1 Wednesday, 27 August 2003

2 [Plea Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.44 p.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon. Case number IT-01-42-PT, the

8 Prosecutor versus Miodrag Jokic.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 First of all, Mr. Jokic, can you hear me in a language you

11 understand?

12 THE ACCUSED: [Interpretation] Yes, Your Honour, I can.

13 JUDGE ORIE: Thank you very much. You may be seated, Mr. Jokic.

14 May I have the appearances from the Prosecution and the Defence.

15 First the Prosecution.

16 MS. SOMERS: Thank you and good afternoon, Your Honours. Susan L.

17 Somers, Senior Trial Attorney. To my immediate left is Philip Weiner,

18 trial attorney; to my far right, Susan Grogan, case manager; to my right,

19 Ms. Susan Lamb from our legal advisory section; and behind me, Mr. Dean

20 Manning, investigative section team leader.

21 JUDGE ORIE: Thank you, Ms. Somers. For the Defence, could I have

22 the appearances, please.

23 MR. NIKOLIC: [Interpretation] Good afternoon, Your Honours. Good

24 afternoon, Ms. Somers and the team.

25 My name is Zarko Nikolic and in this case I will be the chief

1 counsel for Mr. Jokic, and together with me is Mr. Eugene O'Sullivan as

2 co-counsel and Jelena Nikolic, the legal advisor in the Defence team.

3 JUDGE ORIE: Thank you, Mr. Nikolic.

4 This hearing takes place as a consequence of a joint motion filed

5 by Prosecution and Defence to schedule a hearing to accept accused Miodrag

6 Jokic's change of plea and entry of plea of guilty to a second amended

7 indictment.

8 This hearing has been scheduled orally although there was --

9 initially there was a hearing scheduled for yesterday. Yesterday, for

10 technical reasons, only a 65 ter meeting was held, and because there was

11 not sufficient time, this hearing was scheduled orally.

12 I take it that the parties have found no prejudice by this

13 scheduling on very short notice. If that would be -- if there would be

14 any prejudice, I'd like to hear from the parties.

15 So being there no prejudice, as far as this hearing is concerned,

16 whenever there is any subject the parties would like to deal with in

17 closed or private session - I think private session would usually do -

18 please ask me so that the Chamber can consider whether we turn into

19 private session.

20 The order I would like to follow is that we first discuss briefly

21 the plea agreement entered by the parties, especially the commitments the

22 parties made, and after that, since we all are aware that if the plea

23 agreement -- that the Chamber has some -- has had some access to a -- to

24 this -- of course to this plea agreement but also access to an amended

25 indictment that would be needed -- an amendment to the indictment that

1 would be needed to be approved, or at least leave granted to amend the

2 indictment in accordance with the text. So therefore, after we went

3 through the plea agreement, I would like to give an opportunity to the

4 Prosecution to apply for leave to amend the indictment, then hear the plea

5 of the accused on the amended indictment, and then we'll see whether we

6 can proceed right away in giving a decision whether or not to accept the

7 plea and to enter a finding of guilt or whether we have to postpone and

8 continue at a later date.

9 So first of all, I would like to speak about the plea agreement

10 that has been submitted to the Chamber. It says that the Prosecution

11 intends to file a second amended indictment and that the accused intends

12 to enter a plea of guilty to that second amended indictment. I would say

13 that's the very basic part of the plea agreement as it's set out in the

14 motion.

15 The reduction of the indictment mainly is that the charges will be

16 limited to the shelling of the old city of Dubrovnik on the 6th of

17 December, 1991, and that the accused will be charged with six counts:

18 Murder; cruel treatment; unlawful attack on civilians; devastation not

19 justified by military necessity; unlawful attack upon civilian objects;

20 and destruction or wilful damage done to institutions dedicated to

21 religion, charity, and education, the arts and sciences, historic

22 monuments, and works of art and science.

