060915ME

Page 473

1 Friday, 15 September 2006

2 [Rule 11 bis hearing]

3 [Accused not present]

4 [Open session]

5 --- Upon commencing at 4.55 p.m.

6 JUDGE ORIE: Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-01-42/2-PT, the Prosecutor versus Vladimir Kovacevic.

9 JUDGE ORIE: Thank you very much. We're here for a hearing on a

10 request under Rule 11 bis. May I have the appearances.

11 Prosecution, first.

12 MS. SOMERS: Thank you, Your Honour. Again, good afternoon,

13 Your Honours, counsel, esteemed members from Serbia. For the Prosecution,

14 Susan Somers. To my right, Mr. David Re, trial attorney; to his right,

15 Ms. Carmela Javier, case manager. Behind me is Mr. Phillip Weiner, trial

16 attorney, and Mr. Aleksandar Kontic, trial attorney.

17 JUDGE ORIE: And for the Defence.

18 MS. RADOSAVLJEVIC: Good afternoon, Your Honours, my learned

19 colleagues and everybody else present in the courtroom, especially the

20 representatives of the state. I am representing Mr. Vladimir Kovacevic,

21 and I'm assisted by Mr. Dragoslav Djukic, my temporary case manager that

22 has been assigned by the registry to me for these proceedings.

23 JUDGE ORIE: Thank you, Ms. Radosavljevic.

24 The Chamber has invited representatives of the Republic of Serbia.

25 Could you, although it's on record in another case, but could you please

Page 474

1 introduce yourself.

2 Mr. Obradovic.

3 MR. OBRADOVIC: [Interpretation] In spite of this, Your Honour, I

4 will wish you a good day again, also to all the others present. My name

5 is Sasa Obradovic. I am the First Advisor at the Embassy of the Republic

6 of Serbia in The Hague, and with me is Mr. Dusan Knezevic, the Deputy

7 Prosecutor for war crimes. Today we shall be representing the Government

8 of Serbia. Thank you.

9 JUDGE ORIE: Thank you very much, Mr. Obradovic.

10 This hearing is scheduled to give an opportunity to the parties

11 and to the representatives of Serbia to make additional oral submissions.

12 The Chamber is not seeking any repetition of what is already in your

13 written submissions, but since, when writing these submissions, you do not

14 know what the other party will write or what the other information will

15 be; apart from that there may be new developments. So therefore I would

16 like to give an opportunity to you first, Ms. Somers, to address the

17 Chamber.

18 MS. SOMERS: Thank you, Your Honour. With the same request

19 that I may not use all my time right now, but I might have an opportunity

20 to respond to anything that should arise in the course of this

21 proceeding.

22 The characterisation of this case would be as a classic 11 bis in

23 what is contemplated by the Security Council. It is an intermediate level

24 or low-level to immediate-level accused, the seniors from which have been

25 before this Tribunal and are under sentence. It is a case which is

Page 475

1 susceptible of being tried in international jurisdiction with respect to a

2 jurisdiction that is up and running, that has the ability to try cases, as

3 the Chamber has heard from the representatives of Serbia earlier. I just

4 wanted to make sure that it was part of this record as well.

5 The issues that have lingered over the referral have been more in

6 line with the issue of the fluid finding of fitness or not. And just so

7 it is quite clear from our submissions, and I hope it is, that it is our

8 position that it is not a factor in any way barring a referral for the

9 reasons we set forth, but further to emphasise that the Republic of Serbia

10 has responsibly been seized of taking care of this accused for the past

11 two years -- actually, over two years, the affect of the referral would be

12 of really a change in the indictment-seizing tribunal, and there is no

13 limitation that would be evident, either from any logical reading of the

14 Rules or from the actual facts as they exist in this case, which may be

15 more unique than other cases in that provisional release had been granted

16 to the accused prior to even entry of any type of plea, which has not been

17 entered here, which is not required. But the record before the Chamber of

18 Serbia's very active and responsible role is one that we would ask the

19 Court to take great -- to give great weight to, along with, of course, its

20 submissions, which indicate its willingness and ability. And I would

21 defer to any further comment until I have heard any other comment made by

22 my learned colleague opposite. But we wanted to make sure that when the

23 Chamber summarised all of it, it boiled down very much to these essential

24 points.

25 Thank you.

Page 476

1 JUDGE ORIE: Thank you, Ms. Somers.

2 Ms. Radosavljevic, I would like to give you an opportunity as well

3 to add anything to what you have already submitted in writing.

