1. 1 Friday, 16th January 1998

    2 (2.00 pm)

    3 JUDGE MAY: Yes, can the case be called,

    4 please.

    5 THE REGISTRAR: Case number IT-97-24-PT,

    6 Prosecutor versus Milan Kovacevic.

    7 JUDGE MAY: I will have the appearances,

    8 please.

    9 MR. KEEGAN: Good afternoon, your Honours, for

    10 the Prosecution I am Michael Keegan. I am assisted by

    11 my colleagues Ms. Ann Sutherland, Ms. Hildegard

    12 Uertz-Retzlaff and Mr. Morten Bergsmo.

    13 MR. VUCICEVIC: Good afternoon, your Honour.

    14 For the Defence, Dusan Vucicevic, and I am assisted by

    15 my co-counsel, Mr. Igor Pantelic.

    16 JUDGE MAY: The defendant is in court. Can

    17 I make sure that he can hear the proceedings and it is

    18 being translated in a language which he understands.

    19 Dr. Kovacevic, can you understand? You do.

    20 MR. KOVACEVIC: Yes, I do understand.

    21 JUDGE MAY: Mr. Vucicevic, it is your motion

    22 today that we are going to hear.

    23 MR. VUCICEVIC: Yes, your Honour, indeed it is

    24 a Defence motion.

    25 JUDGE MAY: We have the material which you

  2. 1 have sent and you can take it that we read that. Your

    2 last letter indicates that you will not be calling

    3 medical evidence. I do not think that there are any

    4 matters on which we would wish to hear any medical

    5 witnesses, and I do not believe the Prosecution want to

    6 call any medical evidence. Is that the position as you

    7 understand it?

    8 MR. VUCICEVIC: Your Honour, just to comport

    9 with previous orders of the Trial Chamber, it is the

    10 understanding of the Defence that the parties have been

    11 granted only the right to cross-examine the evidence

    12 against them, and to that effect, we understand the

    13 court's decision, and we do not intend to call the

    14 prosecuting witnesses for cross-examination.

    15 JUDGE MAY: Very well. That being so, we

    16 will hear your submissions.

    17 MR. VUCICEVIC: May it please the court, the

    18 Office of the Prosecutor, Defence motion for the

    19 provisional release turns on this Chamber's

    20 pronouncement of law and reconciling of law that the

    21 previous decisions of this Tribunal have addressed. In

    22 Blaskic, Delalic, Delic and Landzo cases. Even though

    23 those interpretations as submitted by the Prosecutor

    24 are very similar, but yet they leave enough room for

    25 this Trial Chamber to reconcile them with the basic

  3. 1 doctrine of the Article 21.3 of the Statute, which is

    2 named "presumption of innocence". There is

    3 ever-present opposition between those two instruments

    4 that govern decisions of this Tribunal, Article 21 and

    5 Rule 65.

    6 With presumption of innocence, the burden for

    7 prolonged confinement with ever-increasing duration of

    8 time shifts on Prosecution to justify such extensive

    9 confinement. While Rule 65, if interpreted literally,

    10 gives unlimited right, unabridged right, unfettered

    11 discretion, for the Prosecutor and the court to keep

    12 the defendant in detention. However, our submission,

    13 supported by the facts will indicate that not only the

    14 exceptional circumstances will turn on the totality of

    15 the medical facts of the defendant Dr. Kovacevic, but

    16 also on the reasonable suspicion or lack thereof from

    17 the day that Dr. Kovacevic was arrested until the very

    18 day that we are in court today.

    19 In the Delalic case, the Trial Chamber

    20 opined:

    21 "The gravity of the offence with which the

    22 person is charged before the International Tribunal is

    23 self-evident."

    24 To hold such a dicta as self-evident

    25 throughout the sessions of this Tribunal, no matter how

  4. 1 long it might be, would be an error. It was such a

    2 blanket endorsement of any decision by the Office of

    3 the Prosecutor, or by any errors of the confirming

    4 judge, would deny presumption of innocence, would deny

    5 due process and would deny justice to somebody who is

    6 innocently accused, or, to let me be more circumspect,

    7 your Honour, to somebody whose indictment does not have

    8 a scintilla of evidence pointing to his personal intent

    9 to aid and abet and further the crime the alleged crime

    10 of which he has been charged.

    11 If we do not change this premise, we will

    12 face a chance to render impossible decisions, and

    13 unjust decisions. Therefore, all our submissions are

    14 intended to help this Trial Chamber to reach a fair and

    15 just decision.

    16 The Delalic case also makes conclusion of law

    17 that burden of proof rests upon the Defence to rebut

    18 the presumption of innocence, or in other words, the

    19 burden of proof in this motion, even on the very

    20 element of the merits of the case, that means a

    21 reasonable suspicion, defendant has right to bring new

    22 evidence to rebut that reasonable suspicion was indeed

    23 reasonable, even though as a matter of law we disagree

    24 with this -- respectfully disagree with this conclusion

    25 of law, but arguendo, with the facts that we are about

  5. 1 to present, even this conclusion of law would suffice

    2 to find, to support the finding of this Trial Chamber

    3 that there was no reasonable suspicion to indict, and

    4 even more, to further hold Dr. Kovacevic in the

    5 detention unit of this Tribunal.

    6 The Prosecutor in his brief is asserting that

    7 the law which this Trial Chamber ought to consider in

    8 deciding upon this motion should be disjointed. On one

    9 hand under 65(A) the Trial Chamber should decide solely

    10 upon the medical evidence. On another hand, like in

    11 the Landzo case, they should consider the length of

    12 detention and reasonableness of the crime committed and

    13 all other elements separately. By their own submission

    14 of law this is incorrect, because the case that they

    15 have cited, Hardy versus United Kingdom, indicates that

    16 all facts must be considered and the plain reading,

    17 which is the guiding light of courts throughout the

    18 world, it is plain reading of the Statute, indicates

    19 that 65(A) says the court has power to decide, and

    20 second, the court has power to find what exceptional

    21 circumstances are.

    22 In such a very complex discretional area,

    23 I respectfully suggest that our proposition of law be

    24 adopted and all the factors be considered, because that

    25 would be the only fair and just means to decide upon

  6. 1 the issues before your Honours.

    2 Your Honours, I would turn and analyse

    3 certain submissions that we have made, the Defence have

    4 made in our brief, against certain submissions that the

    5 Prosecutor has submitted, because of the time

    6 constraints that both parties have been exposed to, the

    7 facts contained in reports that have been filed to the

    8 court on 14th January, only two days ago, could not

    9 have reasonably entered into it. Therefore I will try

    10 to compare and contrast, so that one can supplement my

    11 argument with the facts that have been filed before the

    12 court according to court order schedule.

