1 Tuesday, 3 May 2005

2 [Open session]

3 [Further appearance]

4 --- Upon commencing at 2.16 p.m.

5 [The accused entered court].

6 JUDGE ANTONETTI: [Interpretation] Please, registrar, please call

7 the case.

8 THE REGISTRAR: [Interpretation] Thank you, Mr. President. Case

9 IT-05-86-PT, the Prosecutor versus Vinko Pandurevic.

10 JUDGE ANTONETTI: [Interpretation] Very good. I'll ask the accused

11 whether he's able to follow the proceedings in a language he understands.

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

13 JUDGE ANTONETTI: [Interpretation] Please sit down. Very good, I

14 shall ask the parties to introduce themselves. Prosecution first.

15 MR. MCCLOSKEY: Good afternoon, Your Honour, Peter McCloskey and

16 Janet Stewart.

17 JUDGE ANTONETTI: [Interpretation] Thank you.

18 And for the Defence.

19 THE INTERPRETER: Microphone, please.

20 MR. SARAPA: [Interpretation] Djordje Sarapa, a lawyer in Belgrade.

21 JUDGE ANTONETTI: [Interpretation] Thank you.

22 I greet all the people present here, the Prosecution, the Defence

23 counsel, as well as Mr. Pandurevic, without forgetting all the people

24 working to assist us in these hearings, the usher, the court deputy, the

25 court reporters, and all the people outside this courtroom including the

1 interpreters and the technicians.

2 Before we start the proceedings under Rule 62, let me remind you

3 of a few facts in order to inform the counsel who wasn't here for the

4 first -- the initial appearance.

5 Initially, we had three co-accused, Mr. Krstic, Mr. Pandurevic,

6 and Blagojevic. Later on, the indictment was divided into three different

7 indictments because the accused Krstic had been tried, and on the 2nd of

8 August, 2001, he had been convicted to a term of 46 years of imprisonment.

9 Following appeal, the said sentence was reduced to 35 years by a decision

10 of the Appeals Chamber on the 19th of April, 2004.

11 Then, in the meantime, on the 26th October, 1999, the Prosecutor

12 filed an amended indictment against the three co-accused and three

13 individual amended indictments against each of the co-accused. On the 7th

14 of December, 2001, the amended indictment against Pandurevic was made

15 public. On the 23rd of March, 2005, the accused Pandurevic was

16 transferred to the Detention Unit of the Tribunal and the day after, on

17 the 24th of March, 2005, Judge Liu confirmed the new amended indictment

18 dated the 10th of February, 2005. The latter included new charges and

19 Judge Liu asked the Prosecutor to withdraw the amended indictment of the

20 27th of October, 1999. The new indictment was then served on the accused,

21 Pandurevic, on the 31st of March, 2005.

22 I had done so at the initial appearance, but I think it is useful

23 to remind you that the -- in the indictment, it is said that in the

24 beginning of July, 1995, units of the Drina Corps of the VRS attacked

25 Srebrenica and shelled Srebrenica which was in the safe area of Srebrenica

1 and protected by the Dutch Battalion and then the VRS forces entered

2 Srebrenica. And then on the 18th of July, 1995, the VRS forces under the

3 command and control of Ratko Mladic and Radoslav Krstic as well as Vinko

4 Pandurevic either expelled or killed most of the Muslim population in the

5 Srebrenica enclave, thereby they eliminated or practically eliminated all

6 the Muslim presence in the enclave continuing thereby the campaign of

7 ethnic cleansing that started in the spring 1992.

8 According to the indictment, from the 12th December, 1992 to

9 November 1996, the accused Pandurevic was the commander of the 1st Light

10 Infantry Brigade of Zvornik, the Zvornik Brigade of the Drina Corps of the

11 VRS. He was made General in 1997, a brigade General in 1997 and was part

12 of the Main Staff of the VRS until the time he was relieved of his

13 functions in April 1998.

14 Vinko Pandurevic is accused of the following counts, on the basis

15 of the individual criminal responsibility pursuant to Article 7(1) of the

16 Statute of the Tribunal and/or alternatively of his command responsibility

17 pursuant to Article 7(3) of the Statute of the Tribunal, namely two counts

18 of genocide; Article 4 of the Statute, genocide and conspiracy to commit

19 genocide, four counts of crime against humanity; Article 5 of the Statute,

20 extermination, murder, persecution, inhuman acts; and one count of the

21 violation of the laws or customs of war, Article 3 of the Statute, murder.

