Tribunal Criminal Tribunal for the Former Yugoslavia

Page 137

1 Friday, 27 June 2003

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.36 p.m.

6 JUDGE SCHOMBURG: Madam Registrar, may I ask you to call the case,

7 please.

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

9 IT-94-2-PT, the Prosecutor versus Dragan Nikolic.

10 JUDGE SCHOMBURG: Thank you.

11 Good afternoon, ladies and gentlemen. Before we start, let me

12 first make sure that everybody can follow the proceedings.

13 Mr. Nikolic, can you hear me in a language you understand?

14 THE ACCUSED: [Interpretation] Yes.

15 JUDGE SCHOMBURG: Thank you.

16 Under the Rules, we have today a Status Conference. It's a

17 special Status Conference to that end that - and I have to tell this for

18 reasons of transparency - initially it was aimed at having a plea

19 agreement, but all the intents failed to come to such an agreement until

20 now.

21 We have, however, a new indictment, the third amended indictment.

22 And following Rule 50 of our Statute and of our Rules of Procedure and

23 Evidence, when new charges are included a further appearance shall be held

24 as soon as practicable to enable the accused to enter a plea on the new

25 charges. And this will form the first part of today's hearing.

Page 138

1 Let me take the opportunity to thank the parties, both parties,

2 for all their efforts to streamline this case. Initially we had a case

3 including 88 counts. Today when we will hear this indictment, we have

4 four counts only. But also for reasons of transparency, it has to be

5 emphasised that nothing has changed with the factual basis. It is only a

6 new assessment and streamlining of the legal assessment of the case. And

7 I think that's the most important development.

8 I thank you, because we're all aware how precious and good the

9 time of the judiciary is and that it's in the interest of the one having

10 mandated us, the international taxpayer, to come as soon as possible to a

11 solution and not to expound on unnecessary charges.

12 So when having heard the plea of Mr. Nikolic related to the new

13 charges, then we have to decide, and of course it depends on the outcome

14 of his pleas, whether we have to set a date for trial for September or set

15 a date for a sentencing hearing later.

16 May I ask the Defence: Did you have the possibility to discuss

17 this new document with your client?

18 MR. MORRISON: If it please, Your Honour, yes, the opportunity has

19 been given. The indictment has been translated into B/C/S, and the

20 defendant has had an opportunity to read it and is now content to enter

21 pleas to that indictment.

22 JUDGE SCHOMBURG: Thank you.

23 Mr. Nikolic, before the indictment will be read out, it's my

24 obligation once again to tell you that it's your right to remain silent.

25 No inference to your disadvantage can be drawn if you remain totally

Page 139

1 silent. The only inference that can be drawn can be found in Rule 62 of

2 our Rules of Procedure and Evidence, where you can read that "If the

3 accused fails to enter a plea in a further appearance, the Judge shall

4 enter a plea of not guilty on the accused's behalf."

5 But I have to warn you at the same time that everything you may

6 say in the courtroom may be used even against you in evidence. This part

7 of the admonition is mandatory under the Rules and under the fundamental

8 principles of criminal procedure. However, it is only fair to tell you

9 about the other side of the same coin. With respect especially to your

10 case, I have once again to tell you that as a general rule respected in

11 all courtrooms on this globe that any kind of cooperation would be of

12 advantage for an accused.

13 You, Mr. Nikolic, are best placed to know what really happened

14 between June 1992 and September 1992. You have had the chance during the

15 last three years to assess in general terms the evidence available.

16 Therefore, Mr. Nikolic, it is for you to decide which avenue you take, to

17 make use of the right to remain silent or to cooperate. It is for you to

18 plea guilty or not guilty. You are aware about the consequences.

19 May I ask you, did you understand this admonition, Mr. Nikolic?

20 THE ACCUSED: [Interpretation] I understood it.

21 JUDGE SCHOMBURG: Then may I ask Madam Registrar to read out the

22 third amended indictment of June 23, please.

23 THE REGISTRAR: Yes, Your Honour.

24 The Prosecutor of the International Criminal Tribunal for the

25 Former Yugoslavia, pursuant to her authority under Article 18 of the

Page 140

1 Statute of the Tribunal, charges:

2 Dragan Nikolic, also known as Jenki, with crimes against humanity

3 as set forth below:

4 The accused, Dragan Nikolic, born on 26 April 1957, is from the

5 town of Vlasenica, Bosnia-Herzegovina. Before the war, he worked at the

6 Alpro aluminium factory in Vlasenica. He lived with his family on Zarka

7 Vukavica Street in the Krusevik section of Vlasenica. From at least early

8 June 1992 until about 30 September, 1992, Dragan Nikolic was commander of

9 Susica detention camp in Vlasenica.

10 Individual criminal responsibility. Article 7(1) of the Statute

11 of the Tribunal. Dragan Nikolic is individually criminally responsible

12 pursuant to Article 7(1) for planning, instigating, ordering, committing

13 or otherwise aiding and abetting in the planning, preparation, or

14 execution of all crimes charged in the indictment.

