Tribunal Criminal Tribunal for the Former Yugoslavia

Page 84

 1                           Tuesday, 18 January 2011

 2                           [Status Conference]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           --- Upon commencing at 2.28 p.m.

 6             JUDGE LIU:  Good afternoon, ladies and gentlemen.

 7             Madam Registrar, would you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honour.  Good afternoon,

 9     everyone in and around the courtroom.

10             This is case IT-05-87-A, the Prosecutor versus

11     Nikola Sainovic et al.

12             JUDGE LIU:  Thank you very much.  May I now please have the

13     appearances, please, for the Prosecution first.

14             MS. NABTI:  Good afternoon, Your Honour.  Appearing today for the

15     Prosecution, my name is Najwa Nabti, together with Laurel Baig and our

16     Case Manager Colin Nawrot.

17             JUDGE LIU:  Thank you very much.

18             Now the Defence counsel, please.

19             MR. FILA: [Interpretation] Good afternoon, Mr. President.  My

20     name is Toma Fila, attorney at law, and I am Defence counsel for

21     Nikola Sainovic.  Thank you.

22             JUDGE LIU:  Thank you.

23             MR. VISNJIC: [Interpretation] Good afternoon, Your Honour.

24     Tomislav Visnjic, Defence counsel for General Ojdanic.

25             JUDGE LIU:  Thank you.

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 1             MR. ALEKSIC:  Good afternoon, Your Honour.  Aleksandar Aleksic

 2     for the Defence of General Pavkovic.

 3             JUDGE LIU:  Thank you.

 4             MR. CEPIC:  Good afternoon, Your Honour.  On behalf of

 5     General Lazarevic Defence team, myself, Djuro Cepic, as Defence counsel.

 6     Thank you.

 7             JUDGE LIU:  Thank you.

 8             MR. IVETIC:  Good afternoon, Your Honour.  Attorney Dan Ivetic

 9     appearing on behalf of Sreten Lukic's Defence team.

10             JUDGE LIU:  Thank you.

11             Before we start, could all the parties hear the proceedings in a

12     language that they could understand?

13             Mr. Sainovic, can you hear the proceedings in a language that you

14     understand?

15             THE APPELLANT SAINOVIC: [Interpretation] Yes.

16             JUDGE LIU:  Thank you.

17             Mr. Ojdanic?

18             THE APPELLANT OJDANIC: [Interpretation] I am hearing you, yes,

19     too.

20             JUDGE LIU:  Thank you.

21             Mr. Pavkovic?

22             THE APPELLANT PAVKOVIC: [Interpretation] Yes.

23             JUDGE LIU:  Thank you.

24             Mr. Lazarevic?

25             THE APPELLANT LAZAREVIC: [Interpretation] Yes.

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 1             JUDGE LIU:  Thank you.

 2             Mr. Lukic?

 3             THE APPELLANT LUKIC: [Interpretation] Yes, Your Honour.

 4             JUDGE LIU:  Thank you very much.

 5             If there's any problem that you could not follow the proceedings,

 6     do please let me know without any hesitation.

 7             This Status Conference is called in accordance with the

 8     Rule 65 bis B of the Rules of Procedure and Evidence of the Tribunal

 9     which requires a Status Conference to be convened every 120 days during

10     the appeal proceedings to allow any person in custody, pending appeal,

11     the opportunity to raise issue in relation hereto, including the mental

12     and the physical condition of that person.

13             In the present case, the last Status Conference was held on the

14     14th September, 2010.  For reasons of effective court management, this

15     Status Conference was scheduled six days after the expiration of the

16     120-day period, following consultations with all the parties.

17             Today's Status Conference was scheduled by the order issued on

18     the 30th November, 2010.  First I would like to inquire into the status

19     of the detention conditions and the health situation of Mr. Sainovic,

20     Mr. Ojdanic, Mr. Pavkovic, Mr. Lazarevic, and Mr. Lukic.  If you have any

21     concern in relation to the detention condition or your state of health

22     that cannot be resolved through the standard procedures, I would invite

23     you to raise them now.  If you wish, this discussion can take place in

24     private session.  Thank you.

