1 Tuesday, 18 May 2010
2 [Status Conference]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 9.29 a.m.
6 JUDGE LIU: Good morning, ladies and gentlemen.
7 Madam Registrar, would you please call the case, please.
8 THE REGISTRAR: Good morning, Your Honour.
9 Case number IT-05-87-A, the Prosecutor versus Sainovic et al.
10 JUDGE LIU: Thank you very much.
11 May I now please have the appearances of the parties. The
12 Prosecution first.
13 MS. GOY: Good morning, Your Honour. Barbara Goy, appearing on
14 behalf of the Prosecution, together with Laurel Baig and our Case
15 Manager, Colin Nawrot.
16 JUDGE LIU: Thank you very much.
17 And now Defence counsel, please.
18 MR. FILA: [Interpretation] Good morning, Your Honour. Toma Fila,
19 accompanied by Mr. Petrovic on behalf of Nikola Sainovic.
20 JUDGE LIU: Yes.
21 MR. VISNJIC: Good morning, Your Honours.
22 Tomislav Visnjic for General Ojdanic, together with
23 Russell Hopkins.
24 MR. ALEKSIC: Good morning, Your Honours. Aleksandar Aleksic,
25 co-counsel for General Pavkovic.
1 MR. BAKRAC: Good morning, Your Honours, and good morning to
2 everyone else in the courtroom. On behalf of General Lazarevic,
3 Mihajlo Bakrac.
4 MR. LUKIC: Good morning, Your Honour, [Overlapping speakers]
5 can't see each other, Branko Lukic with Dragan Ivetic for
6 General Sreten Lukic.
7 JUDGE LIU: Thank you. Is it possible for you to move a little
8 bit around this side, because I can't see you clearly. Yes, thank you,
9 thank you very much.
10 Well, before we start, I would like to ask the parties whether
11 they could hear the proceedings in a language they understand.
12 Mr. Sainovic, can you hear the proceedings in a language that you
14 THE APPELLANT SAINOVIC: [Interpretation] Yes, Your Honour.
15 JUDGE LIU: Thank you very much.
16 Mr. Ojdanic, can you hear the proceedings in a language you
18 THE APPELLANT OJDANIC: [Interpretation] Yes, Your Honour.
19 JUDGE LIU: Thank you.
20 Mr. Pavkovic?
21 THE APPELLANT PAVKOVIC: [Interpretation] Yes.
22 JUDGE LIU: Thank you very much.
23 Mr. Lazarevic?
24 THE APPELLANT LAZAREVIC: [Interpretation] Yes, I can.
25 JUDGE LIU: Thank you. Mr. Lukic?
1 THE APPELLANT LUKIC: [Interpretation] Yes, I can, Your Honour.
2 JUDGE LIU: Thank you very much. You may sit down.
3 If there's any problems that you cannot follow the proceedings in
4 a language you could understand, please at any time let me know about it.
5 Thank you.
6 This Status Conference is called in accordance with Rule 65 bis
7 of the Rules of Procedure and Evidence of the Tribunal, which requires a
8 Status Conference to convene every 120 days during the appeals
9 proceedings to allow any person in custody pending appeal the opportunity
10 to raise issues in relation thereto, including the mental and the
11 physical condition of that person. In the present case, the last Status
12 Conference was held on the 18th January 2010. Today's Status Conference
13 was scheduled by the order issued on the 12th April 2010.
14 First, I would like to inquire into the status of the detention
15 conditions and the health situation of Mr. Sainovic, Mr. Ojdanic,
16 Mr. Pavkovic, Mr. Lazarevic, and Mr. Lukic. If you have any concern in
17 relation to the detention condition or your state of health that cannot
18 be resolved through the standard procedures, I would invite you to raise
19 them now. If you wish, this discussion can take place in private
21 Would any of you like to raise anything?
22 Yes, yes, Mr. Lazarevic.
23 THE APPELLANT LAZAREVIC: [Interpretation] Mr. President, I would
24 like to express my gratitude for allowing me, on this occasion as well,
25 to address you and to inform you of my current health situation.