23 The factual basis of the new indictment -- the factual basis of

24 the agreement is mainly that the charges are reduced to specifically

25 displace at this moment, although the shelling of the city -- of the old

1 town of Dubrovnik on the 6th of December, 1991, still was part of an armed

2 conflict that was going on already for a longer period of time.

3 There are a few other issues as well in the plea agreement. I

4 would like to refer to the parties that, apart from these basic elements,

5 we have other issues such as the waiver of rights of you, Mr. Jokic.

6 You're not entitled to call any witnesses any more if there is no trial.

7 Therefore, there are a lot of other technicalities which we find in the

8 subsequent paragraphs of the plea agreement.

9 Does any of the parties ask for any detailed discussion of the

10 technical part of the plea agreement?

11 MS. SOMERS: The Prosecution does not if the Chamber is satisfied

12 with what is before it.

13 JUDGE ORIE: Yes. And the Defence.

14 MR. NIKOLIC: [Interpretation] Your Honours, the Defence also

15 doesn't feel the need to discuss any of the issues.

16 JUDGE ORIE: Of course I did not mention one of the issues that

17 might be of vital importance for you, Mr. Jokic, is that the parties also

18 agreed that the Prosecution would ask for a sentence to be imposed on the

19 basis of a new indictment of ten years of imprisonment, and one of the

20 rights you kept, Mr. Jokic, that if you want to argue at the sentencing

21 hearing that your sentence should be below ten years of imprisonment,

22 you're fully entitled to do so.

23 I would like to ask whether any of the other Judges have any

24 questions in respect of the plea agreement as it has been --

25 [Trial Chamber confers]

1 JUDGE ORIE: Judge El Mahdi would like to have a -- to put an

2 additional question or observation.

3 JUDGE EL MAHDI: [Interpretation] If I may, I'd like to ask the

4 Prosecution whether it is well understood by the parties that Mr. Jokic

5 could have pleaded -- since he could plead guilty, but nevertheless he

6 could still bring forth some mitigating evidence in order to reduce his

7 responsibility. Do the parties understand that?

8 MS. SOMERS: Your Honour, it is understood that there will be a

9 sentencing hearing at which submissions by both parties will be presented

10 to the Chamber and all factors that would be relevant for the Chamber's

11 consideration, including, of course, mitigating factors, will be included.

12 JUDGE EL MAHDI: [Interpretation] Thank you very much, but I'd like

13 to be quite sure that both parties -- and I simply wanted to make sure

14 that both parties understood that fully. Thank you.

15 JUDGE ORIE: Yes. Thank you.

16 Mr. Jokic, are you aware of the fact that the agreement, the plea

17 agreement you entered into, specifically as far as the sentence to be

18 imposed if your new plea would be accepted does not bind the Chamber, so

19 that it's not a guarantee that if the Prosecution asks for not more than

20 ten years of imprisonment, that the Chamber is still free to impose the

21 sentence as it deems appropriate?

22 THE ACCUSED: [Interpretation] Your Honours, I'm fully aware of

23 that fact.

24 JUDGE ORIE: Yes. I also take it that you have discussed in full

25 detail with counsel the plea agreement and that you have studied, together

1 with counsel, the new indictment as it will be submitted, I expect soon,

2 by the Prosecution.

3 THE ACCUSED: [Interpretation] Yes, I have.

4 JUDGE ORIE: May I therefore conclude that you were under no

5 pressure by whomever, under no coercion by whomever to enter into this

6 plea agreement and that you feel no pressure or no coercion by anyone if

7 you're invited later this afternoon to enter into a plea on a new second

8 amended indictment once leave has been granted to the Prosecution to amend

9 the indictment.

10 THE ACCUSED: [Interpretation] There was no coercion.

11 JUDGE ORIE: Thank you very much, Mr. Jokic.

12 The next step to be taken in order to proceed on the basis of the

13 plea agreement is that the amended -- the indictment should be amended.

14 In other cases sometimes pleas have been entered on part of the indictment

15 and then only later the remaining parts were stricken by an amendment.

