1 Tuesday, 10 September 2013
2 [Open session]
3 [The accused not present]
4 --- Upon commencing at 9.54 a.m.
5 JUDGE ORIE: Good morning to everyone in and around this
6 courtroom. Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. This is case
8 IT-09-92-T, the Prosecutor versus Ratko Mladic.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 I established that Mr. Mladic is not in the courtroom at this
11 moment, and the first thing, therefore, I would like to do is to go
12 through the recent history, looking at it from a medical point of view.
13 And I start with the report of the 4th of September, that is almost a
14 week ago.
15 On the 4th of September, the reporting medical officer reported
16 that Mr. Mladic's state of physical and mental health continues to be
17 closely monitored and is discussed at periodic multi-disciplinary
18 meetings. Regular measurements of the blood pressure and diabetic checks
19 remain within normal ranges. Mr. Mladic was in a good mood during the
21 4, the medical treatment plan remains unchanged and we will
22 closely monitor the health of Mr. Mladic.
23 Taking into account his physical and mental condition, it is the
24 opinion of the reporting medical officer that Mr. Mladic is able to be
25 transported to the court. He is able to participate in the proceedings,
1 provided that he is able to take several breaks during the Court session
2 and the advice is continued for a four days' court schedule with
3 preferably the break on Wednesdays. And then there is an announcement
4 when he will be assessed again.
5 That is as far as last week is concerned.
6 Now we move to yesterday, where, during the first break,
7 Mr. Mladic had reported that he felt unwell. He was then seen by the
8 nurse, who, as the Chamber understands, initially said that Mr. Mladic
9 was fine but then later apparently changed her mind under unknown
10 circumstances. And the Chamber would like to receive a detailed report
11 what made the nurse change her mind and advise that Mr. Mladic would be
12 returned to the UN Detention Unit. That is one part of what happened
13 outside court during the first break.
14 Then there was another matter, another thing that was reported to
15 the Chamber as having happened. Mr. Lukic, I'm asking you to carefully
16 listen. It was reported to the Chamber, Mr. Lukic, that you were yelling
17 at the representative of the Registry, that you expressed to her that the
18 Chamber, and you mentioned me personally, are killing your client.
19 Then in the same mood, apparently, you said that you would not
20 further come to court unless we would have accepted the four days'
22 You expressed that Mr. Mladic was getting unwell more and more
23 and after all that, as we understand, you apologised to the
24 representative of the Registry and made gestures which she understood as
25 a kind of an explanation that this is how you would have to address her
1 under the circumstances and in the presence of Mr. Mladic.
2 Mr. Lukic, before we continue, could I ask you whether what was
3 reported to the Chamber is accurate?
4 MR. LUKIC: I only didn't understand the last part.
5 JUDGE ORIE: Did you apologise to the Registrar for what you had
6 said and that you had yelled?
7 MR. LUKIC: Yes, I did.
8 JUDGE ORIE: I then leave it to that and her interpretation of
9 what your gestures were. Did you make any gestures? Perhaps I would
10 like that kind of gestures.
11 MR. LUKIC: Maybe I waved my hands. I don't know. I don't think
12 I made any rude gesture.
13 JUDGE ORIE: I'm not -- I'm just establishing at the moment
14 whether any gestures were made. You say you may have made gestures, and
15 I did put on the record how she interpreted those gestures.
16 Then I continue where we left off, that is after Mr. Mladic had
17 been returned to the UN Detention Unit.
18 The Chamber received an internal memo, and I read the most
19 relevant part of it, which is -- it is --
20 [Trial Chamber confers]
21 JUDGE ORIE: And since the memo is confidential, I'll limit
22 myself to one paragraph, which is relevant and should be public. It
24 "Mr. Mladic has now been examined by Dr. Falke," and that was
25 after he returned, "and the medical report containing more detailed
1 information has been prepared and will be filed as soon as Mr. Mladic has
2 consented to such disclosure.
3 "In the interim," the memo says, "I understand that Dr. Falke
4 believes Mr. Mladic is fit to attend court tomorrow."
5 That was the memo we received yesterday.
6 This morning it was reported to the Chamber that Mr. Mladic has
7 said that he's unable to attend court proceedings due to illness, that he
8 has discussed the matter with counsel, and that he does not waive his
9 right to be present at trial today.
10 That is confirmed by the principal officer. Before Mr. Mladic
11 signed he wanted to consult his lawyer. After he had spoken with his
12 lawyer, he signed and ticked the boxes as we find it in the absence from
13 court due to illness form.
14 That's where we are at this moment.
15 [Trial Chamber confers]
16 JUDGE ORIE: The Chamber was further informed that Mr. Mladic
17 would be examined by the doctor at this very moment, at 10.00, and
18 I think the wisest thing to do would be to wait for a message from the
19 doctor whether he considers Mr. Mladic to be fit to stand trial today, to
20 come to court.