25             Yes, please, Mr. Pavkovic.

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 1             THE APPELLANT PAVKOVIC: [Interpretation] Mr. President, in a few

 2     sentences I would like to inform you of my health conditions, since

 3     before the Status Conference that was held on the 14th of September there

 4     were quite a few discussions on this issue.

 5             On the 8th of December, my dental implants were fitted --

 6             JUDGE LIU:  I'm sorry to interrupt you.  As I said, that if you

 7     need the private session, we could have this discussion conducted in the

 8     private session.

 9             THE APPELLANT PAVKOVIC: [Interpretation] No, there is no need for

10     that.

11             JUDGE LIU:  Thank you very much.  You may proceed.

12             THE APPELLANT PAVKOVIC: [Interpretation] I only want to briefly

13     let you know that it was on the 8th of December that the surgery was

14     conducted in the UNDU and both implants were fitted within an hour.  This

15     differed greatly from what I was told by the doctor on the 1st of June

16     that the whole treatment would take six months, that the bone, the jaw

17     bone, would have had to be operated on, et cetera.  But the surgery went

18     fine, and there is only some physical pain that I'm still suffering.

19             I would like to let you know that when you were deciding on my

20     motion for provisional release, you were furnished imprecise and

21     inaccurate information about my health condition.  And I'm letting you

22     know this in order to make sure that such practice does not continue in

23     the future.

24             On the 13th of September, 2010, you received information from our

25     service that it was down to me that the implants had not been fitted by

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 1     then, which would have been the case, simply because I wanted to have the

 2     implants fitted in Serbia.  This is not true, and my lawyers intervened.

 3     And Dr. Pavke [phoen], who is the doctor of the UNDU, said that the

 4     report was inaccurate and that a new report would follow.  But it was

 5     only on the 20th of September that this report was made, and it stated

 6     that nothing had been done in the mean time to have the implants fitted

 7     simply because of the fact that I had filed my motion for provisional

 8     release.  This was not true either, because I filed my motion for

 9     provisional release only on the 18th of November.

10             In a subsequent report sent to you on the 26th of October, it was

11     confirmed that the treatment should have started on the 29th of September

12     but that it had not because I had refused to do so.  Again there was

13     misunderstanding there, because the original report by the implantologist

14     reached you as part of the package of the material underlying the motion

15     for provisional release.

16             I would like to say that it has been the practice so far to send

17     inaccurate reports about my health condition.  I don't know what the case

18     is with others, but I do know that I do not receive reports on the

19     findings of my medical examinations in due time nor do I receive any

20     other relevant material.  What I do receive is written on a simple sheet

21     of paper, which doesn't even have the letter heading of the doctor, and

22     I'm sure this is not the proper way to go about it.

23             As far as my health is concerned, new problems have emerged.

24     According to a decision issued by the UNDU medical service, a dentist

25     would be taking up his new position only in three weeks' time, so there

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 1     is no control.  Dr. Katan [phoen], and she's the lady doctor who was

 2     working on this so far, and she said that the -- the implants or the

 3     dentures should be fitted on the right side of my denture but that she

 4     lacked materials for it and she wasn't aware of when the materials would

 5     arrive.

 6             Now, the second issue, which is much more important to me, has to

 7     do with the judgement that I received in my own language.  Since I have

 8     many problems in communicating with my lawyers on this issue, let me

 9     inform you of the following:  I've reviewed the judgement carefully, and

10     I came to realise that a great many documents that we had adduced as

11     Defence had been imprecisely or inaccurately interpreted and therefore

12     erroneous conclusions were drawn on their basis, or some of these

13     documents that favoured Defence had not been taken into consideration at

14     all.  I've had difficulties with my lawyers in deciding as to how to

15     include these objections that I would like to make in relation to

16     documents into our appeal brief.  Thank you.

