1 Tuesday, 13 June 2006

2 [Initial Appearance]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 5.04 p.m.

6 JUDGE ORIE: Good afternoon to everyone.

7 Mr. Registrar, would you please call the case.

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

9 IT-96-23/2-I, the Prosecutor versus Dragan Zelenovic.

10 JUDGE ORIE: Thank you, Mr. Registrar.

11 Mr. Zelenovic, I take it you're Mr. Zelenovic. Can you hear me in

12 a language you understand?

13 THE ACCUSED: [Interpretation] Yes.

14 JUDGE ORIE: Then I'd like to have the appearances.

15 Prosecution first.

16 MS. UERTZ-RETZLAFF: Good afternoon, Your Honour. I'm

17 Hildegard Uertz-Retzlaff, I appear for the Prosecution, together with case

18 manager, Sebastiaan van Hooydonk.

19 JUDGE ORIE: Thank you, Madam Uertz-Retzlaff.

20 And for the Defence.

21 MR. VAN DER SPOEL: Good afternoon, Your Honour.

22 Tjarda Van der Spoel, duty counsel.

23 JUDGE ORIE: Yes, Mr. Van der Spoel.

24 Mr. Zelenovic, I take it that you discussed with counsel -- that

25 you discussed with counsel the purpose of the proceedings today, that is

1 you make your first appearance before this Tribunal and later on you'll be

2 invited to tell us whether you consider yourself guilty or not guilty.

3 That's the main purpose of this hearing. And then if there are any other

4 issues as far as detention is concerned, about your health is concerned,

5 you could raise them after we have done this.

6 Mr. Zelenovic, one of the first things I have to verify is that

7 you are represented, and I do see that Mr. Van der Spoel is with you today

8 and he just -- when saying that he was duty counsel, we understood this,

9 that he has been appointed by the Registrar to be duty counsel today. Is

10 that -- do you want to say anything about your representation by

11 Mr. Van der Spoel today?

12 THE ACCUSED: [Interpretation] No, no, no. Normal.

13 JUDGE ORIE: Have you received the indictment in your own

14 language?

15 THE ACCUSED: [Interpretation] Yes.

16 JUDGE ORIE: Yes. Do you understand the content of the

17 indictment -- there must be something.

18 Did you understand the content of the indictment?

19 THE ACCUSED: [Interpretation] Yes, I have fully understood it.

20 JUDGE ORIE: Yes, there was some interference.

21 Mr. Zelenovic, you have the right to have the whole indictment

22 read out in full to you. Do you want to exercise that right or do you

23 want to waive this right? If you want to exercise that right, I'll ask

24 the registrar to read aloud each count of the indictment.

25 THE ACCUSED: [Interpretation] No.

1 JUDGE ORIE: Then we'll come later to the several counts of the

2 indictment. By the way, you don't have to keep standing all the time. If

3 you'd rather sit down, which is more comfortable to you because it will

4 take some time, please then be seated.

5 Mr. Zelenovic, pursuant to Rule 62(A)(iii) of the Rules of

6 Procedure and Evidence, you have the right to enter a plea, a plea of

7 guilty or a plea of not guilty, on each count today, but you also may

8 choose to enter such a plea within 30 days of this initial appearance. I

9 don't know whether you discussed this with counsel and whether you decided

10 whether you would like to enter a plea today or whether you would rather

11 wait until a later moment within 30 days. What is your choice? There's

12 no need for every single answer to stand up. That's ...

13 THE ACCUSED: [Interpretation] I have decided to plead in one

14 month's time. I have not got a counsel. I haven't consulted counsel, so

15 I'm not ready to plead today.

16 JUDGE ORIE: Yes. Then -- yes. So you would take your time.

17 We'll then schedule another hearing in which you'll be given an

18 opportunity to enter a plea. Therefore, we don't have to go through all

19 the counts of the indictment at this moment; you have delayed the plea.

20 Mr. Zelenovic, there are a few other matters then which I'd like

21 to raise. First of all, I'd like to inform you that the Prosecution in

22 this case has filed a request before the Referral Bench, which is a

23 Chamber of three Judges, a bench of three Judges, asking that these Judges

24 decide that your case will be referred to the authorities of Bosnia and

25 Herzegovina, so asking that this Tribunal will decide that finally you'll

1 have to stand trial in Bosnia and Herzegovina, rather than in The Hague.

2 I just wanted to inform you about that so that you do not leave here with

3 the expectation that your case will be heard anyway by this Tribunal.

