Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1234

 1                           Friday, 9 May 2008

 2                           [Open session]

 3                           [The accused Simatovic entered court]

 4                           [The accused Stanisic is not present]

 5                           --- Upon commencing at 9.00 a.m.

 6             JUDGE ROBINSON:  We are here again for this trial.  The accused

 7     Stanisic is not present.  May I ask the court deputy whether she has any

 8     information about his attendance.

 9             THE REGISTRAR:  Your Honours, we know that the accused will not

10     be present in court nor in the VTC room today, but we haven't received

11     the report yet and we are awaiting it any minute.

12             JUDGE ROBINSON:  How do you know that he will not be present in

13     court or the VTC room.

14             THE REGISTRAR:  I received a call from the UNDU at 8.10 in the

15     morning, and I was informed that the report is coming.

16             JUDGE ROBINSON:  The report is coming.  Court starts at 9.00.

17     The report ought to have been here and that was made clear in the order

18     that we issued yesterday.  There is some degree of negligence, therefore,

19     on the part of the UNDU, and I intend to take this up.

20             In the absence of the report, let me hear -- Mr. Groome, what

21     submissions would you make?

22             MR. GROOME:  Your Honour, I think the protocol that the Court

23     established yesterday is a good one and ensures that we always proceed on

24     a legal basis.  According to that protocol, a prerequisite to commencing

25     hearings is to have the information the Chamber needs to have before it

Page 1235

 1     can make a decision whether it can proceed.  It's unfortunate the report

 2     is not here but it seems to me that the most prudent course of action

 3     would maybe to have the court officer call the did he tension unit and at

 4     least get an oral reading of what is in that report so the court can make

 5     some determination whether we can proceed.

 6             JUDGE ROBINSON:  This is exceedingly frustrating but not only

 7     frustrating, it's becoming quite annoying.  The report ought to have been

 8     here, and I'm very annoyed about that and I'd like that to be passed on

 9     to the registrar himself, the annoyance of the Chamber of the manner and

10     which the UNDU is treating it in such an important matter.

11             I'm going to adjourn for 15 minutes and see whether we can get

12     the medical report from the UNDU.  We are adjourned.

13                           --- Break taken at 9.05 a.m.

14                           --- On resuming at 9.28 a.m.

15             JUDGE ROBINSON:  We now have the medical certificate from the

16     UNDU signed by Dr. Falke, and I'd like to inquire whether the parties

17     also have it?

18             MR. GROOME:  The Prosecution has it, Your Honour.

19             MR. KNOOPS:  We have it, Your Honour.

20             JUDGE ROBINSON:  Okay.

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

22             JUDGE ROBINSON:  I'll just go through the main points of the

23     report.  First, as a general comment, I'd like to say that an obvious

24     attempt has been made to meet the requirements set out in the Chamber's

25     directive yesterday.  The report is quite detailed.

Page 1236

 1             In the second paragraph, he says that the accused is still very

 2     fatigued, in fact, incredibly fatigued.  He appears incredibly fatigued

 3     but more slightly positive in his outlook and that suggests that his

 4     depression may be beginning to react to the treatment, but he considers

 5     that the accused remains in a vulnerable position.  Moreover, his ongoing

 6     frequent stools with blood loss and that has been witnessed by the

 7     guards, the nurses and himself, create a lot of mental stress and

 8     physical fatigue and social handicap.

 9             He also refers to recent blood tests which confirm a decreasing

10     haemoglobin reading and that is indicative of a substantial blood loss.

11     He makes a point that Dr. Kazimir, the gastroenterologist, changed the

12     medication regime yesterday and it would take some days to show an

13     effect.

14             He concludes, based on those observations, that the accused is

15     still too ill to attend court but if his mental condition continues to

16     show the level of improvement in the past week, and if the depression

17     lifts, then he is of the opinion that he may be capable of instructing

18     counsel in the coming weeks.

19             He reiterates his position that he does have -- that is he, the

20     accused, does have a broad understanding of the trial process and that he

21     could grasp the general thrust of what is said in court.  Then he says,

22     at this stage, therefore, the ability of the accused to participate by

23     video-conference link is limited.

