Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6061

1 Monday, 16 October 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.32 a.m.

5 JUDGE MUMBA: Good morning. The registrar please call the case.

6 THE REGISTRAR: [Interpretation] Case number IT-96-23-T and

7 IT-96-23/1-T, the Prosecutor versus Dragoljub Kunarac, Radomir Kovac,

8 Zoran Vukovic.

9 JUDGE MUMBA: As we do not appear to have witnesses, the

10 proceedings will move into a Status Conference to find out what has

11 happened since the last proceedings and the last orders with regard to the

12 medical examination of the accused Zoran Vukovic.

13 Mr. Jovanovic, what is the status?

14 MR. JOVANOVIC: [Interpretation] Good morning, Your Honour. Thank

15 you. This is the way things stand: We have received the finding and the

16 opinion of the expert witnesses who have examined the accused Mr. Zoran

17 Vukovic. I think that our learned friends from the OTP are aware of this

18 document and that it has been translated into English.

19 At this moment, the Defence considers that two questions arise

20 which are mutually connected. The first of this is whether an

21 examination, the one mentioned here through an echograph, is really

22 necessary, because from the findings of both experts, we see that they

23 think this could possibly be needed to clarify the situation fully, but

24 the Defence wonders whether this is really necessary for several reasons.

25 First of all, we do not want these proceedings to be protracted

Page 6062

1 unnecessarily. The second question is the following: In spite of the

2 fact that both expert reports are almost identical, there is a slight

3 discrepancy in paragraph 6 of Mr. Dunjic's finding. If Dr. de Grave could

4 prove these statements wrong, Your Honour, we propose that the expert

5 witnesses be examined. And if Dr. de Grave were able to refute the claims

6 in paragraph 6 of Dr. Dunjic's report, then we believe that this

7 examination might be necessary. Otherwise, we think it might be

8 superfluous because it would not give us any new information which would

9 help us in this case.

10 JUDGE MUMBA: As to the sufficiency of what has been done by the

11 medical experts, it is really your case. It is your client who applied

12 for this as part of his defence case. So what appears to be the case with

13 you is that you are satisfied except for two statements in Dr. Dunjic's

14 report which you would require a response from Dr. de Grave.

15 MR. JOVANOVIC: [Interpretation] Yes, Your Honour, precisely so.

16 This is the only discrepancy that exists, and we believe that before we

17 reach any decision about this additional examination, we should clarify

18 the situation to see whether we can do so without an examination and find

19 out what the true state of affairs is.

20 JUDGE MUMBA: What material difference is there between the two

21 and how material is this discrepancy, as you describe it? How material is

22 it to your defence case? Does it affect your defence case?

23 MR. JOVANOVIC: [Interpretation] Your Honour, I will try to be as

24 brief as possible. In paragraph 6 of his report, Professor Dunjic states

25 that based on an examination and what he learned from Mr. Zoran Vukovic

Page 6063

1 during the examination, the pain that occurs, as described here -- and I

2 will not use medical terms to describe it -- can be linked to the injury

3 which would give the same clinical picture as would have been obtained if

4 there had been an injury to the testes. I'm not so well-versed in

5 medicine to say whether these two clinical findings would correspond. So

6 I think it would be useful if the two experts were to clarify this issue

7 between themselves and that this would be the fastest way of dealing with

8 this.

9 [Trial Chamber confers]

10 JUDGE MUMBA: Thank you, Mr. Jovanovic. Maybe let's hear from the

11 Prosecution what they their standpoint is or what their submission is.

12 MR. RYNEVELD: Thank you, Your Honour. At the outset, my friend

13 has indicated that he believes that the document has been translated into

14 English and that we have a copy of it. Unfortunately, if it has been

15 translated into English, the Prosecution is not yet in possession of a

16 translated copy of Dr. Dunjic's report; nor is Court, I understand. That

17 is the first problem.