1 In Serbia
2 stone twice. I'm fully familiar with this saying, and I'm also aware of
3 the fact that by taking the floor, I'm classifying myself into that
4 category of people. However, I would like to explain to you my reasons
5 for this naive behaviour of mine and my reasons for addressing you now.
6 Mr. President, during our last Status Conference I informed you,
7 in great detail, of the problems that I have, first of all, in informing
8 the Appeals Chamber and the Registry of my health concerns via the
9 Detention Unit doctor, who calls himself the case manager of my health.
10 I will now not repeat what I said to you earlier, but in order for you to
11 fully understand what I want to tell you today, and also for the sake of
12 truth and justice, that these problems concern inaccurate,
13 unprofessional, unethical, and ultimately ill-intentional informing,
14 without any evidence, with changes in medical findings, which all led to
15 the Appeals Chamber being misinformed; not just the Appeals Chamber, but
16 everybody else who has an interest in my health, even though after the
17 last Status Conference, owing to what you did, to what the Registry did,
18 and what the Detention Unit did, they allowed me to have a greater number
19 of exams with medical specialists. However, the problem lies in the fact
20 that I never received findings for any of those exams I had with the
21 specialists, nor did they subject me to adequate treatment following
22 those examinations, not to mention that I did not receive findings in any
23 of the languages, be it Dutch, English, let alone Serbian, even though
24 the Registrar, in January of this year, issued an order that I should be
25 given medical findings after each examination in the Serbian language.
1 Part of those, quote/unquote, "specialist exams" was conducted on
2 the basis of a conversation that a Detention Unit doctor had with some
3 specialists, without those specialists even taking a look at me, which is
4 a complete nonsense. You received some of those reports and findings.
5 And as I can see in a document issued by the Appeals Chamber on the 29th
6 of April, where they rejected some motions submitted by my Defence - this
7 is Exhibit 5DH6 - the Appeals Chamber accepted such reports of this
8 health manager of mine as credible ones, disregarding the submissions
9 made by my Defence, which would be considered as credible by any court in
10 the world, which cannot be challenged unless additional medical
11 examinations are undertaken. These are such documents and reports
12 as scans, CAT
13 What has deeply disappointed me, Your Honour, is in that decision
14 of the Appeals Chamber, they quote the OTP, which uses the expression,
15 and I will quote it, that I exaggerate my own health problems and that
16 those problems did not affect the trial.
17 I feel very uncomfortable in saying this, Your Honour, but I
18 believe that this is not proper for such an institution to raise such
19 ungrounded arguments. I will not further comment on them, but will
20 simply remind you that in final arguments during our trial, I was at the
21 hospital and not in the courtroom. I was in a coma for 14 days, owing to
22 an error made by doctors. I was fighting for my life and not for a just
23 sentence in the case against me.
24 Bearing in mind that this is the situation and that none of the
25 relevant authorities in this, if I may call it, clinical proceedings
1 acted accordingly, I had to address, on the 23rd of March, the head of
2 the Detention Unit, in accordance with your instructions and instructions
3 of the Registrar. I, unfortunately, also addressed you, not via my
4 counsel, because he wasn't available, but via the Registrar of this
5 Tribunal, who was kind enough to inform you of that. In that report, I
6 once again, in seven pages, explained the problems surrounding the
7 continuation of my treatment, which ultimately puts at risk my
8 fundamental rights to have a proper treatment.
9 I don't want to repeat this again, so as not to use up a lot of
10 your time, but I simply wish to tell you and everybody else here that
11 once again, unambiguously, beyond any reasonable doubt, I explained to
12 all relevant persons that it is not the case of me exaggerating my health
13 problems, which is a cynical and inhuman argument used by the Prosecution
14 in their submission which I have mentioned.
15 Perhaps it is a bit inappropriate, but since I am somebody who
16 fights for his own health, under very difficult conditions, and
17 ultimately I'm fighting for my own life, I cannot but remind both the
18 Prosecution and the Appeals Chamber that last year, in the course of
19 eight months, I had five surgeries and 17 to 19 different diagnoses. It
20 would be sufficient to just look at all the reports at the Tribunal to
21 realise that there is no other detainee who has health problems of this
22 magnitude. I, personally, would not wish upon my worst enemy to undergo
23 a surgery of tumours, internal organs, bones, or the like, and I hope you
24 will understand this in proper light.