    13 The first element in the consideration of

    14 this motion is whether there is a reasonable suspicion,

    15 and what reasonable suspicion is has been delineated in

    16 the Delic case. That reasonable suspicion has to be a

    17 finding of the court. In reviewing the file of

    18 Dr. Kovacevic before this Tribunal, there is no one

    19 shred of evidence that points that he had an intent to

    20 commit this crime, and this indeed, a high crime that

    21 he had allegedly committed and that had allegedly

    22 occurred requires an intent, and even more so intent at

    23 the time of armed conflict.

    24 We have noted that at the hearing before, in

    25 our brief we have submitted and put the Prosecutor on

  7. 1 notice that element of intent is missing and what did

    2 the court get in return? The court in return had

    3 gotten the submission, an exhibit to their brief, which

    4 is basically 35, 30 pages or so finding of fact from

    5 Tadic case, the only defendant that has been so far

    6 convicted before this Tribunal. However, that

    7 defendant's charge was not the same charge facing

    8 Dr. Kovacevic. Dr. Kovacevic was not represented in that

    9 case. The finding of fact, most importantly, of the

    10 Trial Chamber in that case does not even once mention

    11 the name "Dr. Kovacevic". How could that be relevant?

    12 This time, your Honours, I move that that exhibit be

    13 stricken as irrelevant.

    14 Looking back at the law pronouncements of

    15 this Tribunal, reasonableness of suspicion and degree

    16 of culpability of the defendant must be weighed at

    17 times of the hearing on the motion for provisional

    18 release, and be considered in such a fashion the high

    19 of the culpability, the higher the burden of proof or

    20 exceptional circumstances. With due respect,

    21 your Honours, without any evidence that Prosecutor has

    22 adduced either before the confirming judge or at any

    23 time later, our burden should be minimum. However,

    24 with the totality of the medical facts, somatic,

    25 cardiac, hypertension, brain damage, functional brain

  8. 1 changes; Dr. Kovacevic and his Defence are ready to meet

    2 even the highest burden.

    3 I cannot leave the area of the reasonable

    4 suspicion so lightly, because it is basically an

    5 element of intent of this crime which the Defence see

    6 first if the Prosecution will have to show that indeed

    7 that Dr. Kovacevic voluntarily joined an enterprise

    8 whose plan was to commit the alleged crimes. Second,

    9 it should be is that he intended to aid and abet and

    10 further these crimes, and the third, finally, that the

    11 alleged crimes had been committed. So far the

    12 Prosecution has failed at every stage before the court

    13 to meet the burden on any of these. While the

    14 Prosecution was confirming hastily this indictment on

    15 March 13th 1997, they would come before Judge Odio

    16 Benito saying that United Nations forces or any other

    17 forces on the ground will have a chance to pick up

    18 these accused, so please confirm it, and they hardly

    19 gave her any evidence and the evidence that was given

    20 was basically the evidence of indictments of the other

    21 persons, and some conclusory statements by Mr. Reid,

    22 which I have cited in my brief. My view that free

    23 speech, that was only elements there exercising,

    24 indicating that Dr. Kovacevic was exercising his right

    25 to free speech. Those statements when translated

  9. 1 properly do not even indicate that that free speech

    2 amounted to incitement to commit the alleged crime of

    3 genocide.

    4 There was another statement that

    5 Dr. Kovacevic, I have put it in my brief, that he was at

    6 a press conference. However, Dr. Kovacevic -- we want

    7 to be candid to this court, because Dr. Kovacevic wants

    8 to be exonerated of these charges and the only way is

    9 to be as candid as possible, because the truth must

    10 prevail.

    11 Dr. Kovacevic, as we submitted, was appointed

    12 by multi-ethnic municipal assembly to the position of

    13 the president of the municipal executive board,

    14 unanimously. He has realised the informal

    15 conversations, an attorney, a classmate of his a few

    16 days later, that his authority will be to make 10 or

    17 15 per cent of decisions and all other decisions are

    18 handed down to them by the state. So his actual

    19 responsibilities were health, elementary education and

    20 communal services.

    21 The doctor was busy in the hospital, and that

    22 is the irrefutable evidence that we are presenting to

    23 you today, your Honours. That evidence of a doctor, a

    24 healer, who puts his hands on all the patients, all the

    25 people to come to him, regardless of the ethnic

  10. 1 background, of the nationality, and there are several

    2 hundreds of those names that are submitted to you

    3 today. That report has been certified by the director,

    4 by the present director of the hospital, therefore we

    5 submit it as a veritable and credible evidence.

    6 Moreover, we are submitting to you the copies

    7 of the operating-room logs from the Prijedor hospital.

    8 What do they show us? They show us the daily work when

    9 Dr. Kovacevic showed up and performed the services that

    10 he knows best, providing anaesthesia for patients

    11 undergoing surgeries. If you would be kind enough to

    12 look at the schedules that we submitted, and somehow we

    13 submitted it and the Registrar copied up, if you look

    14 from the last page up, chronologically, it seems they

    15 have been transposed.

    16 JUDGE MAY: These are the exhibits to your

    17 memorandum?

    18 MR. VUCICEVIC: Yes, your Honour. You may

    19 look, page 1175, S file, indicates the name of Radzin

    20 Marema and Kadziric Basia, I believe, but the first

    21 name I cannot pronounce, or cannot read correctly. On

    22 April 24 1992 -- these are Muslim people. We natives

    23 of Yugoslavia could tell the people by their names.

    24 They were given anaesthesia by Dr. Kovacevic. If you

    25 flip the page, then on 26th April 1992, Begovic

  11. 1 Alijana, last name I cannot read here, but first name

    2 is Ahmet, it is a Muslim name, were given anaesthesia

    3 again by Dr. Kovacevic.

    4 If you look on the next page, your Honours,

    5 this is now in May, I believe that was 1st May,

    6 Dr. Kovacevic again had given anaesthesia to Emina

    7 Kadic, and we can go on and on. On the next page,

    8 Dr. Kovacevic had anaesthetised --

    9 JUDGE MAY: Which page?

    10 MR. VUCICEVIC: The page is 1181.

    11 JUDGE MAY: 1181.

    12 MR. VUCICEVIC: 1181, Dr. Kovacevic.

    13 Your Honours, we have for your perusal circled, because

    14 those pages are -- there are two pages that go to one

    15 page of the protocol, and for purposes of our copying,

    16 we have copied them in this fashion, but on the

    17 right-hand page there would be name of the

    18 anaesthetist, on the left-hand page that would be the

    19 name of the patient. Names of the patients and dates

    20 and the names of the anaesthetist have been encircled.

