Delalic & others Case n° IT-96-21-T 17 December 1996

Case No. IT-96-21-T


Tuesday, 17th December 1996


(The Presiding Judge)





MR. ERIC OSTBERG and MS. TERESA McHENRY appeared on behalf of the Prosecution

MR. MUSTAFA BRACKOVIC appeared on behalf of the accused Landzo

align Pages 2 - 10 in closed session

Page 11

1   11.30 a.m.

2   Open Session.

3   THE PRESIDING JUDGE: We are continuing on the motion for diminished responsibility or

4   lack of mental capacity. When we rose the suggestion was that we should get a panel of

5   experts to examine the accused person for his mental capacity at the time the offence was

6   committed. I hope I am correct, it was what we agreed upon. At that time I felt we had

7   some reports, which I am sure you might be very familiar with, and I know even at the

8   time he was alleged to have committed attempted suicide in 1994 there was a medical

9   examination which gave a certificate as to his mental health at the time. You know that

10   even recently there have been so many medical examinations about the accused persons,

11   one from Professor Loga, Mrs. Roorda De Man, Professor van Leeuwan, Lagazzi, all of

12   them. If you have any other names to suggest or agreed names, perhaps both the

13   Prosecution and the Defence might agree to submit a list of medical experts who might be

14   able to examine the accused person in respect of what you have now requested. I think the

15   Registrar also should be able to assist us in this regard. Are you agreed on any list of

16   names which you think should be able to go into these questions? Mr. Brackovic, can we

17   hear you?

18   MR. BRACKOVIC: Your Honours, I have not discussed that particular issue with the

19   Prosecution. We have not conducted any talks as to which expert might be proposed,

20   either by the Defence or the Prosecution. At this moment, to be frank, I am not prepared

21   to give any suggestions, any proposals, as to the expert proposed by the Defence for this

22   panel of experts. I would respectfully ask that I be able to give that suggestion later on.

23   The examination should be conducted before the trial, but it may also continue into the

24   trial, all the way until the sentencing procedure when the decision on his guilt will be

25   reached.

26   I would also request that this examination not be conducted before 15th

27   January, because we were given the possibility to conduct our investigation until that date

28   and collect all necessary evidence, and then if we have the examination before 15th of

29   January I think that that would keep me away from the investigation. So, I would like that

30   this issue, the issue of my proposal as to who would take part in this panel of experts, I

31   would like to be enabled to give a written submission as to that matter, or to present it at

32   the status conference which is to be held before the beginning of the trial. Thank you.

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1   THE PRESIDING JUDGE: Thank you very much. You appreciate the trial is starting on

2   28th January?

3   MR. BRACKOVIC: I have not given any opinion on that, but my personal view, and I have

4   discussed it with my co-counsel, is that the Defence is not ready for the trial on 28th

5   January. I will briefly expose the reasons why the Defence of Esad Landzo will not be

6   ready for the trial on 28th January.

7   On my last visit here, actually this one from 2nd December until now, I received

8   a large amount of statements of witnesses in English. I am able to read them but my client

9   does not speak English. Of course, those statements do not mean anything to him and will

10   not mean anything to him until he gets the translation. My colleague Edina Residovic has

11   undertaken all necessary measures to have the statements translated in Sarajevo and we

12   have four or five translators working on those statements in Sarajevo day and night, and

13   they are being faxed here to The Hague, photocopied and then sent to all the accused and

14   their counsel. A certain number of statements have been sent to the accused, including my

15   client, but a great number of statements has not been submitted simply because they have

16   not been translated yet. I am going back to Sarajevo on 19th. I have to continue with my

17   investigation, and I will not be able to contact my client for a certain period of time.

18   Perhaps I would be able if my motion for provisional release is granted, but for those

19   reasons I am not sure whether we have enough time for my client to make a statement to

20   present his opinion on the statements and offer certain counter evidence.

