040315SE

Page 242

1 Chamber has discussed in more detail with the parties the content of

2 psychiatric reports that have been produced in respect of Mr. Kovacevic.

3 The Chamber has asked additional questions to the psychiatrist who works

4 in the UN Detention Unit in order to better understand the testimony, and

5 the Chamber has invited the parties to give its views on some of these

6 medical matters, including treatment that might be needed.

7 We will adjourn until twenty-five minutes past four, and then

8 after we have recommenced, the Chamber would like to finish in

9 approximately half an hour the remaining issues.

10 --- Recess taken at 4.02 p.m.

11 --- On resuming at 4.30 p.m.

12 JUDGE ORIE: After having discussed quite a lot of details on the

13 medical and psychiatric condition of Mr. Kovacevic, I'd like to move to

14 another subject at this moment. But before we do so, Mr. Kovacevic, I

15 forgot to ask you at the beginning of the hearing if you could hear us in

16 a language that you understand, but since I did not hear any protest from

17 you, I take it that you could hear us. Is that correct? Yes? Could you

18 please speak aloud?

19 THE ACCUSED: [Interpretation] Yes.

20 JUDGE ORIE: Thank you.

21 THE ACCUSED: [Interpretation] Could this just be a bit slower,

22 please, a bit slower?

23 JUDGE ORIE: Yes. I don't know whether the translation comes

24 quick to you. I think I'm not speaking that quickly, but you could follow

25 whatever has been said before the break.

Page 243

1 THE ACCUSED: [Interpretation] Yes.

2 JUDGE ORIE: And you could understand what was being said because

3 it was all about you as you may be aware of.

4 THE ACCUSED: [Interpretation] Yes. Yes.

5 JUDGE ORIE: Thank you, Mr. Kovacevic.

6 The next issue I'd like to raise is the following one: Is there

7 any common understanding between the parties on the test to be applied?

8 What is needed to determine that someone is fit or unfit to stand trial?

9 Mr. Re.

10 MR. RE: Yes. Thank you, Your Honour. The Prosecution's

11 submission is that the test should be, or based upon our own survey of

12 national jurisdictions indeed as the Trial Chamber put in its order of the

13 27th of November last year in which it posed a number of questions for the

14 psychiatrists to comment upon in their report. That was Dr. Goreta and

15 Dr. Krajnovic.

16 JUDGE ORIE: Yes. I've got the report in front of me. We have

17 put seven questions to them, but these are mainly questions in respect of

18 whether or not the accused could perform certain tasks. Is the

19 performance of tasks the test as we find it in many jurisdictions where we

20 have a list, either statutory list or a list created by case law, that if

21 you are able to perform those tasks that you're fit to stand trial, or the

22 other way round, that if you're not able to perform those tasks that

23 you're unfit to stand trial. Whereas in other systems we have other tests

24 like whether you are able to participate in the proceedings or some other

25 test as mainly concentrating on the understanding of the witness rather --

Page 244

1 of the accused rather than the performance of tasks.

2 MR. RE: The Prosecution does not wish to make any submissions in

3 relation to having a finalised view as to what the test is. The

4 Prosecutor's view is that this is not a matter which arises just yet but

5 is something that should be revisited, we say, in six months' time when

6 the accused has had more treatment. The Prosecutor, at the moment, has no

7 difficulty with the questions which the Trial Chamber posed to the

8 psychiatrist in terms of evaluating the accused's competency to enter a

9 plea as the -- as a working basis for a working definition in a

10 preliminary sense moving towards possibly an eventual finalisation of her

11 view on what the test is, but our preliminary view is this is a good

12 start.

13 JUDGE ORIE: Mr. Morrison, any observations from the Defence?

14 MR. MORRISON: Well, my first observation is that that's

15 wonderfully Delphic. I look forward to seeing what the Prosecutor's

16 finalisation of her view on what the test is in -- with a moderate amount

17 of excitement. But I take it that the Prosecutor divides the issue into

18 two. First of all a test as to whether or not somebody is fit to enter a

19 plea, and secondly, whether or not they're fit to stand trial. It seems

20 to me that from a practical point of view, at any one time that's a

21 distinction really without a difference, because if you're not fit to

22 enter a plea, then the trial which would inevitably follow from the

23 entering of a plea of not guilty or procedure which would follow from

24 entering a plea of guilty simply doesn't take place, so that the two are

25 so interdependent that from a psychiatric point of view, I can't see the

Page 245

1 value of trying to draw any distinction.