18 Secondly, however, if, as I read what he says and as I heard him

19 say that he doesn't think that this secondary examination is necessary

20 because in paragraph 6, Dr. Dunjic indicates that based on reporting to

21 him by Mr. Vukovic, he feels that it's consistent with his evidence, that

22 is, with respect, circuitous reasoning. What we're looking for is some

23 independent clinical examination that would either corroborate or

24 otherwise the complaints to which Mr. Vukovic has testified. Therefore,

25 with respect, I do not see how such a reliance upon reporting by

Page 6064

1 Mr. Vukovic to the doctor could be of any greater assistance to the Court

2 or to Dr. de Grave who prepared the other report. So ...

3 JUDGE HUNT: But your doctor says he wants this examination to be,

4 to be of any real assistance.


6 JUDGE HUNT: So are you seeking it?

7 MR. RYNEVELD: Let me just consult with my colleague. The doctor

8 says that in order to be absolutely sure, he would require that. Now --

9 JUDGE HUNT: Why didn't he have it done? He had instructions to

10 go ahead and make all the examinations which were necessary. I don't

11 understand why he didn't go and have it done, although I notice the last

12 paragraph of his report politely asks the Prosecution to pay for what's

13 already been done. Maybe he's awaiting that.

14 MR. RYNEVELD: Yes. Now, I understand that he is an expert, of

15 course, of the registrar, not of the Prosecution in this case. However,

16 the last paragraph says, "As soon as we are in possession of the results

17 of the supplementary investigation, we will answer all the questions." So

18 I think he has asked that it be done, and he's just awaiting the results.

19 Now, I could be wrong about this, but as I understand, this isn't

20 something that the doctor will personally do. It's an examination he

21 orders to be done, and then he looks at the results and forms an opinion,

22 much like a blood test. You order a blood test, they get the results, and

23 then they give their medical opinion with respect to examination prepared

24 by others.

25 I don't know whether Mr. Vukovic has submitted himself to that

Page 6065

1 examination or not.

2 JUDGE HUNT: Or whether he's willing to.

3 MR. RYNEVELD: Or whether he's willing to. Perhaps my learned

4 friends could be of assistance to the Court in that matter.

5 JUDGE MUMBA: Yes, Mr. Jovanovic, you've heard what the

6 Prosecution have said as the interpretation of what the registrar's expert

7 has indicated in his report. What is your response?

8 MR. JOVANOVIC: [Interpretation] Your Honour, unfortunately, I

9 cannot say anything more than I have already said before this Chamber. I

10 have only stated the reasons why I believe it would be useful to determine

11 whether this examination is really necessary or not. I thought there may

12 be a way of avoiding it in order to speed up the proceedings; however, if

13 the doctors insist on it, it is up to the Trial Chamber, of course.

14 As regards my client's willingness to submit to this kind of

15 examination, I have not had an opportunity to ask him because I arrived

16 only on Saturday, but knowing what he has -- what he told me before, I

17 think there will be no problem, that he, if this examination proves to be

18 necessary, will willingly submit to it.

19 JUDGE MUMBA: Yes, Mr. Jovanovic, you may be seated. Did you want

20 to say anything? All right. Go ahead.

21 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. I only

22 wished to advised Trial Chamber that I have just received a message from

23 my client confirming that he is willing to undergo this examination and

24 that he agrees to it if it is necessary. Thank you.

25 JUDGE MUMBA: Thank you. The Trial Chamber has just been informed

Page 6066

1 through the senior legal officer that, in fact, there was an indication by

2 the doctor for this type of examination to be done, and the Trial Chamber

3 would like to find out from the relevant unit in the Registrar's office as

4 to why it hadn't been done and whether they were not sure whether they

5 should go ahead with it, and would also like to find out how long it would

6 take -- in fact, the Trial Chamber would like it completed so there are no

7 uncertainties.

