International Criminal Tribunal for the Former Yugoslavia

Case No IT-97-24-PT

  1. 1 Friday, 10th October 1997

    2 (10.00 am)

    3 JUDGE STEPHEN: Call the listed in motion.

    4 THE REGISTRAR: Case number IT-97-24-PT, Prosecutor versus

    5 Milan Kovacevic.

    6 JUDGE STEPHEN: Can I have the appearances?

    7 MR. NIEMANN: If your Honours please, my name is Niemann,

    8 I appear with my colleagues Ms. Uertz-Retzlaff,

    9 Mr. Morten Bergsmo and Ms. Sutherland.

    10 JUDGE STEPHEN: For the Defence?

    11 MR. D'AMATO: Good morning, your Honours.

    12 JUDGE STEPHEN: You should press the button that brings the

    13 red light on.

    14 MR. D'AMATO: The red light is on. Thank you, I am sorry for

    15 that. Good morning your Honours, my name is Anthony

    16 D'Amato, lead counsel for Dr Kovacevic. My co-counsel

    17 are here this morning, Mr. Igor Pantelic, Mr. Dusan

    18 Vucicevic, and Mr. Simor Vucinic is, I presume, being

    19 robed. May I ask the court for the doctor, our client,

    20 to confirm the appearance of the co-counsel?

    21 JUDGE STEPHEN: Yes.

    22 MR. D'AMATO: Dr Kovacevic?

    23 MR. KOVACEVIC: What should I say, that these are my

    24 attorneys?

    25 JUDGE STEPHEN: Thank you, doctor.

  2. 1 MR. D'AMATO: Thank you very much.

    2 JUDGE STEPHEN: I understand, incidentally, that there is

    3 some question of precisely the status of your

    4 colleagues, but there is no objection, certainly, to

    5 them being seated here.

    6 MR. D'AMATO: Thank you very much.

    7 JUDGE STEPHEN: I think in view of the fact that there was

    8 some confusion with a press announcement that was made

    9 early yesterday, followed by an amended one, that it is

    10 probably desirable just to state what the current

    11 situation is and what we are dealing with. Altogether,

    12 there are three motions that have been -- there are

    13 four, but we can deal only with three of them, that were

    14 filed by the Defence. There was the motion to clarify

    15 standards, if I can use the short title, and that has

    16 already been disposed of by an order of 1st October,

    17 although that did not appear in the initial press

    18 release.

    19 Then there is a motion to strike portions of the

    20 indictment, and that motion will not be heard by this

    21 Chamber. The indictment is, in any event, to be amended

    22 in due course, whatever that may mean, and the members

    23 of this Chamber now sitting will not form the Trial

    24 Chamber. I retire in November and my two colleagues

    25 will not be hearing this matter after November.

  3. 1 Accordingly, it will be dealt with by whatever new

    2 Chamber, new Trial Chamber is constituted by the new

    3 President in November.

    4 I note, however, that the Prosecutor, as

    5 I understand it, has agreed to remove Simo Drljaca as

    6 co-accused; that is correct, is it?

    7 MR. NIEMANN: That is correct, your Honour.

    8 JUDGE STEPHEN: Presumably that includes paragraphs 3 to 5

    9 of the indictment and all references to him in the

    10 remainder of the indictment, is that so?

    11 MR. NIEMANN: Certainly all references to him in the

    12 remainder of the indictment, your Honour.

    13 JUDGE STEPHEN: I think 3 to 5 deal exclusively with him.

    14 MR. NIEMANN: That is correct, your Honour.

    15 JUDGE STEPHEN: Thank you. That therefore leaves, as far as

    16 that motion is concerned, the background and the heading

    17 "superior authority". The typographical error in the

    18 indictment in paragraph 7 was amended, it seems, at the

    19 initial appearance.

    20 MR. D'AMATO: Your Honour --

    21 JUDGE STEPHEN: If I can just finish, but it is going to

    22 require, in any event, I think, substantial further

    23 amendment if paragraphs 3 to 5 are in fact to be

    24 omitted, because it will not stand on its own.

    25 Yes, Mr. D'Amato, you were going to say something?

  4. 1 MR. D'AMATO: Yes. Was there an order of the court with

    2 respect to the change that was requested by Prosecutor

    3 at the hearing when they amended, as they say, the

    4 typographical -- was there an order of the court,

    5 because I did not receive any such order?

    6 JUDGE STEPHEN: Perhaps you can elucidate that.

    7 MR. NIEMANN: It was by consent, as I understand it, your

    8 Honour. We raised the matter and it was consented to by

    9 the Defence. The court merely accepted that at the time

    10 and I think that can be taken as though it was accepted

    11 by the court.

    12 JUDGE STEPHEN: You were not counsel at that time, I take

    13 it.

    14 MR. D'AMATO: No, your Honour, but since I did not receive an

    15 order I would like to then request the Prosecution, if

    16 you could then prepare an order, in conformity with the

    17 consent. We will have no objection, of course, so that

    18 I could have an order of the court requiring the change,

    19 as opposed to the transcript, which also I have not

    20 received. It would just be good to have this reduced to

    21 a court order, if there is no objection.

    22 JUDGE STEPHEN: I think we can deal with that in the status

    23 conference that follows this application, because if

    24 there is going to be a considerable amendment to the

    25 indictment, it can be taken up at that time.

  5. 1 Then there remains the motion as to non-disclosure

    2 and provisional release, and that is the motion that we

    3 will now hear and that appears in the scheduling order

    4 of 1st October.

    5 As to one portion of it, the non-disclosure of the

    6 indictment, as I understand it, that has already been

    7 vacated by decision of 10th July of Judge Odio Benito,

    8 and if that is so, and I would like confirmation of that

    9 from counsel on both sides, there remains really only

    10 the matter of provisional release, which we will hear

    11 this morning.

    12 Is that your understanding, Mr. Niemann?

    13 MR. NIEMANN: Yes, your Honour, that it has been vacated.

    14 JUDGE STEPHEN: Mr. D'Amato?

    15 MR. D'AMATO: No, it is not my understanding.

    16 JUDGE STEPHEN: What is your understanding?

    17 MR. D'AMATO: My understanding is that there are continuing

    18 ramifications of the order. Damage being done is still

    19 being done and then the order to vacate, while perfectly

    20 proper in its own step, does not affect my motion today

    21 to have that overruled, to say that the order ordering

    22 concealment should be overturned by this court.

    23 JUDGE STEPHEN: I think there may be a procedural difficulty

    24 how we overturn an order that has been vacated, I am not

    25 sure, but we will hear your submissions when we come to

  6. 1 that.

    2 Mr. Niemann, on this question then of provisional

    3 release and, to the extent to which it is relevant, the

    4 non-disclosure aspect, we will now hear you.

    5 MR. NIEMANN: Does your Honour wish to hear me first or the

    6 Defence?

    7 JUDGE STEPHEN: I think we should probably -- as to the

    8 non-disclosure, have you anything to say on that?

    9 MR. NIEMANN: Only, your Honours, that our position is that

    10 the non-disclosure order has been vacated. It is

    11 contained, your Honour, in our written motion, in

    12 paragraph 9. Your Honour, we refer to the fact that the

    13 non-disclosure order relating to the accused was vacated

    14 on 10th July, the date of the accused's arrest. It had

    15 to be vacated on that date because of the arrest and it

    16 follows that that happened then. Her Honour made an

    17 order on that day. So far as we are concerned, your

    18 Honour, that matter has now been disposed of, and I am

    19 interested to hear argument as to how it is that the

    20 Chamber can then proceed to deal with it, seeing as it

    21 has been vacated.

