1 Monday, 3 November 2003
2 [Initial Appearance]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.00 p.m.
6 JUDGE ORIE: Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case number
8 IT-01-42-I, the Prosecutor versus Vladimir Kovacevic.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 Mr. Kovacevic, can you hear me in a language you understand?
11 Is Mr. Kovacevic on the right channel?
12 THE ACCUSED: [Interpretation] Yes, I can hear you, Your Honour.
13 JUDGE ORIE: Thank you, Mr. Kovacevic.
14 May I have the appearances. Prosecution first.
15 MS. SOMERS: Thank you, Your Honour. For the Prosecution, Susan
16 L. Somers. To my right, Mr. Phillip Weiner; to my left Ms. Victoria
18 JUDGE ORIE: Thank you, Ms. Somers.
19 And for the Defence, please.
20 MR. MORRISON: Your Honour, Howard Morrison.
21 JUDGE ORIE: Thank you, Mr. Morrison.
22 The first thing this Trial Chamber has to do at an initial
23 appearance, Mr. Kovacevic, is to satisfy itself that your right to be
24 assisted by counsel is respected. I see that you are assisted by
25 Mr. Morrison. Is this in accordance with your wish at this moment, to be
1 assisted by Mr. Morrison?
2 THE ACCUSED: [Interpretation] Yes.
3 JUDGE ORIE: Mr. Kovacevic, this initial appearance mainly serves
4 to confront you with the charges against you and to hear from you whether
5 you want to enter a plea on those charges either within the next 30 days
6 or today.
7 May I first ask you whether you received a copy of the indictment
8 that was brought against you in a language you could read.
9 THE ACCUSED: [Interpretation] Yes.
10 JUDGE ORIE: Have you discussed the content of the indictment with
12 MR. MORRISON: Your Honour --
13 JUDGE ORIE: I do not hear any translation at this moment, but
14 from the original, I understand the answer was in the negative.
15 Mr. Morrison, could you --
16 MR. MORRISON: That's correct, and it is for this reason: There
17 is a supervening, or potential supervening problem in this case as to
18 whether or not the accused is a person who is fit to plead to the
19 indictment, so that's the matter which is causing at the moment the
20 greatest concern to the Defence. I have a copy and I've read the
21 indictment, as indeed has the accused. So we both know what's in the
22 indictment. It's not a question of what's in the indictment at the
23 moment, it's his capacity to enter an informed plea that's in issue. So
24 that's the reason why we haven't discussed the details of the indictment.
25 JUDGE ORIE: Yes, I do understand, Mr. Morrison. This Chamber, as
1 you may have noticed from the fact that his initial appearance has been
2 delayed, has received some documents in relation to the health of
3 Mr. Kovacevic. The last information, written information, we received
4 dates from last Friday, I believe, and the last information we received
5 orally -- oral information was given to us today.
6 Could you give us any -- from what you say, Mr. Morrison, I do
7 understand that we, the Chamber, would not even ask the accused whether he
8 could enter a plea and, rather, at this moment limit itself to confronting
9 the accused with the indictment as such.
10 Is it your opinion that Mr. Kovacevic is capable of listening to
11 the charges brought against him today so that he can consider over the
12 next 30 days, as the Rules say, whether or not to enter a plea? I mean,
13 if it is of any use to read the indictment today to him or do you say,
14 well, he wouldn't understand it anyhow?
15 MR. MORRISON: Your Honour, there is no question about his
16 intellect. He can certainly read, as I understand it, and understand the
17 words in the indictment. It's not reading the words of the indictment or
18 understanding their literal meaning which is the problem. It's whether or
19 not he has a sufficient mental capacity to be fit to plead to it and
20 thereafter to stand trial.
21 So as I understand it, obviously speaking as a layman and not a
22 psychiatrist, there is nothing -- there will be no value today, in fact,
23 in reading the indictment out to him because he wouldn't -- I would urge
24 you not to arraign him so that he wasn't going to enter a plea today.