2 That said, I respectfully agree with the questions that the Trial

3 Chamber posed to the psychiatrists that if answered in the negative, that

4 the accused simply didn't have the mental capacity to answer those

5 questions in a way which would enable the Trial Chamber to say that in

6 their judgement he was fit to enter a plea, that that is a sufficient

7 basis for the Trial Chamber to make its determination. And as I

8 understand it, and I will be corrected, that there is no real dissent

9 certainly between the Prosecution and the defence that as far as those

10 questions are concerned and as far as those answers which have been

11 submitted by the professionals, we are all of one mind, that as matters

12 stand today, the defendant is not fit upon those tests to enter a plea

13 and, therefore, not fit as matters stand today to stand trial.

14 JUDGE ORIE: Thank you, Mr. Morrison.

15 Mr. Re, is the conclusion of Mr. Morrison that the Prosecution is

16 inclined to make a distinction between the competence to enter a plea and

17 the competence or the ability to stand trial is -- is that a correct

18 understanding of your position?

19 MR. RE: As Mr. Morrison says, it's a distinction without a real

20 difference. In practical terms, it is the same. The Prosecutor's view is

21 that if the accused is unfit to enter a plea, you then move to a proper

22 psychological or psychiatric testing to determine whether or not the

23 accused may become fit to stand trial, that the two overlap.

24 JUDGE ORIE: Yes. That's a temporal matter. So whether his

25 condition will change in such a way that he might be able to -- at a later

Page 246

1 stage to enter a plea or stand trial.

2 Let me just put the question in another way. Is it the position

3 of the Prosecution that it's imaginable that someone would be fit to enter

4 a plea and at the same time not be fit to stand trial?

5 MR. RE: The Prosecutor's view is that these matters -- that

6 second matter doesn't arise for determination at the moment because we

7 have a situation where the accused is, on the reports at least, unfit to

8 or unable to enter a plea.

9 JUDGE ORIE: Yes.

10 MR. RE: The Prosecutor wishes to leave it at that for the moment

11 pending further psychiatric treatment before expressing a view as to the

12 exact overlap between the two if there is in fact a difference in the

13 tests.

14 JUDGE ORIE: Yes. Although I have some difficulties in

15 understanding how psychiatric treatment could elucidate the legal issue.

16 I'll leave it to you at least, to give to us a more -- month perhaps to

17 think it over and to see whether there's any distinction between made.

18 Then there is another issue which might be of direct relevance,

19 and that is the issue that if the Chamber would decide that Mr. Kovacevic

20 would be in need of treatment at this moment and not treatment in the UN

21 Detention Unit but in an institution or a facility outside of that

22 Detention Unit, what would be the proper legal basis to organise this

23 treatment? Would it provisional release? Would it be a modification of

24 detention, of the detention as such?

25 Mr. Re.

Page 247

1 MR. RE: Yes. Thank you, Your Honour. The Prosecutor's view is

2 that her primary submission is the Trial Chamber can treat the accused as

3 a person on remand in need of treatment, and the President could make, or

4 could question modification of the conditions of detention pursuant to

5 Rule 64, that is that the accused be detained somewhere in a secure

6 psychiatric institution as a modification of his present detention by the

7 Tribunal.

8 The Prosecutor, of course, also notes Rule 65(C), which is

9 provisional release subject to whatever conditions the Trial Chamber may

10 deem appropriate.

11 The Prosecutor's primary submission is that if the accused is to

12 be detained anywhere other than the UN Detention Unit at Scheveningen,

13 that it be done via Rule 64 modification. The short reasons for this are

14 that the accused did not surrender voluntarily, and in circumstances where

15 another accused in the same case, that is Pavle Strugar was provisionally

16 released, there was, so to speak, a standoff before he was returned to

17 The Hague for trial commencing at the end of last year.

18 The reports which Your Honours have dealt with have indicated a

19 condition of danger, and the Prosecutor's view is that the interests of

20 the community would be better served if it were a modification of

21 detention rather than a provisional release as such.

22 But having said that, the Prosecutor does take a practical view of

23 this and does recognise that both ends of this -- the ends could be

24 achieved by an order either under Rule 64 or 65(C), but the primary

25 preference is 64.

Page 248

1 Your Honour, excuse me.

2 [Prosecution counsel confer]

3 MR. RE: Mr. Weiner reminds me that the Prosecutor would seek, if

4 it were to be provisional release, identical conditions to those which

5 would be a modification to detention under Rule 64, held in a secure

6 psychiatric institution with appropriate treatment as determined by the

7 court-appointed experts.

8 JUDGE ORIE: Yes. Should the accused under those circumstances

9 make himself available for treatment or should he accept treatment or

10 should he cooperate with this treatment? I hope you understand what the

11 formulation of this condition might not be that easy.

12 MR. RE: Would Your Honours excuse me for one moment.

13 [Prosecution counsel confer]

14 MR. RE: Can Mr. Weiner address you on that exact point, Your

15 Honour.

16 JUDGE ORIE: Yes. Mr. Weiner, please.

17 MR. WEINER: Thank you, Your Honour. Thank you. There is a great

18 deal of case law out of the United States in relation to forced treatment

19 or forced medication, and if the accused does not agree to treatment or

20 medication based on his situation, it would be our view that he could be

21 forced to be given medication. One, he could be forced to be given

22 medication which would bring him to a position that he would become

23 competent to stand trial. The case -- or the latest case on that out of

24 the United States is Sell, which is S-e-l-l, versus the United States.

