Page 10
1 Tuesday, 10 March 1998
2 (4.30pm)
3 JUDGE CASSESE: Good afternoon. Would the
4 Registrar please call the case?
5 THE REGISTRAR: Case number IT-96-23-I,
6 Prosecutor versus Dragoljub Kunarac.
7 JUDGE CASSESE: Appearances for the
8 Prosecutor, please.
9 MS UERTZ-RETZLAFF: Good afternoon, like
10 yesterday the Prosecution is represented by Mrs Sellers
11 and Hildegard Uertz-Retzlaff.
12 JUDGE CASSESE: Can you hear me?
13 MR KUNARAC: Yes, I can hear.
14 JUDGE CASSESE: Thank you. You may be
15 seated.
16 MR KUNARAC: I can hear.
17 JUDGE CASSESE: Thank you. As you can see,
18 your Defence counsel is not present in court this
19 afternoon and that, we understand, is as a result of a
20 communication received by the Deputy Registrar late
21 this morning. Please be assured, Mr Kunarac, that this
22 Trial Chamber will not take any action today that could
23 in any way adversely affect your rights. But, as the
24 continuation of these proceedings had been agreed to
25 yesterday by everyone present, including your Defence
Page 11
1 counsel, the Trial Chamber thought it only proper to
2 open the proceedings as scheduled.
3 We have received a notification from
4 Mr Prodanovic that he has been called to an urgent
5 meeting with other clients in Belgrade and that he has
6 therefore left The Hague. The Trial Chamber was only
7 informed of this fact 10 minutes to 1 -- 10 to 1
8 today. I wonder whether the Registrar could read out
9 the letter we received from the Registry.
10 THE REGISTRAR: Yes, your Honour:
11 "At approximately 11 o'clock this morning,
12 Mr Pantelic informed my assistant, Eric Frejabue, that
13 Mr Slavisa Prodanovic, counsel for Mr Drago Kunarac and
14 himself had to leave The Hague before the continuation
15 of the initial appearance scheduled to take place at
16 4.30 this afternoon.
17 Mr Pantelic informed us that he and
18 Mr Slavisa Prodanovic had just had a meeting with the
19 Office of the Prosecutor. He also mentioned he was now
20 called for an urgent meeting with his clients in
21 Belgrade and therefore had to leave immediately.
22 He said that the OTP was fully informed of
23 the situation and the Registry could contact them for
24 any additional clarifications. He finally requested
25 the Registry to inform the Trial Chamber of this force
Page 12
1 majeure, as he called it, and said that the Office of
2 the Prosecutor would do the same.
3 In a subsequent telephone conversation an
4 hour later, Mr Pantelic informed my assistant that
5 Mr Slavisa Prodanovic wanted to coordinate the
6 proceedings with his other clients. He would also send
7 an explanatory letter as to the exact circumstances of
8 this sudden departure."
9 JUDGE CASSESE: Thank you. Now, I would
10 like to put on record that the Trial Chamber views the
11 absence of counsel, be that Defence or Prosecution,
12 from a scheduled appearance without leave with grave
13 concern. The Trial Chamber particularly deplores the
14 absence of counsel today, in light of his specific
15 agreement to attend today's proceedings -- actually,
16 yesterday, before we adjourned until this afternoon at
17 4.30, I specifically asked the Defence counsel whether
18 he was agreeable and he said "yes".
19 The proceedings of this matter will have to
20 be adjourned to a later date and this delay is wholly
21 attributable to the absence of Defence counsel.
22 The Trial Chamber expects to receive as a
23 matter of urgency a written -- I say a "written" --
24 explanation and apology from the Defence counsel
25 following which we shall consider whether to exercise
Page 13
1 our powers under Rule 46 of our Rules of Procedure and
2 Evidence, which is a Rule about misconduct of counsel.
3 However, before we set a date for the
4 continuation of the initial appearance, I wonder
5 whether the Prosecution can advise the Trial Chamber
6 whether they were aware of the fact that Defence
7 counsel did not intend to appear today.
8 Maybe they could also tell us their position
9 as regards the plea to the indictment, so I wonder
10 whether the Prosecutor could address these two points.