25 The question of the next 30 days is clearly the issue which needs
1 to be determined, what happens between now and the expiration of 30 days,
2 and what I'm going to ask the Trial Chamber to do is to order expedited
3 psychiatric reports. I say "expedited" because I know my own experience
4 in my own jurisdiction is that it usually takes a great deal longer than
5 30 days to get a full psychiatric report unless the court orders an
6 expedited report, and it is usual to have two reports from two separate
7 psychiatrists to see whether or not there is a coincidence of professional
8 opinion or whether there is a divergence of opinion, and one can discover
9 that at an early stage by having two reports, and I think that would be
10 the most useful exercise that we could undertake, subject, of course, to
11 the Court agreeing to my submission.
12 Plainly, it would assist if the psychiatrists were able to speak
13 to the accused in a language which he understands rather than having the
14 additional problem of anything coming through in translation. I
15 appreciate that adds rather than detracts from the problem, but I'm sure
16 there must be available to the Tribunal such expertise.
17 JUDGE ORIE: Yes. Are you aware, Mr. Morrison, of the last
18 written report the Chamber has received?
19 MR. MORRISON: No.
20 JUDGE ORIE: Then perhaps I -- would you prefer to deal with it in
21 closed session rather than in open session or -- it concerns the -- well,
22 the psychological aspects of the health, psychiatric aspects, not
23 necessarily -- I mean, it has been clear to the public that there are some
24 problems, but if it comes to details, I leave it up to you or
25 Mr. Kovacevic whether you apply for closed session to deal with it.
1 MR. MORRISON: My instinct, without taking instructions in the
2 matter, is to ask for a closed session because I haven't seen the
3 document, and I would be hostage to fortune to do anything else.
4 I'm sure Mr. Kovacevic has heard what I've said in translation,
5 that it's my suggestion that we go into closed session, i.e., in case he
6 don't understand what that means, an element of privacy, and perhaps he
7 could indicate what his views are.
8 JUDGE ORIE: Yes. Apart from that, private session would perhaps
9 also do because it's rather a matter of the spoken words than to have the
10 curtains down.
11 MR. MORRISON: Yes.
12 JUDGE ORIE: Mr. Kovacevic, Mr. Morrison thinks that you'd prefer
13 to discuss your psychiatric health not with the public hearing whatever
14 has been said but to -- to say -- to put the microphones off as far as the
15 outside world is concerned.
16 I do understand from your nodding that you would agree with that,
17 but before giving any decision, Ms. Somers, would you please express the
18 position of the Prosecution on both points. The first one is that it
19 would not even be of any use to read the indictment to the accused today,
20 and the second one is whether or not to go into closed session in order to
21 discuss the health situation of the accused.
22 MS. SOMERS: Your Honour, inasmuch as we are not in closed session
23 at this moment, I would simply indicate that the Prosecution is also not
24 aware of anything more current than the 27th of October, and so I would be
25 very grateful to see the most recent or hear about the most recent
1 assessment. And based on prior reports, it was our understanding that
2 perhaps proceeding might be possible. Accordingly, I have to leave it in
3 the Chamber's hands to let us have a look.
4 JUDGE ORIE: Yes. Perhaps then we'll turn to private session in
5 order to discuss the latest reports on the health situation of
6 Mr. Kovacevic.
7 [Private session]
12 Pages 176 to 179 – redacted – private session.
4 [Open session]
5 JUDGE ORIE: Mr. Kovacevic, the Chamber has understood that you
6 have medical problems at this moment and that therefore it's not sure that
7 it's of value for yourself, to any use yourself to have the indictment
8 read to you, but this initial appearance has several functions. One of
9 them, to inform you about the indictment, but also to inform the public
10 about the case. Therefore, I'll briefly explain to you what this case is
12 The charges brought against you concern the events that happened
13 on the 6th of December, 1992, at Dubrovnik. On that day, an attack was
14 launched, according to the indictment, against the city of Dubrovnik, and
15 you are specifically charged with your participation in that attack, an
16 attack that, according to the indictment, resulted in the death of two
17 persons and three persons injured, and an attack which caused considerable
18 damage and devastation that was not caused by military necessity, of
19 civilian objects, and specifically also it caused destruction and damage
20 done to institutions dedicated to religion, charity, education, arts and
21 sciences, and historical monuments, and finally also works of art.
22 Your participation, in the indictment, is one which entails your
23 criminal responsibility either by direct participation or because you're
24 held responsible because of your command position.
