1 Wednesday, 13 April 2005
3 [Open session]
4 --- Upon commencing at 2.38 p.m.
5 JUDGE ORIE: Madam Registrar, would you please call the case.
6 THE REGISTRAR: Good afternoon, Your Honours, this is case number
7 IT-01-42/2-I, the Prosecutor versus Vladimir Kovacevic.
8 JUDGE ORIE: Thank you, Madam Registrar. May I have the
9 appearances, Prosecution first.
10 MS. SOMERS: Good afternoon, Your Honours, counsel. For the
11 Prosecution, Susan Somers, senior trial attorney; also present,
12 Mr. Phillip Weiner, trial attorney; Mr. David Re, trial attorney; Mr.
13 Aleksander Kontic, legal advisor; and Mr. Sebastiaan van Hooydonk, case
14 manager. Thank you.
15 JUDGE ORIE: Thank you Ms. Somers.
16 And for the Defence.
17 MS. RADOSAVLJEVIC: Good afternoon, Your Honours, and my dear
18 colleagues. For the accused Vladimir Kovacevic, Tanja Radosavljevic as
20 JUDGE ORIE: Thank you, Ms. Radosavljevic. We have called this
21 hearing because the Chamber finds itself in a situation where we have to
22 make further examinations as how to proceed, and I think there are two
23 aspects of it. The first one is the medical aspect because it's the
24 mental condition of the accused that is at the basis of the problems we
25 are facing in the proceedings. We are also confronted with a situation
1 where there are reports contradicting each other in their conclusions as
2 to the fitness of the accused to enter a plea and the fitness of the
3 accused to stand trial. So that's the first issue we'd like to
4 concentrate upon.
5 Then of course the next issue is whether, based on the findings
6 we'll make in this respect, how to proceed, what are what our options are
7 and which option to choose.
8 Before we start, I'd first like to ask the parties whether they
9 received the most recent report from the hospital in Belgrade where the
10 accused is treated at this moment. That is a report dated the 30th of
11 March, 2005. As a matter of fact, the cover letter is dated the 30th of
12 March, and the report itself is the -- dated the 29th of March. Have you
13 received that?
14 Ms. Radosavljevic, did you also receive that?
15 MS. RADOSAVLJEVIC: Yes, Your Honour.
16 JUDGE ORIE: You are aware that the Chamber has taken steps to
17 seek the assistance of an expert to see whether these experts could assist
18 the Chamber in better evaluating and better understanding the difference
19 in the assessment of the present mental condition of the accused. I would
20 suggest that we first hear this expert of which he has not sent any
21 written report but have the parties received his curriculum vitae?
22 MS. SOMERS: Your Honour, yes, we -- counsel, Defence counsel and
23 I did meet yesterday and discussed actually this -- the order that came
24 out yesterday. It was only yesterday that both parties became aware of
25 the appointment of this individual.
1 JUDGE ORIE: Yes, it was lately filed. I do agree with that.
2 MS. SOMERS: Even the fact that the -- Your Honour had -- sought
3 the assistance so we are only -- we have only the Dutch version of a CV,
4 we have no translation.
5 JUDGE ORIE: I speak some Dutch. If there are any questions in
6 relation to that CV, I would be, although not an official translator, and
7 I'm aware that knowing a language and being a professional interpreter or
8 translator is quite different. But if there would be any problem, we will
9 try to assist in solving that.
10 Ms. Radosavljevic, did you also receive the curriculum.
11 MS. RADOSAVLJEVIC: Yes, Your Honour, I did and as well as my
12 colleagues from the OTP. It is in Dutch so we will have to rely on your
13 assistance in that matter.
14 JUDGE ORIE: Yes. From what I can read from it, apart from
15 that -- this expert, Mr. -- Dr. Duits is on the list of experts that is
16 kept by the Registry that it at least shows a considerable experience,
17 especially in forensic psychiatry.
18 You see that at least publications are -- I just go briefly
19 through it. Dr. Duits was educated, he studied medicine until 1988 at
20 Amsterdam University. He became a psychiatrist, psychotherapist in 1994
21 and he got that degree at the -- also at the Free University, which is
22 also a University in Amsterdam, and 1995 is mentioned as a youth
23 psychiatrist, also University of Amsterdam.
