1 Tuesday, 20 May 2008
2 [Open session]
3 [The accused Simatovic entered court]
4 [The accused Stanisic is not present]
5 --- Upon commencing at 2.17 p.m.
6 JUDGE ROBINSON: I believe you would all have received the
7 decision of the Appeals Chamber in this case. Consequent on that
8 decision which is dated the 16th, the proceedings in this case are
9 adjourned for a minimum of three months and the state of health of the
10 accused will be reassessed before determining when the trial should
12 The UNDU doctor will report weekly on the health of the accused.
13 The gastroenterologist is to examine the accused once every month or more
14 frequently, if required, and submit a report thereon.
15 Dr. de Man, the Court-appointed psychiatrist is to examine the
16 accused once every three weeks and submit a report after each
18 The Chamber received a motion for provisional release from the
19 Defence of the accused Stanisic. There is a reference in that report to
20 a report from the treating psychiatrist, Dr. Petrovic, and reliance is
21 placed on that report. The Chamber will require that that report be
22 submitted to it and to the other parties in the proceedings.
23 It is, of course, necessary that the application for provisional
24 release be dealt with as quickly as possible and in that regard,
25 Mr. Groome, I would expect that the Prosecution would be in a position to
1 provide its response tomorrow.
2 MR. GROOME: Yes, Your Honour.
3 JUDGE ROBINSON: Very well. In that case, the Chamber would then
4 be in a position to give its decision on Friday.
5 There is one matter, Mr. Knoops, that is raised by your
6 application. It is clear that the Appeals Chamber had in mind a regime
7 of continued and regular examination of the health of the accused. Were
8 provisional release to be granted, would there not be logistical problems
9 in ensuring that the Chamber is provided with reliable reports? Yes.
10 MR. KNOOPS: Thank you, Your Honour. First of all, we are
11 mindful of the concerns of the Chamber in terms of compliance with the
12 potential provisional release conditions. Yet, also in light of the
13 report of Dr. Falke of today indicating already the report of
14 Dr. Petrovic opining that she has reached a plateau in her ability to
15 treat Mr. Stanisic without assistance of a multi-disciplinary team in a
16 medical environment, we believe that could outweigh any practicalities or
17 logistical obstacles which might arise from this application.
18 In the second place, we believe that in case Your Honours would
19 grant such a release for medical treatment in a non-custodial
20 environment, the Chamber has authority to, for instance, order the
21 treating doctors to report directly to either Dr. Falke and the registry
22 or directly to the Chamber while, for instance, Dr. Petrovic is, of
23 course, at liberty to visit on a regular basis that facility where
24 Mr. Stanisic, by then, would hopefully reside.
25 If the Chamber would have any doubt as to the credibility of such
1 reports, we also believe that, for instance, on a regular basis, Dr. de
2 Man could visit that facility where Mr. Stanisic, by then, would reside
3 in order to provide the Chamber with the most objective reports as
4 possible. However, in light of the history of this case, Your Honour, I
5 believe with all due respect that the reports which have been filed until
6 so far by the treating doctors from Belgrade do not lack any form of
7 credibility or subjectiveness, but I understand Your Honours' concern
8 that also in light of the importance of this matter, that indeed some
9 form of supervision could be administered in order to ensure that the
10 Chamber will receive, and the course the other parties, the most optimal
11 objective information.
12 So we don't believe that the argument which is concern of the
13 Chamber could hamper the basis and the foundation of our request.
14 As Your Honours may have noticed, the Defence was informed last
15 Friday by the medical staff themselves, which is a clear indication that
16 the medical staff considers the situation as extreme grave of
17 Mr. Stanisic, also evidenced by the attack Sunday night. I was informed
18 that Dr. Falke returned during the night to the detention centre to
19 conduct medical care, and I have to say that we were, ourselves, also
20 witness of some of those events.
21 In this regard, Your Honour, the motion mentions that several
22 guarantees could be provided to the Court, if necessary, in case the
23 Court would think that the existing guarantees would not fully comply
24 with the new motion for provisional release. In this regard, we were
25 informed that both governments of Montenegro and of Serbia will do their
1 utmost best to provide, maybe this week, the required additional
2 guarantees in order to facilitate the potential transfer of the accused
3 to any of the medical institutions in those countries, and in light of
4 the concerns also raised by other doctors in this case, we believe that
5 also those countries will do their best to comply with any of the
6 provisions and conditions the Court might set.
7 But as to your concrete request and question as to the reporting
8 system, I don't see a problem in the continuation the Court has in mind
9 on a weekly or three-weekly basis by both the physicians who are treating
10 the accused by then and the doctors from The Hague who could go to that
11 specific facility. I hope this may clarify your question.
12 JUDGE ROBINSON: Thank you.
13 Mr. Groome.
14 MR. GROOME: Your Honour, let me say at the outset that I think
15 it's inappropriate for Mr. Stanisic to be placed on provisional release
16 at this time. I have prepared some submissions in that regard and in
17 light of the Chamber's urgent time schedule, if I could make them, but
18 I've also -- have planned to make some observations just about how in
19 this three months, the Prosecution believes steps should be taken to
20 ensure not only that Mr. Stanisic is in optimal health for the
21 continuation of the trial but also that the Chamber has before it all of
22 the information that it needs to make its assessment at the end of that
23 period. And some of that information is also relevant to the provisional
24 release, so if I can indulge the Court and have a bit of time to explain
25 all of our submissions, I would appreciate that.
1 JUDGE ROBINSON: Please go ahead.
2 MR. GROOME: I think the -- are there steps that the -- that can
3 be taken to ensure that the greatest probability that we will resume in
4 September or August and we will be at that time able to proceed
5 expeditiously. With respect to Mr. Stanisic's health, I believe that
6 there are. I think we must consider that everything that can be done to
7 ensure Mr. Stanisic is in optimal physical health at the end of this
8 three-month period is done, lest we find ourselves in the very same
9 position that we are in today, and I think we must carefully consider
10 that everything that can be done to ensure Mr. Stanisic is in optimal
11 mental health at the end of the three-month period and that the Chamber
12 has a current assessment of his psychiatric situation available.
13 With respect to his physical health, the current regime of daily
14 medical reports gives the Chamber the information it needs from
15 Dr. Falke, the primary care physician of Mr. Stanisic. I submit that
16 it's critical that the Chamber and the parties continue to receive these
17 reports at least on a weekly basis so that his progress toward optimal
18 health can be monitored.
19 Looking back at Judge Parker's investigation into Mr. Milosevic's
20 death, it became clear that there was shortcomings in the UNDU's regime
21 of administering medications to detainees. The Chamber must satisfy
22 itself that Mr. Stanisic is getting all of the medicine that he requires
23 when he should be getting that medicine during this time period to ensure
24 that he reaches optimal health. I note in this latest report that he's
25 now on a regime of suppositories. We don't know whether he's
1 administering those himself or whether a nurse or medical staff is
2 administering those. It would seem it if he's administering those
3 himself, there is the possibility that these could simply be flushed down
4 the toilet rather than being actually used.