17             JUDGE LIU:  Thank you very much.  And I certainly will convey

18     your complaint to the Registry and to see what should be done concerning

19     your state of health.

20             As for the second issue, I believe that later on we still have

21     the opportunity to discuss this matter with your counsel, and I thank you

22     very much to bring your matter of concern to me.

23             Well, is there any other matters that any party would like to

24     bring concerning to his health?

25             Yes, Mr. Lazarevic, you have the floor, please.

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 1             THE APPELLANT LAZAREVIC: [Interpretation] Mr. President, thank

 2     you for giving me, yet again, an opportunity to inform you briefly about

 3     my health in between two Status Conferences.  Under a month and a half

 4     ago I underwent surgery for the seventh time in less than two years.  I

 5     would, if you allow me, be cynical at my own expense and say that I was

 6     operated on because of an illness that I invented or exaggerated or

 7     something of the sort, because this is the sort of qualifications that

 8     were raised when my Defence or I informed you of the state of my health

 9     at Status Conferences.

10             The situation is far more serious.  And, of course, this is not

11     an invented malaise, rather it was a rather urgent and critical ailment

12     of the urinary tract.  As you will recall, for the earlier surgery of the

13     thrombosis of my right leg I resorted to a hunger strike in order to

14     speed up the surgery and avert negative consequences.  Again, doctors

15     from the Royal Bronovo Hospital scheduled the operations to take one

16     after another in the course of two days.  So this was not a new illness

17     that appeared out of the blue, and that's what I'd like to inform you

18     about.

19             This illness was diagnosed back in June of 2009, when I was

20     undergoing a surgery in Serbia by a specialist, a doctor in medical

21     science.  My therapy was laid down, and the diagnosis was translated into

22     English.  The treatment began, but unfortunately I could not remain in

23     Serbia at the time for longer than five days.  I took the necessary

24     medication and reported to the UNDU.  I handed over my diagnosis and

25     medication to the medical staff of the UNDU infirmary.  Unfortunately for

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 1     me, the medication was thrown away, the diagnosis was ignored, and you

 2     and your Chamber were informed in writing by the UNDU doctor that he had

 3     chosen to ignore some of the diagnoses rendered by other doctors.

 4             In the meantime, the illness progressed and reached its final

 5     stage where it compromised the entire urinary tract.  At my written

 6     request addressed to the doctor to be admitted into a hospital, I was

 7     finally hospitalised at the very last moment, when no other remedy could

 8     be resorted to than an operation.

 9             Mr. President, I do not wish at this time to speculate what might

10     have happened had the initially envisaged treatment been undertaken and

11     whether the operation might have been avoided or not.  I do not wish to

12     say that this was the result of anyone's deliberate conduct either.

13     Still, I don't think it's good to turn our eyes away from the bare fact

14     and the truth of the matter which is that what was done and that, i.e.,

15     absence of treatment, in my case, was a departure from medical ethics and

16     discipline, or as the president of the Tribunal President Robinson said,

17     a violation of my human rights.

18             Everybody knows who failed in their duty, and this was a flagrant

19     case of lack of responsibility.  I hope that in other quarters, in proper

20     quarters, a discussion on this issue will be initiated in order to

21     ascertain whose responsibility it ultimately was.  What I would like to

22     make sure in the courtroom is that it be fully clear that whatever I said

23     and whatever my Defence said on my behalf was true, backed by arguments,

24     and borne out to be true by the last two operations.  From what I could

25     tell, you received a report, and I received one too but only just before

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 1     I entered the courtroom, which informed you that the operation had gone

 2     well.  However, the post-operative treatment is a long-lasting one and

 3     not even the doctor who performed the surgery is able to ascertain to

 4     what extent I will be suffering from disability of my urinary tract.