11 MS UERTZ-RETZLAFF: We very much regret the
12 absence of the Defence counsel. After having been
13 surprised by yesterday's development, we had prepared
14 an oral submission regarding the factual basis for the
15 charge count 41 to which the accused had pleaded
16 guilty. Only after discussion this morning with the
17 Defence, we suddenly were told that they had to leave
18 immediately. We said that there would be the hearing
19 this afternoon and they said they could not attend and
20 that was it. We did, of course, not agree to their not
21 attending here.
22 But, in the light of the discussion with the
23 Defence, we would rather not proceed today and read out
24 our submission on the facts. We suggest an
25 adjournment, but we want to stress that we are very
Page 14
1 much interested in proceeding as soon as possible.
2 JUDGE CASSESE: If I understood you
3 correctly, you are not in a position to set out your
4 position with regard to the plea to the indictment
5 today, but you would rather put it off until our next
6 hearing?
7 MS UERTZ-RETZLAFF: Yes, your Honour.
8 JUDGE CASSESE: Thank you.
9 (Pause).
10 MR KUNARAC: It is a surprise for me, too.
11 I know what happened yesterday from my own side and
12 I also know what happened from the Prosecution side.
13 There have been two steps taken. Do I have the right
14 -- and I see that you have -- this was done in the
15 presence of the media and I see the monitors on, so
16 I assume that this is a public hearing?
17 JUDGE CASSESE: Yes.
18 MR KUNARAC: Has this been broadcast until
19 now?
20 JUDGE CASSESE: Yes.
21 MR KUNARAC: Because I have not seen
22 anything. There was nothing on my monitor.
23 JUDGE CASSESE: It is a public hearing, so
24 everything has been broadcast. Would you like to add
25 anything?
Page 15
1 MR KUNARAC: Personally, after yesterday's
2 move on the part of the Prosecution, I wanted to
3 consult with my counsel and I have tried today -- this
4 morning since 7 o'clock to contact my attorneys, and
5 I was unable to do so and I feel powerless here. But
6 I have a suggestion that I think would be to the
7 benefit of the Prosecution -- and this is all in the
8 interests of the entire truth and I think that all
9 present here -- that we have met here in order to
10 pursue the truth and I want the truth to be found and
11 I want justice to be done and we want to -- I would
12 like to come to the point at which a certain amount of
13 guilt can be ascertained.
14 JUDGE CASSESE: Yes.
15 MR KUNARAC: This is what is necessary.
16 (Pause).
17 JUDGE CASSESE: Mr Kunarac, you have, of
18 course, a right to speak in court, but I would strongly
19 advise you to consult with your counsel, and we, too,
20 are, of course, interested in expediting our
21 proceedings so that you may state your reasons and your
22 position. Therefore, we have just decided that our
23 next hearing will be held in a few days -- on Friday --
24 next Friday, 13 March, at 8.30, and we will ask your
25 counsel -- we will issue an order under contempt powers
Page 16
1 so that your counsel will be present on Friday at
2 8.30. So, I would strongly suggest that you then
3 should, first of all, consult with your counsel before
4 stating your views and your reasons.
5 I wonder whether the Prosecutor is agreeable
6 -- Friday, 13 March, 8.30.
7 MS UERTZ-RETZLAFF: Yes.
8 JUDGE CASSESE: It is 8.30, because at 10
9 another trial is going to take place.
10 MR KUNARAC: Let me tell you -- may I ask you
11 as the President of the Trial Chamber in whom I have
12 unlimited trust -- I think you are the neutral side in
13 this case between me and the Prosecutor -- I ask you to
14 give me an answer to a short question, or maybe any
15 kind of legal adviser, but I would wish that you answer
16 this question for me.
17 JUDGE CASSESE: Let me state that, under our
18 Statute, Article 21, you have a basic right to defend
19 yourself in person, or through legal assistance of your
20 own choosing. You are now choosing to defend yourself
21 in person, or to state your own views, or state your
22 position without consulting with your Defence counsel
23 -- you are aware of that, that you are now going to
24 speak without prior consultation with your Defence
25 counsel?
Page 17
1 MR KUNARAC: I am aware of what I am doing,
2 but I am going to ask -- my counsel left without
3 consulting me, without my approval, without my knowing
4 anything. Is there anybody here at the Tribunal whom
5 I can ask something in clarification? I am not a
6 lawyer, so I have one single question, so we can finish
7 this very quickly.
8 (Pause).