5 I believe this requires the Chamber to make an inquiry with the
6 UN detention unit and also requires the Chamber to periodically order
7 blood tests to establish whether the appropriate medicines are present in
8 the appropriate levels and that other non-prescribed substances are not
10 Also, learning from the experience of Mr. Milosevic's death as
11 investigated by Judge Parker, it was clear that Mr. Milosevic's diet may
12 also have played a part. During his detention he consumed large amounts
13 of grapefruit, according to a diet he was on, and that compromised or
14 possibly compromised the medications he received. In this case given
15 Mr. Stanisic's intestinal complication, it seems prudent to have some
16 inquiry made of his diet, perhaps as simple as having the
17 gastroenterologist review his diet and make suggestions, if necessary.
18 I note that last Friday, we did receive the first
19 gastroenterology report of Dr. Cazemir. I think it is imperative that
20 the Chamber and the parties continue to receive these reports. I note
21 that it appears that Dr. Cazemir conducts one in-person examination per
22 month and then does consultations with Mr. Stanisic over the phone each
23 week. Given Mr. Stanisic's recent exacerbation of pouchitis, the Chamber
24 may take the view that more frequent visits are required, and certainly
25 in light of the information as it's being characterised today, it seems
1 to fly in the face of the seriousness that's being attributed to his
2 condition presently if Dr. Cazemir still feels comfortable in conducting
3 weekly assessments of Mr. Stanisic's condition over the telephone and not
4 personally examining him.
5 Ensuring he is in optimal psychiatric health. Recent reports
6 have been encouraging in that Mr. Stanisic has seen measurable although
7 modest improvements in his depression. While this has been the source of
8 the most significant impediments for progress in this trial, it is
9 unfortunately the area in which the Chamber receives the least direct
10 information from his treating psychiatrist, Dr. Petrovic. She has never
11 filed a report with the Chamber. And the Chamber has only hearsay
12 evidence about her treatment schedule and her treatment plan. The
13 Prosecution submits that this must change.
14 From the information that I have been able to glean from the
15 testimony of Dr. de Man and Dr. Falke, it appears that Dr. Petrovic
16 travels back and forth from Serbia. It seems that in times an entire
17 week or more can intervene between his therapeutic sessions with
18 Dr. Petrovic. The question that must be asked is whether such intervals
19 between treatments are appropriate given his present mental state and
20 whether more frequent sessions would yield a quicker, more certain
21 improvement in his mental health.
22 The Chamber and the parties should also be regularly informed
23 about the medications Mr. Stanisic is taking. I note that Dr. Cazemir in
24 his report dated the 14th of May 2008, states that Mr. Stanisic is
25 currently on mirtazapine. If you recall on the 7th of April, 2008, Dr.
1 de Man testified that in the beginning of March, Mr. Stanisic was placed
2 on mirtazapine, a drug whose known side effects include night-time
3 hallucinations. Dr. de Man, in light of Mr. Stanisic's report of
4 night-time hallucinations, recommended taking Mr. Stanisic off
5 mirtazapine and placed on an older form of anti-depressants known as
6 tricyclics. Dr. de Man stated that Dr. Petrovic concurred with his view
7 and Mr. Stanisic's medications had been switched.
8 Now, whether Dr. Cazemir looked at an older list of medications
9 or whether there has been an oversight and his medication has not been
10 changed and he's still receiving mirtazapine, it seems that this is a
11 matter that the Chamber must be in a position to raise with the UN
12 detention unit.
13 At the conclusion of this three-month period the Chamber must
14 reassess the health of the accused. Mr. Stanisic is presently fit to
15 stand trial and the Appeals Chamber has not contradicted the Chamber on
16 this point. However, the Appeals Chamber does recognise, as this Chamber
17 has always recognised and as the Prosecution has always recognised, that
18 Mr. Stanisic's mental health is an inexorable component of his overall
19 health and as such we must always be mindful of it.
20 The Prosecution will be proposing in a written submission
21 hopefully filed later today or tomorrow and in that we go into detail
22 in -- in what I'm about to talk about with respect to his psychiatric
23 health. But I would submit to the Chamber as directed by the Appeals
24 Chamber, the Chamber will have to reassess Mr. Stanisic's health at the
25 end of the three-month period and as such will have to consider his
1 psychiatric health in an overall assessment.
2 With this in mind, I make the following submission: Last Friday,
3 my staff and I had an informal meeting with staff from the Pieter Baan
4 Centre in Utrecht, the well-respected institute of forensic psychiatry
5 here in the Netherlands. In this informal meeting we met with Eric
6 Hejderberg, the director of the institute, and Ms. Marsha de Boer, one of
7 the senior lawyers responsible for administration of the programme.
8 It is part of the NIFP, which is the Dutch government's
9 department which is responsible for assessing the mental health of
10 subjects of the Dutch criminal justice system and is also responsible for
11 meeting the mental health needs of detainees in Dutch facilities. The
12 Pieter Baan Centre is a secure detention facility with the capacity to do
13 comprehensive psychiatric evaluations. They do over 8.000 evaluations
14 per year with roughly 225 of them being done on an in-house basis.
15 Some of these evaluations are related to the psychiatric state at
16 the time a crime is committed. Others are fitness to stand trial, and
17 finally, what I will be suggesting is very appropriate in the
18 circumstances we know find ourselves in, finally, they investigate the
19 appropriateness of detention for detained persons. That is one the
20 central tasks that they are assigned to do, whether or not someone is fit
21 still to be detained or whether they should be -- some alternative
22 arrangement should be made.
23 These evaluations are conducted by a multi-disciplinary team of
24 psychiatrists, psychologists, and licensed social workers who do
25 comprehensive testing and observations of a subject and issue a detailed
1 report of their findings. They have a roster of over 600 mental health
2 professionals who they call on to do these evaluations depending on the
3 particular requirements of a situation.
4 Mr. Dr. de Man is one of these associated psychiatrists. They
5 regularly work with subjects from different countries and are confident
6 in their ability to assess someone from Serbia. They in fact have a
7 Serbian social worker on their staff capable of participating in any
8 evaluation of Mr. Stanisic.
9 They have the capacity to make all the necessary arrangements for
10 necessary interpreters. An integral part of their evaluation is an
11 investigation into the likelihood that a subject a seeking some advantage
12 by manipulating symptoms and complaints regarding their mental health.
13 In light of some of the evidence that is before the Chamber, there would
14 be a benefit in having this professionally explored.