    21 Each and every page indicates that there was

    22 Dr. Kovacevic present at work and they were one or more

    23 Muslim patients operated on and there was no

    24 discrimination or bigotry of any kind displayed by

    25 Dr. Kovacevic at that time.

  12. 1 Your Honours, this irrebutable evidence goes

    2 a long way to show his intent, whether or not to harm

    3 or to heal, his fellow citizens of Prijedor. The

    4 Prosecutor has failed even to bring any names, any

    5 witnesses who have stated that Dr. Kovacevic has harmed

    6 them, or had spoken in any way to harm them. There is

    7 only one statement as I can remember, your Honour,

    8 supposedly Mr. Nazirovic, a witness in the Tadic case,

    9 was testifying that he overheard Dr. Kovacevic calling

    10 from outside a small radio station and cursing, and

    11 I read those both statements, your Honour, in

    12 Serbo-Croatian and in English, and it is a travesty,

    13 your Honour. There are a lot of swear words in Serbian

    14 and even if he did call, he could not have said those,

    15 because originally they do not make sense, they are

    16 never used, and they are products of fabrications.

    17 When fabrication is original English is being

    18 translated, it just sounds like a fabrication,

    19 something the world media, pandering to the frenzy of

    20 world media. Your Honour, we sincerely intend, with

    21 your high office and with our candour, we will bring

    22 this case finally before justice. There was nothing

    23 else that links this fine doctor and this humanist, to

    24 the alleged crime charged.

    25 But I will move on and on, your Honour,

  13. 1 because after being arrested, the doctor's medical

    2 condition has deteriorated so severely and has

    3 deteriorated gradually. We have received reports from

    4 Dutch doctors that were treating Dr. Kovacevic while he

    5 was in jail and one of the first reports was dated July

    6 18th, 1997, signed by Dr. Haeck, internist, who makes a

    7 finding:

    8 "Dr. Kovacevic's blood pressure has changed

    9 between 170 and 200 and 130 diastolic."

    10 By all standards way too high. Even though

    11 he has examined the doctor, on that day he found, if

    12 you look at page -- there was an exhibit to the

    13 Prosecutor's brief, and page 2, he is reading blood

    14 pressures in supine, meaning the doctor is standing on

    15 the right side and the left side of the arm. The blood

    16 pressures are 190 on 110, 190 on 110 constantly, 190 on

    17 150 on the left side. In lying position they are even

    18 higher. That is after being seven days in the

    19 detention unit, after suffering two strokes, one on

    20 10th July and one on the -- we do not exactly know

    21 whether on 15th or 17th but certainly before this good

    22 doctor examined him and this good doctor made the

    23 finding that indeed that stroke has happened.

    24 Having been exposed to a doctor who should be

    25 practising good medicine, but yet the results are

  14. 1 non-sufficient, inadequate, and the doctor who is

    2 treating him, he is aware of that. When you look at

    3 his conclusion, he said:

    4 "At this moment, hypertensive and

    5 anticoagulant treatment is being optimised."

    6 He is doing the best he could:

    7 "However, his blood pressure is probably also

    8 influenced by the stress of being imprisoned in a

    9 foreign country and being separated from his family."

    10 That statement goes early on, that is

    11 a statement dated July 18th.

    12 JUDGE MAY: Mr. Vucicevic, you can help us,

    13 what is "CVA" and a "TIA"?

    14 MR. VUCICEVIC: Yes, sir. CVA is

    15 "cerebro-vascular accident", a plain old word

    16 "stroke". TIA is "transient iscimic attack". Your

    17 Honour, Dr. Haeck has found that Dr. Kovacevic's heart is

    18 not beating regularly. This irregular beating of the

    19 heart is producing the clotting on the left side of the

    20 heart, and it is showering the brain directly with

    21 these small thrombi. TIA are clinical effects of these

    22 multiple thrombi being showered to his brain. That is

    23 why good Dr. Haeck is prescribing anticoagulant

    24 medications that he has put in his conclusion, and he

    25 has also listed on the medicines that he has treated.

  15. 1 But I have really to commend Dr. Haeck. He

    2 has put on his findings of medication dosages of the

    3 drugs Verapamil, Digitalis, Renitec, Tenormin, Escar,

    4 and there is no dosage of Marcoumar. That is a drug

    5 that is a blood-thinner, that is a drug that could

    6 kill, that is a drug that even now in jail he receives

    7 a test every week to control how thin is his blood. If

    8 too thick, he is going to have a stroke; if too thin,

    9 he will die from bleeding in the brain. It is indeed

    10 serious. But the doctor was not given that

    11 information. Somebody just did not think it was

    12 important.

    13 The next report that Prosecution is

    14 submitting is the report of Dr. Augusta Reviere,

    15 cardiologist, which basically confirms the previous

    16 findings. Again it seems, you know, dosages of the

    17 anticoagulant drug is not known, high blood pressure is

    18 there, it is noted. There is enlargement of his heart,

    19 they are confirming that they are emboli, thrombi that

    20 are going to his brain. This doctor is noting this,

    21 third sentence from the bottom on the page 2 of

    22 Dr. Reviere's report:

    23 "With the above mentioned situation in mind,

    24 the therapy at the moment is well chosen for the

    25 anti-hypertension, but both Verapamil and Tenormin have

  16. 1 a negative ionotropic effect on the left ventricular

    2 wall."

    3 That, your Honours, means we are treating his

    4 blood pressure, but we are making his heart weaker.

    5 Our good doctor Kovacevic is suffering, he cannot

    6 breathe, he is short of breath, he cannot move. He is

    7 feeling that something is not being done right. It has

    8 taken from this report, delivered on July 18th through

    9 25th November for this therapy that was suspected wrong

    10 at that time to be changed, upon assistance of Defence

    11 and several motions to finally obtain cardiac

    12 catheterisation to diagnose doctor had heart attack and

    13 his heart was weak and it could not pump. I am not

    14 suggesting the doctor did it intentionally, I am not

    15 suggesting the doctors do not know, but in the best

    16 hands, omissions do happen, but why do omissions happen

    17 for the person that is in jail?

    18 But what I would like to focus your attention

    19 on, your Honours, is that we do not have a layman. If

    20 there was a layman that never would have been noticed.

    21 Maybe nothing would have been changed, maybe he would

    22 be dead by now, we would not have to be here. But he

    23 had noticed that something is not happening that was

    24 supposed to happen. He was getting weaker, he was

    25 getting more shortness of breath and he has asked his

  17. 1 Defence team to help, and we do thank this Trial

    2 Chamber in hearing our pleas so that all those tests

    3 have been performed. Based on these tests, Dr. Dijkman

    4 on November 25th had changed some therapy, he had added

    5 Digoxin, which is a drug that enhances contractability,

    6 the strength of the muscle. He replaced Isoptin, which

    7 the doctor had from the very beginning, which may have

    8 been making his heart weaker. But what happened? His

    9 blood pressure did not change and the main culprit, the

    10 problem that is driving all his conditions is his blood

    11 pressure that is not being treated.