16 That is not possible in this case I would say, so, Ms. Somers, if you

17 would like to make an oral application to amend the indictment, this is

18 the time to do so.

19 MS. SOMERS: Thank you, Your Honour. The Prosecution in fact does

20 make the application pursuant to Rule 62 ter and Rule 50 to amend the

21 existing amended indictment and is prepared to submit in open court, if it

22 would be of assistance, the indictment.

23 JUDGE ORIE: Yes. I think the proper procedure would be that you

24 deliver a copy of the indictment as it would stand after amendment to the

25 usher, that Madam Registrar would take care that it will be filed right

1 away at the Registry, and we could then proceed after we have taken a

2 decision on the -- on your application for leave.

3 MS. SOMERS: We are prepared to do that right now, Your Honour.

4 JUDGE ORIE: Yes. I take it, Ms. Somers, that this is an exact

5 copy of the second amended indictment as it has been distributed before,

6 but then, of course, there was a draft and it was not -- if the Defence

7 would like to have a look at the submitted amended indictment.

8 MR. NIKOLIC: [Interpretation] Yes.

9 JUDGE ORIE: Yes. Madam Usher, would you, please.

10 MR. NIKOLIC: [Interpretation] That is that, and this is an

11 identical copy to the draft.

12 JUDGE ORIE: The Chamber now would like to check whether it's also

13 identical with the copies they received, so if it could be given to the

14 Bench for a second. Yes.

15 Ms. Somers, I do understand that there are two annexes to the

16 indictment, but one is missing. Oh, they are coming.

17 MS. SOMERS: Yes, Your Honour. They're on the way.

18 JUDGE ORIE: Madam Registrar.

19 I take it, Ms. Somers, that although the Rules are not quite clear

20 on joinder and severance of cases, that this includes the severance of

21 this case from the case of the co-accused Strugar and Kovacevic.

22 MS. SOMERS: Your Honour, there is not great uniformity in

23 practice, and what the Prosecution is doing is filing a second amended

24 indictment as to the accused Strugar and Kovacevic will be filed this

25 afternoon.

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1 JUDGE ORIE: Yes. Well, I'm just taking that the Rules are not

2 quite clear on that because severance prior to the trial -- as a -- at the

3 beginning, sometimes the Rules suggest that you need leave for that as

4 well, but that is, I take it, part of this whole procedure, that the cases

5 against Mr. Jokic and co-accused are severed and that a new amended

6 indictment will be filed against the co-accused.

7 MS. SOMERS: That is correct, Your Honour.

8 JUDGE ORIE: Yes. Then, Mr. Jokic, you'll certainly understand

9 that this application is made by the Prosecution on the basis of the plea

10 agreement, so it might be common understanding for all of us that if a

11 guilty plea would not follow, that of course the Prosecution would

12 reinstall either the old indictment or ask for further amendments, and

13 it's -- the Chamber, under these circumstances, might well grant such --

14 such an application.

15 If I would summarise the new --

16 THE ACCUSED: [Interpretation] Your Honours, I'm clear on that.

17 JUDGE ORIE: Yes. Just to summarise the new indictment, if leave

18 is granted, would be that there are six charges remaining, the first three

19 being murder, cruel treatment, and attacks on civilians, all being the

20 result of the shelling of the old town of Dubrovnik on the 6th of

21 December, 1991. The forces involved and the structures are mentioned in

22 Annex 1 to this second amended indictment.

23 More factual, this shelling caused, according to the second

24 amended indictment, the death of two civilians, Pave Urban and Tonci

25 Skocko, and the wounding of three other civilians, Mato Valjalo, Ivo

1 Vlasica, and Nikola Jovic. This shelling - and these are the three

2 remaining counts of the second amended indictment - also amounted to the

3 devastation of a number -- of which six are specified, of a number of

4 buildings not justified by military necessity. It amounted to unlawful

5 attacks on civilian objects and destruction or wilful damage to

6 institutions dedicated to religion, charity, and education, the arts and

7 sciences, historic works, and works of art and science. Annex 2 to the

8 amended indictment lists, in 51 pages, the destruction and the damage done

9 to those objects and buildings.