21   I have discussed this with my colleague Mr. Karabdic, representing Hazim

22   Delic, and he has a similar opinion on that. I am afraid that for justified reasons we would

23   have to postpone the beginning of the trial which was initially set for 28th January. I do

24   understand the need for an expeditious trial, and in this respect I am thinking of Mr. Mucic

25   in particular, but it would be in the interests of justice if all counsel are not ready for such

26   a trial. I believe that Mr. Mucic and his counsel could also change their opinion, because,

27   as far as I know, Mr. Mucic is trying to find investigators in Konjic and outside the

28   territory of the Federation of Bosnia and Herzegovina in Republika Srpska, in the Federal

29   Republic of Yugoslavia. As I said, my personal opinion as counsel for Esad Landzo is

30   that conditions have not been met for the beginning of a trial. Of course, we will have to

31   hear the opinion of other counsel. I have just mentioned here the opinion of my colleague

32   Mr. Karabdic. The Court knows that I have been involved for about two or three months

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1   in these issues relating to the mental health of my client. You know that we had two

2   examinations, examinations as to the compatibility of detention and fitness to stand trial

3   and so on. This kept me away from my investigation. Therefore, at this moment I can tell

4   you my opinion in that respect.

5   I would also like to stress that my client is agreeable with this. He believes that

6   the reasons I have explained so far are justified, and he also thinks that we should be

7   properly, adequately prepared for the trial. Thank you.

8   THE PRESIDING JUDGE: Thank you, Mr. Brackovic. I think your obligation is to the

9   Prosecution of sending the names of your witnesses and the like and about 15th January,

10   is it not? You should send the names of your witnesses and documents you rely upon to

11   the Prosecution.

12   MR. BRACKOVIC: Yes, you are right, your Honour. At the status conference that was held

13   on 6th December the Court extended the date for 5th January for the Defence of Esad

14   Landzo, but when we discussed that particular issue, the issue of this date, deadline, I

15   thought that the motion for provisional release would be solved by then and that my stay

16   here would not go beyond 6th December. In the meantime, I have lost 13 very precious

17   days which could have been used for my investigation which I would be conducting

18   together with my investigators.

19   THE PRESIDING JUDGE: Thank you very much. I appreciate that you know that you have

20   some obligations towards the Prosecution too. I still see you are fairly anxious about an

21   expeditious trial for your client, but you are now not ready even to discuss the question of

22   an agreed list of members of the panel which is necessary, you know that, to determine the

23   mental situation of your client. It is important, especially with respect to the trial.

24   MR. BRACKOVIC: I think that this medical examination does not have to be directly related

25   to the beginning of the trial, and I think that the Prosecution agrees with that. In one of

26   their submissions I saw that the medical examination could take place before the trial or

27   during the trial but, in any case, before the sentencing procedure and before the establishing

28   of the guilt of my client. On the other hand, it is in the interest of the defence of all the

29   accused that the trial take place as soon as possible. I agree with that and my client has

30   such an interest as well, but it is somehow in collision with the fact that the Defence has

31   not been able to conduct its investigation fully and properly and prepare itself adequately

32   for the trial.

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1   Therefore, this general interest of the Defence to have an expeditious trial should

2   be made conditional on the need for a quality preparation for the trial, which is ultimately

3   in the interests of justice. Again, I am expressing my personal view here. Thank you.

4   THE PRESIDING JUDGE: I am afraid you might have misplaced the priorities, because if the

5   question of the mental state of your client is not to you crritical or crucial, not only to his

6   own defence but to all connected in the trial, I am afraid we have to determine that ever before we

7   start. We concede it is your defence, but it is a defence which should be established as early

8   as possible. That is why Rule 67 wants you to give notice to the Prosecution. So that

9   whatever the situation is then it should be investigated and decided upon.

10   The way you are now pursuing it you could postpone and delay at your own

11   time. Well, that is not the action. The Prosecution must be satisfied as to who they are

12   prosecuting and on what basis they are doing the prosecution.

13   What I have asked you, what the Trial Chamber is now asking you is to think

14   about the panel of experts, unless you are not willing to co-operate or you accept the

15   panel of expert persons drawn up by the Registry which is familiar with a panel of experts

16   in these proceedings as a whole. As I said, if you are not, perhaps you will draw up a

17   panel of experts which you will now see and then comment upon later. Do you have any

18   views on that suggestion, because we will have to draw up a list of experts and give them

19   an assignment in terms of the question which we have put?

