Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Thursday, 31 August 2006

 2                          [Status Conference]

 3                          [Open session]

 4                          [The appellant entered court]

 5                          --- Upon commencing at 8.03 a.m.

 6            JUDGE SCHOMBURG:  A very good morning to everybody.  And thank you

 7    for coming this early, by all means.  Let's go immediately, medias in res.

 8    May I ask you, Madam Registrar, to please call the case.

 9            THE REGISTRAR:  Good morning, Your Honour.  This is case number

10    IT-01-42-A, the Prosecutor versus Pavle Strugar.

11            JUDGE SCHOMBURG:  And may I have the appearances of the parties?

12    For the Prosecution, please.

13            MS. BRADY:  Good morning, Your Honour.  Helen Brady appearing on

14    behalf of the Prosecution.  Together with me today are Mr. Xavier Tracol

15    and Ms. Michelle Jarvis and our case manager Ms. Lourdes Galicia.  Thank

16    you.

17            JUDGE SCHOMBURG:  And for the Defence, please?

18            MR. RODIC: [Interpretation] Good morning, Your Honour.  On behalf

19    of the Defence team, Goran Rodic and Vladimir Petrovic, attorneys at law

20    as counsel for Mr. Strugar.

21            JUDGE SCHOMBURG:  Thank you.

22            And I have to ask you, Mr. Strugar, can you hear me and the

23    parties, and can you follow the proceedings in a language you understand?

24            THE APPELLANT: [Microphone not activated].

25            THE INTERPRETER:  Microphone, please, for the accused.

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 1            JUDGE SCHOMBURG:  Thank you.  You may be seated again.

 2                          [Trial chamber and legal officer confer]

 3            JUDGE SCHOMBURG:  Sorry, but I couldn't follow.  Once again, you

 4    can follow the proceedings in a language you understand, Mr. Strugar?

 5            Thank you.  You may be seated again and now ...

 6            As you know, the purpose of a Status Conference is to allow a

 7    person in custody, pending appeal, the opportunity to raise issues in

 8    relation thereto, including the health situation and, if any, complaints

 9    about detention conditions.

10            Mr. Strugar, do you wish to raise any such issue?

11            THE APPELLANT: [Interpretation] I have no complaints to make about

12    the conditions in the Detention Unit.

13            As far as my health is concerned, considering my age, it is quite

14    difficult and there are a number of ailments I am troubled by.  But I wish

15    to thank you for the understanding you exhibited with regard to my hip

16    operation, which was fully successful.  However, it seems that they will

17    have to operate on my left hip as well.  Then there is my prostate and

18    dementia, which troubles me the most, as well as my rheumatism.  But at

19    any rate, my physician at the Detention Unit is fully informed of my

20    condition and I take my medications regularly.

21            But I have no complaints or issues to raise, sir.

22            JUDGE SCHOMBURG:  Thank you, Mr. Strugar.  May I ask Defence

23    counsel, do you want to add anything in this direction?

24            MR. PETROVIC: [Interpretation] Thank you, Your Honour.  Very

25    briefly, I would like to draw your attention to several circumstances the

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 1    Defence deems important at this stage.

 2            First of all, on behalf of the Defence, I would like to thank the

 3    Pre-Appeal Judge and the entire Appeals Chamber for having enabled our

 4    client recently to be taken good care of in the Medical Health Centre in

 5    Podgorica to deal with his hip.  What I would like to point out is that

 6    the health condition of General Strugar in the recent months, and one

 7    could even say years, is continuously deteriorating.  The number of

 8    ailments he suffers from is constantly present and steadily increasing.

 9    As Mr. Strugar himself pointed out just now, his health problems are

10    numerous.

11            The first and foremost is the difficulties he suffers from his

12    kidneys that are quite impaired, and as far as we know, only with the

13    adequate medical treatments can this condition be remedied.  His prostate

14    also poses a daily problem for him.  Dementia and the mental state of Mr.

15    Strugar in general is something that impairs his memory faculties, which

16    are, in his case, quite highly impaired.