24 Then his experience, he reported on from 1989 in civil and
25 criminal or -- I should say penal cases before courts. In 1991, he became
1 an expert at the Court of Appeal in Amsterdam; that means that he's listed
2 as such. On from 1990, he has functioned on the forensic psychiatry
3 service of the Ministry of Justice. On from 2000, it says that he is
4 listed as a rappoteur for the ICTY, and from 1996 until present, senior
5 rappoteur supervisor, and educating other rappoteurs researching on
6 quality of reporting.
7 He worked as an assistant psychiatrist in one of the Dutch
8 penitentiary institutions from 1988 until 1990. From 1993 to 1998, he was
9 a psychiatrist in various penitentiary institutions. From 1997 to 2003,
10 he was a psychiatric consultant for the council for the youths, that's an
11 institution in the Netherlands under the supervision of the Ministry of
12 Justice which deals with youth care.
13 Since 2000, he was for Youth Forensic Psychiatry Services working
14 in Amsterdam and since June 2002, he is the main responsible person for
15 which is abbreviated as FPD, Youth Netherlands, and as far as I
16 understand, FPD understands for forensic psychiatric services. That's in
17 short, at least, the experience. And apart from that, you see the usual
18 lists of where he has taught, about his publications, symposia he
19 attended, and addressed which organisation he is a member of, et cetera.
20 That's the -- I would say the usual lists. If this informs the parties
21 sufficiently, I'd like to proceed.
22 I'd like to hear Dr. Duits in private session, since I take it
23 that details of the psychiatric history and details of the present
24 psychiatric diagnosis may be necessary to be discussed. So therefore I
25 suggest to the parties we do that in private session whereas we would then
1 return into open session if we will consider what options we, at least in
2 the view of the parties, we would have to proceed.
3 Is there any objection against private session for the psychiatric
5 MS. SOMERS: Your Honour, may I just address the Court. I note
6 that in -- when actually the case -- the only other case that's gone to
7 full hearing in this institution which is the Prosecutor versus Pavle
8 Strugar had a full competency hearing which involved a number of things
9 that might traditionally have been considered private session. It was
10 conducted in open session because the idea was that the public would have
11 an interest in all aspects underlying fitness which would include
12 treatment issues as well as diagnosis issues. If the Chamber has in fact
13 ruled on it, we respect the ruling, but I wanted to make the Chamber aware
14 of the fact that all aspects of that hearing last April, I believe it was,
15 were in open session.
16 JUDGE ORIE: Yes. From what I remember from the Strugar case, it
17 is that the physical health condition was mainly the issue whereas any
18 mental condition was what one would normally expect from people at a
19 higher age, whereas the mental condition to be discussed here would be at
20 least quite different from what there was in Strugar. But let's first ask
21 Ms. Radosavljevic what the position of the Defence would be.
22 MS. RADOSAVLJEVIC: The Defence would prefer to have this part of
23 the discussion which will mention not only the diagnosis but everything
24 else connected to the mental state of my client in private session, the
25 same as we did on the 15th of March 2004 where we talked about the details
1 of his diagnosis and his illness in a private session. And afterwards,
2 the conclusions which are - I agree with you - of public interest, we
3 discussed in open session.
4 JUDGE ORIE: Yes. If we can reach any conclusions at this moment,
5 of course.
6 [Trial Chamber confers]
7 JUDGE ORIE: The -- having heard the parties and in view of the
8 observations made especially in -- and not only the observations made in
9 respect of the -- I would say the -- the intensive medical report we could
10 expect, which is more than the usual and rather superficial medical
11 issues, also in view of the history of this case, and also in comparison
12 with the Strugar case leads the Chamber to decide that we'll hear the
13 psychiatric part in private session.
14 Madam Registrar, could we turn it to private session?
15 [Private session]
21 [Open session]
22 JUDGE ORIE: We are back in open session, although perhaps not for
23 very long.