25 That is, in short, your participation in what happened on the 6th
1 of December, 1991, in Dubrovnik, causing death, injury, and damage.
2 I am not going to ask you today whether you -- whether you want to
3 enter a plea or not. The Chamber will first consider whether it's
4 necessary to have a psychiatric examination done. The Rules say that an
5 accused enters a plea within 30 days, but they can do it right away. I
6 will not invite you to do it right away. It will -- you'll be asked to do
7 so at a later stage if at least the Chamber is of the opinion that you are
8 fit to enter a plea.
9 For the public, I'll briefly read in what counts the events are
10 legally formulated.
11 Count 1 is murder in violation of the laws or customs of war as
12 recognised by Common Article 3(1)(a) of the Geneva Conventions of 1949,
13 punishable under Articles 3 and 7(1) and 7(3) of the Statute of the
15 Count 2: Cruel treatment. That relates to people injured. Cruel
16 treatment, a violation of the laws or customs of war, as recognised by
17 Common Article 3(1)(a) of the Geneva Conventions of 1949, punishable under
18 Articles 3 and 7(1) and 7(3) of the Statute of the Tribunal.
19 Third count is attacks on civilians, a violation of the laws or
20 customs of war as recognised by Article 51 of the Additional Protocol I
21 and Article 13 of the Additional Protocol II of the Geneva Conventions of
22 1949, punishable under Articles 3 and 7(1) and 7(3) of the Statute of the
24 As far as the damage done to objects is concerned, the attack on
25 the 6th of December, 1991, on the city of Dubrovnik, in the opinion of the
1 office of the Prosecutor in count 4: Devastation not justified by
2 military necessity, a violation of the laws or customs of war, punishable
3 under Articles 3(b) and 7(1) and 7(3) of the Statute of the Tribunal.
4 Count 5: Unlawful attacks on civilian objects, a violation of the
5 laws or customs of war, as recognised by Article 52 of Additional Protocol
6 I to the Geneva Conventions of 1949 and customary law, punishable under
7 Articles 3 and 7(1) and 7(3) of the Statute of the Tribunal.
8 And finally, it amounts in count 6 to destruction or wilful damage
9 done to institutions dedicated to religion, charity, and education, the
10 arts and sciences, historic monuments and works of art and science, which
11 is a violation of the laws or customs of war, punishable under Articles
12 3(d) and 7(1) and 7(3) of the Statute of the Tribunal.
13 Attached to the indictment is one annex which deals with the
14 overall military structure of the forces involved in the attack as
15 described in the indictment, and a second schedule what is a list of
16 approximately 50 pages describing in detail the damages to the
17 institutions dedicated to religion, charity, and education, arts and
18 sciences, historic monuments and works of art in the old town of
20 Mr. Kovacevic, before we adjourn and before the Chamber will
21 deliberate on the questions raised by Defence counsel whether you're fit
22 to enter a plea, I'd like to ask you and the Prosecution whether there's
23 any other issue to be discussed at this very moment.
24 Mr. Morrison. And I'm specifically thinking of detention
25 situation, which is often one of the issues accused want to raise during
1 the initial appearance.
2 MR. MORRISON: The instructions I have to date are that the
3 accused is suffering, in addition to whatever psychiatric illness he may
4 have, from a sense of claustrophobia, of being contained within the
5 Detention Unit. That may or may not be part of the general psychiatric
6 picture, I'm not qualified to say. But he certainly has specifically
7 talked of the claustrophobic effect of that, and indeed that became
8 apparent when we were together in a small room in the Detention Centre.
9 It was plain that, without the door being left open, he was very
10 uncomfortable. That was observable by myself.
11 That, of course, has inevitably a knock-on effect. The sense of
12 claustrophobia leads in itself to a sense of unease and distress, again,
13 which one doesn't need to be a psychiatrist or a doctor to see that. It
14 is a matter of common observation, and those are matters which -- not only
15 which I've observed - and I'm not entitled to give evidence - but those
16 are matters which are apparent from just seeing the accused and about
17 which he complains himself. And that's caused, amongst other things, a
18 loss of appetite, and he is generally, if I can put it in very lay
19 language, he appears to be less than physically -- less well than he
20 should be, but that may be as a result of the psychiatric problems rather
21 than any clinical physical problem which he has.