 5             Speaking about this particular issue, Mr. President, please don't

 6     hold it against me what I'm going to say.  I am a detainee who has

 7     undergone the largest number of surgeries and it has become inappropriate

 8     to request our Defence teams to prove what the benefits and advantages

 9     are of treatment in our home countries as opposed to that available in

10     the Netherlands.  These are basic things.  I've informed, about this, the

11     Appeals Chamber, the Registry, the president of the Court on the

12     28th of March.  Allow me only to mention three minor examples, and I

13     underline that those were insignificant examples because my dignity does

14     not allow me to speak about more serious matters.

15             I was operated on in a very expensive and reputable royal

16     hospital, and due to that, they kept me only for two days after the

17     surgery.  However, the treatment I received during those two days was so

18     expedited in terms of IV drip and other things which meant that in 24

19     hours I had to receive 30 or 40 litres of IV drip, which caused

20     excruciating pain.  I begged the medical staff to reduce the speed of the

21     drip or to give me a shot of morphine in order for me to sustain the

22     pain; however, this is expensive.  And for the Tribunal not to pay these

23     costs, they decided to transfer me to the Detention Unit hospital.  This

24     is simply unbearable and intolerable.  Such kind of IV drip should take

25     at least five or six days.

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 1             Another example, which is also a minor one but nevertheless

 2     self-explanatory.  As soon as I was put in a room in the hospital, they

 3     switched off the TV because nobody accepted to cover the costs.  Of

 4     course, it's not the patient who can afford to pay that.  This might be

 5     something funny, but I think that this is a regrettable approach because

 6     this is a cynical kind of treatment of the patient who requires a certain

 7     care.

 8             And thirdly, at my request, I was transferred from the detention

 9     hospital to my own detention cell.  And in this cell, the nurses

10     allegedly trained me to inject myself with the hypodermic syringe, and

11     allegedly this is what I did for 25 days.  How I did that and what I did,

12     only I can tell; I'm not going to discuss this any further.  I'd better

13     stick to the saying of the former US President Johnson, which says that

14     silent treatment is the strongest reprimand.

15             Now, that's the first question.  The next question,

16     Mr. President, is the following:  You know that the esteemed president of

17     the Tribunal, Mr. Robinson, ever since April of last year has been trying

18     to offer me the required assistance because his estimation was that my

19     human rights were being violated.  Despite the fact that he received a

20     variety of reports from medical personnel that claimed otherwise, he said

21     that that was not correct.

22             Last year, in June and July, the administration, not the

23     president himself, engaged a general practitioner with eight years of

24     experience as a kind of medical expert, and, of course, this man was

25     incapable of fulfilling any requests made by the Tribunal president.  He

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 1     even asked me what he was supposed to do.

 2             This expert report, if we may call it that, was written on one

 3     and a half pages only.  Then some other bodies within the Tribunal who

 4     have nothing to do whatsoever with my medical treatment, by abiding to

 5     what this so-called expert wrote, gave their opinion.  The Tribunal

 6     president was extremely dissatisfied with what he received.  He asked me

 7     to put something on paper.  I thanked him for his help and asked him to

 8     tell everybody to just forget about me altogether and not render any

 9     assistance to me.  However, the president insisted and I had to comply

10     and write the entire history of what had happened.

11             The Tribunal president had three medical reports on his desk

12     similar to the ones mentioned by General Pavkovic, full of inaccuracies,

13     not supported by any documents, and I will really try to refrain from

14     using any harsher words.  The Tribunal president simply decided that his

15     orders had not been fulfilled; that this so-called expert, even if he had

16     wanted to carry out this task, he wouldn't have been able to do so

17     because he was a mere general practitioner.  Therefore, in October, he

18     ordered the administration to find a new medical expert.  Now a professor

19     from Belgium, from Brussels, came who specialises in some kind of surgery

20     or of some other branch of medicine.  He did something, he left some

21     things undone, though.

22             And I'm telling you all this so that you would allow me to ask

23     myself out loud in front of everybody present here:  If over a period of

24     one year the president of the Tribunal is unable to help me, how can I

25     help myself with the medical officer that we have in the Detention Unit?