22 As you know, the President of the Tribunal by an order he issued

23 in December 2004 assigned for -- this case first to Chamber III and then

24 by an order dated 23rd March, 2005, assigned the case to Chamber II of

25 which I am part. We had an initial appearance on the 31st of March, 2005

1 during which General Pandurevic had asked to use the 30-day period he

2 could use to decide on how he was going to plead. Then, on the 20th of

3 April, 2005, I was appointed Pre-Trial Judge.

4 Today, I am going to ask the accused how he intends to plead, but

5 before doing so, with regard to the previous hearing, he now has the

6 benefit of counsel, can you confirm this?

7 MR. SARAPA: [Interpretation] Yes.

8 JUDGE ANTONETTI: [Interpretation] Very well. Pursuant to Rule 62,

9 the Pre-Trial Judge must read out the entirety of the indictment. It is a

10 long indictment with a large number of pages so our custom is to ask

11 whether we can waive the reading, provided, of course, the accused agrees

12 to this.

13 How is it, counsel?

14 MR. SARAPA: [Interpretation] Your Honour, there's no need to read

15 the indictment in its entirety since it has already been served to the

16 accused and it is in my possession as well and so I don't think there is

17 any need for it today.

18 JUDGE ANTONETTI: [Interpretation] Thank you very much.

19 General, can you please stand up.

20 [The accused stands].

21 JUDGE ANTONETTI: [Interpretation] Can you tell me whether you are

22 today in a position to let us know how you are going to plead, guilty or

23 not guilty?

24 THE ACCUSED: [Interpretation] Your Honour, I am prepared to

25 declare that today.

1 JUDGE ANTONETTI: [Interpretation] Very well. I'm going to put a

2 few questions to you with regard to each and every count in the indictment

3 and will you tell me how you plead.

4 Pursuant to Count 1, you are accused of genocide under Rule 4(3)

5 of the Tribunal. What do you plead, guilty or not guilty?

6 THE ACCUSED: [Interpretation] Not guilty, Your Honour.

7 JUDGE ANTONETTI: [Interpretation] Thank you. Count 2, you are

8 accused of conspiracy to commit genocide under Article 4(3)(b) of the

9 Statute. How do you plead, guilty or not guilty?

10 THE ACCUSED: [Interpretation] Not guilty, Your Honour.

11 JUDGE ANTONETTI: [Interpretation] Count 3, extermination, a crime

12 against humanity punishable under Articles 5(b) of the Tribunal. How do

13 you plead, guilty or not guilty?

14 THE ACCUSED: [Interpretation] Not guilty, Your Honour.

15 JUDGE ANTONETTI: [Interpretation] Count 4, you are accused of

16 murder, a crime against humanity punishable under Article 5(a) of the

17 Statute of the Tribunal. How do you plead, guilty or not guilty?

18 THE ACCUSED: [Interpretation] Not guilty, Your Honour.

19 JUDGE ANTONETTI: [Interpretation] Count 5, you are accused of

20 murder, a violation of the laws or customs of war punishable under Article

21 3 of the Statute of the Tribunal. How do you plead, guilty or not guilty?

22 THE ACCUSED: [Interpretation] Not guilty, Your Honour.

23 JUDGE ANTONETTI: [Interpretation] Count 6 of the indictment, you

24 are accused of persecution, a crime against humanity punishable under

25 Article 5(h) of the Statute of the Tribunal. How do you plead, guilty or

1 not guilty?

2 THE ACCUSED: [Interpretation] Not guilty, Your Honour.

3 JUDGE ANTONETTI: [Interpretation] Count 7, the last count in the

4 indictment, unhumane acts, a crime against humanity punishable under

5 Article 5(i) of the Statute of the Tribunal. How do you plead, guilty or

6 not guilty?

7 THE ACCUSED: [Interpretation] Not guilty, Your Honour.

8 JUDGE ANTONETTI: [Interpretation] I take due note of the fact that

9 out of the 7 counts in the indictment, you told us that you are -- you

10 pleaded not guilty. Please sit down.

