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1 Friday, 12 March 2004
2 [Initial Appearance]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.33 p.m.
6 JUDGE AGIUS: Mr. Registrar, could you call the case, please.
7 THE REGISTRAR: Your Honours, Case Number IT-03-73-I, The
8 Prosecutor versus Ivan Cermak and Mladen Markac.
9 JUDGE AGIUS: I thank you.
10 Good afternoon, everybody. Mr. Cermak, I want to make sure before
11 we proceed that you can follow the proceedings in a language that you can
12 understand. In other words, that you are receiving interpretation in your
13 own language.
14 THE ACCUSED CERMAK: [Interpretation] Yes, I am.
15 JUDGE AGIUS: I thank you. Mr. Markac, same question to you. I
16 want to make sure that you are receiving interpretation in a language that
17 you can understand.
18 THE ACCUSED MARKAC: [Interpretation] Yes, I am receiving the
19 interpretation.
20 JUDGE AGIUS: I thank you. And good afternoon to you both.
21 Appearances for the Prosecution.
22 MR. SCOTT: Good afternoon, Your Honour. May it please the Court,
23 Kenneth Scott, senior trial attorney, appearing on behalf of the
24 Prosecutor who I'm happy to have with me today, Madam Carla del Ponte.
25 Also present with the Prosecution is Ms. Laurie Sartorio and our case
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1 manager, Diane Boles. Thank you.
2 JUDGE AGIUS: I thank you. And good afternoon to you.
3 Appearances for Mr. Cermak.
4 MR. PRODANOVIC: [Interpretation] Good day, Your Honour. My name
5 is Cedo Prodanovic. I'm from Zagreb, and I represent Ivan Cermak.
6 JUDGE AGIUS: I thank you. And good afternoon to you.
7 Appearances for Mr. Markac.
8 MR. SEPAROVIC: [Interpretation] Good day, Your Honour. I
9 represent Mr. Markac. My name is Miroslav Separovic, and I'm assisted by
10 Mr. Mikulicic from Zagreb.
11 JUDGE AGIUS: I thank you and good afternoon to you too. I want
12 to make sure, Mr. Separovic, that you have been given the consent by the
13 Registrar to represent your client. Because I am informed that for the
14 time being, such consent is forthcoming only with regard to the
15 co-counsel, Mr. Mikulicic. Can I have this confirmed by you,
16 Mr. Separovic, otherwise I will have to request you to leave the courtroom
17 and stay in the gallery and follow the proceedings from there.
18 Yes.
19 MR. SEPAROVIC: [Interpretation] Your Honour, the administrative
20 difficulties have been dealt with, and I may be present at this hearing.
21 JUDGE AGIUS: Who gave you permission to be present at this
22 hearing?
23 MR. SEPAROVIC: [Interpretation] The Registry, Your Honour.
24 JUDGE AGIUS: Mr. Registrar, could you please confirm this to me,
25 because I was given other information before I started the sitting, the
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1 hearing.
2 Okay. We will now proceed with the Initial Appearance of the
3 accused, Ivan Cermak and Mladen Markac, pursuant to Rule 62 of the Rules
4 of Procedure and Evidence. Before we do so, let me give a very short
5 outline of the history of this case.
6 Very briefly, the indictment against Ivan Cermak and Mladen Markac
7 was confirmed by Judge Parker, a permanent Judge of this Tribunal in
8 Trial Chamber II, on the 24th of February of this year. On the same date,
9 Judge Parker issued first a decision on review of the indictment and order
10 for nondisclosure; and secondly, an ex parte and under-seal warrant of
11 arrest and order for surrender of the two accused.
12 Subsequently, on the 8th of March, my colleague, Judge Parker
13 issued an order lifting the seal of the indictment. He issued also the
14 decision on review of the -- lifting the seal on the decision of the
15 review of the indictment and order for nondisclosure and on the warrants
16 for arrest. And by order of the President of this Tribunal, the following
17 day, that is, on the 9th of March 2004, this case, that is the case
18 against Ivan Cermak and Mladen Markac, was assigned to my Trial Chamber,
19 and that is Trial Chamber II.
20 Ivan Cermak and Mladen Markac were transferred to the Detention
21 Unit of the -- of this International Tribunal yesterday, that is,
22 Thursday, 11th March 2004.
23 Mr. Cermak and Mr. Markac, in a few minutes' time, I will be
24 giving you the opportunity to enter your pleas to each of the counts
25 contained in the indictment of the 19th February 2004. Before I proceed
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1 any further, however, I will be asking you a few questions. And before I
2 ask you the questions, I would like to remind you that you also have a
3 right to remain silent. That is, not to answer any of these questions
4 that I am going to put to you. Mr. Cermak, could I ask you to stand up,
5 please. Again, I want to confirm first and foremost that you are
6 following the proceedings in your own language.
