1 Friday, 9 May 2008
2 [Open session]
3 [The accused Simatovic entered court]
4 [The accused Stanisic is not present]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE ROBINSON: We are here again for this trial. The accused
7 Stanisic is not present. May I ask the court deputy whether she has any
8 information about his attendance.
9 THE REGISTRAR: Your Honours, we know that the accused will not
10 be present in court nor in the VTC room today, but we haven't received
11 the report yet and we are awaiting it any minute.
12 JUDGE ROBINSON: How do you know that he will not be present in
13 court or the VTC room.
14 THE REGISTRAR: I received a call from the UNDU at 8.10 in the
15 morning, and I was informed that the report is coming.
16 JUDGE ROBINSON: The report is coming. Court starts at 9.00.
17 The report ought to have been here and that was made clear in the order
18 that we issued yesterday. There is some degree of negligence, therefore,
19 on the part of the UNDU, and I intend to take this up.
20 In the absence of the report, let me hear -- Mr. Groome, what
21 submissions would you make?
22 MR. GROOME: Your Honour, I think the protocol that the Court
23 established yesterday is a good one and ensures that we always proceed on
24 a legal basis. According to that protocol, a prerequisite to commencing
25 hearings is to have the information the Chamber needs to have before it
1 can make a decision whether it can proceed. It's unfortunate the report
2 is not here but it seems to me that the most prudent course of action
3 would maybe to have the court officer call the did he tension unit and at
4 least get an oral reading of what is in that report so the court can make
5 some determination whether we can proceed.
6 JUDGE ROBINSON: This is exceedingly frustrating but not only
7 frustrating, it's becoming quite annoying. The report ought to have been
8 here, and I'm very annoyed about that and I'd like that to be passed on
9 to the registrar himself, the annoyance of the Chamber of the manner and
10 which the UNDU is treating it in such an important matter.
11 I'm going to adjourn for 15 minutes and see whether we can get
12 the medical report from the UNDU. We are adjourned.
13 --- Break taken at 9.05 a.m.
14 --- On resuming at 9.28 a.m.
15 JUDGE ROBINSON: We now have the medical certificate from the
16 UNDU signed by Dr. Falke, and I'd like to inquire whether the parties
17 also have it?
18 MR. GROOME: The Prosecution has it, Your Honour.
19 MR. KNOOPS: We have it, Your Honour.
20 JUDGE ROBINSON: Okay.
21 MR. JOVANOVIC: [Interpretation] Yes, Your Honour.
22 JUDGE ROBINSON: I'll just go through the main points of the
23 report. First, as a general comment, I'd like to say that an obvious
24 attempt has been made to meet the requirements set out in the Chamber's
25 directive yesterday. The report is quite detailed.
1 In the second paragraph, he says that the accused is still very
2 fatigued, in fact, incredibly fatigued. He appears incredibly fatigued
3 but more slightly positive in his outlook and that suggests that his
4 depression may be beginning to react to the treatment, but he considers
5 that the accused remains in a vulnerable position. Moreover, his ongoing
6 frequent stools with blood loss and that has been witnessed by the
7 guards, the nurses and himself, create a lot of mental stress and
8 physical fatigue and social handicap.
9 He also refers to recent blood tests which confirm a decreasing
10 haemoglobin reading and that is indicative of a substantial blood loss.
11 He makes a point that Dr. Kazimir, the gastroenterologist, changed the
12 medication regime yesterday and it would take some days to show an
14 He concludes, based on those observations, that the accused is
15 still too ill to attend court but if his mental condition continues to
16 show the level of improvement in the past week, and if the depression
17 lifts, then he is of the opinion that he may be capable of instructing
18 counsel in the coming weeks.
19 He reiterates his position that he does have -- that is he, the
20 accused, does have a broad understanding of the trial process and that he
21 could grasp the general thrust of what is said in court. Then he says,
22 at this stage, therefore, the ability of the accused to participate by
23 video-conference link is limited.
24 There is a last paragraph which appears to be a kind of policy
25 reaction to the order of the Chamber and I don't intend to spend much
1 time on that.
2 So we have here a report which is fairly detailed for the first
3 time. Significantly, the doctor says that if the depression of the
4 accused continues to lift, then he may be capable of instructing counsel
5 in the coming weeks.
6 May I ask first, Mr. Groome, whether he has any comments.
7 MR. GROOME: Your Honour, the Prosecution agrees with the Chamber
8 that this is the type of detailed report that it does need and recognises
9 that the thing that's most troubling to the Prosecution is the
10 substantial blood loss that seems to be confirmed by at least three
11 members of staff of the detention unit as well as by blood tests so it
12 seems to be an objective corroboration that he has lost blood.
