1 Tuesday, 04 September 2001

2 [Motion Hearing]

3 [The accused entered court]

4 [Open session]

5 --- Upon commencing at 9.31 a.m.

6 JUDGE ROBINSON: This morning we will have a hearing under Rule 62

7 bis. Its purpose is in accordance with the request of the accused

8 Kolundzija to replead him so that the Chamber may determine whether it is

9 satisfied as to the matters set out in 62 bis.

10 I see Sir Ivan on his feet, but before I ask you to address, I'll

11 just raise some concerns that the Chamber has with the joint motion that

12 has been submitted by the Prosecution and the Defence.

13 If you have the joint motion before you, as you should, I would

14 invite you to look at paragraph C, which is headed "Factual Basis." That

15 paragraph is, in the Chamber's view, exceedingly vague and is not

16 sufficiently precise to allow the Chamber to proceed with the hearing

17 under 62 bis. There is a need for more precision and detail as to the

18 factual basis.

19 Rule 62 bis actually speaks of the sufficient factual basis for

20 the crime and the accused's participation in it, and then it allows for

21 some latitude as to how this factual basis is to be determined, either on

22 the basis of independent indicia or on lack of any material disagreement

23 between the parties about the facts of the case.

24 So what has been provided is not sufficient. The Chamber is, of

25 course, anxious to proceed as expeditiously with this matter, and

1 accordingly we will allow the parties some time to address us orally on

2 this issue. If they are ready to do that now, then we can proceed; if

3 not, we will grant an adjournment.

4 The second matter that I'd like to mention is the second sentence,

5 which again, in the Chamber's view, does not identify with sufficient

6 specificity the sections of the indictment to which the plea relates.

7 This, after all, is a change of plea to the indictment, and it seems to

8 the Chamber that the change of plea relates to paragraph 36(d) and (e) of

9 the indictment, which sets out two of the means by which persecution is

10 allegedly committed. So that again is something on which the parties can

11 address us.

12 And then the last sentence, which indicates that the plea is in

13 satisfaction of all the remaining counts of the indictment, this, of

14 course, is as the counts relate to Kolundzija, and of course, those

15 remaining counts would have to be withdrawn by the Prosecutor. When we

16 actually take the plea, the Chamber would accept either a written or an

17 oral assurance from the Prosecutor that those remaining counts will be

18 withdrawn.

19 But the main concern at this time is with the factual basis as

20 agreed because it is not for the Chamber to search the evidence to

21 identify the factual basis. This is an agreement, and the agreement

22 should show sufficiently the factual basis.

23 Sir Ivan?

24 MR. LAWRENCE: May it please the Chamber. I think my learned

25 friend and I have heard clearly what the Chamber has said. We will

1 obviously need a little time for us to comply with the request of the

2 Chamber to produce something in a little more detail, more sufficient

3 detail, to satisfy the Chamber. If my learned friends and I can have the

4 rest of the morning to do that, hopefully we will be able to come back at

5 2.30 with the answer; if we can't, perhaps we can give some indication to

6 the legal office that it is going to take longer and the Court can,

7 without reappearance, make its views known.

8 I wonder if the Chamber would consider giving us some idea of its

9 programme, on the basis that we are able to agree a more detailed factual

10 basis, over which there may be no difficulty, for the process of the case

11 thereafter.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: Perhaps, Sir Ivan and Mr. Ryneveld, you could let

14 us know what are the real possibilities of your agreeing something to be

15 ready in time for 2.30, because if there is no real possibility, we would

16 just as soon adjourn until Thursday morning.

17 MR. RYNEVELD: I doubt very much there would be a great deal of

18 difficulty in terms of my learned friend and I getting together this

19 morning and agreeing on more specific language, as requested by the Court,

20 but there is a further stage, and that is I understand my learned friend

21 needs access to Mr. Kolundzija in order to discuss the aftermath of that

22 with him, with the translator, et cetera, et cetera. But I'll let my

23 friend talk about that.

24 In terms of my anticipation, at least unilaterally speaking - I

25 haven't had a chance to ascertain with my friend whether or not we will be

1 able to hash out more specific language - I think that is doable within

2 the next couple of hours or so, but I don't know how much time my friend

3 needs after that before he's able to come back to the Court.