17            There are a number of other difficulties he's faced with that I

18    can inform the Appeals Chamber of in a different form, however.  I wish to

19    say that, given Mr. Strugar's age, his present situation in the Detention

20    Unit is such that, in our view, constitutes a very heavy burden for him.

21            His condition requires adequate medical care at all times.  He has

22    that sort of medical care in the Detention Unit, but he requires a very

23    complex, all-encompassing medical care that is to be provided in a

24    propitious environment.

25            Besides, his family situation is quite complex as well.  His wife,

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 1    who is of an advanced age as well, is unable to visit him here because of,

 2    among other things, her eyesight difficulties.  Her eyesight is impaired

 3    by 90 per cent.  She is almost blind and, for this reason, cannot visit

 4    him at the UNDU.

 5            Given the numerous difficulties, ailments, Mr. Strugar's age and

 6    his specific family situation, General Strugar, after serving the sentence

 7    to which this Appeals Chamber will convict him to, can have at least a few

 8    years of, let's say, quality life, if he were to serve his sentence in an

 9    environment that would enable him to have constant medical care and

10    constant contacts with his family.

11            In our view, such medical care could be provided to General

12    Strugar only if he were to serve his sentence in one of the institutions

13    in Montenegro, the country he hails from.  In this regard, the Defence

14    respectfully appeals to this Chamber to be of assistance in this matter

15    and, if possible, to inform Mr. Strugar's Defence of their view as to

16    whether there is the possibility, in the context of this Tribunal's

17    Statute, Rules of Procedure and Evidence and other legal acts, in view of

18    the very specific circumstances of this case that are quite different from

19    other cases that were before this Tribunal, for Mr. Strugar to serve his

20    sentence in one of the relevant facilities in the territory of Montenegro.

21    Furthermore, the Defence would like to hear the view of the pre-appeals

22    Judge with regard to such a possibility.

23            Finally, I would like to say that the Defence is aware of the fact

24    that when it comes to the discussion about the facility to be determined

25    for such a purpose, the Defence would be prepared to withdraw their notice

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 1    of appeal, or appeals brief, in order to make this sentence final; that

 2    this would be, of course, the precondition for such a discussion.

 3    Therefore, we would first like to know whether, legally speaking, there is

 4    the possibility for such an option, which, in our opinion, would be the

 5    best solution for the situation in which Mr. Strugar currently finds

 6    himself.  Thank you.

 7            JUDGE SCHOMBURG:  I thank you.  I think we have two separate

 8    issues before us.  One is the health situation and the second is how to

 9    continue.

10            Do you have any medical certificates on the actual health

11    situation of Mr. Strugar, preferably a holistic overview of the entire

12    health situation?

13            MR. PETROVIC: [Interpretation] Your Honour, the latest documents

14    we have concerning Mr. Strugar's health are the documents which date from

15    the period when Mr. Strugar was provisionally released in Podgorica.  The

16    documents are comprehensive and cover different aspects of his health

17    condition.  We don't have one single document, but all these documents

18    cover all the aspects of his health problems that I have just talked

19    about.

20            Unfortunately, we don't have documents that would date from this

21    recent period after his return to the UNDU, but we would be able to obtain

22    it as soon as possible, just as we are prepared to offer all the

23    documentation we already have for your perusal as well as to the other

24    side, of course, in these proceedings.  The documentation is quite

25    extensive.  It is in existence and can be placed at the disposal of the

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 1    Appeals Chamber.

 2            JUDGE SCHOMBURG:  May I ask you when can this documentation be

 3    submitted to the other party and to the Bench?

 4            MR. PETROVIC: [Interpretation] Your Honour, in 10 days' time, at

 5    most, I believe we would be able to prepare the documentation for you and

 6    for the other party.  As the documentation is already in existence, we

 7    would be able to do it sooner.  However, there is the issue of having the

 8    documents translated.  Therefore, the time that we require in this respect

 9    is the time that is necessary for a good translation of the

10    documentation.  Given the nature of the documents, the documents cannot be

11    translated but by the interpreters who have the adequate expertise.

12            That would be the time limit we require.  Of course, we would wish

13    to do it sooner, but we do not want to be in a situation to have to even

14    take longer than the time limit you impose us.  That is the time we think

15    we require.

16            JUDGE SCHOMBURG:  So if I take your answer together, we can expect

17    the documentation in one of the Tribunal's official languages no later

18    than, say, not the next but in the following week, Monday, would this be

19    correct, already translated?