    22 JUDGE STEPHEN: Very well.

    23 MR. NIEMANN: The only other matter that perhaps I might

    24 raise while I am on my feet is that as I have understood

    25 the motion that has been filed by the Defence in this

  7. 1 matter, the motion is preconditioned on vacating of the

    2 order for provisional release under Rule 65 and has, by

    3 their motion, been preconditioned on the vacating of the

    4 order by Judge Odio Benito. So my understanding of the

    5 situation is this, that if that matter is not disposed

    6 of, then the basis upon which their application under

    7 Rule 65 for provisional release falls too, because they

    8 say, if I might just take your Honour to it, they say in

    9 their motion, on page 2, your Honour, at about point 8

    10 of the page:

    11 "The defendant does not ask this Tribunal to

    12 reconsider its order for detention of 30th July 1997.

    13 Rather the defendant requests that the Tribunal, if it

    14 should grant the defendant's motion to overrule Judge

    15 Odio Benito's order of 13th March 1997, issue a new

    16 order of provisional release under Rule 65."

    17 On the basis of the way that is structured, it is

    18 my understanding of the matter that it only --

    19 consideration of provisional release, so far as this

    20 motion is concerned, only arises if your Honours are to

    21 overrule the order of Judge Odio Benito. As I say, that

    22 order has been vacated.

    23 JUDGE STEPHEN: On a strict matter of construction,

    24 I suppose that may be so, but I take it that you are

    25 prepared today to deal with the application for

  8. 1 provisional release regardless of the particular

    2 construction that I think you rightly place on the

    3 motion.

    4 MR. NIEMANN: Absolutely, your Honour.

    5 JUDGE STEPHEN: Yes. Very well, thank you.

    6 Yes, Mr. D'Amato.

    7 MR. D'AMATO: If I may address that last remark --

    8 JUDGE STEPHEN: I should say to save time that as far as

    9 I am concerned, and I would like to consult with my

    10 fellow judges, but we would not hold you to that strict

    11 construction. Yes.

    12 MR. D'AMATO: Okay, I appreciate that. In any event, for the

    13 record I want the Prosecution, since the Prosecution is

    14 violently objected to the coupling of those two points,

    15 the Prosecution should not be allowed to say the

    16 opposite today. That is all I wanted to say for the

    17 record, but I would be glad to proceed with the

    18 argument.

    19 JUDGE STEPHEN: Yes.

    20 MR. D'AMATO: Is it your Honour --

    21 JUDGE STEPHEN: Incidentally, in argument, you might bear in

    22 mind that we have, of course, read the grounds stated in

    23 the motion and mere repetition is not necessary.

    24 MR. D'AMATO: Good, I appreciate that. Then let me begin by

    25 addressing the motion to overrule the concealed

  9. 1 indictment on the basis of the Prosecution's objections,

    2 which the court has read.

    3 In the first place, the Prosecution places on this

    4 the idea that the concealed indictment is simply a

    5 matter of formality, no particular harm was done, it is

    6 just a trivial administrative convenience, and in any

    7 event it has been vacated. I beg to differ with that

    8 assertion. In the first place, considerable harm was

    9 done to the defendant by virtue of this concealed

    10 indictment. He was deprived of the chance, the

    11 opportunity, of submitting himself voluntarily to this

    12 Tribunal.

    13 Instead, and we have several witnesses for this,

    14 and if the court wishes we will obtain our affidavits

    15 when our counsel goes into the field to investigate the

    16 case, the defendant was arrested and taken to Tuzla,

    17 where he was then put down on the ground and put into a

    18 container, a 18 foot metal container that is used for

    19 storage. This was on July 10th at the heat of noon in

    20 Bosnia. It was extraordinarily hot outside. When he

    21 was put in the container, he was asked to stand facing

    22 the wall. The container has a heating element in it in

    23 order to prevent stored materials from freezing in the

    24 winter. The radiator was turned on. The defendant was

    25 then facing a wall, standing up, for two hours in this

  10. 1 intense heat while the indictment was read to him. At

    2 the end of which time, he was put in a helicopter and

    3 taken to Amsterdam -- put on a plane and taken to

    4 Amsterdam. In coming off the plane, he suffered a

    5 stroke; that is, a deprivation of blood to the brain,

    6 paralysis in the limbs.

    7 Under the Convention on Torture, this might be

    8 construed as the deliberate infliction of bodily harm on

    9 a person presumed to be innocent by government officials

    10 with consequent severe physical damage, but I am not

    11 here to argue the construction of Article 1 of the

    12 Convention on Torture. I am just pointing out that harm

    13 was done.

    14 More importantly, what about harm today? What is

    15 the continuing harm of this concealed indictment and the

    16 fact that the defendant was deprived of the opportunity

    17 to submit voluntarily? Excuse me, please. (Pause).

    18 Just last week, the newspapers reported the war

    19 crimes suspects taken to this Tribunal, and an

    20 Associated Press despatch quoted the United States State

    21 Department's spokesman James Foley saying that the

    22 United States:

    23 "... pledges to make every effort to strengthen

    24 the Tribunal's resources ..."

    25 In parentheses, which I completely applaud, I am

  11. 1 totally in favour to that:

    2 "... to facilitate speedy trials for all

    3 indictees, particularly those who surrender

    4 voluntarily."

    5 In other words, by being deprived of the

    6 opportunity to surrender voluntarily, Dr Kovacevic is

    7 not one of those people to whom a speedy trial is being

    8 promised under this new statement of last week, and

    9 indeed his trial might even be held up in order to

    10 accommodate the speedy trial of the people who were

    11 voluntarily arrested. This is a tremendous prejudicial

    12 harm to my client.

    13 JUDGE STEPHEN: That is a statement by the US government, is

    14 it?

    15 MR. D'AMATO: That is right, it is not binding on the

    16 Tribunal.

    17 JUDGE STEPHEN: It has no relevance as far as the Tribunal

    18 is concerned.

    19 MR. D'AMATO: Excellent. Then I do not have to worry about

    20 it. Thank you, that certainly clears that up.

    21 The decision to conceal the indictment in the

    22 first place I argue was arbitrary, because there is no

    23 evidence that has been provided to me of any evidence

    24 whatsoever of the doctor's danger to any other persons,

    25 danger to any potential witnesses, any potential of

  12. 1 fleeing. Your Honours have read my motion, and without

    2 repeating it, just to summarise very briefly, every day

    3 the doctor went on his job at the hospital in Prijedor;

    4 he was an open public figure, there was no need to

    5 arrest him surreptitiously and cause this damage that

    6 I have already recounted to you. On many occasions he

    7 said if he were indicted he would come voluntarily and

    8 we can provide evidence of that if you need, because he

    9 said it in many public places.

    10 In addition, we have to take as part of our

    11 understanding of this entire case -- we can not

    12 understand this case without looking at what the

    13 indictment is. The indictment says nothing about

    14 Dr Kovacevic's presence at any crimes of genocide, it

    15 says nothing about his participation in any crimes of

    16 genocide, there is no factual allegation that connects

    17 him to any acts of genocide whatsoever.