25 My submission dated the 29th of March was not addressed to the
1 President of the Tribunal, Honourable Mr. Robinson; rather, the Registrar
2 informed him of that because it had to do with the violation of my
3 fundamental rights under the Rules of the Tribunal. With gratitude, I
4 would like to reiterate that both the Registrar and the President of the
5 Tribunal practically immediately, within a day or two, informed me of the
6 measures that they were going to undertake in order to correct this
7 injustice. Mr. Robinson, within a short period of time, perhaps within a
8 month, collected all information, statements, evidence, and made an
9 assessment in accordance with my request and in accordance with the
10 Rules of Procedure. You probably received that statement, so I will not
11 comment upon it further. I would just like to point out two items from
12 that decision.
13 The President of the Tribunal suspended the Detention Unit doctor
14 in my case. You probably won't take it against me if I call him a
15 specialist, somewhat cynically, who sent to you his findings and
16 expertise. The President of the Tribunal gave a list of doctors from
17 which I could personally select a doctor who would treat me in the
18 future, and also ordered that I receive all findings, as a patient, in
19 the Serbian language. I hope that you have this decision, and I don't
20 want to speak of it any further.
21 However, Mr. President, it is beyond any doubt that the
22 President, Mr. Robinson, did not doubt the evidence submitted by me and
23 my Defence, which the Appeals Chamber rejected. He especially did not
24 believe - I'm quoting now - that I was exaggerating my health problems,
25 as the OTP claimed. Even though I regret that the President of this
1 Tribunal had to get involved in the problems surrounding my health, I am
2 grateful to him for everything he did trying to protect my health, and
3 especially since, indirectly, by doing so he defended my honour and
4 helped me demonstrate the truth to you.
5 Your Honours, I hope that the OTP and the Appeals Chamber will at
6 least give some thought to the unethical qualification they used in their
7 submission of the 29th of April, and that they will do so after the
8 decision taken by the President of this Tribunal, and that they will also
9 think about this when again analysing the evidence we submitted in 5DH6.
10 Your Honours, this is the first attempt that was made in the last
11 10 months. The truth has been concealed by various authorities, thus
12 jeopardising my health. As far as I know in the case law, this could be
13 qualified as joint enterprise of everybody who was in this together.
14 By your leave, I also wish to address another matter which is
15 much more complicated and grave.
16 Mr. President, I have spent seven months begging relevant
17 authorities, including yourself in two previous Status Conferences, to
18 undertake specialist examinations, including one by a specialist from
20 to the knee. Based on unprofessional, untrue, and even intentional
21 omissions, not only was I not operated on, I was not even examined by a
22 specialist in vascular surgery. It is practically very difficult to
23 believe that something like that is possible in an institution of this
24 standing, despite all the pleas I sent to the Appeals Chamber. I believe
25 that finally, after you exerted pressure, and also the head of the
1 Detention Unit and the Registry, the doctor at the Detention Unit ensured
2 that I be examined at Bronovo on the 5th of March. The specialist from
3 Bronovo again established, after clinical exam and a sonogram, that I
4 needed surgery, which is the same finding that was given back in August
5 of last year. To my great shock, this "invented disease," under
6 quotation marks, has affected my entire vein from my foot up to the knee,
7 despite the fact that I was very disciplined and used a special stocking
8 for veins which was supposed to prevent further complications caused by
9 thrombosis. According to the medical science, that was the last moment
10 for undertaking a surgery, because thrombosis would spread from one vein
11 to all of the rest and complicate the situation drastically.
12 I know, Mr. President, that what I have to say will not
13 particularly be moving to either the OTP or the Appeals Chamber.
14 However, according to the data presented by the WH -- by the WHO, as soon
15 as the thrombosis spreads from one vein to others, complications ensue
16 which end up in lung emboli with a death rate of 85 per cent. This is
17 something that was discovered back on the 5th of March in Bronovo.
18 Now, what is the current condition of thrombosis, and at what
19 stage are we in this process in the hourglass? Well, nobody knows that.