24 I'd like to ask Madam Usher to escort Mr. Duits into the
1 [The witness entered court]
2 WITNESS: NILS DUITS
3 JUDGE ORIE: Yes. Dr. Duits, good afternoon. Madam Usher asked
4 you to stand. Although the rules are not perfectly clear on oral
5 submissions by experts, I'd like you to make a solemn declaration that you
6 will speak the truth, the whole truth, and nothing but the truth, which
7 may sound a bit unfamiliar to you as a Dutch expert, because under Dutch
8 law, as I happen to know, there's a different formulation for experts
9 compared to witnesses. But I hope you'll understand that it has exactly
10 the same meaning, that you as an expert should give your opinion to the
11 best of your abilities on the basis of your experience and whatever
12 additional facts are known to you that you speak the truth, the whole
13 truth, and nothing but the truth.
14 On that, I explained this to you because I'm aware of our
15 formulation, a bit different from what you are used to.
16 Madam Usher will now give the text of the solemn declaration to
17 you. May I invite you to make that solemn declaration.
18 THE WITNESS: I solemnly swear that I will speak the truth, the
19 whole truth, and nothing but the truth.
20 JUDGE ORIE: Thank you, please be seated, Dr. Duits.
21 Dr. Duits, I addressed you in English. I -- may I take it that
22 your knowledge of the English language is such that you'll understand and
23 that you'll -- you are able to express yourself in English and if there be
24 any problem in respect of that, please address the Court so that we could
25 try to find a solution for that.
1 THE WITNESS: I will.
2 JUDGE ORIE: Yes. Thank you.
3 Dr. Duits, we'll soon turn into private session since the Chamber
4 has decided that the mental condition of the accused contains so much
5 information which should be private and should not be made public but I
6 first of all would like to draw your attention to what the Court asks you
7 to do as it is mentioned in a request this Chamber addressed to the
8 Registry to appoint an expert.
9 We sought the assistance of a forensic medical expert to review
10 the reports, mainly the last reports, presented on the medical condition
11 of Mr. Kovacevic and we split it up in three parts, to provide the Chamber
12 with oral submissions -- oral observations concerning the scope and the
13 nature of the discrepancies between the expert report of Drs. Goreta and
14 Krajinovic filed on the 20th of January, 2005, and the expert report of
15 Dr. Rosic filed on the 22nd of March, 2005. That was the first part.
16 Second, to provide oral observations as to how to solve the
17 discrepancies between those two reports, and, third, to provide any other
18 observation which could assist the Chamber in evaluating these reports.
19 And you will understand we have to evaluate these reports since the
20 Chamber will have to decide whether Mr. Kovacevic is fit to enter a plea
21 and whether he is fit to stand trial.
22 I wanted to explain this in open court why this Chamber has asked
23 you to assist us and I'd now like to turn into private session so we can
24 hear your observations.
25 [Private session]
11 Pages 277-301 redacted. Private session.
7 [Open Session]
8 JUDGE ORIE: Could the witness be brought in, the expert witness.
9 [The witness entered court]
10 JUDGE ORIE: Dr. Duits, I left a question with you. At the same
11 time, I have to inform you, although I really regret it, that we are under
12 some time pressure as well. This is not to hurry up you to an extent
13 unacceptable but it's just to see whether we can be as efficient as
15 Please, tell us whether that question brings you to any further
17 THE WITNESS: First of all, you have to, and -- and I cite, of
18 course, from the reports, that he has a narcissistic personality disorder,
19 narcissistic traits, and that means that you have ideas of curiosity,
20 inflated self esteem, and you see also from the reports of the hospital,
21 from the military academy, that he wants an exclusive position. That
22 gives a lot of trouble for the hospital.
23 Now, if he is -- in a certain way, he has this exclusive position
24 when he comes to the Court in Den Haag, if he has to be trialed [sic] in
25 Serbia-Montenegro in his home language with the same rights and no
1 exclusive position in a psychiatric ward with other people, it might give
2 big problems to keep his self esteem at [indiscernible] logical heights
3 and if -- if you look to the facts, what does he have left? Pensioner?
4 Threat of a trial, and now they are trialed [sic] in front of and between
5 his own people, no exclusive rights anymore. That might, I'm speculating
6 now, but you asked me to do that, I think, that might, yeah, heighten the
7 risk of self -- suicidal ideation might be more pronounced if that has to
8 be decided. But I said in the beginning, suicidal threat, suicidal
9 ideation stays in whatever context, and it's, in fact, a prisoner's
10 dilemma and I can't answer about that, in fact.