13 I do take issue with the comments about instruction and
14 depression. The Prosecution does not accept as logical that Mr. Stanisic
15 has the capacity to instruct his doctors yet somehow does not have the
16 capacity to instruct counsel so my recognition of the physical ailment
17 which I believe is rather temporary is in no way an endorsement of the --
18 of this assessment that he is unable at this stage to instruct his
19 counsel. In fact, I think the evidence of Dr. Mimica during the fitness
20 hearing was that even despite the depression, he does retain and should
21 still retain the capacity to speak with his counsel.
22 However, I think there is also some good news in this. Dr. Falke
23 assessment of his recuperation period just a few weeks ago was three to
24 six months. In the 2nd of May report, he had given us a more optimistic
25 assessment saying 6 to 12 weeks and here Dr. Falke is now saying in the
1 coming weeks, so I mean the Prosecution is happy to hear that
2 Mr. Stanisic is improving under Dr. Falke's care and it is our
3 expectation that we will be able to continue at a proper speed in the
4 near future.
5 With respect to what we do today, again, I feel I'm in the same
6 position as yesterday with respect to the -- his physical condition. It
7 seems that the substantial blood loss is something that is corroborated.
8 I do want to point out to the Court and I have no specific relief
9 that I'm seeking but there are -- all of this has presented some terrible
10 difficulties for witnesses, for example, Mr. Josipovic who is upstairs, I
11 think this is the third time now that we have scheduled him, and he's
12 having increasing problems with his employment. I'm not -- it's not a
13 problem that I think the Chamber can solve and nor should it be a problem
14 that influences the Chamber's decision to proceed today, but if the Court
15 is considering an adjournment I had earlier proposed a protocol where if
16 we just had one day's notice so if it is possible if the Court is going
17 to adjourn, Mr. Josipovic is here until next Tuesday. He's prepared to
18 be here. He's taken off for Tuesday so if the Court wants to adjourn the
19 case until Tuesday, hopefully Mr. Stanisic will be well and Mr. Josipovic
20 will be here.
21 If for some reason Mr. Stanisic is not well next Tuesday, I would
22 ask the Court if it is possible to at least have a day where we assess
23 his health and then we could have the witnesses here in 24 hours but it
24 is becoming increasingly difficult to bring witnesses to Denmark
25 the region, there is Mr. Kirudja is due to fly in from Sunday night from
2 mind as it schedules adjournments.
3 JUDGE ROBINSON: Not just the difficulty, the expense.
4 MR. GROOME: A tremendous expense, Your Honour.
5 JUDGE ROBINSON: I think the expense is a factor that can't be
6 discounted in considering all of this.
7 I'm not sure I understood, Mr. Groome, about the correlation that
8 you appear to be making between the accused's ability to what you call
9 "instruct his doctors" and his ability to instruct counsel because to
10 give information to your doctors about your health or to give them
11 information on the basis of which the doctors may come to a conclusion as
12 to your condition I would see as an entirely different matter from the
13 ability to instruct counsel.
14 MR. GROOME: Your Honour, my position would be that the ability
15 to instruct counsel really rests on whether there is a cognitive defect,
16 is there a cognitive capacity to say I agree with this or I disagree or
17 my memory differs with what the witness has said and it does not seem
18 that we have had any evidence other than that Mr. Stanisic's depression
19 has made him less willing to be an active participant but there's been
20 nothing to indicate that he has lost the capacity to be able to say to
21 Mr. Knoops what that witness says is incorrect, my memory of the event is
23 So to the extent that he is still able to recall his medical
24 history and to discuss with his doctors his treatment it sometimes
25 illogical to take from that he isn't also able to discuss with Mr. Knoops
1 particulars about his defence and instruct him as to the position that he
2 wishes Mr. Knoops to take.
3 JUDGE ROBINSON: Yes. Mr. Knoops.
4 MR. KNOOPS: Thank you, Your Honour. Your Honour, the Defence
5 observes with the Prosecution that the report is objective in that it
6 contains verifiable data for the Court to assess whether there is reason
7 for an adjournment for today.
8 As to the comparison between instructing doctors and instructing
9 counsel, we believe that comparison is moot. The instruction of doctors
10 does not rely upon merely referring to the medical history. As the Court
11 may have noticed, this report does not reflect to the medical history of
12 the accused as such but simply outlines the current medical situation.
13 Therefore, we refute the notion that Mr. Stanisic, by speaking to the
14 doctor or doctors would also be able to instruct counsel.
15 In the second place, we believe that although, and that should be
16 stressed as well, for the Defence it is maybe -- sounds strange but
17 frustrating as well because within the position we have, we also prepare
18 the examinations and cross-examinations but still, of course, I have my
19 duty to protect the rights of the accused.
20 In this regard, bearing in mind paragraph 12 of your Court ruling
21 of yesterday, I believe that there are two reasons for the Court to
22 consider why we, for today, could not continue.