25 It's a 2000 -- it's a June 16th 2003 case. There is an earlier case which

Page 249

1 has a different twist to it which also concerns this defendant which

2 concerns a situation where a person could be forced to be given medication

3 where he is in detention and he is a danger to himself and/or the

4 community. And the leading case on that out of the United States is

5 Washington versus Harper, and the citation for that is 494 US 210,

6 February 27, 1990.

7 By being placed in a facility under either Rule 64 where it's just

8 a modification of his detention or under Rule 65 where -- where he's being

9 provisionally released; however, under certain conditions and

10 requirements. So it's really a modification of his detention, under

11 either one, he should be ordered to undergo treatment. And if at some

12 time he refuses treatment, refuses medication and his condition gets

13 worse, a hearing should be held here ordering forced medication or at

14 least a request would be made for an order of medication if that would

15 bring him to a point where he would no longer be a danger to himself, to

16 others, and he would be competent to stand -- to offer a plea and stand

17 trial.

18 JUDGE ORIE: Yes. Any case law from outside the US, Mr. Weiner?

19 MR. WEINER: I could get some, but I think it's sad that there

20 seems to be a lot of insanity cases out of the United States, but I could

21 see what we would be able to --

22 JUDGE ORIE: I wouldn't suggest that it was any bigger problem in

23 the United States than somewhere else, but you'll understand that US case

24 law is first of all to be applied in the US, and of course it could be of

25 some guidance to this Chamber, but the Chamber always prefers to have a

Page 250

1 broader basis for its decision than law coming from one specific domestic

2 jurisdiction.

3 MR. WEINER: I will see what we can find very quickly.

4 JUDGE ORIE: Yes. Any further comments in this respect?

5 Defence? Mr. Morrison.

6 MR. MORRISON: Dealing with the initial distinction between Rule

7 64 and Rule 65, the Defence would respectfully submit that Rule 65 is in

8 fact a better vehicle for the Trial Chamber for three reasons. First of

9 all, under Rule 64, one would have to find exceptional circumstances. It

10 may well be that that would not pose a great deal of difficulty if one was

11 to say that the psychiatric condition was an exceptional -- was a

12 circumstance which the drafters of the statute meant to be included in the

13 word "exceptional."

14 The second problem --

15 JUDGE ORIE: It's even easier. You only have to look at the draft

16 of the Rules, didn't it.

17 MR. MORRISON: Yes. The second point is that it devolves upon the

18 President himself where it means the President has to be seize much all

19 the facts in the case and is going to involve the determination by a party

20 who presently has no immediate knowledge or control of this case.

21 And thirdly, the problem arises in my view in this way, that the

22 wording of Rule 64 speaks that "the President may on the application of a

23 party request modification."

24 Now, the words "may" and the word "request" do not provide in my

25 submission anything like the certainty of Rule 65(C), which says: "The

Page 251

1 Trial Chamber may impose such conditions upon the release of the

2 accused ..." This gives direct control of the case to the Trial Chamber,

3 absolves the President from the necessity of being involved, and involves

4 the imposition of conditions rather than the requesting of conditions. It

5 seems to us on the Defence side that there being no real distinction

6 between the imperative nature of a change of detention or change of remand

7 and a provisional release with imposed conditions that the additional

8 flexibility of Rule 65 is the more attractive option. And as the -- of

9 course the Prosecution have already said, at the end of the day it doesn't

10 really matter to the Prosecution whether it's Rule 64 or Rule 65, so long

11 as they are in a position to judge that the accused is being held under

12 similar stricture.

13 That poses a third -- another question and another -- I make this

14 as an observation rather than a suggestion because it seems to me that

15 once a person is outside the jurisdiction either of the host country or of

16 the immediate jurisdiction of the UNDF, then the question of good faith

17 really applies as much as anything else. The following of both the letter

18 and the spirit of any conditions which were either imposed by way of a

19 request under Rule 64 or an imposition under Rule 65 are conditions which

20 have to be complied with not so much by the accused but by those who are

21 immediately responsible for his detention and treatment, and the

22 compliance with those rules at the end of the day when someone is away

23 from the immediate control of the Tribunal is one of good faith. So it

24 seems to me that that's the real issue. Is there going to be good faith

25 played by the parties who are in immediate control of the accused?