    18 The entire case, at least as far as I have heard

    19 it, and there may be more evidence forthcoming, but the

    20 entire case as far as I have seen it in all the records

    21 and all the presentation to Judge Odio Benito in her

    22 consideration of the concealed indictment, simply says

    23 that as a matter of de jure construction that the doctor

    24 was in a chain of command relating to the genocide, but

    25 that is not a fact, that is a presumption. That has to

  13. 1 be shown at trial. I am not going to argue the trial

    2 here, but I simply want to tell you that this is not a

    3 person who has been connected with genocide, and

    4 therefore should have been given every reasonable right

    5 and dignity as a human being, all of that which was

    6 stripped away from him by an order of concealed service

    7 of the indictment that had all these consequences and

    8 was not based on any fact.

    9 I asked the very first day I came here, September

    10 4th, I asked the Registrar, please give me a transcript

    11 of that portion of the hearing on March 13th that has to

    12 do with the concealed indictment. Here we are, a month

    13 and a week later, I have received nothing. The

    14 Prosecution have been ordered to turn this over to me,

    15 they have not given me a thing. I think this court can

    16 now take it as a matter of law, as a presumption, that

    17 there is nothing for them to give me. In other words,

    18 the record, since it has not been turned over to me, and

    19 I asked for it a month and a week ago, that there is

    20 nothing there to support Judge Odio Benito's decision to

    21 conceal the indictment. If there were, I should have

    22 received it by now. They are estopped at this point to

    23 come in with anything. On that basis, too, I argue that

    24 the decision to order a concealed indictment was

    25 arbitrary and should be overturned by this court,

  14. 1 because of the lingering effects, because -- to keep the

    2 record straight et cetera, all the reasons that I have

    3 presented.

    4 Your Honour, let me ask you, would you like me to

    5 continue with the second part of my argument or would

    6 you like to break it up and have him respond to this and

    7 then me continue the second half?

    8 JUDGE STEPHEN: I think the latter course would probably be

    9 preferable. I suspect that the Prosecution would wish

    10 here and now to deal with what you described as the

    11 "concealed indictment".

    12 MR. D'AMATO: I thought so, too, your Honour, and therefore I

    13 wanted to give them the opportunity to break up, with

    14 the reservation that I might come in then afterwards and

    15 deal with the second half.

    16 JUDGE STEPHEN: Perhaps before we do that, you might explain

    17 why you describe it as a "concealed indictment". Are

    18 you suggesting that there is some entitlement of an

    19 accused person to have an indictment made public in

    20 advance?

    21 MR. D'AMATO: No, what I am suggesting is that there is --

    22 that the way this operated is that concealed indictment

    23 led to his what I call torture at Tuzla, it led to his

    24 deprivation of being allowed to come forward

    25 voluntarily, which he would have done if there had been

  15. 1 a public indictment. In other words, the consequences

    2 attendant upon the concealed indictment caused harm and

    3 are causing continuing harm and therefore the decision

    4 to conceal, while it may have seemed like an

    5 administrative step at the time, had enormously

    6 prejudicial and adverse consequences to my client.

    7 Therefore, since the decision was not supported by any

    8 reason, it should not have been given in the first

    9 place.

    10 JUDGE STEPHEN: Thank you. I should just ask Mr. Niemann if

    11 he would like to deal with this aspect first.

    12 MR. NIEMANN: If I may, your Honour. Your Honours, just to

    13 deal with the last question about the transcript, the

    14 transcript is attached to our motion, as an attachment

    15 to our motion, which was filed on 23rd September 1997

    16 and presumably has been available to the Defence at

    17 least from that time, if not earlier. The facts that

    18 were outlined by Mr. D'Amato in relation to the arrest

    19 are not admitted as such by the Prosecution, because we,

    20 of course, did not attend that particular part of the

    21 process, the initial part of the process. That was

    22 carried out by SFOR pursuant to the provisions of the

    23 Dayton Agreement, your Honours, so I am unable to deal

    24 with them at the moment. I would presume to proceed to

    25 have those matters investigated in any event.

  16. 1 Your Honours, the assertion by the Defence that

    2 this was an unwarranted approach to be taken by the

    3 Prosecution could not be further from the truth.

    4 Unfortunately we have had a very unfortunate history in

    5 the Republika Srpska, within that area classified as

    6 the Republika Srpska, in terms of effecting arrests and

    7 the government of that territory have indicated on

    8 numerous occasions that they will not participate or

    9 facilitate in the arrests or in the transfer of indicted

    10 war criminals to -- persons accused of being war

    11 criminals to the Tribunal. It is on the basis of that

    12 and on the fact that notwithstanding numerous public

    13 indictments having been issued by the Prosecutor in

    14 relation to people who are living in that area, and

    15 because of the totally unsuccessful attempt to have

    16 persons brought from that area to the Tribunal which

    17 gave rise to the approach taken in this case.

    18 It has almost been posited by the Defence,

    19 your Honours, that there is some right to a public

    20 indictment. I do acknowledge, your Honours, that the

    21 rules envisage that the indictment will be public, but

    22 it also envisages circumstances where that would not be

    23 so, and in my submission a history of unsuccessful

    24 attempts for people to be brought to the Tribunal who

    25 have been indicted would well and truly justify the

  17. 1 course, in my submission, which was taken.

    2 Your Honours, in most jurisdictions the procedure

    3 is quite different to what occurs in the Tribunal in

    4 terms of arresting accused persons. In most instances,

    5 in most jurisdictions, people are arrested and they do

    6 not know about the fact that they are going to be

    7 arrested first and it is after that that they are

    8 informed of what they have been arrested for, and it is

    9 for that reason, your Honours, that there is numerous

    10 pieces of legislation throughout the world, and included

    11 in the Articles of this Tribunal, which provide

    12 expressly that upon arrest a person is to be fully

    13 informed of the basis of the arrest and informed of

    14 their rights. In my submission, it is because of that,

    15 because of the fact that arrests may take place without

    16 them knowing, the basis or the reason for it, they are

    17 taken by surprise, that these provisions are provided

    18 for.

    19 So quite contrary to what is being asserted here,

    20 your Honours, there is nothing unusual about it. In

    21 fact, it is standard procedure for it to happen this

    22 way. It is only in minor offences that we have

    23 situations where people receive summonses where it is

    24 anticipated that they might come to the court and have

    25 the matter dealt with, but in most serious cases, in the

  18. 1 vast majority of them, people receive no notice before.

    2 Just dealing perhaps, your Honours, with a couple

    3 of the matters that were raised in the motion itself,

    4 and I rely on the submissions set out in our written

    5 motion, but perhaps if I can just touch upon a couple of

    6 them? In the written motion, reference is made in

    7 paragraph A2 to the fact that the defendant has

    8 indicated that he would be prepared to surrender to the

    9 Tribunal voluntarily. All I can say to that, your

    10 Honour, is that this is not something that has ever been

    11 conveyed to the Office of the Prosecutor and indeed if

    12 it had been conveyed to the Office of the Prosecutor,

    13 I can see that there would be a great deal of merit in

    14 the application that is presently being made by the

    15 accused in this case, in this motion. So therefore, in

    16 relation to paragraph 3, where it is asserted that it is

    17 foreseeable, in light of the facts in paragraph 2, the

    18 defendant would offer no resistance to being arrested,

    19 that he would have submitted himself. It cannot be

    20 foreseeable if that has not been conveyed. Indeed,

    21 I think, your Honours, it has occurred on occasions when

    22 people have voluntarily submitted themselves who have

    23 not been indicted and sought information about

    24 themselves, and those cases have been dealt with,.

