Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1248

1 Tuesday, 13 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: Well here we are again. Mr. Stanisic is absent

7 and his absence is very well explained in the two reports which we have

8 received and I imagine the parties have also received. Have you received

9 the ...

10 MR. GROOME: Yes, Your Honour, just a few minutes ago.


12 MR. KNOOPS: Yes, Your Honour, we received the report, thank you.

13 JUDGE ROBINSON: And Mr. Jovanovic.

14 MR. JOVANOVIC: [Interpretation] Yes, Your Honours.

15 JUDGE ROBINSON: I will deal first with the report of the medical

16 officer, Dr. Paulus Falke. It is dated the 13th of May. He says that

17 for the past five days, including this morning, he examined Mr. Stanisic.

18 Mr. Stanisic was losing blood with his bowel movements about six to eight

19 times each day and that indeed, he says, was observed by the guards. He

20 had a slight fever, unsteady on his legs and very tired. He could hardly

21 participate in any social activity.

22 His son was visiting him but twice, Mr. Stanisic had to terminate

23 the visit after a short time owing to fatigue, following which he went

24 back to his cell.

25 As a result of all of that, Dr. Falke says he's planning to have

Page 1249

1 him admitted into the penitentiary hospital this week so that his

2 condition may be monitored and observed more closely and his initial

3 proposal to the hospital staff will be for one week of close observation.

4 Yesterday, Dr. Falke says he called Dr. Kazimir, the treating

5 gastroenterologist, and discussed with him Mr. Stanisic's situation at

6 length on the phone. He, that is, Dr. Kazimir, apologised to Dr. Falke

7 about the delay of his reports. Dr. Falke says that he has an

8 appointment with him later today to discuss the technical aspect of the

9 reporting process in this case.

10 They also discussed the medical treatment and made some changes.

11 They both agreed that his bowel problem, the pouchitis, seems to

12 invalidate him a great deal.

13 Dr. Falke also discussed the condition of the accused with

14 Dr. Petrovic, his treating psychiatrist. She agrees that there is a

15 significant improvement in his depression but nonetheless advises

16 strongly against the video conference link at this stage due to the fear

17 of relapse. His condition is still vulnerable.

18 He concludes by saying that although during the hearings of the

19 28th April, he mentioned that Mr. Stanisic could try to use the video

20 conference link at some time in the future, he's of the same opinion as

21 Dr. Petrovic at this time. You will remember that Dr. Petrovic had

22 advised strongly against Mr. Stanisic using the video conference link.

23 So that report is fairly detailed. We will learn later whether

24 Mr. Stanisic has been admitted to hospital.

25 We also have a report which again indicates that the procedures

Page 1250

1 established by the Chamber last week are being complied with in terms of

2 reporting. This comes from Mr. Fraser Gilmour and there's no need for me

3 to go through that.

4 It seems clear that we are not in a position to continue today in

5 the absence of Mr. Stanisic. On the basis of this report, he's neither

6 able to come to court nor to follow and participate in the proceedings by

7 video conference link.

8 Now, Mr. Groome, do you have any observations?

9 MR. GROOME: The only information that I would provide the Court,

10 Your Honour, is that the witness that we had scheduled for this coming

11 next Monday actually because of special travel arrangements that had to

12 be made for that witness, it's a non-refundable ticket so if I might

13 suggest, if it seems that he's going to be hospitalised this week, then

14 maybe we would hopefully be able to try again Monday. As I say, the

15 ticket is a non-refundable ticket so the witness will have to travel here

16 or the Tribunal will lose the value of the ticket so perhaps that might

17 be one way to proceed.

18 JUDGE ROBINSON: Mr. Knoops.

19 MR. KNOOPS: Your Honour, good morning. We, as Defence believe

20 that based on the order of Your Honours of the 8th of May, there is ample

21 reason to not continue today and based on the letter of Dr. Falke of the

22 13th of May, we submit to the Court that it might be considered to

23 adjourn for this week in terms of the hospitalisation and as far as we

24 know, Mr. Stanisic was brought to the hospital this morning although we

25 don't have confirmation of that yet, but we were informed that indeed he

Page 1251

1 is or will be brought today to the hospital.

2 Thank you.

3 JUDGE ROBINSON: May I ask the views of the parties on this

4 question. For how much longer can a responsible Chamber continue to come

5 to court and not proceed with the trial in the circumstances where there

6 is another accused awaiting trial?

7 There is a measure that the Chamber can take. It would be a last

8 resort, but we need to ensure, of course, that we are acting properly and

9 that we have exhausted all other alternatives.

