour, we believe that both proposals put forward

16 to the court by Mr. Babic are reasonable and we would support each of

17 those requests.

18 THE PRESIDING JUDGE: In so far as the Prosecution and the Defence

19 agree, the evaluation of the Tribunal, I am now turning to the

20 Registrar, could have added to the list, not 10 people perhaps, but I

21 would like us to choose two experts that the Tribunal would

22 designate, a psychiatrist and a psychologist, an expert which is

23 chosen from a list which Mr. Babic might give to the Registrar. We

24 have the idea of working that way.

25 MR. BABIC: I am afraid about the interference of competences between

Page 40

1 psychologists and psychiatrists because each have their own

2 THE PRESIDING JUDGE: We are all afraid of that, Mr. Babic! I do not

3 think that we can today in such significant and important things. You

4 understand that judges are not (indecipherable) before they pronounce

5 sentences. They have to do the best they can. First, I think there is

6 a list of experts in the Netherlands, in my country as well, in my

7 colleagues' countries and in your country too. So we have to have

8 some trust. Paragraphs the important point is knowing whether we can

9 give you the satisfaction that you want, that is that you can draft a

10 list quickly and indicate to the Registrar the name of an expert,

11 whether it is a psychiatrist or a psychologist, who could be listed

12 to the two experts whom the Trial Chamber will have appointed. The

13 Tribunal wants to have those two experts, the psychiatrist and

14 psychologist, and could you could add names to that. The Prosecutor

15 has no objections to that. Then we will move that way. The second

16 question is to do everything we can in order to locate this (redacted)

17 (redacted). I do not know quite what should be done. Perhaps the

18 Prosecutor knows what to do or the Registrar but, in any case, we

19 must see one another. Do you have any witnesses that you want to

20 call, Prosecution?

21 MR. HARMON: Your Honour, we are in the process at this time of

22 formulating what witnesses we will present to the court. We are not

23 in a position at the moment to advise the court, but we do intend to

24 call some witnesses. We cannot identify them at the moment.

25 THE PRESIDING JUDGE: Mr. Babic, do you have any other witnesses? Do

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1 you have witnesses?

2 MR. BABIC: No.

3 THE PRESIDING JUDGE: The Tribunal does have a concern. This is the

4 first time that this is going to happen, the possible, I repeat

5 possible, sentencing. You understand that the Tribunal must base

6 itself on the penalties that were in effect in the former Yugoslavia.

7 So perhaps this is something different to what we are used to, but

8 the Tribunal would like to have information, a great part of which it

9 already has. I would like to make things very clear between the

10 Defence and the Prosecution, that as quickly as possible the Defence

11 and the Prosecution should draft a short memo about what happened,

12 specifically with the practices. The texts speak about the practices

13 used in the former Yugoslavia. Now since this is not something which

14 we know, there are penalties, there are codes and then there is the

15 practice, the way these penalties were carried out, and since this

16 cannot be given to one of the parties without affecting the other, I

17 would suggest that each of the parties draft a short memorandum. The

18 Tribunal, of course, since the Tribunal has been established, it has

19 already done this kind of research, but it does has to be done now

20 again in a more pragmatic manner. Before closing this hearing and

21 setting the hearing for the sentences, I would like to first turn to

22 the Prosecutor: Do you have a date for the hearing during which the

23 witnesses would be heard, if you do call some, since you said you

24 were going to call some? We have to schedule the number of days

25 necessary. Have you already thought about a schedule? The Tribunal's

Page 42

1 calendar is already filling up and specifically the courtroom. Mr.

2 Ostberg?

3 MR. OSTBERG: Yes, thank you, your Honour. We have been looking into

4 this matter and we are prepared to have these hearings on 8th and 9th

5 July this year.

6 THE PRESIDING JUDGE: 8th and 9th July. Today is 31st May. We have to

7 have the report of the psychiatrist and psychologist, and also we

8 will set a date for receiving their reports. We will receive the

9 briefs and the memorandums having to do with the practices of the

10 penalties. So, 8th and 9th July, would that be all right for Mr.

11 Babic?

12 MR. BABIC: Yes, your Honour. We have already agreed on this date with

13 the Prosecution.

14 THE PRESIDING JUDGE: Everybody agrees on 8th and 9th July. Since we

15 are not really sure that we will have everything finished by 8th and

16 9th July, I would suggest that we have a status conference between

17 the Prosecution and Mr. Babic on 24th June at 10.30. 24th June at

18 10.30. In the meantime, if possible before that, we must have

19 received the report of the psychiatric evaluation. We will do

20 research into trying to locate (redacted). We will organise the

21 hearings of 8th and 9th July and see at that point whether we will be

22 ready by 8th and 9th July. Are there any other questions? Turning to

23 the Prosecution, have you any other comments you wish to make?

24 MR. OSTBERG: Not for the moment, your Honour, thank you.

25 THE PRESIDING JUDGE: Mr. Babic, have you any other comments you would

Page 43

1 like to make?

2 MR. BABIC: No, thank you.

3 THE PRESIDING JUDGE: Therefore, I now turn to my colleagues - this

4 hearing is adjourned. (The hearing is adjourned)