Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Thursday, 28 April 2005

2 [Initial Appearance]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.30 p.m.

6 JUDGE BONOMY: Good afternoon, everyone. Would the Registrar

7 please call the case.

8 THE REGISTRAR: Good afternoon, Your Honours. This is case

9 number IT-03-70-I, the Prosecutor versus Nebojsa Pavkovic.

10 JUDGE BONOMY: This afternoon, the Court is convened to conduct

11 the initial appearance of Nebojsa Pavkovic.

12 Mr. Pavkovic, could you stand, please.

13 Can you confirm to me that you can hear the proceedings in your

14 own language and are able to follow what has happened so far.

15 THE ACCUSED: [Interpretation] I can hear everything and I have

16 understood everything.

17 JUDGE BONOMY: Thank you very much. Please be seated.

18 Now, may I take the appearances. For the Prosecutor?

19 MR. HANNIS: Thank you, Your Honour. I'm Thomas Hannis on behalf

20 of the Office of the Prosecutor, I'm assisted by trial attorneys,

21 Christina Moeller and Carolyn Edgerton on my right, and the case manager

22 Susan Grogan.

23 JUDGE BONOMY: Thank you very much and for the accused, Mr.

24 Pavkovic.

25 MS. LOUKAS: Thank you, Your Honour. I can indicate for the

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1 accused, Chrissa Loukas as assigned duty counsel.

2 I'd also indicate, Your Honour, that I was assigned this morning

3 and I'm accompanied by Mr. Aleksic. Mr. Pavkovic has applied for

4 Tribunal legal aid and has sought to have Mr. Aleksic as his assigned

5 counsel. My understanding at this stage is that Mr. Aleksic is not on

6 the list of eligible counsel and in the limited time available, the

7 Registry has not been able to determine eligibility. However, Mr.

8 Pavkovic has requested that Mr. Aleksic be present in court today for the

9 initial appearance and I make an application in that regard.

10 JUDGE BONOMY: Well, Ms. Loukas, I was alerted this morning to

11 the interest that Mr. Aleksic may have in the case and his current

12 involvement in advising the accused, Mr. Pavkovic, and I'm grateful to

13 him for the assistance he has been providing and would encourage him to

14 continue to do that. Meanwhile I recognise his presence in the court.

15 I'm happy to see him here and I'm grateful to you for proposing that he

16 should be here.

17 MS. LOUKAS: Thank you, Your Honour.

18 JUDGE BONOMY: Now, the principal purpose of this hearing is to

19 ascertain the position of the accused at this stage in relation to the

20 charges against him. One thing that he might do is insist that the

21 indictment, which is a very substantial document, is read in full. What

22 is his position, Ms. Loukas, in that regard?

23 MS. LOUKAS: Yes, Your Honour. I can indicate that the Defence

24 waives the reading of the indictment and that has been discussed with Mr.

25 Pavkovic.

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1 JUDGE BONOMY: Thank you very much.

2 Now, Mr. Pavkovic, I have to ask you to stand just briefly once

3 more, please.

4 Can you confirm to me, first of all, for the purposes of the

5 record of these proceedings, your full name.

6 THE ACCUSED: [Interpretation] Mr. President, I am Nebojsa

7 Pavkovic, Colonel General of the army of Yugoslavia, retired.

8 JUDGE BONOMY: What is your date of birth?

9 THE ACCUSED: [Interpretation] Mr. President, I was born in 1946

10 on the 10th of April.

11 JUDGE BONOMY: And can you give me, please, the address at which

12 you were residing immediately before you left to come to The Hague.

13 THE ACCUSED: [Interpretation] Mr. President, my address is

14 Belgrade, the street of Molerova [phoen], number 11.

15 JUDGE BONOMY: Now, Mr. Pavkovic, can I take it that you have

16 seen the indictment in your own language and been able to read it in

17 full?

18 THE ACCUSED: [Interpretation] Mr. President, I have received the

19 indictment. I have read it and I am fully familiarised with it.

20 JUDGE BONOMY: And have you been able to take advice from a

21 lawyer of your choice on the plea, if any, which you should tender at

22 this stage?

23 THE ACCUSED: [Interpretation] Mr. President, I have taken advice

24 from a lawyer, and I have decided on my plea.

25 JUDGE BONOMY: And can I therefore proceed to take your plea from

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1 you now?

2 THE ACCUSED: [Interpretation] Mr. President, yes.

3 JUDGE BONOMY: Mr. Pavkovic, I am going to read certain parts

4 from the indictment, the crucial elements, so that you will be able to

5 tender your plea, and when I come to each of the five counts against you,

6 I will ask you whether you plead guilty or not guilty, and you should

7 answer in respect of each of these charges separately as I come to them.

8 Now, do you understand that?

9 THE ACCUSED: [Interpretation] Mr. President, I understand that

10 fully.