24             There is a last paragraph which appears to be a kind of policy

25     reaction to the order of the Chamber and I don't intend to spend much

Page 1237

 1     time on that.

 2             So we have here a report which is fairly detailed for the first

 3     time.  Significantly, the doctor says that if the depression of the

 4     accused continues to lift, then he may be capable of instructing counsel

 5     in the coming weeks.

 6             May I ask first, Mr. Groome, whether he has any comments.

 7             MR. GROOME:  Your Honour, the Prosecution agrees with the Chamber

 8     that this is the type of detailed report that it does need and recognises

 9     that the thing that's most troubling to the Prosecution is the

10     substantial blood loss that seems to be confirmed by at least three

11     members of staff of the detention unit as well as by blood tests so it

12     seems to be an objective corroboration that he has lost blood.

13             I do take issue with the comments about instruction and

14     depression.  The Prosecution does not accept as logical that Mr. Stanisic

15     has the capacity to instruct his doctors yet somehow does not have the

16     capacity to instruct counsel so my recognition of the physical ailment

17     which I believe is rather temporary is in no way an endorsement of the --

18     of this assessment that he is unable at this stage to instruct his

19     counsel.  In fact, I think the evidence of Dr. Mimica during the fitness

20     hearing was that even despite the depression, he does retain and should

21     still retain the capacity to speak with his counsel.

22             However, I think there is also some good news in this.  Dr. Falke

23     assessment of his recuperation period just a few weeks ago was three to

24     six months.  In the 2nd of May report, he had given us a more optimistic

25     assessment saying 6 to 12 weeks and here Dr. Falke is now saying in the

Page 1238

 1     coming weeks, so I mean the Prosecution is happy to hear that

 2     Mr. Stanisic is improving under Dr. Falke's care and it is our

 3     expectation that we will be able to continue at a proper speed in the

 4     near future.

 5             With respect to what we do today, again, I feel I'm in the same

 6     position as yesterday with respect to the -- his physical condition.  It

 7     seems that the substantial blood loss is something that is corroborated.

 8             I do want to point out to the Court and I have no specific relief

 9     that I'm seeking but there are -- all of this has presented some terrible

10     difficulties for witnesses, for example, Mr. Josipovic who is upstairs, I

11     think this is the third time now that we have scheduled him, and he's

12     having increasing problems with his employment.  I'm not -- it's not a

13     problem that I think the Chamber can solve and nor should it be a problem

14     that influences the Chamber's decision to proceed today, but if the Court

15     is considering an adjournment I had earlier proposed a protocol where if

16     we just had one day's notice so if it is possible if the Court is going

17     to adjourn, Mr. Josipovic is here until next Tuesday.  He's prepared to

18     be here.  He's taken off for Tuesday so if the Court wants to adjourn the

19     case until Tuesday, hopefully Mr. Stanisic will be well and Mr. Josipovic

20     will be here.

21             If for some reason Mr. Stanisic is not well next Tuesday, I would

22     ask the Court if it is possible to at least have a day where we assess

23     his health and then we could have the witnesses here in 24 hours but it

24     is becoming increasingly difficult to bring witnesses to Denmark, from

25     the region, there is Mr. Kirudja is due to fly in from Sunday night from

Page 1239

 1     Kenya for next week's proceedings, so I'd ask the Court to keep that in

 2     mind as it schedules adjournments.

 3             JUDGE ROBINSON:  Not just the difficulty, the expense.

 4             MR. GROOME:  A tremendous expense, Your Honour.

 5             JUDGE ROBINSON:  I think the expense is a factor that can't be

 6     discounted in considering all of this.

 7             I'm not sure I understood, Mr. Groome, about the correlation that

 8     you appear to be making between the accused's ability to what you call

 9     "instruct his doctors" and his ability to instruct counsel because to

10     give information to your doctors about your health or to give them

11     information on the basis of which the doctors may come to a conclusion as

12     to your condition I would see as an entirely different matter from the

13     ability to instruct counsel.