    12 Blood pressure has ruined his heart,

    13 aortosclerosis has clogged up the arteries of his

    14 heart. Dr. Dijkman, to his own surprise, has found that

    15 right coronary artery is completely occluded. What it

    16 means is that the right side of the heart does not

    17 function, it is a scar, so the heart beats with two

    18 sides and the third side is going the other way. What

    19 Professor Ostojic from Belgrade clearly described in

    20 his report that Dr. Kovacevic's heart contracted, it is

    21 bigger than the heart of a normal person at rest. That

    22 is why he is weak, that is why he cannot exercise.

    23 That is why he is preoccupied with thoughts of death,

    24 because his life expectancy is at best four to five,

    25 but he may die within this year, with incidence of 30

  18. 1 to 40 per cent.

    2 Those are the facts, your Honour, submitted

    3 by Professor Ostojic of Belgrade. Professor Ostojic,

    4 as we submit in his CV, is a well published and well

    5 respected professor of cardiology who has lectured in

    6 all European cities, he has been a visiting professor

    7 of cardiology in the United States.

    8 But let us look now how these ongoing

    9 continuous, unsolvable problems that are making an

    10 invalid of him, have affected his mind, believing while

    11 working in Western Europe, not far from here, in

    12 suburbs of Disolo for five years when he became a

    13 specialist anaesthesiologist, he has learned that

    14 modern effective medicine and caring doctors could

    15 solve the problems of hypertension, but yet his

    16 hypertension has not been treated. He has been made a

    17 mockery of, and I refer you to the facts in the report

    18 of Dr. -- psychiatrist from Texas, Lorraine Sommerfeldt,

    19 where she is stating that while Dr. Kovacevic, while

    20 asking an internist at the detention unit why he has

    21 bleeding on his leg, the doctor said, "you bumped it",

    22 but doctor, knowing that he is of a blood thinner, the

    23 very first bleeding could mean that you are going

    24 overboard, the next bleeding could be the brain, but

    25 response from the doctor in jail was "do not worry, you

  19. 1 will not bump your head, that will not happen". That

    2 is cynicism, and for a man who is in jail, who feels

    3 that he is being medically neglected, mind you,

    4 your Honours, that is his feeling but the outcome of

    5 the treatment is very close to it, that he is being

    6 made a mockery of, has lost faith, has retreated in

    7 himself, has been self-medicating, has developed

    8 depression, fears and ideations, which Dr. Sommerfeldt

    9 called paranoid, because he cannot assist his doctors

    10 in the treatment furthermore, his thinking is

    11 profoundly depressive and we had a good doctor from

    12 London, Dr. Bowden, who has spent three hours with

    13 Dr. Kovacevic and two hours inspecting the prison and

    14 talking to the deputy warden, who basically only made

    15 less than one page and a few sentences in psychiatric

    16 findings, saying "there is nothing wrong with

    17 Dr. Kovacevic".

    18 But what struck me, the very first page, the

    19 very first sentence of that finding, was predicated

    20 upon the incorrect translation, and good Dr. Bowden is

    21 going to go on a steady road and look on the

    22 consequences of Dr. Kovacevic's psychiatric suffering

    23 indicated by stress in the past from which he almost

    24 died, went the other way. Let me just find this,

    25 your Honours, so we can set the record straight on this

  20. 1 point.

    2 On page 7 of Dr. Bowden's report, it says

    3 "past medical history":

    4 "Dr. Kovacevic said that in about 1979 he had

    5 an episode of nephritis."

    6 I will editorialise a little bit. Nephritis

    7 is an infection of the kidneys:

    8 "... which required hospitalisation in

    9 Germany. Routine investigation at that time showed

    10 that he had healed gastritis."

    11 Dr. Kovacevic never had a kidney problem.

    12 Dr. Kovacevic was working in the first six months in

    13 Germany, that was evidenced in Dr. Lorraine

    14 Sommerfeldt's report, and being alone without his

    15 family he developed haemorrhagic bleeding gastritis,

    16 which is inflammation of the stomach, which is a

    17 quintessential symptom of somatisation of a stress

    18 disorder, and he spent a month in the hospital trying

    19 to heal that and the problem got contained when his son

    20 and his wife came and stayed with him.

    21 If Dr. Bowden became aware of such a fact,

    22 perhaps he would have talked when he investigated the

    23 mood, he would not have been so short and curt. His

    24 effect was normal. Dr. Sommerfeldt is finding

    25 different.

  21. 1 But your Honours, let me step back for one

    2 second. It is not my intention to criticise doctors.

    3 It is my intention to help you apply the law to these

    4 very complex facts, and in the Landzo case, the Trial

    5 Chamber found that they do have a power to pick and

    6 choose between the reports, stack the votes, two to

    7 one, two to one you lose. That is a rather simplistic

    8 approach, your Honours, because the law turns on the

    9 facts and expert witnesses testifying in direct

    10 testimony by the order of this court on these facts,

    11 I think it would be very proper for the courts to

    12 compare and contrast these facts.

    13 If Dr. Bowden had had a report of Dr. Elsman

    14 appointed by the Registry, he would not have made this

    15 finding, because Dr. Elsman agreed with Dr. Sommerfeldt.

    16 Dr. Elsman and Dr. Sommerfeldt both say that Dr. Kovacevic

    17 has an acute psychiatric condition which needs to be

    18 treated. However, Dr. Bowden's presentation indicates

    19 that he has received a copy of the indictment which the

    20 other two doctors did not, and not only that, but he

    21 had received the voluminous finding of fact from

    22 Tadic's case, from Mr. Keegan, Prosecutor, which does

    23 not have one word of Dr. Kovacevic. Well, any sensitive

    24 human being, doctor, could easily be prejudiced.

    25 JUDGE MAY: Mr. Vucicevic, I thought you were

  22. 1 not going to attack the doctors. You now seem to be

    2 doing that. I do not know that we are going to be

    3 helped by that. I think too that in fact, so the

    4 record should be straight, that although it is right

    5 that Dr. Elsman came to a conclusion about the medical

    6 condition, he found no psychotic disorder. He did find

    7 a stress disorder. I am looking at the last page of

    8 his report, page 4. He thought that some form of

    9 psychotherapy is indicated, but he came to the

    10 conclusion that the psychiatric condition of the

    11 accused is compatible with his continued detention.

    12 But I suppose your answer to that is we should not say

    13 two to one and therefore we accept the two as against

    14 the one.

    15 MR. VUCICEVIC: Your Honour, I am asking you

    16 to look into the conditions upon which these

    17 examinations have been -- Dr. Bowden has taken three

    18 hours to examine the client, Dr. Sommerfeldt has taken

    19 five and a half hours to examine the client, Dr. Elsman

    20 has taken one hour. So what Dr. Elsman is using very

    21 cautious language, he is not denying there might be the

    22 possibility of suicidal tendencies. Let me just get to

    23 that page, your Honour. Okay, I am here, "the subject

    24 feels very low".

