1 Wednesday, 19 September 2001

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.46 p.m.

6 JUDGE ROBINSON: This afternoon we will have a hearing under the

7 Rule 62 bis. The purpose of the hearing is following upon the request of

8 the accused Sikirica and Dosen to have the Chamber determine whether it is

9 satisfied as to the matters set out in that Rule so that it may enter a

10 finding of guilt. If the Chamber determines that a finding of guilt is to

11 be entered, it will set a date for the sentence hearing.

12 I remind you of the matters in respect of which the Chamber must

13 be satisfied. The Chamber must be satisfied that the guilty plea has been

14 made voluntarily, that the plea is informed, that it is not equivocal, and

15 that there is a sufficient factual basis for the crime and the accused's

16 participation in it.

17 The Chamber has before it the agreement entered into by the

18 accused and the Office of the Prosecutor. I must say that in considering

19 this matter, the Chamber attaches great significance to paragraph (e) of

20 section D of the agreement. I think more accurately, it is paragraph

21 5(e), and the assertion in that paragraph that we attach particular

22 significance to is as follows, and I read it:

23 "Upon reflection of the parties of the evidence adduced at trial,

24 the parties agree that the factual basis, as outlined in this plea

25 agreement, accurately described the accused's culpability."

1 Will the accused Sikirica stand.

2 [The accused stands up]

3 JUDGE ROBINSON: Mr. Sikirica, you have entered into a plea

4 agreement with the Office of the Prosecutor. By this agreement, you will

5 plead guilty to count 3 of the indictment, charging persecutions, a crime

6 against humanity, as set out in paragraph 36(a) to (e) of the indictment,

7 and this plea is in satisfaction of all other counts in the indictment.

8 Have you discussed fully with your counsel the plea agreement you have

9 made with the Office of the Prosecutor?

10 THE ACCUSED SIKIRICA: [Interpretation] Yes, I have, Your Honour.

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

12 this agreement?

13 THE ACCUSED SIKIRICA: [Interpretation] No, Your Honour.

14 JUDGE ROBINSON: You have made this plea voluntarily?

15 THE ACCUSED SIKIRICA: [Interpretation] Yes.

16 JUDGE ROBINSON: Has your counsel informed you of the nature of

17 the charges against you and of the consequences of pleading guilty to a

18 crime against humanity?

19 THE ACCUSED SIKIRICA: [Interpretation] Yes, he has, Your Honour.

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

21 Defence have recommended to the Chamber that sentence fall within the

22 range of 10 and 17 years. You must understand, however, that the sentence

23 will ultimately be determined by the Chamber in accordance with the

24 Statute and the Rules. Do you understand that?

25 THE ACCUSED SIKIRICA: [Interpretation] Yes.

1 JUDGE ROBINSON: You may sit.

2 [The accused sits down]

3 THE ACCUSED SIKIRICA: [Interpretation] Thank you.

4 [Trial Chamber confers]

5 JUDGE ROBINSON: Mr. Sikirica, stand.

6 [The accused stands up]

7 JUDGE ROBINSON: How do you plead to count 3 of the indictment,

8 charging you with persecutions?

9 THE ACCUSED SIKIRICA: [Interpretation] I plead guilty, Your

10 Honour.

11 JUDGE ROBINSON: You may sit.

12 [The accused sits down]

13 JUDGE ROBINSON: The Chamber, having heard all the submissions,

14 and in particular having examined the joint submissions by the parties, is

15 satisfied that the plea was made voluntarily, that it was informed, not

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

17 of the accused's participation in it. Accordingly, the Chamber enters a

18 finding of guilt.

19 Mr. Ryneveld? Mr. Mundis?

20 MR. MUNDIS: Yes, Your Honour.

21 JUDGE ROBINSON: The plea having been accepted by the Chamber,

22 according to the agreement, the Prosecutor withdraws -- will withdraw all

23 the other charges?

24 MR. MUNDIS: That's correct, Your Honour. And in light of the

25 Chamber's decision, the Prosecutor will withdraw or has withdrawn the

1 additional charges against the accused Sikirica.

2 JUDGE ROBINSON: Thank you.

3 We will consider the date for the sentence hearing after we have

4 dealt with the other matter.