15 It is the Prosecution's view that it would be prudent to order an
16 evaluation of Mr. Stanisic during this three-month period. Hopefully
17 near the end of the period, so that the Chamber --
18 JUDGE ROBINSON: Mr. Groome, when you said "in light of some of
19 the evidence that is before the Chamber," are you suggesting that the
20 Chamber has had evidence of manipulation?
21 MR. GROOME: Your Honour, during the fitness hearing, there were
22 two pieces of evidence that I think would be consistent with someone who
23 is attempting to manipulate the system. The first was that testimony --
24 or Mr. Stanisic's own report to Dr. Mimica that on a single day he went
25 to two different psychiatrists, made similar complaints, received
1 prescriptions for two different sets of drugs and then declined to take
2 any of the drugs, and then secondly, the report by the Serbian government
3 on Mr. Stanisic's whereabouts on a particular day, a day when he was
4 claiming to be, as one Defence expert characterised it, essentially an
5 invalid where he spent over an 11-hour day visiting a number of locations
6 around the city.
7 So I believe that there is some cause for concern. I believe it
8 is a matter that should be explored and it is a matter that is regularly
9 explored as part of an evaluation by the Pieter Baan Centre.
10 JUDGE ROBINSON: I must say that I myself don't see that as
11 necessarily indicating manipulation, but please go ahead.
12 MR. GROOME: So it is the Prosecution's view that it would be
13 prudent to order an evaluation of Mr. Stanisic during this three-month
14 period so that near the end of the period, the Chamber would have a
15 reliable, comprehensive and current assessment of his mental health.
16 There is a waiting list to get into the Peter Bahn Centre and although
17 Dr. Hejderberg and Mrs. De Boer could not specify the length of the
18 period, they were optimistic that if the process were commenced in the
19 coming weeks they would be able to complete an evaluation of Mr. Stanisic
20 within the three-month period.
21 Their recommendation was that prior to Mr. Stanisic being
22 formally evaluated by them, that they engage in a process with the
23 Chamber with input from the parties to precisely articulate the questions
24 that would be most helpful to the Chamber, thereby allowing them to
25 customise the examination in a way that yields the most useful
1 information for the Chamber.
2 I was clear with them during this meeting that the Prosecution
3 was simply trying to inform itself of the possibilities available and
4 would convey the information to the Chamber. I advised them that should
5 the Chamber wish to explore the matter further, the Chamber and the
6 registrar would be in further contact.
7 It is their view that they would be able to assist the Chamber by
8 conducting a thorough evaluation of Mr. Stanisic and provide not only a
9 written report but would be willing to come to court to discuss their
10 findings. It is my position that such an evaluation would be very useful
11 to the Chamber and would give the Chamber great confidence in whatever
12 determination it makes at the end of the three-month period.
13 Your Honour, they also provided us with books on what they do and
14 a brochure of what they document. I have two copies. I'm willing to
15 provide them to the Chamber and Defence counsel if the Chamber is
16 interested in receiving them.
17 JUDGE ROBINSON: Yes, please pass them up.
18 MR. GROOME: As I noted, Your Honour, the primary basis for the
19 provisional release application appears to me to be that it's detention
20 is no long appropriate for Mr. Stanisic. Given the seriousness of this
21 question and the seriousness of the charges, this is one of the areas
22 that they regularly, the Pieter Baan Centre regularly advises the Dutch
23 courts on is whether or not detention is appropriate for particular
24 subjects and it seems to me that the more prudent course of action would
25 be seeking their professional evaluation on this rather than some of the
1 information that -- which is presently before the Chamber which I'd like
2 to address now.
3 With respect to provisional release, first as the Chamber heard
4 in the fitness hearings, Mr. Stanisic's depression was in significant
5 part a reaction to recent detention. You heard Dr. Mimica describe it as
6 a reactive depression which would dissipate over time. Dr. Mimica's
7 prognosis has proved true and we are -- up until this filing today, this
8 report today, we have been seeing a modest but measurable abatement of
9 his depression. We can only fully expect that should Mr. Stanisic be
10 placed on provisional release that he will relapse with the same
11 complaints when he returns to detention.
12 He is getting proper care here as evidenced by his improvement.
13 His care is now being closely supervised by the Court and all of the
14 recent optimistic assessments of his future well being have been
15 predicated on the assumption that his detention would continue. Living
16 in a detention facility and receiving this complete set of medical
17 services he is currently receiving, he has shown improvement.
18 Secondly, if the Chamber agrees that the evaluation of the Pieter
19 Baan Centre would assist in its consideration of future hearings in
20 September, then his release or return to Belgrade would make that
22 Just before coming to court, I received a copy of this urgent
23 application for provisional release, and although we will be responding
24 in writing tomorrow, I would like to raise a few points.
25 I am concerned that the application raises the spectre that
1 Mr. Stanisic's life is presently in imminent jeopardy. It states in
2 paragraph 7, "One has now to face a potential life-threatening situation
3 in that the patient will lose any will and ability to recovery at all."
4 This is based on a reported communication with the medical staff
5 last Friday. Paragraph 7 characterises that, "Shared with us in order to
6 prevent further harm to the patient that the medical staff of the UNDU is
7 very concerned about the visible declination of the patient's condition."
8 I note at the end of just about all of Dr. Falke's reports to the
9 registrar, he commits to informing him immediately of any sudden
10 alteration of his condition. In his 3rd of May report he states to
11 Mr. Hocking, "If any problem occurs, I will inform you immediately." I
12 would inquire whether the Chamber, I mean has the Chamber heard anything
13 from the registrar. The Prosecution was certainly not notified that
14 Dr. Falke had notified the registrar of any sudden and imminent or urgent
15 change in Mr. Stanisic's condition, and so I'm troubled that the
16 characterisation or the information provided to Defence counsel last
17 Friday seems to be at odds with what the undertaking of Dr. Falke to
18 notify the registrar in the event of any sudden change in his condition.
19 In paragraph 11 of the submission, the Defence submits, "That the
20 clinical picture which has been observed throughout the preceding weeks
21 and months shows that the physical and mental condition of the accused
22 has seriously deteriorated during detention."
23 This is contradicted by reports the Chamber has received which
24 indicate modest but measurable improvement of his psychological health
25 and with respect, with excepting for his recent and anticipated episode
1 of pouchitis, his intestinal problems have not been a recurring problem.
2 If we look --
3 THE INTERPRETER: The interpreters request to read a little
4 slower, please.
5 MR. GROOME: Your Honour, excuse me, if we look it in an
6 objective measure of his pouchitis such as the Heidelberg scale,
7 Dr. Cazemir rates it as an 8 out of 12. If we look back at what some of
8 what the other experts have also rated it at an earlier point in time, we
9 can see whether or not there has been a deterioration.
10 Dr. Taribar [phoen], the -- Mr. Stanisic's treating doctor on the
11 3rd of March, rated it as 9 out of 12. So it seems there might be some
12 improvement according to Dr. Taribar. With respect to the
13 court-appointed gastroenterologist expert Dr. Fitter on the 25th of
14 February, Dr. Fitter assessed it at 8 out of 12, the same as Dr. Cazemir.
15 And Dr. Van Boomgaard, well, he uses a slightly different scale. He
16 assessed it as 8 to 10 on the Mayo Clinic scale. Verbally he described
17 it as moderate pouchitis which demonstrates that it's comparable.