    25 JUDGE MAY: Where are you reading from?

  23. 1 MR. VUCICEVIC: I am reading from page 3.

    2 Then it is 2/1472, that is as filed with the Office of

    3 the Registry.

    4 JUDGE MAY: Yes.

    5 MR. VUCICEVIC: He says:

    6 "The subject feels very low, but there are no

    7 symptoms of depression in the narrower sense. There

    8 are no indications" -- he did not say there are no

    9 suicidal tendencies, he said there are no indications

    10 of suicidal tendencies. But then the next

    11 paragraph says:

    12 "The subject is very tense and tends to

    13 exercise self-control in putting on a brave face."

    14 So the doctor is using cautionary language; if

    15 this patient is not open to me, I am not quite sure

    16 whether he might or not attempt to kill himself. The

    17 doctor, was pressed for time, of course, so you know at

    18 the beginning, trying to get a little more about

    19 background, he is stating Dr. Kovacevic is a member of a

    20 Catholic Orthodox -- he celebrated Catholic Orthodox

    21 Christmas, so I do not know what is context of such a

    22 statement, but sending that to Dr. Kovacevic, who is a

    23 very religious man, could have led to Dr. Kovacevic,

    24 just as Dr. Elsman concluded, to close up and not show

    25 his emotions to him.

  24. 1 On the contrary, statement by Dr. Sommerfeldt

    2 indicates that Dr. Kovacevic was expressing his emotion,

    3 he was tearful. Dr. Sommerfeldt had supported each and

    4 every finding or each and every conclusion by the

    5 question asked in the matters when she evaluated mood,

    6 when she evaluated judgement, when she evaluated

    7 intellectual ability, all those she found to be

    8 decreased, and most importantly, when she was evaluated

    9 whether or not he has any paranoid or suicidal

    10 tendencies, she asked this doctor -- very specific and

    11 very provoking question.

    12 Just here, the evaluation of Dr. Elsman and

    13 Dr. Bowden show that Dr. Kovacevic is a man of higher

    14 intelligence, while not fully opening to Dr. Elsman and

    15 not opening at all to Dr. Bowden, he has poured his

    16 heart to Dr. Sommerfeldt, and he indicated, not

    17 directly, because being so proud, that he is thinking

    18 about death all the time, expressing his views through

    19 philosophy that he is reading now.

    20 Your Honours, in evaluating the facts of

    21 these findings of the psychiatry experts, there is a

    22 common thread. There is a thread of stress,

    23 inappropriate reaction to stress in the past. There is

    24 a medical severe disabling and life-limiting medical

    25 condition which was inadequately treated while in

  25. 1 confinement, without, and I am suggesting this without

    2 one scintilla of the blame, this is to advance the

    3 cause of Dr. Kovacevic's health, which Dr. Kovacevic,

    4 being a very intelligent man, has realised, trying to

    5 correct to no avail, and became depressed, became

    6 unable to communicate and take and follow the orders of

    7 his doctors, as Dr. Sommerfeldt said, "he has not been

    8 taking the pills as he was directed".

    9 We are at the point that he has expressed

    10 ideas of doing away with himself, because he feels

    11 there was no justice, he feels there is no medical

    12 treatment, he feels that his life is only four years to

    13 live and even if he receives the justice, he might

    14 receive ultimately a sentence that this court cannot

    15 impose and that is a death sentence, because there is a

    16 death stalking for him while he is in the detention

    17 unit, and even if he lives throughout those four years,

    18 he might go through trial, we sincerely believe, be

    19 acquitted and die. This is very harsh sentence for the

    20 regulatory purpose of the detention.

    21 Your Honours, we leave his life at your

    22 mercy, but we have to go on and proceed to the next

    23 element, the next requirement upon Rule 65. That

    24 requirement is if released, would Dr. Kovacevic harm any

    25 witnesses? In the other cases decided by the Trial

  26. 1 Chamber of this Tribunal, we are talking about young

    2 men with criminal history, with convictions, with clear

    3 evidence in the indictment they have committed violence

    4 or led military charges or harmed civilians. None of

    5 those elements are present in the history of

    6 Dr. Kovacevic. As a matter of fact, there is evidence,

    7 while the others were maiming and killing, that he was

    8 helping. Than an unsupported conclusion that an

    9 accused could harm a witness is not enough to stand

    10 before the due process of law which he is entitled to

    11 in order to be released. It has to be some

    12 connection.

    13 As a matter of fact, we really have not

    14 received any witness at all, name of any witness that

    15 had accused him, let alone that any witness that lives

    16 in Prijedor area, so there would --

    17 THE INTERPRETER: Could Defence be asked to

    18 slow down, please?

    19 MR. VUCICEVIC: Even if we could let our image

    20 raise a doctor, never be in charge of anything in his

    21 life, could harm anybody, but more importantly

    22 your Honours, the very nature of the crime that he is

    23 charged with requires complicit association, and if the

    24 doctor is here and other alleged co-conspirators are at

    25 large, those witnesses, if there is any fear, would

  27. 1 have to be concerned from others but not the doctor.

    2 Would this Dr. Kovacevic return back to his

    3 trial to have his day in court? He has nothing else in

    4 his life to live for than to clear his good name and

    5 his family name. He has lived his life, as we see in

    6 the reports. An unfair blemish has been placed in him

    7 by off-handedly confirming the indictment. He has not

    8 been given a chance like other indictees to surrender,

    9 which he would have. All what would he need if this

    10 court shows the mercy and let him be treated at home

    11 just to have an Office of the Registry or whoever place

    12 a call and Dr. Kovacevic would come in.

    13 But we have assurances of government of

    14 Dr. Biljana Plavsic, now indeed very co-operative with

    15 the international forces securing peace in Bosnia, that

    16 they are going to assist this honourable court in

    17 implementation of any conditions of the temporary

    18 release that the court may impose.

    19 Some other cases that we mentioned already

    20 have been discussing that there might be neighbouring

    21 countries which do not co-operate with this Tribunal,

    22 but times -- if I may cite former President Roosevelt,

    23 there is nothing worse from fear than fear itself. We

    24 cannot fear in the abstract. He has been stigmatised.

    25 All what he had, worked for, in the words of the

  28. 1 psychiatrist, it was his good name, to what he highly

    2 adheres and for him to run, to run for himself, he

    3 would only run to his own grave where he would place

    4 himself. He has no other way than to place -- than to

    5 go to any future but through your courtroom,

    6 your Honours.

    7 However, objectively there is NATO forces in

    8 Prijedor, there is international police force, there is

    9 a local police and the command of Ms. Plavsic and even

    10 policemen itself of Plavsic government, with the seat

    11 in Banja Luka, which is extremely co-operative now,

    12 which is in that home town. They are all willing to

    13 co-operate and impose orders, implement whatever

    14 conditions, restrictions you would impose.