11 Here he has an exclusive position. Over there, no.
12 JUDGE ORIE: Yes.
13 Ms. Radosavljevic, do you have any questions for Dr. Duits?
14 MS. RADOSAVLJEVIC: Actually, Your Honours, I have a number of
15 questions and I'm afraid that it will take at least half an hour to go
16 through those questions, anticipating that the answers won't be too long.
17 JUDGE ORIE: Yes. And I take it, Ms. Somers, that you would have
18 some questions as well.
19 MS. SOMERS: We do, Your Honour.
20 JUDGE ORIE: I think under the present circumstances, we would
21 rather concentrate on when we could continue this hearing because we might
22 not finish today. Dr. Duits, I don't know if you have any plans to go on
23 a long holiday or whether your agenda would allow a return on a rather
24 short notice.
25 THE WITNESS: I don't like it because I have a full agenda but
1 what does that mean?
2 JUDGE ORIE: Neither do we.
3 THE WITNESS: But what does that mean?
4 JUDGE ORIE: Let me first consult the registrar.
5 [Trial Chamber and registrar confer]
6 JUDGE ORIE: Madam Registrar now tries to find out whether there
7 is any opening in the court schedule which, of course, doesn't mean that
8 we could fit that in because we have all our agendas but, Dr. Duits, if I
9 tell you that initial appearances now take place at 8.00 in the morning
10 because we have no courtrooms available at other times and no Chambers,
11 then you'll understand that it's the same everywhere.
12 MS. SOMERS: Your Honour, while there's some discussion there,
13 originally when this was scheduled, given we had notified Chambers of some
14 scheduling issues from the Prosecution side, it was thought that perhaps
15 if we needed a second day, either -- that Monday may be an option. Is
16 that still an option? I think I had indicated to your senior -- to
17 Mr. Harhoff that there would be some limitation from here and the
18 proposal, as I understood it, was if we spilled over, there might be
19 either a possibility of another day this week to finish the spillover or
20 Monday, the 18th. Is that still the situation?
21 JUDGE ORIE: I can't answer that question.
22 [Trial Chamber and legal officer confer]
23 JUDGE ORIE: We'll try to find out. At the same time, let's try
24 to use our time as good as possible.
25 Perhaps -- wouldn't it be fair, Ms. Radosavljevic, unless your
1 questions are so related, that I give you the opportunity to put one or
2 two questions, I do the same thing for the Prosecution and that meanwhile
3 Madam Registrar tries to find out whether we have the option to continue
4 on short notice and then ask also the witness.
5 Could I give you that opportunity to start with.
6 MS. RADOSAVLJEVIC: Yes, Your Honour.
7 JUDGE ORIE: Yes, please proceed.
8 MS. RADOSAVLJEVIC: First question I actually would like to ask
9 you is in regards with the way you saw the two reports, one is from the
10 20th of January by Dr. Goreta and Krajinovic and the other one is I think
11 the 22nd of March by Dr. Rosic. You saw some -- in a formal way, you saw
12 some differences on the matter -- in the matter on formal side of those
13 reports. Could it be that considering that both Dr. Goreta and
14 Dr. Krajinovic come from the same, let's say, legal system in terms of
15 forensic expertise as you do, on one hand, it's the European continental
16 system, and Dr. Rosic comes from another system from New Zealand where,
17 actually, they apply something like the UK law, the law of the United
18 Kingdom, so could that be the reason why she didn't maybe formally put her
19 report in the way that you would see it as proper.
20 THE WITNESS: The formal aspects of report writing in the
21 English-speaking part, U.K., Australia, New Zealand, and USA, they refer
22 to the same material as we do here also. I -- it's my research subject,
23 in fact, and the Dutch Board of Psychiatrists has the same format of
24 report writing as the USA, American Board of Psychiatrists, and you can
25 find these aspects in this report writing.