7 THE ACCUSED CERMAK: [Interpretation] Yes, I'm following the
8 proceedings. Everything is fine.
9 JUDGE AGIUS: Can I please have your full name and surname.
10 THE ACCUSED CERMAK: [Interpretation] Ivan Cermak.
11 JUDGE AGIUS: Do you have any nicknames by which you are known or
12 you're referred to?
13 THE ACCUSED CERMAK: [Interpretation] No, I don't. They call me
14 Cermak on the whole.
15 JUDGE AGIUS: When were you born, your date of birth?
16 THE ACCUSED CERMAK: [Interpretation] On the 19th of December,
17 1949.
18 JUDGE AGIUS: And where were you born, your place of birth?
19 THE ACCUSED CERMAK: [Interpretation] I was born in Zagreb, in the
20 Republic of Croatia.
21 JUDGE AGIUS: What is the address you resided last before you were
22 arrested or before you turned yourself in?
23 THE ACCUSED CERMAK: [Interpretation] Zagreb, Pantovcak, 174. I
24 have another address. It's Dvorac Klokovec in Krapinske Toplica.
25 JUDGE AGIUS: I am now going to inquire from you whether your
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1 family are informed about your arrest.
2 THE ACCUSED CERMAK: [Interpretation] Yes, my family has been
3 informed, and they are aware of the fact that I surrendered voluntarily.
4 JUDGE AGIUS: Are they also aware that you are present here in
5 The Hague?
6 THE ACCUSED CERMAK: [Interpretation] Yes, they are. I have told
7 that I am satisfied with everything and that the personnel in the
8 Detention Unit is extremely courteous.
9 JUDGE AGIUS: Would you like the Tribunal to notify anyone else
10 from your family about your transfer here?
11 THE ACCUSED CERMAK: [Interpretation] It's not necessary. Everyone
12 knows that I am here.
13 JUDGE AGIUS: Okay. You may sit down. Thank you.
14 THE ACCUSED CERMAK: [Interpretation] Thank you.
15 JUDGE AGIUS: Mr. Markac, again, we are going to go through the
16 whole process with you this time. I want to make sure that you are
17 following what I am saying in a language that you understand.
18 THE ACCUSED MARKAC: [Interpretation] Yes, I am.
19 JUDGE AGIUS: So let's proceed with your giving us your full name
20 and surname.
21 THE ACCUSED MARKAC: [Interpretation] I'm a colonel general. My
22 name is Mladen Markac.
23 JUDGE AGIUS: Are there any nicknames by which you are referred to
24 or known?
25 THE ACCUSED MARKAC: [Interpretation] No.
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1 JUDGE AGIUS: When were you born?
2 THE ACCUSED MARKAC: [Interpretation] I was born on the 8th of May,
3 1955 in Djurdjevac, in the Republic of Croatia.
4 JUDGE AGIUS: And could we have your last address immediately
5 prior to your being arrested or prior to your surrender.
6 THE ACCUSED MARKAC: [Interpretation] Tucanova number 3, in Zagreb.
7 JUDGE AGIUS: Are the members of your family informed about your
8 arrest and also about your presence, transfer and presence, here in
9 The Hague?
10 THE ACCUSED MARKAC: [Interpretation] Yes, they are. And they are
11 aware of the fact that I voluntarily surrendered to the Tribunal.
12 JUDGE AGIUS: Is there any other member of your family that you
13 would like us to inform?
14 THE ACCUSED MARKAC: [Interpretation] It's not necessary. Everyone
15 has been informed.
16 JUDGE AGIUS: Okay. Thank you. And now a question to both of
17 you. Are you aware if your embassy, Embassy of Croatia here in The Hague,
18 has been made aware of your presence here in The Hague and about these
19 proceedings? Yes, Mr. --
20 THE ACCUSED CERMAK: [Interpretation] Yes, they have been informed,
21 and they are present at the hearing. They are in the public gallery.
22 THE ACCUSED MARKAC: [Interpretation] Yes, they have been informed.
23 JUDGE AGIUS: Okay. Thank you.
24 Now, as accused before this Tribunal, you enjoy certain rights.
25 These rights are spelled out mainly in two Articles of our Statute. But
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1 then there are other rights as well, to which I will be referring, which
2 we come across in the Rules of Procedure and Evidence that have been
3 created by this Tribunal. I will first deal with the rights that are
4 enshrined in our Statute, and I will ask the Registrar to read out the
5 passages from the Statute of the Tribunal that provide you with a certain
6 number of rights, I'm referring specifically to Articles 20 and 21 of the
7 Statute. Following that, we will proceed with the most important formal
8 part of the Initial Appearance, and that has to do with the indictment
9 itself.