4 JUDGE ROBINSON: Yes, Sir Ivan.

5 MR. LAWRENCE: I understand that arrangements have helpfully been

6 made to keep my client here, so as soon as we have come to an agreement

7 about the detail, the detailed references in the transcript or whatever,

8 then I can just go and discuss it with my client. So I think it's

9 reasonably possible that -- reasonably likely that we will be ready by

10 2.30, but if it begins to look as though we're not going to be, then my

11 suggestion is that we let the office know immediately and then the Court

12 can make its decision.

13 JUDGE ROBINSON: Very well. Then we'll adjourn until 2.30, but

14 you will advise us within a reasonable time --

15 MR. LAWRENCE: Certainly.

16 JUDGE ROBINSON: -- if that is not possible. We are adjourned.

17 --- Recess taken at 9.43 a.m.

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1 --- On resuming at 2.41 p.m.

2 JUDGE ROBINSON: Mr. Ryneveld and Sir Ivan, the Chamber has

3 received the Statement of the Agreed Facts, and so that allows us to

4 advance.

5 MR. RYNEVELD: Just before we do, if I just might indicate, Your

6 Honours, that in the draft that you may have received, there is a

7 typographical error in paragraph 2, and we would anticipate that a filed

8 copy -- the filed copy which we anticipate filing after the proceedings,

9 will change the date of 1 May to conform with the evidence, which is 24

10 May. That was just a typographical error. So paragraph 2, about 24 May

11 1992 to 5 August 1992. That's the only correction that my learned friend

12 and I noted after the copy was provided to Your Honours.

13 JUDGE ROBINSON: Thank you. It is plain, then, from the admitted

14 facts submitted that the accused Kolundzija will plead guilty to count 3

15 of the amended indictment, persecution, as set forth in paragraph 36(e)

16 and as described in the document that you have submitted.

17 Paragraph 7 of the document also points out that the Prosecution

18 will withdraw the remaining counts, 4, 5, 6 and 7, upon the Trial

19 Chamber's acceptance of the plea of guilty to count 3. Before I proceed,

20 I think we need to be clear as to how the plea will take place and what

21 precisely is being pleaded to.

22 Sir Ivan, I need to be certain that the accused understands that

23 certain questions will be put to him. In particular, ultimately he will

24 be asked how he pleads to count 3 of the indictment, charging persecution,

25 and in accordance with the agreement, I understand that he will say that

1 he pleads guilty to persecution as set forth in paragraph 36(e) of the

2 indictment.

3 MR. LAWRENCE: Yes, Your Honour.

4 JUDGE ROBINSON: Thank you very much.

5 MR. LAWRENCE: I have advised --

6 THE INTERPRETER: Microphone, please.

7 MR. LAWRENCE: So sorry. Yes, Your Honour, and I have advised him

8 that he will be asked certain questions by Your Honour, and he is prepared

9 to answer.

10 JUDGE ROBINSON: But in particular, the last matter that I raised,

11 the plea of guilty in relation to paragraph 36(e), yes. The accused

12 Kolundzija will stand. Stand, Mr. Kolundzija.

13 [The accused Kolundzija stands up]

14 JUDGE ROBINSON: You have entered into a plea agreement with the

15 Office of the Prosecutor, pursuant to which you will plead guilty to count

16 3 of the indictment, charging persecution, specifically on the basis of

17 paragraph 36(e) of the indictment, which alleges the confinement of

18 Bosnian Muslims, Bosnian Croats and other non-Serbs in inhumane conditions

19 in the Keraterm camp. The Prosecution will withdraw the remaining counts,

20 4, 5, 6 and 7.

21 Mr. Kolundzija, have you discussed fully with your counsel the

22 plea agreement that you have made with the Office of the Prosecutor?

23 THE ACCUSED KOLUNDZIJA: [Interpretation] Yes, Your Honour.

24 JUDGE ROBINSON: Were you threatened or coerced in any way to

25 enter into the plea agreement?

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1 THE ACCUSED KOLUNDZIJA: [Interpretation] No, Your Honour.