8 So we will adjourn and resume our proceedings perhaps at 10.00 or

9 as soon as the Registry official with the relevant information is located

10 and appears before the Trial Chamber.

11 --- Recess taken at 9.50 a.m.

12 --- On resuming at 10.12 a.m.

13 JUDGE MUMBA: The Trial Chamber now has the official from the

14 Registry dealing with this medical examination. May we please have your

15 particulars, your name and office?

16 MS. OSEREDCZUK: [No interpretation]

17 JUDGE MUMBA: We don't seem to have the English translation.

18 MS. OSEREDCZUK: I'm Isabelle Oseredczuk, and I'm working for the

19 Registry, for the office in legal aid and detention matters.

20 JUDGE MUMBA: Thank you. The Trial Chamber is interested in

21 finding out as to when this examination can be conducted. How soon?

22 MS. OSEREDCZUK: [Interpretation] We will do everything in our

23 power to have this examination done this week; that is to say, we can do

24 it tomorrow, the day after tomorrow. As soon as possible, in other

25 words.

Page 6067

1 JUDGE MUMBA: The Trial Chamber was interested in having it done

2 today, soon after the adjournment.

3 MS. OSEREDCZUK: We were waiting, as you say, for an authorisation

4 from the Trial Chamber in order to perform this examination, and it was

5 suggested in Mr. de Grave's report, which was submitted to the Trial

6 Chamber.

7 JUDGE MUMBA: Now that you have got the consent or the order of

8 the Trial Chamber that you proceed, is it possible to proceed with it

9 today?

10 MS. OSEREDCZUK: [No interpretation]

11 JUDGE MUMBA: We have no English.

12 MS. OSEREDCZUK: I'm sorry. We will do our best for the

13 examination to take place today or as soon as possible.

14 JUDGE MUMBA: And when the examination is done, can we have the

15 report filed?

16 MS. OSEREDCZUK: Yes. We will request the doctor which --

17 JUDGE MUMBA: Once the report is finalised, the results of the

18 examination, rather.

19 MS. OSEREDCZUK: Once the doctor of the detention unit will

20 perform the examination, we will file his report, and his report should be

21 sent to Mr. de Grave and also to the expert assigned by the Defence in

22 order to make their -- for them to make their final conclusion as it is

23 requested by Mr. de Grave.

24 JUDGE MUMBA: Yes. Thank you very much. You may be seated. I

25 just want to find out from the parties if there are any other comments in

Page 6068

1 view of what the Registry has informed the Trial Chamber.

2 [Trial Chamber and legal officer confer]

3 Mr. Jovanovic?

4 MR. JOVANOVIC: [Interpretation] No, Your Honour. We have no

5 comments, and no one from the Defence counsel has any comments.

6 JUDGE MUMBA: Thank you. The Prosecution.

7 MR. RYNEVELD: Under the circumstances, that's the most

8 satisfactory method I can see.

9 JUDGE HUNT: Mr. Jovanovic, we've now been given the English

10 translation of your doctor's report, and he says he considers it necessary

11 to have this additional examination because the only objective,

12 independent evidence to support your client's version is tenderness in the

13 area of the right testicle on examination. So if I may say so, you are a

14 little precipitate, perhaps, in saying that you didn't think it was

15 necessary, because without that, you have no objective evidence to support

16 that this injury occurred at that time, and that's the real point of it

17 all, isn't it?

18 MR. JOVANOVIC: [Interpretation] I'm sorry, Your Honour. All the

19 evidence that we had, the witnesses and the report on the injury, we've

20 presented it all. As far as the doctor is concerned, my understanding is

21 the doctors never have enough examinations, so that's why I put this up

22 for discussion.

23 JUDGE MUMBA: Thank you. I think we are through with that. The

24 report will be sent to the two experts for their own interpretation or


Page 6069

1 The next stage is we have the application from you, Mr. Jovanovic,

2 that you nevertheless would like to have Dr. Dunjic heard.