Page 252

1 We are not here talking about a simple detention. We are talking

2 about him being in the hands of professional people, and it seems to me

3 that in those circumstances there is abundant reason to suppose that there

4 will be such good faith and the primary concern of those people will be

5 the mental health of this defendant, and as that is going to be the

6 primary concern of the Tribunal, those two concerns are correlated and

7 will be observed, for instance, if he went to Serbia by the Serbian

8 authorities.

9 So it seems to me that if everybody is working towards the same

10 end, then that's as good an indication as we are likely to get that the

11 defendant would, if necessary, be present at any other -- at any future

12 hearing at which his presence was required or indeed at any future trial

13 should that eventuality ever happen.

14 The reality is in this case that if the accused is sent for

15 treatment, he is not going to be arbitrarily released into any other

16 community as long as the question of his being a danger to himself or a

17 danger to the public is still a live issue. It seems to me that we are

18 going perhaps too far down the road into speculation about whether or not

19 at the end of the day the worries of the -- just enunciated by my learned

20 friend are real worries about whether he needs -- we need to worry about

21 the issue of enforced treatment. I think that's -- it's too early to

22 worry about that.

23 The realpolitik of any treatment of any person whether it's mental

24 illness or physical illness is this: Does the person cooperate? That is

25 something which we can only see by testing the system, by putting the

Page 253

1 accused into a system and seeing whether he does, in fact, take his

2 medication and cooperate. All the indications are that he will, and I say

3 that because he has been given medication in the past. He is being given

4 medication at present, and all the signs are that he is cooperating.

5 JUDGE ORIE: May I put one question to you, Mr. Morrison. You say

6 if the accused is sent for treatment he is not going to be arbitrarily

7 released into any other community as long as the question of his being a

8 danger to himself or a danger to the public is still a live issue. How in

9 your mind could this be effected by provisional release.

10 MR. MORRISON: By paragraph 65(C): The Trial Chamber may put

11 conditions on the released of the accused as it determines appropriate

12 including the terms of a bail bond - well, that's not realistic in this

13 case - "and the observance of such conditions are necessary to ensure the

14 presence of the accused for trial and the protection of others." It seems

15 that those latter conditions are exactly on point.

16 JUDGE ORIE: And now the other side of that problem, that if for

17 whatever reasons, let's not forget that the accused is diagnosed as

18 psychotic, if he would not fulfil any of the these conditions, what in

19 your then view should happen? This should be reported to the Chamber by

20 one of the parties, I take it. Then we would hear the parties on that and

21 take a decision that provisional release will be reversed, or what in your

22 mind -- also in view of the time one would need to respond to such

23 uncertain developments.

24 MR. MORRISON: Well, first and foremost the reality is this, that

25 if he was, for instance, in a Serbian psychiatric hospital, there is going

Page 254

1 to be no distinction there between Rule 64 and Rule 65 as to the

2 conditions imposed upon him. He -- the conditions can be literally the

3 same conditions, and the effect upon the authorities will be exactly the

4 same.

5 Should the accused fail of his own volition to comply with those

6 conditions, one would expect the responsible authorities to report that

7 with some immediacy to the Tribunal, and the Tribunal can then hold a

8 hearing, first of all to determine -- there seems to be two aspects to it.

9 First of all to determine whether or not that's true, that the accused

10 person has in fact failed to comply with the conditions. If he is found

11 that he has in fact failed to comply with the conditions, there would need

12 to be then the possibility of separate representation from both the OTP

13 and the Defence as to what the consequences of that may be.

14 JUDGE ORIE: But my main question is you say under Rule 64 and 65

15 you could impose the same conditions. Is it true that under Rule 64 one

16 could impose conditions of detention, which means that there is a

17 situation of detention, whereas in the context of a provisional release,

18 one could impose conditions upon the accused, but would that justify a

19 deprivation of liberty? That's the main issue. I mean, on what basis

20 could the government of state X say, "You should stay within these walls"?

21 MR. MORRISON: That would have to be a state undertaking by the

22 government. But that depends on the bona fides of the government.

23 JUDGE ORIE: No. But if the government is depriving someone of

24 his liberty, usually you need a basis that should be provided by law.

25 What, in your mind, under these circumstances would be the legal basis for

Page 255

1 this detention where the Tribunal has provisionally released the accused

2 from detention?

3 MR. MORRISON: If the provisional release from the custody of the

4 Tribunal was on the basis that he stay and reside in a named mental

5 institution, then it seems to me that that -- that that covers that

6 possibility. If a lawyer was to say differently and to apply to the

7 government for a writ of habeas corpus saying that person is unlawfully

8 detained, then it seems to me that the detaining state could say, "Well,

9 all we are doing is complying in good faith with the conditions imposed

10 upon us by the ICTY," which is all they would do in reality if there was a

11 detention under Rule 64.

12 It seems to me that there is very little practical distinction.

13 JUDGE ORIE: Is it your interpretation of Rule 65 that apart from

14 voluntary commitments made by a state that also conditions could be

15 imposed upon a state in the framework of conditional release?