10 Yes, Mr. Registrar, could you please read out aloud Articles 20
11 and 21 of our Statute.
12 THE REGISTRAR: Your Honours, Article 20:
13 Commencement and conduct of trial proceedings.
14 The Trial Chambers shall ensure that the trial is fair and
15 expeditious, and that proceedings are conducted in accordance with the
16 Rules of Procedure and Evidence with full respect for the rights of the
17 accused and due regard for the protection of victims and witnesses.
18 A person against whom an indictment has been confirmed shall,
19 pursuant to an order or an arrest warrant of the International Tribunal be
20 taken into custody, immediately informed of the charges against him, and
21 transferred to the International Tribunal.
22 The Trial Chamber shall read the indictment, satisfy itself that
23 the rights of the accused are respected, confirm that the accused
24 understands the indictment, and instruct the accused to enter a plea. The
25 Trial Chamber shall then set the date for trial.
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1 The hearings shall be public unless the Trial Chamber decides to
2 close the proceedings in accordance with its Rules of Procedure and
3 Evidence.
4 Article 21: Rights of the accused.
5 All persons shall be equal before the International Tribunal.
6 In the determination of charges against him, the accused shall be
7 entitled to a fair and public hearing, subject to Article 22 of the
8 Statute.
9 The accused shall be presumed innocent until proved guilty,
10 according to the provisions of the present Statute.
11 In the determination of any charge against the accused pursuant to
12 the present Statute, the accused shall be entitled to the following
13 minimum guarantees in full equality:
14 (a) to be informed promptly and in detail in a language which he
15 understands of the nature and cause of the charge against him;
16 (b) to have adequate time and facilities for the preparation of
17 his defence and to communicate with counsel of his own choosing;
18 (c) to be tried without undue delay;
19 (d) to be tried in his presence and to defend himself in person or
20 through legal assistance of his own choosing, to be informed if he does
21 not have legal assistance, of this right, and to have legal assistance
22 assigned to him in any case where the interests of justice so require and
23 without payment by him in any such case if he does not have sufficient
24 means to pay for it;
25 (e) to examine, or have examined, the witnesses against him and to
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1 obtain the attendance and examination of witnesses on his behalf under the
2 same conditions as witnesses against him;
3 (f), to have the free assistance an interpreter if he cannot
4 understand or speak the language used in the International Tribunal;
5 (g) not to be compelled to testify against himself or to confess
6 guilt.
7 JUDGE AGIUS: Thank you, Registrar. And this leads us straight to
8 the indictment. By now, you should have been served with the indictment
9 in your own language. I want to make sure first and foremost that this is
10 so, that I am correct. Mr. Cermak.
11 THE ACCUSED CERMAK: [Interpretation] Yes, you're quite right. We
12 have been provided with a version of the indictment in our own language.
13 JUDGE AGIUS: And while we are at that, can you assure me that you
14 have understood its contents?
15 THE ACCUSED CERMAK: [Interpretation] I have understood the
16 contents of the indictment.
17 JUDGE AGIUS: Colonel Markac, same question to you: Have you
18 received the indictment; and if yes, have you read it and understood it?
19 THE ACCUSED MARKAC: [Interpretation] I have received the
20 indictment. I have examined it. And I have understood it.
21 JUDGE AGIUS: Thank you. I have asked you these questions because
22 the next step which is perhaps the most important part of today's
23 proceedings will require me to ask of you what kind of plea you want to
24 enter to the charges that have been brought against you. In fact, in
25 accordance with our Rule 62, upon transfer to this Tribunal and in the
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1 course of the Initial Appearance, I have certain duties to carry out. One
2 of these is either to read out or have read to you the indictment unless
3 you exempt the Trial Chamber from reading it out, and to satisfy myself
4 that you have understood the indictment.
5 And I also am bound by Rule 62 to inform you that within 30 days
6 of the Initial Appearance, which is taking place today, you will be called
7 upon to enter a plea of guilty or not guilty on each count. This does not
8 mean, however, that we will all have to wait 30 days because the practice
9 is that in the course of the Initial Appearance, the Presiding Judge will
10 direct the question to the accused. In other words, today I may ask you
11 if you are prepared to enter a plea. The understanding is that if you are
12 not prepared to enter your plea today, then you have 30 days maximum
13 within which you could enter the plea.