1 MS. RADOSAVLJEVIC: Thank you for that one. The other question
2 that I would like to ask you, also more general question, besides of -- of
3 the last reports also considering the additional reports of Dr. Goreta and
4 Dr. Krajinovic and the reports of the military medical hospital in
5 Belgrade, have you seen any other medical documents of Mr. Kovacevic? I
6 also notice that you mentioned Dr. Strikovic because so you also read his
7 report from May 203, May 2003, sorry, what about his previous records
8 THE WITNESS: I've rea the -- I've had the clinical observations
9 of Dr. Petrovic, I have the military medical academy, I have also a report
10 of the Defence from Dusan Kosovic [phoen] and I don't have the report of
11 Mr. Strikovic, only that it's cited in the report.
12 MS. RADOSAVLJEVIC: So I presume that you also don't have the
13 reports or rather medical documents in regards of Mr. Kovacevic seeking
14 treatment which began in 1988.
15 THE WITNESS: Yeah, that's -- no, no. That's cited in the
17 MS. RADOSAVLJEVIC: Okay. There is one question that was raised
18 by the Trial Chamber, and it actually refers to -- to the term delusional
19 disorder. Now, if I could just cite you from a psychiatric book, or
20 rather synopsis, I will tell you in a moment also the title of it and the
22 THE WITNESS: Kaplan and Sadock.
23 MS. RADOSAVLJEVIC: Exactly.
24 THE WITNESS: Yup.
25 MS. RADOSAVLJEVIC: Now, as to the confusion on the terminology
1 and you of course will correct me if I'm wrong, because I'm -- I'm not a
2 psychiatrist, it's on page 503 of synopsis of psychiatry, behavioural
3 science, clinical psychiatry, and the authors are Kaplan, Sadock, and
4 Grebb. It is also an annex to the Defence submissions from 31st March.
5 It says under delusional disorder, "delusional disorder is defined
6 as a psychiatric disorder in which the predominantly symptoms are
7 delusions. Delusional disorder was formerly called paranoia or paranoid
8 disorder." So do we -- can we see the delusional disorder that Dr. Rosic
9 refers to in her report as the paranoid psychosis that was mentioned in
10 the Goreta reports -- the Goreta-Krajinovic reports?
11 THE WITNESS: In fact, the delusional disorder is -- doesn't
12 appear that often. It's also mentioned in Kaplan and Sadock. It's a
13 circumspect disorder which lasts very long, it's difficult to treat and I
14 couldn't find the arguments in the report of Dr. Rosic to state that there
15 is a delusional disorder. But did I answer your question, no? What did
16 you ask me? Excuse me.
17 MS. RADOSAVLJEVIC: The question was if delusional disorder or as
18 it was previously known, paranoia or paranoid disorder, can we see it as
19 the same illness or mental disease that it is --
20 THE WITNESS: No. No. No. Delusional -- no. Paranoid
21 psychosis, which is difficult to circumscribe [sic] but has also
22 hallucinations with it sometimes, and delusions. And delusional disorder
23 is strictly delusional.
24 MS. RADOSAVLJEVIC: Thank you.
25 JUDGE ORIE: I'm afraid --
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 MS. RADOSAVLJEVIC: The time is up.
2 JUDGE ORIE: Not entirely, because we are working hard on how to
3 continue, but Ms. Somers, if you would like to put a few questions or the
4 most important questions to start with, we could start, if you say if we
5 have to restart any how, I'll do that at a later stage.
6 MS. SOMERS: Good afternoon, doctor.
7 THE WITNESS: Good afternoon.
8 MS. SOMERS: If, in fact, as Dr. Goreta's report suggests that
9 there may be as it come, potential from manipulation and couldn't this be
10 true of any person facing charges in a criminal arena.
11 THE WITNESS: Well I can only talk about a diagnostic, psychiatric
12 diagnostic point of view. You have always, bear in mind, as a
13 diagnostician, that malingering plays -- assimilation plays a part in the
14 people you have before you. Yup.
15 MS. SOMERS: And if in fact, there was some improvement but always
16 a threat of regression and an individual aware of it, could that not
17 frustrate the entire criminal justice system, if someone could be okay as
18 long as you don't take me to trial. Can you imagine any rule of law,
19 society, that could allow that potential for manipulation or that,
20 perhaps, failure to treat so as to allow that in a situation.
21 JUDGE ORIE: Ms. Somers, before the witness answer that question,
22 I'd like to consult with my colleagues.
23 [Trial Chamber confers]
24 JUDGE ORIE: Dr. Duits, the Chamber is inclined to take it that
25 answering this question would be beyond your expertise. If you would have
1 a different view, we had alike to hear.
