Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1197

 1                           Wednesday, 7 May 2008

 2                           [Open session]

 3                           [The accused Simatovic entered court]

 4                           [The accused Stanisic is not present]

 5                           --- Upon commencing at 9.02 a.m.

 6             JUDGE ROBINSON:  I understand the Defence has a matter to raise.

 7             Mr. Knoops.

 8             MR. KNOOPS:  Yes, thank you, Your Honour, good morning.  In light

 9     of Your Honours' ruling of yesterday, the decision on provision of

10     documents and scheduling of witnesses, the Defence would like to raise

11     the following remark.

12             The order contains the instruction to the Defence to provide the

13     Prosecution, the registry, and the Trial Chamber with a list of documents

14     and materials it intends to use in court during cross-examination at the

15     commencement of the examination in chief of that witness and after he or

16     she has made the solemn declaration pursuant to Rule 90 (a) of the rules.

17             Mr. President, in light of the testimony to be expected of the

18     witness today, the expert, it is clearly that the Defence cannot comply

19     with this witness or expert with Your Honours' order simply because first

20     of all, the definite list of exhibits was provided Monday afternoon by

21     the Prosecution to the Defence, so less than the required 72 hours as

22     contained in the order.

23             Secondly, Your Honours' ruling was from yesterday, so our request

24     is whether the Court would allow the Defence to release our list with,

25     exhibits at the latest, tomorrow morning.

Page 1198

 1             JUDGE ROBINSON:  How long will the examination in chief be?

 2             MR. GROOME:  Your Honour, it's scheduled for five hours, Your

 3     Honour.

 4             JUDGE ROBINSON:  Five hours.  I see.  Yes, we'll allow that,

 5     then.

 6             MR. KNOOPS:  Thank you, Your Honour.

 7             MR. GROOME:  Your Honour, just a brief matter.

 8             JUDGE ROBINSON:  Yes.

 9             MR. GROOME:  In -- with respect to B-299, the Prosecution failed

10     to formally tender the 92 ter statement into evidence.  I'd like to do

11     that at this time if I may.  The Prosecution would tender document ID

12     B-299 Martic testimony as well as the two accompanying exhibits and they

13     are 65 ter number 2823 and 65 ter number 2824.

14             JUDGE ROBINSON:  We admit them.

15             Let the witness be brought in.  But before the witness is brought

16     in, I have to observe the accused Stanisic is not present and I will make

17     an inquiry of the court deputy as to whether she can inform us about his

18     attendance.

19             THE REGISTRAR:  Your Honours, Mr. Stanisic informed the court

20     that he is unwell to attend court today and he will neither be in the

21     video conference room and we are awaiting for the medical examination to

22     have more information regarding his health.

23             JUDGE ROBINSON:  By the medical examination, you mean the

24     standard form which is usually sent by the UNDU?

25             THE REGISTRAR:  Yes.  The nurse will examine Mr. Stanisic in the

Page 1199

 1     course of the morning and will inform us as to the results.

 2             JUDGE ROBINSON:  I am to say that it has taken more time than the

 3     Chamber had expected to complete the list of procedures.  We plan to

 4     complete that list of procedures to be followed in relation to the

 5     attendance of the accused and we'll issue that order this afternoon.

 6             Yes, Mr. Knoops.

 7             MR. KNOOPS:  Your Honour, may I.

 8             JUDGE ROBINSON:  Yes.

 9             MR. KNOOPS:  May it please the Court to be informed that the

10     Defence yesterday afternoon also tried to contribute to the expected

11     order by responding to the Prosecution's submissions so the Court should

12     have our submissions if correct right now.  I think they are filed at

13     9.00.  They were filed yesterday around 5.00 but I didn't see them on

14     the --

15             JUDGE ROBINSON:  I haven't seen them either but I certainly will

16     check to see that we have the benefit of --

17             MR. KNOOPS:  Some brief submissions also on our behalf to

18     contribute to the expected order.