15 The charges: Count 1, persecutions. From at least early June

16 1992 until about 30 September 1992 Dragan Nikolic persecuted the Muslim

17 and non-Serb detainees at Susica camp on political, racial, and religious

18 grounds.

19 Dragan Nikolic persecuted Muslim and non-Serb detainees at the

20 Susica camp by subjecting them to murders, rapes, and torture as charged

21 specifically in the indictment. In addition, Dragan Nikolic persecuted

22 Muslims and non-Serb detainees by participating in sexual violence

23 directed at women at the Susica camp as set forth in paragraph 20 and 21

24 of the indictment.

25 As part of the persecutions, Dragan Nikolic detained Muslim and

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1 non-Serbs at the Susica camp and assisted in the forcible transfer of

2 those at the camp from the Vlasenica municipality. At the end of June

3 1992, large numbers of the male detainees were transferred from the camp

4 to the larger Batkovic detention camp near Bijelina in north-eastern

5 Bosnia and Herzegovina. Most of the women and children detainees were

6 transferred either to Kladanj or Cerska in Bosnian-Muslim controlled

7 territory.

8 As part of the persecutions, Dragan Nikolic subjected detainees to

9 an atmosphere of terror created by the murders, beatings, sexual violence

10 and other physical and mental abuse of detainees and to inhumane living

11 conditions by being deprived of adequate food, water, medical care,

12 sleeping and toilet facilities. As a result, detainees suffered severe

13 psychological and physical trauma. Dragan Nikolic participated in

14 creating and maintaining this atmosphere of terror and the inhumane

15 conditions.

16 By his participation in the acts or omissions described in

17 paragraph 3(6) Dragan Nikolic is individually criminally responsible for:

18 Count 1: Persecutions on political, racial and religious grounds,

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

20 the Tribunal.

21 Count 2, murder. Durmo Handzic and Asim Zildzic.

22 One evening between about 13 June 1992 and about 24 June 1992

23 Dragan Nikolic and other guards at Susica camp entered the hangar building

24 and called out Durmo Handzic and Asim Zildzic. After taking them outside

25 the building Dragan Nikolic and the guards subjected Durmo Handzic, and

Page 142

1 Asim Zildzic to severe physical abuse, including punching, kicking, and

2 beatings with weapons such as lengths of wood lasting for at least 45

3 minutes, during which time the two men repeatedly begged for the beating

4 to stop.

5 When the beating concluded, both detainees were brought back to

6 the hangar. Asim Zildzic died shortly after returning. The following

7 morning upon the order of Dragan Nikolic, two detainees buried Asim

8 Zildzic.

9 Later that morning Dragan Nikolic entered the hangar and

10 approached Durmo Handzic. Although Handzic was in severe agony from being

11 beaten the night before, Dragan Nikolic demanded information regarding

12 Durmo Handzic's son. Durmo Handzic died shortly after his encounter and

13 was buried that day by other detainees.

14 Rasid Ferhatbegovic, Muharem Kolarevic, Dzevad Saric and Ismet

15 Zekic.

16 During the night of 23 and 24 June 1992, Dragan Nikolic entered

17 the hangar and ordered Muharem Kolarevic and Dzevad Saric to be taken

18 outside. Sometime after that, other guards removed Ismet "Musa" Zekic

19 also from the hangar. For approximately 30 minutes after the men were

20 taken from the hangar, detainees inside heard cries of pain and then

21 gunshots that came from a location close to the hangar.

22 After the gunshots were heard, a guard called two detainees from

23 the hangar and ordered them to dispose of the bodies of Muharem Kolarevic

24 and Zvevad Saric behind the hangar. Dragan Nikolic ordered the two

25 detainees to wash away the blood on the ground where the deceased had been

Page 143

1 beaten.

2 After attempting to wash away the blood, the two detainees waited

3 outside the hangar. As Dragan Nikolic sat inside the nearby guardhouse,

4 the two men watched the same guard who had called them out to the hangar

5 shoot and kill Ismet Zekic.

6 Shortly after Ismet Zekic was killed, Dragan Nikolic and the guard

7 who had shot Zekic entered the hangar with some local police. The police

8 pointed at Rasid Ferhatbegovic and asked if he was the one who was running

9 away. The guard who had shot Ismet Zekic said yes. Rasid Ferhatbegovic

10 was then taken outside and shortly thereafter the other prisoners heard

11 one shot.

12 Early the next morning, Dragan Nikolic entered the hangar and

13 again called out the two detainees who had disposed of the bodies the day

14 before. They went to the area of the camp that was being used as a toilet

15 and found the body of Muharem Kolarevic slumped over a fence caught in a

16 wire. The guard who had shot Ismet Zekic the day before then shot

17 Kolarevic again. The two prisoners then took the body of Muharem

18 Kolarevic to where they had left the bodies the previous evening and there

19 they saw the body of Rasid Ferhatbegovic with a bullet hole in the centre

20 of his forehead.

21 Ismet Dedic.

22 On or about 6 July 1992, Dragan Nikolic took Ismet Dedic out of

23 the hangar at Susica camp and closed the door behind them. Detainees

24 inside the hall then heard Ismet Dedic scream. A few minutes later Dragan

25 Nikolic directed two detainees to drag Ismet Dedic inside the hangar where

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1 the other detainees could see that Ismet Dedic's body was covered in

2 blood. His body was barely recognisable and he appeared to have suffered

3 serious injuries. Ismet Dedic died shortly thereafter. His body was

4 placed in a plastic bag and removed from other detainees.