20   MR. BRACKOVIC: Your Honours, well, I can tell you right away, I do not wish that my acts

21   contribute somehow to the postponement of the trial. I just wanted to point out some

22   circumstances that exist and the problem as to who would be a member of the panel of

23   experts. I think that this is something that can be solved in a day or two. This is a lesser

24   problem than the one I pointed out, that is, that the Defence will not be ready for trial on

25   28th January. I share your opinion when you said that we should establish the mental

26   capacity of my client, and if it is proved that he was not mentally responsible at the

27   relevant time, I know that this of course will influence the trial, will have an impact on the

28   trial, but if the experts do not come up with such an opinion, which is the opinion of the

29   Defence, then the Defence would like to be enabled to complete its investigation in an

30   adequate way and be ready for the trial. So these are reasons why we are so cautious as

31   regards the beginning of the trial.

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1   I requested the Trial Chamber that this medical examination does not take place

2   at the time which the Defence intends to use for its investigation, because that would

3   affect my involvement in the investigation. I would probably be busy with the medical

4   examination and that would keep me away from the investigation. Thank you.

5   THE PRESIDING JUDGE: Thank you very much. Let us hear the Prosecution's view on this

6   issue.

7   MR. OSTBERG: First the issue of the examination by a new panel. As to the list, we have no

8   objection to the persons on the previous lists. We can use the same specialists who have

9   been employed earlier by the Tribunal. We have no objection to that.

10   As to the time for this to take place, I cannot see the role of the Defence lawyer

11   during an examination by psychiatrists and how that could consume the time of the

12   Defence lawyer, but that seems to be his opinion.

13   When it comes to the question of the postponement of the trial, that comes to

14   the Prosecution as a complete surprise today. We are very concerned to get started with

15   this trial. It has been set for different times previous to the now actual date. We from the

16   side of the Prosecution would like to see this trial start on the day set by this Trial

17   Chamber for many reasons, for the staffing of the Prosecutor's office, for Ms. McHenry's

18   assignment and my own assignment. We really need to get started. I have heard nothing

19   today about the time for a postponement. Are we talking of weeks, months? I have no

20   idea. It is hard for us to respond to it before we know what is really meant.

21   We have the belief that we have done our duties and have seen to it that the

22   Defence has got all they need to prepare in enough time for this trial. So before I have any

23   firm view on what to do and what position to take, I would like to hear what is the

24   decision of the Defence, what time frame are we talking about? Thank you.

25   THE PRESIDING JUDGE: Yes, Mr. Brackovic, can you react to that?

26   MR. BRACKOVIC: Yes, I could give you my reaction. We are talking about several weeks. I

27   could not give you a more precise time frame, but I have the feeling that about a month

28   would be what the Defence would need to be able to prepare for the trial in an adequate

29   and proper way. When the Prosecutor mentioned a little while ago that the trial was

30   adjourned several times, then I would say that it was done at the request of the

31   Prosecution to meet their demands. The Prosecution deemed it was not ready for the trial

32   and the Trial Chamber accepted their reasons. I explained the reasons which have

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1   prompted the Defence at this time to state it is not ready to accept the trial scheduled for

2   28th January, because in a very short period of time it received a large number of

3   Prosecution witness statements which have to be verified by the Defence in an adequate

4   manner and the time that it has at its disposal is, I am afraid, not sufficient for a proper

5   preparation for the trial to be conducted or verification or maybe even obtaining of the

6   counter evidence.

7   I have presented my personal view now. I was not talking on behalf of my

8   colleagues, the Defence counsel of the other accused, so that the opinion of them should

9   also be obtained. I just stated what I discussed with my colleague Mr. Karabdic, the

10   Defence counsel of Mr. Hazim Delic. On the other hand, I also presented the view that

11   Mr. Mucic is trying to contact his investigators and to conduct the investigation. This is

12   something that he and his Defence counsel should state their position, but regardless of

13   this it is my view that the trial can start when Defence counsel of all the accused are ready

14   to conduct such a trial. Thank you.

15   THE PRESIDING JUDGE: Thank you very much, Mr. Brackovic. Despite your inability to

16   take part in finding the panel, I think we should be able to get up a panel of medical

17   experts to examine your client to ascertain whether at the time he was alleged to have

18   committed the offence, that is about May 1992, he lacked the mental responsibility to

19   commit the offence, or that he was such in a state of diminished mental responsibility.