3 MR. JOVANOVIC: [Interpretation] Your Honours, perhaps I didn't

4 express myself very precisely. My proposition to have the doctors heard

5 was just in order to discuss this issue. At this moment, I have no other

6 questions. There is nothing that I want to put to them apart from this

7 issue we've discussed.

8 JUDGE HUNT: But Mr. Jovanovic, you have filed two motions, one

9 for -- one to have the registrar's doctor present and one to have your

10 doctor present. Does that mean you're not going to go -- proceed with

11 those motions?

12 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. At this moment

13 I will abandon this idea because I don't think that calling them here

14 would give us anything that we don't already know. That was my proposal

15 just in case that the Trial Chamber decides it is necessary to hear them.

16 JUDGE HUNT: That would save -- I'm sorry. That will save an

17 enormous amount of time because if both parties are content to rely upon

18 this report that's going to be obtained, we can get on with the

19 Prosecution case in reply.

20 JUDGE MUMBA: All right.

21 MR. JOVANOVIC: [Interpretation] Your Honour, if you allow me just

22 a minute of consultation with my colleagues.

23 [Defence counsel confer]

24 [Trial Chamber confers]

25 JUDGE MUMBA: Mr. Jovanovic, you are on your feet. Is there

Page 6070

1 anything you wanted to say?

2 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. I think I owe

3 you a reply to the question that has been asked. I think that at this

4 stage, my definitive decision would be premature as to the appearance of

5 medical experts. I think it would be more useful to have their report

6 before deciding whether it is necessary for them to appear or not.

7 JUDGE MUMBA: All right. In that case, then, the Trial Chamber

8 decides that you should be able to indicate within 24 hours of the filing

9 of the medical report after the examination has been done.

10 MR. JOVANOVIC: [Interpretation] Yes, Your Honour.

11 JUDGE MUMBA: Maybe we can release the Registry official, because

12 we've finished with her, and she can go ahead and start making the

13 necessary arrangements for the examination.

14 [Trial Chamber confers]

15 JUDGE MUMBA: Maybe we can ask the parties, the rebuttal case for

16 the Prosecution is quite independent of the issues being raised by the

17 medical examination. The Trial Chamber wanted to find out from the

18 parties, especially the Defence, if they would consent that pending the

19 final receipt of these medical examinations, the rebuttal case for the

20 Prosecution can go ahead.

21 Mr. Prodanovic, any comments? Would you consent to that.

22 MR. PRODANOVIC: [Interpretation] Your Honours, as far as the

23 accused Kunarac is concerned, we have finished our case. I leave it to my

24 colleagues to decide. These issues under discussion, as I understand,

25 relate only to the accused Kovac.

Page 6071

1 JUDGE MUMBA: Thank you, we wanted that on the record.

2 Mr. Kolesar, any objection to the rebuttal case going ahead before

3 final receipt of the medical reports?

4 MR. KOLESAR: [Interpretation] Your Honours, the position of the

5 accused Kovac, in view of the Rules of Procedure, is that these Rules

6 should not be violated, and I suggest that the rebuttal case begin after

7 we have discussed the issue pending in relation to the medical

8 examination.

9 I know that this is time-consuming, but I believe that would be

10 more consistent with the Rules we are dealing with.

11 JUDGE MUMBA: Yes. The Rules are there to guide the proceedings,

12 we know, but we are dealing with two distinct issues here. The medical

13 report is dealing with issues quite apart from what the rebuttal case is

14 likely to deal with.

15 MR. KOLESAR: [Interpretation] Yes, Your Honour, we agree on that

16 point, but the Rules say that the rebuttal case should begin after the

17 Defence case is closed. If you decide otherwise, we shall comply with

18 that.

19 JUDGE HUNT: It's not a question of us deciding otherwise. What

20 the Presiding Judge was asking you is whether you would consent to the

21 matter going ahead notwithstanding the Rule. The Rule can always be

22 waived. She has pointed out to you that the two issues are entirely

23 unconnected, that is, the issue which is yet to be determined by the

24 medical reports and the issue to be determined by the Prosecution's

25 reply.