19             JUDGE ROBINSON:  Yes.  Yesterday, you indicated that you had no

20     instructions from the accused.  What is the position today?

21             MR. KNOOPS:  Your Honour, that's actually still the same and

22     we'll also --

23             JUDGE ROBINSON:  When you say that, Mr. Knoops, is it that you

24     have tried to get instructions from him and you have failed?

25             MR. KNOOPS:  That is correct, Your Honour.

Page 1200

 1             JUDGE ROBINSON:  Meaning what?  That he hasn't been able to speak

 2     to you or communicate with you?

 3             MR. KNOOPS:  No, Your Honour, he is able to and willing to speak

 4     to us but he is simply not able to go into the case and discuss matters

 5     with us.  He's not able to intelligibly comment on documents and give us

 6     proper instructions.  On a repeated basis we visit the accused

 7     approximately two or three times a week and those visits last an average

 8     of approximately 30 minutes but which were not able to retrieve any

 9     sensible instructions from the accused.  That's why I remark yesterday

10     not to irritate the Court further with this matter, but it is my

11     obligation to mention that the current cross-examinations are without

12     those proper instructions we deem to have.

13             Of course especially with an important expert witness as

14     Mr. Nielsen, this will seriously hamper my abilities to conduct the

15     cross-examination I'm prepared to do and we prepared within the

16     boundaries of our duty, of course, the cross-examination but it's not

17     maybe a surprise that we are restricted in our abilities to effectively

18     go into all of the materials suggest.

19             JUDGE ROBINSON:  You were receiving instructions from the accused

20     all along.  When did this stop that you were not able to obtain any

21     instructions from him?

22             MR. KNOOPS:  Mr. President, actually, the account given by Dr. de

23     Man was -- is fairly accurate.  He mentions in his report that as of, I

24     recall, September/October last year, the situation gravely deteriorated

25     and also Dr. de Man referred to the fact that at that time, Mr. Stanisic

Page 1201

 1     was not able to work longer with the Defence team, not in terms of not

 2     willing to work but not able to work.  This is also our experience that

 3     actually until autumn last year, we were able to retrieve instructions

 4     and from then on, the situation became worse.  So in this regard, the

 5     account given by Dr. de Man is fairly accurate.

 6             So, you know, I can try again to the Court to request an

 7     adjournment and suggest that we wait for the medical report.  I know the

 8     Court's opinion so we will --

 9             JUDGE ROBINSON:  I am prepared to hear submissions, though.

10     Mr. Groome, you made a submission yesterday on this point.

11             MR. GROOME:  Your Honour, the Prosecution's position is that as

12     long as Mr. Stanisic is physically able to use the videolink facility,

13     that his failure to do so would be -- should be considered a voluntary

14     waiver of his right to participate.  I was concerned yesterday that we

15     were possibly proceeding under conditions in which it wasn't clear that

16     he was physically able so -- and that's why I had suggested on Friday

17     that I thought it was important for the Chamber to assess the evidence

18     before it and make a finding that he is in fact able to use those video

19     facilities and declined to do so.

20             One of the things that I have been considering raising with the

21     Chamber and I suppose now might be an appropriate time is it seems that

22     Mr. Stanisic is well able to go travel to Bronovo Hospital and to discuss

23     his medical condition with medical professionals.  It seems that it would

24     be entirely appropriate for the Chamber to actually bring Mr. Stanisic to

25     the courtroom and ask him what his position is.  It does not implicate

Page 1202

 1     any right against self incrimination.  I know that I would have a clearer

 2     view of his condition to actually hear him address the Court as to what

 3     he perceives his limitations on participation are.  So I'd ask the Court

 4     maybe to consider that.

 5             With respect to this morning, I mean hopefully the UNDU can

 6     provide us medical -- or provide the Chamber medical information first

 7     thing in the morning so that the Court can proceed.  It seems that the

 8     Court is put in a difficult position of having to wait around for the

 9     nurse to go and examine him.  It seems to me entirely reasonable that the

10     Chamber would direct the UN detention unit medical staff to make it a

11     priority to examine him 7.30, 8.00 in the morning so that when the Court

12     comes in it has the information it needs to make the decision that it

13     needs to make each day.