10 Before we proceed, we first have to take a decision on the leave

11 to be granted to amend the indictment.

12 [Trial Chamber confers]

13 JUDGE ORIE: The Chamber grants leave to amend the indictment.

14 That means that from now on, we are proceeding on the basis of the second

15 amended indictment.

16 Mr. Jokic, the Chamber invites you to enter pleas on each of the

17 counts of the second amended indictment.

18 Madam Registrar, do you have the -- no. Then I will read them

19 myself.

20 Judge El Mahdi just reminded me that if -- that I perhaps first

21 should ask you whether you want to have the charges read in full detail or

22 whether I could limit myself to the counts of the indictment, that means

23 count 1 up to 6, Mr. Jokic.

24 THE ACCUSED: [Interpretation] Your Honours, I don't think that I

25 should have the charges read in full. I have studied the indictment.

1 JUDGE ORIE: Yes. Then, Mr. Jokic, on count 1, murder, a

2 violation of the laws or customs of war, as recognised by Common Article

3 3(1)(a) of the Geneva Conventions of 1949 and punishable under Articles 3

4 and 7(1) and 7(3) of the Statute of the Tribunal, how do you plead on

5 count 1?

6 THE ACCUSED: [Interpretation] Your Honours, I'm guilty.

7 JUDGE ORIE: Then the Trial Chamber records the plea of guilty on

8 count 1, murder, a violation of the laws or customs of war.

9 Mr. Jokic, count 2: Cruel treatment, a violation of the laws or

10 customs of war, as recognised by Common Article 3(1)(a) of the Geneva

11 Conventions of 1949, punishable under Articles 3 and 7(1) and 7(3) of the

12 Statute of the Tribunal. How do you plead?

13 THE ACCUSED: [Interpretation] I plead guilty.

14 JUDGE ORIE: The Trial Chamber then records the plea of guilty on

15 count 2 of the second amended indictment.

16 Mr. Jokic, on count 3: Attacks on civilians, a violation of the

17 laws or customs of war, as recognised by Article 51 of Additional Protocol

18 I and Article 13 of Additional Protocol II of the Geneva Conventions of

19 1949, punishable under Articles 3 and 7(1), and 7(3) of the Statute of the

20 Tribunal. How do you plead?

21 THE ACCUSED: [Interpretation] I plead guilty.

22 JUDGE ORIE: The Trial Chamber records the plea of guilty on count

23 3 of the second amended indictment.

24 Mr. Jokic, on count 4: Devastation not justified by military

25 necessity, a violation of the laws or customs of war, punishable under

1 Articles 3(b) and 7(1), and 7(3) of the Statute of the Tribunal. How do

2 you plead?

3 THE ACCUSED: [Interpretation] Guilty.

4 JUDGE ORIE: The Trial Chamber records the plea of guilty on count

5 4 of the second amended indictment.

6 Mr. Jokic, on count 5: Unlawful attacks on civilian objects, a

7 violation of the laws or customs of war, as recognised by Article 52 of

8 Additional Protocol I to the Geneva Conventions of 1949, and customary

9 law, punishable under Articles 3 and 7(1), and 7(3) of the Statute of the

10 Tribunal. How do you plead?

11 THE ACCUSED: [Interpretation] I plead guilty.

12 JUDGE ORIE: The Trial Chamber records the plea of guilty on count

13 5 of the second amended indictment.

14 We now come to the final count, Mr. Jokic, count 6: Destruction

15 or wilful damage done to institutions dedicated to religion, charity, and

16 education, the arts and sciences, historic monuments and works of art and

17 science, a violation of the laws or customs of war, punishable under

18 Articles 3(d) and 7(1) and 7(3) of the Statute of the Tribunal. How do

19 you plead?