11 [The accused sits down]

12 JUDGE ANTONETTI: [Interpretation] This being said, we are now

13 going to have a pre-trial phase before the trial starts and pursuant to

14 Rule 65 bis(a) of the Rules of Procedure and Evidence of our Tribunal,

15 this is going to be a Pre-Trial Conference every 120 days, the purpose of

16 which, and I shall be the Judge presiding over the debates, the purpose is

17 a dual one. The idea is first that discussions and exchange can be

18 organised between the parties so as to have an expeditious preparation of

19 the trial.

20 Secondly, it makes it possible for the Pre-Trial Judge to see the

21 accused in person to make sure that he's in good condition and

22 well-treated and so as to inform the Pre-Trial Judge of any possible

23 problem. Therefore, the next Pre-Trial Conference to come is, since we

24 are in May, within four months from now, around -- in the course of

25 September. Pursuant to Rule 65 of our rules, you shall remain in custody

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1 but you are given leave to apply for provisional release.

2 I must turn to the Prosecutor. Pursuant to Rule 66(a)(i) of the

3 Rules, you are bound to make sure that within a time period of 30 days and

4 in a language the accused understands, you are bound to communicate to

5 transfer all the exhibits you have. So where are you at? Can you tell us

6 whether all this has been done or not?

7 MR. MCCLOSKEY: Your Honour, we have the supporting material as

8 required and now that the General has his lawyer, we are ready to provide

9 that to him at his convenience.

10 JUDGE ANTONETTI: [Interpretation] Excellent. You've heard the

11 Prosecutor, he's just told you that he's in a position to ensure

12 disclosure of all the supporting materials after the hearing so that you

13 are provided with all the exhibits. Do you have anything to say in this

14 respect?

15 MR. SARAPA: [Interpretation] No, thank you very much, I will be in

16 touch with the Prosecution and will agree about that. There won't be any

17 problems.

18 JUDGE ANTONETTI: [Interpretation] Thank you. I also must tell

19 you, General Pandurevic, and to his Defence counsel, that under 72(a) of

20 our Rules, once the Prosecutor has disclosed all the materials, in a time

21 period of 30 days, you are allowed to file preliminary motions so you are

22 given a month's time to file any motions as based on Rule 72(a).

23 Before coming to a close, does the Prosecutor have anything to

24 say? You have the floor.

25 MR. MCCLOSKEY: Yes, Your Honour. I would merely like to inform

1 the Court and counsel and the General as I think most of us are aware, in

2 the last few weeks, more Srebrenica accused have come to The Hague with

3 Mr. Pandurevic. The count is now eight. They are on various indictments

4 that have been filed over the years and fundamentally involve the same set

5 of facts, or very similar, and as the Prosecution is attempting to write a

6 motion to join these cases and there's one other significant accused

7 left - that's General Tolimir - and we expect that if Serbia continues to

8 cooperate, that he should be here soon.

9 So we want to get that motion to join the cases together and we're

10 working hard on that and we hope to get that filed relatively soon

11 although we are still at -- we are still waiting for events on the ground

12 to see who actually will be here so we can file this appropriately.

13 JUDGE ANTONETTI: [Interpretation] You're telling us that

14 presently, eight accused seem to be in the custody of the Tribunal for the

15 Srebrenica files, as it were, and you are considering filing a motion for

16 joinder. Does that mean that the Prosecution has -- is minded to have one

17 single case with eight co-accused? Is that the idea? The reason why I'm

18 asking this is that, you know, in courtrooms, I fail to see how you can

19 have eight co-accused at the same time. It may be done, but could you

20 enlighten me on that?

21 And also, the motion for joinder, who are you going to file it

22 with, with my Chamber? With other Trial Chambers? Who is going to manage

23 it all?

24 MR. MCCLOSKEY: Those are both excellent questions and on your

25 last question who is going to manage all this, we have been in informal

1 discussions with the Registry, with the President's office, to try to

2 figure out how -- where the filing should go and actually, it's unclear.

3 So -- when we do file it, at this point, my intention would be to file it

4 with -- to everyone and let the President's office sort it out. Unless we

5 get clearer instructions, we don't want to leave anyone out of it. I

6 think it's in all the -- Srebrenica is in all the Trial Chambers at this

7 point.