4 MS. RADOSAVLJEVIC: Your Honours, as the Defence has already

5 stated in its written submission, the Defence of Mr. Kovacevic accepts the

6 legal submission both of the state and of the Prosecution that refer to

7 the applicability of a case such as this to a national court. What I mean

8 is that the submissions on the gravity of the crime, in light of the other

9 proceedings before the ICTY, is -- in light of the gravity of the crime,

10 Rule 11 bis is applicable in this case.

11 Also, the position of Mr. Kovacevic in the military hierarchy in

12 regards of the crime charged is a mid-level or even maybe a lower-level

13 position, and especially having in mind that his superiors have already

14 been tried in this Tribunal, this case would be applicable for a referral

15 under 11 bis.

16 Also, the legislation of Serbia Montenegro, now only Serbia, in

17 the last few years brought the national law closer to the practice of the

18 ICTY, and that has already been uttered in both the submissions of the

19 state and of the Office of the Prosecution.

20 We, as you already have been informed, have a new law on the

21 protection programme of the participants in criminal proceedings, which

22 was brought in 2005, and also the law on the organisation and jurisdiction

23 of state organs in the proceeding against war crimes, brought in 2003 with

24 changes in 2004 and 2005.

25 Also, I would take the opportunity, just briefly, to state a

Page 477

1 personal opinion that as a member of the Belgrade bar and of the legal

2 system of my state, I am very glad that the cooperation between my country

3 and the Office of the Prosecution of the International Criminal Tribunal

4 is at this high level.

5 Having in mind that the Referral Chamber has ordered the parties

6 to make oral submission related to the mental health of the accused at the

7 hearing to be scheduled, as it is said, in the order issued on the 17th of

8 July, the Defence would like to take the opportunity and to state again,

9 that, in this particular case, the position of the Defence is that it

10 opposes to a referral of the case. This position is not out of legal

11 reasons but out of factual reasons concerning the particular accused and

12 his circumstances.

13 Mr. Vladimir Kovacevic, the accused, has been transferred to the

14 UN Detention Unit and has been under the jurisdiction of the International

15 Criminal Tribunal for the former Yugoslavia since the 23rd of October,

16 2003. From this day up until the present day, the accused underwent seven

17 examinations by medical expert witnesses. In December 2003, he underwent

18 the examination by the medical expert witness team appointed by the Trial

19 Chamber, Dr. Goreta and Professor Krajinovic.

20 After that, in February 2004, he underwent an examination

21 conducted by Dr. Dusan Kosovic, a medical expert witness of the Defence.

22 In December 2004, we had again an examination performed by the --

23 performed by the Trial Chamber-appointed expert -- medical expert

24 witnesses.

25 Then in March 2005, Dr. Rosic was the examiner. She was a medical

Page 483

1 JUDGE ORIE: Thank you, Mr. Registrar.

2 Please proceed, Ms. Radosavljevic.

3 MS. RADOSAVLJEVIC: Should this case be referred to the national

4 courts -- court at this point, under the national law, it would be

5 necessary to undertake another examination of Mr. Kovacevic. Just to

6 repeat my last sentences from the private session, the opinion thinks --

7 the Defence is of the opinion that this would just derogate the already

8 poor mental health of Mr. Kovacevic.

9 Another question that is more rhetorically is the following:

10 Should this case be referred to the national court? And the accused would

11 be, again, going through the same procedure through which he was going the

12 last two and a half years. What kind of exercise did the participant of

13 the case of Mr. Kovacevic before the Tribunal perform and undertake? And

14 especially having in mind that we are talking about an accused who is

15 mentally challenged.

16 That is all that the Defence has to submit on this issue.

17 JUDGE ORIE: Thank you, Ms. Radosavljevic.

18 I would like to give an opportunity, Mr. Obradovic, to add

19 anything to what is already in your written submissions, and they are

20 extensive. They give us a lot of information, not only about criminal law

21 and criminal procedure, but also information about the Serbian law on

22 extradition procedure which informs us about what are the possibilities to

23 take care of someone who is mentally ill and at such a level that you

24 could not just leave him on his own. But if you'd like to add anything,

25 please go ahead.

Page 484

1 MR. OBRADOVIC: [Interpretation] Thank you, Your Honours. We stand

2 by our submission of the 10th of August, which is quite detailed enough

3 and which was not challenged by other parties in these proceedings.