    25 I will not go into any detail in relation to them, but

  19. 1 it is not totally beyond the realms of reasonableness

    2 that a person could actually do that, if they wanted to

    3 forego the possibility of arrest in circumstances where

    4 they are not aware of it beforehand. In my submission,

    5 the accused did not do that in this case. If he had

    6 done so, things may well have been different.

    7 There is a reference then in paragraph 5,

    8 your Honours, to the fact that he was arrested at his

    9 place of work. I might just say to that, your Honours,

    10 that it is not unusual for people to be arrested at

    11 their place of work. Likewise, it is not unusual for a

    12 person to be arrested at their home. It is not unusual

    13 for a person to be arrested while they are travelling

    14 from work to home, but in those places, there is nothing

    15 in particular that I would submit that needs to be said

    16 about that.

    17 Finally, your Honours, in paragraph 6, reference

    18 is made to the fact that the concealed indictment has

    19 somehow damaged his character. I find that hard to

    20 understand, how that could be so. In my submission,

    21 your Honour, perhaps it may be argued that the

    22 indictment somehow damaged his character. That is

    23 perhaps the unfortunate consequences of legal

    24 proceedings being commenced against a person, but I can

    25 hardly see how concealing the indictment would achieve

  20. 1 that end, and so in my submission, your Honours,

    2 I submit that paragraph 6 is ill-founded.

    3 Finally, your Honour, on the question of

    4 exceptional circumstances --

    5 JUDGE STEPHEN: That is perhaps getting into the second

    6 aspect, is it not, of provisional release?

    7 MR. NIEMANN: Your Honour, it has been raised in paragraph 5,

    8 I think, of A, A5. It is raised in paragraph 4, where

    9 he says:

    10 "The decision ordering a concealed indictment was

    11 not based on any exceptional circumstance."

    12 Just dealing quickly with that matter,

    13 your Honours, if I can take your Honours to Rule 53 of

    14 the Rules, it is our submission that the exceptional

    15 circumstances requirement relate only to paragraph A,

    16 and in our submission, paragraph A concerns itself with

    17 general non-disclosure of documents or information.

    18 JUDGE STEPHEN: Yes, you are quite right. B, which deals

    19 with non-disclosure of an indictment, does not refer to

    20 any special circumstances. Yes.

    21 MR. NIEMANN: That is what I wish to say on those matters at

    22 this stage, if your Honours please. Unless there are

    23 any other matters I can help on.

    24 JUDGE STEPHEN: Mr. D'Amato, you might like to reply very

    25 briefly to those aspects before we get on to the

  21. 1 application for provisional release.

    2 MR. D'AMATO: Thank you very much. I will confine myself

    3 only to two very new points which were raised and I will

    4 not attempt to rebut the arguments, which -- I take it

    5 the court is sufficiently aware of the arguments on both

    6 sides. The first new point was the generous concession

    7 by the Prosecution that indeed everything we say might

    8 have been true and might have been avoided had the

    9 defendant only given notice to this Tribunal and to the

    10 Prosecution that he would be willing, if arrested, to

    11 come voluntarily. Unfortunately -- and I appreciate

    12 that -- but unfortunately it flies totally in the face

    13 of common sense. Dr Kovacevic heard that his name had

    14 been mentioned in the Tadic trial by various witnesses

    15 and so he was under some notice that possibly the

    16 Tribunal might try to arrest him, but since he felt that

    17 he was totally innocent there was absolutely nothing of

    18 any evidentiary value against him, he would like to have

    19 his name cleared, so if he had been arrested by a public

    20 indictment, that would have been fine, he would have

    21 come here and defended himself. But for him to give

    22 notice to the Tribunal, "guess what, I heard that my

    23 name was brought up and frankly if you arrest me I will

    24 come voluntarily", would be concession, a concession

    25 that there is something that he has to hide. If he

  22. 1 feels he is totally innocent, he would never make such a

    2 statement, so the Prosecution's counter-factual scenario

    3 is, I think, ill-conceived, even though I appreciate the

    4 generosity of the spirit in which it was given, namely

    5 that our arguments are indeed valid and should be

    6 thought of in that respect.

    7 Secondly, the Prosecution said no harm was done by

    8 the doctor having been arrested at his place of work.

    9 He could have been arrested at home, could have been

    10 arrested on travel. No harm to the doctor; but this is

    11 a Tribunal that deals with human rights. The entire

    12 purpose of these proceedings is to protect the human

    13 rights of people. What about the human rights of

    14 patients at the hospital who were being attended to and

    15 cared for at the very time the doctor was pulled out of

    16 that hospital? How many patients at that hospital

    17 received the wrong anaesthesia because the doctor was in

    18 the middle of the process of prescribing them? He was a

    19 specialist in anaesthesia. Do we not care about their

    20 human rights too? He did not have to be arrested during

    21 the course of work when he is attending sick people. He

    22 is a man of healing. Why did we not accord him the

    23 dignity of waiting until the day was over? That was why

    24 it was very offensive to arrest him at his place of

    25 work. Thank you, your Honour.

  23. 1 JUDGE STEPHEN: Thank you. Now, Mr. D'Amato, you might

    2 deal --

    3 THE INTERPRETER: Microphone, your Honour.

    4 JUDGE STEPHEN: You might deal with the application for

    5 provisional release and, of course, you are aware of the

    6 terms of Rule 65 dealing with this subject.

    7 MR. D'AMATO: Thank you very much, your Honour. Because your

    8 Honour has introduced Rule 65, let me take a moment to

    9 open to it. As your Honour has already indicated, this

    10 Tribunal is willing to look at this question de novo, as

    11 indeed it has a right to do and a responsibility to do

    12 at any time, at any time provisional release could be

    13 granted, so it really does not have to be contingent to

    14 previous submissions, that would be a highly technical

    15 way of looking at it, so let us for the moment put aside

    16 the first half of the argument and look at this as a de

    17 novo matter.

    18 The rules of this Tribunal, which say in Rule B:

    19 "Release may be ordered by a Trial Chamber only in

    20 exceptional circumstances."

    21 I submit with all respect to the judges who

    22 formulated these rules, to all the scholars who looked

    23 at them, with the deepest respect for their learning and

    24 integrity, I submit that the ruling flies in the face of

    25 the International Covenant of Civil and Human Rights

  24. 1 entered into force since 1976. In the International

    2 Covenant of Civil and Human Rights --

    3 JUDGE STEPHEN: I am sorry, I think I should stop you

    4 there. As far as this Trial Chamber is concerned, for

    5 my part anyway, I would regard myself as bound by the

    6 present rules and whatever attack may be made on those

    7 rules is not really in my view for this chamber. I do

    8 not know whether my colleagues agree with me?

    9 MR. D'AMATO: That is fine, your Honour.

    10 JUDGE STEPHEN: I note your submission.

    11 MR. D'AMATO: Let me then simply reserve that point and

    12 proceed. I accept that.

    13 What are the exceptional circumstances, then, that

    14 fit this requirement? First of all is the fact -- is

    15 the doctor's medical condition, partly as a result of

    16 that stroke, which now has changed his physical

    17 condition, and I would like to introduce, on this point

    18 alone, a member of my Defence team who is also a medical

    19 doctor, is also an anaesthesiologist, and is qualified

    20 just to say a few words about the doctor's present

    21 condition which indicates that his continued detention

    22 in the detention centre may be detrimental to his

    23 health, if not his continuing existence as a defendant

    24 in this case. Is it possible that I may ask

    25 Mr. Vucicevic to say a few words on this particular

  25. 1 score?

