Kolundzija Case: Trouble With The Defence Counsels

Saturday, 2 October, 1999

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IWPR

Institute for War & Peace Reporting

Firstly, in June this year, he tried to claim mistaken identity at his initial appearance - where he was supposed to enter a plea - under the 'Sikirica & Others' indictment, for crimes in the Keraterm camp. Then last week it took three attempts to enter a plea on an amended indictment.

The original 'Sikirica & Others' indictment spelt his name wrongly - Kulundzija instead of Kolundzija - and the data on his place and date of birth were also wrong, so he apparently thought he might try to escape, claiming mistaken identity.

The plot was rather naïve. The nickname 'Kole', which he did not dispute, derives from Kolundzija and not Kulundzija, but he was able to persuade his temporary defence counsel, Eugene O'Sullivan, a Canadian law professor turned lawyer, to take up his claim.

At the first initial appearance of the accused on June 14, O'Sullivan tried to persuade the judges that "the man seated in the dock is not the man listed in the indictment," and demanded a separate identification hearing (see Tribunal Update No. 130). This was scheduled for June 24, but before it was to take place Kolundzija's new defence counsel, Dusan Vucicevic, an U.S. lawyer of Serb origin, abandoned the game.

In a written submission to the Trial Chamber,he acknowledged that Kolundzija had indeed been present at the Keraterm Camp, and withdrew the request for the identification hearing (See Tribunal Update No. 113). Thus a new "initial appearance" was scheduled for the middle of July where Kolundzija finally, at a third attempt, pleaded 'not guilty' to all 13 counts of the indictment. Last week, also on a third attempt, Kolundzija finally made his plea on the allegations in the amended indictment, which now covers five counts of persecuting Bosnian Muslims, Bosnian Croats and other non-Serbs in the Prijedor area (north-western Bosnia).

He is also accused of the murder of at least 140 men detained in Room 3 of the Keraterm camp, during the evening hours of July 24, 1992, while he was acting as the guard shift commander. Those acts are qualified in three counts as crimes against humanity, and in two as violations of the laws or customs of war.

In relation to the original indictment, all counts of 'grave breaches' of the Geneva Conventions were withdrawn, so that the Prosecutor would not have to begin his case by proving the international character of the conflict in the Prijedor region. (This was even though the Appeals Chamber had concluded in its ruling on the Tadic case that an international conflict was underway there.) The pleading was first scheduled for Monday, but his defence counsel Dusan Vucicevic did not appear before the court. Postponed for the next day, Vucicevic appeared but said he "was not prepared for the pleading" as "he did not have time" to study the amended indictment and to consult Kolundzija.

The pleading was postponed once again, but presiding judge Richard May was not at all satisfied with Vucicevic's excuse for not attending the first date, or his unpreparedness for the second. Neither did he like Vucicevic's raised tone of voice when addressing him, and he announced that he would report the lawyer to the Tribunal's Registry.

Finally, on the third day, on Wednesday, September 29, Dragan Kolundzija pleaded "not guilty" to the listed five counts of the amended indictment. The most interesting part of the three-day-long pleading of Dragan Kolundzija was the so-called status conference, held on Monday after defence counsel Vucicevic did not appear before the Court.

Prosecutor Grant Niemann explained his request that the indictment against Kolundzija should be joined with the 'Kvocka & Others' indictment. In that case, the indictments of the accused - Miroslav Kvocka, Mladjo Radic, Milojica Kos and Zoran Zigic - all in custody, had been combined from separate indictments covering the Omarska and Keraterm camps.

According to Niemann, the indictments for Omarksa and Keraterm, both camps in the region of Prijedor, could be viewed together, since the prosecutor's material evidence and many of the witnesses were the same for both indictments. Paragraph 15 in both indictments refers to a widespread and systematic attack directed against a civilian (non-Serb) population in the Prijedor municipality, Niemann said, adding, "joint trial in this particular jurisdiction (for crimes in Prijedor) should be a norm, rather than an exception". Almost all the criminal acts the four defendants, and Kolundzija, are charged with, according to Niemann, "would in part rely on common design on behalf of some third party, such as a state."

Citing the Appeals Chamber's ruling in the Tadic case that the conflict in the Prijedor region was international in character, he said the local Bosnian Serb forces acted as the "agents" of a third side - Yugoslavia and Serbia. Niemann said they had a "common purpose" and referred to the OTP's view that "the central aspect of the attack was the policy to rid the region of the non-Serb population".

After quoting the relevant paragraphs of the Appeals Chamber judgement at length, Niemann concluded that all of that "speaks about the common design of the crime being committed...that is why joinder in these circumstances in entirely appropriate."

The defence counsels of the four accused in the 'Kvocka & Others' indictment, however, oppose the joinder of cases, primarily, because - until Kolundzija and his defence counsels have undergone the preliminary motions procedure - the beginning of the trial of their clients will have to be postponed. Belgrade lawyer Toma Fila, defending Mladjo Radic, said the prosecutor's claim of 'common design' and 'common purpose doctrine', entered an argument on "collective responsibility" which implied that "nearly all Serbian inhabitants of Prijedor took part in the persecution of non-Serbs". This was, according to him, a "grave and dangerous qualification".

The judges have yet to decide on the prosecutor's request to join the cases.