14 I am informed, but I want to confirm this through your counsel and
15 also through you personally, that you do not wish that we read out in its
16 entirety the indictment. In other words, that you are exempting the
17 Trial Chamber from reading the indictment. Is that so? Stay with counsel
18 for Mr. Cermak.
19 MR. PRODANOVIC: [Interpretation] Your Honour, the accused
20 Ivan Cermak is aware of his right, and he is waiving his right to have the
21 indictment read out to him. He has understood the indictment, and he will
22 enter a plea on each count without having the indictment read out.
23 JUDGE AGIUS: You confirm that, Mr. Cermak?
24 THE ACCUSED CERMAK: [Interpretation] Your Honours, I do confirm
25 that. It is not necessary to have the indictment read out.
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1 JUDGE AGIUS: Thank you. And Mr. Separovic or Mr. Mikulicic.
2 MR. MIKULICIC: [Interpretation] Your Honour, as far as
3 General Cermak is concerned, the situation is identical. It is
4 not -- Markac, I apologise. It's not necessary to have the indictment
5 read out.
6 JUDGE AGIUS: General Markac, do you confirm that?
7 THE ACCUSED MARKAC: [Interpretation] Your Honour, I agree with
8 what my attorney has just stated.
9 JUDGE AGIUS: Now, I told you a few minutes ago that I will be
10 proceeding, asking you very soon what you want to -- if you want to plead
11 today and what you want to plead, how you want to plead to the charges
12 that have been brought against you. I want to make sure, however, before
13 I proceed to do this that you have had the opportunity to discuss with
14 your lawyers about this and that you have their advice.
15 Mr. Cermak, have you discussed this matter with your counsel, and
16 are you prepared to enter a plea today?
17 THE ACCUSED CERMAK: [Interpretation] Your Honour, I have examined
18 the indictment with my counsel, and I am prepared to enter a plea today.
19 JUDGE AGIUS: I thank you.
20 And General Cermak, same question. Sorry, General Markac. Now I
21 have fallen the same mistake that your lawyer did.
22 General Markac, have you had an opportunity to discuss this matter
23 with your counsel? And if so, are you prepared to enter a plea today?
24 THE ACCUSED MARKAC: [Interpretation] Your Honour, I have examined
25 the indictment with my counsel, and I am prepared to enter a plea today.
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1 JUDGE AGIUS: All right. So I address counsel now. Are there any
2 problems that you are aware of which would suggest that the Trial Chamber
3 does not proceed with asking your client, your respective clients, to
4 enter a plea today?
5 MR. PRODANOVIC: [Interpretation] Your Honour, there are no
6 objections to continuing with the hearing today.
7 JUDGE AGIUS: Counsel for General Markac.
8 MR. MIKULICIC: [Interpretation] Your Honour, as far as
9 General Markac is concerned, the situation is identical. There are no
10 obstacles.
11 JUDGE AGIUS: I thank you.
12 So in view of the waiver that you have confirmed, the whole
13 indictment will not be read out in these proceedings. What will happen is
14 that I will just read out to you the charges contained in the indictment
15 of the Prosecutor of the 19th February 2004. And after each count, I will
16 be asking you separately how -- "how do you wish to plead to that
17 particular charge"?
18 You have these options: You can plead guilty, you can plead not
19 guilty, or you can decide to remain silent. Should you remain silent,
20 then the Trial Chamber has to provide, in accordance with what we have in
21 our Rules. But I don't envisage that problem is going to arise today.
22 And I will start with the first count that is common to both of you. The
23 first count against you both is of criminal responsibility of a crime
24 against humanity consisting in persecutions on political, racial, and
25 religious grounds, being a crime against humanity, punishable under
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1 Article 5(h) and Articles 7(1) and 7(3) of the Statute of the Tribunal.
2 Mr. Cermak, how do you plead to this charge? Guilty or not
3 guilty.
4 THE ACCUSED CERMAK: [Interpretation] Not guilty.
5 JUDGE AGIUS: I thank you.
6 General Markac, how do you plead to this first charge? Guilty or
7 not guilty.
8 THE ACCUSED MARKAC: [Interpretation] Your Honours -- Your Honour,
9 I'm not guilty.
10 JUDGE AGIUS: I thank you. Registrar, for the record, both
11 accused have pleaded not guilty to the first count.
12 The second count against you both is one of a charge of murder as
13 recognised by common Article 3(1)(a) of the Geneva Conventions of 1949,
14 this being in violation of the laws or customs of war, punishable under
15 Article 3 and Article 7(3) of the Statute of this Tribunal. Mr. Cermak,
16 how do you plead to this charge? Guilty or not guilty.
