111201ED

Page 82

1 Thursday, 1 December 2011

2 [Open session]

3 [Defence Closing Statement]

4 [The accused not present]

5 --- Upon commencing at 9.02 a.m.

6 JUDGE FLUEGGE: Good morning to everybody in the courtroom.

7 I note the accused is not present today. We received the waiver

8 of his right to be present on the same reasons as yesterday.

9 We -- this hearing was scheduled to hear your closing arguments,

10 Mr. Dieckmann. You have the floor.

11 MR. DIECKMANN: Your Honours, thank you very much.

12 This is Jens Dieckmann for the accused together with his assigned

13 legal assistant Ms. O'Leary here and Ms. Jasna Sajkov.

14 Your Honour, may it pleas the court. I'm here this morning on

15 behalf of the accused requesting that you acquit the accused on the count

16 in the Order in Lieu of Indictment.

17 Your Honours, on this journey, we finally left the plain of the

18 Rule 98 bis where we stood face to face with the prosecuting evidence.

19 Now, today, after the evidence is closed, we arrived on the mountain

20 height of final argument of judgement where the perspective totally

21 changed, the horizon is broadened and we have now full picture of the

22 evidence and where it is now up to you, Your Honours, to weigh it

23 carefully, the evidence in its totality.

24 Under Article 21(3) of the Statute of this Tribunal, the accused

25 is entitled to a presumption of innocence. The burden is on the

Page 83

1 prosecuting part to prove the guilt of the accused beyond a reasonable

2 doubt. That is to prove every material fact, which goes towards the

3 guilt of the accused. The burden does not shift to the Defence under any

4 circumstances. And I refer to prosecutor versus Vasiljevic, case number

5 IT-98-32-A, appeals judgement, February 2004, para 120.

6 In accordance with Rule 87(A) of the Rules, fully applicable in

7 contempt proceedings, a Trial Chamber should determine whether the

8 ultimate result of the whole evidence is weighty and convincing enough to

9 establish beyond a reasonable doubt the facts alleged and ultimately the

10 guilt of the accused.

11 In determining whether the guilt of the accused has been

12 established to this standard, the Chamber has been careful to consider

13 whether there is any reasonable explanation for it other than the guilt

14 of the accused. We refer to Prosecutor versus Brdjanin case number

15 IT-99-36-T, judgement from the 1st September 2004, para 23.

16 It has been further articulated that:

17 "It is not sufficient that it is a reasonable conclusion

18 available from the evidence. It must be the only reasonable conclusion

19 available. If there is another conclusion which is consistent with the

20 innocence of the accused, he must be acquitted."

21 Prosecutor versus Delalic et al, case IT-96-21-A, judgement from

22 the 20th February 2001, para 458.

23 This is in accordance with the principle of in dubio pro reo,

24 according to which any doubt must be resolved in favour of the accused.

25 Furthermore, Your Honours, it is well-settled in the

Page 84

1 jurisprudence of this Tribunal that hearsay evidence is, in general,

2 admissible. The Chamber have stated that the absence of the opportunity

3 to cross-examine the person who made the statements and whether the

4 hearsay is first-hand, or even more removed, are relevant to the

5 probative value of this evidence. We refer to Prosecutor versus Blaskic

6 case number IT-95-14-T, decision on the standing objection of the Defence

7 to the admission of hearsay with no inquiry as to its reliability from

8 the 21st January 1998, para 12 .

9 The approach adopted by the Tribunal has been to consider that

10 the fact that the piece evidence is hearsay does not necessarily deprive

11 it of a probative value. However, it is acknowledged that:

12 "The weight or probative value to be afforded to that evidence

13 will usually be less than that given to the testimony of a witness who

14 has given it under a form of oath and who has been cross-examined, even

15 though this will depend upon the infinitely available circumstances which

16 surround hearsay evidence."

17 We refer to case Prosecutor versus Aleksovski, case number

18 IT-95-7/1-AR73 [sic], decision on the prosecutor's appeal on

19 admissibility of evidence, 16th February, 1999, para 15.

20 Your Honours, we elaborated yesterday already about contempt, and

21 just a short notice that contempt of court is an act or omission intended

22 to interfere with the due administration of justice. And we refer again

23 to the Prosecutor versus Brdjanin concerning allegations against

24 Milka Maglov, case IT-99-36-R77, decision on motion for acquittal

25 pursuant to Rule 98 bis on 19 March 2004, para 14.

Page 85

1 As it has been outlined in the previous submissions of Defence

2 yesterday, the first Trial Judgement examined contempt under Rule

3 77(A)(iii) outlined in examination of three questions. These three

4 questions are still the starting point for Defence final submissions

5 today. Contempt charges raised on this subground requires following this

6 jurisprudence an examination of the following three questions: First,

7 did the accused fail to comply with an order to attend before the

8 Chamber? Secondly, if so, did the accused have a just excuse? And,

9 thirdly, where relevant, did the accused knowingly and wilfully interfere

10 with the administration of justice?