4 Another matter I have to raise is your pre-trial custody. Upon

5 your initial appearance, your custody is ordered, you'll be in pre-trial

6 detention, but you may file an application for provisional release

7 pursuant to Rule 65 of the Rules of Procedure and Evidence of this

8 Tribunal. And if you'd like to file such a request, then stand-by counsel

9 will be able to assist you in this matter.

10 Another matter I would like to briefly raise is that within 30

11 days of this Initial Appearance, the Prosecution will disclose to the

12 Defence all the material that supports the indictment against you that

13 will be sent to counsel, but it will also be disclosed to your counsel in

14 your own language. That means you can read it; it will be in your

15 language therefore as well.

16 Further, but this is mainly addressing Mr. Van der Spoel, your

17 counsel will have an opportunity to file within a 30-day period of time

18 any preliminary motions, at least on from the date when this supporting

19 material to the indictment has been disclosed to him. You're still

20 standing, and as far as I'm concerned, you may be seated, Mr. Zelenovic.

21 Mr. Zelenovic, I'll now ask your counsel and the Prosecution,

22 having heard that a plea will not be entered today, if there's any other

23 matter the Prosecution would like to raise at this hearing.

24 MS. UERTZ-RETZLAFF: Your Honour, just an information. It -- we

25 actually were prepared to provide the supporting material today, but

1 because we have only here today the duty counsel and not the permanent

2 counsel, we thought it better to wait until we have the name of the

3 permanent counsel. It's much more practical to disclose it once to this

4 counsel.

5 JUDGE ORIE: Yes. Isn't it right that the Rules in respect of the

6 time limits for the filing of preliminary motions have been recently

7 changed only a couple of weeks ago, and that the disclosure obligations

8 remain but that the 30-day period of time - that's at least what is in the

9 back of my mind - waits -- does not start until -- until duty counsel

10 is -- is replaced by permanent counsel, at least other counsel. This has

11 the advantage, Madam Uertz-Retzlaff, that the accused can already start

12 reading the material. So therefore, I don't know whether there's any need

13 to delay the disclosure, even if duty counsel would not immediately start

14 acting on it in full detail. But at least then the disclosure is there.

15 I see, Mr. Van der Spoel, you're looking in the Rules. I think,

16 as a matter of fact, that these -- I don't even know -- I have to be

17 carefully because I think the amended rule enters into force, I think,

18 eight days after it has been published or something like that, but there

19 is something in the back of my mind which says that there might be -- or

20 am I mistaken? It's still possible.

21 MS. UERTZ-RETZLAFF: I'm actually not aware of this change, but

22 Mr. Van Hooydonk is looking for it.

23 JUDGE ORIE: If the change is there it is the most recent one, so

24 that's from last month.

25 MS. UERTZ-RETZLAFF: We will check it and disclose this --

1 JUDGE ORIE: Yes, perhaps I mixed up a few things, but I --

2 therefore --

3 MS. UERTZ-RETZLAFF: We definitely have the material together to

4 be disclosed.

5 JUDGE ORIE: Yes, I think as a matter of fact nothing opposes

6 against disclosing it, even if duty counsel would not start working with

7 it, at least - and that's the understanding - that time limits for filing

8 preliminary motions would then start at the appropriate moment.

9 MR. VAN DER SPOEL: May I remark on that, please, Your Honour?

10 JUDGE ORIE: Which one?

11 MR. VAN DER SPOEL: May I remark on your observation, please?

12 JUDGE ORIE: Yes.

13 MR. VAN DER SPOEL: I discussed the matter yesterday with my

14 client and he was very clear in his position. He thanked me very much for

15 explaining what the proceedings are, but everything concerning his case he

16 would like to have done by his chosen counsel in Bosnia and Herzegovina.

17 He has mentioned the name of the counsel to the registrar. The counsel is

18 not yet on the list of Defence counsel for the ICTY but could be put on

19 that list. It has to be assessed during the -- the Registry is doing the

20 process now, and in the meantime I have been instructed not to do

21 anything. I have discussed the position with the client; of course I have

22 discussed disclosure. The Rules I have are the Rules of the 29th of March

23 2006. Perhaps there are more recent Rules.

24 JUDGE ORIE: No, no, that should be them. In other words, I

25 might --

1 MR. VAN DER SPOEL: Just to be sure I don't want my client to be

2 put in a position that I have to do something that he doesn't want me to

3 do. So I think it's a sensible suggestion from the side of the Prosecutor

4 to disclose as late as possible that the chosen counsel have more time to

5 prepare his case and see if they can file an objection against the

6 indictment and things like that.

