051207ME

Page 367

1 Wednesday, 7 December 2005

2 [Motion Hearing]

3 [Accused not present]

4 [Open session]

5 [Witnesses entered courtroom]

6 --- Upon commencing at 2.23 p.m.

7 JUDGE ORIE: Mr. Registrar, would you please call the case.

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

9 IT-01-42/2-I, the Prosecutor versus Vladimir Kovacevic.

10 JUDGE ORIE: Thank you, Mr. Registrar. And good afternoon to

11 everyone before this recomposed Chamber in this case. Judge Moloto has

12 joined us and has replaced Judge El Mahdi.

13 May I have the appearances? Prosecution first.

14 MS. SOMERS: Good afternoon, Your Honours. Susan L. Somers,

15 senior trial attorney. To my immediate left, David Re, trial attorney, to

16 my right case manager Helena Tavares-Borges.

17 Behind me, as for the Prosecution staff, Mr. Phillip Weiner, trial

18 attorney, and Mr. Aleksandar Kontic, trial attorney.

19 JUDGE ORIE: Thank you.

20 MS. SOMERS: There are, of course, other people sitting at counsel

21 table. Will the Chamber take the initiative or --

22 JUDGE ORIE: I'll take the initiative. If these are experts, I'll

23 try to find out where the experts are and how many there are.

24 Defence, please.

25 MS. RADOSAVLJEVIC: Good afternoon, Your Honours. For Mr.

Page 368

1 Vladimir Kovacevic, Tanja Radosavljevic, Defence counsel.

2 JUDGE ORIE: Thank you, Ms. Radosavljevic.

3 As far as the order of this afternoon is concerned, I suggest to

4 the parties the following. At the beginning, I'd like to ask all experts

5 that have appeared and that have reported on the mental health of

6 Mr. Kovacevic to make a solemn declaration, to confirm that they did write

7 their reports to the best of their abilities, and having given this solemn

8 declaration, I would like to invite the parties to put any additional

9 questions to experts, whether it be experts called by themselves or called

10 by the other party, and to do that in approximately 45 minutes first

11 round. Then we have a break. And on the basis of the answers given by

12 the experts, the Chamber may have some additional questions as well, and

13 the parties will have another possibility responding to what the experts

14 have told us to put more questions to the experts in approximately 25 to

15 30 minutes. So altogether, that would be 75 minutes for each party. The

16 logical order in my view would be that if you have any questions to --

17 Yes, your microphone is on. Perhaps it's better to --

18 To start putting questions to your own expert or, and only at the

19 very last, to put questions to the expert of the other party.

20 What we could do, actually, is to split up even the first 45

21 minutes and give an opportunity to Prosecution and Defence to first put

22 the questions to either the Court's experts or the experts called by

23 themselves, and then after you have done that, then to put any questions

24 to the expert called by the other party. So please split up your time as

25 you deem fit for the first 45 minutes. We will keep some record on that.

Page 369

1 If you would, for example, use 15 minutes to put additional questions to

2 your own expert, you would have 30 minutes remaining for experts called by

3 the other party.

4 That's what I suggest to the parties. If there is any comment on

5 that, or any disagreement, I would like to hear it now. And let's not

6 forget the Chamber has read all the reports. There is no need whatsoever

7 to solicit from the experts what they have put on paper already.

8 Is that clear?

9 MS. SOMERS: Thank you, Your Honour.

10 Just a brief mention that yesterday, perhaps it was explained to

11 us somewhat differently so we prepared more for full examination of ours.

12 We weren't sure if the 75 minutes were to include cross. It wasn't really

13 broken down.

14 JUDGE ORIE: Yes. As a matter of fact, we leave it entirely up to

15 you. If you say the reports of my expert are perfectly clear, the only

16 thing I wish to do is to cross-examine the experts of the other party on

17 their reports and when the cross-examination by, for example, the Defence

18 would raise any need to put additional questions in chief to my expert,

19 you could do that in the second portion of 30 minutes.

20 So I leave it up to you, whether you would seek to clarify your

21 own position primarily, or whether you would want to challenge the

22 expertise of the other party, and therefore, it's -- where you put the

23 emphasis is entirely up to you. You may use your 75 minutes as you deem

24 fit.

25 MS. SOMERS: May we inquire, does the Chamber plan to ask any

Page 370

1 additional questions of the court experts, so we know at the time?