11 This is all is taken from in the matter of Ljubisa Petkovic, case

12 IT-03-67-R77.1, redacted version of judgement, 9 December, 2008, para 41.

13 Your Honours, in fact the Defence case is rather simple. The

14 prosecuting documents, already on their face, do not show a culpable

15 actus reus, nor a culpable mens rea that suffices for a conviction of

16 contempt. But the prosecuting documents, when thoroughly removed and

17 taken in the context of the totality of the evidence show, in fact,

18 compliance of the accused. It shows impossibility of attendance for

19 testimony on 14 September 2011 and a misunderstanding that pervaded the

20 communication of all parties involved.

21 Addressing the questions as outlined in the jurisprudence, the

22 Defence submits that Mr. Pecanac did not fail to comply with an order to

23 attend before the Chamber and that, even if the Chamber were to find he

24 did, there were at least four just excuses to any perceived violation.

25 Finally, Mr. Pecanac did not willingly or knowingly interfere

Page 86

1 with the administration of justice.

2 Your Honours, can we go in private session.

3 JUDGE FLUEGGE: Yes, we turn into private session.

4 [Private session]

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 87

11 Pages 87-90 redacted. Private session.

Page 92

1 permission from his government for his testimony. This is a clear

2 reference of the accused to binding law, binding for the ICTY as well as

3 for the Serbian authorities.

4 Just a question, is this evidence shown in public then? No?

5 Okay. Thank you very much.

6 JUDGE FLUEGGE: It will not be broadcast.

7 MR. DIECKMANN: Good.

8 Your Honours, we lead Your Honours' attention to the Republic of

9 Serbian Criminal Code of procedure. This is D25, Article 97, which is

10 relevant to ICTY proceedings via Article 10 and Article 40 of the Law on

11 Cooperation between Serbia and Montenegro and the ICTY. This is --

12 JUDGE FLUEGGE: We have to consider for a moment if this document

13 is under seal. I don't think so.

14 MR. DIECKMANN: Your Honour --

15 JUDGE FLUEGGE: Therefore there is no problem to broadcast it.

16 MR. DIECKMANN: Your Honours, I'm sorry, I just would mention it,

17 it was not intended to upload it. So in -- in the interests to save the

18 time of the Chamber, I just like -- in the final brief I would like to

19 address Your Honours on the source of my submissions.

20 JUDGE FLUEGGE: No problem. Go ahead, please.

21 MR. DIECKMANN: Thank you very much.

22 So this would require a waiver from the Republic of Serbia

23 pursuant to Article 10(2) of this national Law on Cooperation between

24 Serbia and Montenegro.

25 Oh, yes. I think it's missing in the protocol. The reference

Page 93

1 for this law. It is on page 11, line 8. The Law on Cooperation between

2 Serbia and Montenegro and the ICTY. This is D24. It has to be included.

3 So, to sum it up again, this reference the accused made that he

4 needs this waiver has its legal base in this regulations I just

5 mentioned.

6 Your Honours, could we go again in private session.

7 JUDGE FLUEGGE: Private.

8 [Private session]

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 94

11 Pages 94-99 redacted. Private session.

Page 100

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 [Open session]

25 THE REGISTRAR: We're back in open session, Your Honours. Thank

Page 101

1 you.

2 MR. DIECKMANN: Your Honours, the third point to address, the

3 mens rea. In order to make a finding of mens rea of contempt, it must be

4 established "that the accused had the specific intent to interfere with

5 the Tribunal's due administration of justice."

6 I refer again to the already-mentioned decision in the Brdjanin

7 case, para 14.

8 The mens rea must be established on a case-by-case basis relating

9 to the conduct charged. However, "mere negligence in failing to

10 ascertain whether an order has been made does not amount to contempt."

11 Para 39 of the Brdjanin decision.

12 That level of mens rea, indifference or reckless negligence,

13 while perhaps rising to a level that interferes in the administration of

14 justice "could never justify imprisonment or a substantial fine."

15 This is also para 39 of the Brdjanin decision.

16 Your Honours, can we go back in private session, please.

17 JUDGE FLUEGGE: Private.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 102

11 Pages 102-103 redacted. Private session.

Page 104

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

6 THE REGISTRAR: We're in open session. Thank you.

7 JUDGE FLUEGGE: Please continue.

8 MR. DIECKMANN: Your Honours, as the Chamber is aware, all

9 proceedings before this Tribunal must held in consonance with the right

10 of the accused as enumerated in the ICTY Statute, Articles 20 and 21.