17 THE ACCUSED CERMAK: [Interpretation] Your Honour, I'm not guilty.
18 JUDGE AGIUS: Thank you.
19 General Markac, how do you plead to this charge of murder? Guilty
20 or not guilty.
21 THE ACCUSED MARKAC: [Interpretation] Not guilty, Your Honour.
22 JUDGE AGIUS: I thank you. Register, for the record, both accused
23 have pleaded not guilty to the second count.
24 The third count against both of you is one of plunder of public or
25 private property, this can a violation of the laws and customs of war
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1 punishable under Article 3(e) and Articles 7(1) and 7(3) of the Statute of
2 the Tribunal.
3 Mr. Cermak, how do you plead to this third count? Guilty or not
4 guilty.
5 THE ACCUSED CERMAK: [Interpretation] Not guilty, Your Honour.
6 JUDGE AGIUS: I thank you.
7 General Markac, how do you plead to this third count? Guilty or
8 not guilty.
9 THE ACCUSED MARKAC: [Interpretation] Not guilty, Your Honour.
10 JUDGE AGIUS: I thank you. Registrar, for the record, both
11 accused have pleaded not guilty to the third count.
12 The fourth count, again a count which is common to both of you, is
13 one of wanton destruction of cities, towns, and villages, as being a
14 violation of the laws or customs of war, punishable under Article 3(b) and
15 Articles 7(1) and 7(3) of the Statute of the Tribunal.
16 Mr. Cermak, how do you plead to this count? Guilty or not
17 guilty?
18 THE ACCUSED CERMAK: [Interpretation] Not guilty, Your Honour.
19 JUDGE AGIUS: I thank you. And General Markac, how do you plead
20 to this fourth count? Guilty or not guilty.
21 THE ACCUSED MARKAC: [Interpretation] Not guilty, Your Honour.
22 JUDGE AGIUS: I thank you. Registrar, for the record, both
23 accused have entered a plea of not guilty to the fourth count.
24 The fifth count, the fifth count is a crime against humanity,
25 consisting in deportation, punishable under Article 5(d) and
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1 Articles 7(1), and 7(3) of the Statute of the Tribunal.
2 Mr. Cermak, how do you plead to this fifth count? Guilty or not
3 guilty.
4 THE ACCUSED CERMAK: [Interpretation] Not guilty, Your Honour.
5 JUDGE AGIUS: I thank you.
6 And General Markac, how do you plead to this fifth count?
7 THE ACCUSED MARKAC: [Interpretation] Not guilty, Your Honour.
8 JUDGE AGIUS: Thank you. Registrar, please note for the record
9 that both accused have pleaded not guilty to the fifth count.
10 And we come to the sixth count, which is the penultimate one.
11 This consists of a charge of other inhumane acts, forced displacement,
12 this being a crime against humanity, punishable under Article 5(1), and
13 Articles 7(1) and 7(3) of the Statute of this Tribunal.
14 Mr. Cermak, how do you wish to plead to this sixth count? Guilty
15 or not guilty?
16 THE ACCUSED CERMAK: [Interpretation] Not guilty, Your Honour.
17 JUDGE AGIUS: I thank you.
18 General Markac, how do you wish to plead to this sixth count?
19 THE ACCUSED MARKAC: [Interpretation] Not guilty, Your Honour.
20 JUDGE AGIUS: I thank you. Registrar, please enter into the
21 records that both accused have pleaded not guilty to the sixth count.
22 And we come to the last count. This is the seventh count, which
23 is one of criminal responsibility for other inhumane acts, being a crime
24 against humanity, punishable under Article 5(i) and Article 7(3) of the
25 Statute of this Tribunal. And Mr. Cermak, how do you wish to plead to
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1 this seventh count? Guilty or not guilty.
2 THE ACCUSED CERMAK: [Interpretation] Not guilty, Your Honour.
3 JUDGE AGIUS: I thank you. And the same question to you,
4 General Markac. How do you wish to plead to this seventh count? Guilty
5 or not guilty.
6 THE ACCUSED MARKAC: [Interpretation] Not guilty, Your Honour.
7 JUDGE AGIUS: I thank you.
8 Now that you have entered a plea of not guilty to each of the
9 seven counts that have been brought against you by the Prosecutor, I will
10 be instructing the Registrar of this Tribunal, Mr. Holthuis, to fix a date
11 for the appropriate trial -- for the trial when appropriate. This does
12 not mean that you are to expect the trial to commence within the next
13 weeks or within the next months. I'll try to explain to you what the
14 position is.