2 THE WITNESS: No, that's -- I was already looking to you if I had
3 to answer this question.
4 JUDGE ORIE: Yes.
5 Yes, Ms. Somers.
6 MS. SOMERS: Thank you, Your Honour.
7 The potential for a trial or for the relationship of an accused in
8 his home or national jurisdiction such as, let's say, Serbia, how would
9 you view the fact that he may have hero status there with respect to his
10 self esteem as opposed to accused status, given what is widely reported in
11 the press about a number of accused before this Tribunal being considered
12 heroes in their national jurisdictions?
13 THE WITNESS: That's a good remark. I can't -- in fact, it's also
14 beyond my expertise, in fact, but it doesn't -- it isn't mentioned in the
15 report, but it could be possible that that has to do with his self esteem,
17 MS. SOMERS: The number of reports that you have read, have you
18 noticed the diagnosis of delusional disorder in any of them other than
19 Dr. Rosic's?
20 THE WITNESS: No.
21 MS. SOMERS: Thank you.
22 Your Honour, I would have more questions but they would require
23 more time so if the Court will indulge us.
24 JUDGE ORIE: Perhaps we should now look at Madam Registrar. I
25 think all the court scheduling has changed but of course we'll first try
1 to find out what the options are not only for us, Dr. Duits, but also what
2 the options for you would be.
3 Madam Registrar, could you inform us, and I noticed that you
4 changed already a lot. Yes.
5 THE REGISTRAR: The only day that's available in the coming weeks
6 is the afternoon of Tuesday, the 19th of April.
7 JUDGE ORIE: Yes, Ms. Somers.
8 MS. SOMERS: I regret when I informed my colleague, Mr. Harhoff
9 that that is one day that I am not available. If it, in fact, has to be
10 within the next two weeks it's a problem for me either -- other team
11 members but any time after the 3rd of May is ...
12 JUDGE ORIE: I will not be available after the 3rd of May and we
13 can't give it too much time so although I was informed about it from
14 Mr. Harhoff that at least onward from that date you would not be available
15 anymore, that there is -- well, we have taken at into consideration.
16 MS. SOMERS: My colleagues with handle it. Thank you.
17 JUDGE ORIE: Dr. Duits, could I, because you are most vital in
18 such a position, could I ask you if there would be any chance that you
19 would be available on the 19th of April in the afternoon.
20 THE WITNESS: In the late afternoon.
21 JUDGE ORIE: Madam Registrar, that would make no problem, I
23 THE WITNESS: I could be here at --
24 JUDGE ORIE: If you've got one moment because I've --
25 [Trial Chamber confers]
1 JUDGE ORIE: Yes, Dr. Duits, you were about to make a suggestion
2 as far as the time is concerned.
3 THE WITNESS: I can make it at 5.00, if that's possible.
4 JUDGE ORIE: At 5.00. Yes, usually court hearings here can
5 continue until 7.00, so 5.00 would not be a problem and we should be -- it
6 should be possible. Then we'll deal with it.
7 Then, Ms. Radosavljevic.
8 MS. RADOSAVLJEVIC: The 19th of April, 5.00 is okay with the
10 JUDGE ORIE: Then Ms. Somers, the -- someone to replace you could
11 be found for that specific moment.
12 MS. SOMERS: Replace never, but substitute yes, Your Honour.
13 JUDGE ORIE: Yes. Yes. I should be -- I should mind my words,
14 I'm aware of that.
15 Finally, I have got two short issues. Your presence are needed
16 but it -- take a couple of minutes, so if you would prefer to leave, then
17 please say so then I'll ask Madam Usher to escort you out of the
18 courtroom. If not ...
19 Ms. Radosavljevic, you've seen in the scheduling order for this
20 hearing and I should have addressed the matter at the beginning and not
21 halfway, that the Chamber didn't consider the presence of the accused
22 necessary. I take it that since you appear here alone and that we did not
23 receive any submission urging us to have the accused transferred from
24 Belgrade, that you would agree with that.
25 MS. RADOSAVLJEVIC: Yes, Your Honour, I do agree.
1 JUDGE ORIE: Of course, to the extent there's -- instructed by
2 your client, but of course the whole issue is about instructions and so
3 therefore, we have to be practical.