2 JUDGE ORIE: We may have some questions for the -- perhaps for all

3 experts. But, of course, if you have put already all the relevant

4 questions, we might have less questions.

5 MS. SOMERS: Thank you. We'll try to adapt to this.

6 JUDGE ORIE: Yes. It's -- let's see whether we can proceed.

7 Ms. Radosavljevic, any comments on the order proposed?

8 MS. RADOSAVLJEVIC: I understand that this is actually a ruling of

9 the Trial Chamber that we have to keep in this time frame.

10 JUDGE ORIE: Yes, we have to finish today. Of course, after you

11 have both spent 75 minutes, once we have put questions to the experts, if

12 there is any time remaining then, of course, we could use that to the

13 benefit of the Court, but we have reserved this afternoon for this

14 hearing.

15 MS. RADOSAVLJEVIC: Thank you. There is another issue that I was

16 just --

17 JUDGE ORIE: Yes.

18 MS. RADOSAVLJEVIC: Well, I cannot say briefly address to the

19 Chamber, but I think I have to. Namely, the Defence moves the Chamber to

20 in total disregard the medical expertise submitted by the Prosecution for

21 the following reasons. The Prosecution has put in a motion for

22 reconsideration of the order from the 7th October 2005 to obtain further

23 medical examination. We all know, and I won't keep us very long, what the

24 demand in this motion was.

25 This motion was denied by the Trial Chamber. Afterwards, the

Page 371

1 Prosecution put in a request for certification which was also --

2 JUDGE ORIE: Denied.

3 MS. RADOSAVLJEVIC: -- dismissed on the 3rd of November 2005. I

4 have received a complete B/C/S and English version yesterday of the

5 medical experts of the Prosecution, and my first impression -- actually,

6 the confirmation of my previous impression when I just got the B/C/S

7 version of this report was that the Office of the Prosecutor has actually

8 given to their medical expert witness another set of questions which are

9 not the same questions given to all the other experts that appear here in

10 court. The Defence sees this as a try to -- although the Chamber on two

11 occasions gave their ruling that the questions from the 7th October order

12 are the one that they want answers for, the OTP in this manner find a

13 way -- found a way to, let's say, in -- to put in their -- the questions

14 that they wanted through a small door.

15 JUDGE ORIE: Yes.

16 MS. RADOSAVLJEVIC: Therefore, I see this as, well, I don't want

17 to say abuse of procedural rights of the parties but an unfair proceeding.

18 And therefore, I ask -- I move the Chamber to disregard in total the

19 medical report of the experts of the Prosecution.

20 JUDGE ORIE: Yes.

21 [Trial Chamber confers]

22 JUDGE ORIE: Ms. Somers, would you like to respond to that?

23 MS. SOMERS: Yes.

24 JUDGE ORIE: I already observed that -- and I think that's true

25 for both the original and B/C/S to the extent that I can compare it and

Page 372

1 the English translation, that at least the questions asked, it says,

2 please quote here the questions asked, marked as pages so and so in the

3 attachment. So therefore in the report itself, the questions do not

4 appear clearly.

5 MS. SOMERS: Your Honour, if I may respond.

6 JUDGE ORIE: Yes.

7 MS. SOMERS: On the 17th of November, the Office of the Prosecutor

8 sent to the two expert witnesses the questions and the issue if I believe

9 full awareness was the most contentious one.

10 JUDGE ORIE: That was the issue.

11 MS. SOMERS: Right. It's in the -- I would be very happy to

12 tender it to the Chamber.

13 JUDGE ORIE: Yes. I suggest that during the first break, you and

14 Ms. Radosavljevic will have a look at what questions you have put to the

15 experts, and then Ms. Radosavljevic, of course, the issue remains on

16 whether the experts kept to the questions put to them but that's, of

17 course, a different matter and, of course, you're free to argue that for

18 that reason, or if you're not convinced by what Ms. Somers shows you, to

19 persist in your request. The Chamber will not immediately decide on the

20 matter so we'll continue and we'll consider your request.

21 MS. RADOSAVLJEVIC: Thank you, Your Honour. We will follow the

22 guidelines that you've given us.

23 JUDGE ORIE: Thank you very much. Then I'd like to find a way of,

24 first of all, to identify all the experts present. I've got a list.

25 Usually we find the experts just in front of us. It's a bit complicated

Page 373

1 today but I think we'll manage.

