(IT-95-17) Bralo, Date: 2005-07-19, Hearing Type: IT

³²

Tuesday, 19 July 2005

[Plea Hearing]

(Open session)

[The accused entered court]

--- Upon commencing at 3.07 p.m.

JUDGE LIU: Call the case, please, Mr. Court Deputy.

THE REGISTRAR: Yes, thank you, Your Honour. Case number IT-95-17-PT, the Prosecutor versus Miroslav Bralo.

JUDGE LIU: Thank you very much. May we have the appearances, please, for the Prosecution?

MR. HARMON: Good afternoon, Your Honours. Good afternoon, counsel. My name is Mark Harmon. Appearing with me is Mr. Fergal Gaynor.

JUDGE LIU: Thank you very much for the Defence?

MR. COOPER: May it please Your Honours, my name is Jonathan Cooper, counsel for Mr. Bralo, and I appear with Virginia Lindsay who is legal consultant.

JUDGE LIU: Thank you. Mr. Bralo, can you follow the proceedings in a language that you understand?

THE ACCUSED: [Interpretation] I'm not receiving the interpretation.

JUDGE LIU: That's why I asked you this question. Can you hear me?

THE ACCUSED: [Interpretation] Yes.

JUDGE LIU: Can you follow the proceedings in a language that you ³³ understand?

THE ACCUSED: [Interpretation] I can now, yes.

JUDGE LIU: Thank you very much. You may sit down, please. Well, good afternoon, ladies and gentlemen. This is a hearing in accordance with Rule 47, 50 and 62 ter of the Rules of Procedure and Evidence. This Trial Chamber is seized with the filing of documents relating to Rule 62 ter filed by the Prosecution dated 19th July, 2005. There are three documents attached to this motion, which are the plea agreement, proposed amended indictment and the factual basis. Since we just received this document this morning, I would like to have the parties to brief us very briefly on the contents of those documents.

Yes, Mr. Harmon.

MR. HARMON: Yes, Your Honour. I would be glad to do so. The three documents that the Trial Chamber has received consist of a proposed amended indictment, a proposed plea agreement and a factual basis to support a plea agreement. That's the nature of the three documents. If you want additional details, I can give Your Honours additional details in respect of those documents.

JUDGE LIU: Yes, please.

MR. HARMON: Let me start with the proposed amended indictment. The proposed amended indictment is a streamlined indictment from the previous indictment. The previous indictment had 21 counts. This indictment is a streamlined version of the previous indictment. It has eight counts. The new indictment consists of a new count, a count of ³⁴ persecutions, which is count 1, of the proposed amended indictment, and there is a second new count, that count is unlawful confinement which is found in count 6.

The streamlining of the indictment consists, for example, of the previous indictment in counts 1 and 2 has been streamlined in the new indictment. You'll find that in count 7 the amendment and the proposed amendment from the old indictment to the new indictment consists of essentially withdrawing the old count 2, a violation of the laws or customs of war, for the same conduct. In the previous indictment, Your Honours will see under counts 3 and 4, cruel and -- inhumane and cruel treatment, and the new indictment has only one of the charges, the original charges, from the previous indictment, and that's found now in count 8. Counts 5 through 8 of the old indictment, which was -- which were multiple charges relating to a set of murders that took place between the 21st of April and the 10th of May, 1993, those counts have been streamlined. We essentially withdrew three of those counts, and now that conduct, which was found in counts 5 through 8 of the old indictment, is now found in count 2 of the new indictment.

Yes, that's correct. And the counts relating to counts 9 through 21, rape and torture, now are reflected in the new indictment in counts 3 through 6. And we, as I say, have added one additional count in respect of that conduct, unlawful confinement. So what we are presenting in terms of the indictment reflects in the new indictment the conduct, much of the conduct, I should say, from the old indictment, plus the addition of a ³⁵ persecutions count. The persecutions count, count 1, relates to conduct that relates to the attack on the village of Ahmici that occurred on the 16th of April, 1993. So that is what the amended indictment is, in terms of what we are proposing, and we ask leave of the court to accept the amendments.

The plea agreement document is a document that sets forth, for the Court's benefit, the terms of the agreement in terms of reflecting this is a knowing and intelligent waiver of rights. It outlines the nature of the offences and there is a section that deal with penalty and sentencing. I should say, in terms of this agreement, this is an unconditional plea. There are no promises or inducements made by the Prosecutor's office in respect of securing the pleas that Mr. Bralo intends to tender to this Court.

Finally, Your Honours, in support of the proposed -- of the pleas, we have submitted for Your Honours a factual basis. These are facts that are agreed upon by both the Prosecution and the Defence and form the basis on which the Court can rely in respect of each of the charges. So those are the three documents that we have submitted in the package that we filed this morning, Your Honour.

JUDGE LIU: Thank you very much. Any observations from the Defence counsel?

MR. COOPER: Thank you, Your Honours, no.

JUDGE LIU: Yes. The Judges may ask some questions to the parties. Yes.