22 Apart from that, he appears to have been, as all new detainees
23 are, in a state of shock because of the transfer of lifestyle. That's
24 something the Court will see in almost every case.
25 He has not asked me to deal with any other specific issue, but of
1 course I know that the Tribunal will make inquiries of him directly as to
2 that. But those are the sort of broad observations resulting from what my
3 instructions are.
4 JUDGE ORIE: Thank you, Mr. Morrison. Mr. Kovacevic, is there
5 anything you would like to add to what your counsel has submitted to the
6 Chamber at this moment?
7 THE ACCUSED: [Interpretation] My counsel has noticed very well the
8 condition I am in. My late brother also came in to a situation similar to
9 mine today, and he committed suicide. I hope that I will not do that, but
10 I really find it hard in such a small room, even though the staff are very
11 correct and they've opened a small window for me. There is small gym
12 close by, and I spend most of my time there. I shall, of course, try to
13 adjust to the group and requirements of the group. I am trying to prevail
14 as much as I can. I don't know for how long I will be able to.
15 Even before this I was in detention for about a month in much
16 worse conditions in terms of comfort, but something seems to be affecting
17 me more here. I don't exactly know what it is. I'll do my best, but I
18 don't know for how long I shall manage. I'm losing my appetite, and I
19 really feel unwell.
20 So I was better prepared last Friday to appear here, but in the
21 meantime, they had already postponed it. So I don't know. I'll consult
22 with doctors and psychiatrists and we'll see.
23 I'm speaking to you quite frankly and objectively. My Defence
24 counsel himself has noticed some things that I didn't ask him to present
1 That's all I have to say.
2 JUDGE ORIE: Thank you, Mr. Kovacevic.
3 Ms. Somers, is there any issue to be discussed at this moment or
4 would you like to respond to what has been said until now?
5 MS. SOMERS: Your Honour, I will reserve certain comments until
6 other matters the Chamber has just addressed are known to the parties, but
7 I will say that it is not a unique comment by this accused that
8 confinement does not necessarily suit him or her, and accordingly, I don't
9 take any particular concern at that comment in that context, but only in
10 that context.
11 What I would just raise is that this accused is not alone as the
12 accused in the case, and whatever is decided by this Chamber will have a
13 direct impact on the co-accused Strugar, whose case we must also address,
14 and accordingly, I think that timetable should be very much borne in mind
15 because it has already been set back by circumstances.
16 JUDGE ORIE: Yes. The Chamber is fully aware of the outside --
17 that the cases are this moment still one case, or at least two cases but
18 not severed, still joined cases. Whether that remains or not is another
19 matter. We'll have to see how matters develop, but the Chamber is
20 certainly aware of that.
21 Is there anything else to be raised?
22 MS. SOMERS: I would only add, if the Chamber would permit me,
23 that the Prosecution, should we have gone forward with the first
24 appearance plea or entry of plea, the Prosecution is prepared to submit
25 supporting materials as is required under 66(A)(i). At this point in time
1 I believe we'll certainly have to wait but we've made it clear to
2 Mr. Morrison that should he continue, we have the materials for him and we
3 are very happy to meet with him.
4 JUDGE ORIE: Yes. Let me just have one moment to look to -- yes.
5 When I read 66(A)(i), Ms. Somers, I read that the disclosure should take
6 place within 30 days of the initial appearance. It does not say that
7 disclosure should take place within 30 days after a plea entered by the
8 accused, and the Rules provide clearly that at the initial appearance, the
9 accused should be informed that he will be called to enter a plea within
10 30 days. Therefore, I'd like to know from you whether you interpret Rule
11 66 such that the 30 days only start counting on from the moment that the
12 accused has entered his plea or whether these 30 days start of today.