2 I would like to know whether Mrs. Folnegovic is present.

3 THE INTERPRETER: Microphone, please.

4 JUDGE ORIE: Could you please push the button of your microphone?

5 DR. FOLNEGOVIC-SMALC: [Interpretation] Thank you very much.

6 JUDGE ORIE: Ms. Folnegovic, I'd like you -- because questions may

7 be put to you, therefore I'd like you to make a solemn declaration that

8 you'll speak the truth, the whole truth, and nothing but the truth when

9 you answer to those questions. The text is now handed out to you by the

10 usher. Would you -- may I invite to you make that solemn declaration?

11 DR. FOLNEGOVIC-SMALC: [Interpretation] Your Honours, I solemnly

12 declare that I will speak the truth, the whole truth and nothing but the

13 truth.

14 JUDGE ORIE: Thank you, Ms. Folnegovic. Please be seated.

15 Then Danijela Zakic is present as well.

16 DR. ZAKIC: [Interpretation] Yes, Your Honour.

17 JUDGE ORIE: You've heard the procedure followed. I would like to

18 invite you as well to make a solemn declaration that you'll speak the

19 truth, the whole truth and nothing but the truth.

20 DR. ZAKIC: [Interpretation] I solemnly declare that I will speak

21 the truth, the whole truth and nothing but the truth.

22 JUDGE ORIE: Then please be seated.

23 Ana Najman, is she present? Yes, Ms. Najman, may I invite you

24 also to make a solemn declaration?

25 DR. NAJMAN: [Interpretation] I solemnly declare that I will speak

Page 374

1 the truth, the whole truth and nothing but the truth.

2 JUDGE ORIE: Thank you very much, Ms. Najman.

3 Vladimir Ortakov.

4 DR. ORTAKOV: Yes, Your Honour, I am present.

5 JUDGE ORIE: Yes. May I also invite you to make a solemn

6 declaration that you'll speak the truth, the whole truth and nothing but

7 the truth?

8 DR. ORTAKOV: [Interpretation] I solemnly declare that I will speak

9 the truth, the whole truth and nothing but the truth.

10 JUDGE ORIE: Thank you, Mr. Ortakov.

11 Then Mr. Blagojevic. Is Mr. Blagojevic present?

12 DR. BLAGOJEVIC: [Interpretation] I solemnly declare that I will

13 speak the truth, the whole truth and nothing but the truth.

14 JUDGE ORIE: Then Ms. Dunja Krajinovic.

15 DR. KRAJINOVIC: [Interpretation] Thank you. I solemnly declare

16 that I will speak the truth, the whole truth and nothing but the truth.

17 JUDGE ORIE: And finally, Mr. Goreta.

18 DR. GORETA: [Interpretation] I solemnly declare that I will speak

19 the truth, the whole truth and nothing but the truth.

20 JUDGE ORIE: Thank you very much. May I put one general question

21 to all of the experts present? We have received reports -- let me first

22 concentrate on the report from Professor Folnegovic and Professor Zakic.

23 Have you written these reports to the best of your professional abilities

24 and in full accordance with the truth? May I ask you to confirm if you

25 did so?

Page 375

1 DR. FOLNEGOVIC-SMALC: [Interpretation] Yes. That is correct, Your

2 Honour.

3 JUDGE ORIE: Yes. Thank you, Ms. Folnegovic.

4 For you, Ms. Zakic, the same question.

5 DR. ZAKIC: [Interpretation] Yes. That also applies to me.

6 JUDGE ORIE: Then please be seated. You don't have to stand up

7 all the time I put questions to you because it would be a fatiguing

8 afternoon for you.

9 For the Defence, Defence experts, I would say experts called by

10 the Defence, because you're not experts for the Defence. You're experts

11 to assist the Court, and that's true for all of the experts, to assist the

12 Court in preparing and making the determinations this Court will have to

13 make.

14 Ms. Najman, is it -- did you also make your report in accordance

15 with the best of your professional abilities and in accordance with truth?

16 Could you please bush the button of the microphone if you answer

17 my question.

18 DR. NAJMAN: [Interpretation] Yes, Your Honour. Absolutely in

19 accordance with my knowledge, I drafted the report that was provided to

20 you.

21 JUDGE ORIE: Yes.

22 And the same question to you, Mr. Ortakov.

23 DR. ORTAKOV: Yes, Your Honour.

24 JUDGE ORIE: Yes. I do see this is a confirmation of what I asked

25 before.