20 Your Honour, let me tell you this: At long last, there is no
21 dilemma anymore around the fact that irreparable damage was inflicted
22 upon my health condition, with an outcome that cannot be predicted, and
23 somebody is responsible for this, and somebody will have to be dealing
24 with this matter in the forthcoming period. And all these actions taken
25 by relevant authorities has been going on for nine months, and in some of
1 the jurisdictions around the world, this would be qualified as an
2 attempted murder, and a premeditated one at that. I and my family will
3 be happy if this matter -- this ill deed does not, indeed, turn to be the
4 murder of the first degree.
5 Your Honour, on the 6th of May, I learned from my counsel in
7 operation might ensue, but only four to six weeks following one's
8 examination. This sort of procedure is something that I felt to be
9 highly inhumane in my regard and which may lead to unwished-for
10 consequences. For that reason, on that same evening I sent a note to the
11 Detention Unit, the ICTY Registry, and once again erroneously, and I
12 apologise for this to the Trial Chamber, I did it directly, because I did
13 not have the opportunity to go via my counsel. I informed all these
14 interested parties that unless a surgery was to take place by the 12th of
15 May, I would refuse to take food or medication until further notice.
16 Mr. President, my wish is to inform you, in full honesty, of the
17 reasons why I resorted to such desperate measures, and these measures, in
18 fact, amount to an attempted suicide in the face of an attempted murder.
19 The objective of these measures that I took was to show, in this drastic,
20 suicidal way, the gravity of the consequences that would ensue from a
21 belated surgery to demonstrate to all the interested parties that because
22 of the situation, my health condition deteriorated daily, with unbearable
24 I would like to draw your attention to the fact that one of the
25 reasons behind this decision of mine was to show -- to defend my
1 integrity and dignity in the face of this situation and to bring about
2 measures that would alleviate my health condition. I abstained from any
3 food or medication for the period between the 12th and 14th of May of
4 this year. Owing to my conversations with the head of the Detention Unit
5 and the Registry, Mr. Fraser and Mr. Kennedy, and as a result of a letter
6 I received from the Chambers, I received assurances that everyone would
7 do everything in their power to ensure that a surgery would take place as
8 soon as possible and that I would be guaranteed maximum health protection
9 in the period to follow. Particular emphasis was put on the fact that by
10 refusing to take food or medication, I contributed to the deterioration
11 of my health condition and potentially delayed any surgery, because no
12 surgeon would take upon himself the risk of operating on a patient who is
13 in a vulnerable health condition. As a token of gratitude towards all
14 those who invested their efforts towards solving this problem and
15 providing me with assistance in protecting my health, I informed all
16 those concerned that I would be cease these measures on the 14th of May
17 at 7.00 in the morning, in the hope and belief that the urgent measures
18 that were announced concerning my surgery would, indeed, be taken.
19 Mr. President, I wish to thank you, once again, for giving me the
20 floor and for the patience you've shown me. I apologise for being frank
21 and open in discussing all these matters, all these problems. I have
22 already asked you twice to provide me with assistance. I will not do so
23 yet again, in an attempt to avoid tripping over the same stone for the
24 third time. But as a professional judge and in all due respect, by your
25 leave, I will use the words by Bacon, and I quote:
1 "An unjust judgement," and I add to that "decision," "can cause
2 more harm than many unjust steps or decisions."
3 It is up to you, Mr. President, to take the decision.
4 This morning, as my counsel told me in the couple of minutes that
5 we had together, you've already decided and yet again refused to allow me
6 to undergo an urgent surgery in Serbia
7 I can only hope that certain competent bodies in this clinical process
8 that has been going on for 10 months will make sure that a surgery is
9 arranged for me here in Holland
10 fearing again that old Serbian saying which goes, An operation was
11 successful, though the patient died.
12 I thank you for your decision, and I'm sure that the Prosecution
13 has already thanked you for it, since they were the ones to learn of it
14 sooner. I am convinced that in the future, should the decisions taken by
15 the President of the Tribunal be honoured, you will receive reports
16 concerning my health condition which are truthful and fair, and that this
17 will enable you to take decisions more quickly and easily, decisions
18 which do not form part of the trial but are solely within the interests
19 of the accused and his health condition and in keeping with the Rules of
20 the Tribunal.