    15 Dr. Kovacevic is willing and quite happy to stay under

    16 home arrest, to report to any authorities that you may

    17 desire, and come back. Not to leave home town, home

    18 county, not to associate with any persons that

    19 Prosecutor and the court so designs. He needs peace

    20 and quiet and family support to heal his mind and to

    21 control the medical ailments that are making his

    22 condition so grave.

    23 Indeed, your Honours, you do have an example

    24 in his past. He stayed alive after that bout with

    25 Dresden in Germany. Even as a young man, he is too old

  29. 1 now. Your Honours, it is magnetic resonance imaging

    2 that we obtained just a week ago reports that his brain

    3 has been shattered by cerebral-vascular accidents, by

    4 small infarcts, the cortex of his brain is atrophied.

    5 We present to you, your Honours, that whatever the

    6 Professor Kovacevic from Yugoslavia has said in his

    7 statement has been finally confirmed. Many mental

    8 state tests that he has submitted are evidenced by the

    9 picture.

    10 JUDGE MAY: Mr. Vucicevic, I have a note. The

    11 interpreters are having difficulty keeping up with

    12 you. Could you slow down, please?

    13 MR. VUCICEVIC: Thank you, your Honours.

    14 I certainly would. Your Honour, Dr. Kovacevic is indeed

    15 a very sick man, but his sickness is not of a nature

    16 that cannot be remedied. This is not organic psychosis

    17 which is going to go on indefinitely. This is

    18 depression to the reaction to all the entireties of the

    19 conditions and circumstances that he is in. If he is

    20 being given a chance to spend some time, and temporary

    21 time, with his family, he would be eternally grateful,

    22 grateful in order to come back and have his day in

    23 court. This is not -- he wants to get better, to come

    24 back, to have his chance to give his side of the

    25 story. He does not want to languish in prison and

  30. 1 become a vegetable or a victim of his own hand.

    2 Thank you, your Honours. Your Honours,

    3 before I finish, I would like to give the podium over

    4 to my co-counsel Pantelic to expand a little bit on the

    5 letter by Ms. President Plavsic, because he has some

    6 knowledge about that.

    7 JUDGE MAY: Very well. Thank you.

    8 MR. VUCICEVIC: Your Honour, before I leave

    9 the floor, I just have one more exhibit, and the final

    10 one.

    11 JUDGE MAY: Have the Prosecution seen this?

    12 MR. VUCICEVIC: I am just handing it now.

    13 JUDGE MAY: There is a copy for them.

    14 MR. VUCICEVIC: Your Honour, this exhibit is

    15 just a copy of a nurse's notes from detention unit that

    16 we have received just yesterday and those are the daily

    17 entries of Dr. Kovacevic's blood pressure. The nurse

    18 has been so kind and I have for the court brought the

    19 original in in the nurse's handwriting and they

    20 indicate basically from 3rd October until a few days

    21 ago, his blood pressure reading, not a single one has

    22 been within the normal limits, notwithstanding all the

    23 efforts, so if we go back to the conclusion of

    24 Dr. Haeck, Prosecutor's expert witness, that his

    25 condition could not be remedied under the conditions of

  31. 1 the detention. This is fully supported with a detailed

    2 record of Dr. Sommerfeldt from Texas. Your Honour,

    3 respectfully I ask you to grant this temporary and

    4 short provisional release on humanitarian grounds.

    5 JUDGE MAY: Thank you. Mr. Pantelic, what was

    6 it you wanted to add, please?

    7 MR. PANTELIC: Your Honour, it is just a few

    8 minutes explanation about some particular conditions

    9 and situation that we have in the Prijedor area which

    10 might help you having a general approach to this matter

    11 for a possible grant of our request. May I?

    12 JUDGE MAY: Yes, we will hear you,

    13 certainly.

    14 MR. PANTELIC: Your Honours, first of all,

    15 generally we are all agreed upon the main aim of Rule

    16 65 of the Rules of Procedure and Evidence, which is

    17 based on general principles for flow and relevant

    18 international comments as well as on a common

    19 recognised tenderance of human rights. The common

    20 conclusion can be made that in all previous cases

    21 relevant to Trial Chamber in general terms, the

    22 following legal standards are applicable to this

    23 particular case of Dr. Kovacevic can be met before.

    24 They are the following. The object of Rule 65 is to

    25 ensure the presence at the trial of an accused granted

  32. 1 provisional release. Next, there is no general rule as

    2 to what constitutes an exceptional circumstance. Each

    3 application must be determined in the light of its

    4 particular circumstances. Provisional release maybe

    5 ordered only in very rare cases, such as

    6 incompatibility of the health of the accused with any

    7 form of detention. The extreme gravity of the current

    8 medical condition of the accused is not compatible with

    9 any form of detention.

    10 The International Tribunal must interpret its

    11 rules within its own legal framework. The Trial

    12 Chamber does not assume that everyone charged with a

    13 crime under the Statute will --

    14 JUDGE MAY: Can you slow down, please?

    15 MR. PANTELIC: -- if released, present a

    16 danger to victims or witnesses or others.

    17 Your Honours, this was only a brief

    18 presentation of some legal findings in previous

    19 decisions of Trial Chamber of this Tribunal. Allow me

    20 to bring your attention to some specific facts with

    21 regard to present case. First of all, speaking about

    22 exceptional circumstances, both parties more or less

    23 are agreed upon the fact that if the health of an

    24 accused is the basis for a request for provisional

    25 release, all other issues such as reasonable suspicion,

  33. 1 length of detention, et cetera, which my distinguished

    2 colleague Mr. Vucicevic stressed, is not on first, as

    3 I can say, place.

    4 My distinguished colleague Mr. Vucicevic has

    5 brought to your attention all relevant facts related to

    6 the state of health of Dr. Milan Kovacevic. I guess we

    7 can not oppose these factual medical findings that

    8 sharply shows us the level and the state of the health

    9 of Mr. Kovacevic. In order to satisfy Trial Chamber

    10 that Mr. Kovacevic is willing to appear for trial, if

    11 the request for provisional release will be granted,

    12 the Defence has proved by various official documents

    13 and statements that there are no obstacles on the side

    14 of official institutions of Republika Srpska with

    15 regard to the appearance of Mr. Kovacevic before this

    16 Trial Chamber.

    17 Furthermore, let me bring to your attention

    18 some brief explanation regarding one part of the

    19 supporting material of the Prosecutor's response dated

    20 January 14th. The Prosecutor attached to his response

    21 the letter dated January 2nd 1997, signed by the

    22 President of Republika Srpska, Madam Biljana Plavsic,

    23 which is addressed to the Secretary General of the UN,

    24 Mr. Koffi Anan, as well as to Ambassadors of the member

    25 states of the Security Council, explaining the actual

  34. 1 position of Republika Srpska at that time,

    2 particularly January 2nd 1997.