4 My distinguished colleague, Mr. Knezevic, deputy war crimes

5 prosecutor from Belgrade, stands ready to answer any questions you might

6 have about the referral of this case to Serbia, and also any questions

7 about various procedural issues that may arise in view of the special

8 circumstances of this case.

9 Once again, I would like to thank the Prosecution in this case for

10 agreeing with us on the issue that, due to special circumstances in this

11 case, this case should be referred to the Serbian judiciary.

12 In addition to that, I would like to inform the Chamber that I

13 obtained two additional reports today. These reports are of confidential

14 nature, and I would like to know from you whether you wish me to hand you

15 over these two reports, or would you like me to do that at the Status

16 Conference which follows immediately after this hearing? I'm also

17 prepared to do this in private session, in view of the fact that this

18 concerns confidential information.

19 [Trial Chamber confers]

20 JUDGE ORIE: Mr. Obradovic, if these reports would show any

21 significant change in the health condition of Mr. Kovacevic, then the

22 Referral Bench would like to be informed about it. If there is no

23 significant change, then the Referral Bench would be satisfied if it would

24 be dealt with at the Status Conference to follow.

25 MR. OBRADOVIC: [Interpretation] Your Honours, the problem lies in

Page 485

1 the fact that it is difficult for me to assess whether there are any

2 changes or not. Given that these are confidential reports, you must be

3 aware that I was not privy to previous reports which were also

4 confidential.

5 Also, the additional problem is there was some delay in us

6 receiving this, and I made sure that I had these two reports when coming

7 today -- to today's hearing.

8 So I can't give an answer to your question. At any rate, a copy

9 can be made and we can provide these reports to the Chamber.

10 [Referral Bench confers]

11 JUDGE ORIE: I suggest to the parties the following procedure:

12 Since reporting is done before a Trial Chamber, and the Referral Bench

13 only has a global insight and the final conclusions, that the new reports

14 will be presented to the Trial Chamber or the Judge sitting on the Status

15 Conference. If the Trial Chamber or the Judge considers that there is any

16 significant change in the position the Referral Bench should be aware of,

17 that the parties would express this to the Trial Chamber and the Trial

18 Chamber would then take the initiative to make sure that the information

19 finds its way -- finds, in a transparent way, its way to the Referral

20 Bench.

21 Is that agreeable for the parties? Ms. Somers.

22 MS. SOMERS: I just want to make sure, Your Honour, I understand.

23 Will the parties have an opportunity to see the reports, or will it be a

24 reporting by the Chamber back, basically?

25 JUDGE ORIE: I think, as a matter of fact, the reporting always is

Page 486

1 part of the file before the Trial Chamber, so then of course the parties

2 will have an opportunity to compare this report with other reports they

3 received earlier and can form their opinion on whether this would be

4 relevant to be brought to the attention of the Referral Bench. And, of

5 course, the Trial Chamber might proprio motu decide that it is so relevant

6 that it should be brought to the attention of the Referral Bench.

7 Is that agreeable to you, Ms. Somers?

8 MS. SOMERS: Yes, Your Honour.

9 JUDGE ORIE: It's just to avoid duplication --

10 MS. SOMERS: I understand.

11 JUDGE ORIE: -- and -- yes.

12 Ms. Radosavljevic.

13 MS. RADOSAVLJEVIC: Yes, Your Honour.

14 JUDGE ORIE: The Trial Chamber will then revisit the matter later

15 today.

16 MR. OBRADOVIC: [Interpretation] That is quite clear, Your Honour.

17 In this case, I suggest that Mr. Knezevic address you about

18 various procedural issues that may arise should this case be referred to

19 Serbia, bearing in mind that there are special circumstances in this case

20 relating to the health condition of the accused, Mr. Kovacevic.

21 JUDGE ORIE: You're invited to do so, Mr. Knezevic. At the same

22 time, be aware that the Referral Bench has, of course, read the written

23 submissions in which it's clearly explained how proceedings are -- how

24 they are suspended, when they are resumed. Of course this answers the

25 question the Bench had put to you. And that the Referral Bench has also

Page 487

1 read the proceedings without consent accommodated in a psychiatric

2 institution, and how those with consent are accommodated in psychiatric

3 institutions, and what the procedures are. So there's no need for

4 repetition, but if you would like to add anything, you can do that now.

5 MR. KNEZEVIC: [Interpretation] Your Honours, I learned my lesson

6 during the last hearing when I started telling you about what was already

7 contained in our written submissions, so I will do my best not to repeat

8 that mistake now.