2 JUDGE ROBINSON: Pursuant to the agreement, the Prosecutor and the

3 Defence have recommended that the Chamber impose a sentence falling within

4 the range of three to five years. You must understand, however, that the

5 sentence will ultimately be determined by the Chamber in accordance with

6 the Statute and the Rules. Do you understand that?

7 THE ACCUSED KOLUNDZIJA: [Interpretation] Yes, Your Honour, I do.

8 JUDGE ROBINSON: Mr. Kolundzija, how do you plead to count 3 of

9 the indictment, charging persecution?

10 THE ACCUSED KOLUNDZIJA: [Interpretation] Your Honour, I am guilty

11 as explained.

12 JUDGE ROBINSON: That is to say, on the basis of paragraph 36(e),

13 the confinement of Bosnian Muslims, Bosnian Croats, and other non-Serbs in

14 inhumane conditions in the Keraterm camp.

15 THE ACCUSED KOLUNDZIJA: [Interpretation] Yes, Your Honour.

16 JUDGE ROBINSON: Thank you. I should say that the Chamber also

17 has in its possession a medical report from Dr. Vera Petrovic, indicating

18 that the accused is completely capable, competent, and sufficiently

19 rational to understand what happens during a trial, to accept changes at

20 individual moments and to decide on them and to understand the

21 consequences of such decisions.

22 The Chamber, having heard all the submissions, is satisfied that

23 the plea has been made voluntarily, that it was informed, that it is not

24 equivocal, and that there is a sufficient factual basis for the crime and

25 the accused's participation in it. Accordingly, a finding of guilt is

1 entered, and it remains now for us to fix a date for the sentence hearing.

2 I should say in relation to that, before we do that, as I had

3 indicated, the Prosecutor will withdraw the remaining counts in relation

4 to Mr. Kolundzija.

5 MR. RYNEVELD: Yes, Your Honour. The Prosecution, in light of the

6 Court's acceptance of the guilty plea to count 3, persecution, now

7 withdraws the remaining counts in this indictment, counts 4, 5, 6, and 7,

8 as against Dragan Kolundzija only.

9 JUDGE ROBINSON: Thank you, Mr. Ryneveld.

10 Mr. Kolundzija, please sit.

11 THE ACCUSED KOLUNDZIJA: [Interpretation] Thank you.

12 JUDGE ROBINSON: We now have to fix dates for the sentence hearing

13 and for the submission of briefs. The Chamber is naturally disposed to

14 proceeding with this matter as expeditiously as possible. It is a

15 practice of the Tribunal for matters of this kind to be disposed of in a

16 day; at the most, a day and a half or two days. There is really no need

17 for an abundance of witnesses, but naturally it is a matter for counsel to

18 decide. I should also say that counsel should be mindful of the

19 possibility of submitting statements rather than calling witnesses.

20 Bearing that in mind, the Chamber has in mind the dates Tuesday,

21 September the 18th to Thursday the 20th. What we would do is, in

22 consultation now, identify one or two days as is most convenient for all

23 the parties, and the brief would be filed by Friday, the 14th.

24 Mr. Ryneveld first or --

25 MR. RYNEVELD: Yes, Your Honour. I might say that I anticipate

1 that the Prosecution will not be making a lengthy submission, and unless

2 the Court requests, we do not propose to file a written brief with respect

3 to the issue of sentence; simply make a very brief oral representation,

4 unless the Court wants that.

5 The other thing, of course, is a matter of timing with respect to

6 whether or not you wish to deal with this matter separately or whether the

7 Court would like us to deal with the issue at the conclusion of the entire

8 trial with respect to all three accused. We're in your hands in regard to

9 that. I appreciate that my learned friend may wish to prepare a written

10 brief, and we certainly can. I'm simply saying that we do not anticipate

11 taking a great deal of time.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: Mr. Ryneveld, we wouldn't insist on a long brief,

14 but it does seem to us that in a matter of this kind, a brief is

15 important. It need not be very long; just setting out very briefly your

16 recommendations, in particular in relation, of course, to the sentence.

17 MR. RYNEVELD: Fine, Your Honour.

18 JUDGE ROBINSON: It need not be very long.

19 MR. RYNEVELD: If you find that to be of assistance, we will

20 certainly have a sentencing brief available by the 14th or whenever you

21 say.