    3 I am absolutely convinced that not only the

    4 Prosecutor but also all in this courtroom are fully

    5 aware that from the very beginning of last year when

    6 this letter was made, many significant changes have

    7 been made in political life of Republika Srpska and

    8 also in position of international community toward

    9 political situation in Bosnia-Herzegovina and notably

    10 toward Republika Srpska. We all very well know that

    11 Madam Plavsic, the President of Republika Srpska, is

    12 fully recognised by the official of international

    13 community and also by the representatives of

    14 international community in Bosnia-Herzegovina as she is

    15 a key factor, key subject and person for fulfilment of

    16 all obligation arising from Dayton peace accord.

    17 In terms of obligation of the institution of

    18 Republika Srpska toward this particular case and

    19 possible assistance of local police forces acting in

    20 Prijedor area, the Defence can assure this Trial

    21 Chamber that all necessary police assistance, in order

    22 to fulfil obligations from this Trial Chamber will be

    23 provided immediately and with undue delay. In support

    24 of this fact, let me remind you that the local police

    25 of Prijedor was very co-operative in recent action

  35. 1 which was initiated by the Office of the Prosecutor in

    2 Prijedor area, Prijedor town, and which was exercised

    3 last month. Local police station -- I mean, this

    4 action was made in order to obtain some documents in

    5 municipality of Prijedor, SDS Party premises, and the

    6 local police offices.

    7 This fact shows us a high level of commitment

    8 of full, relevant political factors of Republika

    9 Srpska, notably in this region, with regard to

    10 co-operation with the Tribunal and the whole process of

    11 implementation of Dayton peace accord. If granted,

    12 this request for provisional release of Dr. Milan

    13 Kovacevic will not prove only the ability of the

    14 Tribunal but will also be a milestone, in my point of

    15 view, in support of persons fully committed to

    16 obligations arising from Dayton peace accord, which

    17 I see in the personality of Madam Plavsic, the

    18 President of Republika Srpska and the executives which

    19 are lawyer to her, including Minister of Police,

    20 Mr. Pavic.

    21 This Tribunal should go forward by supporting

    22 of peace process in Bosnia, and I see this case as a

    23 possible positive effort, if this honourable Trial

    24 Chamber granted our request for provisional release of

    25 Mr. Kovacevic.

  36. 1 Finally, my guess is that by granting this

    2 request for provisional release in this case, the

    3 Tribunal has an unique opportunity to encourage some of

    4 the indicted persons residing in Republika Srpska to

    5 surrender themselves to the Tribunal, because this

    6 possible positive decision of this Trial Chamber in

    7 this case, from my point of view, will have a

    8 tremendous influence on them to do and to act in order

    9 to surrender themselves here and also generally to

    10 justice. Thank you, your Honours.

    11 JUDGE MAY: Thank you. Mr. Keegan, do you

    12 want to add anything? If so, would you have an eye on

    13 the clock? We will be taking a break some time shortly

    14 after 3.30 and if you could conclude your submissions

    15 by then, we would be grateful.

    16 MR. KEEGAN: All right, sir. I will certainly

    17 try. The submissions by the Prosecution, your Honours,

    18 I believe cover the main points that are in issue here

    19 today. Those are, of course, that Rules 64 and 65 of

    20 the Rules of Procedure and Evidence in fact require

    21 detention upon the transfer and surrender of a person

    22 to the Tribunal and that release from that detention

    23 may only be granted if all of the criteria flowing from

    24 Rule 65 will met. The decision in the Delalic case,

    25 which has been followed by the subsequent cases of

  37. 1 Blaskic and Landzo, the decisions there, indicate that

    2 even if the criteria are met, the question of release

    3 is still a discretionary matter for the Trial Chamber;

    4 conversely, that if any one of the criteria is not met,

    5 release cannot be granted.

    6 It is also clear that the criteria of Rule 65

    7 must be established by facts to the satisfaction of the

    8 Trial Chamber; facts, of course, equivalent to

    9 evidence, if you will. I would note today that we have

    10 had a tremendous amount of assertions by counsel. The

    11 only facts or evidence presented are those particular

    12 pages that purport to be medical records from Prijedor

    13 and now this sheet of paper that apparently is a blood

    14 pressure reading record. These submissions of counsel,

    15 of course, are not evidence and should not be

    16 considered in determining whether the criteria are

    17 met. They certainly may be used to explain evidence

    18 and considered as such, but they are certainly not

    19 facts in and of themselves.

    20 JUDGE MAY: Mr. Keegan, you can take it that

    21 we have that point well in mind.

    22 MR. KEEGAN: Thank you, sir. That being the

    23 case, it is only now for the Prosecution to respond to

    24 the facts raised by the Defence, if in fact the Trial

    25 Chamber finds that the Defence through that submission

  38. 1 has reasonably raised the issue, or if I put it into

    2 converse, reasonably raised a doubt about the existence

    3 of a reasonable basis for the detention, as we

    4 indicated in our submission, and I believe that as it

    5 flows directly from the Delalic decision, the question

    6 of whether the Trial Chamber needs to address the issue

    7 of this reasonable cause for detention only exists if

    8 the Defence causes a doubt about that issue; in other

    9 words, if they introduce sufficient evidence that would

    10 cause the Trial Chamber to question the original

    11 confirmation of the indictment, that is the

    12 determination of a reasonable cause, which is the basis

    13 for the original detention.

    14 We do not believe, in our submission, that

    15 this information brought forward by the Defence here

    16 today does raise any reasonable doubt as to the

    17 original determination of a prima facie case against

    18 this accused by a judge of the Tribunal upon

    19 confirmation of the indictment. However, in the event

    20 that this Trial Chamber does find that the submission

    21 of any information requires a response by the

    22 Prosecution, we have prepared some additional exhibits,

    23 because of the fact that despite the assertions of the

    24 Defence counsel, this Trial Chamber, of course, has no

    25 information or evidence regarding the case of the

  39. 1 accused before it at this time. Therefore we have

    2 prepared some exhibits which respond directly to the

    3 issues raised by the Defence by their evidence.

    4 JUDGE MAY: Mr. Keegan, before you submit

    5 those, there is just a matter I want to raise with my

    6 colleagues. (Pause).

    7 JUDGE MAY: Mr. Vucicevic, we need not trouble

    8 you. Mr. Keegan, we are not going to see any more

    9 evidence. We have enough, thank you.