7 JUDGE ORIE: Yes, I think as a matter of fact time should remain

8 the same for chosen counsel. It's only that Mr. Zelenovic would deprive

9 himself from an early reading of this material. That's the only thing I

10 had on my mind which that might interest him.

11 Mr. Zelenovic, if the material will be later disclosed to counsel

12 of choice, then it would also mean that you could not read it yet in your

13 own language. If you would say "no" - I would rather start reading even

14 if Mr. Van der Spoel doesn't read at the same time the English version -

15 then please tell us so we could see if it could be resolved in such a way

16 that you do not deprive yourself from looking at the material and that it

17 would not negatively impact on your possibilities to file preliminary

18 motions.

19 THE ACCUSED: [Interpretation] Counsel is representing me in court,

20 and he told me, "I shall be representing you. If you take a lawyer in The

21 Hague, then the lawyer won't go to Sarajevo to defend you. So I suggest

22 that I be your Defence counsel because your case will probably come up in

23 Sarajevo, whereas a Sarajevo counsel would not be representing you."

24 That is why I handed everything over to that particular counsel

25 and he told me not to say anything without consulting him. I gave

1 everything to -- I gave the visiting card of the duty counsel to this

2 other counsel so they can get in touch.

3 JUDGE ORIE: Yes.

4 Well, perhaps, Mr. Van der Spoel, you'll be able to communicate

5 this specific matter with counsel Mr. Zelenovic has chosen.

6 By the way, Mr. Zelenovic, does your -- does counsel of your

7 choice, does he speak any English or French, as far as you know?

8 THE ACCUSED: [Interpretation] In Sarajevo they provided me with a

9 list of lawyers, and I selected that particular person but I didn't ask

10 him. I have his visiting card and I handed over the lawyer's visiting

11 card to the duty counsel, so he is informed of the name and the telephone

12 number and the details.

13 JUDGE ORIE: Yes, because that could cause some problems in having

14 him assigned to you, even if it were only for the 11 bis proceedings

15 because it's uncertain whether the 11 bis proceedings will, well, go

16 quicker than the development of the proceedings in the case against you.

17 But that's perhaps something to -- Mr. Van der Spoel, to the extent

18 possible, for you to discuss with counsel of choice.

19 Then when you referred to March, that was the date of publication

20 in March. I take it that there is a -- the Rules have been --

21 MR. VAN DER SPOEL: That's correct, yes.

22 JUDGE ORIE: I take it there have been amendments to the Rules

23 after that. But whenever I find something, I'll make it clear to the

24 parties that every rule is available to everyone.

25 Madam Uertz-Retzlaff, I've got a few questions. First of all, the

1 operative indictment at this moment is an indictment which still bears

2 three names, although I'm aware that the names of two co-accused since

3 then have been in a separate indictment. It seems that the cases of them

4 have been severed but are still on the operative indictment.

5 MS. UERTZ-RETZLAFF: Yes, Your Honour, that's our understanding.

6 JUDGE ORIE: Yes. And is -- if this -- is this how you'd like to

7 keep it?

8 MS. UERTZ-RETZLAFF: Yes, Your Honour. We didn't actually intend

9 to amend it.

10 JUDGE ORIE: I beg your pardon? You did not --

11 MS. UERTZ-RETZLAFF: We did not intend to amend it.

12 JUDGE ORIE: You did, however, for the two others. I think they

13 have got --

14 MS. UERTZ-RETZLAFF: Yes --

15 JUDGE ORIE: -- their own indictments.

16 MS. UERTZ-RETZLAFF: That's correct. But we actually -- the first

17 one against Mr. Stankovic was amended because the charges were changed.

18 JUDGE ORIE: Yes.

19 MS. UERTZ-RETZLAFF: And the -- in relation to Mr. Jankovic, I

20 seem to recall there was a challenge against the form of the indictment,

21 and that's why we amended it. But I may be --

22 JUDGE ORIE: Yes, but they were then also separate indictments.

23 MS. UERTZ-RETZLAFF: Yes.

24 JUDGE ORIE: But Mr. Zelenovic will be accompanied by two

25 co-accused who are not appearing anymore in this case?

1 MS. UERTZ-RETZLAFF: What we -- what actually can be done,

2 redact -- reductions can be made without having an impact of -- on the

3 indictment as such.

4 JUDGE ORIE: Yes.

5 MS. UERTZ-RETZLAFF: That's also done occasionally, but that's not

6 really considered an amendment, it's just reductions.