5 Mevludin Hatunic.

6 Mevludin Hatunic, his wife and daughter were detained in Susica

7 camp in early July 1992. Between about 3 July and 7 July 1992, while

8 detained in the camp, Mevludin Hatunic offered his house to a Serb in

9 exchange for moving his family out of the area. Hatunic was then

10 permitted to leave the camp to arrange the transfer of the house. Upon

11 his return, Dragan Nikolic accused Hatunic of having told the Serb to whom

12 he had given his house that Hatunic would wait for his opportunity to get

13 even. That evening, because he had allegedly made such a statement,

14 Dragan Nikolic beat Mevludin Hatunic. The next morning Dragan Nikolic

15 beat Mevludin Hatunic again until Mevludin Hatunic lost consciousness.

16 Later that evening Dragan Nikolic returned and finding that Mevludin

17 Hatunic had regained consciousness beat him a third time. A short time

18 later Mevludin Hatunic died as a result of the beatings. His body was

19 placed in a plastic bag and was removed from the hangar by other

20 detainees.

21 Galib Music.

22 From about the second week of July, 1992 over a second day

23 period -- a seven-day period, Dragan Nikolic beat Galib Music, a

24 60-year-old detainee, by, among other things, kicking him and beating him

25 with a metal pipe. During the beatings, Dragan Nikolic accused Galib

Page 145

1 Music of asking a Muslim organisation to come to expel the Serbs from

2 Vlasenica. Each time Dragan Nikolic beat Galib Music, Music lost

3 consciousness and after approximately seven days Galib Music died.

4 By his participation in the acts and omissions described in

5 paragraphs 8 through 18 in relation to Durmo Handzic, Asim Zildzic,

6 Rasid Ferhatbegovic, Muharem Kolarevic, Dzevad Saric, Ismet Zekic, Ismet

7 Dedic, Mevludin Hatunic and Galib Music, Dragan Nikolic is individually

8 criminally responsibility for:

9 Count 2: Murder, a crime against humanity, punishable numbered

10 Article 5(a) of the Statute of the Tribunal.

11 Count 3, sexual violence.

12 From early June until about 15 September 1992, many female

13 detainees at Susica camp were subjected to sexual assaults including

14 rapes and degrading physical and verbal abuse. Dragan Nikolic personally

15 removed and otherwise facilitated the removal of female detainees from the

16 hangar which he knew were for the purpose of rapes and other sexually

17 abusive conducts. The sexual assaults were committed by camp guards,

18 special forces, local soldiers, and other men.

19 Female detainees were sexually assaulted at various locations,

20 such as the guardhouse, the houses surrounding the camp, at the Panorama

21 Hotel, a military headquarters, and at locations where such women were

22 taken to perform forced labour. Dragan Nikolic allowed female detainees,

23 including girls and elderly women, to be verbally subjected to humiliating

24 sexual threats in the presence of other detainees in the hangar. Dragan

25 Nikolic facilitated the removal of female detainees by allowing guards,

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1 soldiers, and other males to have access to these women on a repetitive

2 basis and by otherwise encouraging the sexually abusive conduct.

3 By his aiding and abetting in the conduct described in paragraph

4 20 and 21, in relation to female detainees in the Susica camp, Dragan

5 Nikolic is individually criminally responsible for:

6 Count 3: Rape, a crime against humanity, punishable under Article

7 5(G) of the Statute of the Tribunal.

8 Count 4, torture.

9 Fikret "Cice" Arnaut.

10 From about 1 June to about 18 July 1992, Dragan Nikolic beat

11 Fikret "Cice" Arnaut, by kicking him, stomping on him, and punching him

12 with metal knuckles on his fists. The beatings took place both inside and

13 outside the hangar. Several of the beatings took place in a corner of the

14 hangar known as the punishment corner.

15 On one occasion Dragan Nikolic came into the hangar and told

16 Fikret Arnaut to kneel on the floor, put his hands behind his head, and

17 tilt his head back. Dragan Nikolic then put a bayonet in his mouth and

18 asked him about his brothers, who Dragan Nikolic claimed had joined a

19 group of the Ustasha. Later that same day, two men came to the hangar and

20 took Fikret Arnaut outside. When Fikret Arnaut returned, he had been

21 beaten severely and was bleeding from his mouth. Shortly thereafter,

22 Dragan Nikolic came to Fikret Arnaut in the hangar and said words to the

23 effect, "What? They did not beat you enough; if it had been me, you would

24 not be able to walk. They are not as well trained to beat people as I

25 am."

Page 147

1 On one occasion, Dragan Nikolic took Fikret Arnaut outside the

2 hangar and beat Fikret Arnaut with metal knuckles. Fikret Arnaut fell to

3 the ground and Dragan Nikolic kicked his rib and back around the kidney

4 area. During this beating, Dragan Nikolic accused Fikret Arnaut of

5 organising the Muslims.