20            MR. PETROVIC: [Interpretation] Yes, Your Honour.  We will make all

21    efforts to make sure that it is ready by next Friday.  Maybe Monday.  We

22    will try to do this as soon as possible, but it will be ready by the

23    Monday that you are referring to.

24            JUDGE SCHOMBURG:  Okay.  And this will be the absolute deadline

25    because we have to proceed with the case.

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 1            Now let's turn to the second issue you raised, the question of

 2    enforcement.  As you correctly highlighted, this matter is not before the

 3    Appeals Chamber.  We have to deal with the appeal presented by both

 4    parties, and the question of an enforcement arises only when a decision

 5    has become final.  You alluded to the possibility that there might be a

 6    withdrawal of your appeal.  I have to ask the Prosecution on its position

 7    later on.  But before I do so, I have to emphasise that the power to

 8    finally decide on enforcement arrangements is vested in the President of

 9    the Tribunal, pursuant to Rule 103(1) of the Rules and pursuant to the

10    practice direction of the determination of enforcement states.

11            According to these norms, the Registrar, in consultation with the

12    President, would first have to conclude agreement with the Government of

13    the Republic of Montenegro to that effect, and the prison conditions in

14    Montenegro would have to fulfil the standards required by the Statute, the

15    Rules and the relevant United Nations provisions and principles.  Thus, as

16    a Pre-Appeal Judge, I'm not authorised to decide on this matter.

17            As it is not the first time that we've discussed Mr. Strugar's

18    wish to have his sentence enforced in the Republic of Montenegro, I have

19    carefully reviewed the legal situation and, personally, I do not see any

20    general obstacle to give a strong recommendation to both the Registrar and

21    the President to grant, if there should be a mutual withdrawal of both

22    appeals and therefore the sentence has become final, the conviction has

23    become final, to grant such a motion for humanitarian reasons based on the

24    health situation of Mr. Strugar.  But this, of course, depends on the

25    documentation you are prepared to submit soon.

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 1            In case there is -- in fact, I have, as I said, to ask the

 2    Prosecution as well to mutually and at the same time withdraw your

 3    respective appeals.  I have to submit this to the entire Bench, which has

 4    to decide whether or not to accept such withdrawals as being informed,

 5    voluntary and unequivocal ones, and to order, if need may be, final

 6    dispositions pursuant to Rules 101(C) and 103(C) of the Rules.

 7            Because the question already is in the room of a withdrawal, in

 8    particular from the side of Defence - and this is a personal matter for

 9    Mr. Strugar - I have to stress that such a notification, under no

10    circumstances, can be revoked.  Therefore, I have to re-emphasise that I'm

11    not able to give any guarantees.  What I can do and what I will do if such

12    a situation arises is to give a strong recommendation based on

13    humanitarian grounds that Mr. Strugar may serve the remaining part of his

14    sentence in his home country.

15            But let us hear the Prosecution on this.

16            MS. BRADY:  Thank you, Your Honour.

17            Your Honour, the Prosecution takes no position on the enforcement

18    of the sentence.  This is a matter, as Your Honour has said, for the

19    Registrar together -- the President together with the Registrar.  But we

20    have heard today that Mr. Strugar would be prepared to withdraw his appeal

21    against a trial judgement, and based on the -- what we would call the

22    exceptional humanitarian circumstances pertaining in this case, especially

23    in relation to his advanced age and poor state of health and general

24    condition, based on Mr. Strugar's preparedness to withdraw his appeal, the

25    Prosecution is likewise prepared to consider its position in relation to

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 1    its own appeal in this case and, in particular, whether to withdraw its

 2    appeal in this case.  And I stress again that this is based on the special

 3    humanitarian considerations in this case.

 4            Thank you.

 5            JUDGE SCHOMBURG:  I thank you.

 6            We have no doubt to proceed with the case, either based on a

 7    mutual withdrawal, as indicated now by both parties, or we have to proceed

 8    with the hearing of the appeal as such, as soon as possible.  But as I

 9    already stressed in a prior Status Conference, this will not be possible

10    in any event this year.