10 As I indicated at the last session, this is a matter in which

11 both parties have an interest and I'd like to just hear some views, even

12 if they are preliminary, from the parties on that question.

13 Mr. Groome.

14 MR. GROOME: Your Honour, these views would be preliminary. I

15 would ask for an opportunity to discuss this matter with the Prosecutor

16 to give any final position.

17 Bit it would seem to me, Your Honour, that what we know from the

18 fitness hearing is that at least with respect to the pouchitis, we were

19 told that there would be isolated temporary flare-ups from time to time

20 and that they really shouldn't hold us back too much but they were

21 something to be expected.

22 And it seems that what we're facing today is exactly that, it's

23 an isolated flare-up that I think we can expect hopefully this week to

24 clear up and that should not reoccur for some period of time.

25 With respect to the depression, all indications that are he's

Page 1252

1 actually improving and here we have today that there's significant

2 improvement so I think as frustrating as this is for all of us and as

3 frustrating as it is for witnesses, I think it's important that we don't

4 let that frustration affect our best decision in this matter. I agree

5 with you severance would be the last possible -- or the last and most

6 severe remedy to this problem but I don't believe we're anywhere near

7 that at this stage. It's my expectation that next Monday or shortly

8 thereafter, he will be physically able to use that videolink and it seems

9 clear that his depression is lifting and that he will be able to

10 participate.

11 I do recognise, as does the Court, that there may come a time

12 that we do have to have a difficult discussion and the Prosecution will

13 have to adopt a position with respect to how we proceed. But I don't

14 believe we're near that yet despite the enormous frustration, I think,

15 that all of us are feeling at the stalled progress of the trial.

16 JUDGE ROBINSON: We have been at this for about two months.

17 Mr. Knoops.

18 MR. KNOOPS: Thank you, Your Honour.

19 Your Honour, our position as Defence counsel for Mr. Stanisic is

20 still the same, that we still support the idea as ventilated earlier

21 during the sessions that in order to have the defendant capable of

22 attending trial or the video conference, it's not a matter of weeks but

23 probably longer.

24 May I recall that the letter of Dr. Falke of the 9th of May

25 refers to --

Page 1253

1 JUDGE ROBINSON: What do you mean by -- how much longer? You

2 have made a submission on this, you said, previously? Just remind us

3 what it is.

4 MR. KNOOPS: Well, we rely on this in this regard on the

5 prognosis of Dr. de Man who testified that it would take three until six

6 months for a recovery in its full scope. This is what I refer to, Your

7 Honour.

8 We also as Defence counsel for Mr. Stanisic underline the need

9 for an expeditious trial, yet we cannot ignore the situation as it is

10 now. Even if the depression would be lifted at a certain moment, we're

11 still dealing with the situation that the pouchitis and the annexed

12 physical problems cannot be cured but only stabilised.

13 Dr. Falke in his letter of the 9th of May refers to, "If the

14 depression is lifted then I would opine that he may be capable of

15 instructing counsel in the coming weeks."

16 So of course we share the hope of Mr. Groome that by next week,

17 the hospitalisation will have affected the accused in a positive way.

18 We're still, of course, faced with the expectation of Dr. Falke as laid

19 down in his letter of the 9th of May.

20 I do recognise, of course, that a matter of severance of the

21 cases is indeed procedurally an issue of last resort. Therefore I'm as

22 Defence counsel of Mr. Stanisic quite hesitant to submit at this stage to

23 the Court that such a request should be considered by the Court either

24 proprio motu or should be initiated by the Prosecution or Defence counsel

25 of Mr. Simatovic.

Page 1254

1 It might be an idea to wait until next week what results came out

2 of the hospitalisation but even if we take that into account that the

3 physical state of the accused is -- will be such that he could

4 technically attend videolink conference, we're still faced with the

5 prognosis of both Dr. de Man and Dr. Falke as mentioned in his letter of

6 the 9th of May that the question of the effective participation during

7 the videolink conference is of grave concern, and I refer in this regard

8 to paragraphs 12 and 13 of the order of the 8th of May where Your Honours

9 also share the opinion that attending a videolink conference is one thing

10 but participating in an effective way is another thing.

11 So in sum, although we acknowledge the right for an expeditious

12 trial and we as the Defence counsel of Mr. Stanisic have interest in such

13 a trial in an expeditious way as well, we cannot ignore the situation

14 that the full recovery of Mr. Stanisic might take longer than the week

15 hospitalisation we are now facing.