15 I want you also to understand that in the meantime, you are going
16 to remain in custody until further order. I will be signing an order for
17 your custody at the end of this sitting today. However, in terms of
18 Rule 65, provided the Trial Chamber is satisfied that there are sufficient
19 reasons, you may ask and be granted provisional release in certain
20 circumstances. I do not need to go into details here. I suppose this is
21 too early in the day to talk about provisional release. But I do want to
22 advise you of this possibility, and I am sure that you will be consulting
23 with your lawyers, who I am sure will be giving you the best advice basing
24 themselves on the case law of this Tribunal, which is now pretty much
25 exhaustive on this matter, and provides the guidelines under which usually
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1 provisional release is granted.
2 There are some further rights that I would like to draw your
3 attention to before we come to an end. And the first matter that I want
4 to touch upon is the following: The fact that you have entered a plea of
5 not guilty today does not mean that this is an irrevocable step that you
6 have taken. You can, upon the advice of your lawyers, entertain the idea
7 of perhaps coming to some kind of a plea agreement with the Prosecution.
8 There is a procedure to be followed, and your lawyers will be familiar
9 with this and will be able to advise you. Please, do not take what I am
10 saying as an invitation to enter into any kind of plea agreement with the
11 Prosecution. I'm just advising you that this possibility exists and has
12 been made use of by several other detainees that we have here who have
13 found themselves in the same position that you are in today.
14 I also wish to draw your attention to Rule 63 of this Tribunal
15 which provides that questioning by the Prosecutor of an accused, including
16 after the Initial Appearance, shall not proceed without the presence of
17 counsel unless the accused has voluntarily and expressly agreed to proceed
18 without counsel present. If the accused subsequently expresses a desire
19 to have counsel, questioning shall cease immediately and shall only resume
20 when the accused's counsel is present. I'm sure that your lawyers are
21 aware of this provision, and I have no reason to doubt that it will be
22 strictly applied by the Prosecutor. I'm not aware of one single case when
23 the Prosecution did not abide by this Rule.
24 Should there be any such questioning, you ought to know that even
25 if there is a waiver on your part to counsel being present, all this shall
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1 be audiorecorded or videorecorded in accordance with the procedure
2 provided for somewhere else in our Rules. And in addition, the Prosecutor
3 at the beginning of the questioning will caution you in accordance with
4 our Rule 42(A)(iii) which basically requires the Prosecution to advise you
5 that you have a right to remain silent and that any statement that you
6 make shall be recorded and may be used in evidence. That is the first
7 matter that I wanted to touch upon.
8 Provisional release, I have already mentioned. The other matter
9 is this: In a few minutes' time, you will be taken back to the
10 Detention Unit. It doesn't mean at all that you are going to be forgotten
11 there, that nothing will happen until we are ready to have the trial. In
12 conformity or in line with the basic requirements of international human
13 rights, especially as they are applied here in Europe, we are required to
14 have what we refer to as Status Conferences, and these are held
15 periodically. Our Rule 65 bis requires that a Status Conference is held
16 at least within 120 days following the previous Status Conference. In the
17 case of today, it means that the first Status Conference must be held not
18 later 120 days starting from today.
19 These Status Conferences serve multiple purposes, the main being:
20 It will give the opportunity, first of all, to you to come face to face
21 with the Pre-Trial Judge; secondly, it will give the Trial Chamber an
22 opportunity to organise between the parties, Prosecution and the Defence,
23 exchanges in order to ensure an expeditious preparation for the trial; and
24 it will also give us, the Pre-Trial Judges, an opportunity to review the
25 case as it happens to -- the situation -- the status of the case as it
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1 happens to be at the time; and also, to give you the opportunity to raise
2 issues in relation to the case, including issues that may relate to your
3 state of detention and also to your physical and mental health.
4 I happen to be the Presiding Judge of Trial Chamber II, and
5 therefore I also have a responsibility within the next few days to
6 appoint, designate from amongst the permanent members of my Trial Chamber
7 a Pre-Trial Judge. For the time being, my intention is to assign myself
8 as your Pre-Trial Judge, and I intend to remain your Pre-Trial Judge until
9 I can carry the load, considering the fact that I am in the process of
10 drawing up a judgement in a very difficult case and that I have some other
11 cases. But the other two permanent Judges are also extremely busy, and I
12 think it's only fair at this moment to carry the burden myself. So I will
13 be your Presiding Judge. I will issue the order either later on today, if
14 we are still in time, or on Monday at the latest.