6 On a subsequent occasion, Dragan Nikolic approached Fikret Arnaut

7 in the hangar and said words to the effect, "I can't believe how an animal

8 like this can't die. He must have two hearts." Dragan Nikolic then beat

9 Fikret Arnaut again and stomped on his chest.

10 Sead Ambeskovic and Hajrudin Osmanovic.

11 On 11 June 1992, Sead Ambeskovic was arrested in Vlasenica.

12 Police first interrogated him and took him to the Susica camp. Once in

13 the camp, Dragan Nikolic and others beat Sead Ambeskovic, using axe

14 handles, iron bars, and rifle butts.

15 In the morning of 14 June 1992, guards took Sead Ambeskovic and

16 Hajrudin Osmanovic from the hangar. The two men were ordered to kneel

17 with their hands behind their heads. Dragan Nikolic asked them where

18 their weapons were and to identify others who had weapons. During the

19 interrogation, Dragan Nikolic and others then beat them with iron bars,

20 wooden bats, and rifle butts for approximately one and one half hours. As

21 a result of this beating, the back of Sead Ambeskovic's head was cut.

22 Four teeth on the left side of his mouth were knocked out and three ribs

23 were broken.

24 On or about 16 June 1992, Dragan Nikolic again called Sead

25 Ambeskovic and Hajrudin Osmanovic out of the hangar. Once outside, Dragan

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1 Nikolic demanded to know if they had weapons and who else had weapons.

2 Dragan Nikolic and two other guards immediately began beating them with

3 bats for 10 to 15 minutes.

4 On 3 July 1992, Hajrudin Osmanovic was taken from the Susica camp

5 to perform forced labour; he has never been seen since.

6 Suad Mahmutovic.

7 From about 13 June to about 3 July 1992, Suad Mahmutovic suffered

8 frequent sometimes daily beatings by Dragan Nikolic at Susica camp.

9 Dragan Nikolic beat Suad Mahmutovic with iron bars, rifle butts, and

10 rubber tubing with led inside. During one beating, seven of Suad

11 Mahmutovic's ribs were broken. On a separate occasion, Dragan Nikolic

12 kicked Suad Mahmutovic in the face with his boot which caused a cut that

13 left permanent scars.

14 On one occasion, Dragan Nikolic placed a cocked pistol inside Suad

15 Mahmutovic's mouth. Dragan Nikolic tried to force Suad Mahmutovic to

16 admit that his neighbour had a weapon, but Suad Mahmutovic refused.

17 Dragan Nikolic then pulled the trigger but the gun was not loaded.

18 Redzo Cakisic was arrested on 2 June 1992 and taken to Susica

19 camp. Upon arrival, Dragan Nikolic and other guards searched him. He was

20 then taken to the hangar where with other detainees he was ordered to line

21 up and lean against the wall with his hands behind his back. Dragan

22 Nikolic then hit Redzo Cakisic and other detainees with his rifle butt and

23 kicked him with his boots.

24 Approximately ten days later, Dragan Nikolic called Redzo Cakisic

25 from the hangar during the night. Two men were waiting outside with

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1 Dragan Nikolic. Nikolic said to them words to the effect, "Here, I

2 brought you something for dinner." The two men who were not camp guards

3 hit Redzo Cakisic in the back with rifle butts and kicked him in the

4 stomach and sides. During this beating, Dragan Nikolic was approximately

5 5 metres away in the guardhouse. The beating continued for about 20

6 minutes.

7 By his participation in the acts and omissions described in

8 paragraphs 23 to 34, in relation to Fikret "Cice" Arnaut, Sead Ambeskovic,

9 Hajrudin Osmanovic, Suad Mahmutovic, and Redzo Cakisic, Dragan Nikolic is

10 individually criminally responsible for:

11 Count 4: Torture, a crime against humanity, punishable under

12 Article 5(f) of the Statute of the Tribunal.

13 General legal allegations.

14 All acts or omissions charged as crimes against humanity occurred

15 during an armed conflict in Bosnia-Herzegovina and were related to a

16 widespread or systematic attack directed against the civilian population,

17 specifically the Muslim and non-Serb population of the Vlasenica

18 municipality.

19 Additional facts.

20 The municipality of Vlasenica is in Eastern Bosnia and

21 Herzegovina, approximately 50 kilometres west of the Serbian border and

22 approximately 120 kilometres north-east of Sarajevo. According to the

23 1991 census, the municipality had approximately 33.817 citizens of whom

24 approximately 55 per cent were Muslim, 43 per cent were Serb, and 2 per

25 cent were described as other. The town of Vlasenica is located within the

Page 150

1 municipality of the same name. In 1991, the town of Vlasenica had

2 approximately 7.500 citizens, approximately 65 per cent of whom were

3 Muslim and 35 per cent were Serb.

4 In January 1992, Serbs from Vlasenica in eight neighbouring

5 municipalities declared the area to be the "Birac Autonomous Region"

6 within the Federal Republic of Yugoslavia. Tensions increased in the

7 spring of 1992 with the referendum on the proposed independence of Bosnia

8 and Herzegovina.