23 First of all, Your Honours have ruled in paragraph 12 that:
24 "When it concerns the capability of the accused of effective
25 participation in the proceedings against him, the Court has actually two
1 factors in mind. First, the broad understanding of the nature of the
2 process and the general thrust of what is said in court." Dr. Falke says
3 this is still the situation as I testified during my appearance before
4 the Court. There's no difference in that.
5 Secondly, Your Honours have held in paragraph 12 as a second
6 element that, in particular, "It must be satisfied that the accused must
7 be able to instruct his counsel effectively." This is exactly what the
8 report now indicates to us. The report of Dr. Falke clearly says that
9 depending on the lifting of the depression in the coming weeks, he may be
10 capable of instructing counsel. So I believe that that condition of Your
11 Honours' ruling in paragraph 12 is not met.
12 Second reason is that although Dr. Falke writes that at this
13 stage, the ability of Mr. Stanisic to participate by videolink is
14 limited, Dr. Falke, as the Court may have observed, does not speak about
15 the effective participation by videolink conference.
16 Now, it's my understanding of Your Honours' ruling that the
17 participation through the videolink conference should also be situated
18 within the criterion of effectiveness. Paragraph 12 of Your Honours'
19 ruling clearly refers to the words "to determine whether the accused is
20 capable of effective participation in the proceedings against him."
21 Now, Dr. Falke does not indicate that this is the case. I
22 believe this is the second reason why, on the basis of paragraph 12 and
23 13 of Your Honours' order, we could, on that basis, not proceed.
24 Lastly, although the Prosecution points to the fact that the
25 report does not refer to any cognitive limitations or disabilities of the
1 accused, it is, of course, important to observe that Dr. Falke confirms
2 that Mr. Stanisic is still in an vulnerable situation, in a delicate
3 position where external factors may jeopardise his mental health and
4 particularly I draw the attention to the words that that "all the ongoing
5 frequent stools," et cetera, "create a lot of mental stress, physical
6 fatigue and social handicap." In combination with his other
7 observations, we consider that the parameters of Your Honours' order are
8 not met for today and therefore, we consider if the Court would give
9 consideration not to proceed today with the expert.
10 As to the last suggestion by my learned colleague, Mr. Groome,
11 the Defence has no objection that if Your Honours would accept that
12 practical solution that -- that solution is adopted by the Court in that
13 the situation would be evaluated one day before coming in of the witness
14 in question. I can also understand that this will maybe be an incentive
15 for witnesses to cooperate with the Prosecution.
16 Lastly, although the report has indeed certain positive elements
17 for improvement, it is for the Court I think important to observe that
18 the prospects which are outlined by Dr. Falke are based on certain
19 conditions as mentioned in the third paragraph.
20 As for today, we believe that, therefore, the conclusion is
21 justified that we could not proceed on the basis of the two elements,
22 namely the absence of an effective possibility to instruct counsel not to
23 be equated with instructing doctors. Secondly, not an effective
24 participation possibility by the video conference link.
25 Thank you very much.
1 JUDGE ROBINSON: It seems to the Chamber to be quite clear that
2 we can't proceed today in light of this report which concludes that the
3 accused is still too ill to attend court and that conclusion is
4 substantiated by the reports referenced to symptoms and other matters
5 which indicate the unwellness of the accused for today's proceedings.
6 I would like to consider, though, the report's finding that if
7 the depression continues to lift then he may be capable of instructing
8 counsel in the coming weeks. Now, by "the coming weeks" I would take
9 that to mean perhaps two weeks, one or two weeks. So I would then be
10 watching to see what happens over that period, the next one or two weeks,
11 and if the situation remains unchanged, then I believe it will be
12 incumbent on the Chamber as well as the parties to consider other
13 measures to deal with the continuation of this case which, after all, has
14 two accused.
15 I consider it to be the responsibility of the Prosecutor in that
16 regard to take account of all possible measures to ensure that this trial
17 gets going, has not -- we have not been able to move it, in my view,
18 which -- the Chamber has acted as responsibly as could be expected of it
19 in the circumstances with regard to its role in the administration of
20 justice in the Tribunal taking account of the interests of the accused,
21 ensuring that his health is safeguarded, while at the same time also
22 seeking to ensure that the prosecution of persons for serious violations
23 of international humanitarian law is not jeopardised. These are the two
24 interests that have to be very carefully balanced by the Tribunal in this
1 We are encouraged by the report's finding that within a -- what
2 is called "the coming weeks," we may see some light at the end of the
3 tunnel in terms of the accused been able to instruct counsel, but if at
4 that time we remain in the same position, then my view is that we have to
5 consider some other way of dealing with this matter. We can't continue
6 to come to court every day, sit for five, ten minutes, and do nothing.