9 What I would like to say is: Should this case be referred to a

10 domestic judiciary, what would be the procedural consequences? There are

11 two situations, two possible scenarios.

12 What I fully agree with when it comes to the arguments of the

13 Defence is that, in the further disposition of this case, it will be

14 necessary under our law to perform yet another examination in order to

15 establish whether Mr. Kovacevic was legally competent at the time when the

16 crime was committed and nowadays.

17 There are two possibilities. Should the expert team, should the

18 team of psychiatrists, establish that at the time when the crime was

19 committed he was not sane and that his condition remains the same to this

20 day, in that case, certain security measures would be handed down which

21 would envisage that he needs to be committed to a closed-type mental

22 institution.

23 If it is, on the other hand, established that at the time of the

24 commission of the crimes he was fully, legally competent and sane but that

25 nowadays he's not fit to stand trial and that this is due to a temporary

Page 488

1 nature of his impairment, then in that case the proceedings would be

2 stayed and additional periodical reports of psychiatrists would be needed,

3 and, if there are any changes, that the proceedings would be reinstated.

4 That's all I have to say.

5 JUDGE ORIE: Thank you very much, Mr. Knezevic, for this

6 information.

7 Then I go back to the Prosecution. Is there any need to add

8 anything to what has been said either by the Defence or by the

9 representatives of Serbia?

10 Ms. Somers.

11 MS. SOMERS: Your Honour, just certain aspects of what was in

12 closed session, which I'll be very careful about alluding to, that in

13 fact, although there was a finding of a status, there was no affirmation

14 of a diagnosis, to the best of my recollection. Just the finding of not

15 fit, and I wanted it -- to the best of my recollection, it did not

16 actually confirm, it just said "finding of non-fitness."

17 Secondly, I want to make sure that the Referral Bench has the

18 benefit of being directed to the record at the fitness hearing before the

19 Trial Chamber, particularly to the very detailed testimony of -- sorry,

20 evidence, of Dr. Folnegovic-Smalc, and Ms. Zakic, Danijela Zakic, a

21 psychologist.

22 My colleague points out at paragraph 49 of the decision should be

23 brought to your attention. Where there was any reference to diagnosis was

24 not -- it was to the UNDU. That was strictly the reference.

25 Another point is that the Referral Bench, as in a body, has the

Page 489

1 opportunity to review the dynamics of the findings of the various experts

2 who've interviewed -- who've conducted medical examinations on the

3 accused, there has not been a static state, there has been dynamism in the

4 findings. It was not consistently not fit and I just wanted to make sure

5 because it's clearly something that if -- although we believe that it is

6 not a relevant factor, I just want to make clear that there were clear

7 indications that it is a situation that is not constant, and that is

8 reflected in the Trial Chamber's decision where there is a specific

9 reference to, should there be a change in, as there had been, resumption

10 of proceedings.

11 And I know it's a terribly long record, it's terribly complex, but

12 it does bear looking at various, rather well-buried in the report,

13 findings that I think are helpful.

14 Having said that, returning to the point that it's not something

15 that really should be a factor, there are no substantive weights

16 technically affected now. It's a procedural venue or forum hearing. I

17 think the Chamber has been provided with very strong commitment and has

18 seen the strong commitment put into action by the Serbian system. And

19 should there be any further question about the Prosecution's reaction, we

20 simply support the decision taken by our respective colleagues from the

21 Republic of Serbia, that they are able to handle it quite adequately, and

22 that the Bench has its mechanism for reporting back, should there be any

23 question about conditions.

24 JUDGE ORIE: Thank you, Ms. Somers.

25 Ms. Radosavljevic, anything to add?

Page 490

1 MS. RADOSAVLJEVIC: Thank you, Your Honours.

2 In regards to paragraph 49 and the exact diagnosis of the illness

3 of Mr. Kovacevic, I would like to address the Trial Chamber to look at the

4 transcript of the hearing that was held with all these experts together

5 with the treating doctor of Mr. Kovacevic. This transcript will show that

6 four experts and his treating doctor gave exactly the diagnosis that I

7 cited in the private session, and the two experts of the Prosecution cited

8 another one.

9 As far as the submission of the Prosecution goes towards the

10 possibility of a case that is referred to a national court, can be

11 monitored and then brought back to the Tribunal, I think I don't have to

12 stay that if -- if, in this case, the damage is done, and by "damage is

13 done" I mean the health of my client is even more deteriorating, I don't

14 see that there could be any mechanism that could bring him back to the

15 previous stage.

