Page 55
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.
Page 56
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
Page 57
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,
Page 58
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
Page 59
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.
Page 61
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
Page 63
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.
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