9 About 21 of April, 1992 Serb forces took over the town of

10 Vlasenica and declared it to be the Serbian town -- declared it to be a

11 Serbian town. JNA soldiers, including soldiers purporting to be from the

12 Novi Sad Corps from Serbia, the paramilitary forces and local military

13 soldiers participated in the takeover. During the day, police vehicles

14 drove around Vlasenica town and issued an ultimatum over loudspeakers for

15 Muslims to turn in their weapons. The Muslim population complied with the

16 ultimatum and did not resist.

17 Once the Serbs took control of the municipality, the Crisis Staff,

18 (Krisni Stab) administered the town and appointed Serbs to all of the

19 official positions. Local Serb men were mobilised and took over military

20 responsibilities from the JNA forces. Among other things, local Serb

21 military forces guarded important facilities and later were formed into

22 companies and used to search surrounding woods for armed Muslims.

23 After the takeover, conditions for Muslims and other non-Serbs in

24 the municipality deteriorated. The Serb authorities fired Muslims and

25 other non-Serbs from their jobs and limited their withdrawal of funds from

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1 banks. The Serb authorities did not permit the Muslims and other

2 non-Serbs to travel without special passes. Muslim men were frequently

3 arrested and brought to the police station for interrogation. Beatings

4 and murders sometimes accompanied the interrogations.

5 Many Muslims and other non-Serbs fled to the Vlasenica area, and

6 beginning in May 1992 and continuing until September 1992 those Muslims

7 and other non-Serbs were -- who had remained were either forcibly expelled

8 or arrested. By September 1992, virtually no Muslims or non-Serbs

9 remained in Vlasenica.

10 The Serb forces initially held the arrested Muslims and other

11 Serbs either at a local school or the local prison of Vlasenica. In

12 approximately late May or early June 1992, the Serb forces established a

13 detention camp at Susica, the main detention facility in Vlasenica area,

14 and sent the arrested Muslims and non-Serbs there. The Susica camp was

15 run by the military and the local police militia. The camp guards were

16 generally soldiers from the local area.

17 Susica camp was located approximately 1 kilometre from the town of

18 Vlasenica, in a military facility that had previously been used for

19 storage of military equipment. Men, women, and children were kept in the

20 camp. However, the women and children generally stayed for only short

21 periods of time before being forcibly transferred to nearby Muslim areas.

22 Before being forcibly transferred, non-Serbs usually had to sign a

23 document stating that they were leaving the area voluntarily and that they

24 were giving up their possessions.

25 Susica camp consisted of two main buildings, a warehouse or

Page 152

1 hangar, 50 metres by 30 metres, which was used to house the detainees, and

2 a second smaller building which was used for storage of the equipment.

3 There was also a small house used by the guards and commander of the camp

4 to interrogate detainees when they arrived. Between late May and October

5 1992, as many as 8.000 Muslim civilians and other non-Serbs from Vlasenica

6 and the surrounding villages were detained in the hangar in the Susica

7 camp.

8 The number of detainees in the hangar at any one time varied but

9 was generally between 300 and 500 detainees. The building was severely

10 overcrowded, detainees were not provided with anything to sleep on, toilet

11 facilities were limited, and there were no showers. The food provided was

12 sparse and often spoiled. The guards brutally beat the detainees on a

13 daily basis. Many detainees died from the beatings by the guards.

14 Many of the detained women were subjected to sexual assaults,

15 including rape. Camp guards or other men who were allowed to enter the

16 camp frequently took women out of the hangar at night. When the women

17 entered, they were often in a traumatised state and other detainees

18 observed that the women were distraught.

19 JUDGE SCHOMBURG: Thank you very much, Madam Registrar.

20 Mr. Nikolic, under the Rules, we have to be satisfied that what we

21 expect now, your plea, will be made voluntarily and at the same time

22 informed. May I therefore ask you: Was there any pressure exercised on

23 you by one of the parties or by any third persons, or do you have reasons

24 to believe that such pressure was exercised on you?

25 THE ACCUSED: [Interpretation] No, Your Honours.

Page 153

1 JUDGE SCHOMBURG: May I ask you furthermore: Did you understand

2 this third amended indictment?

3 THE ACCUSED: [Interpretation] Yes, I did. I did understand it

4 fully.

5 JUDGE SCHOMBURG: Then finally, I have to repeat that what I had

6 stated already beforehand, only that you are really aware of the

7 importance of what will happen now. I stated beforehand that it is of

8 course your right to plea not guilty or to plea guilty. It is your

9 voluntary decision, as you just stated. But you also have to be aware of

10 the consequences. In all likelihood, today it will be the last chance for

11 you in this case, pending now for three years, that if established beyond

12 a reasonable doubt in the final assessment the then-Trial Chamber to which

13 this case will be assigned can take into account a plea as a mitigating

14 factor. You have to be aware of this.

15 May I ask you: Do you want to discuss this question once more

16 with your Defence team, or are you prepared to enter a plea to the charges

17 right now?

18 THE ACCUSED: [Interpretation] I have spoken to my counsel, and I

19 am prepared to enter a plea.