16 MR. MORRISON: I suppose they're imposed upon the accused.

17 JUDGE ORIE: Yes.

18 MR. MORRISON: And you ask for the active cooperation of the state

19 both in Rule 64 and 65 in reality, because without the bona fides and the

20 cooperation of the state neither Rule 64 or 65 would bite. But there

21 is -- an analogy I would think of is in the United Kingdom and I'm sure in

22 America we have, and perhaps in Holland, I don't know --

23 JUDGE ORIE: You're broadening the basis, Mr. Morrison.

24 MR. MORRISON: There is a provisional release in the sense that

25 somebody is given bail but there is a curfew. They are given bail but

Page 256

1 they must stay within the curtilage of their dwelling house between 6.00

2 p.m. and 6.00 a.m. So they are confined within their house. That's very

3 much -- the onus is then upon the accused to maintain that curfew but it

4 is nevertheless a deprivation of liberty, and it seems to me that a

5 provisional release by the Tribunal with a curfew of a 24-hour stay in a

6 mental institution is no different in reality than detention.

7 I'm -- I suppose what I'm trying to seek to try and do is absolve

8 the President from the necessity of dealing with matters which can

9 properly be dealt with by the Trial Chamber.

10 JUDGE ORIE: Then we must -- let me for one moment.

11 [Trial Chamber confers]

12 JUDGE ORIE: Yes. Is there any -- you're finished your

13 observations in respect of this legal issue?

14 MR. MORRISON: Yes. As far as the distinction between Rule 65 and

15 Rule 64 is concerned, we take in effect the same position that the OTP

16 takes, that as long as the accused person is in a -- a proper institution,

17 receiving appropriate treatment, the exact methodology by which he came to

18 be there is perhaps academic. The effect -- the effectiveness of the

19 treatment really relies upon two things, first of all the competence of

20 the people treating him; and secondly, his degree of cooperation. I think

21 we can assume the competence and cooperation. The competence by virtue of

22 the qualifications of the staff, the cooperation by looking at the history

23 of how he has cooperated up to date.

24 JUDGE ORIE: Next question for the Prosecution is the following:

25 What should the prospects of future ability to enter a plea or to stand

Page 257

1 trial be in order to deprive an accused for a longer period of time from

2 his liberty? You understand what I mean? I mean, actually the completion

3 strategy lasts until 2010. Is it the position of the Prosecution that --

4 well, every six months we would have to look at the medical condition of

5 someone who is not free to move as one who cooperates in his treatment?

6 What is the position of the Prosecution in that respect?

7 MR. RE: The Prosecutor's position is give it six months and see

8 whether the accused responds to treatment, then reassess the matter then.

9 The Prosecutor says it is premature to go down the path of the completion

10 strategy or the transitional arrangement which may occur afterwards.

11 JUDGE ORIE: It's a let's wait and see what happens.

12 MR. RE: It's a let's wait and see situation.

13 JUDGE ORIE: A let's wait and see situation of course involves

14 detention even if what we see at the end would not justify detention any

15 more.

16 MR. RE: We don't know what's going to happen in six months' time,

17 which is why the Prosecutor is loath to express a finalised view on the

18 matter which Your Honour has just raised, and the Prosecutor says it

19 doesn't yet really arise for a determination.

20 Your Honour, might I -- there was something Mr. Morrison said a

21 moment ago that I might be able to assist on -- as of another -- another

22 analogy, a domestic analogy and that is in relation to the Rule 65(C)

23 obligation. The Prosecutor says that the -- I mean the state in the

24 former Yugoslavia obviously has an obligation to cooperate with the

25 Tribunal, and if it were provisional release under 65(C) the obligation is

Page 258

1 clearly on the state and each state has its own laws on cooperation with

2 the Tribunal.

3 A domestic analogy -- my learned friend Mr. Morrison referred to a

4 curfew. The more appropriate one is the release of a prisoner who is

5 detained to bail or provisional release to undergo drug treatment at a

6 specified location with -- the reality of the release is the person is

7 confined or basically locked into a drug treatment programme which they

8 can't leave and leaving the drug treatment programme which is a secure

9 facility would be a breach of bail resulting in their immediate

10 reincarceration back in the mainstream prison population.

11 JUDGE ORIE: Thank you, Mr. Re.

12 Is there any --

13 [Trial Chamber confers]

14 JUDGE ORIE: Is there any further issue the parties would like to

15 raise at this very moment?

16 MR. RE: There is, Your Honour. The Prosecutor has asked us to

17 put this matter before the Trial Chamber, and that is the Prosecutor

18 considers this is a matter that the President might look at under Rule 11

19 bis in the future either before or after the six months that the Trial

20 Chamber has been talking about. That is why the Prosecutor says that some

21 of the issues on the list which Mr. Harhoff circulated for comment may not

22 arise at the moment such as the medical consequences if the accused is

23 permanently incompetent to stand trial, or the criminal legal consequences

24 and so on.