14             JUDGE ROBINSON:  We will do that but so far as today is

15     concerned, if we proceed, what would be the basis on which we are

16     proceeding?  I've been giving this matter some consideration overnight.

17     Prior to receipt of the certificate, would we be proceeding on the basis

18     that the accused is able to attend the video conference room and has not?

19     That was his position yesterday.

20             MR. GROOME:  Your Honour, I believe the only proper basis for the

21     Court to proceed would be upon a finding that he is able to use the video

22     conference but is declining, and there is some evidence before the

23     Chamber, his statement written down that he will not use it or he does

24     not want to use it.  But I think on a daily basis, unfortunately, the

25     Chamber is put in the position of having to make the decision as to

Page 1203

 1     whether or not he is being physically prevented, is he physically unable

 2     to use that video conference.  If the Court does find that because of his

 3     illness he is physically inable to use -- either come to Court or to use

 4     the video conference link, it seems that we're not proceeding on a basis

 5     that I believe is safe and possibly could be considered in error upon

 6     review of the Appeals Chamber.

 7             JUDGE ROBINSON:  You use the word "physically," Mr. Groome.  I

 8     presume not in the -- not in a narrow sense.

 9             MR. GROOME:  No, Your Honour.  With respect to fitness, Your

10     Honour, the Chamber has ruled on that and I believe that stands until

11     such time as the Chamber decides or should the Chamber ever, upon new

12     evidence, decide differently.

13             When I say "physical," I mean his entire holistic health and is

14     he able to go to that videolink, recognising that, from what information

15     that we have, that it's simply a short walk down the hall.  I must say

16     that I am somewhat curious as to how he is able to participate in these

17     other activities such as travelling to hospitals and discussing his

18     medical situation with other medical professionals but somehow keeps

19     reasserting that he's unable to walk down the hall and watch proceedings

20     on the TV screen.

21             But until we -- until the Chamber has before it clear information

22     from medical staff that he is able to do that, I think it's difficult for

23     the Chamber to proceed without it.

24             JUDGE ROBINSON:  So that notwithstanding, say, the certificate

25     that we received yesterday and which we are likely to receive again today

Page 1204

 1     to the effect that he is unwell to attend court, your submission is that

 2     the Chamber would be in a position to conclude that he is nonetheless

 3     well enough to attend the video conference room.

 4             MR. GROOME:  Your Honour, I believe the forms that the Chamber

 5     has been receiving and I think the Chamber's already recognised their

 6     inadequacy are largely initiated by Mr. Stanisic's decision that he is --

 7     his self assessment that he's not well.  And the vague statement that

 8     there are observable symptoms, I believe, is insufficient information for

 9     the Chamber.  It seems entirely possible that the medical staff could

10     make an oral report to the Chamber within minutes about what are the

11     observable symptoms so that the Chamber who has -- who upon rests the

12     primary responsibility not only for Mr. Stanisic's health but the

13     expeditious progress of these proceedings could make a determination.  So

14     if the observable symptom is that he has a cold or the observable symptom

15     is that he really is having to use the toilet every 30 minutes, the Court

16     could weigh that and make its own determination as to whether he is able

17     to use the videolink facility or whether he needs a day or two to

18     recuperate from whatever temporary illness he might be suffering that

19     prevents him from walking down the hall.

20             We know that many of the chronic illnesses that he has should not

21     prevent him from going down the hall to the videolink such as the kidney

22     stones, the osteoporosis, those should not prevent him from using the

23     videolink facility, so I think it's important that the Chamber have

24     specific information about what it is today that's been observed by the

25     medical staff that they believe corroborates Mr. Stanisic's statement

Page 1205

 1     that he feels too unwell to use the video conference link.