14             MR. GROOME:  Your Honour, my position would be that the ability

15     to instruct counsel really rests on whether there is a cognitive defect,

16     is there a cognitive capacity to say I agree with this or I disagree or

17     my memory differs with what the witness has said and it does not seem

18     that we have had any evidence other than that Mr. Stanisic's depression

19     has made him less willing to be an active participant but there's been

20     nothing to indicate that he has lost the capacity to be able to say to

21     Mr. Knoops what that witness says is incorrect, my memory of the event is

22     this.

23             So to the extent that he is still able to recall his medical

24     history and to discuss with his doctors his treatment it sometimes

25     illogical to take from that he isn't also able to discuss with Mr. Knoops

Page 1240

 1     particulars about his defence and instruct him as to the position that he

 2     wishes Mr. Knoops to take.

 3             JUDGE ROBINSON:  Yes.  Mr. Knoops.

 4             MR. KNOOPS:  Thank you, Your Honour.  Your Honour, the Defence

 5     observes with the Prosecution that the report is objective in that it

 6     contains verifiable data for the Court to assess whether there is reason

 7     for an adjournment for today.

 8             As to the comparison between instructing doctors and instructing

 9     counsel, we believe that comparison is moot.  The instruction of doctors

10     does not rely upon merely referring to the medical history.  As the Court

11     may have noticed, this report does not reflect to the medical history of

12     the accused as such but simply outlines the current medical situation.

13     Therefore, we refute the notion that Mr. Stanisic, by speaking to the

14     doctor or doctors would also be able to instruct counsel.

15             In the second place, we believe that although, and that should be

16     stressed as well, for the Defence it is maybe -- sounds strange but

17     frustrating as well because within the position we have, we also prepare

18     the examinations and cross-examinations but still, of course, I have my

19     duty to protect the rights of the accused.

20             In this regard, bearing in mind paragraph 12 of your Court ruling

21     of yesterday, I believe that there are two reasons for the Court to

22     consider why we, for today, could not continue.

23             First of all, Your Honours have ruled in paragraph 12 that:

24     "When it concerns the capability of the accused of effective

25     participation in the proceedings against him, the Court has actually two

Page 1241

 1     factors in mind.  First, the broad understanding of the nature of the

 2     process and the general thrust of what is said in court."  Dr. Falke says

 3     this is still the situation as I testified during my appearance before

 4     the Court.  There's no difference in that.

 5             Secondly, Your Honours have held in paragraph 12 as a second

 6     element that, in particular, "It must be satisfied that the accused must

 7     be able to instruct his counsel effectively."  This is exactly what the

 8     report now indicates to us.  The report of Dr. Falke clearly says that

 9     depending on the lifting of the depression in the coming weeks, he may be

10     capable of instructing counsel.  So I believe that that condition of Your

11     Honours' ruling in paragraph 12 is not met.

12             Second reason is that although Dr. Falke writes that at this

13     stage, the ability of Mr. Stanisic to participate by videolink is

14     limited, Dr. Falke, as the Court may have observed, does not speak about

15     the effective participation by videolink conference.

16             Now, it's my understanding of Your Honours' ruling that the

17     participation through the videolink conference should also be situated

18     within the criterion of effectiveness.  Paragraph 12 of Your Honours'

19     ruling clearly refers to the words "to determine whether the accused is

20     capable of effective participation in the proceedings against him."

21             Now, Dr. Falke does not indicate that this is the case.  I

22     believe this is the second reason why, on the basis of paragraph 12 and

23     13 of Your Honours' order, we could, on that basis, not proceed.

24             Lastly, although the Prosecution points to the fact that the

25     report does not refer to any cognitive limitations or disabilities of the

Page 1242

 1     accused, it is, of course, important to observe that Dr. Falke confirms

 2     that Mr. Stanisic is still in an vulnerable situation, in a delicate

 3     position where external factors may jeopardise his mental health and

 4     particularly I draw the attention to the words that that "all the ongoing

 5     frequent stools," et cetera, "create a lot of mental stress, physical

 6     fatigue and social handicap."  In combination with his other

 7     observations, we consider that the parameters of Your Honours' order are

 8     not met for today and therefore, we consider if the Court would give

 9     consideration not to proceed today with the expert.