11 JUDGE BONOMY: Now, Mr. Pavkovic, the indictment charges you

12 along with three others, two of whom have appeared before the Tribunal

13 already in the same situation as you do now. That's Vladimir Lazarevic

14 and Sreten Lukic, and one of whom has not appeared, that is Vlastimir

15 Djordjevic. You're charged along with each of them that you are

16 individually responsible for crimes alleged under Articles 3, 5 and 7(1)

17 of the Statute of the Tribunal. It is said that you planned, instigated,

18 ordered, committed or otherwise aided and abetted in the planning,

19 preparation or execution of these crimes.

20 However, by using the word "committed" in the indictment the

21 Prosecutor does not suggest that you physically perpetrated any of the

22 crimes charged personally. "Committing" refers to participation or being

23 part of a joint criminal enterprise as a co-perpetrator. It is said in

24 the indictment that the purpose of the joint criminal enterprise was,

25 among other things, the expulsion of a substantial portion of the Kosovo

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1 Albanian population from the territory of the province of Kosovo in an

2 effort to ensure continued Serbian control over the province.

3 It is said that to fulfil that criminal purpose, each of you

4 acting individually or along with the others, and indeed with other

5 people both it is said known and unknown, that you significantly

6 contributed to the joint criminal enterprise, using the legal and factual

7 powers available to you.

8 It is also stated that the joint criminal enterprise came into

9 existence no later than October 1998 and continued until 20th June 1999,

10 and it is said that the crimes which are alleged in the indictment were

11 committed between the 1st of January and the 20th of June 1999.

12 Now, that's the allegation of direct individual criminal

13 responsibility.

14 There is also an allegation that the crimes set out in Counts 1

15 to 5 were within the object of the joint criminal enterprise, or

16 alternatively, that the crimes set out in counts 3 to 5 were natural and

17 foreseeable consequences of the joint criminal enterprise.

18 Now, separately from these allegations of individual criminal

19 responsibility, there is an allegation which is made against you and the

20 other three co-accused, that while holding positions of superior

21 authority you were responsible for the acts or omissions of your

22 subordinates. Now, that allegation is made in terms of Article 7(3) of

23 the Statute of the Tribunal. A superior is responsible under that

24 Article for the criminal acts of his subordinates if he knew or had

25 reason to know that they were about to commit these acts or had done so

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1 and failed to take necessary and reasonable measures to prevent the acts

2 or to punish the perpetrators.

3 So these are the two separate bases on which it is said you are

4 criminally liable.

5 I turn now to the particular counts against you, numbers 1 to 5.

6 The first of these is that by the acts and omissions set out in

7 paragraphs 21 to 29 of the indictment, you along with your co-accused,

8 other named persons in the indictment, and others known and unknown,

9 planned, instigated, ordered, committed or otherwise aided and abetted

10 the planning, preparation or execution of Count 1, deportation, a crime

11 against humanity, punishable under Article 5(d) of the Statute of the

12 Tribunal. To that charge, Mr. Pavkovic, do you plead guilty or not

13 guilty?

14 THE ACCUSED: [Interpretation] Mr. President, to that charge in

15 the indictment, I plead not guilty.

16 JUDGE BONOMY: Thank you.

17 I move then to Count 2, in which it is said that by the acts and

18 omissions set out in paragraphs 21 to 30, and in particular paragraph 25,

19 you and the others I've already mentioned planned, instigated, ordered,

20 committed or otherwise aided and abetted the planning, preparation or

21 execution of Count 2, other inhumane acts, in particular forcible

22 transfer, a crime against humanity, punishable under Article 5(1) of the

23 Statute of the Tribunal.

24 To that charge, Mr. Pavkovic, do you plead guilty or not guilty?

25 THE ACCUSED: [Interpretation] Mr. President, I plead not guilty.

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1 JUDGE BONOMY: Thank you.

2 Count 3 is in these terms: That by the acts and omissions set

3 out in paragraphs 21 to 32 of the indictment, you and the others already

4 mentioned planned, instigated, ordered, committed or otherwise aided and

5 abetted the planning, preparation or execution of Count 3, murder, a

6 crime against humanity, punishable under Article 5(a) of the Statute of

7 the Tribunal.

8 To that count, Mr. Pavkovic, do you plead guilty or not guilty?

9 THE ACCUSED: [Interpretation] Mr. President, I plead not guilty.

10 JUDGE BONOMY: On exactly the same factual basis, you are charged

11 with Count 4, also a charge of murder, but this time as a violation of

12 the laws or customs of war, punishable under Article 3 of the Statute of

13 the Tribunal and recognised by Article 3(1)(A) of the Geneva Conventions.