15 There is also one last matter that I wanted to raise, and this I
16 am addressing both to the Prosecution and, as a result, also to you. And
17 I'm referring to Rule 66, which makes it incumbent on the Prosecutor, of
18 course subject to the limitations to the provisions of Rules 53 and 69, to
19 make available to the Defence in a language which the two accused
20 understand within 30 days of -- from today copies of the supporting
21 material which accompanied the indictment when confirmation was sought
22 from Judge Parker, as well as all prior statements obtained by the
23 Prosecutor from the accused, if there are any. The second part of
24 Rule 66(A), that is paragraph 2, I don't think we need to go into at this
25 stage, that may come up later on.
Page 23
1 There are other matters that fall under Rule 66 which, again, we
2 will -- these are pleasures yet to come. We will be dealing with these in
3 the course of the Status Conferences that we will be holding. However,
4 parallel with this obligation of the Prosecutor to hand down to you the
5 material, the supporting material that I have mentioned, within 30 days
6 from today, our Rules in Rule 72 provide that you will have 30 days, and
7 Defence counsel, please take note of this. You will have 30 days after
8 the disclosure by the Prosecution to the Defence of all material and
9 statements referred to in the paragraph which I read out, that is
10 paragraph 66(A)(i), you have 30 days in which to file any preliminary
11 motions in terms of Rule 72. These are limited; namely, the motions I am
12 referring to motions challenging jurisdiction, motions alleging defects in
13 the form of the indictment, motions which seek that the trial does not
14 continue with the two of you being together, but are seeking the severance
15 of the counts joined in one indictment under Rule 49 or to seek separate
16 trials, and also preliminary motions which raise objections based on the
17 refusal of a request for assignment of counsel made under Rule 45.
18 Now, this brings me back to Rule 62, which imposes on me, as
19 Presiding Judge in this Initial Appearance, the duty to satisfy myself
20 that the right of the accused to counsel is respected. Now, I notice from
21 the information that I have that the only problem that there may still be
22 is with regard to Mr. Miroslav Separovic as legal representative and as
23 preferred lead counsel of accused Markac. I think from the looks of it,
24 there are no preliminary problems with regard to Cedo Prodanovic as
25 representing Mr. Cermak, and with regard to Mr. Mikulicic representing as
Page 24
1 co-counsel, General Markac. The right to a counsel of one's own choosing
2 is respected by this Tribunal, but it's not an absolute right. It doesn't
3 mean to say, for example, that you can bring with you to represent you
4 here anyone you like. We have got our Rules, and the Registrar needs to
5 be satisfied that the lawyers that you suggest satisfy the standards that
6 we have set, both with regard, for example, to qualifications, as well as
7 with familiarity with one or more of the languages of this Tribunal, as
8 well as with ethical standards. In other words, your right to counsel is
9 qualified by these considerations.
10 Also, your right to have counsel paid by this Tribunal is
11 regulated by our Rules which the Registrar will apply. I am here to make
12 sure that your rights are respected, not just these rights, but all other
13 substantial -- substantive and procedural rights. And I want to make
14 myself clear to you: If at any time you feel that your rights are not
15 being fully satisfied, please come back to me, through your lawyers
16 preferably, and bring any such complaints to my attention, and I will
17 attend to them. I also want to make clear that everyone here has his own
18 jurisdiction. The Registrar has his own jurisdiction; the Prosecutor has
19 her own jurisdiction; and we, as the Judges of this Tribunal and
20 Trial Chambers, we have got our jurisdiction. And we can only interfere
21 with some of the decisions of the Registrar in certain limited cases, but
22 even so, if a decision is taken with which you are aggrieved, there is a
23 remedy that our Rules provide for, it being either a direct appeal to the
24 Trial Chamber or a direct appeal to the President of the Tribunal in
25 certain circumstances. As you go along and if there are problems, I'm
Page 25
1 sure that you are in very capable hands, and your lawyers will advise you
2 accordingly.
3 We are quickly coming to an end. And before we close, I would
4 like to know if on the Prosecution's side there is any matter that you
5 would like to raise. Mr. Scott.
6 MR. SCOTT: No, Your Honour. We will make the disclosures in a
7 timely manner, I'm sure within the 30 days. We anticipate filing later
8 today a motion for protective measures that will enable us to make those
9 disclosures.
10 JUDGE AGIUS: I thank you. And I'm sure of your cooperation.
11 I start first with counsel for Mr. Cermak. Is there any matter
12 that you should like to raise at this stage?
13 MR. PRODANOVIC: [Interpretation] No, thank you, Your Honour. We
14 have no matter which we should like to raise at this stage, except as the
15 Defence counsel for Mr. Cermak I should like to tell you that very soon we
16 will avail ourselves of the rights of Rule 65, the ones that you
17 mentioned, in view of the fact that we consider that we have all the
18 conditions to table a request for provisional release. So we shall be
19 filing that with the Tribunal.