22 JUDGE ROBINSON: Yes.

23 Sir Ivan?

24 MR. LAWRENCE: Your Honour --

25 THE INTERPRETER: Microphone, please.

1 MR. LAWRENCE: I am concerned about the shortness of time and

2 would ask that the Court, the Chamber, gives me longer. Firstly, we

3 haven't, of course, called any evidence on which we can rely for the

4 purpose of our mitigation, and in particular, we would want to call a

5 medical witness, a psychiatrist, to talk about the effect that all this

6 has had upon the defendant Kolundzija's mental state. My experience of

7 psychiatrists' evidence is it does take a few weeks to get. Furthermore,

8 we would want to call some live witnesses, and they will require some

9 arranging and some selecting in the light of the proceedings that have

10 taken.

11 We also do want to avail ourselves of the opportunity of providing

12 a written brief, and I had rather hoped that, bearing in mind the rest of

13 the case and how it was going to develop apart from Kolundzija, the Court

14 might consider giving us four weeks to achieve that conclusion.

15 It is also rather difficult for me always to get together with my

16 co-counsel, not just because America is a long way away but because they

17 are sleeping when everybody else is awake, and it is -- unless we meet

18 here in The Hague, which also has difficulties sometimes, then it isn't

19 always as easy as if we were both in the same place at the same time. And

20 my experience is that it is much better to allow a reasonable length of

21 time to conclude all these matters finally than it is to put a tight

22 margin on it and find that for some reason, like for example the

23 unavailability of the medical witness --

24 JUDGE ROBINSON: How many witnesses did you have in mind calling,

25 live witnesses?

1 MR. LAWRENCE: Obviously nothing like the number we were going to

2 call had the trial proceeded, but several. My learned co-counsel, who has

3 had the dealing with the Defence witnesses, says that he thinks that two

4 days would be an adequate length of time for the calling of evidence, and

5 then, of course, there is speeches, and before then, there will have had

6 to have been the provision of the written brief.

7 In the past, I think the Tribunal has allowed considerable

8 latitude for the Defence in getting their mitigation together, both when

9 the case is yet to be tried and when the case has been being tried, and I

10 would ask the indulgence of the Court to give perhaps a week longer than

11 the Court has indicated it is prepared to give, just so that these matters

12 can be properly finalised, bearing in mind that, for all sorts of reasons,

13 the action of Kolundzija in changing his plea has, I think, been of

14 considerable service to the procedures of the Chamber.

15 JUDGE ROBINSON: Thank you, Sir Ivan. We will consider it.

16 [Trial Chamber confers]

17 JUDGE ROBINSON: Yes, the Chamber has consulted. We take account

18 of the fact that, yes, it has been the practice to allow more time for the

19 preparation of briefs prior to sentence. The next time that would be

20 available to the Chamber is the week beginning Monday the 8th of October.

21 We would then fix the days of Monday the 8th and Tuesday the 9th, with the

22 briefs to be filed by Monday the 1st of October.

23 MR. LAWRENCE: I'm grateful.

24 JUDGE ROBINSON: Mr. Greaves?

25 MR. GREAVES: Are there any other alterations to the schedulings?

1 As Your Honours will recall, I asked you to confirm or otherwise.

2 JUDGE ROBINSON: None so far.

3 MR. GREAVES: Thank you.

4 MR. LAWRENCE: Might I ask the Chamber, on the 8th and the 9th, we

5 will be calling evidence, and then would you be hearing final speeches, as

6 it were, on the 9th?

7 JUDGE ROBINSON: Yes, possibly on the 8th. Depends on how we

8 progress.

9 MR. LAWRENCE: Thank you very much. I'm grateful.

10 JUDGE ROBINSON: Yes.

11 MR. MUNDIS: Your Honours, just to follow up with what Mr. Greaves

12 said, then in light of -- or with respect of the other two accused in this

13 case, the closing briefs would still be due on the 26th of September?

14 JUDGE ROBINSON: That's right.

15 MR. MUNDIS: And closing arguments on the 4th and 5th of October?

16 JUDGE ROBINSON: That's right, yes.

17 MR. MUNDIS: Thank you, Your Honour.

18 JUDGE ROBINSON: The hearing is adjourned.

19 --- Whereupon the motion hearing adjourned at

20 3.02 p.m.

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