10             As to the last suggestion by my learned colleague, Mr. Groome,

11     the Defence has no objection that if Your Honours would accept that

12     practical solution that -- that solution is adopted by the Court in that

13     the situation would be evaluated one day before coming in of the witness

14     in question.  I can also understand that this will maybe be an incentive

15     for witnesses to cooperate with the Prosecution.

16             Lastly, although the report has indeed certain positive elements

17     for improvement, it is for the Court I think important to observe that

18     the prospects which are outlined by Dr. Falke are based on certain

19     conditions as mentioned in the third paragraph.

20             As for today, we believe that, therefore, the conclusion is

21     justified that we could not proceed on the basis of the two elements,

22     namely the absence of an effective possibility to instruct counsel not to

23     be equated with instructing doctors.  Secondly, not an effective

24     participation possibility by the video conference link.

25             Thank you very much.

Page 1243

 1             JUDGE ROBINSON:  It seems to the Chamber to be quite clear that

 2     we can't proceed today in light of this report which concludes that the

 3     accused is still too ill to attend court and that conclusion is

 4     substantiated by the reports referenced to symptoms and other matters

 5     which indicate the unwellness of the accused for today's proceedings.

 6             I would like to consider, though, the report's finding that if

 7     the depression continues to lift then he may be capable of instructing

 8     counsel in the coming weeks.  Now, by "the coming weeks" I would take

 9     that to mean perhaps two weeks, one or two weeks.  So I would then be

10     watching to see what happens over that period, the next one or two weeks,

11     and if the situation remains unchanged, then I believe it will be

12     incumbent on the Chamber as well as the parties to consider other

13     measures to deal with the continuation of this case which, after all, has

14     two accused.

15             I consider it to be the responsibility of the Prosecutor in that

16     regard to take account of all possible measures to ensure that this trial

17     gets going, has not -- we have not been able to move it, in my view,

18     which -- the Chamber has acted as responsibly as could be expected of it

19     in the circumstances with regard to its role in the administration of

20     justice in the Tribunal taking account of the interests of the accused,

21     ensuring that his health is safeguarded, while at the same time also

22     seeking to ensure that the prosecution of persons for serious violations

23     of international humanitarian law is not jeopardised.  These are the two

24     interests that have to be very carefully balanced by the Tribunal in this

25     regard.

Page 1244

 1             We are encouraged by the report's finding that within a -- what

 2     is called "the coming weeks," we may see some light at the end of the

 3     tunnel in terms of the accused been able to instruct counsel, but if at

 4     that time we remain in the same position, then my view is that we have to

 5     consider some other way of dealing with this matter.  We can't continue

 6     to come to court every day, sit for five, ten minutes, and do nothing.

 7     We have been at this for over two months now.  It's a very expensive

 8     procedure.  There is a matter of the witnesses.  And I should say in that

 9     regard immediately that the Chamber will adopt the procedure suggested by

10     the Prosecutor.  We have to be aware that it is witnesses who make a

11     trial possible.  Without witnesses, we have no trial, and we should do

12     everything that is reasonable to facilitate witnesses and so the Chamber

13     will adopt the measure suggested by the accused and we have every

14     sympathy for Mr. Josipovic.  We are saddened to hear that his employment

15     may be threatened by what has happened or not happened in these

16     proceedings, and we would encourage his employer to have regard to the

17     civic responsibility of Mr. Josipovic to give evidence in this important

18     trial.