5 Will the accused Dosen stand?

6 [The accused stands up]

7 JUDGE ROBINSON: You entered into a plea agreement with the

8 Prosecutor whereby you will plead guilty to count 3 of the indictment,

9 charging persecution, as set out in paragraph 36(b), (d) and (e) of the

10 indictment, and this plea will be in satisfaction of all the other counts

11 in the indictment. Now, have you discussed fully with your counsel the

12 plea agreement you have made with the Prosecutor?

13 THE ACCUSED DOSEN: [Interpretation] Yes, I have, Your Honour.

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

15 this agreement?

16 THE ACCUSED DOSEN: [Interpretation] No, Your Honour.

17 JUDGE ROBINSON: And has your counsel informed you of the nature

18 of the charges against you and of the consequences of pleading guilty to a

19 crime against humanity?

20 THE ACCUSED DOSEN: [Interpretation] Yes, he has, Your Honour.

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

22 Defence have recommended to the Chamber that sentence fall within the

23 range of five and seven years, but you must understand that the sentence

24 will ultimately be determined by the Chamber in accordance with the

25 Statute and the Rules. Do you understand that?

1 THE ACCUSED DOSEN: [Interpretation] Yes, Your Honour.

2 JUDGE ROBINSON: How do you plead to count 3 of the indictment,

3 charging you with persecution?

4 THE ACCUSED DOSEN: [Interpretation] I plead guilty, Your Honour.

5 JUDGE ROBINSON: Sit. You may sit.

6 [The accused sits down]

7 JUDGE ROBINSON: The Chamber, having heard the submissions, is

8 satisfied that the plea was made voluntarily, that it was informed, not

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

10 of the accused's participation in it. Accordingly, the Chamber enters a

11 finding of guilt.

12 Mr. Mundis, or Ms. Baly, I'm sorry, the Chamber having accepted

13 the plea in accordance with the agreement, the Prosecutor will withdraw

14 the other charges?

15 MS. BALY: That's correct, Your Honour.

16 JUDGE ROBINSON: Thank you. Can we turn now to the date for the

17 sentence hearing? You will recall that on Monday, the 8th and Tuesday,

18 the 9th of October, we will be hearing submissions in respect of the

19 accused Kolundzija. The Chamber will fix Wednesday, the 10th and

20 Thursday, the 11th for the sentence hearing in respect of Sikirica and

21 Dosen.

22 Mr. Greaves, you've already indicated that you will be brief.

23 MR. GREAVES: I hope I always try to be in these cases, yes. I

24 anticipate that a short written submission can be made in respect of these

25 matters. I would anticipate actually being no more than an hour at the

1 very most in oral submissions before the Trial Chamber.

2 JUDGE ROBINSON: Thank you, Mr. Greaves.

3 MR. GREAVES: I think I'm being long. I would hope to keep it

4 shorter than that.

5 JUDGE ROBINSON: Thank you.

6 Mr. Petrovic? What is your estimate of the time that you will

7 need?

8 MR. PETROVIC: [Interpretation] Your Honour, between 45 minutes and

9 one hour will, I'm sure, be sufficient, in addition to what we submit in

10 our written submission. So I think we will be able to comply with the

11 schedule we have just heard from you here today.

12 JUDGE ROBINSON: Thank you.

13 Mr. Greaves?

14 MR. GREAVES: There was one matter I omitted to mention in

15 relation to scheduling. Could we also adhere, then, to the date for

16 filing of briefs, which I think is October the 1st.

17 JUDGE ROBINSON: Yes, that will be on the Monday, the 1st. The

18 sentencing briefs should be filed by Monday, the 1st of October.

19 MR. GREAVES: Thank you very much. There is one other matter that

20 I need to remind the system of. A report is to be prepared by

21 Mr. McFadden, the commandant of the United Nations Detention Unit, If I

22 can just gently remind the system that that needs to be prepared and ready

23 for the sentencing hearing.

24 JUDGE ROBINSON: Yes. I'm informed that the report will be

25 transmitted to the Registry this afternoon.

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1 MR. GREAVES: Thank you very much, Your Honour.

2 JUDGE ROBINSON: Sir Ivan?

3 Sorry, Mr. Petrovic?

4 MR. PETROVIC: [Interpretation] Your Honour, I apologise, but I

5 would just like confirmation for your part whether the dates relate to the

6 accused Mr. Dosen with respect to the final sentencing brief.