21 Mr. President, I'm nearing the very end of my address, and if I
22 may be allowed to make two more points.
23 I am now wondering aloud, in front of all of you, of the
24 following: If I, together with my Defence counsel, and the evidence
25 supporting -- the refutable evidence demonstrating the truth of my health
1 condition, if with all of this I was unable to demonstrate the truth over
2 the period of 10 months, what can I expect to follow; i.e., how will the
3 value of the evidence adduced in my trial be regarded and examined?
4 I thank you, and I apologise once more for taking up as much time
5 as I did. That is all I have to say, and if you have any questions, I
6 will gladly take them. Thank you.
7 JUDGE LIU: Thank you very much. You may sit down, please.
8 Thank you very much for letting me know, in a detailed manner,
9 your perspective on your health situation, and there are three points I
10 would like to make after your submission.
11 First, I believe that refusing to take food and medicine is not a
12 proper way to advance your argument before the Appeals Chamber, and it
13 will damage your health. My advise is that you have to follow the orders
14 of the doctor and the warden and take care of your health.
15 Secondly, I would like to remind you of the reasoned decision on
16 the provisional release filed on the 17th May 2010 by the
17 Appeals Chamber. The Appeals Chamber determined that you had failed to
18 demonstrate the existence of the special circumstances. It also
19 considered your medical needs and concluded that the recommended vascular
20 surgery could be administrated in The Hague. Indeed, the Appeals Chamber
21 notes the Registrar's submission of the 6th May 2010, that treatment was
22 available, but was contingent on your consent. I would, therefore,
23 strongly encourage you to co-operate with the UNDU authority and other
24 competent bodies of the Registrar to arrange for the necessary treatment
25 without further delay. If there is still any questions on this issue,
1 you may make an inquiry with the Registrar on this particular issue. And
2 if there is any problems, please let me know.
3 The third issue is that, for the record, I would clarify that the
4 document 5DH6 was rejected as additional evidence on appeal, not as
5 medical materials. I refer to the Appeals Chamber decision of 26th
6 January 2010. Thank you.
7 Are there any submissions from the appellants on their medical
9 Right, it seems to me there are none.
10 Before we turn to any issues that the parties may wish to raise,
11 I would like to recount briefly the recent procedure history of this
13 The Prosecution's and the Defence appeal have now been fully
14 briefed. There are, however, a few outstanding matters with respect to
15 the briefs and other relevant filings that I would like to address. The
16 first issue concerns the Appeal Chamber's decision of the 16th February
17 2010 granting Vlastimir Dautovic access to the confidential transcripts
18 and exhibits from the present case. All parties are ordered to inform
19 the Registrar, by 26th February 2010, whether any documents of the
20 information they had tendered in the course of the proceedings was
21 subject to Rule 70 of the Rules. The Prosecution was the only party to
22 respond by filing its notice of compliance on the 19th of February, 2010
23 The Registrar informed me that several reminders have been sent to the
24 Defence in this regard, to no avail, with the exception that
25 Mr. Ackerman, who had apparently raised this issue with OLAD in
1 connection with the remuneration. While this particular problem lies
2 squarely within the OLAD scope of responsibility, I wish to remind
3 Mr. Pavkovic's counsel that in its decision of the 2nd March 2010, the
4 Appeals Chamber explicitly ordered counsel to comply with this order
5 regarding Dautovic's access, regardless of the outcome of their
6 remuneration disputes with OLAD. Noting the absence of any notice filed
7 by the Defence and the considerable delay already caused to Dautovic's
8 proceedings, I have instructed the Registrar to proceed on the assumption
9 that no Rule 70 material exists, and disclose all the confidential
10 material to the Dautovic Defence team, with the exception of the ex parte
11 material and the findings pertaining to the provisional release and the
12 health-related matters.