    2 JUDGE STEPHEN: I see some movement on the part of the

    3 Prosecution.

    4 MR. NIEMANN: Your Honour, this is highly unusual. Is

    5 counsel being called as a witness, because that is the

    6 only basis on which we would agree to this sort of

    7 material being presented before the Chamber. If it is

    8 counsel is being called as a witness, then I regard it

    9 as most inappropriate, your Honour.

    10 JUDGE STEPHEN: I think there are some problems in the

    11 course that you are proposing. I could understand it if

    12 you want some of the gentlemen who are with you to make

    13 submissions, but it sounds to me, and it sounded also to

    14 the Prosecution, as if you are going to call evidence.

    15 There are clear procedures of this Tribunal for joint

    16 medical inspection. Nothing whatever has been done in

    17 that respect as far as the Defence is concerned. The

    18 only medical material we have is an exhibit, I think it

    19 is annex C to the response to your motion, which

    20 includes a certificate by two medical doctors to the

    21 effect that there was no life-threatening situation and

    22 Mr. Kovacevic's appearance in court is medically not

    23 unjustified. We would not hear evidence in this way

    24 without any opportunity given to the Prosecution to have

    25 alternative medical examinations. If you have

  26. 1 co-counsel who wishes to make some submissions on this

    2 aspect, we will certainly hear him.

    3 MR. D'AMATO: Let me say that this came up only yesterday and

    4 so what you have is not current information. I thought

    5 just for the convenience and efficiency of the

    6 proceedings that a doctor might be able to tell that to

    7 you in fewer words than I could, but if you want me to

    8 try I will try my best. I would appreciate if

    9 Mr. Vucicevic could say a few words.

    10 JUDGE STEPHEN: If we hear him, we do not hear him as a

    11 doctor, we hear him as counsel.

    12 MR. D'AMATO: Excellent. I would accept that.

    13 MR. NIEMANN: Your Honours, might I just raise a matter, if

    14 I may? I did not object to certain materials of fact

    15 being raised by Mr. D'Amato in the initial submissions

    16 that he made, because it was sensible that he should be

    17 able to say those things in support of the argument that

    18 he was presenting, but in relation to medical evidence

    19 about the condition of the accused, this is a very

    20 different matter, and it needs to be subjected to

    21 cross-examination and analysis and the Prosecution may

    22 wish to call its own witnesses. All of these issues

    23 arise. If counsel is now going to give facts or medical

    24 opinion about the accused, rather than just plain

    25 submissions, then I must object to those, your Honour,

  27. 1 on that basis. I do not know what is going to happen,

    2 so perhaps I am premature, but in that event, I will

    3 foreshadow the objection I will be making, if

    4 your Honours please.

    5 JUDGE STEPHEN: I think your objection would be well founded

    6 if what was to happen was that medical evidence was to

    7 be given, but I and we are confining what counsel has to

    8 say to submissions, speaking as counsel, but, as

    9 I understand it, he can better express himself than

    10 perhaps Mr. D'Amato can because he is dealing with the

    11 medical aspect. We hear you as counsel, not as a

    12 medical practitioner.

    13 MR. VUCICEVIC: Thank you, judge. May it please the court,

    14 my name is Dusan Vucicevic and I am co-counsel in this

    15 case and I will address the court as a counsel and not

    16 in any other capacity. Indeed, my background might help

    17 me to use the terminology in such a way that would help

    18 inform the court on what additional evidence will be

    19 forthcoming, if the court would that allow.

    20 As far as the new grounds for granting of

    21 provisional release based on being an exceptional

    22 circumstance, we have learned yesterday that perhaps a

    23 new condition has been discovered and we have not got an

    24 opportunity yet to talk to a medical doctor, and new

    25 condition, it could turn out to be a heart condition

  28. 1 which we were informed by the detention facility

    2 authorities necessitates a further invasive

    3 investigation of the heart, which indeed it does carry

    4 some risk of mortality. Being that we are dealing with

    5 the accused who is a medical doctor himself, he

    6 understands the gravity of his situation. He, having

    7 been a model prisoner according to the warden, has for

    8 the first time thrown an irrational tantrum, being faced

    9 by an additional procedure. What basically he has done,

    10 he has to a degree given up a chance to be examined for

    11 evidence to be developed, and this is an extenuating

    12 circumstance which we would like to submit to the

    13 court. If I may propose --

    14 JUDGE STEPHEN: I am sorry, just in clarification, you say

    15 he has given up an opportunity; you mean he refused to

    16 be --

    17 MR. VUCICEVIC: He refused to have any further testing, even

    18 knowing full well that a first symptom of this silent

    19 condition, but which has been discovered by a test,

    20 could be a sudden death, and the only way to diagnose

    21 this condition is for him to submit to a further testing

    22 and without prejudicing the decision of the court and

    23 not getting into medical, but just as background

    24 information, this procedure is called coronary

    25 angiography and such procedure the doctor is refusing to

  29. 1 have. So what we would need is some time to have him

    2 talk to the family, to the doctors of his choice. We

    3 have the utmost confidence in the doctors of this

    4 country. They are, as we know in the States, some of

    5 the finest cardiologists in the world, but for any

    6 doctor to help a patient, we have to have a patient who

    7 is willing to receive that help.

    8 The conditions under which he is confined are

    9 indeed satisfactory to his Defence team. However, the

    10 lingering condition, psychological condition, under

    11 which he has been arrested have led to the change in his

    12 mind, and that is what, in combination, has led him to

    13 give up on his medical treatment. We all together have

    14 a problem, and the only problem is to either bring his

    15 family on an immediate basis here to counsel with him,

    16 his doctors that he prefers to counsel with him. We

    17 would not object to any of the procedure being done

    18 right now, and the doctor is perhaps -- as I have tried

    19 yesterday and we have made again tries to move him to

    20 the point that we all could find out what is going on,

    21 and then upon having angiography, then we can allow the

    22 expert in this field, the field of cardiology, to tell

    23 the court what his chances are and whether the chances

    24 -- indeed he has a bad heart, a large heart, the

    25 functional residual capacity of his heart is greatly

  30. 1 diminished and he knows that, and when the chances of

    2 having operative surgery are indeed of that magnitude,

    3 whether it should be suggested strongly by his family

    4 and the doctors to have it or not to have it.

    5 That is the extenuating circumstance upon which

    6 the other elements which Mr. D'Amato is going to present

    7 shall rest upon. Thank you.

    8 MR. D'AMATO: Thank you. If I may quickly proceed then. We

    9 have a letter, and may I ask, sir, could you give these

    10 copies to the court? It is a letter from Republika

    11 Srpska that I would like to present instanter from the

    12 Prime Minister of Republika Srpska as follows, and let

    13 me read it for the record. This has to do with --

    14 JUDGE STEPHEN: You might wait until the copies have been

    15 distributed. There is a copy for the Prosecution,

    16 presumably?

    17 MR. D'AMATO: Absolutely. There are two letters.

    18 JUDGE STEPHEN: You say there are two letters?

    19 MR. D'AMATO: Yes, I handed him two letters.

    20 JUDGE STEPHEN: We have one.

    21 MR. D'AMATO: He made an error. One of the letters has one

    22 sentence on it, the other one has a full paragraph.