16 Further on, as far as the submission of the Prosecution goes that

17 his state is a fluid one, I would like to set the attention of the

18 Referral Bench - and I won't quote now, I will just leave it for a later

19 state - to the transcript of the 15 March 2004, pages -- from page 231 to

20 page 237. You will see that there is something that should be addressed

21 when we are talking about the fluid condition of the accused, and that

22 refers to the potential of him being better or not being better in the

23 future.

24 I thank you, Your Honours.

25 JUDGE ORIE: Thank you, Ms. Radosavljevic.

Page 491

1 May I take it that the representatives of Serbia have nothing to

2 add to this, which is a bit outside the scope of -- perhaps of what -- of

3 the information we specifically asked from you? Is that a correct

4 understanding? Yes? I see you nodding.

5 MR. OBRADOVIC: [Interpretation] That's absolutely correct,

6 Your Honour.

7 JUDGE ORIE: Let me ask whether any of my colleague Judges have

8 any questions.

9 Judge Parker.

10 JUDGE PARKER: I would like to ask, perhaps, Mr. Knezevic two

11 questions:

12 First, one of the positions you suggested could arise if the

13 accused were referred to Serbia is that on examination now or in Serbia,

14 it would be found that while he was of sound mind at the time of the

15 offence, he was temporarily not fit to stand trial at the present. In

16 that situation, what type of medical facilities would be provided? What

17 sort of hospital would he be cared for? And would it be possible for him

18 to continue in the Belgrade military hospital where he's been treated for

19 some time?

20 MR. KNEZEVIC: [Interpretation] Your Honour, this is what the

21 situation is like: Should his mental health condition be temporary, the

22 trial proceedings would be stayed for a certain period of time. Medical

23 teams or, rather, medical experts would be periodically reporting on his

24 state of health, should his health deteriorate, of course -- or should his

25 health improve, that would be -- the trial would be renewed, proceedings

Page 492

1 would be reinstated.

2 As for the VMA, that particular institution is open to civilians

3 to be treated and there would be no obstacle for him to continue to be

4 treated in that institution.

5 As stated in the Republic of Serbia's submission, he would be

6 committed to a psychiatric institution, pursuant to the provisions of the

7 law on non-contentious procedure. These are provisions, Article 35 to 55.

8 There it is stated which persons can be detained there. Of course, under

9 the provisions of the law, should his health condition stay the same, his

10 detention at this particular institution can be prolonged. It is not

11 fixed. If the reports arrive to the effect that his state of mind is very

12 poor, there would follow urgent measures for his full committal to that

13 institution.

14 I hope I have answered your question. If not, please, I am open

15 to any additional questions.

16 JUDGE PARKER: I am particularly interested in if he would be

17 going to a different institution if he is thought at the moment to be

18 temporarily not fit to stand trial, as opposed to the position if he is

19 found at the moment to be unlikely to recover.

20 MR. KNEZEVIC: [Interpretation] Under our law, Your Honour, there

21 is no such phrase as "highly" or "less likely." He is either temporarily

22 incompetent or permanently incompetent to stand trial. If he is found to

23 be unfit temporarily, then the proceedings are stayed for a while, as I

24 said; and of course if he is found to be unfit for trial permanently, in

25 that case proceedings are in place to terminate that criminal procedure.

Page 493

1 In both situations, however, there are no impediments that would make it

2 impossible for him to remain -- to be committed in a closed type medical

3 institution. Such persons are a danger to themselves and to others and

4 remain committed to such institutions.

5 JUDGE PARKER: So he would, in either case, move from -- in the

6 present situation, move from the hospital or facility where he is

7 presently being treated; is that correct?

8 MR. KNEZEVIC: [Interpretation] No, no. He would remain in the

9 same hospital, because the hospital is fully qualified and has all the

10 facilities for the treatment of such patients.

11 JUDGE PARKER: Thank you.

12 JUDGE ORIE: Since there are no further questions, if the last

13 question would have raised any issue, I'd like to hear from the parties.

14 Not for you, Ms. Somers.

15 Not for you, Ms. Radosavljevic.

16 Then we'll adjourn, and the Referral Bench will deliberate whether

17 it has all the information to give a decision or whether it needs further

18 information. If all we need is there, in due course a decision will be

19 given. Otherwise, the parties will hear from us. We'll stand adjourned

20 sine die.

21 --- Whereupon the Rule 11 bis hearing adjourned

22 sine die at 5.46 p.m.