9 JUDGE CASSESE: Mr Kunarac, we do appreciate
10 the predicament in which you have been put by your
11 Defence counsel, who left without telling you, without
12 consulting with you, and you have, of course, a right,
13 a basic right to have some legal advice -- of
14 course, not from the court. We have just been told by
15 the Registrar that a lawyer is available here in the
16 building, and he will be asked to provide legal counsel
17 to you as soon as we adjourn our hearing. So,
18 therefore, rest assured that you will get legal
19 assistance from this attorney, who will come and give
20 you some legal advice and discuss with you legal points
21 relating to your case.
22 But, as I say, we will adjourn now until
23 Friday -- a few days -- this week, 13 March, at 8.30.
24 We will make sure that your counsel will be present
25 here to give you legal assistance. I see that you are
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1 not satisfied. Yes, please.
2 MR KUNARAC: I am not satisfied by the
3 decision, because what is important to me -- I am the
4 only one here who knows the real truth. The
5 Prosecution knows partially the truth and so does my
6 Defence counsel. I am the only one who knows the real
7 truth. I know why I said yesterday that I was guilty
8 of count 41. I also know why the public Prosecutor did
9 drop the count 42 and I think that it was in my
10 interest.
11 Yesterday, the indictment was not read to
12 me. This was done on my request and so maybe the other
13 persons who were present here did not know what was
14 involved, because it was only maybe that the
15 Prosecution and myself who knew the charges here.
16 So, this is in relationship to count 43 --
17 this is in 4.8, where they said that there was no proof
18 for 43. I would like the 4.8 to be read out now,
19 especially the last sentence, or I can read it.
20 JUDGE CASSESE: Could you repeat again?
21 Which particular point of the indictment are you
22 referring to -- are you referring to the indictment?
23 MR KUNARAC: Yes, yes, the indictment, which
24 was given to me, and this is the indictment against me
25 and another seven individuals.
Page 19
1 (Pause).
2 JUDGE CASSESE: We have decided that we will
3 now adjourn until 5.30. Meanwhile, you will be able to
4 get in touch with the lawyer, who will give you legal
5 assistance. When we come back here, we will reconvene
6 for the continuation of this hearing -- you will
7 probably be in a position then to set out your views
8 after getting legal advice from a lawyer, who is in the
9 building. So, we stand adjourned until 5.30 sharp.
10 (4.50pm)
11 (A short break)
12 (5.37pm)
13 JUDGE CASSESE: Before we start, let me say
14 at the outset and remind the defendant, Mr Kunarac,
15 that under our Statute, which I quoted before, Article 21,
16 he has a basic right to defence, but he can conduct his
17 defence by himself. He also has the right to dismiss
18 his present Defence counsel and appoint a new one of
19 his choice. Having said that, I wonder whether
20 Mr Moran, who has been so kind as to come to court,
21 whether he can state the position of the defendant.
22 MR MORAN: Yes. I am Tom Moran. I have met
23 with the defendant for about five or 10 minutes and
24 there are some things he needs to go over with his
25 counsel. He does have some questions about the
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1 procedures and the Rules. I have no reason to believe
2 he wishes to dismiss his counsel. I think he is quite
3 happy with the lawyers he has. I do not know all the
4 facts, or why they did not make their appearance
5 today. I presume there is a good reason and I am sure
6 the court will learn what the reason is at some point.
7 What we would like to ask for at this point is an
8 adjournment so that he can meet with counsel. There
9 are some questions that he has, both as to procedures
10 and as to the effects of various types of pleas.
11 I think that he needs to discuss that with
12 his counsel probably at some length before you continue
13 the initial appearance, your Honour.
14 JUDGE CASSESE: Thank you. Therefore, we
15 can confirm that we adjourn now until next Friday, 13
16 March, at 8.30. The defendant will be, I hope,
17 assisted by his Defence counsel.
18 MR MORAN: Your Honour, I will be here for
19 that appearance -- I will be in The Hague on Friday, so
20 I will show up early, and even if we are not in
21 session, just to make sure there is someone here to
22 represent the defendant.
23 JUDGE CASSESE: Thank you very much. It is
24 very kind of you and we appreciate your cooperation.
25 We now stand adjourned until Friday at 8.30.
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1 (5.40pm)
2 (The hearing adjourned until 8.30 am
3 on Friday, 13th March 1998)
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