18 So when we look at the objective scales used by these different
19 experts, there in fact really has been no significant deterioration in
20 the pouchitis. The problem that he's experiencing now is one that was
21 anticipated and predicted by the experts.
22 I imagine there's an element of hyperbole in the Defence
23 statement that Mr. Stanisic is now barely recognizable to them. While
24 there has been some report that he has lost weight by some of the
25 doctors, it's not measured in any verifiable way against earlier medical
1 reports. I hardly believe that the Defence counsel is now having
2 difficulty in recognising Mr. Stanisic.
3 In paragraph 12, the Defence suggests that it is clear that the
4 accused cannot recover while in the UN detention unit. "This view has
5 been confirmed by the treating psychiatrist Dr. Petrovic who has
6 indicated that all remedies have been exhausted and the only avenue which
7 remains is for the accused to be provided with the clinical environment
8 with treatment from a team of multi-disciplinary experts.
9 Also in paragraph 15 of the motion, "However, they," meaning the
10 UN detention unit medical staff, "recognise that they are unable to bring
11 about a recovery in this environment."
12 Compare that with the last paragraph of Dr. Falke's report a week
13 ago on the 13th of May, "I also discussed the situation with Dr. Vera
14 Petrovic, his treating psychiatrist, yesterday. Although she agrees that
15 there is a significant improvement in his depression, she advises
16 strongly against the use of the videolink at this stage due to fear of
18 If we look at Dr. Falke's report of the 9th of May, "Should his
19 mental state continue to show the level of the improvement seen in the
20 past week as it is in the integration of cognitive functions that is
21 lacking in a deep depression," he goes on to say "he should be capable of
22 instructing counsel in the coming weeks."
23 So the statements today and the assertions made in the
24 application are contradicted by the most recent positive indications that
25 we have received from the medical staff.
1 I submit that it's curious that Dr. Petrovic's last report
2 acknowledges significant improvement and then one week later,
3 Dr. Petrovic is saying she's reached the plateau, there's nothing else
4 that she can do.
5 The application request that Mr. Stanisic be released from
6 detention, returned to Belgrade to rehabilitate himself in an army
7 hospital and at a spa at Igalo, Montenegro. Prior to coming to court I
8 took a quick look at the Igalo facility and what they offer and I have
9 copies here that I'd ask the usher to assist me with in and distributing,
10 and it lists the medical programmes and the medical care that Igalo is
11 able to provide its clients.
12 I can't help imagine that the thousands of victims of crimes the
13 Prosecution alleges Mr. Stanisic is responsible for, I can't help but
14 imagine that those victims would be deeply shocked and offended at the
15 idea that Mr. Stanisic was now asking the Court to allow him to attend
16 this spa, this medical section replete with photographs of smiling people
17 bathing in whirlpool baths, swimming in swimming pools, happily enjoying
18 back massages and saunas. The only ailment that Mr. Stanisic has that
19 they list as something they treat is osteoporosis. It approaches the
20 boundaries of mockery to suggest that what Mr. Stanisic needs in order to
21 improve his health for the rigors of trial is not the careful care of
22 Holland's best medical practitioners but spa treatments in a vacation
24 I do intend to respond in writing to this application for
25 provisional release. I raise these issues today because of the limited
1 time and because of the seriousness of this -- there's such a gap between
2 what Mr. Knoops is asserting now and what the medical evidence is. It
3 seems to me that either Mr. Stanisic's condition has so rapidly and so
4 severely deteriorated in the last few days, and if that is the case, it
5 must be dealt with immediately to safeguard his well being, or the
6 Chamber and the Prosecution have been misinformed about his health, for
7 what Mr. Knoops reports the medical staff is saying to him is in direct
8 opposition to the written reports they have filed, and this is an
9 unacceptable situation that must be investigated and resolved
11 JUDGE ROBINSON: I notice Mr. Groome that the Igalo facility has
12 51 physicians. Why would they ever 51 physicians if they were just a
13 kind of a tourist resort?
14 MR. GROOME: Your Honour, I am not sure. I'm still in the
15 process of investigating this. It says they have 51 physicians and 93
16 registered nurses, but if you look at the ailments that they treat, the
17 openly one, as I say is, osteoporosis. That is certainly being treated
18 by Mr. Stanisic's primary care providers now. It would seem to me if the
19 allegation or the assertion is that Mr. Stanisic is no longer fit for the
20 detention unit, that one, it must be -- should be evaluated by the Pieter
21 Baan Centre which is equipped to do that and secondly, the Pieter Baan
22 Centre is a full medical facility. It has every capability to deal with
23 any ailment that Mr. Stanisic has, so perhaps during his time, if the
24 Court were to consider that or send him to Pieter Baan Centre, they would
25 be able to deal with his health problems in a comprehensive manner.
1 JUDGE ROBINSON: Mr. Knoops will no doubt wish to comment on this
2 brochure and say whether it's a fair representation of the work done by
3 that facility.
4 MR. KNOOPS: Yes, Your Honour. Thank you, Your Honour. Thank
5 you for giving the Defence this opportunity.
6 If the Court allows me, I will not go into all the details
7 because I believe this is something for the proceedings on the motion.
8 But, Your Honour, we are not acting here to ensure that Mr. Stanisic will
9 receive a treatment in some kind of a spa. We are here because we
10 believe, with us the detention unit at this moment, that he deserves to
11 receive the proper medical treatment. And indeed, the reports of the
12 UNDU always have stressed that despite some slight changes in his mood in
13 a positive way, there was always a fear of relapse, so I think it's not
14 fair to pinpoint the physicians who are treating Mr. Stanisic to their
15 earlier reports if they at the same time stressed that fear of relapse
16 exists, and this is exactly what the Court can envision by the last
17 report of Dr. Falke, the last paragraph which is in my humble submission
18 not a matter of hearsay. Dr. Falke relies on an existing report of
19 Dr. Petrovic which he uses and cites in his last report of today which
20 exactly evidences this relapse.
21 At the same time, that being said, it shows the deterioration in
22 his current form, namely that the detention centre has exhausted the
23 possibilities for treatment of this person and therefore, we don't
24 believe that the motion as it's lying before the Court is exaggerating
25 the situation.
1 Your Honour, before addressing some of the remarks of Mr. Groome
2 and also your question as to the institution of Igalo, I would like to
3 remind the Prosecution to the fact that the Appeals Chamber, in its
4 ruling of last Friday, refers to a period of a minimum of three months.
5 The Prosecution is already quite premature in addressing the Court with
6 suggestions that Mr. Stanisic can be medically well prepared in three
7 months and that the Pieter Baan Centrum is able to assess the situation
8 over three months, but the Appeals Chamber has put it quite clearly that
9 we're dealing with a situation which take -- or could take at a minimum
10 three months. And the Chamber also, when reading legally, refers to the
11 term "before determining when the trial should commence."