25 JUDGE ORIE: Yes. Let me just try to understand you. At this

Page 259

1 moment, no cases have been transferred to the former Yugoslavia. Has

2 there any?

3 MR. RE: None that -- none that we're aware of.

4 JUDGE ORIE: No, none. So this would be then the first one. The

5 first one would be of a psychiatric patient to the Republic of Serbia and

6 Montenegro where as far as I'm aware already for quite some time

7 preparations are made in order to prepare for the first case, for example

8 Bosnia where a special court is -- is designed to be created for -- for

9 those purposes. Is that -- I mean, if I look at what it needs to prepare

10 for such a transfer under normal circumstances, not the exceptional

11 circumstances we need here, what makes the Prosecutor or the Prosecution

12 consider this case to be a very problematic case in this respect, I would

13 say, to be the first one to a place where preparations seem not to have

14 been developed in a similar way as in other states of the former

15 Yugoslavia.

16 MR. RE: I'm certainly not saying this is or will be the first

17 case to be dealt with under Rule 11 bis. The Prosecutor's view is to

18 inform the Trial Chamber that this is a matter which the President may

19 wish to look at in the future as a potential one which falls within the

20 provisions of Rule 11 bis.

21 JUDGE ORIE: That's clear to me.

22 Any further issues to be raised?

23 MR. MORRISON: It really depends upon the competence of the -- it

24 really depends on the competence of the accused. I can't imagine if the

25 accused was judged to be competent to be tried in the sort of time scale

Page 260

1 that we know that this Tribunal will subsist for that he wouldn't be

2 tried. Likewise, if he were adjudged to be incompetent as far as the

3 tests of this Tribunal are concerned, it seems to be wholly unlikely that

4 he would be adjudged competent to be tried in Serbia or indeed any other

5 jurisdiction. So I think the wait and see provisions apply more to Rule

6 11 bis than any other part of the discussions we've had so far.

7 JUDGE ORIE: Thank you, Mr. Morrison.

8 Finally, Mr. Kovacevic, I'd like to address you, because a lot has

9 been said and that was all about you. It was about your medical

10 condition. It was also about, may I say so, your future in court or in

11 hospital.

12 The Chamber was a bit surprised, as a matter of fact, that you

13 would agree to go back to Belgrade for treatment in view of your -- in

14 view of the previous position you've taken. Could you explain the Court

15 and to what extent or for what reason you changed your mind or you -- that

16 your position is different from what it used to be where you preferred not

17 to -- not to come too close to psychiatrists from Belgrade? Could you

18 explain to the Court what happened that you now instructed counsel to

19 agree with a treatment in Belgrade?

20 THE ACCUSED: [Interpretation] Can you explain this a bit?

21 JUDGE ORIE: Yes.

22 THE ACCUSED: [Interpretation] I don't really follow this. What

23 kind of treatment in Belgrade do you mean?

24 JUDGE ORIE: Yes. We have been talking, Mr. Kovacevic, about

25 psychiatric treatment that you would need both --

Page 261

1 THE ACCUSED: [Interpretation] Yes. Yes.

2 JUDGE ORIE: -- both your counsel and the Prosecution agree that

3 you would need such treatment, and one of the issues we have been

4 discussing as well is if you would undergo such treatment --

5 THE ACCUSED: [Interpretation] Yes.

6 JUDGE ORIE: -- where you would undergo that, and we heard --

7 THE ACCUSED: [Interpretation] Yes.

8 JUDGE ORIE: -- from counsel that you would agree with such

9 treatment to be undergone in Belgrade in a psychiatric hospital. We have

10 not yet inquired in any detail --

11 THE ACCUSED: [Interpretation] Yes.

12 JUDGE ORIE: -- Whether that would be possible. But previously,

13 you have given this Chamber the impression that you didn't trust very

14 much --

15 THE ACCUSED: [Interpretation] Yes.

16 JUDGE ORIE: -- Serbian government or Serbian institutions --

17 THE ACCUSED: [Interpretation] I didn't.

18 JUDGE ORIE: -- and now, nevertheless, we do understand that you

19 agree with a treatment even if it would be in a Belgrade psychiatric

20 facility. What made you change your mind that you now sufficiently trust

21 the doctors or the authorities in Belgrade to undergo treatment there

22 where you seemed so much to be opposed against it when we saw you one of

23 the previous times?

24 THE ACCUSED: [Interpretation] They tied me to a bed there.

25 JUDGE ORIE: Yes.

Page 262

1 THE ACCUSED: [Interpretation] But now these people have retired.

2 They put you in a barred room, and they tie you to a bed. But now these

3 people have retired. Now other people have come, and they are much

4 better.