19             Did you want to say something, Mr. Groome?

20             MR. GROOME:  I do want to raise one point with the Chamber.  I'm

21     concerned that the ability to instruct counsel is one of the questions

22     and one of the essential components of fitness.  I'm concerned that we

23     may make any determination or the Court may make any determination based

24     on that based upon the observations of Dr. Falke which clearly it's

25     outside his expertise.  If it ever comes to a point where the Court

Page 1245

 1     questions whether Mr. Stanisic is able to instruct counsel and -- as part

 2     of its overall evaluation of his fitness to stand trial, I think the more

 3     appropriate action would be to have him examined by a psychiatrist such

 4     as Dr. de Man or one of the other psychiatrists that have examined

 5     Mr. Stanisic in the past.

 6             Some of our research into what happens in the Dutch system is

 7     that a proper determination of fitness in the Dutch system takes place at

 8     a facility in Utrecht and takes six to eight weeks.  There is also the

 9     possibility of having a another procedure where it's done in another

10     detention unit or in a local hospital but I just would urge caution on

11     the Chamber to allow Dr. Falke's observations about his ability to

12     instruct counsel to kind of extend past his area of competency into what

13     is properly reserved for professionally-trained forensic psychiatrists.

14             JUDGE ROBINSON:  Yes, I hear the submissions that you have made,

15     Mr. Groome.  We, at this moment, are not considering the fitness of the

16     accused to stand trial.  We have already made a determination on that

17     issue.  Inevitably, I think the wellness of an accused or the wellness of

18     this accused to attend court proceedings on a particular day would have

19     to be seen broadly, I think, as a subset of the more general issue of his

20     fitness for trial and so in that regard, Dr. Falke being the UNDU

21     practitioner is, in my view, quite competent to comment on it but I take

22     your point that if the Chamber were to take -- were to be inclined to

23     take a definitive position on that issue, it might want to consider

24     getting evidence from an expert, a specialist in the area.

25             Yes, Mr. Jovanovic.

Page 1246

 1             MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.  I would

 2     like to seize this opportunity to raise an issue rather hesitantly,

 3     rather, to let the Trial Chamber know the position of the Defence rather

 4     than to raise anything.

 5             It was the first time on the 17th of March that we appeared

 6     before the Trial Chamber and since that time, the registrar had not

 7     passed a decision concerning the financing of the Defence.  The position

 8     of the Defence was that we were in the pre-trial stage until the 28th of

 9     April when the Prosecution delivered their opening statement.  Therefore,

10     we are in a highly unfavourable situation and as a Defence counsel, I am

11     duty-bound towards my members of the team.  I also had difficulties in

12     justifying my expenditures in March because the position of the registry

13     was that I should not have stayed here as long as I did, and that was

14     based on the schedule published by the Trial Chamber.  This is what I

15     want the Trial Chamber to know.

16             In addition to that, I should like to let also the Trial Chamber

17     know that the current position incurs a great expenditure from the

18     Tribunal.  I know the registrar is expecting to receive an estimation of

19     the complexity of the case and all the other matters that are necessary

20     to determine the platform for the financing of the Defence.  This has not

21     been done as yet by the registry.  That's what I wanted to let the Trial

22     Chamber know.

23             JUDGE ROBINSON:  Thank you, Mr. Jovanovic.

24             Well, as you very well know, matters of that kind are primarily

25     matters for the Registrar himself.  There may come a situation, an

Page 1247

 1     occasion in which the Trial Chamber becomes involved if a question of

 2     fairness is raised.  I would only want to take the opportunity to bring

 3     what you have said to the attention of the Registrar and to ask him to do

 4     everything within his power and within the terms of the Regulations that

 5     govern these matters to ensure that the Defence is properly resourced for

 6     the trial.

 7             The trial is a very important one.  The trial has been plagued by

 8     delays and it seems to the Chamber that the Registrar must take this into

 9     account.  If Defence counsel has to be in The Hague because of delays

10     occasioned by the illness of an accused, then it appears to us that this

11     is a matter to which the registrar must attend and give due regard but I

12     don't want to say any more on that issue because the matter as I said is

13     essentially one for the registrar.

14             We will therefore adjourn until Tuesday morning, 9.00.

15                           --- Whereupon the hearing adjourned at 9.58 a.m.

16                           to be reconvened on Tuesday, the 13th of May, 2008,

17                           at 9.00 a.m.