12 Now, my learned friend of the Prosecution, Mr. Groome, used the
13 words, "When the trial should continue." I believe there is a legal
14 distinction between continuation of a trial and a commencement of the
15 trial and therefore, I believe that the Appeals Chamber has clearly in
16 mind that before this trial should again commence, the Court should
17 reassess indeed the situation. It's not fair to say that the Appeals
18 Chamber did not elucidate on the fitness of the situation because the
19 fitness issue as such was not part of the appeal, as Your Honours know.
20 Secondly, I think that the comparison with the Milosevic
21 situation and the report of Judge Parker is misplaced. In all due
22 respect, it's misplaced simply because there is no evidence before this
23 Court that Mr. Stanisic was able to manipulate for the period of three
24 months the whole medical staff at the UNDU, Dr. Cazemir, and all the
25 treating experts in this regard. This is not clearly any indication to
1 that. And otherwise, it would have been reported to the Chamber. And
2 how, and it's my personal remark, Your Honour, this person who is at the
3 edge of his physical and mental abilities, was sinking down to the
4 minimum of surviving would flush down medication into the toilet to put
5 his life further at danger, I think it's not a realistic picture of we,
6 as Defence, have experienced throughout the last months, with us the
7 medical staff and the experts.
8 Now, as to the depression, indeed, Dr. Petrovic indicated in her
9 earlier report that there was an improvement but at the same time, she
10 warned the parties that there could be a real fear for relapse. And I
11 believe what Your Honours have before it is the last report of Dr. Falke
12 in which report it is stated that Dr. Petrovic has received a plateau in
13 her ability to treat Mr. Stanisic without the assistance of a
14 multi-disciplinary team in a medical environment.
15 We're not asking for a release of Mr. Stanisic. We are asking
16 for a release to put him in a medical environment. That's the
17 distinction. The Prosecution is sketching the picture as though the
18 crimes for which Mr. Stanisic is charged would not anticipate such a
19 situation, but I think this is not the criterion we should measure the
20 case about.
21 Now, two remarks as to the Pieter Baan Centrum and to Igalo. The
22 booklet we just were provided with is familiar with the Defence. I know
23 the articles that are written by some of the members of the Pieter Baan
24 Centrum, but what the Prosecution is not telling the Court is that the
25 Pieter Baan Centrum is a testing institution. It's not a treating
1 institution. It does not treat patients who are seriously ill akin to
2 Mr. Stanisic. That institution, in our law, is there to provide the
3 Court within 6 or 9 months or on the basis of an observation of 6 until 9
4 weeks a report on the mental state to indeed participate in proceedings.
5 It does not assess the fitness for provisional release. It can
6 only assess the fitness for detention after a potential conviction.
7 We're dealing here with a situation of provisional release.
8 Now, for that purpose, in due respect, we don't think that the
9 Pieter Baan Centrum could assist the Court in providing information other
10 than the Court has in its possession about the eligibility of the accused
11 for provisional release.
12 I agree with my learned friend from the Prosecution that of
13 course some kind of objective supervision, as I already informed the
14 Court of, is in place, but that can more practically be done by either
15 Dr. Petrovic and the Prosecution acknowledges that she travels regularly
16 back and forth from The Hague to Serbia, can be done by Dr. Cazemir to
17 "could go to any institution on a regular basis or Dr. de Man."
18 As to the Pieter Baan Centrum --
19 JUDGE ROBINSON: Looking at the brochure, they might not mind
20 going there.
21 MR. KNOOPS: Excuse me, Your Honour.
22 JUDGE ROBINSON: I said looking at the brochure, the doctors
23 might not mind travelling to the Igalo Centre. It appears to have its
24 own attractions.
25 MR. KNOOPS: That is possible, yes, Your Honour. I will come
1 back to the Igalo option in a second.
2 Your Honour, maybe that the Court can recall that Dr. de Man,
3 when we questioned him about the Pieter Baan Centrum, it was the Defence
4 who asked Dr. de Man about the Pieter Baan concurred with the Defence,
5 agreeing with the Defence saying indeed, the Pieter Baan Centrum is not
6 there to treat with a multi-disciplinary team over three months such a
8 JUDGE ROBINSON: So are you able to tell us, Mr. Knoops,
9 generally for how long do patients stay at the centre, the Pieter Baan
11 MR. KNOOPS: Six to nine weeks for observation, then the team of
12 the Pieter Baan Centrum submits a report to the court. We have a
13 provision in our law which goes to mental disease so it's actually a
14 reporting institution.
15 JUDGE ROBINSON: When you say that it's not a treating centre.
16 MR. KNOOPS: No, it's not a treating centre.
17 JUDGE ROBINSON: But in the six to nine weeks --
18 MR. KNOOPS: Yes.
19 JUDGE ROBINSON: -- what are they doing, only testing?
20 MR. KNOOPS: Testing.
21 JUDGE ROBINSON: No treating?
22 MR. KNOOPS: Interviews by several experts of the accused, the
23 psychiatrists, psychologists, social worker and other experts in order to
24 write a report to the Court as to the mental capabilities of an accused.
25 JUDGE ROBINSON: But while they are there, who would be
1 responsible for the treatment of the particular individuals?
2 MR. KNOOPS: It's based on a court order, such a referral of such
3 a accused to the Pieter Baan Centrum. The Pieter Baan Centrum itself
4 works under the supervision of the Ministry of Justice in the Netherlands
5 but in our system we need a court order to have an accused admitted to
6 the Pieter Baan Centrum, of course, the Dutch court.
7 JUDGE ROBINSON: I'm just trying to understand. How can a
8 patient be at a medical institution for six to nine weeks, the patient
9 has a particular medical condition. Now that patient is only being
10 tested, you say.
11 MR. KNOOPS: Yes.
12 JUDGE ROBINSON: But I'm asking what about the treatment? Is
13 that treatment being provided by some other institution?
14 MR. KNOOPS: No. After the Pieter Baan Centrum has reported,
15 filed a report with the Court as to the mental capacities of an accused
16 to understand the charges or as to the fact of diminished responsibility,
17 which is in our law, a matter of potential mitigation of sentence, the
18 Court will address the case again and when the Pieter Baan Centrum would
19 advise a medical treatment, the mental treatment of the accused, the
20 Court has to decide --
21 JUDGE ROBINSON: Mr. Knoops, it's just the logical situation that
22 defeats me because if in the six to nine weeks that patient is not being
23 treated, is only being tested --
24 MR. KNOOPS: Yes.
25 JUDGE ROBINSON: -- isn't there a likelihood that his medical
1 condition will deteriorate? It seems to me that he must be getting some
2 treatment. It can't be just testing.
3 Mr. Groome.
4 MR. GROOME: Maybe I can be of assistance. I put these specific
5 questions to the director of the Pieter Baan Centre last Friday. With
6 respect to the physical ailments, we actually put to him the actual
7 complaints and the condition of Mr. Stanisic, and he said that they would
8 be able to get him whatever treatment he needs, that -- and if there's
9 any outside specialists needed, they can be brought in or if he has to
10 be -- if he has some kind of urgent event that he has to be brought to a
11 hospital that can be done.