21 Is there any need to make any submissions? I'm looking at the
22 Defence first, being the most directly involved party.
23 MR. LUKIC: [Interpretation] Good morning. Since he needs to be
24 examined by the doctor, perhaps we should suggest to the doctor that he
25 make clear whether General Mladic, after returning from court -- is it
1 all right now? So we should ask the doctor to make it clear whether
2 General Mladic is indeed abed after returning from court all the time
3 because of fatigue, that this has been going on for several weeks now,
4 that he's unable to socialise or even watch TV. He only wants to lie
5 down, and he has no contact with anyone. The only time when he's active
6 is the time he spends here in the courtroom. And we would kindly ask the
7 doctor to give his opinion about this.
8 JUDGE ORIE: That needs perhaps a bit more thorough medical
9 report, if -- if you would like to have a more thorough report, we can't
10 ask a reporting doctor who hasn't observed all this to report within half
11 an hour on that.
12 Mr. Lukic, I know that you said that the Chamber did not pay
13 attention to the medical reports, although we did in quite some detail.
14 Paying attention to reports does not necessarily mean that the Chamber
15 accepts under all circumstances the advice of doctors. The Chamber will
16 also look at on what that advice is based, and if you think that there is
17 need for a more thorough examination of Mr. Mladic in respect of his
18 overall functioning, you can ask for it and the Chamber will consider
19 that, or you can ask for it to the Registrar and such an examination most
20 likely will then take place. The Chamber, however, does not accept, as
21 you did yesterday, and as you did to the representative of the Registry
22 yesterday out of court, that not following an advice is equal to not
23 seriously considering medical reports. And I would like you to keep that
24 in mind.
25 We'll first wait and see what the first report of the doctor will
1 be, unless there is any other submission to be made, either by
2 Prosecution or by the Defence.
3 MR. McCLOSKEY: Very briefly, Mr. President. As you make your
4 determinations on this important matter, I would just like to emphasise
5 that as we have heard four and a half days of Mr. Butler on some of the
6 most, in my view, essential evidence in the Srebrenica component, this
7 period of cross-examination is absolutely essential period for the
8 fairness of this trial. And from what I saw, Mr. Mladic was carefully
9 listening to Mr. Butler and he has assisted his lawyers in their work and
10 his presence during this cross-examination, I think, is very important
11 for -- for this trial and to meet our obligations under Article 20 and
13 So I know you will take that in account. I know you are taking
14 that into account but I think this is a particularly important time for
15 this trial.
16 JUDGE ORIE: That's put on the record.
17 Any further submissions? If not, the parties are instructed to
18 remain stand-by until we have received our first reports from the
19 United Nations Detention Unit and from the doctor. The Chamber will then
20 consider whether and how to proceed in court today.
21 We adjourn.
22 --- Recess taken at 10.11 a.m.
23 --- On resuming at 1.03 p.m.
24 JUDGE ORIE: We resume. The Chamber has received meanwhile a --
25 although not directly but through the intermediary of the Registry, the
1 oral report of the doctor that examined Mr. Mladic this morning.
2 I summarise it. Nothing new has been found. Mr. Mladic was found to be
3 very much stressed in relation to the trial, Mr. Mladic is fit to come to
4 court and to attend the hearings, and the advice to sit four days rather
5 than five was reiterated by the doctor. I do understand that
6 transportation would be available if Mr. Mladic would wish to come to
7 court. And I also was informed, Mr. Lukic, that you would like to make a
8 submission or -- then please do so.
9 MR. LUKIC: [Interpretation] Thank you.
10 Before all we have to say, and you just mentioned now that you
11 got the oral report of the doctor whereas we did not get any report at
12 all, so we don't know the basis of your decision to continue with the
14 JUDGE ORIE: First of all, I have not decided anything at this
15 moment. Second, in order to inform you, I gave the report so that you
16 were informed about it, Mr. Lukic. That's what I did. Please proceed.
17 MR. LUKIC: [Interpretation] We wish to emphasise that our client
18 came to the trial even when he was not able to. The reason was that we
19 insisted that the trial not be interrupted, that it continue, and we
20 persuaded him that the decision would be made very soon that he doesn't
21 have to attend unless he's perfectly able to. That is why we feel so
22 responsible and that's why I was angry when I addressed the
23 representative of the Registry yesterday.
24 This morning, we heard that the Court of the -- is of the opinion
25 that an additional, more detailed examination is needed to establish why
1 my client is unable to sleep or eat. It is clear that such an
2 examination could not have taken place within such a short time and it
3 hasn't. So we do not have a sufficiently detailed and accurate report
4 from the medical staff about his state of health.
5 JUDGE ORIE: Mr. Lukic, I would like to put on the record that
6 you're not presenting exactly what I said this morning. But I leave it
7 to that at this very moment. You may proceed.