 2             JUDGE ROBINSON:  Yes, Mr. Knoops.

 3             MR. KNOOPS:  Your Honour, could I, with your permission, try to

 4     make a modest contribution?

 5             With respect to your question what the basis is to proceed today,

 6     I still believe that of course there is an element of voluntariness or

 7     decision to go to the videolink room, yet there is, on the basis of the

 8     report of Dr. Falke on the 2nd of May prima facie ground to assume that

 9     it's not totally the own decision of the accused.

10             First of all, Dr. Falke, and the Prosecutor pointed that out

11     yesterday, indicated that Mr. Stanisic was not able to use or to attend

12     or be able to attend the videolink conference on the 29th and there was a

13     medical reason indicated.  And secondly, in that letter, Dr. Petrovic

14     indicates the time frame of a potential recovery from the mental

15     problems.

16             Now, what is particularly striking that the information yesterday

17     was that the frequency of the stools has now been increased to every 30

18     minutes.  In connection with the pains, et cetera, which we all know from

19     medical evidence, it's fair to say that the decision to go or not to go

20     to the videolink conference room is in a way now supported by a medical

21     certificate other than the standard form relating to the observable or

22     non-observable symptoms.

23             And that's why, in our submissions of yesterday afternoon, we

24     suggested to the Court to indeed not restrict the term "physically" to

25     only the physical elements of the disease but also to take into account

Page 1206

 1     the mental elements.  Therefore, if the Court would order the UNDU to

 2     expand that form that this situation should be taken into account as

 3     well.

 4             As far as today's situation is concerned, it is our belief that

 5     at least there is a prima facie basis to say that it's not merely the

 6     nurse who wrote down the comment of Mr. Stanisic, because that document

 7     is supported by the underlying medical report of Dr. Falke of the 2nd of

 8     May which has not been superseded yet by any other more recent medical

 9     document.

10             And when you read the third paragraph of that report, Dr. Falke

11     relies upon the assessment of Dr. Petrovic, the psychiatrist in the UNDU,

12     that gives a clear indication about the ability of Mr. Stanisic to attend

13     the videolink conference.

14             So I believe that at the least, we should try to retrieve the

15     most recent information before proceeding.

16             Those are my submissions.  I hope that they will contribute to a

17     decision for the continuation of today's hearing.

18             JUDGE ROBINSON:  If the report which we will receive is in the

19     same form as yesterday, what, then, would your submission be?

20             MR. KNOOPS:  Our submission, Your Honour, is that it's not merely

21     a subjective decision made by the accused not to go to the video room

22     conference, but that decision has merit in an objective medical report,

23     namely that of the 2nd of May of Dr. Falke confirmed or not confirmed

24     today by any other document.  And in light of Your Honours' last ruling

25     as to the requirements to continue with the trial on the basis of

Page 1207

 1     videolink participation, it seems to me that we shouldn't try to

 2     interpret the criteria too narrowly, that in light of the medical

 3     evidence that lies before the Court now, one could say also here the

 4     benefit of the doubt should go to the accused if there is a prima facie

 5     basis that there are indeed objective symptoms such as increasement of

 6     stools every 30 minutes.  It seems to us that it's not possible for this

 7     defendant to sit in the videolink conference and participate in the way

 8     we would expect.

 9             So in answer to your question, Your Honour, I would say that if

10     the information is equal to the information of yesterday or the 2nd of

11     May, the conditions to continue with the videolink conference for today

12     are not met and that there is an --

13             JUDGE ROBINSON:  That would primarily be because of the report

14     yesterday which spoke of a 30-minute frequency in stools.

15             MR. KNOOPS:  That's correct, Your Honour, in combination with the

16     third paragraph in the report of Dr. Falke when he relies upon the

17     information Dr. Petrovic saying although she is mildly positive, the

18     treatment she is now undertaking will give any results, I believe she

19     told the Court through the letter of Dr. Falke within a couple of weeks.