7 JUDGE ROBINSON: Yes. Yes. To all three, yes.

8 Sir Ivan, you did give us an estimate of the time that you would

9 need, but I just ask you to repeat it, because we have you down for two

10 days. Will you need two days? Because if you don't, then we could make

11 an adjustment in respect of the other hearings.

12 MR. LAWRENCE: Well --

13 THE INTERPRETER: Microphone, counsel, please.

14 MR. LAWRENCE: I'm bound to say that we haven't yet been able to

15 ascertain precisely what witnesses will be available, what witnesses we

16 need to call, what witnesses we can serve by way of statement. But there

17 is the question of the medical witness, and at the moment I haven't

18 up-to-date news about how that is progressing.

19 I think it's safer to keep to the original plan, that we should be

20 able to complete our task in the two days allotted. If it should go a

21 little short, then perhaps that can't be helped. If I know in sufficient

22 advance -- and I will be with my learned junior who is handling all these

23 matters next week. He has been unable to come today. Firstly, we didn't

24 think it would be necessary; and secondly, sad things have happened which

25 make it very difficult for him to fly out of Chicago, in any event. But

1 we will be getting together over the next few days, and I may be able to

2 provide the Court with more up-to-date information. If that

3 should -- information should be usable for the purposes of speeding

4 things, then I'm sure all of us might agree that we might arrange that,

5 but I think it's safer --

6 JUDGE ROBINSON: Yes. We'll stick to the two days. And if you

7 can let us know in sufficient time to make the adjustment, then that would

8 be very good.

9 MR. LAWRENCE: There are just two matters which, since I'm on my

10 feet, I would be grateful for the Chamber's guidance on. Firstly, it

11 would be helpful if we had the governor of the Detention Centre's report

12 before we finalised our written brief. I know that there's been an

13 indication that it should be available today or tomorrow, but I'm afraid

14 that sometimes things go adrift, and I would like to be assured that even

15 if it can't be available today or tomorrow, it will be available sometime

16 next week so that we can close that with our final brief. That's the

17 first point.

18 The second is: I wonder if the Court could give a ruling on the

19 length of the written brief. I have looked with care and even sought

20 advice about the meaning of the practice direction on the length of

21 briefs, which does not specifically address the length of a written brief

22 where a plea of not guilty has turned into a plea of guilty, particularly

23 before any evidence has been called for the Defence. And on the one hand,

24 it says that final trial briefs - which in a sense this is - should not

25 exceed 200 pages or 60.000 words; on the other hand, other motions - which

1 this may not be - replies and responses, which this certainly isn't, are

2 not to exceed 10 pages or 3.000 words. So somewhere there, there is --

3 there must be some indication of whether we can --

4 JUDGE ROBINSON: Perhaps you should just give us an indication as

5 to how long you think your brief will be.

6 MR. LAWRENCE: In excess of 10 pages, certainly. It also depends

7 upon whether enclosed in the written brief are the references in

8 quotations, which make it much easier for the Chamber to read, or whether

9 it's got to be done by footnotes and annexes, which makes it more

10 difficult for the Chamber to read. Obviously, the latter will

11 considerably increase the length of the final brief; the former will

12 shorten it. But even foreshortened, I couldn't do it in ten pages whilst

13 doing justice to Kolundzija's case, bearing in mind in this that he hasn't

14 yet presented his defence or any of the witnesses.

15 JUDGE ROBINSON: Would it exceed 15 pages?

16 MR. LAWRENCE: Well, at the moment it does. I can give an

17 undertaking to the Court that it will be as short as possible, but the

18 Court might think it helpful for the future to give some kind of

19 indication as to how it reads, section 4 and section 5, in relation to

20 this matter, so that it doesn't have to be raised, as it were, on the

21 floor of --

22 JUDGE ROBINSON: Well, we'll leave it to your judgement to present

23 a brief as short --

24 MR. LAWRENCE: Precisely, as I can.

25 JUDGE ROBINSON: -- as possible.

1 MR. LAWRENCE: Yes. I will do it. I'm most grateful.

2 JUDGE ROBINSON: Are there any other matters? Mr. Mundis.

3 MR. MUNDIS: Your Honour, just briefly to follow up with what

4 counsel for the accused Kolundzija had said, the Prosecution is intending,

5 with the permission of the Trial Chamber, to file one consolidated

6 sentencing brief with respect to all three of these individuals, primarily

7 because the camp conditions section, which we are intending on pointing

8 out, will be similar for all three of them. I would not expect our

9 sentencing brief to exceed 30 to 35 pages in total with respect to all

10 three individuals, and I would first like a clarification that that would

11 be acceptable to the Chamber.