8 MR. LUKIC: [Interpretation] I do not think I misquoted anything,
9 although I did not cite it verbatim. But let me continue. There was a
10 discussion about why the nurse changed her mind, and on this point I will
11 tell you how I remember it. The nurse came, took Mr. Mladic's pressure
12 and the oxygen levels in his blood, and after that she said he was fit
13 for trial. However, only later did she receive the information that
14 I interpreted, uttered by my client, that he had not been sleeping or
15 eating for days. Then the nurse said in that case the situation is
16 different to what you told me before, and perhaps it is even a virus
17 because she also found General Mladic in bed, unable to sit up or stand
19 I talked to General Mladic just before this session. The guards
20 raised him from bed and he came to the telephone. I asked him
21 explicitly, was it the case that he was unable to attend the proceedings
22 or he was unwilling to attend? He told me, calling me by my first name,
23 It's not that I don't want to. I cannot. I am in bed. I'm ill. I'm
24 not able to attend. At this moment, therefore, it is our position that a
25 continuation of the trial without the presence of General Mladic would be
1 a violation of the Rules of this Tribunal and that we, as a Defence team,
2 do not wish to participate in that of our own will.
3 If we are compelled by the Trial Chamber to attend the trial that
4 would continue without the presence of our client who is unable for
5 health reasons to attend, we would be forced to request the recusal of
6 the Trial Chamber because we believe that this trial, without the
7 explicit waiver from the client, cannot continue.
8 JUDGE ORIE: Prosecution, any response to this submission?
9 MR. McCLOSKEY: Mr. President, not so much a response but perhaps
10 a proposal. From the position of the Prosecution, we seem to have come
11 to a bit of a brink today and an edge of something, and I merely propose
12 to the Court to consider what I would -- we know to be the international
13 recognised wisdom of tomorrow is another day. We only have, as we know,
14 a matter of really a few thousand seconds left in today and if we take a
15 deep breath and think about perhaps the ability to have Mr. Mladic in the
16 virtual courtroom of the jail, give him another day's rest, get a better
17 chance to look at the doctor's procedure or the doctor's reports because
18 in what you said I noted that the general is very much stressed and
19 I think -- and at the same time he is fit to come to court. These are
20 contradictory conclusions by the medical doctor. I think we all know and
21 we've all experienced how dangerous stress is. So I think we'll all have
22 less stress tomorrow and we might have ways that we can have Mladic
23 involved without going to the brink of where we are now, which is not
24 something -- I would ask us to consider stepping away from it and
25 tomorrow is another day and perhaps we could get to this tomorrow.
1 JUDGE ORIE: Thank you. Anything to be added in are relation to
2 what Mr. McCloskey said, Mr. Lukic?
3 MR. LUKIC: No, nothing to be added. Thank you, Your Honour.
4 [Trial Chamber confers]
5 JUDGE ORIE: The Chamber would like to take its time to consider
6 it and whether that takes five, 10 or 15 minutes, I cannot tell you in
7 advance but we'll have a short break for that purpose.
8 --- Break taken at 1.14 p.m.
9 --- On resuming at 1.42 p.m.
10 JUDGE ORIE: The Chamber has carefully considered the submission
11 made by the Defence and also the submission made by the Prosecution.
12 The medical reports which were presented yesterday and today,
13 although today only orally, do establish nothing that would justify, and
14 it's not new, it happened in previous instances as well, but does
15 establish nothing that would justify a finding that the accused is unfit
16 rather than unwilling to attend.
17 Mr. Lukic, I earlier said to you that you misquoted me, and in
18 order to have everything exactly on the record, I would like to read
19 again what I said so that there is no misunderstanding about that.
20 I read from the transcript of today. I said:
21 "If you think," and I was addressing you, Mr. Lukic, "that there
22 is a need for a more thorough examination of Mr. Mladic in respect of his
23 overall functioning, you can ask for it and the Chamber will consider
24 that, or you can ask for it to the Registrar and such an examination most
25 likely will take place."
1 That is what I said, and not what you claimed I said.
2 This misquotation, Mr. Lukic, adds to a few matters I brought to
3 your attention earlier today, the manner in which you behaved both in and
4 out of court. It is the Chamber who finally determines whether the
5 accused is fit to appear and it will do so primarily on the basis of
6 medical reports it receives. To the extent the Defence or the accused
7 might think that it is them who makes such determinations, then that
8 would be a misunderstanding.
9 In general, if the accused decides not to come to court despite
10 the Chamber's determination that it could not find the accused to be
11 unfit to come to court and to attend court, then the Chamber will
12 consider that to be a waiver of his right to be present.
13 It is the Chamber that controls the proceedings, and not the
15 What you said, Mr. Lukic, in and out of court today and yesterday
16 and your announcement of your intent to request the recusation of all
17 Judges of this Chamber does not change that in any way. Tomorrow
18 morning -- let me first address this afternoon. This afternoon, the
19 Chamber will read the written report which it will then have received.
20 Tomorrow morning, we will continue, unless there are any
21 significant changes in the health of the accused, we will continue with
22 or without the accused being present.
23 [Trial Chamber confers]
24 JUDGE ORIE: This is what the Chamber wanted to tell the parties.
25 We adjourn for the day, and will resume tomorrow, Wednesday, the
1 11th of September, at 9.30 in the morning in this same Courtroom I.
2 We stand adjourned.
3 --- Whereupon the hearing adjourned at 1.49 p.m.,
4 to be reconvened on Wednesday, the 11th day of
5 September, 2013, at 9.30 a.m.