20     But still, apart from the issue of the stools and the impact on the level

21     of participation through videolink conference, of course, we still submit

22     there is a second element, namely whether the defendant, preoccupied by

23     his illness and his depression, is able to, apart from sitting as a

24     physical object in the videolink conference, intelligibly contribute to

25     the proceedings and assist the Defence in a general and basic level.

Page 1208

 1             So we still believe that apart from the issue of the stools, the

 2     medical condition should be perceived broader.  And I believe this is

 3     also --

 4             JUDGE ROBINSON:  There is no indication that it is being

 5     perceived narrowly.

 6             MR. KNOOPS:  No, but Your Honour requests me to comment on should

 7     we only look at the element of the stools.  My submission is that, and I

 8     believe it's the message of Dr. Falke, that the letter of the 2nd of May

 9     aims at the two elements:  The physical ability and also the mental

10     ability to sit there and participate through the videolink conference.

11     So I'm not suggesting that the Court is going to look at it narrowly but

12     I'm just responding to your remark whether the Court should only look at

13     the physical symptoms we were informed of yesterday or whether we should

14     also take the issue broader.

15             And it's our view that the issue should be taken a little bit

16     broader, namely the whole context of the letter of Dr. Falke of the 2nd

17     of May, and I don't believe that Dr. Falke, without merit, pointed to the

18     recent information Dr. Petrovic, and we believe it's an essential element

19     of the overall medical situation.

20             So if we speak about observable symptoms, I believe that should

21     not be restricted just to the physical symptoms such as stools or kidney

22     problems but it should also include the ability in terms of the mental

23     ability of the accused to sit there.  Because as I just explained to the

24     Court, it's -- the problem for the Defence is that the defendant is

25     mentally not open due to his disorder, to his illness, to go into

Page 1209

 1     discussion about documents.  So we experience this really as part of the

 2     overall medical situation.

 3             I'm not trying to, of course, reopen the fitness issues, but I

 4     really hope that the Court would indeed take the issue a little bit

 5     broader than the submissions of the Prosecution.  The Prosecution

 6     suggested several questions to Your Honours such as, Mr. Stanisic, are

 7     you physically able to go to the video room conference --

 8             JUDGE ROBINSON:  I asked Mr. Groome whether he was using the word

 9     "physical" narrowly.  English is not your native tongue.

10             MR. KNOOPS:  Yes.

11             JUDGE ROBINSON:  And he said no.  So you can use the word

12     "physical" in the way which Mr. Groome used it to comprehend both mental

13     and what one would ordinarily call physical capacities and he said he was

14     using it in that holistic manner.  And that is what I understand, you

15     know.  I don't think you can compartmentalise one's health.

16             Mr. Groome, I understand Mr. Knoops to be saying that at least

17     the 30-minute stool factor is -- I see we now have -- can you get copies

18     for the Judges.

19             The 30-minute stool factor operates to prevent the accused from

20     being in attendance for the viewing of the videolink.

21             MR. GROOME:  Your Honour, I think, and this again reaffirms why I

22     think it's so important the Court have direct objective information about

23     this.  We do not know whether that's a self-report.  Is that Mr. Stanisic

24     saying that throughout the night, I've had to use the toilet every 30

25     minutes or is it someone in the detention unit, medical staff or in the

Page 1210

 1     general prison staff saying that Mr. Stanisic has had to be moved to a

 2     toilet every 30 minutes.  So that's why I believe it's important for the

 3     Chamber to have independent information.

 4             JUDGE ROBINSON:  May I ask, would you get copies of this, Madam

 5     Court Deputy, for the parties because we now have the UNDU absent from

 6     the court due to illness report.  It's not been signed by the accused,

 7     which means he hasn't waived his right.  On the second page, the

 8     principal officer says that the detainee has refused to sign.  In the

 9     column other comments, it says, "Can't go to video room also."

10             In the column for the UNDU medical service, it says that the

11     detainee has been examined.  He has observable symptoms, indicating that

12     he may feel too unwell to attend court.  4(b), an assessment that this

13     illness will require an extended period of convalescence.  It doesn't say

14     what that period is.  The medical officer has been informed and in the

15     column "other comments:  He has frequent stool every 30 minutes."