20 JUDGE SCHOMBURG: Then, Mr. Nikolic, may I ask you what is your

21 plea related to count 1, persecutions on political, racial, religious

22 grounds, a crime against humanity, punishable under Article 5(H) of the

23 Statute of the Tribunal?

24 THE ACCUSED: [Interpretation] Your Honours, I'm not guilty.

25 JUDGE SCHOMBURG: Count 2, murder, a crime against humanity,

Page 154

1 punishable under Article 5(a) of the Statute of the Tribunal?

2 THE ACCUSED: [Interpretation] Your Honours, I'm not guilty.

3 JUDGE SCHOMBURG: Count 3, rape, a crime against humanity,

4 punishable under Article 5(g) of the Statute of the Tribunal?

5 THE ACCUSED: [Interpretation] Your Honours, I'm not guilty.

6 JUDGE SCHOMBURG: And finally, count 4, torture, a crime against

7 humanity, punishable under Article 5(f) of the Statute of the Tribunal?

8 THE ACCUSED: [Interpretation] Your Honours, I'm not guilty.

9 JUDGE SCHOMBURG: Thank you. You may be seated.

10 Madam Registrar, we have noted that Mr. Nikolic has entered a plea

11 of not guilty to all the counts of the third amended indictment.

12 THE REGISTRAR: Yes, Your Honour.

13 [Trial Chamber confers]

14 JUDGE SCHOMBURG: We have now to discuss how to proceed. It was

15 not foreseen that we would have a hearing that late on Friday afternoon.

16 Unfortunately, one of our colleagues is not able to continue sitting.

17 May I, therefore, ask the parties whether they agree that we

18 continue the hearing after a short break under Rule 15 bis in the

19 composition of two Judges only.

20 The Prosecution?

21 MR. YAPA: Thank you, Your Honour. We have no objections to

22 that.

23 JUDGE SCHOMBURG: The Defence?

24 MR. MORRISON: Your Honour, no objections nor observations.

25 JUDGE SCHOMBURG: The accused himself?

Page 155

1 THE ACCUSED: [No interpretation]

2 THE INTERPRETER: The interpreters didn't hear.

3 THE ACCUSED: [Interpretation] No.

4 JUDGE SCHOMBURG: Thank you. Then the trial stays adjourned until

5 half past 4.00, and immediately after that we will continue our discussion

6 on the continuation and especially setting a date for trial.

7 The trial stays adjourned.

8 --- Break taken at 4.18 p.m.

9 --- On resuming at 4.34 p.m.

10 JUDGE SCHOMBURG: Please be seated.

11 As I said at the beginning of this hearing, due to the fact that

12 Mr. Nikolic is in the Detention Unit now for -- now about three years,

13 it's mandatory to start immediately as soon as practicable and feasible

14 with the trial as such. Therefore, I have to ask the parties: What is

15 from your point of view an obstacle to start the trial?

16 I'm aware there are still two motions pending, the one on taking

17 depositions and the one on protective measures. I'll come back to this

18 later.

19 I take it that the pre-trial briefs have been filed with all the

20 necessary accompanying documents. Is this correct? May I ask the Defence

21 team.

22 MR. MORRISON: Your Honour, yes, subject of course to anything

23 that comes to light between now and the trial date.

24 JUDGE SCHOMBURG: May I ask the Prosecution. Do you see any

25 obstacles to set a date for trial for September this year?

Page 156

1 MR. YAPA: I thank Your Honour for giving me this opportunity. I

2 can assure the Trial Chamber that in respect of pre-trial preparations,

3 everything that need be done has been done. So we are quite comfortable

4 with a date in September.

5 JUDGE SCHOMBURG: What about the date in September for the

6 Defence?

7 MR. MORRISON: Well, Your Honour, the Defence is ready in

8 principle to start the trial as soon as practicable after the summer

9 recess. I have a -- a pre-existing commitment on the -- from the 17th to

10 the 19th of September inclusive with the United Kingdom Judicial Studies

11 Board, which would be impossible at this stage to -- to break without

12 causing immense difficulties for a lot of people. Those three dates

13 apart, three days apart, there are no other obstacles in the diary.

14 JUDGE SCHOMBURG: This shouldn't be a real obstacle.

15 So let us now turn to the open motions. I think priority has to

16 be given to the questions of depositions to be taken. We have in front of

17 us the request from 28 February 2003. The reason why this was not yet

18 decided was that there was a realistic chance to come to an agreement.

19 But this has failed, and now we are confronted with this question.

20 I have this document before me. May I ask the Defence team: Do

21 you want to comment on this motion? Do you see any obstacle to take

22 deposition as foreseen in this motion?

23 MR. MORRISON: Your Honour, during the short recess, this matter

24 was discussed together with the members of the Prosecutor's team in court,

25 and we have tentatively identified the first working week of September as

Page 157

1 being a -- a possible week to do that, of course with the Trial Chamber's

2 leave and consent.

3 JUDGE SCHOMBURG: But in principle, no obstacle taking

4 depositions, related to the evidence mentioned in this motion.

5 MR. MORRISON: Your Honour, no.


7 The Prosecution agrees that this could be done no later than the

8 first week of September? Would this be sufficient?