    23 JUDGE STEPHEN: Thank you.

    24 MR. D'AMATO: May I enter this language into the record or is

    25 that not necessary, your Honour?

  31. 1 JUDGE STEPHEN: I think we can accept these as exhibits.

    2 MR. D'AMATO: Excellent.

    3 JUDGE STEPHEN: Would you mark them as such, Mr. Registrar?

    4 Yes, you may proceed.

    5 MR. D'AMATO: The territorial government --

    6 JUDGE JAN: Just a minute. (Pause).

    7 JUDGE STEPHEN: Perhaps before you go any further, you might

    8 just explain to us, the office held by the signatory of

    9 these two letters is?

    10 MR. D'AMATO: Prime Minister of the Republika Srpska.

    11 JUDGE STEPHEN: It says "President".

    12 MR. D'AMATO: Would you explain the difference? It says

    13 "President".

    14 MR. PANTELIC: Your Honour, I am Igor Pantelic, co-counsel.

    15 We have met before many times. Your Honour, I would

    16 like to clarify this letter. Simply it is a linguistic

    17 problem which we have to clarify. Prime Minister of

    18 Republika Srpska has his own Cabinet, his own space

    19 where he is acting, so there is not anything which is

    20 not in accordance with the rules and with the laws in

    21 Republika Srpska. It is just on the Serbian language

    22 formulation which specified about which we are speaking,

    23 so it is the government of Republika Srpska and he has

    24 his Cabinet. If you need further explanations, I am

    25 free to give you.

  32. 1 MR. D'AMATO: We are saying that the word "President" is

    2 being translated here, but it is the equivalent in

    3 English of "Prime Minister", for the purposes of

    4 translation.

    5 JUDGE STEPHEN: What is the translation in English of "Prime

    6 Minister" then, or of "President", rather?

    7 MR. PANTELIC: In Serbian language, "President" of government

    8 is equivalency as in English language "Prime Minister".

    9 JUDGE STEPHEN: What is the English equivalent of

    10 "President" of Republika Srpska?

    11 MR. PANTELIC: President of Republika Srpska.

    12 JUDGE STEPHEN: Yes, thank you.

    13 MR. D'AMATO: These letters are only offered on a preliminary

    14 basis, because we are fully aware that under Rule 65 and

    15 other rules that this Tribunal would need to speak with

    16 a representative of the Republic, would have to work out

    17 conditions et cetera and all of that, documentation

    18 could be forthcoming, but we felt that to show the bona

    19 fides of the government's position, we would present

    20 this letter to you at the present time.

    21 JUDGE JAN: Before you can offer these letters, you have to

    22 make out this is one of the exceptional cases. You are

    23 basing your case for exceptional cases on medical

    24 grounds. You do not still have that certificate from

    25 the doctor to say he is refusing to get himself

  33. 1 examined. It is really for him to show that exceptional

    2 circumstances exist in his favour. As long as that is

    3 sorted out, this discussion really would not be very

    4 relevant.

    5 MR. D'AMATO: What Mr. Vucicevic was trying to say, I believe,

    6 was that under the conditions of the detention centre,

    7 given the way he was arrested and under the conditions

    8 there, he has no confidence, he is a man who is willing

    9 to die, he has lost psychological impetus.

    10 JUDGE JAN: Would that make an exceptional circumstance?

    11 MR. D'AMATO: I think so, because the chance of him dying

    12 before this trial occurs are very high. I think if he

    13 were given medical treatment in his home town, by his

    14 own doctors, with his family, the support and all the

    15 psychological things that go with successful medical

    16 treatment, he could have this treatment.

    17 JUDGE JAN: Unless he is examined, how do we know what sort

    18 of treatment is necessary for him?

    19 MR. D'AMATO: All of that would have to be given, your

    20 Honour. I am not trying to answer those kinds of

    21 questions now, I am only opening the door, if I may.

    22 Any submissions and any evidence that this court

    23 requires and wishes to consider, we will do our best to

    24 comply with that. This is not something that we have to

    25 deal with on the spur of the moment, we want to

  34. 1 introduce and ask you for the kinds of evidence that you

    2 would need and the kinds of supporting documents that

    3 you need.

    4 JUDGE STEPHEN: Am I right in thinking that your client at

    5 the moment refuses to be examined medically? If that

    6 refusal continues, there will be no evidence upon which

    7 you can base your present application.

    8 MR. D'AMATO: What he refuses is an invasive procedure. In

    9 order to --

    10 JUDGE STEPHEN: What we would need would be, and I do not

    11 say that this would in any event be enough, but we would

    12 need medical evidence which establishes some real need

    13 for him to not be treated in the hospitals that are

    14 available here, but to return home, because really that

    15 is what your submission is, that he can only

    16 satisfactorily be treated for what is a life-threatening

    17 condition if he returns to his home and has the

    18 appropriate psychological support. That is in substance

    19 what you are saying.

    20 MR. D'AMATO: In a sense, this is a test of a test. He has

    21 already received the tests that show that he has this

    22 problem.

    23 JUDGE STEPHEN: We have no evidence of that.

    24 MR. D'AMATO: All right. That is why we said it only

    25 happened yesterday. We will have to give you that

  35. 1 evidence.

    2 JUDGE STEPHEN: So really what you would be seeking would be

    3 an adjournment of this application so that you can

    4 produce the appropriate evidence.

    5 MR. D'AMATO: Absolutely. I just wanted to sketch out the

    6 basis for that adjournment. Part of it I have given in

    7 the terms of these letters and the other part of it are

    8 the conditions that I would propose if the doctor were

    9 sent back to Prijedor. First of all, we would propose

    10 that he reports to NATO forces on a daily basis, in

    11 person. Secondly, we would propose that he would have a

    12 curfew, he could not leave his house during evening

    13 hours, you might say 10.00 pm to 6.00 am, or whatever

    14 you wish. Third, we would propose that he wear a

    15 monitoring device, so his physical movements could be

    16 monitored at all times. Fourth, we would propose that

    17 he be limited strictly to a geographic area, for example

    18 50 kilometres radius of Prijedor or whatever the court

    19 wishes to impose, and finally we have a bond guaranteed

    20 by the government of Republika Srpska. So with the

    21 NATO forces present there, with this reporting, we think

    22 you will have every assurance in the world that the

    23 doctor will be available for trial and we would be glad

    24 to amplify on these provisions in the adjourned

    25 procedures that your Honour is suggesting.

  36. 1 JUDGE STEPHEN: How long would you be seeking by way of an

    2 adjournment?

    3 MR. D'AMATO: Perhaps given the fact that this medical

    4 condition occurred only yesterday, these first tests, we

    5 would try to do it as expeditiously as possible, and

    6 leave it to your Honour's discretion perhaps to give us

    7 a reasonable time or perhaps to come back to you with a

    8 progress report or something of that nature. I think

    9 under the circumstances these things cannot be fitted

    10 into rigid legal categories but have to be dealt with

    11 more in a discretionary fashion. I do not have any

    12 proposal. Do you think there is a particular time

    13 period you would like to ask? We could perhaps begin --

    14 suggestion of a two week adjournment, with a possibility

    15 of having to supplement that. Thank you very much.