16             It's pretty much what we had yesterday.  Just a minute,

17     Mr. Groome.

18                           [Trial Chamber confers]

19             JUDGE ROBINSON:  Mr. Groome, any submissions now that we have the

20     UNDU report?

21             MR. GROOME:  Your Honour, again, I believe it does not have the

22     specific information about the observable symptoms.  One suggestion I

23     would make to the Chamber is, we have this video conference link.  Could

24     we not have the registrar ask the nurse who examined him today to come to

25     the videolink room and answer a short -- some short questions by the

Page 1211

 1     Chamber so the Chamber will have the information that it requires.

 2     Similarly, would it not be also wise to have Mr. Stanisic be brought to

 3     the video conference link so the Chamber can ask him some questions.

 4             Certainly, the questions, I would think, would be less than 30 --

 5     would take less than 30 minutes.  I believe at that stage the Chamber

 6     would have the information it needs to make the decision as to whether

 7     Mr. Stanisic is refusing to make use of the videolink facility, thereby

 8     voluntarily waiving his right to be present for these proceedings, or

 9     whether he is in fact too ill today to participate.

10             JUDGE ROBINSON:  Mr. Knoops.

11             MR. KNOOPS:  Your Honour, we believe what we pointed out earlier

12     this morning that the last report of Dr. Falke of the 2nd of May actually

13     contains the confirmation about exactly what the observable symptoms are

14     so it's --

15             JUDGE ROBINSON:  What was in that report?

16             MR. KNOOPS:  The report which was of the 2nd of May.  I believe

17     we only received it yesterday.  It was discussed yesterday morning.  It

18     was the second and third paragraph of that report.

19             The report didn't even mention the frequency of the stools by

20     then, so this is actually in addition to what Dr. Falke wrote on the 2nd

21     of May.

22             JUDGE ROBINSON:  Thank you, Mr. Knoops.

23                           [Trial Chamber confers]

24             JUDGE ROBINSON:  I'm going to ask the court deputy to have the

25     registrar transmit to the UNDU the Trial Chamber's request that the nurse

Page 1212

 1     who examined Mr. Stanisic come to the video conference room and answer a

 2     few questions from the Chamber.  We believe that the Prosecutor is right

 3     when he says that the Chamber does not have the information that it needs

 4     to make a proper determination of this important question.

 5             We estimate that this could be arranged within half an hour and

 6     so we'll adjourn for half an hour.  In the meantime, I would ask the

 7     court deputy to be in touch with the Chamber if there is any problem in

 8     implementing this instruction.

 9                           --- Break taken at 9.40 a.m.

10                           --- On resuming at 10.20 a.m.

11             JUDGE ROBINSON:  May I inquire from the court deputy whether the

12     videolink has been set up so that we may ask the nurse some questions?

13             THE REGISTRAR:  Your Honours, the videolink is running and the

14     nurse is awaiting in the video conference room.

15                           [Technical difficulties]

16             JUDGE ROBINSON:  You were not heard, so please repeat that.

17             THE REGISTRAR:  Your Honours, the videolink is running and the

18     nurse is awaiting in the video conference room.

19             JUDGE ROBINSON:  Thank you.  It has been -- there is a noise,

20     there is a constant buzzing sound.  Are we able to proceed?

21             THE COURT REPORTER:  Yes, I'll just have to interrupt if I can't

22     hear.  Sorry.

23             JUDGE ROBINSON:  Well, let us try to proceed.  I observe that

24     when I speak the noise stops.  It's still going on.  It has been

25     suggested that this part of the hearing should be in private session so

Page 1213

 1     we'll move into private session.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 1214











11 Pages 1214-1225 redacted. Private session.















Page 1226

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17                           --- Whereupon the hearing adjourned at 11.00 a.m.

18                           to be reconvened on Thursday, the 8th of May,

19                           2008 at 2.15 p.m.