Case No.: IT-02-54-T
IN THE TRIAL CHAMBER
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
16 November 2005
DISSENTING OPINION OF JUDGE IAIN BONOMY IN RELATION TO THE ORDER OF THE TRIAL CHAMBER FOR EXPERT MEDICAL REPORTS
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Slobodan Milosevic
Court Assigned Counsel:
Mr. Steven Kay, QC
Ms. Gillian Higgins
Prof. Timothy McCormack
1. I should explain my reasons for dissenting from the Order1 made on 15 November by a majority of the Trial Chamber for the Registrar to arrange medical examinations of, and obtain medical reports from, doctors providing treatment to the Accused for his cardio-vascular and ear, nose and throat problems. I consider that there is no Motion properly formulated within the terms of Rules 73(A) or 74bis of the Rules of Procedure and Evidence of the Tribunal currently before the Chamber for consideration. I further consider that, even if what has been submitted by the Accused could be considered to be a Motion, a fundamental part of the supporting material comes from an inappropriate source.
2. On Friday, 11 November 2005, the Accused was absent from court through illness for the first time since April. At that stage there was no explanation of the condition that might have caused him to be unfit to be in court. Concerned about this unsatisfactory state of affairs, the Trial Chamber made an Order that the Medical Officer at the Detention Unit should report on Monday, 14 November, on the fitness of the Accused to attend court on the next court day, viz. Tuesday, 15 November and, in the event of his being unfit, should specify his diagnosis and the area of specialisation relevant to his diagnosed condition.2
3. In the event, the Medical Officer reported on 14 November that the Accused had stated that he was fit to stand trial and to defend himself and that the Medical Officer had no objection to that.3 On Tuesday, 15 November, the Accused was present in court.
4. At the outset of proceedings he addressed the Chamber on medical reports which had been prepared following examination of him by three experts on 4 November.4 Although these reports had been available to the Accused since 4 November, at that stage the Trial Chamber had not had sight of them. They were then tendered. When advised by the Presiding Judge that he "must make it clear to the Chamber what you wish the Chamber to do arising from this report", the Accused said simply: "Nothing other than asking the Trial Chamber not to ignore what it says in the doctors’ report, and that means that they said quite specifically suspension of all physical and mental activities for a period of six weeks".5 He did not invite the Trial Chamber to take any specific steps or grant any particular form of relief.6
5. While it is possible to envisage a number of courses of action that the Accused might have had in mind, such as adjourning the trial or causing further medical examination to be made, in this adversarial process it is not for the Trial Chamber to divine his wishes from his cryptic statements. It is for him, as the person conducting and in charge of his case, tendering material which is the result of investigations he has caused to be made, to say what course of action he wishes the Trial Chamber to take. All he has suggested is "taking account of" the reports. To what end? That is for him to specify. Indeed, in the context of this case, which has been bedevilled by problems associated with the Accused’s unfortunate illness, it is, in my opinion, appropriate that any Motion seeking action by the Trial Chamber in relation to the Accused’s health should be presented in writing, and should identify clearly the issues to be addressed by the Trial Chamber and the relief sought, to ensure that the interests of the Accused, the interests of justice and the public interest in a fair and expeditious trial are not in any way prejudiced by confusion, misunderstanding or uncertainty. In view of the absence of a clearly stated Motion by the Accused inviting the Trial Chamber to take a particular course of action, I do not consider that it is appropriate for the Trial Chamber to make any order.
6. There is a further reason why no order should be made. The material presented to the court consists of reports by three medical experts. The condition, which they identify as a cause for concern, is described as "the patient’s cochleovestibular disorders", principally causing difficulties in hearing and balance, which are linked to a number of cardio-vascular problems. An important element in their overall assessment of the Accused’s current state of health is the diagnosis of the existence of genuine problems with his hearing. That diagnosis has been made by an Otorhinolaryngologist, Professor Vukasin Andric. The report of Dr. Schumilina, Angiologist, links the hearing difficulties to the Accused’s cardio-vascular problems.
7. Professor Andric has already appeared before us as a witness of fact for the defence in the case.7 Indeed he can be fairly described at this stage as an important witness about a number of matters in Kosovo over an extended period of time, including the period of the indictment. It is already plain, from a comparison of the reports of Professor Andric and Dr. Shumilina with the report by the Medical Officer at the Detention Unit of his discussion with the Ear, Nose and Throat Specialist treating the Accused, that there is scope for controversy about the nature of any hearing problem that the Accused may have and its relationship to his cardio-vascular problems. Against that background it is, in my opinion, inappropriate for the Trial Chamber to be asked to take account of the views of Professor Andric. The Trial Chamber’s first and foremost consideration must always be to ensure a fair trial of the Accused. It should not countenance the risk that a situation could develop in which its impartiality, and hence the fairness of the trial, might be put in question. The Trial Chamber should not be placed in the position where it may have to assess the reliability of a witness in a context unrelated to his evidence in the case prior to having to evaluate that evidence. Issues relating to the management of the trial process should be dealt with through the assistance of experts who are not involved as witnesses of fact in the case.
8. For these various reasons I consider that the Accused should be advised that, if he wishes the Trial Chamber to take any form of action in light of the medical reports he has tendered, he should present a Motion to the Trial Chamber in writing, setting out the relief he seeks, and should support that with opinions from relevant experts in the appropriate medical fields who are not involved as witnesses in the case, and who should thus not include Dr. Andric. Whenever issues of health and fitness arise in a court process it is vital that the right decision is made at the end of a thorough and scrupulously objective assessment of the issues on the basis of the opinions of experts who are not involved in the trial. These issues require to be focused by the Accused in an appropriate way.
Done in English and French, the English text being authoritative.
Dated this sixteenth day of November 2005
At The Hague
[Seal of the Tribunal]