Page 376

1 Then Mr. Blagojevic, you have not recently drafted a report but

2 you have -- reports were presented on a regular basis. Were these reports

3 made in accordance with your -- the best of your professional abilities

4 and in accordance with the truth?

5 Could you please push the button of your microphone if you answer

6 my question.

7 DR. BLAGOJEVIC: [Interpretation] Yes. It's correct that I drafted

8 the reports earlier and I sent them to you at regular intervals as

9 requested. However, since August, I have not been sending these reports

10 because, as of August the 1st, I am retired.

11 JUDGE ORIE: Yes. Then Ms. Krajinovic, you have recently

12 submitted a report on the request of the Chamber. Same question for you,

13 whether it was drafted in accordance with the best of your professional

14 abilities and in accordance with the truth. I see you nod -- yes.

15 DR. KRAJINOVIC: [Interpretation] All the expert reports so far

16 drafted by myself and Dr. Goreta, so not only the most recent one but all

17 the previous ones, were drafted in accordance with our professional

18 knowledge and ethics which applies for forensic examinations.

19 JUDGE ORIE: Yes. Then the same question for you, Mr. Goreta, and

20 also including all the previous reports, so not only the last one.

21 DR. GORETA: [Interpretation] I drafted all the reports according

22 to the criteria that you have referred to.

23 JUDGE ORIE: Thank you very much.

24 Having received this confirmation, I would like to first give an

25 opportunity to the Defence, unless the parties would have agreed

Page 377

1 otherwise, to use the first 30 minutes putting either additional -- 30

2 minutes -- no, let me say, to put those questions to the experts you

3 called yourself. That would, for you, Ms. Radosavljevic, would be the

4 report prepared by Ms. Najman, Mr. Ortakov, and also to experts called by

5 the Chamber. That would be the report drafted by Ms. Krajinovic and

6 Mr. Goreta, and if need be, also to the reports presented by

7 Mr. Blagojevic and reserve your time for any questions you would like to

8 put to the experts called by the Prosecution, that is Ms. Folnegovic and

9 Ms. Zakic.

10 So first up to you. We will just write down how much time you

11 use. The remaining time of the 45 minutes in the first round, you can use

12 to put questions at a later stage to the experts called by the

13 Prosecution.

14 Please proceed.

15 MS. RADOSAVLJEVIC: Thank you, Your Honours.

16 I plan to be very brief in the examination of my experts -- well,

17 sorry, of the experts that I have called and that have presented a report.

18 So are we going to proceed -- well, sorry, will they take the stand in the

19 witness box or ...

20 JUDGE ORIE: I --

21 MS. RADOSAVLJEVIC: Or we can adapt our positions.

22 JUDGE ORIE: Apart from who is going to sit where, there is one

23 remaining question, whether we are going to deal with all of this in open

24 session, yes or no? That's an issue I should have raised, although not at

25 the very beginning, because the public is certainly entitled to know what

Page 378

1 we are doing this afternoon. But since we do not know finally what the

2 outcome, what the determination of the Chamber will be, I leave it to the

3 parties, but especially to Ms. Radosavljevic, to consider whether or not

4 she would like to go into private session because if Mr. Kovacevic would

5 finally be found not to be fit to stand trial or to enter a plea, then it

6 might be not a good idea to discuss the whole of his mental condition in a

7 public hearing. There is always a possibility at a later stage if one of

8 the parties applies to the Chamber, for making public what has been said

9 in private session. We always then can consider to make it public.

10 Ms. Radosavljevic, do you have any position in this respect?

11 MS. RADOSAVLJEVIC: Well, as previously, the Defence is of the

12 opinion that everything that has to do particularly with the diagnosis of

13 Mr. Kovacevic and also any other material that could show to inform the

14 people which diagnosis this actually is should go into a closed session.

15 JUDGE ORIE: Yes. Ms. Somers, any objection?

16 MS. SOMERS: Your Honour, the Prosecution, as was the case in the

17 Strugar case, which was held in open session, and again had a number of

18 issues that, of course, involved issues that may be considered in a normal

19 circumstance private but when the public interest is critical were deemed

20 to be public, the Prosecution would move that the session in its entirety

21 be open. If there are individual moments where closed session for any

22 particular reason may be required, perhaps, but this, in our view, should

23 be an open hearing in which the public has great interest.

24 JUDGE ORIE: Yes. Ms. Somers, one of the problems is that once

25 testimony is given in open session, it's very difficult to make it