050413ED

Page 269

1 Wednesday, 13 April 2005

2 [Hearing]

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

19 counsel.

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

Page 270

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.

Page 271

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

Page 272

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

Page 273

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

4 part?

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

Page 303

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

Page 304

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

Page 305

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.

Page 306

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

16 reports.

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

21 authors.

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

Page 307

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 --

Page 308

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

Page 309

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

Page 310

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,

16 yeah.

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

Page 311

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

22 suggest.

23 THE WITNESS: I could be here at --

24 JUDGE ORIE: If you've got one moment because I've --

25 [Trial Chamber confers]

Page 312

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

9 Defence.

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.

Page 313

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

10 option.

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

Page 314

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

7 Prosecution.

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

Page 315

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

Page 316

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.