20   These are things which the Prosecution has agreed. In consultation with the Registrar,

21   you are still here until tomorrow, you might be able to agree on the lists of medical experts who

22   will be able to get up and examine your client for the purposes of his trial. Although you

23   have indicated that you are not likely to be ready for it before the 15th January, that

24   surprises me because one of the problems which you, your client, Mucic, everybody,

25   condemns is the delay in starting the trial. I do not see why you think that the medical

26   experts, if a panel could not start immediately they have been empaneled to interview your

27   client and make their reports on him. So I am surprised about that, because every

28   argument on the part of the Defence is on the delay in the trial, and this is why Mucic has

29   been on hunger strike and that is what has been affecting even your client to hear. He is

30   anxious to know his fate and to know exactly what is going on.

31   So the earlier this trial begins the better it is for everyone. I expect you should

32   try and co-operate. Although, as you have said, we have not had your colleagues, counsel

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1   for the other accused persons, we think 28th January still is the proper date to begin.

2   Whatever problems you have on that time you might be able to tell the Trial Chamber so

3   that we will know what to do.

4   We will also have a status conference on 17th January. A status conference

5   should be held on 17th January. We expect that should be the final one, so that we do not

6   go about raising new issues and protracting the trial process. The earlier we start perhaps

7   the better.

8   You also asked for examination on the physical capacity of your client. I

9   do

10   not think that is necessary because it is a physical -- whether he can do it or not, it is a

11   question of fact. It is not a matter of law and does not require any expert evidence for the

12   purpose. If you in your own defence call such evidence I think it should be looked at. But

13   definitely there is nothing like medical evidence on a person's capacity to kill. We should

14   be able to cover that if he is otherwise mentally fit and can carry on with his

15   responsibilities, so you can assemble the evidence about the physical capacity.

16   I think this is all we have on the question of your motion under Rule 67.

17   We now go on to the question of your motion for the order for provisional release. With all

18   the things we have done, our view is that the accused ought to remain in custody to

19   facilitate further examination by these medical experts as to his mental condition which is

20   in respect of lack of responsibility or diminished responsibility. Accordingly, we have

21   been unable to grant the order for provisional release. The full reasons will be given in our

22   decision to be submitted later.

23   Have you any other things to say?

24   MR. BRACKOVIC: I would just like to say that at the last status conference I suggested that

25   if in deliberating on the motion on provisional release pursuant to Rule 65 the Trial

26   Chamber does not find the motion well-founded, that in that case the motion be examined

27   in the light of provisions of Rule 64. I remember that in this respect Judge Jan asked me a

28   question on that and then I explained that this was considered as an alternative request.

29   So if the first request is not granted, then I wanted this motion to be discussed in view of

30   Rule 64. So I would like to get the opinion from the Trial Chamber whether it has also

31   taken this into consideration.

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1   Furthermore, when I discussed a little while ago the medical examination, when I

2   said that the medical examination could not been conducted at this time, I have taken into

3   account the fact that I did not know the decision of the Trial Chamber on the motion for

4   provisional release because I thought that this would prejudice the issue of whether the

5   motion for provisional release was founded or not. But now that I know the decision on

6   the motion for provisional release things are much clearer.

7   I would like the Trial Chamber to make a further decision pursuant to Rule 64

8   on the motion filed on behalf of the accused.

9   THE PRESIDING JUDGE: Thank you very much, Mr. Brackovic. When you get our

10   decision you will find that Rule 64 has been considered and we also reject it. We dealt

11   with Rule 64.

12   Yes, has the Prosecution anything to say?

13   MR. OSTBERG: No, we have nothing to add. After reading the decision we will see what

14   you have ruled on 64. If I may, your Honour said that you have had your decision even

15   founded on that Rule, I for my part can see no way to preclude the party to go to the

16   President and ask for modifications in the conditions of the detention.

17   THE PRESIDING JUDGE: No. I think Rule 64 is quite a different consideration. It deals

18   with something fairly different, what happens in the detention unit. That is what it deals

19   with, but it gives several undertakings which should be done there and that has been

20   considered.

21   MR. OSTBERG: Yes. I have nothing else to add, your Honour.

22   THE PRESIDING JUDGE: Thank you very much. I think this concludes the proceedings for

23   the day. The Trial Chamber will now rise.

24   12.08 p.m.

25   (The Hearing Adjourned)