16 That being said, I don't think it's my position, I'm not in a

17 position to initiate any severance proceedings or support that in this

18 stage because I believe it's a matter of the Prosecution or Defence

19 counsel of Mr. Simatovic, and that being said, I can understand the

20 position of the Prosecutor that severance is a matter of last resort and

21 therefore, we should maybe await the situation of this week and evaluate

22 next week.

23 I do agree that if next week, the situation of Mr. Stanisic would

24 not be improved, either physically or mentally, that situation could form

25 a basis for a new discussion.

Page 1255

1 These are my submissions, Your Honour. Thank you.

2 JUDGE ROBINSON: Thank you. Mr. Jovanovic.

3 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. At the

4 moment when we were discussing the possibility of continuing these

5 proceedings and we have already preliminarily touched upon one of these

6 arguments, the severance of these cases, the Defence has already said

7 that it is against this, against the severance because we believe that it

8 is necessary to, beforehand, make some decisions so that we can discuss

9 this issue.

10 For the time being, there is a decision by this Trial Chamber on

11 the ability of the accused Stanisic to participate or to attend trial.

12 The Trial Chamber has today said that we cannot continue work and it

13 seems that this situation will continue throughout the rest of the week.

14 The Prosecution has presented one of the problems that this poses

15 which is bringing in witnesses and in this particular case, the

16 impossibility of returning the tickets and thus incurring additional cost

17 to this Tribunal. For these reasons and taking into account the fact

18 that the Defence of the accused Simatovic also has to travel, we propose

19 that if the Trial Chamber takes the position that this trial has to be

20 adjourned for at least a period of time that Dr. Falke proposed in his

21 report, we would be of the view that the Trial Chamber should not

22 schedule the next trial or the next sitting until it is certain that

23 Mr. Stanisic can attend.

24 And I think we should first have a report from the doctor and

25 then schedule a trial to avoid this situation of always being in the

Page 1256

1 courtroom and then facing the situation that we cannot work on that day.

2 I think this would also be useful to the Prosecution because then it

3 would be able to bring the next witness on short notice and of course

4 this would also be convenient to the Simatovic Defence in order for him

5 to attend the trial.

6 JUDGE ROBINSON: All right. Mr. Jovanovic has a slightly

7 different view of things. He's suggesting that we adjourn and only

8 resume until such time as we are notified by the doctor that Mr. Stanisic

9 is in a position to attend either court or the video conference link.

10 What he did not say, of course, is that in the event that in such

11 a situation, Mr. Stanisic chose not to attend either the court or the

12 video conference link, then the Trial Chamber would have to consider

13 seeing that conduct as a voluntary waiver of the right to be tried in

14 one's presence.

15 Both Mr. Knoops and Mr. Groome suggested adjourning until Monday

16 of next week. This would be consistent with the report of Dr. Falke who

17 said that his initial proposal to the hospital staff is that Mr. Stanisic

18 remain for one week of close observation.

19 Before I consult, I saw Mr. Groome rising.

20 MR. GROOME: There's just one other matter or one other

21 suggestion I wanted to make to the Court. When the Court originally

22 asked for suggestions or for positions on how we might proceed several

23 months ago, one of the options the Court asked us to address was whether

24 the Court should return the case to the pre-trial stage and so the Court

25 could get on with other work of the Tribunal to conclude its business, to

Page 1257

1 do other trials.

2 I would note to the Chamber that there is another case that I am

3 senior trial attorney on that had had a Pre-Trial Conference scheduled

4 for this Friday. Maybe one of the things the Chamber could consider is

5 whether that case could commence in the near future in a way that would

6 allow the Court to schedule the two cases so that if some of the medical

7 problems that Mr. Stanisic interfere with the ability of the Court to

8 conduct hearings in this case, the Court might have the option of

9 conducting hearings in that other case.

10 I wouldn't want to say too much more without the presence of the

11 attorneys on that case, it is Prosecutor v. Milan and Sredoje Lukic, but

12 it may be something that the Court might want to consider as one way to

13 operate more efficiently given the unusual circumstances which the

14 Chamber faces.

15 [Trial Chamber confers]

16 JUDGE ROBINSON: The Chamber is grateful to the parties for the

17 submissions that they have made. We have found them helpful.

18 We will adjourn until Monday of next week. We are adjourned.

19 --- Whereupon the hearing adjourned at 9.26 a.m.,

20 to be reconvened on Monday, the 19th of May, 2008,

21 at 2.15 p.m.