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 1     The only recourse that I have, by relying on your patience and

 2     understanding, to complain to you and after that wait for Godot in my

 3     detention cell and wait for what the new day will bring to me.

 4             The third matter.  This issue was prompted by this document that

 5     I received just as I was entering the courtroom.  It relates to

 6     Dr. Eekhof's report, a medical officer from the Detention Unit infirmary,

 7     in which he said that I am more or less in a good condition.  I suffered

 8     from paralysis attacks, and that happened even today, which he described

 9     as migraine attacks.  In 2008, when this doctor as a Trial Chamber

10     medical expert described my health condition, he detected serious

11     problems and lesions in the left hemisphere of my brain.  He even told me

12     about the existence of these problems, but now he's calling it a

13     migraine.  Now, I needn't say more about the reports submitted by one in

14     the same physician.

15             Now, the fourth issue is something that causes me concern and

16     embarrassment, but I would like to say, quite openly and candidly, that

17     due to all these problems, numerous surgeries, suffering pain,

18     humiliation, struggling with the windmills, means that I tried to prove

19     that there is something rotten in the land of Denmark, it all proves that

20     something is wrong with the system itself.  I think that I have exhausted

21     all my mental and physical capacities; my batteries are empty.  In a

22     nutshell, I find it very hard to tolerate and endure all the things

23     happening recently.

24             Yesterday, for example, I collapsed, lost consciousness.  Today I

25     had a paralysis attack.  And all these things are happening day in and

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 1     day out, and I'm still staying in my cell totally helpless, although you

 2     are receiving reports that everything is under control.

 3             For that reason I tasked my Defence team to approach you and the

 4     Appeals Chamber with the request for leave for a short recuperation

 5     period which I would spend at home.  I believe that that would contribute

 6     to the improvement of my health condition and my speedy recovery.  And

 7     eventually it will contribute to the capacity for me to continue enduring

 8     these proceedings, already announced of surgeries on my both knees, and

 9     it seems that I will have to use crutches, which will make me a

10     first-category disabled person.  I know that everything is in your hands,

11     that we depend on your mercy, but, nevertheless, I would like to thank

12     you in advance for your understanding and patience which you demonstrated

13     today, once again.  And for that I am extremely grateful.

14             JUDGE LIU:  Thank you, Mr. Lazarevic.  I take note of your

15     submissions.  But first, as I have recalled on several occasions,

16     according to the Rule 80 and 81 of the detention rules, where a detainee

17     is not satisfied with the conditions of his or her detention, he or she

18     is entitled to make a complaint to the commanding officer or his

19     representative at any time.  And in case of a unsatisfactory response, to

20     make a written complaint, without censorship, to the Registrar, who shall

21     inform the President.  This is the right procedure that you have to

22     follow.

23             Secondly, I can assure you I myself took whatever you and your

24     counsel submitted very seriously.  I have done my best to help you

25     concerning with your state of health.  Suchly, I would like to share me

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 1     own experience with you concerning with the medical treatment.

 2             I believe that whenever you are hospitalised, you are entirely in

 3     the hands of the doctors, because they are specially trained experts.  As

 4     a judge, I am not in the position to comment on what kind of treatment is

 5     appropriate.

 6             I think this is the three points I would like to mention to you

 7     on this very issue.

 8             Well, it seems to me that we have exhausted the subject on

 9     this -- on this subject.  Before we turn to any issues that the parties

10     may wish to raise, I would like to briefly mention a few outstanding

11     matters.

12             There are currently two pending motions before the

13     Appeals Chamber.  Both motions were filed in response to the translation

14     of the Trial Judgement into B/C/S which was issued on the

15     13th September, 2010.  The first motion was filed on the

16     17th December, 2010 by counsel for Mr. Lukic, seeking to vary his appeal.