20 JUDGE AGIUS: Yes, thank you. And when you file that, it will be
21 given all due attention. May I remind you that that is a matter which the
22 entire Trial Chamber will need to consider. It's not something that the
23 Pre-Trial Judge alone -- can decide alone. Thank you.
24 MR. PRODANOVIC: [Interpretation] Thank you.
25 JUDGE AGIUS: And counsel for General Markac, is there any matter
Page 26
1 that you would like to raise on behalf of your client?
2 MR. MIKULICIC: [Interpretation] Your Honour, we have nothing at
3 this point in time, no matters to raise, except to say that, like the
4 Defence of General Cermak, we, too, would like to say that we shall be
5 filing a motion similar to the one they shall be doing.
6 JUDGE AGIUS: All right. I want to make sure of one thing before
7 we adjourn. I was made privy to some documentation that you both filed
8 relating to the health, medical condition of your respective clients. For
9 the time being, I only want to know whether that has been resolved to your
10 satisfaction.
11 MR. PRODANOVIC: [Interpretation] Your Honour, on behalf of the
12 accused Mr. Cermak, I should like to say that I handed over all the
13 medical documents yesterday which indicate that he has troubles with his
14 spine and high blood pressure. And he has been prescribed some medicines
15 for that. And as far as I know, he was examined medically today by a
16 physician, and I think that this procedure is progressing well, that he is
17 being taken care of. If there is something amiss, we shall, of course,
18 address the Court in due course. Thank you.
19 JUDGE AGIUS: I thank you.
20 Mr. Cermak, touching on this matter, do you wish to add anything
21 to what your lawyer has just stated? Is there anything else that I can do
22 for you in this area? I'm pretty sure that the matter will be attended to
23 in the most efficient manner by the Detention Unit. But I also want to
24 make sure that you are fully satisfied that your medical condition is
25 being attended to in an efficient manner.
Page 27
1 THE ACCUSED CERMAK: [Interpretation] Your Honour, the medical
2 staff in the Detention Unit are extremely courteous and are doing their
3 best for me. I have talked to the medical staff myself, and they have
4 accepted the documents, and I am given my medicines every day, without any
5 problems there. The Registrar will do his best to see that my back is
6 seen to and that I will be given an orthopedic bed because I have troubles
7 with my back. But I thank you for your concern.
8 JUDGE AGIUS: Thank you.
9 And counsel for General Markac, again, same question, same matter.
10 I also addressed some matters related to your client's health. We don't
11 need to go into details, neither with Mr. Cermak nor with Mr. Markac, even
12 though we're talking of minor things. But has the matter been resolved to
13 your client's satisfaction, to your knowledge?
14 MR. MIKULICIC: [Interpretation] Your Honour, we visited our client
15 this morning, and he informed us that with respect to the medical
16 documentation and treatment, everything is satisfactory.
17 JUDGE AGIUS: I thank you.
18 General, same question to you: Do you wish to add anything to
19 what has been -- just been stated by your counsel?
20 THE ACCUSED MARKAC: [Interpretation] Your Honour, I should like to
21 confirm what my counsel has just stated.
22 JUDGE AGIUS: Okay. And should there be reason to draw my
23 attention to some requirement that you need to be attended to, please do
24 let me know straight away. Inside the Detention Unit, there are the
25 facilities that allow for medical attention to be given promptly. There
Page 28
1 may be instances in which one requires medical attention from outside the
2 Detention Unit. That is not always dependable on the Detention Unit
3 itself, but it depends on other circumstances. If there are reasons for
4 concern, please do bring those to my attention. As I said, one of the
5 duties of the Trial Chamber is to ensure that all your rights are fully
6 respected.
7 Is there anything else you would like to raise? I know that your
8 lawyers don't -- don't have any other matter that they would like to
9 raise. If you have other -- yes, Mr. Cermak.
10 THE ACCUSED CERMAK: [Interpretation] Your Honour, I should just
11 like to thank you for your concern and attention with respect to our
12 health and everything else. Thank you. It is very kind of you.
13 JUDGE AGIUS: Thank you.
14 So with that, I think we can close this Initial Appearance. As I
15 said, I will give instructions to the Registrar to start planning for this
16 case to come to trial. And in the meantime, on our part, we will also try
17 to start planning for the Status Conferences and with the cooperation for
18 everything, we shall try to accelerate -- we will do our best to
19 accelerate the proceedings to have this case come to trial the earliest
20 possible. I thank you all, and good afternoon to everybody.
21 --- Whereupon the Initial Appearance adjourned
22 at 3.31 p.m.
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