14 To that count, Mr. Pavkovic, do you plead guilty or not guilty?

15 THE ACCUSED: [Interpretation] Mr. President, I plead not guilty.

16 JUDGE BONOMY: Thank you.

17 And I now deal with the last of the five counts in these terms,

18 that by the act and omissions set out in paragraphs 21 to 34 of the

19 indictment, you and the others already mentioned planned, instigated,

20 ordered, committed or otherwise aided and abetted the planning,

21 preparation or execution of Count 5, persecutions, on political, racial

22 and religious grounds, a crime against humanity punishable under Article

23 5(h) of the Statute of the Tribunal. To that charge, Mr. Pavkovic, do

24 you plead guilty or not guilty?

25 THE ACCUSED: [Interpretation] Mr. President, I plead not guilty

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1 to that charge as well.

2 JUDGE BONOMY: Thank you, Mr. Pavkovic. You may sit for the

3 moment.

4 In light of the pleas that you have tendered, these pleas of not

5 guilty, the Registrar will be instructed to fix a date for trial when

6 appropriate. Meanwhile, you will remain in custody, as I am certain you

7 have already been advised.

8 Now, Mr. Hannis, can you assist me with an indication of the

9 likely date on which you will have complied with your initial obligation

10 of disclosure.

11 MR. HANNIS: Your Honour, I'm advised we can do that by the end

12 of next week.

13 JUDGE BONOMY: Thank you.

14 Now, Mr. Pavkovic, when you receive the documents you are bound

15 to receive initially, that is the documents which have been submitted in

16 support of the indictment and any statements that were taken from you,

17 once you receive these, you have 30 days in which to submit to the

18 Tribunal any preliminary motions which you wish to make. So that --

19 these are the only dates that you immediately need to be concerned about.

20 You will be advised by your counsel of other significant dates as they

21 approach.

22 THE ACCUSED: [Interpretation] Mr. President, I have understood

23 what you explained to me just now.

24 JUDGE BONOMY: Thank you.

25 Now, Ms. Loukas, is there any matter you wish to raise at this

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1 stage?

2 MS. LOUKAS: No, there isn't, Your Honour.

3 JUDGE BONOMY: I understand Mr. Pavkovic has certain health

4 problems. Is there anything that I need to be concerned about in that

5 regard?

6 MS. LOUKAS: I covered that matter briefly with Mr. Pavkovic

7 during my initial conference today and there is nothing that we need to

8 alert Your Honour to at the moment.

9 JUDGE BONOMY: Is it appropriate, do you consider, for me to

10 direct the same question to him?

11 MS. LOUKAS: Yes, Your Honour. I think it is appropriate.

12 JUDGE BONOMY: Thank you.

13 Mr. Pavkovic, just finally, are there any matters that you wish

14 to raise with me in connection either with the proceedings or the

15 circumstances in which you've come here or the circumstances in which you

16 are presently being detained?

17 THE ACCUSED: [Interpretation] Mr. President, as for the condition

18 of my health, right now I am fit. And I have been fully made aware of

19 the indictment, IT-03-70-I, and I have pleaded with the full awareness of

20 it.

21 As for my further treatment, specialist checkups are under way

22 here at clinics in The Hague, and there is no problem in that respect

23 whatsoever.

24 JUDGE BONOMY: Thank you very much.

25 THE ACCUSED: [Interpretation] Secondly, in relation to the

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1 question that you put, as for the way I have been treated ever since I

2 arrived on Dutch soil, I have been treated fairly, ever since I was

3 admitted by the official authorities of the Tribunal, as I was

4 transferred to the Detention Unit, in terms of staying at the Detention

5 Unit, also my contacts with the administration and the staff, the

6 standard in that respect, and I have no objections whatsoever. On the

7 contrary.

8 JUDGE BONOMY: Thank you very much.

9 THE ACCUSED: [Interpretation] Thirdly, I wish to thank you in

10 particular for having made it possible for my Defence counsel, Mr.

11 Aleksic, to attend these proceedings. I have authorised him to represent

12 me pro bono in this case. Thank you.

13 JUDGE BONOMY: Should I retain control of this case, and at the

14 moment I do not know whether it is a case which will remain with me a

15 Pre-Trial Judge, but if I do retain control, what I would hope would

16 happen is that any communications that have to be made on your behalf

17 will be made through your counsel. You've started on a very firm footing

18 of a good relationship with counsel present in court. It is of great

19 assistance to the conduct of proceedings in this Tribunal when there is a

20 good working relationship between the accused and his counsel. So I

21 invite to you bear that carefully in mind as the proceedings progress.

22 I'm extremely grateful to counsel on both sides for the

23 assistance they have provided in expediting these proceedings this

24 afternoon. And I now think it appropriate to adjourn the proceedings.

25 Thank you very much.

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1 MR. HANNIS: Your Honour?

2 JUDGE BONOMY: Sorry, Mr. Hannis.

3 MR. HANNIS: Sorry, before you go I just wanted to clarify one

4 matter on the record. I am assuming we will have some verification as to

5 who the counsel is to whom that should be made.

6 JUDGE BONOMY: Yes. I understand that. Thank you very much.

7 --- Whereupon the Initial Appearance adjourned

8 at 2.55 p.m.

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