12 With respect to the period of time, he says under Dutch law, it's
13 a maximum of seven weeks so it's a five to seven-week observation period
14 that they typically have someone there. I put it to Mr. Heidelberg the
15 director what about his psychological state, is there a responsibility
16 possibility that that could deteriorate, are you able to manage that? He
17 said yes, they can manage that as well. They will do whatever has to be
18 done with respect to his treatment for his psychological state to ensure
19 that there's no deterioration of that. So he will be treated on a
20 psychological basis and a medical basis, plus he will be evaluated for a
21 period of five to seven weeks.
22 JUDGE ROBINSON: Thank you.
23 MR. KNOOPS: Your Honour, this exactly -- this is exactly what I
24 mean. Five to seven weeks, this institution is primarily there for
25 testing. Of course it can provide medical assistance in order for an
1 accused to medically survive those five until seven weeks, of course.
2 There is no doubt that a gastroenterologist can be brought in, but the
3 primary function of this institution is an observation testing period of
4 five to seven weeks and I think we all agree that what Mr. Stanisic needs
5 is more than five to seven weeks. Therefore, that institution could be
6 at the utmost come into play when the Court would wish to reassess the
7 medical situation of Mr. Stanisic after full medical treatment by a
8 multi-disciplinary team.
9 [Trial Chamber confers]
10 JUDGE ROBINSON: Yes, my brother has just shown me that under the
11 heading "care" during detention, they have "improving the disorder
12 through treatment," so they do provide treatment.
13 MR. KNOOPS: They do provide treatment, Your Honour, but this is
14 not their -- the institution is not primarily aiming at a treatment we
15 have in mind with this accused.
16 JUDGE ROBINSON: I'm not seeking to counter that.
17 MR. KNOOPS: Okay. Thank you.
18 JUDGE ROBINSON: I just wanted to be assured that treatment would
19 be provided as well as testing.
20 MR. KNOOPS: Finally, Your Honour, the Prosecution disputes that
21 although it is not directly inclining manipulation by the accused, it is
22 disputing that a person could deteriorate in such a short period but if I
23 may just briefly take the attention of the Court to the reports we indeed
24 received last Friday by Dr. Cazemir, a loss of weight of 12 kilogrammes,
25 20 stools or more a day, severe loss of blood, et cetera, when we notice
1 that in three months, Mr. Stanisic suffered twice a kidney attack,
2 because this is also new in the report last Sunday night, he had again a
3 severe kidney attack. It's it is the second time while in detention
4 during the last three months. It cannot be ignored that this can be
5 faked or this is not any exponent of deterioration.
6 The medication as being tried by Dr. Cazemir has been changed and
7 changed without any results and all those data are verifiable to the
8 Court including the new report of Dr. Petrovic.
9 As to Igalo, finally, Your Honour. Igalo also has of course also
10 a clinical department. Your Honour can recall that the accused spent in
11 the past several times in Igalo and the argument of the Prosecution that
12 it's more a vacation centre was put earlier before the Chamber.
13 I would not again asserting that Mr. Stanisic should go to this
14 environment. What we are aiming at is primarily a hospitalisation
15 preferably in his own environment in Belgrade in the Military Medical
16 Academy where all the disciplines we need to have him recovered are in
17 place. And we know from the past that the reporting system is quite
18 efficient and effective.
19 Secondly, yes, Your Honours may observe from the request the
20 suggestion for a potential additional treatment in Igalo was not put as a
21 primary option. It's simply an option the Court can have in mind, and
22 the reason why we put it already in this motion is to prevent the costly
23 and time-consuming proceedings we went through in the past when, for
24 instance, one of the treating doctors in the Military Medical Hospital
25 would advise a short additional treatment for a specific problem
1 Mr. Stanisic suffered from.
2 JUDGE ROBINSON: That's an option you would not want us to
3 consider the Pieter Baan Centre, if I understand you correctly?
4 MR. KNOOPS: Our primary option is the Military Medical Hospital,
5 Your Honour, and if Your Honours would think it is practical to also deal
6 with the option that on the advice of one of the treating specialists, an
7 Igalo referral is tenable, then of course we would not oppose that, of
8 course, we would act against the interest of the accused if the doctor
9 would so suggest. But maybe there is no advice from any of those
10 physicians in Belgrade and therefore, Mr. Stanisic would never arrive at
11 this centre.
12 Lastly, I forgot to mention when we speak about the argument of
13 the Prosecution, the suggestion of potential manipulation, I would say,
14 and I would submit that the Prosecution is selectively quoting from the
16 Your Honour know that from the reports we receive from the
17 government, the reports the Prosecution selects from, namely the day he
18 went to various locations, Your Honour may remember that the Defence
19 addressed that argument by explaining every moment what Mr. Stanisic did
20 and that those activities did not require any physical intensity.
21 Secondly, a few days later there was an observation whereby
22 Mr. Stanisic -- was the whole day in his own environment at home so also
23 here, there is no -- we cannot conclude anything from that observation.
24 In sum, we believe although the Prosecution will address tomorrow
25 the arguments in writing, we believe that the Court has the possibilities
1 on the basis of the existing evidence to consider this motion. We don't
2 believe that additional evidence is necessary for the Chamber to come to
3 that conclusion. As to the Pieter Baan Centrum, we believe it's
4 premature now to set up an evaluation system for after just three months
5 the Prosecution mentions, in our view a minimum of three months because
6 nobody knows where the mental health will go from now. We believe that
7 the information we received from the staff of the detention centre still
8 fits within the statement Dr. Falke gave to the Court today. If there is
9 any doubt, I have no problem that the Court verifies that stance, but we
10 were alarmed by the situation on Friday, evidenced Sunday night by this
11 severe attack and therefore, we believe it is our responsibility as
12 Defence to bring this matter as soon as possible to the Court.
13 Dr. Falke reported to the registry and therefore, I think he
14 fulfilled his duty by bringing this matter to the registry because he
15 writes, this is the last sentence of his report, "I regard this opinion
16 as important," referring to the opinion of Dr. Petrovic. Therefore, it
17 fully complies with the existing reporting system and there is no
18 suspicion whatsoever to be issued by the Prosecution as to the severity
19 of the medical situation at this moment. Thank you.
20 JUDGE ROBINSON: Before you sit, may I just remind the court
21 deputy that earlier, I had required that the opinion of Dr. Petrovic to
22 which reference is made by Dr. Falke in the last paragraph of his report
23 be submitted to the Chamber as quickly as possible. We would like to
24 have that preferably by the end of the day.
25 Now, I wanted to ask you, Mr. Knoops, whether your application
1 for provisional release is wholly exclusively linked, tied, to the
2 medical condition of the accused. Under Rule 65, "Provisional release is
3 only to be granted if the Chamber is satisfied that the accused will
4 appear for trial and, if released, will not pose a danger to any victim,
5 witness, or other person."
6 Are you tying your application wholly to the medical condition or
7 are you saying that you can satisfy us, because as you know, the burden
8 is on you, it's discharged on a balance of probabilities, you can satisfy
9 us as to these matters and the health condition is an additional factor
10 that can be advanced.