12 JUDGE ROBINSON: Yes, it would be. Yes.

13 MR. MUNDIS: And then finally, with respect to actual arguments

14 with respect to the three individuals before you, the Prosecution also is

15 intending on providing oral submissions with respect again to the camp

16 conditions, which would be relevant and probative, in our view, to the

17 sentences of all three of the individuals.

18 Under the scenario that the Trial Chamber has outlined for us this

19 afternoon, what we would envision, or at least our understanding from what

20 you've directed today, would be that Mr. Kolundzija would present his case

21 on Monday and Tuesday, the 8th and 9th, and then would immediately move

22 into sentencing arguments with respect to Mr. Kolundzija. Is that

23 correct?

24 JUDGE ROBINSON: Yes. Yes.

25 MR. MUNDIS: The Prosecution then would simply like to alert the

1 Chamber or request clarification from the Chamber that it would be

2 permissible for the Prosecution at that time to develop its oral arguments

3 with respect to camp conditions, which would also be relevant to the other

4 two accused when we present specific sentencing arguments with respect to

5 those two individuals on the following two days.

6 JUDGE ROBINSON: Yes, I think that would be permissible. That

7 means that counsel for the other accused should be present.

8 MR. MUNDIS: Yes, Your Honour. Thank you.

9 MR. LAWRENCE: I wonder if the Court would bear with me for a

10 moment. In response to what Mr. Mundis has said, with respect, it would

11 be very helpful - I'm not sure that we wouldn't be entitled - to have the

12 Prosecution's written brief before we submit our own written briefs.

13 Certainly it would be helpful in as much as we could tailor our responses

14 to any of the arguments which are adduced by the Prosecution in our

15 written brief, provided we had it in advance. Well, that doesn't give

16 them a great deal of time. Our briefs have got to be in by the 1st of

17 October, so they've effectively only got next week and the week after. If

18 we could have some kind of assurance that their brief will be provided to

19 us in good time, then I shall be content.

20 [Trial Chamber confers]

21 JUDGE ROBINSON: Mr. Mundis.

22 MR. MUNDIS: Your Honour, the Prosecution would be prepared to

23 submit its sentencing brief on Friday -- I believe it's the 27th, 28th of

24 September. I believe October 1st is a Monday, if I'm not mistaken. We

25 would be prepared to submit our brief on the Friday prior to that Monday,

1 if that would be of assistance to the Defence.

2 MR. LAWRENCE: I'm afraid it wouldn't be of much assistance to the

3 Defence, because in order for ours to be served by the 1st of October, I

4 have in mind that it should be present for printing and whatever is

5 required by the weekend of the 28th of September. By that time, of

6 course, if what Mr. Mundis has said is going to be accurate, then we won't

7 have known and we won't have been able to respond to --

8 JUDGE ROBINSON: Mr. Mundis, can you get yours in by the

9 Wednesday?

10 [Prosecution counsel confer]

11 MR. MUNDIS: Your Honour, the Prosecution would respectfully

12 request that rather than moving the date of our submission up, if perhaps

13 the date that the Defence could file their sentencing briefs be pushed

14 back the other direction. In other words, perhaps rather than theirs

15 being due on the 1st of October, perhaps their responses could be due on

16 Wednesday, the 3rd of October.

17 JUDGE ROBINSON: Yes. I think that's helpful.

18 MR. LAWRENCE: I have no objection to that, and I see that my

19 learned friends also agree. That would be helpful to them.

20 JUDGE ROBINSON: Very well, then. The Defence sentence brief by

21 Wednesday, the 3rd of October.

22 We stand adjourned.

23 --- Whereupon the Motion Hearing

24 adjourned at 3.12 p.m.

25