8 On your other point about eight accused, in fact, it could be nine

9 accused if the General Tolimir comes. As you are probably aware, there

10 are -- there is at least one other case where I think there is now six

11 accused and perhaps will be seven and I know that the registry is

12 exploring the idea of enlarging the court rooms and making these -- this

13 thing physically possible. As a Trial Judge, I know we're all aware of --

14 well, none of us are really aware of what that would be like trying such a

15 case, though we can all guess that it would be rather difficult. But when

16 the Office of the Prosecutor looks at the possibility of two trials and

17 witnesses coming in again and again, it appears that in the end, really,

18 eight accused would be the best way to do it and we would of course have

19 to have very clear Rules of Procedure and guidelines for all the attorneys

20 to follow and I think the Judges are going to really have their hands

21 full. There's no question about it.

22 But having given it quite a bit of thought, I just can't imagine

23 trying the case twice. We've already tried it twice and I know what one

24 of these trials is like. And I can't compare this to Nuremberg, but it's

25 been done before and I think we can get through it if we put our -- our

1 efforts to it.

2 JUDGE ANTONETTI: [Interpretation] So you heard what the

3 Prosecution intends to do, Defence counsel, so they want to regroup all

4 the files having to do with Srebrenica so as to try nine accused abreast

5 which may raise problems, procedural problems, but it's not

6 insurmountable. I had a case in the past where I had 30 accused, it can

7 be done, therefore. However, there may be procedural problems if you have

8 nine objections coming from nine Defence counsel to nine questions of the

9 Prosecution or -- so the time devoted to dealing with objections may

10 unduly extend the duration of the trial proceedings. But it is then

11 important to have very precise rules.

12 For now, do you have a viewpoint, do you want to say anything in

13 the event of a joinder of proceedings? It may be premature. You might

14 want to discuss this with other Defence counsel. You have the floor.

15 MR. SARAPA: [Interpretation] Your Honour, I believe that on this

16 occasion, I am unable to give you a view. This is a very complex

17 procedural matter and at any rate, it is quite certain that I would

18 previously have to consult with Mr. Pandurevic and I myself would also

19 have to look into all the aspects of this and everything that might follow

20 from such a procedural turn of events.

21 Obviously, if you ask us to do so, we shall express our views.

22 We'll have enough time to do so, and with the best will of the world, I

23 don't think it is possible for me to do so. I mean, even the Prosecution

24 has just hinted at that possibility. It is not a certainty at the moment,

25 so I think we'll have enough time to make the relevant decisions. So at

1 the moment, I can't give you my position.

2 JUDGE ANTONETTI: [Interpretation] Very well, thank you.

3 General, please stand up. Regarding the conditions of detention,

4 are they satisfactory, or have you come up against problems? Do you have

5 any wishes to express?

6 THE ACCUSED: [Interpretation] I have no objections, Your Honour,

7 and I do have wishes, but I don't suppose this is the appropriate place

8 for voicing them.

9 JUDGE ANTONETTI: [Interpretation] Good. Well, you can voice them

10 to your lawyer and if need be, he can follow it up.

11 No problem health wise? Do you have any problems or is everything

12 all right?

13 THE ACCUSED: [Interpretation] Everything is fine. Everything is

14 fine, Your Honour.

15 JUDGE ANTONETTI: [Interpretation] Very well. Thank you. Please

16 sit down.

17 [The accused sits down]

18 JUDGE ANTONETTI: [Interpretation] As I stated it earlier on, we

19 shall meet again within the 120-day period. In the meantime, of course, I

20 would invite you, Mr. Sarapa, to get in touch with the Prosecutor to

21 exchange exhibits. I hope everything will take place in the spirit of

22 understanding and that there will be a solution should there be motions

23 for joinders. But as you said, Mr. Sarapa, let us wait until the

24 Prosecution has filed an application because I have received nothing so

25 far, personally.

1 Thank you. We shall meet probably in September to take stock of

2 the situation for a Pre-Trial Conference. I believe that we have to act

3 as swiftly as possible so that the trial proceedings can start as early as

4 possible.

5 Thank you. We'll meet in September. The hearing stands

6 adjourned.

7 --- Whereupon the further appearance adjourned at

8 2.45 p.m.

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