7 We have been at this for over two months now. It's a very expensive
8 procedure. There is a matter of the witnesses. And I should say in that
9 regard immediately that the Chamber will adopt the procedure suggested by
10 the Prosecutor. We have to be aware that it is witnesses who make a
11 trial possible. Without witnesses, we have no trial, and we should do
12 everything that is reasonable to facilitate witnesses and so the Chamber
13 will adopt the measure suggested by the accused and we have every
14 sympathy for Mr. Josipovic. We are saddened to hear that his employment
15 may be threatened by what has happened or not happened in these
16 proceedings, and we would encourage his employer to have regard to the
17 civic responsibility of Mr. Josipovic to give evidence in this important
19 Did you want to say something, Mr. Groome?
20 MR. GROOME: I do want to raise one point with the Chamber. I'm
21 concerned that the ability to instruct counsel is one of the questions
22 and one of the essential components of fitness. I'm concerned that we
23 may make any determination or the Court may make any determination based
24 on that based upon the observations of Dr. Falke which clearly it's
25 outside his expertise. If it ever comes to a point where the Court
1 questions whether Mr. Stanisic is able to instruct counsel and -- as part
2 of its overall evaluation of his fitness to stand trial, I think the more
3 appropriate action would be to have him examined by a psychiatrist such
4 as Dr. de Man or one of the other psychiatrists that have examined
5 Mr. Stanisic in the past.
6 Some of our research into what happens in the Dutch system is
7 that a proper determination of fitness in the Dutch system takes place at
8 a facility in Utrecht
9 possibility of having a another procedure where it's done in another
10 detention unit or in a local hospital but I just would urge caution on
11 the Chamber to allow Dr. Falke's observations about his ability to
12 instruct counsel to kind of extend past his area of competency into what
13 is properly reserved for professionally-trained forensic psychiatrists.
14 JUDGE ROBINSON: Yes, I hear the submissions that you have made,
15 Mr. Groome. We, at this moment, are not considering the fitness of the
16 accused to stand trial. We have already made a determination on that
17 issue. Inevitably, I think the wellness of an accused or the wellness of
18 this accused to attend court proceedings on a particular day would have
19 to be seen broadly, I think, as a subset of the more general issue of his
20 fitness for trial and so in that regard, Dr. Falke being the UNDU
21 practitioner is, in my view, quite competent to comment on it but I take
22 your point that if the Chamber were to take -- were to be inclined to
23 take a definitive position on that issue, it might want to consider
24 getting evidence from an expert, a specialist in the area.
25 Yes, Mr. Jovanovic.
1 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. I would
2 like to seize this opportunity to raise an issue rather hesitantly,
3 rather, to let the Trial Chamber know the position of the Defence rather
4 than to raise anything.
5 It was the first time on the 17th of March that we appeared
6 before the Trial Chamber and since that time, the registrar had not
7 passed a decision concerning the financing of the Defence. The position
8 of the Defence was that we were in the pre-trial stage until the 28th of
9 April when the Prosecution delivered their opening statement. Therefore,
10 we are in a highly unfavourable situation and as a Defence counsel, I am
11 duty-bound towards my members of the team. I also had difficulties in
12 justifying my expenditures in March because the position of the registry
13 was that I should not have stayed here as long as I did, and that was
14 based on the schedule published by the Trial Chamber. This is what I
15 want the Trial Chamber to know.
16 In addition to that, I should like to let also the Trial Chamber
17 know that the current position incurs a great expenditure from the
18 Tribunal. I know the registrar is expecting to receive an estimation of
19 the complexity of the case and all the other matters that are necessary
20 to determine the platform for the financing of the Defence. This has not
21 been done as yet by the registry. That's what I wanted to let the Trial
22 Chamber know.
23 JUDGE ROBINSON: Thank you, Mr. Jovanovic.
24 Well, as you very well know, matters of that kind are primarily
25 matters for the Registrar himself. There may come a situation, an
1 occasion in which the Trial Chamber becomes involved if a question of
2 fairness is raised. I would only want to take the opportunity to bring
3 what you have said to the attention of the Registrar and to ask him to do
4 everything within his power and within the terms of the Regulations that
5 govern these matters to ensure that the Defence is properly resourced for
6 the trial.
7 The trial is a very important one. The trial has been plagued by
8 delays and it seems to the Chamber that the Registrar must take this into
9 account. If Defence counsel has to be in The Hague because of delays
10 occasioned by the illness of an accused, then it appears to us that this
11 is a matter to which the registrar must attend and give due regard but I
12 don't want to say any more on that issue because the matter as I said is
13 essentially one for the registrar.
14 We will therefore adjourn until Tuesday morning, 9.00.
15 --- Whereupon the hearing adjourned at 9.58 a.m.
16 to be reconvened on Tuesday, the 13th of May, 2008,
17 at 9.00 a.m.