7 JUDGE ORIE: Yes. Well, that's -- then I have one other question

8 for you because within the next 30 days we'll hear a plea entered by

9 Mr. Zelenovic, I take it. And I have one question which is not -- where

10 the indictment perhaps needs some interpretation in order to be fully

11 understood, whereas I think that I'd like to understand what the

12 indictment against the accused is, and I take it that the accused would

13 like to know what the indictment against him is. I'm taking you to page 5

14 of the amended indictment. In paragraph 5.3, we find a description of

15 soldiers, among them Mr. Dragan Zelenovic, interrogating the women that

16 were detained; then threats expressed against these women; and then it

17 continues that these soldiers, Dragan Zelenovic being among them, gang

18 raped several women during or immediately after the interrogation when

19 they suspected of -- who they suspected of lying. And then it says that

20 in paragraphs 5.4 to 5.6, particularities of some of those assaults are

21 given. And then we find in 5.4, we find what happened to a witness

22 code-named FWS-75, and then it says that she was interrogated, also by

23 Dragan Zelenovic. But when it comes a few lines further down, when it

24 comes to rape, it says that she was raped by ten unidentified soldiers,

25 whereas it seems that in 5.3 you identified Dragan Zelenovic as -- at

1 least that's -- I have some difficulties in understanding it differently.

2 But in 5.4 we find none of the persons suspected of having raped Witness

3 V -- FWS-75 as being identified.

4 MS. UERTZ-RETZLAFF: Your Honour, what we believe -- or rather,

5 it's our position that in relation to the gang rape of the Witness 75,

6 Dragan Zelenovic is responsible for this gang rape, although he himself

7 did not rape that victim because he is -- he and Gojko Jankovic together

8 started. It's one -- it's one event, the gang rape of 75, and

9 Dragan Zelenovic is involved in that as he is, together with

10 Gojko Jankovic, interrogating the woman and then turning her over to the

11 rapists. This is his responsibility in relation to the Witness 75.

12 JUDGE ORIE: Yes. So I now --

13 MS. UERTZ-RETZLAFF: This is how we see it.

14 JUDGE ORIE: I do understand that although he did not himself

15 commit the rape, as described in further detail in 5.4 --

16 MS. UERTZ-RETZLAFF: Yes.

17 JUDGE ORIE: -- you keep him responsible under 5.3, individually

18 responsible --

19 MS. UERTZ-RETZLAFF: Yes.

20 JUDGE ORIE: -- for his role in the gang rape in which he finally,

21 physically, did not take part and which is described in 5.4?

22 MS. UERTZ-RETZLAFF: Yes, Your Honour, that's how we see it.

23 JUDGE ORIE: That's -- at least now it's clear to me exactly how

24 to understand the indictment in this respect and also may assist the

25 accused in understanding what he'll be pleading to.

1 Then, Mr. Zelenovic, may I ask you, you arrived in the Detention

2 Unit by now. Do you have any complaints about treatment in the Detention

3 Unit or treatment on your way getting there?

4 THE ACCUSED: [Interpretation] No, none at all. Everything is

5 fine.

6 JUDGE ORIE: Thank you. And then another question is whether

7 there are -- whether you have any concerns about your own health. If you

8 would like to -- if you would prefer to answer that question not in

9 public, please ask me, then we'll turn into private session so that only

10 we will hear any concerns you may raise. But it's up to you. For

11 example, if you have no real health concerns, then it might be --

12 THE ACCUSED: [Interpretation] Yes, yes.

13 JUDGE ORIE: So if there's anything you would like to say about

14 your health which I should know, please, you have an opportunity to do so.

15 THE ACCUSED: [Interpretation] No, nothing at all.

16 JUDGE ORIE: [Previous translation continues] ...

17 Is there anything else you'd like to raise, apart from what I

18 raised, health, treatment, is there anything else you would like to bring

19 to my attention prior to the next hearing which will be scheduled within

20 the next 30 days?

21 THE ACCUSED: [Interpretation] No, no.

22 JUDGE ORIE: Mr. Van der Spoel, any matter you would like to

23 raise?

24 MR. VAN DER SPOEL: No. Thank you, Your Honour.

25 JUDGE ORIE: Madam Uertz-Retzlaff?

1 MS. UERTZ-RETZLAFF: No. Thank you, Your Honour.

2 JUDGE ORIE: Then, Mr. Zelenovic, this concludes your Initial

3 Appearance, and your hearing will be scheduled in which you will be

4 invited to enter a plea, a guilty plea or a not guilty plea.

5 We stand adjourned.

6 --- Whereupon the Initial Appearance

7 adjourned at 5.32 p.m.

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