JUDGE ORIE: We have also been provided with some supporting ³⁶ material, that is, two witness statements. Do they play any role at this moment in --

MR. HARMON: The only role they play, Your Honour, is to support the proposed amendments, to establish that there is a prima facie case to support the amendments.

JUDGE ORIE: Yes. I see that attached to both the supporting documents, I do not know whether there are any protective measures but I think we can deal with it without even referring to the names of the witnesses who gave those statements, I see quite a number of documents attached, one of them some six or seven, the other one apart from a sketch which is clearly explained in the statement, also a similar document as attached to the other one, of which I'm not aware, as a matter of fact, what it actually is. Are these certificates of birth or are these certificates of --

MR. HARMON: Your Honour, there were attached some death certificates.

JUDGE ORIE: Death certificates, yes. Then I take it since they are all similar and they indicate names, that these are death certificates of the victims of -- because the names correspond with the names on the annexes to the amended indictment.

MR. HARMON: Your Honour, they are death certificates for some of the victims, not all of the victims. And, yes, they are the certificates for some of the names in Schedule A.

JUDGE ORIE: Let me just check that. Yes. Thank you.

JUDGE LIU: Well, Mr. Harmon, in your statement, you said that ³⁷^{BLANK PAGE} ³⁸ it's unconditional plea agreement. Would you please elaborate on that point? What do you mean by unconditional?

MR. HARMON: Yes, I will be glad to, Your Honour. Unconditional means that this agreement is not conditioned upon Mr. Bralo doing anything or providing anything to the Prosecutor's office. He is accepting the pleas. There have been -- the charges on their face. He is -- has not been promised anything by the Prosecutor's office nor has he been induced to plea by any recommendation, for example, of a sentence range or sentence itself. There are absolutely no promises made to Mr. Bralo, and the issue of how this case ultimately is resolved will be through evidence that will be adduced at a later hearing, should the Court accept the guilty pleas.

JUDGE LIU: Thank you. Mr. Cooper, do you have any observations on that point?

MR. COOPER: Your Honour, these are indeed unconditional pleas. They are entered freely and entirely voluntarily. The information which underlies each of the counts was either information that was known already to the Prosecutor and was included in the original indictment, or was information which came new to the Prosecutor from this defendant himself, and in relation to all the counts, those in the original indictment and if Your Honours are so minded, in the amended indictment, the defendant enters pleas entirely unconditionally, and they reflect his concern and desire to express his remorse without condition.

JUDGE LIU: Thank you very much.

[Trial Chamber confers] ³⁹

JUDGE LIU: Yes, Judge Orie.

JUDGE ORIE: Mr. Harmon, having looked at what I now know are death certificates, may I draw your attention to the death certificate which concerns Adis Salkic? On Schedule A you give as the date of birth the 20th of December, 1978, whereas the death certificate seems to indicate a date of birth different. Might be a typo but ...

MR. HARMON: Your Honour, it might be a typo. But without a copy of the death certificate here, I'm not in a position to comment.

JUDGE ORIE: The one is the 20th, the other is the 28th. It might be a typo, but I just note it's not really consistent.

MR. HARMON: That is noted, Your Honour.

JUDGE LIU: Well, after consultations among the Judges, this Trial Chamber carefully examined each of the counts in the amended indictment and any supporting materials the Prosecution provided. This Trial Chamber is in the position now to find out that a case existing against the accused.

So the newly amended indictment is confirmed by this Trial Chamber. It is so decided.

Well, since the indictment is confirmed, we believe that we should ask the accused, Mr. Bralo, to re-enter his plea to all those counts. Mr. Bralo, did you have an opportunity to discuss the contents of the amended indictment with your counsel?

THE ACCUSED: [Interpretation] Yes, Your Honour.

JUDGE LIU: Do you understand --

THE ACCUSED: [Interpretation] Yes. ⁴⁰

JUDGE LIU: Thank you. Do you understand the meaning of each count?

THE ACCUSED: [Interpretation] Yes.

JUDGE LIU: I have to remind you that you have the right to have the newly amended indictment read out, or you could waive this right. Which way do you prefer?

THE ACCUSED: [Interpretation] I waive the right.

JUDGE LIU: Thank you very much. Therefore, my suggestion is that I read out each count in the newly amended indictment. You may plead guilty or not guilty, as the case may be. Are you ready to plead at this stage?

THE ACCUSED: [Interpretation] Yes.

JUDGE LIU: Thank you. Let's begin. How do you plead to count 1: Persecution as a crime against humanity, punishable under Article 5(h) and 7(1) of the Statute of the Tribunal, guilty or not guilty?

THE ACCUSED: [Interpretation] I'm guilty and I honestly regret it.

JUDGE LIU: Count 2: Murder as a violation of the laws or customs of war, punishable under Article 3 and 7(1) of the Statute of the Tribunal. How do you plead, guilty or not guilty?

THE ACCUSED: [Interpretation] I'm guilty, and I very much regret it.

JUDGE LIU: Very well. Count 3: Torture or inhumane treatment as a grave breach of the Geneva Conventions as punishable under Article 2(b) and 7(1) of the Statute of the Tribunal. How do you plead, guilty or not ⁴¹ guilty?