11 MR. KNOOPS: Thank you, Your Honour, for this question. I think
12 it self-evident that the application refers specifically and relies
13 specifically upon Rule 65. The indeed primary basis of it is the medical
14 condition, this is our concern. I already stressed we are not here to
15 seek a release in the grammatic sense of the word. We are seeking
16 provisional release in order to have Mr. Stanisic being transferred to
17 preferably the Military Medical Hospital.
18 Now, as to the conditions of Rule 65, it may be semantic but we
19 can say the foundation of our request is the medical situation
20 intertwined with the two conditions as set forth by Rule 65 or it's based
21 on Rule of 65, i.e., its two conditions and the goal of that application
22 is to have and receive medical treatment.
23 I still believe that in both scenarios, Rule 65 is the proper
24 foundation for the request.
25 As to the concern of the Chamber with respect to compliance of
1 the accused to those conditions, I respectfully refer to the past that
2 Mr. Stanisic, in our view, has always complied with the conditions and
3 has returned to the Court despite his illness.
4 I don't believe, although I'm not an expert, I don't believe that
5 a person who is that ill is capable or even willing to think of
6 endangering his process and, as Rule 65 sets out, will pose a danger to
7 any victim, witness, or any person. I cannot believe that on the basis
8 of the evidence before the Chamber, a person who has sunken down to the
9 minimum of living is able to think of that interest, if an interest at
11 I'm not testifying from the bar, Your Honour, and from the table,
12 but I would like to stress that the way we have now perceived the
13 situation during the last few weeks also in our view deteriorated such
14 that in a way, physically, the defendant is recognizable for us, but not
15 any more as an intellectual human being to whom one can on a sensible way
16 communicate with.
17 I cannot believe that such a human being is capable of misusing
18 such a situation instead of surviving, recovering from a grave situation,
19 which also is out of the control -- and I'm not blaming anyone, but we
20 simply observe that the medical situation is out of control of the people
21 who are now treating him.
22 Dr. Petrovic clearly says, and we knew on Friday this observation
23 already, that she has reached her maximum to do what she can within her
24 best abilities to make this person better. And in this view, in this
25 context, it's hardly imaginable that Mr. Stanisic would pose a danger for
1 the Court, the integrity of the Court, the proceedings and the victims
2 and witnesses. It's up to the Court to decide, of course, but I would
3 like to stress that this is our sincere belief and it's not our belief
4 that the accused is here to misuse the situation and we sincerely hope
5 that the Court will not accept the Prosecution's insinuation that a form
6 of manipulation is present either in taking medication or misusing the
7 situation the Appeals Chamber now has set forth, namely an adjournment
8 for at a minimum of three months.
9 JUDGE ROBINSON: Give me your view on this: The trial started,
10 the accused was on bail, on provisional release prior to the trial. The
11 trial started, and we now have the Appeals Chamber's ruling. Does the
12 fact that the trial had started mean anything in a consideration of
13 provisional release? Normally, accused persons who are on bail and then
14 brought to trial are not usually granted provisional release or bail, the
15 term used in the common law, during trial and the reason, I would think,
16 would be that the trial is on and the possibility of an outcome that is
17 unfavourable to the accused is so much more imminent. But I don't
18 believe that there is anything in principle that would prohibit a Trial
19 Chamber from granting bail to an accused during a trial. I'm leaving
20 aside for the moment the issue as to whether one would say we are in a
21 trial at this stage, in light of the Appeals Chamber's ruling, and I
22 understand and I will be reading very shortly some -- there are some
23 decisions of the Appeals Chamber itself that deal with this issue. But
24 I'd like you to address that and also Mr. Groome.
25 MR. KNOOPS: Thank you, Your Honour, for this question.
1 In the first place, Your Honour, I believe legally, this case is
2 back in pre-trial. When reading the Appeals Chamber decision of the 16th
3 of May closely, especially the disposition of the Chamber, it
4 specifically, and I already alluded to that, refers to the words "the
5 trial should commence" instead of "the trial should continue." Legally
6 that means that this trial should commence again, with again an opening
7 statement and the first witness and as a consequence, in our humble
8 submission, the case is now back in pre-trial. As a result, Rule 65, in
9 its full scope is applicable.
10 In the alternative, I still believe that there are cases before
11 the ICTY whereby pending trial, accused persons were released on bail or
12 with other conditions and as such, Rule 65 does not prevent an extension
13 to those situations.
14 Therefore, I don't believe that the Court is prevented from using
15 article -- sorry, Rule 65 for such -- to deal with such request. In the
16 alternative, of course, we have relied also on the human rights provision
17 in Article 3 of the European Convention on Human Rights. Now we are not
18 suggesting any that Mr. Stanisic's treatment here at the UNDU is a form
19 of degrading or inhumane treatment. What we are saying is as a result of
20 his overall condition, he is suffering himself a situation akin to
21 Article 3 and the view the European Court has set forth of the
22 interpretation of Article 3, for instance in the case of Lorse versus the
23 Netherlands whereby the European Court has assessed the applicability of
24 Article 3 of the convention. In other words --
25 JUDGE ROBINSON: Speaking for myself, were you to succeed in this
1 motion, it would not be on that basis.
2 MR. KNOOPS: Because that was my alternative argument. I'm not
3 saying that Article 3 as such could be the basis but the Court has -- can
4 find -- found its foundation for a release pending a trial if the Court
5 would say: We are still in a trial stage and not a pre-trial stage, the
6 Court can rely on international human rights instruments and other
7 international instruments to allow an accused person to go away from the
8 seat of the court for any purposes such as medical treatment and I don't
9 believe that only the Rules of Procedure and Evidence should be the basis
10 for that. I think it's a matter of the Court's discretion to deal with
11 such an application.
12 But my primary argument is that there is a legal foundation in
13 Rule 65 simply because, firstly, we are legally in a pre-trial stage,
14 secondly, Rule 65 or the analogy thereof is also applicable in the trial
15 stage as evidenced by various decisions of other Chambers of this
16 Honourable Court which dealt with releases of accused persons pending
18 JUDGE ROBINSON: Very well. Thank you.
19 Mr. Groome.
20 Mr. Jovanovic, I was going to ask whether you had any application
21 to make.
22 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. The
23 Defence of the accused Simatovic wishes to present its standpoint and
24 motion at this point so that my learned friend from the Prosecution can
25 respond to this and it has to do with the issue of provisional release of
1 the accused.
2 The Defence of the accused Stanisic submitted a motion based on
3 the deterioration in Mr. Stanisic's health and the Defence of the accused
4 Simatovic wished to wait for the result of today's session; however, in
5 view of this Chamber's standpoint in connection with the Appeal Chamber's
6 decision, that is, that the trial will recommence after at least three
7 months, the Defence of the accused Franko Simatovic believes that the
8 grounds for the accused's Simatovic's remaining in detention throughout
9 this period have ceased to exist especially in view of the fact that the
10 length of this period seems uncertain.