5 JUDGE ORIE: So you --

6 THE ACCUSED: [Interpretation] The head of the Military Medical

7 Academy is a person you certainly know. He said that he would help me,

8 that he would help me to get better, and he told me I was welcome and that

9 he would make it possible for me to receive treatment and be cured if

10 possible. And he is ready to take me there. You know, it wouldn't be

11 like that iron door in Scheveningen like here, you know. We're inside for

12 24 hours in those rooms, you know, and then these doctors come and we

13 work, too. We make vases and bandages and things. I think it's better

14 now. Those people before were dangerous. They would tie people to beds,

15 and then you'd stay in bed all the time tied to the bed. They wouldn't

16 allow you to move about at all. Now he told me that he wouldn't do that

17 kind of thing? He would try to take good care of me. Isn't that what he

18 said. Tanja, isn't that what he said. Tanja, isn't that what

19 Dr. Stankovic said, the bald one. Do you know him? Stankovic? Do you

20 know him?

21 JUDGE ORIE: I don't know him personally, no.

22 THE ACCUSED: [Interpretation] He's a nice man. Yes, yes, nice

23 man. I --

24 JUDGE ORIE: Mr. Kovacevic, you explained to us now that because

25 they are not the same people any more that you have better expectations

Page 263

1 that you --

2 THE ACCUSED: [Interpretation] They are not the same. Not the

3 same, no, no.

4 JUDGE ORIE: And therefore, you have --

5 THE ACCUSED: [Interpretation] The other ones worked for state

6 security. They were dangerous. They were not good.

7 JUDGE ORIE: Yes. So you expect these new people to assist you in

8 recovering --

9 THE ACCUSED: [Interpretation] Yes. Yes.

10 JUDGE ORIE: -- from your --

11 THE ACCUSED: [Interpretation] Yes.

12 JUDGE ORIE: Are you aware --

13 THE ACCUSED: [Interpretation] There are two different types of

14 treatment that I'm there for 24 hours round the clock and the other type

15 is that I would go in at a given point in time. I'd have breakfast and

16 then therapy and then group therapy and then psychoanalysis and then I

17 would do what I would be ordered to do and then at 1500 hours they would

18 say you can go home now, come back tomorrow morning at 7.00. Then I'd

19 come back at 7.00. So that's what I do, whatever they ordered me to do.

20 And then they'd say on Sunday you go to a monastery. Then I go to a

21 monastery, I pray to God. I do what they tell me to do. And then they

22 had take us in groups to monasteries and then we'd spend a bit of time in

23 the monastery. That's the kind of regimen that is followed. It's not

24 like those other ones that tie you to a bed. And I don't know why they're

25 tying me here, too. I mean, where would I run away through these halls.

Page 264

1 Where would I run away? What would I do. I mean, even if I were to run

2 away where I would go? What would I do. I don't know the town, I don't

3 know the language. I have nowhere to escape.

4 JUDGE ORIE: And what if you would have to stay --

5 THE ACCUSED: [Interpretation] I think this is a solution.

6 JUDGE ORIE: Yes. And what if you would have to stay for the full

7 24 hours a day in that psychiatric facility because you're now speculating

8 on another type of treatment which would allow you to leave the

9 institution in the late afternoon and return the next morning, but what if

10 you would have to stay there for the full 24 hours a day?

11 THE ACCUSED: [Interpretation] Well, I've already been there for

12 treatment 24 hours a day. That's where they retired me. This service,

13 this security service was bothered by me for some reason. They said I was

14 no longer fit for the military. I don't know what they did to me. I had

15 to take this medication, and then this lady doctor, she kept watching all

16 the time whether I was taking this medicine or not, and then she would

17 order me to take a glass of water and I'd have to drink it. She's like an

18 officer there. She issues orders. What can you do? And she says drink

19 it and of course I drink it. What can I do?

20 JUDGE ORIE: Yes.

21 THE ACCUSED: [Interpretation] Now since Dr. Stankovic is there, I

22 trust him. I would trust him. As for those who were there until now, I

23 wouldn't trust them. They all belong to the security service. They're

24 all spies, and there is something wrong with them. They work for some

25 intelligence service.

Page 265

1 And now since Dr. Stankovic is there, Tanja, you're the one who

2 told me this; right? Did you tell me that, Tanja? Tanja? Tanja said to

3 me that Dr. Stankovic said that he sent a message to me saying that he

4 would try to cure me.