    16 JUDGE STEPHEN: Mr. Niemann?

    17 MR. NIEMANN: Your Honours, we have no objection to an

    18 adjournment, because we are as anxious to find out about

    19 this medical condition as no doubt the Defence are. We

    20 raise no objection to that. I think I would reserve

    21 submissions on the other matters until such time as we

    22 hear the medical condition and the argument as it is

    23 fully ventilated, once we have that evidence. If the

    24 Defence need more than two weeks then we do not have any

    25 objection to that either, if it takes longer. I think

  37. 1 the best thing to do is to find out what the medical

    2 condition is and we are anxious to ascertain whether he

    3 is going to be fit for trial.

    4 JUDGE STEPHEN: But it is not really satisfactory, is it,

    5 simply to adjourn for, say, two weeks and during that

    6 time to have the Defence and only the Defence get some

    7 medical examination of the accused. I would have

    8 thought that the Prosecution would also want to take

    9 part in that examination or to conduct an examination

    10 itself.

    11 MR. NIEMANN: That is quite right, your Honour. Yes.

    12 JUDGE STEPHEN: Is there any need for arrangements to that

    13 effect?

    14 MR. NIEMANN: In fact, we may seek an order that either we

    15 proceed by way of joint medical examination or

    16 alternatively, if the Defence wish to have their own

    17 medical examination separate from the Prosecution, that

    18 the accused submit himself to Prosecution examination,

    19 but I would hope, your Honour, that a joint medical

    20 examination could be a matter agreed upon, even if it

    21 means that the Defence have their doctor and we have

    22 ours.

    23 JUDGE STEPHEN: Mr. D'Amato?

    24 MR. D'AMATO: We appreciate the co-operation that we have

    25 received from the Prosecutor's Office all along and we

  38. 1 believe this matter can be handled in a spirit of

    2 co-operation for the best results for the court and for

    3 the defendant and would be delighted to work out

    4 anything that you wish along those lines.

    5 JUDGE STEPHEN: One thing, Mr. Niemann, that I think the

    6 bench would be assisted in, and that is the two letters

    7 that have been submitted.

    8 MR. NIEMANN: Yes, your Honour.

    9 JUDGE STEPHEN: They come from the government of the

    10 territory that you understand the accused would be

    11 returning to?

    12 MR. NIEMANN: Yes, your Honour. Whether they come from a

    13 person authorised to commit the government or not is

    14 something I cannot comment upon at this stage, your

    15 Honour. It is certainly something that we will be

    16 pursuing, but on its face, it would appear to come from

    17 the government where the accused -- the government of

    18 the territory where the accused would be returning to,

    19 if he was to be given provisional release, your Honour.

    20 I might just perhaps -- one of the matters that

    21 occurred to me is that there has been a suggestion of

    22 reporting to NATO. The forces of NATO there, we would

    23 certainly have to consult them to see their attitude to

    24 this approach, so we would be arguing, your Honour, that

    25 their views on the matter would be relevant matters for

  39. 1 consideration by the Tribunal, if your Honours were

    2 disposed to this course.

    3 JUDGE STEPHEN: Monitoring devices, they are available?

    4 MR. NIEMANN: We would need to investigate that as well, your

    5 Honour. I say all this, your Honour, but wish to

    6 emphasise that we are opposed to and will object to

    7 provisional release, but if your Honours were disposed

    8 to grant it, we would say that these matters are

    9 appropriate for consideration by the Chamber in any

    10 consideration of the matter which you may have.

    11 JUDGE STEPHEN: Will you be formally seeking an order of

    12 this Chamber at the time, if we do adjourn, for a joint

    13 medical examination?

    14 MR. NIEMANN: Yes, your Honour.

    15 JUDGE STEPHEN: After discussion with the Defence.

    16 MR. NIEMANN: Yes, your Honour. Perhaps I might have a

    17 discussion with Mr. D'Amato at some stage and get back

    18 before today's proceedings are concluded?

    19 JUDGE STEPHEN: I just wonder if it would be useful if we

    20 adjourn now for a quarter of an hour, for instance, to

    21 allow the two of you to discuss this and see what sort

    22 of procedure for a medical examination, assuming that

    23 the accused will submit himself to it, can be worked

    24 out.

    25 MR. NIEMANN: By all means, your Honour. That would be very

  40. 1 convenient.

    2 JUDGE STEPHEN: Mr. D'Amato?

    3 MR. D'AMATO: Thank you very much. May I say one word? With

    4 respect to the NATO forces, with respect to the

    5 monitoring devices, we are only making suggestions. We

    6 are not insisting he has to report to NATO forces. We

    7 are just making the most precautionary suggestions, but

    8 those are up to the court to work out.

    9 JUDGE STEPHEN: We will adjourn now. If in a quarter of an

    10 hour you have not been able to agree to a procedure, let

    11 us know and we will give you more time.

    12 MR. D'AMATO: Thank you very much.

    13 JUDGE STEPHEN: It might not be a bad idea to overcome any

    14 question of needing a Status Conference if at the same

    15 time you could discuss, Mr. Niemann, the question of

    16 amendment of the indictment so that we can wrap up the

    17 whole thing when we return.

    18 MR. NIEMANN: By all means, your Honour.

    19 JUDGE STEPHEN: Very well. We will adjourn now until

    20 11.30.

    21 (11.15 am)

    22 (A short break)

    23 (11.30 am)

    24 JUDGE STEPHEN: Well gentlemen, what has been the outcome of

    25 the adjournment?

  41. 1 MR. NIEMANN: Your Honours, we have agreed that we will have

    2 an arrangement whereby either we jointly agree upon a

    3 psychiatrist and a cardiologist, and in the event of

    4 non-agreement that each party will appoint their own

    5 psychiatrist or cardiologist, as the case may be. We

    6 have discussed this with the Registrar and we, in

    7 conformity with the requirements of the Registrar, the

    8 Defence at their first given opportunity prepare,

    9 I understand, some questions which will be handed over

    10 to the Registrar so as to comply with their

    11 requirements. I do not know whether Mr. D'Amato --

    12 MR. D'AMATO: That is fine, thank you.

    13 MR. NIEMANN: Your Honour, with respect to the second

    14 question, we have not been able to be quite so

    15 successful in agreement. The position is, your Honours,

    16 that the Prosecution will seek to amend the indictment,

    17 and I can just outline briefly, there are two aspects to

    18 the indictment. There is an aspect which we would say

    19 is more formal in its nature, formality in its nature,

    20 it relates to lesser offences than the offence which has

    21 been charged, but there is a possibility of inclusion of

    22 a more substantive charge which would need to be

    23 supported by additional materials. We are in a position

    24 to proceed to deal with that relatively quickly, and we

    25 can do that. The difficulty that has been outlined by

  42. 1 the Defence is that they wish an opportunity to present

    2 argument, I understand, to the confirming judge, if

    3 I understand their position correctly. We cannot see

    4 that as being available under the Rules.

    5 For our part, we are prepared not to seek to have

    6 the current indictment on which we are proceeding

    7 dismissed until such time as the Defence are given an

    8 opportunity to litigate the issue before the Trial

    9 Chamber, so in effect the position the Prosecution is

    10 prepared to proceed upon is that there will in effect be

    11 two indictments, the old indictment and what is in

    12 effect a new indictment, and that matter can come before

    13 the Trial Chamber and be litigated. That is the

    14 position the Prosecution is prepared to take in order to

    15 afford the Defence an opportunity to litigate this

    16 matter. We are not prepared to concede, and we do not

    17 concede it because of the Rules, the right of the

    18 Defence to appear before the confirming judge and to

    19 present argument at that juncture.