11            So it is first for the Defence to demonstrate the health

12    situation, and on this basis I have to submit all the documents and the

13    entire situation to the Bench.  But as I don't want to have another Status

14    Conference soon, and as there is an urgent need to know how to proceed,

15    please understand that I expect a final decision from both parties no

16    later than by the end of the -- not the next but the following week.

17    Otherwise, we have to conclude the discussion on whether or not to

18    withdraw appeals, but then we have to proceed on the appeal as such.

19            As this is the only possibility to hear Mr. Strugar right now

20    whether he has understood all these proceedings and whether maybe his

21    decision to withdraw the appeal is an informed one, may I ask you, Mr.

22    Strugar, did you understand all the proceedings, in particular, that I'm,

23    by the Rules --

24            THE APPELLANT: [Interpretation] I believe I have understood.  As

25    far as I'm concerned, and as far as my personal decision is concerned, I

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 1    join the attitude of my Defence.  We've discussed this matter in front of

 2    you, Your Honour.

 3            May I remind and reiterate that my psychological status, not

 4    regarding this process but my age, ever since I arrived to the Tribunal to

 5    face up to my responsibility, I've been the oldest detainee.  On the 13th

 6    of July, I turned 73, and because of the natural processes going on in my

 7    organism, I very much differ from other inmates.  They are predominantly

 8    aged 30 to 40; maybe one or two in their 50s.  Our mindset, as

 9    individuals, is very different.  I myself realise, and this bothers me, I

10    tend to forget things.  There are certain situations where I'm -- I find

11    myself in very embarrassing positions.  And if I were to look back at my

12    reactions with hindsight, I realise that it was my guilt as well.  We have

13    different mindsets.  The others inmates are too young for me, and I'm too

14    old to understand their behaviour.  That's one thing.

15            The other thing is that my professional background and history

16    means that, from very early on, I had to meet much stricter criteria to

17    behave more -- in a more civilised or cultured way.  I'm not only bothered

18    by the behaviour of the young people, I am positively offended by it.  But

19    it's not their fault, it is my fault that at such an advanced age I have

20    to find myself in such circumstances.

21            So as far as what my Defence counsel related to you, I fully

22    agree.  It would mean much to me to be in an ambience or environment which

23    would be different from the present one.  As he stated, my wife is only

24    one year my junior.  She lost one eye.  She had two surgeries on the other

25    eye; first due to glaucoma and the second time due to cataracts.  So she

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 1    is almost blind.  The people in this courtroom have seen my wife visiting

 2    me.  So all the psychological pressure on me, because I do speak to her on

 3    the phone, is too much to bear.

 4            So I personally would like to ask you to consider the possibility,

 5    in a humane way.  I know that it's very difficult to ask for anything but

 6    your human understanding.  These are my thoughts about the situation.  The

 7    people around me do not understand me, and this is very hard for me.

 8    People are what they are.  I cannot change them.

 9            Thank you very much for your patience.

10            JUDGE SCHOMBURG:  Thank you.

11            When you started, I was just about to say that you're the -- if

12    any, your decision has to be an informed one.  You have heard that neither

13    I nor the Chamber as such can give any guarantees at this point in time

14    because the power is clearly vested in the Registrar and finally the

15    President.

16            Once again, you have fully understood -- you have fully understood

17    that once you have taken a decision, the decision cannot be revoked?

18            THE APPELLANT:  Yes. [Interpretation] I have.

19            JUDGE SCHOMBURG:  Thank you.

20            Are there any other submissions to be brought to our attention?

21            I can so none.  And therefore, I can only repeat that I expect the

22    documentation as soon as possible on the health condition; however, no

23    later than the 15th -- the 10th of September, and the final decision of

24    both parties no later than mid-September, on or about the 15th of

25    September, because we have to proceed in one or the other direction.

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 1            I think it would be helpful, if there is such a situation from

 2    your side, that you would, at the same time, file the withdrawal -- a

 3    withdrawal of the appeals, and then it's, as I said, submitted to the

 4    entire Bench and finally to the Registrar and President.  And let's hope

 5    that at the end of the day, even though we have a serious case of

 6    infringement of humanitarian law before us, that nevertheless humanity may

 7    prevail.

 8            I thank you for today, and I hope this was the last Status

 9    Conference in this case.

10                          --- Whereupon the Status Conference adjourned at

11                          8.35 a.m.