13 Second, on 31st March 2010
14 concerning the confidential information contained in Mr. Lazarevic's
15 public submissions, an order was issued instructing him to re-file his
16 final trial and appellant brief, redacting the relevant part. The
17 necessary redaction was made and filed by Mr. Lazarevic's Defence team on
18 6th April 2010
19 re-filing. First, both redacted brief were filed under the same cover in
20 the present appeal case, whereas the redacted final trial brief should
21 have been filed in the Milutinovic and others trial case. Secondly, the
22 Registrar informed the Appeals Chamber that the redactions were performed
23 in a format whereby the redacted confidential information is still
24 visible. Despite the Registrar's reminder sent to Lazarevic's counsel,
25 to the best of my information, neither of the problems have been resolved
1 to date.
2 I, therefore, ordered Lazarevic's counsel to re-file, no later
3 than the 25th May 2010, both the redacted brief in their respective
4 cases, making sure that all the confidential information is
5 comprehensively blacked out.
6 In addition, I note the most recent motion filed by the
7 Prosecution requesting for the redactions from the same filings. I
8 therefore urge Mr. Lazarevic's counsel to consider those arguments and,
9 should he agree with them, redact the relevant information in the
10 re-filed briefs or provide his reasons to the contrary by way of filing a
11 response to the motion.
12 Thirdly, and also in relation to the public redacted version of
13 the briefs, I note the public redacted version of Mr. Lukic's response
14 and reply brief and Mr. Sainovic's reply brief have yet to be filed. I
15 would reiterate that the public versions of Mr. Lazarevic's appeals brief
16 and all subsequent filings have also yet to be filed. I would like to
17 urge all parties to file the outstanding redacted versions of their
18 appeals respondents and reply briefs. In doing so, please ensure that
19 the paragraph numbers in the redacted version of your filing are the same
20 in their respective confidential version.
21 Fourth, since the last Status Conference the Appeals Chamber had
22 rendered a number of decisions and the admission of additional evidence
23 pursuant to Rule 115 of the Rules, granting one of the motions in part.
24 This led to the supplementary briefs on the matter filed in March 2010.
25 The Appeals Chamber will consider the parties' submissions in those
1 briefs when addressing their relevant arguments on the merits of the
2 appeal in the appeals judgement. There are at present no pending motions
3 from the Defence before this Appeals Chamber in this case. The last
4 motion from the Prosecution will be dealt with in due course.
5 Finally, I have been informed that there has been a delay in
6 translating the trial judgement into B/C/S, which is now scheduled to be
7 completed by the second half of this summer.
8 At this point, I would like to ask the parties whether they have
9 any other issues that they would like to raise in this time.
10 First of all, I turn to the Prosecution. Is there any issue that
11 the Prosecution would like to raise?
12 MS. GOY: Thank you, Your Honour.
13 No, we have nothing to raise.
14 JUDGE LIU: Thank you very much.
15 Now I'm turning to the counsel for Mr. Sainovic. Do you have any
16 other issues that you would like to raise at this stage?
17 MR. FILA: [Interpretation] No, Your Honours, except for a minor
19 I did not reply to the Prosecution with respect to accessing
20 material in our case. My position was that since I had nothing against
21 it, I had no reason to reply, and that's why I did not reply.
22 JUDGE LIU: Thank you very much, and your submission will be in
23 the record.
24 Now I'm turning to the counsel for Mr. Ojdanic. Do you have any
25 other issues that you would like to raise at this stage?
1 MR. VISNJIC: [Interpretation] No, Your Honours, we have no
3 JUDGE LIU: Thank you very much.
4 The counsel for Mr. Pavkovic, do you have any other issues you
5 would like to raise at this stage?
6 MR. ALEKSIC: [Interpretation] No, thank you, Your Honours,
7 nothing for the time being.
8 JUDGE LIU: Thank you.
9 Counsel for Mr. Lazarevic?
10 MR. BAKRAC: Thank you, Your Honour. The Defence of
11 Mr. Lazarevic has nothing to add either.
12 JUDGE LIU: Thank you very much.
13 And the counsel for Mr. Lukic?
14 MR. LUKIC: Your Honour, we don't have any issues with you right
16 JUDGE LIU: Thank you very much.
17 Well, I believe that this concludes today's Status Conference. I
18 thank the parties for their attendance, and I adjourn the proceedings.
19 --- Whereupon the Status Conference adjourned
20 at 10.20 a.m.