    20 JUDGE STEPHEN: Do I understand the Rules correctly then;

    21 until the trial begins, it is for the confirming judge

    22 to deal with any motion for amendment and that, in the

    23 terms of the Rules, seems to be an ex parte application

    24 by the Prosecutor.

    25 MR. NIEMANN: That is right, your Honour. The basis upon

  43. 1 which I say that we will not seek to dismiss the old

    2 indictment is that, of course, the Trial Chamber has the

    3 authority to say that it will not proceed on the new

    4 indictment, that it will only proceed on the old

    5 indictment, and that is the basis upon which we are

    6 prepared to afford them an opportunity to debate the

    7 issue should they wish to, after the confirmation of the

    8 new indictment. It is merely just a procedure so that

    9 they are not precluded from presenting argument should

    10 they wish to, but further than that we cannot go,

    11 because we say the rules do not contemplate a hearing

    12 before the confirming judge by the Defence.

    13 JUDGE STEPHEN: Yes. I think, Mr. D'Amato, that your

    14 attitude is that the Rules should do that, that was

    15 rather the gist of your motion to clarify. The fact is

    16 that the Rules at the moment do not afford you an

    17 opportunity on any amendment until the beginning of the

    18 actual trial. Amendments after that stage, of course,

    19 are matters upon which you would have an opportunity to

    20 speak.

    21 MR. D'AMATO: I would like the court to rule, however, on the

    22 issue which has now come up for the first time, that the

    23 Prosecution seeks to amend this indictment by

    24 proceedings ex parte before Judge Odio Benito. If you

    25 want to make that ruling, I believe I would be then

  44. 1 entitled to an interlocutory appeal on the question of

    2 whether that would be a sound ruling. Let me just for

    3 the record state two reasons why I believe that we ought

    4 to appear before Judge Odio Benito. After all, the

    5 arrest has now been -- has happened, the accused is in

    6 custody, and we are his attorneys, and it seems to me

    7 outrageously unfair for me to be prevented from

    8 appearing to defend my client's interest at any judicial

    9 stage in this matter, whether it is before Judge Odio

    10 Benito or anyone else. Ex parte hearings are utterly

    11 violative of my client's right to defend himself and

    12 therefore for that reason, no matter what the Rules say,

    13 this court cannot countenance a violation of my client's

    14 human rights to have his lawyers present at every

    15 relevant stage of the proceeding.

    16 Number two: in terms of judicial economy, why

    17 should Judge Odio Benito have to undergo great

    18 consideration on every aspect of the changes that the

    19 Prosecution may want in the indictment, only to have

    20 this court later rule on the validity of whether that

    21 proceeding should occur. It seems to me that in terms

    22 of judicial economy, Judge Odio Benito should be given a

    23 first chance to hear our arguments based on that ground

    24 and therefore -- and then set up a reviewable procedure,

    25 otherwise we have potential of a great deal of loss of

  45. 1 time and energy, and that is a separate matter from the,

    2 I think, unconscionable ex parte aspect that is being

    3 here.

    4 I think this Tribunal has enough power, your

    5 Honour, to say that your interpretation of the Rules is

    6 that the trial has, so to speak, already begun once the

    7 accused is in detention. This is serious now. It is

    8 not as if he is at large and somebody is trying to amend

    9 an indictment before he has even heard about it. We are

    10 in the process of the trial here, even though these are

    11 technically called "preliminary matters". Therefore

    12 I think your interpretation of the Rules ought to afford

    13 us an opportunity to appear and contest any changes,

    14 especially the addition of new charges to this

    15 complaint, for all the substantive reasons that I would

    16 then go into at the appropriate time. (Pause).

    17 JUDGE STEPHEN: Well, we hear your submission, and I think

    18 in view of the views of my brother Judges it would be

    19 desirable to make no ruling here and now on what you

    20 say. That presents no real difficulty in view of the

    21 fact that we will be meeting again on the adjournment.

    22 As far as the date for the adjournment is concerned,

    23 Ms. Featherstone has pointed out that a fortnight's

    24 adjournment would be unsuitable, it would bring us to a

    25 day which is a dies non as far as this Tribunal is

  46. 1 concerned, and it should be a three weeks' adjournment.

    2 If that is satisfactory to the parties, that will be

    3 Friday 31st . We will then deal with the matter you

    4 have raised. I do not know whether there is agreement

    5 as to the place of examination. Is there any problem

    6 about that? There is a hospital, I gather, in the

    7 prison.

    8 MR. NIEMANN: There are facilities there, but I think this is

    9 a matter that surely can be resolved. If Mr. Kovacevic

    10 has to be taken to a hospital which has better

    11 facilities, I could not see that being a problem.

    12 JUDGE STEPHEN: That can be done easily enough, can it?

    13 MR. NIEMANN: As I understand it.

    14 MR. D'AMATO: Your Honour, I would add to that the fact that

    15 the Prosecution and the Defence are of one mind here,

    16 that the first thing to do is to serve the human needs

    17 of the client and to preserve his life and to preserve

    18 his health. That comes before any question of whether

    19 he is to be provisionally released or anything else.

    20 I think there is no difference of opinion whatsoever, we

    21 will in good spirit resolve all of these questions.

    22 MR. NIEMANN: I can confirm that, your Honour.

    23 JUDGE STEPHEN: There is one procedural matter that perhaps

    24 we should draw to the attention of the Defence and that

    25 is that there was a grant of extension of time to file a

  47. 1 motion challenging jurisdiction, and Ms. Featherstone,

    2 who keeps a close eye on these things, tells me that

    3 today is the last day for that. We felt that we should

    4 at least draw that to your attention so that it does not

    5 slip by.

    6 MR. D'AMATO: Thank you, your Honour. I can say with all

    7 humility that I worked on that motion and it seemed to

    8 me, after doing the work, that it was unnecessary, that

    9 the Tadic judgement, that the rules I think would satisfy

    10 any doubts in my mind and therefore there would be no

    11 point in adding to the Tribunal's workload or wasting

    12 any time on the motion so with all respect, I retire

    13 that motion, but I appreciate your decision giving me

    14 the extension of time.

    15 JUDGE STEPHEN: I think your decision was well taken. There

    16 is one matter that I would like to address both to you

    17 and also to Dr Kovacevic.

    18 Doctor, would you stand up? Doctor, you must

    19 understand that this motion now is based very

    20 substantially on your medical condition. To date, as

    21 I understand it, you have taken some objection to

    22 medical examination. If you wish this motion to proceed

    23 and to have some prospects of success, it is essential

    24 that you should be prepared to subject yourself to

    25 expert medical examination here. I just wanted to make

  48. 1 that quite clear to you. Do you understand that?

    2 MR. KOVACEVIC: Yes, I did understand that.

    3 JUDGE STEPHEN: Thank you. If there is nothing further at

    4 this stage, we may, I take it, adjourn until the 31st of

    5 this month.

    6 MR. NIEMANN: I have nothing further, your Honour.

    7 MR. D'AMATO: Thank you very much.

    8 JUDGE STEPHEN: The Chamber will now adjourn.

    9 (11.55 am)

    10 (Hearing adjourned until 10.00 am

    11 on Friday, 31st October 1997)