Page 6072

1 Now Rules can always be waived by consent. We can't direct you to

2 do it. We are simply asking you whether your client is prepared to

3 consent to the matter proceeding notwithstanding the Rule.

4 MR. KOLESAR: [Interpretation] I shouldn't wish to be understood as

5 a person who is procrastinating, and I would not like this to hurt my

6 client in the sentencing, and only for that reason I would consent to

7 waive the Rule.

8 JUDGE MUMBA: No, Mr. Kolesar. There is a misunderstanding.

9 Nothing would hurt your client in as far as sentencing. Sentencing will

10 depend on what is provided for under the Statute and it will follow the

11 conviction if we come to that. In any case, this medical report has

12 nothing to do with your client.

13 JUDGE HUNT: That was, if I may say so, a very clever manoeuvre,

14 but it isn't the point. Your client cannot be punished for insisting upon

15 compliance with the Rules. So let us make that abundantly clear. There

16 will be nothing taken out on your client if he should have to be sentenced

17 because he has not consented. We are simply asking you, appearing for a

18 party which has no interest in this particular issue at all, whether you

19 are prepared to waive the requirement of the Rules that the Defence cases,

20 all of them, be concluded before the Prosecution case in reply is heard.

21 Now, if you say you will not consent, that is an end to it. We

22 can't overrule you in any way. We are simply asking you for your consent,

23 and your client cannot suffer if he says no. But I would like, myself, to

24 hear you grapple with that particular issue and not attempt in some way to

25 hide behind what may happen on sentencing because that just is completely

Page 6073

1 irrelevant, Mr. Kolesar.

2 MR. KOLESAR: [Interpretation] I agree, Your Honour. I would only

3 like to ask you for a minute to consult my client.

4 JUDGE MUMBA: Very well. Go ahead.

5 [Defence counsel and accused confer]

6 MR. KOLESAR: [Interpretation] Your Honours, my client agrees for

7 the matter to proceed, and his defenders consent too, with the proviso

8 that we are complying with and bearing in mind para 10 of the Trial

9 Chamber's decision.

10 JUDGE MUMBA: Can you clarify that? Para 10, which decision?

11 MR. KOLESAR: [Interpretation] I'm referring to the latest decision

12 on allowing the rebuttal case, where we requested that after the rebuttal

13 case, we have -- we have the right to a case in reply too, with new

14 witnesses.

15 JUDGE HUNT: That will depend entirely, Mr. Kolesar, upon whether

16 the Prosecution case in reply raises some new issue. The Prosecution was

17 given the case in reply because you had failed to deal with the matter in

18 the cross-examination of the Prosecution witnesses. The Prosecution

19 witnesses are being brought along in reply in order to deal with the

20 matters that you should have put to them in cross-examination.

21 Now, provided that that is the limit of the Prosecution case in

22 reply, there's no right to any case in rebuttal at all.

23 MR. KOLESAR: [Interpretation] Your Honours, the decision of the

24 28th September this year was received by me with deep appreciation, but I

25 should say that there is a major misunderstanding. In the discussion

Page 6074












12 Blank page inserted to ensure pagination corresponds between the French

13 and the English transcripts.













Page 6075

1 about which Defence witnesses should be heard, I said that I had some

2 witness statements, but I did not present them. I don't know how that was

3 translated, but in our language that means that I did not present the

4 statement of Witness DV to Witness 87; but in the cross-examination, I

5 bore in mind the witness statements collected by the Defence, and in the

6 cross-examination I raised all the issues that were the subject of my

7 later examination.

8 On that occasion I explained that I had not presented witness

9 statements because I did not know whether witnesses -- whether the

10 witnesses would be called ultimately, and it is in that light that I

11 understood item 10 of the decision I referred to and the later

12 explanation.