20 THE ACCUSED: [Interpretation] I plead guilty.

21 JUDGE ORIE: The Trial Chamber records the plea of guilty on count

22 6 of the second amended indictment.

23 Mr. Jokic, please be seated.

24 The Chamber has to satisfy itself, Mr. Jokic, that the guilty plea

25 you've just entered -- you may remain seated -- that this guilty plea has

1 been made voluntarily, that there were no threats, no coercion, that this

2 plea was informed, that this plea is not equivocal, and that there is a

3 sufficient factual basis for the crime and for your participation therein.

4 I think we already discussed the -- that you entered of your own

5 free will into the plea agreement, and the guilty plea being one of the

6 consequences of this agreement, I take it that you made that plea -- those

7 pleas on six counts, that you made them voluntarily as well.

8 I also take it that because of the assistance you received from

9 counsel, that your plea was informed. And since we discussed yesterday at

10 a 65 ter meeting some details of the understanding of the then still draft

11 second amended indictment, I take it that all the parties agree on what

12 the indictment exactly says and that, therefore, the guilty plea was not

13 equivocal in whatever way.

14 The last issue we have to consider is whether there is a

15 sufficient factual basis for the crime and the participation of the

16 accused therein.

17 The Rules of Procedure and Evidence give us some clue as to how to

18 establish such a factual basis. There are two alternative ways, although

19 they do not exclude each other, to establish the sufficient factual basis

20 for the plea.

21 The first one is independent indicia on the guilt or the lack of

22 any material disagreement between the parties about the facts of the case.

23 Am I right in establishing that the parties do not materially disagree on

24 the facts of the case, the case being now limited to the charges contained

25 in the second amended indictment?

1 MS. SOMERS: There is agreement, Your Honour, as to the facts

2 which underlie the specific provisions of the amended indictment.

3 JUDGE ORIE: And that is true as far as the Defence is concerned

4 as well?

5 MR. NIKOLIC: [Interpretation] Yes, it is, Your Honour. I can just

6 confirm what Ms. Somers has just said.

7 JUDGE ORIE: The Chamber nevertheless would like to hear whether

8 there would also be independent indicia that would support the guilty

9 plea. It should not be done in detail, but if a short explanation could

10 be given what independent indicia would support the guilty plea, the

11 Chamber would like to hear it now.

12 Ms. Somers, could you address the Chamber in this respect.

13 MS. SOMERS: May I be clear that I understand what Your Honour is

14 asking. Are you asking if the Prosecution is prepared to put on a full

15 case involving testimony or --

16 JUDGE ORIE: No. It's just -- it's just to give a brief

17 indication. For example, if the accused has pled guilty to devastation of

18 buildings, that an independent indicia to support such a guilty plea would

19 be, for example, that there is evidence by photographs or whatever way.

20 You don't have to go into too much detail but there is evidence which

21 support that these buildings were destroyed and that there is evidence

22 that such events took place on that specific day. You don't have to go

23 into very much detail but just in order to satisfy the Chamber that it's

24 not just the plea -- the agreement between the parties but that there is

25 also evidence, I would say material evidence, that would support the

1 guilty plea.

2 MS. SOMERS: Thank you, Your Honour, for the clarification. The

3 Prosecution would indicate that there are witnesses and documents as to

4 all the allegations in the indictment that would support findings

5 independent of the admission of guilt of the accused. The Prosecution

6 submits that, in total, these documents would amount to proof beyond and

7 to the exclusion of every reasonable doubt as to the culpability of the

8 accused.

9 JUDGE ORIE: On the basis of the disclosed documents and the

10 disclosed statements of potential witnesses, would the Defence agree that

11 there is also independent evidence apart from the admission of the accused

12 that would support his guilty plea?

13 MR. NIKOLIC: [Interpretation] Yes, Your Honours. We have --

14 before we signed the agreement, we went through these documents, and we

15 established that there was relevant material which corroborated the

16 Prosecution's allegations, and the agreement was signed only after that.

17 But I should like to seize this opportunity to say that had the indictment

18 been in this form from the beginning, this wouldn't have lasted so long.