17     It is now fully briefed, and a decision will be issued by the

18     Appeals Chamber in due course.

19             The second pending motion was filed confidentially by counsel for

20     Mr. Sainovic on the 11th January, 2011, seeking leave to vary his appeal

21     and admit additional evidence pursuant to Rule 115 of the Tribunal's

22     Rules of Procedure and Evidence.  The briefing is not yet complete.  The

23     motion will be considered and determined by the Appeals Chamber in due

24     course.

25             In this context, I note that counsel for Mr. Ojdanic filed a

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 1     submission on 13th December, 2010, informing the Appeals Chamber that

 2     Mr. Ojdanic does not seek to further vary the grounds of his appeal.

 3     Recalling that at a Status Conference of the 14th September, 2010, the

 4     Defence was strongly encouraged to seek leave to vary their grounds of

 5     appeal as soon as possible so that their motions may be decided upon and

 6     a supplemental briefing completed, where applicable, before the end of

 7     the year.

 8             I believe that Mr. Pavkovic has mentioned that in his

 9     submissions.  Now I would like to give the floor to the counsel for

10     Mr. Pavkovic to explain to me on this matter.

11             MR. ALEKSIC: [Interpretation] Thank you, Your Honour.  What our

12     client wanted to say was that the notes he made, in which I reviewed

13     carefully, covered some 250 pages, and they were, of course, made in

14     relation to the Trial Judgement translation in the B/C/S.

15             I've been translating these notes for Mr. Ackerman, who is in the

16     United States, he isn't here, and we are working on this, but the

17     procedure has not been yet completed.  So we will be asking leave to

18     amend and supplement our appeals brief, and that's what Mr. Pavkovic

19     referred to.  I have nothing else to add on this score.

20             JUDGE LIU:  Well, would you please give me a approximate time

21     that you will file your submissions?

22             MR. ALEKSIC: [Interpretation] I would have to consult with my

23     learned friend Mr. Ackerman, but we will do our best to do this as soon

24     as possible.

25             JUDGE LIU:  Thank you very much.

Page 99

 1             MR. ALEKSIC: [Interpretation] Thank you, Your Honour.

 2             JUDGE LIU:  Any more submissions on this matter?  It seems to me

 3     there's none.

 4             At this point I would like to ask parties whether they have any

 5     other issues that they would like to raise at this time.  Is there any

 6     issue the Prosecution would like to raise?

 7             MS. NABTI:  No, Your Honour.

 8             JUDGE LIU:  Thank you very much.

 9             Now I'm turning to the counsel for Mr. Sainovic.  Do you have any

10     other issues you would like to raise?

11             MR. FILA:  [Interpretation] No, thank you very much.  Or I'd like

12     to inform you that I decided that the motion should not be made

13     confidential after all, so it will go through the standard procedure.

14             JUDGE LIU:  Thank you.

15             And the counsel for Mr. Ojdanic, do you have any other issues you

16     would like to raise?

17             MR. VISNJIC: [Interpretation] No.

18             JUDGE LIU:  Thank you.

19             Counsel for Mr. Pavkovic, do you have any other issues to raise?

20             MR. ALEKSIC: [Interpretation] No.  Thank you, Your Honour.

21             JUDGE LIU:  Counsel for Mr. Lazarevic --

22             MR. CEPIC:  Nothing to raise, Your Honour.  Nothing to raise.

23     Our client raised clear position regarding to the medical treatment, so

24     we have got nothing to add.

25             JUDGE LIU:  Thank you.

Page 100

 1             MR. CEPIC:  Thank you.

 2             JUDGE LIU:  Counsel for Mr. Lukic, do you have any other issues

 3     you would like to raise?

 4             MR. IVETIC:  We have nothing at this time, Your Honour.

 5             JUDGE LIU:  Thank you very much.

 6             Well, this concludes today's Status Conference.  I thank the

 7     parties for their attendance and adjourn this proceedings.

 8                           --- Whereupon the hearing Status Conference

 9                           adjourned at 3.10 p.m.