13 I agree with what Judge Hunt just said: If some new issues are

14 raised, I believe the Defence should have the right to a case in rebuttal.

15 JUDGE HUNT: But that can only be determined after we've heard the

16 Prosecution case in reply, that if they raise something, not you, that if

17 they raise something new, then obviously you would be entitled, in

18 fairness, to meet it. But I'm not going to debate with you the way in

19 which you cross-examined. The Trial Chamber has ruled against you and

20 said that you failed to comply with the rule.

21 Now, whether that was through a misunderstanding or not really

22 doesn't matter. It was a question of fairness, and fairness only, that

23 the Prosecution got its case in reply. But if the Prosecution goes beyond

24 those issues, then, obviously, we must listen to what you want to call in

25 reply, if you have something.

Page 6076

1 MR. KOLESAR: [Interpretation] Yes, I agree with you completely.

2 Thank you.

3 JUDGE MUMBA: Thank you, Mr. Kolesar.

4 Mr. Jovanovic, do you consent to have the rebuttal Prosecution

5 case go ahead before finally receiving the medical examination reports?

6 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. The Defence of

7 Zoran Vukovic agrees to this. We would only wish to ask that during the

8 re-examination, nothing new should be presented with respect to Zoran

9 Vukovic.

10 JUDGE MUMBA: Anyway, we can just wait and see what happens with

11 the Prosecution. Thank you.

12 Now, how soon can we get the two witnesses for the rebuttal case,

13 Ms. Uertz-Retzlaff?

14 MS. UERTZ-RETZLAFF: Your Honour, the Prosecution now faces a

15 problem. We had planned to have the witnesses here on Wednesday, but we

16 were asked to cancel this. On Friday we were asked to cancel this, and we

17 did cancel it. And we need, in relation to the protective measures for

18 one of the witnesses in place and in relation to the fact that she has

19 small children to take care of, we need three days' advance notice. So it

20 cannot be on Wednesday.

21 JUDGE MUMBA: It can be on Thursday?

22 MS. UERTZ-RETZLAFF: Thursday poses a problem for the Witness 87

23 who is not available on Thursdays. So the suggestion would be to have the

24 rebuttal case on Monday, that is, the 23rd, if this is possible.

25 JUDGE MUMBA: Yes, we can have it on Monday.

Page 6077

1 MS. UERTZ-RETZLAFF: We will arrange that the two witnesses will

2 be here.

3 JUDGE MUMBA: In which case the proceedings will continue with the

4 rebuttal case by the Prosecution on Monday at 0930 hours.

5 MS. UERTZ-RETZLAFF: Yes, Your Honour.

6 JUDGE MUMBA: Anything else by the parties? The Defence?

7 Nothing. The Prosecution, anything else?

8 MS. UERTZ-RETZLAFF: Yes, Your Honour. It's in relation

9 to the scheduling of the closing -- the final trial brief and the

10 closing argument. At the moment, our closing brief is due on the 25th.

11 Does that remain? It's -- we don't know if we have the expert, the

12 experts' additional conclusions by then, so what

13 will we do?

14 JUDGE MUMBA: We will wait until we finalise the rebuttal issue in

15 case Mr. Kolesar has some submissions to make, and then we will reschedule

16 the dates.

17 JUDGE HUNT: But you must keep working in the meantime,

18 Ms. Uertz-Retzlaff.

19 MS. UERTZ-RETZLAFF: Yes, Your Honour. We are aware of that;

20 we're doing it constantly.


22 JUDGE MUMBA: Yes, because there are really two issues remaining

23 here, and so they shouldn't affect the rest of the Defence case.

24 The Trial Chamber will adjourn until Monday, 0930 hours.


Page 6078

1 --- Whereupon the hearing adjourned at 10.39 a.m. to

2 be reconvened on Monday, the 23rd day of October,

3 2000, at 9.30 a.m.