5 JUDGE ORIE: Yes.

6 THE ACCUSED: [Interpretation] Whether he could do something,

7 well -- but you know, that's what the regimen is there. I've been through

8 all of that already. But I mean being tied to a bed with those straps,

9 no, I couldn't take that. I'd have to oppose that. And Dr. Stankovic,

10 General Stankovic says that they would not tie me down any longer, that

11 his men would work with me and that they'd work with me nicely and then I

12 would do as ordered, and if they would tell me at 1500 hours go home, have

13 lunch and come back tomorrow morning at 7.00, I'd do that. And now if

14 this would give any results, I could go back to my family. I have four

15 children. My little son Milos has the measles now. He can't come. I

16 can't see him. And we live a very poor life, but then -- well, I don't

17 know. Well, whatever you say. Whatever you say. It's your decision.

18 There is a saying in Montenegro where I come from that the head is mine,

19 the sword is yours. Now, you decide.

20 I thought that I wasn't sick, but I seem to feel sick now. I will

21 accept what the doctors tell me, but I am afraid that they'll poison me.

22 Vera gives me one set of medicine and then another set and then

23 third medicine. And now this Stankovic, if he were to treat me, I think

24 he would cure me. He talked to me once and this is what he said to Tanja,

25 and that means a great deal to me.

Page 266

1 Now it's for you to decide. So whatever you decide. I do thank

2 you. May I sit down now?

3 JUDGE ORIE: Yes, you may sit down now if you want to, but I've

4 got one more question for you.

5 THE ACCUSED: [Interpretation] Yes.

6 JUDGE ORIE: You said -- you told us that you at least hope and

7 perhaps even expect that Dr. Stankovic could cure you or at least to

8 improve your situation in such a way that --

9 THE ACCUSED: [Interpretation] Yes, yes.

10 JUDGE ORIE: Are you aware --

11 THE ACCUSED: [Interpretation] Yes, yes.

12 JUDGE ORIE: -- if you are cured or if you your condition

13 improves --

14 THE ACCUSED: [Interpretation] Yes.

15 JUDGE ORIE: -- that the Prosecution might insist on you having to

16 stand trial --

17 THE ACCUSED: [Interpretation] Yes.

18 JUDGE ORIE: -- once you are in a better --

19 THE ACCUSED: [Interpretation] I will. I wanted to come on the

20 9th, too, but they arrested me. I reported to the assistant Minister,

21 Mihajlovic. I had already volunteered once to come before this Tribunal.

22 Then Minister Mihajlovic said, "Don't go now because you'll harm

23 Admiral Jokic." So they prevented me from doing this and they entered my

24 apartment and they stole my documents and my cassettes and everything.

25 They want to blame everything on me.

Page 267

1 JUDGE ORIE: Yes.

2 THE ACCUSED: [Interpretation] I was not the one who commanded the

3 army. I was not the one who carried out the mobilisation. It was the

4 generals and admirals who did this. There was 160 captains there and I

5 was one of them. I was a captain at the time. It's not that I had that

6 kind of rank or I had completed that had kind of school. It's not that I

7 led so many people. But even the number of people I did lead was a great

8 burden for me, and so many people getting killed and harmed, that's why I

9 got sick, because I had no way of dealing with this.

10 JUDGE ORIE: Mr. Kovacevic, your last remarks go into the subject

11 of the case against you where I intended only to discuss here the

12 procedural perspectives of this case rather than to go into the subject

13 matter of this case.

14 Was this what you would like to tell the Court at the end of this

15 hearing?

16 THE ACCUSED: [Interpretation] When I'm better, I will report

17 myself, and I'll come here and explain who is guilty of all of this. I'll

18 say all of that myself. I'll come myself. You don't have to set any

19 deadlines. Sixty days or six months or 6.000 days, I'm going to say this

20 myself. I'm going to say I'm going to see this gentleman -- I'm sorry I

21 don't know your name -- and I'm going to say what I have to say to him.

22 I'm not afraid of that.

23 JUDGE ORIE: Yes.

24 THE ACCUSED: [Interpretation] All the people from the family I

25 come from were honourable men. I'm not afraid of anything. Everybody can

Page 268

1 come here and I can say everything. And now he's -- now he's become

2 forgetful. Now he cannot remember this and he cannot remember that and

3 now a captain is to be blamed for everything, the one whose shoulders were

4 the smallest. I'm speaking from my heart, from my soul.

5 JUDGE ORIE: Yes. I fully understand that you're speaking from

6 your heart. You again entered into the case itself rather than to speak

7 about the procedure, or perspectives, but your message that you gave is

8 entirely clear. You total the Court that as soon as you have recovered

9 that you'd like to come and be in The Hague.

10 THE ACCUSED: [Interpretation] Yes.

11 JUDGE ORIE: This message is perfectly --

12 THE ACCUSED: [Interpretation] Yes.

13 JUDGE ORIE: -- Mr. Kovacevic.

14 If there is nothing else to be raise at this moment we will

15 adjourn and Chamber will consider how to proceed in the present

16 circumstances. We will give a written decision in respect of this issue.

17 We will adjourn.

18 --- Whereupon the Status Conference adjourned at

19 5.30 p.m.