19 Mr. Jokic would have pleaded the same way he did today had it been worded

20 like this in the first instance. Thank you.

21 JUDGE ORIE: Yes. Well, what would have happened if things would

22 have been different, that's, well, perhaps not at this moment something we

23 should pay a lot of attention to but rather look forward than look back.

24 The Chamber will briefly adjourn in order to consider and to

25 deliberate whether we can proceed at this very moment or whether we should

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1 postpone a decision on the acceptance of the guilty plea.

2 --- Recess taken at 3.25 p.m.

3 --- On resuming at 3.29 p.m.

4 JUDGE ORIE: Madam Registrar, before we proceed, the Trial Chamber

5 would like to turn to private session only for a moment.

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25 [Open session]

1 THE REGISTRAR: We are now in open session.

2 JUDGE ORIE: Mr. Jokic, the Chamber accepts your plea and will now

3 pronounce its findings on your guilt.

4 Mr. Jokic, this Trial Chamber finds you guilty on count 1 of the

5 second amendment indictment, murder, a violation of the laws or customs of

6 war.

7 This Chamber, Mr. Jokic, finds you guilty on count 2 of the second

8 amended indictment, cruel treatment, a violation of the laws or customs of

9 war.

10 This Trial Chamber finds you guilty on count 3 of the second

11 amended indictment, attacks on civilians, a violation of the laws or

12 customs of war.

13 Mr. Jokic, this Trial Chamber finds you guilty on count 4 of the

14 second amended indictment, devastation not justified by military

15 necessity, a violation of the laws or customs of war.

16 This Trial Chamber finds you guilty on count 5 of the second

17 amended indictment, unlawful attacks on civilian objects, a violation of

18 the laws or customs of war.

19 And it finds you guilty on count 6 of the second amended

20 indictment, destruction or wilful damage done to the institutions

21 dedicated to religion, charity, and education, the arts and sciences,

22 historic monuments and works of art and science, a violation of the laws

23 or customs of war.

24 And this finding of guilt relates on all six counts, both to the

25 responsibility under Article 7(1), and Article 7(3) of the Statute of the

1 Tribunal.

2 Please be seated.

3 Madam Registrar, the Registry is instructed to set a date for a

4 sentencing hearing but is invited first to consult the Chamber before

5 finally setting such a date, and I would like to hear from the parties at

6 this moment whether they have any specific time frame in their minds as

7 far as the scheduling for the filing of pre-sentencing briefs or a

8 sentencing hearing is concerned.

9 May I first give an opportunity to the Defence or has this been

10 discussed among the parties?

11 MS. SOMERS: Your Honour, it has been discussed among the parties.

12 We would respectfully ask for closed or private session for the following

13 discussion.

14 JUDGE ORIE: Yes. We will then turn to private session.

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3 [Open session]

4 JUDGE ORIE: The next issue on our agenda is the motion that has

5 been filed by the Defence for provisional release for the continuation --

6 or the reinstalling the provisional release of the accused.

7 I am informed that for reasons of privacy, that the Defence would

8 like to say a few words about it in private session. Is that correct,

9 Mr. Nikolic?

10 I see nodding yes. I take it that's -- then we turn to private

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6 [Open session]

7 JUDGE ORIE: We are in open session again.

8 The Chamber will consider the application for provisional release.

9 It will not give a decision today. The Chamber, however, commits itself

10 to giving a decision on short notice, presumably not later than next

11 Friday.

12 Is there anything at this moment one of the parties would like to

13 raise, or you, Mr. Jokic, would like to raise at this very moment?

14 THE ACCUSED: [Interpretation] I have nothing to raise at this

15 moment, Your Honours.

16 JUDGE ORIE: And from the silence of the parties, I conclude that

17 neither the Prosecution nor the Defence wanted to raise any other issue.

18 We'll then adjourn.

19 --- Whereupon the Plea Hearing adjourned at

20 4.08 p.m.

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