    10 MR. KEEGAN: Thank you, sir. In that

    11 instance, sir, I will move on quickly to the various

    12 issues. We do not believe, as indicated in our

    13 response, that the Defence has met their burden on any

    14 of the criteria, the first being the indication of the

    15 medical condition of the accused as amounting to an

    16 exceptional circumstance. Even if we take the Defence

    17 position as stated, as the accurate assessment of the

    18 state of the accused's health, nothing about the fact

    19 that the accused has a hard condition, nor that he may

    20 be depressed because of his current circumstances,

    21 amounts to an exceptional circumstance. Both those

    22 conditions may be treated either at the detention unit

    23 itself or certainly at a hospital somewhere here in the

    24 Netherlands if necessary, as in fact has been done

    25 already in this case. Nothing about that circumstance

  40. 1 requires a release from detention to effect medical

    2 treatment. That is consistent with the holding, of

    3 course, in the Delic case, which was cited in our

    4 brief.

    5 If in fact we then move on, away from the

    6 medical condition as not amounting to an exceptional

    7 circumstance, the Defence has also now raised, of

    8 course, this issue of doubt of a reasonable basis and

    9 you have the submissions from the parties on that. If

    10 in fact that fails -- in point of fact, there is no

    11 need to go any further, because you have now failed on

    12 one of the criteria and given the jurisprudence of this

    13 Tribunal on Rule 65 that in itself would end the

    14 discussion. As soon as any one of the criteria has

    15 failed to be met by the Defence, we need not discuss

    16 any other issues.

    17 However, I would just like to briefly touch

    18 on the following issues. The question of -- sorry,

    19 I will slow down. The question of whether the accused

    20 is a flight risk. Again, the Defence has presented no

    21 evidence as to that issue. We have submissions by

    22 counsel, we have in fact no evidence. On the contrary,

    23 we do have indications that by virtue of the indictment

    24 in this case, that this accused has been charged with

    25 what is considered by most perhaps a most egregious

  41. 1 crime against humanity, genocide, or complicit in

    2 genocide, to be specific in this case. The nature of

    3 the crimes committed in the course of that conduct

    4 would indicate, and his involvement in such conduct,

    5 would indicate that there is a very direct threat just

    6 based on the serious nature of the charges, there is

    7 the potential for a threat to witnesses. In fact, if

    8 this accused was released and would be gaining

    9 continuing knowledge of the case by virtue of the

    10 disclosure process would put specific individuals at

    11 risk, which may or may not be known to his co-actors.

    12 In addition to the submissions by Defence on

    13 the current state of co-operation from Republika

    14 Srpska, as we noted in our brief, there are still 48

    15 accused, none of which have been turned over or

    16 arrested, and you have the letter from Madam Plavsic

    17 which indicates they find a legal obstacle to any cases

    18 brought at this time, that they are ultra vires of the

    19 authority of this Tribunal. You also have the fact

    20 that the most recent letter submitted by the Defence

    21 says nothing about guarantees for ensuring that this

    22 accused would return for trial. It simply says, "we

    23 understand he is sick, please send him home to his

    24 family".

    25 Moving on to the issue, the final issue,

  42. 1 then, of the effect on witnesses, we think it is clear

    2 also from the prior cases and their analysis of this

    3 issue, the provisional release of the accused under

    4 these circumstances, where there is nothing to justify

    5 such a release, would certainly have a deleterious

    6 effect on the administration of justice in this

    7 Tribunal and in this case in particular.

    8 Thank you, your Honours.

    9 JUDGE MAY: Thank you, Mr. Keegan. Anything

    10 you would like to add, Mr. Vucicevic?

    11 MR. VUCICEVIC: Mr. Keegan's speculation as far

    12 as Dr. Kovacevic's possible intimidation of the

    13 witnesses, it is unfounded. Dr. Kovacevic has never

    14 done anything to intimidate anybody before and in the

    15 case that we submitted in our brief, US versus Gallow,

    16 a co-conspirator in an organised family, crime family,

    17 has been released because the court found that if there

    18 was an intent to harm the witnesses, the accused could

    19 harm witnesses right from the jail where he is, so

    20 combined with the fact that there are alleged

    21 co-conspirators out at large, allowing Dr. Kovacevic to

    22 return temporarily to his home to give a chance to his

    23 treatment to take hold and to bring him back where he

    24 should be to face this trial is quite humanitarian and

    25 statements of the Prosecutor are self-serving and, even

  43. 1 more, to a degree, to justify further holding of the

    2 defendant against whom the evidence does not support

    3 further detention. He is very sick. When the other

    4 detainees go out there in a caged courtyard to play

    5 ball, he cannot do anything. He always stands and

    6 watches. Cannot he flee? This is not supported by the

    7 medical evidence. These are conclusions, self-serving

    8 conclusions.

    9 Mr. Keegan, in commenting on the medical

    10 treatment in our submissions, actually in our

    11 reiterations of the facts, your Honours, every fact

    12 that I brought before you in my statement is contained

    13 in the reports. None of those were submissions, but

    14 yet, the Prosecutor says his condition of heart and his

    15 hypertension could be treated in the local hospitals if

    16 not in the jail. If that is the case, why was not that

    17 done within the last seven months? The Prosecutor is

    18 well within his discretion to help to a proper

    19 treatment, but nothing has been done. Perhaps if

    20 Dr. Kovacevic dies by the act of God with a chance of 30

    21 to 40 per cent, or take his own life as Socrates did,

    22 whose works does he read, the Prosecution would be

    23 relieved, because they will not have to prove the case.

    24 JUDGE MAY: Mr. Vucicevic, I do not think that

    25 is a fair point, frankly.

  44. 1 MR. VUCICEVIC: Your Honour, I do not say that

    2 it is the intent of the Prosecution, your Honour.

    3 I did not say that as the offence to anybody, but it

    4 comes out as a logical conclusion, your Honour, but

    5 reason and logic are the essence of law, sir.

    6 JUDGE MAY: Very well. We will adjourn now.

    7 I am going to make an enquiry about the usual length of

    8 these adjournments. We will consider this case and we

    9 will adjourn for 20 minutes to do so.

    10 (3.30 pm)

    11 (A short break)

    12 (3.50 pm)

    13 JUDGE MAY: Rule 65 provides that release may

    14 be ordered by a Trial Chamber only in exceptional

    15 circumstances, and only if it is satisfied that the

    16 accused will appear for trial, and if released, will

    17 not pose a danger to any victim, witness or other

    18 person. We have considered this motion. We have

    19 considered the evidence and the submissions, both oral

    20 and in writing, and we have come to the conclusion that

    21 we do not find exceptional circumstances in this case,

    22 and accordingly, this motion for provisional release is

    23 refused. We shall give our reasons in writing at a

    24 later date.

    25 That ends the hearing as far as this motion

  45. 1 is concerned, but as I indicated on an earlier

    2 occasion, there are matters about the procedure in this

    3 case which need to be discussed. Accordingly, there

    4 will be a Status Conference, but it will have to take

    5 place, as is normal, in closed session, so we will rise

    6 while that is prepared and then we will have the Status

    7 Conference.

    8 (3.55 pm)

    9 (Hearing adjourned)

















    4pm hearing