9 MR. YAPA: Yes, Your Honour. It is correct. My learned friend

10 stated that he had discussed it with us, and we are in agreement that it

11 could be done even the first week of September, this year.

12 JUDGE SCHOMBURG: Thank you.

13 Then let us now turn to a second motion, that is, the Prosecution

14 motion on protective measures. I can't go into any details, because it's

15 for good reasons filed confidentially. That's a motion of 3 June 2003.

16 We already received the answer concluding accordingly, "The Defence are

17 content to leave the matter of protective measures to the discretion of

18 the Trial Chamber."

19 Based on the experience of previous cases, I think it's not

20 foreseeable whether or not one would need additional protective measures

21 or the other way around, that one would not need.

22 May I ask, therefore, the Defence: Do you stick to your

23 submission that you are prepared to leave this matter to the discretion of

24 the Trial Chamber?

25 MR. MORRISON: Your Honour, yes. The point is simple: The

Page 158

1 Defence do not concede that the matters contained in the motion are

2 necessarily true. That's not the test. The test is whether or not the

3 Prosecutor is acting bona fide in seeking such measures on the basis that

4 they may be true. And on that basis, we do not seek to place any obstacle

5 in the way of the Trial Chamber's discretion.

6 JUDGE SCHOMBURG: Thank you. This Trial Chamber has conferred on

7 this issue beforehand and hereby grants the motion of 3 June 2003.

8 May I ask the Prosecution: Do you see any other obstacles or

9 necessary prerequisites in order to start the case as envisaged for

10 September?

11 MR. YAPA: I thank Your Honour. Your Honour is asking me about

12 only on that aspect or in respect of any other matters that I have to

13 raise?

14 JUDGE SCHOMBURG: You may raise all the matters you want.

15 MR. YAPA: I thank Your Honour.

16 JUDGE SCHOMBURG: In order that we can come to the conclusion that

17 we set a date for trial for September this year. So please address all

18 the questions you want.

19 MR. YAPA: I thank Your Honour.

20 Your Honour made reference at the commencement of the proceedings

21 today in respect of the indictment that was filed, the third amended

22 indictment. And Your Honour was pleased to compliment the Prosecution and

23 the Defence for getting the indictment done in that way. I thank Your

24 Honour for the compliments paid. I'm sure my learned friend will

25 acknowledge the compliments.

Page 159

1 But I have to make a brief reference to that, as to how it came

2 about. Your Honour knows as to how it came about. And my learned friend

3 also knows. So it may be necessary. I don't say that it will become

4 necessary. The amendments were done for a particular reason, and it may

5 be necessary for us to think over -- we have not yet thought over the

6 present indictment -- to make some motion in the near future, in respect

7 of that. I do not want to commit myself at this stage. But thinking of

8 the reasons that prompted the making of the amendments, I am making this

9 submission at this stage.

10 Yes. That's what -- that's about all that I wanted to say about

11 the indictment.

12 There is another matter which I would make reference to maybe

13 towards the end of the proceedings today. I thank Your Honour.

14 JUDGE SCHOMBURG: Thank you. Just for purposes of clarification,

15 we heard the plea of Mr. Nikolic a moment ago, and it goes without saying

16 that when we asked Madam Registrar to read out the indictment, the third

17 amended indictment, that we already beforehand accepted this third amended

18 indictment. And I only mention it that it's confirmed and also reflected

19 on the transcript. So we want to avoid any unnecessary filings; and

20 therefore, please take this decision now already as an oral decision.

21 Furthermore, I think it would be more than appropriate not once

22 again to try to amend the indictment. I think the factual basis as it

23 stands now is clear. It accurately reflects what seems to be the

24 Prosecutor's case. And when changing or amending the indictment another

25 time, we run the risk that maybe for good reasons, the Defence may refer

Page 160

1 to Rule 50(C), and this would postpone the start of trial another time.

2 Having said this, may I ask the Defence that the Defence team and

3 at the same time on behalf of the accused the Defence team waives the

4 right of having a further period of 30 days in which to file preliminary

5 motions pursuant to Rule 72 in respect of the new charges.

6 MR. MORRISON: The temptation is enormous. In practical terms, my

7 answer is thank you but no thank you, Your Honour. We do not wish to file

8 any further preliminary motions, and therefore we waive the right.

9 JUDGE SCHOMBURG: I think it would be adequate in return for the

10 Prosecution to stick to the third amended indictment.

11 MR. YAPA: I thank Your Honour for the advice. I did not say that

12 I'm committing myself to an amendment. It was just a matter of

13 considering because of the circumstances. That's all that I said.

14 JUDGE SCHOMBURG: I understood your message very well. Thank you.

15 May I then ask the Defence: Do you need anything in preparation

16 of the case? Do you want to address any other issue in this Status

17 Conference?

18 MR. MORRISON: Not at this stage, Your Honour. I am well aware

19 that if I needed to address this Trial Chamber urgently as to anything

20 that I would receive the same courtesy and cooperation that we've had

21 hitherto, for which I'm grateful.