11 All allegations must be proven beyond a reasonable doubt in accordance

12 with the standard set forth by ICTY Rule 87(A), the Tribunal's

13 jurisprudence, and the fundamental principles of international human

14 rights and humanitarian law that support a presumption of innocence. "At

15 the conclusion of the case the accused is entitled to the benefit of the

16 doubt as to whether the offence has been proved."

17 Taken from Prosecutor versus Delalic, et al, IT-96-21, Trial

18 Judgement, 16 November 1998, para 601.

19 The Defence offered an alternative scenario that prevents a

20 finding of contentious behaviour beyond a reasonable doubt. There is a

21 reasonable alternative shown on the evidence that Mr. Pecanac was willing

22 and cooperative in these steps taken informing the competent authorities

23 on 2nd September about all issues has to be solved to realize his will to

24 appear and to solve the problems that he is not anymore unable to

25 testify.

Page 105

1 He properly informed the institutions about all whatever steps

2 are reasonably necessary to ensure his appearance at trial as set in

3 subpoena and, in fact, he was simply awaiting resolutions of these

4 matters when he received the document on the 14th September. This was

5 the first moment he realized in what an urgent situation, in fact, he

6 was.

7 Your Honours, finally, even if the Chamber disagrees and finds

8 the accused guilty, the Defence submits that he should be sentenced to

9 time served which amounts to over two months in custody, tolling from 27

10 September 2011, as indicated in Defence Exhibit D26.

11 Your Honours, could we go into private again.

12 JUDGE FLUEGGE: Private.

13 [Private session]

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 106

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Open session]

16 THE REGISTRAR: We're in open session, Your Honours. Thank you.

17 JUDGE FLUEGGE: Mr. Dieckmann.

18 MR. DIECKMANN: Your Honours, given these submissions, the

19 Defence would ask for the acquittal and release of Mr. Dragomir Pecanac

20 from the custody of the Detention Unit. If granted, we would ask to make

21 such release contingent upon a renewed issuance of the Order of Safe

22 Conduct as provided for his transfer to The Hague.

23 Your Honours, before I close, and even the time is ticking,

24 please allow me two personal remarks at this stage of my proceedings.

25 As Your Honours know, it is a good traditional at this Tribunal

Page 107

1 to express gratitude to your team at the end of the trial case, what is

2 very proper after sometimes years of common Defence in complex cases.

3 With your leave I would do so here in this case, even in a contempt case.

4 Your Honours, in contempt cases a counsel is not entitled to ask for an

5 assignment of a co-counsel since these cases are usually expected rather

6 short and limited in legal and factual issues. Your Honour, this case

7 shows that in fact there are no real small cases at this Tribunal. Each

8 case has its very specific challenges.

9 I can only say that I was in a very lucky situation to have

10 Ms. O'Leary, attorney at law from United States, as well as

11 Ms. Jasna Sajkov from the bar of Belgrade at my side as assigned legal

12 assistant. Through their commitment, their expertise, and their highest

13 proficiency, the accused was in fact in a privileged situation to be

14 supported by three attorneys at law. I am most grateful for all their

15 work and inspiration which enabled the Defence to fully fulfil its duties

16 in this short case.

17 And finally I have to express my deepest gratitude to the

18 accused, and it is a very sad moment that he is not able to participate

19 his trial. Originally assigned as his duty counsel, it was, and it is an

20 honour to me to serve him as his permanently assigned counsel in this

21 proceeding, and I'm very grateful for his trust and confidence.

22 Your Honours, this concludes my submissions. I thank you very

23 much. We are now in your hands.

24 Thank you very much.

25 JUDGE FLUEGGE: Thank you very much, Mr. Dieckmann, for your

Page 108

1 final submission.

2 During your submission, your closing arguments, it came to my

3 mind that we didn't deal with the confidentiality of some documents,

4 Defence documents. I'm not quite sure because I haven't read the

5 Internal Memorandum by Registry about the status of some documents. I'm

6 not sure if all of them, the Defence documents, are under seal or not.

7 Let me just confer with the Court Officer.

8 [Trial Chamber and Registrar confer]

9 JUDGE FLUEGGE: I received the confirmation that all Defence

10 exhibit, except two, are under seal. The two of the Laws on Cooperation

11 and the Criminal Code of Serbia.

12 I think we are now at the end of this case, except a Judgement.

13 I have received your indication when you would be available,

14 Mr. Dieckmann, and we have to discuss it in the Chamber which would be a

15 suitable day for the Judgement, which has to be drafted first. We will

16 communicate that to you as soon as possible, and we will find a suitable

17 day.

18 Thank you very much. This concludes today's hearing. We

19 adjourn.

20 --- Whereupon the hearing adjourned at 10.13 a.m.,

21 sine die