4 Then I have another matter. One of the others items on the agenda
5 is, apart from what we should decide on the issue of fitness to enter a
6 plea, yes or no, then, of course, we would have the next step and it is
7 how to proceed in the case. I just give you a few options the Chamber
8 might consider and perhaps the parties are invited to already give it some
9 thought on how they would -- how their position would be in view of that
11 First option would be to take another six months and see how
12 matters develop and not to insist on entering a plea at this moment, not
13 take any decision in that respect.
14 Then the next option would be that if we would decide that it's
15 now the time to determine whether a plea could be entered or not be
16 entered, so that's to say no six -- no further six months but we'll take a
17 decision now, then we have one possibility that is that the witness
18 would -- that the accused would enter a plea, that our decision would be
19 that we require him to enter a plea and if he doesn't do it, it will be
20 done on his behalf.
21 Then we have, after that, at this moment, I'm not on the basis of
22 the material we have, I'm not considering the option although it is an
23 option, of course, that if the accused will be invited to enter a plea, it
24 would be a guilty plea but on the basis of what we've read now, I would
25 make that at this moment a theoretically still existing possibility, but
1 not something to be specifically considered by the parties at this moment.
2 So if he would enter a plea, then the next question would be
3 whether he would -- if he has entered a plea of not guilty or if such a
4 plea is entered on his behalf, whether he would stand trial in The Hague
5 or whether he would stand trial at another place. That might be Belgrade,
6 if the Referral Chamber would follow the suggestion made by the
8 That decision is beyond the competence of this Chamber because
9 whether or not the case, after a plea has been entered, would be referred
10 or not be referred to the former Yugoslavia is within the exclusive
11 competence of the Referral Chamber.
12 Then, the next option would be that the Chamber would decide now,
13 so not take another six months and say that the witness -- the accused is
14 not fit to enter a plea or not fit to stand trial. Then I think there are
15 a few options. One of them, as far as I understand, supported at this
16 moment by the Office of the Prosecution is that nevertheless, the
17 application for a referral under 11 bis could be heard by the Referral
18 Chamber, and I already point at the issue that would then most likely
19 arise, which is the following: If someone is declared by this Chamber not
20 to be fit to enter a plea or not to be fit to stand trial, then the next
21 question would be whether he would be fit to instruct counsel as to
22 represent him in any 11 bis proceedings.
23 I'm not giving an answer to that question, I would just like the
24 parties to consider that.
25 Then, finally, that's the last option that comes into the mind of
1 the Chamber at this moment, that is that the Prosecution would decide to
2 withdraw the indictment which, of course, also is an option and the
3 Chamber could imagine that if an indictment would be withdrawn, it could
4 be just done as the French say, sec, that is without any further
5 arrangements. Another possibility might be that a decision on the
6 withdrawal of an indictment would be taken after consultation with local
7 authorities, most likely would that be authorities this Belgrade, whether
8 they would further monitor the health situation, and they might be willing
9 to initiate Prosecutions, perhaps after consultation with the OTP once the
10 situation is such that it would be appropriate to further proceed against
11 this accused.
12 These are the options that at least came into the mind of the
13 Chamber. Since we will discuss these matters, the Chamber thought it wise
14 to inform you about that so that you could, of course, prepare other
15 options as well, but at least consider these or at least let it go through
16 your minds when we resume.
17 Dr. Duits, I would first of all like to thank you for coming and
18 also for being available next week. Final -- the final confirmation,
19 because you will understand we need a lot of people to come together here,
20 it's -- we now know of the parties, the registry, Judges, and not less
21 important, from you, but there are a few other matters to be considered as
22 well. We'll confirm it to you at the shortest notice.
23 Madam Registrar, is there any other matter we would have to raise
24 at this moment? If not, we'll adjourn until Tuesday, the 22nd of -- the
25 19th of April, 5.00 in the afternoon, in courtroom -- that would be in
1 Courtroom II.
2 We adjourn.
3 --- Whereupon the hearing adjourned at 4.47 p.m.
4 To be reconvened on Tuesday, the 19th day of April,
5 2005, at 5.00 p.m.