22 JUDGE SCHOMBURG: Thank you.

23 May I then finally ask - and this is one of the purposes of a

24 Status Conference - Mr. Nikolic in person: Do you have actually any

25 health problems or do you have any complaints about your situation in the

Page 161

1 United Nations Detention Unit?

2 THE ACCUSED: [Interpretation] Your Honours, I have no remarks to

3 make with regard to the detention. I can say that I am very pleased that

4 my trial will start, considering that it's been three years that I've been

5 in detention.

6 As far as health is concerned, I have no health problems. I can't

7 say I'm very well. I can't say I'm fairing poorly. As far as the

8 conditions of detention are concerned, everything is normal, there are no

9 problems whatsoever.

10 So the behaviour towards me has been the same from the beginning.

11 As far as the health protection, the food, detention conditions,

12 everything is fine as far as I'm concerned, at least. That's all I wanted

13 to say. Thank you.

14 JUDGE SCHOMBURG: I thank you for this clear statement.

15 Then the final issue is: We have to plan this case. We have to

16 ask the President to ask the Secretary-General of the United Nations to

17 appoint and assign Ad Litem Judges to this concrete case. And for this

18 purpose, we have to know with the clarity that is possible to date how

19 long will the case take.

20 May I first ask the Prosecution.

21 MR. YAPA: Your Honour, the outer limit that I can mention is just

22 five weeks.

23 JUDGE SCHOMBURG: So in terms of worst case and best case

24 thinking, what would be the range?

25 MR. YAPA: Four to five -- four to five weeks.

Page 162

1 JUDGE SCHOMBURG: And for the Defence? I know it's more difficult

2 for the Defence, because they haven't heard the Prosecutor's case. But I

3 think you have an overview of the case. Mr. Morrison, may I ask you?

4 MR. MORRISON: My assessment is that on the figures that have been

5 given by my learned friend, this case could be concluded within two full

6 working months, that is, something in the order of eight or nine weeks.

7 JUDGE SCHOMBURG: So what would be the time you would need? We

8 have to count first of all the weeks needed for the Prosecutor's case. In

9 all likelihood, 98 bis motion - I don't know whether -- it's not an

10 invitation to file a 98 bis motion, not to be misunderstood. But what

11 would be the time that you would need for your case, that we can add --

12 normally, iudex non calculat, a Judge doesn't count. But we want to count

13 and we have to count today. What's your case?

14 MR. MORRISON: I still anticipate that without -- as long as we do

15 not have breaks so that we have a continuous flow of normal five

16 working -- five normal working days per week, that this case can be

17 concluded in a total of eight or nine weeks.

18 JUDGE SCHOMBURG: Including the Prosecutor's case; right?

19 MR. MORRISON: Including the Prosecutor's case. I mean, I am -- I

20 have been in court before in the appellate proceedings with my learned

21 friend, Mr. Yapa. I know the nature of his advocacy and operation. I

22 think he begins to know mine. We do not waste time.

23 JUDGE SCHOMBURG: I speak also on behalf of my colleague, Judge

24 Mumba, that we appreciate to hear this clear words, and we know where we

25 are. And as soon as practicable - you have heard what is necessary before

Page 163

1 we can provide you with the exact dates - we will let you know as soon as

2 possible when the trial will start. It will start in September.

3 Any other issues to be raised by one of the parties or the

4 accused?

5 MR. YAPA: There is one special matter that I wish to raise. It

6 will take only two minutes.


8 MR. YAPA: May I move that we move into private session, for that

9 matter?

10 JUDGE SCHOMBURG: Private session, please.

11 [Private session]

12 (redacted)

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12 [Open session]

13 THE REGISTRAR: We're in open session, Your Honour.

14 MR. YAPA: [Microphone not activated]

15 THE INTERPRETER: Microphone, Mr. Yapa, please.

16 MR. YAPA: Sorry. I wish to mention the appearances of the

17 Prosecution. It is as of last time. But the appearances: Myself,

18 Upawansa Yapa; Ms. Patricia Sellers; Mr. William Smith; and our case

19 manager for today's proceedings, Mr. David Bruff. I thank Your Honour.

20 JUDGE SCHOMBURG: Thank you. And the appearances, I didn't want

21 to repeat this. It changes from Trial Chamber to Trial Chamber, but I

22 take it the appearances of the -- for the Defence were the same? If we

23 have now the names from the side of the Prosecution, we also should have

24 reflected your names on the transcript. If you could be so kind,

25 Mr. Morrison.

Page 166

1 MR. MORRISON: Your Honour, sometimes at the end of a working week

2 I'm not entirely sure what my name is, but to the best of my recollection

3 and having looked inside the label of my jacket, it's Howard Morrison,

4 lead counsel for Mr. Nikolic, leading my very able co-counsel, Tanja

5 Radosavljevic.

6 JUDGE SCHOMBURG: Thank you for understanding this. That's a

7 question of equality of arms. Normally I wouldn't do this at the end of

8 the session, because I know everybody knows who is here during this Status

9 Conference.

10 I take it there are no other issues to be addressed today, and

11 this concludes today's hearing. Thank you. And I wish everybody a nice

12 weekend.

13 --- Whereupon the Status Conference adjourned at

14 5.00 p.m.