13 MS. SOMERS: I think the principal purpose of the first appearance
14 is to enter a plea, and although it may be left somewhat vague, I would
15 submit to the Chamber that the purpose of it is from the date of pleading
16 30 days would be triggered. I would be willing and happy to check any
17 existing jurisprudence on this point, but given two facts, one of which is
18 matters that were discussed both in public and in closed session, and
19 given the fact that we're not clear about the position of counsel at this
20 point in time, to deliver materials with no guarantee of safeguard -- not
21 from counsel, counsel has agreed certainly very responsibly to handle
22 them, but if there is a period where there is some hiatus or change, we'd
23 like to be sure that the materials which are deemed, of course,
24 confidential are with the parties that will ultimately handle the case, if
25 the Chamber so agrees. But I would submit that it would be from the date
1 of plea.
2 Again, if the Chamber would like to take a recess, I can check
3 jurisprudence and see how it has been determined, but at this point that
4 would be my submission.
5 JUDGE ORIE: Yes. Perhaps it's not completely necessary that a
6 decision will be taken right away, but may I ask you the following
7 question: Would you consider that disclosure -- copies of the supporting
8 material would also assist the accused in making up his mind as to how to
10 MS. SOMERS: I believe the Chamber is not clear if the accused is
11 in a position to do so at this point in time, so it may be a bit of a
12 circle. So perhaps from a point in time where that is determined and a
13 plea is entered it might be more helpful, given the dialogue that has
14 taken place both in public and in closed sessions.
15 JUDGE ORIE: Mr. Morrison, any submissions in respect of this
17 MR. MORRISON: Your Honour, with respect, I see the common sense
18 force in the Prosecution's position in respect to those matters. It's, in
19 an ideal world, the sooner the accused has sight of the material that he
20 has to face, the better. And perhaps this is a matter that when the
21 Chamber -- essentially the question of disclosure of material is subject
22 to two things. First of all, an independent decision taken by the
23 Prosecutor as to when to disclose it, within the certain time frame, or
24 secondly, by virtue of an order of the Court. And it may well be that
25 whilst Your Honours are in recess determining the matters that you have to
1 determine, I can have a word with my learned friend and we can come to
2 what happens in English politics all the time as a good old-fashioned
4 JUDGE ORIE: Yes.
5 MS. SOMERS: Can I ask the Chamber for one more.
6 JUDGE ORIE: Yes, please Ms. Somers.
7 MS. SOMERS: Thank you, Your Honour. One of the issues, of
8 course, is what is triggered by turning over the materials, which is the
9 Rule 72 motions, the time for them. If the Chamber orders that we turn
10 them over today, we would of course ask that the time begin to run also
11 for those motions if that is going to be an issue. It's hard to separate
12 the two. So I just ask the Chamber to factor in the linked issues to the
13 turning over of materials, again which are ready to be turned over.
14 JUDGE ORIE: Yes. Have you considered that Rule 72 reads that:
15 "Preliminary motions shall be in writing and be brought no later than 30
16 days after disclosure by the Prosecutor to the Defence of all material and
17 statements referred to in Article 66(A)(i)," Mr. Morrison?
18 MR. MORRISON: Well, of course, that is a determining factor, and
19 it may be that in this case, again out of an abundance of caution and out
20 of the fact that I am only counsel assigned for the present, on temporary
21 basis, it would be better to respect the problems that the Rule 72 time
22 limits might generate and not make an order for disclosure today. In
23 other words, to treat the order for disclosure under -- as running from
24 the time of arraignment rather than the time of initial appearance.
25 JUDGE ORIE: Yes. I do understand.
1 [Trial Chamber confers]
2 JUDGE ORIE: The Chamber will consider whatever has been submitted
3 today. We'll give whatever orders or decisions appropriate, but we'll
4 first deliberate on all the issues raised today.
5 The Chamber takes it that the parties will continue to have their
6 meetings and to communicate with each other in order to solve whatever
7 problems they can solve themselves, and the Chamber would very much like
8 to be informed about whatever progress has been made in this respect. Yes.
9 The final thing I'll then do is to inform the parties and tell
10 you, Mr. Kovacevic, that at least within 30 days there will be another
11 hearing, whatever will be discussed at that moment, but it might be that
12 you are then called to enter a plea, but it depends very much on the
13 decisions still to be taken by this Chamber, but you'll appear again in
14 this court.
15 So we will adjourn until a date not yet fixed.
16 --- Whereupon the Initial Appearance adjourned
17 at 3.48 p.m.