11 By its decision of the 6th of February of this year, the Chamber
12 brought the accused back to the detention unit for one reason only, and
13 that is the speedy commencement of the trial. This was the same decision
14 in which a Pre-Trial Conference was scheduled for February and it was
15 then twice postponed until the 18th of March ultimately, so the reason
16 for which the accused was brought back to the detention unit no longer
17 holds good.
18 For this reason, the Defence feels that the Chamber could revoke
19 its decision of the 6th of February and based on its previous decision on
20 provisional release, the accused could be immediately released
21 provisionally. The reasons established by the Trial Chamber in its
22 previous decision on provisional release are still the same. The accused
23 Franko Simatovic never tried to influence witnesses, he passed the test,
24 so to say, envisaged in Rule 65 which is that he turned up for trial.
25 Not only did he turn up but his Defence actively participated in
1 implementing all the formalities needed to implement the Chamber's order.
2 The decision received on the 6th of February in the afternoon and the
3 accused was to be in the detention unit by the 11th.
4 As soon as it received this decision, the Defence contacted the
5 Ministry of Justice of the Republic of Serbia which had not been informed
6 of the decision and sought to expedite matters so that the accused could
7 be issued with travel documents, a ticket, and so on and Franko Simatovic
8 arrived for his trial on time. Of course he was fully aware of all the
9 possible consequences and the possible outcome of the trial and he
10 complied with the Trial Chamber's order. Of course he will do the same
11 again. The guarantees put forward in these proceedings in relation to
12 the accused Franko Simatovic, when he first applied for provisional
13 release and when this was granted him, are still valid.
14 Let me remind the Chamber that every government in the Republic
15 of Serbia is duty-bound to issue such guarantees based on the law on the
16 cooperation between the Republic of Serbia and the ICTY and consequently
17 of course, it respects these guarantees.
18 The Defence can immediately submit a written motion for
19 provisional release but let me repeat, all the facts and all the reasons
20 established previously remain unaltered. The same reasons hold good.
21 So if I may present my motion in this way, let me do it now.
22 Otherwise I will submit my written motion tomorrow. Let me remind the
23 Chamber that the trial has practically already started and whether an
24 accused may be granted provisional release in the course of a trial, the
25 practice in the Milan Milutinovic et al. case shows that only five days
1 after commencement of trial, the accused were released on provisional
2 release. Under Rule 98 bis, this may granted in the course of the trial,
3 so if this Chamber wishes to keep this -- these proceedings as a trial,
4 not a pre-trial, it may still grant provisional release. Thank you.
5 JUDGE ROBINSON: The Chamber will not require you to submit a
6 written, motion, Mr. Jovanovic. We consider that the presentation that
7 you have made is sufficient for the purposes of Rule 65.
8 Mr. Groome.
9 MR. GROOME: Your Honour, I would state for the record that the
10 Prosecution would -- does want to make a written submission with respect
11 to both, so if the Court is willing to accept an oral application on such
12 an important matter then it's within the discretion of the Court but the
13 Prosecution would insist on having the opportunity to fully inform the
14 Court of its position in writing, and I did not come here today prepared
15 to make final arguments on such an important matter.
16 JUDGE ROBINSON: We had said by tomorrow.
17 MR. GROOME: Just with respect to that, obviously it's very
18 important the Prosecution have that report of Dr. Petrovic so I would ask
19 that if the registrar could be instructed to give that to us promptly and
20 if for some reason it comes late in the day, we will still endeavour to
21 get our filing done tomorrow but obviously that's such an important piece
22 of evidence that we would want an opportunity to express our views about
24 Your Honour, with respect -- the first thing I'd like to address
25 is respect to this issue of whether we are on trial or not. It's my
1 understanding that the Appeals Chamber has not granted a mistrial in this
2 case. Now, while Mr. -- to read into their use of the word "commence" as
3 opposed to "recommence" that they've voided all proceedings so far and
4 they've granted a mistrial to raise the possibility of a double jeopardy
5 claim by the accused, to do that implicitly just defies common sense. I
6 think the plain reading of the Appeals Chamber decision is that we are on
7 trial and they have mandated a minimum or a three-month adjournment and
8 required the Trial Chamber to assess the health of the accused.
9 If for some reason the Chamber is in doubt about that, it seems
10 to me the proper course of action is for us to seek clarification from
11 the Appeals Chamber but I cannot accept that we -- that the Appeals
12 Chamber has implicitly nullified the opening statement and initial
13 evidence tendered by the Prosecution.
14 With respect to the standard of whether -- the standard for
15 provisional release changes after a trial is commenced, it does. I admit
16 that I am conversant, I did not come to court prepared to discuss that
17 area of the jurisprudence other than it's always a higher standard.
18 Usually it's granted on humanitarian grounds, but I would like to deal
19 with that fully in writing rather than be talking without being able to
20 cite the specific jurisprudence. There is ample jurisprudence now in
21 this area.
22 With respect to the Court's consideration of a provisional
23 release in this case, I mean it must be the result of a full and careful
24 consideration by the Chamber. Respectfully, Mr. Jovanovic is very wrong
25 when he says that nothing has changed. On the 11th of May there was an
1 election in Serbia and there is still no government formed. They are
2 unable to form a government. The Court must explore the reliability and
3 the -- of the guarantees that would be proffered. One of the parties
4 that had a significant showing in the -- in that election was the SPS
5 party. Its leader Mr. Nikolic has said publicly on numerous, numerous
6 occasions that if the SPS comes into power, all cooperation with this
7 Tribunal will cease and he is explicitly made an appeal to indictees
8 saying to that them if I am elected you will not be sent to The Hague.
9 So to say that there is no change of circumstances is just utterly wrong.
10 If the Chamber is going to consider granting this remedy, it is
11 the Prosecution's position that it can only be after a full and careful
12 consideration with -- and that the Chamber should wait until a government
13 is formed, a government that will last a period of time, the period of
14 time for this three to six months or whatever this adjournment will
15 ultimately end up being and that the Chamber wait until representatives
16 of that newly-formed government can appear before it and give the
17 guarantees that satisfy the Chamber need to have both accused return and
18 proceed with the trial.
19 With respect to Mr. Knoops, it seems that he's not asking for
20 Mr. Stanisic to be placed at liberty but simply that his place of
21 treatment be altered. He seems to be suggesting that he's quite content
22 that Mr. Stanisic be placed in the -- there is a secure ward of the
23 military hospital, that perhaps he's suggesting that he is seeking that.
24 It would be helpful to have a clarification of that before we draft our
25 motion because I think that alters our response to it. Then the question
1 becomes where is the most appropriate place for him to be treated.
2 Your Honour, there is one other matter I would like to raise with
3 the Court I would ask that we go into private session briefly just to --
4 JUDGE ROBINSON: Yes, private session.
5 [Private session]
20 [Open session]
21 MR. GROOME: Your Honour, I want to just correct. I misspoke.
22 It's the SRS party not the SPS party so it's the SRS party that has made
23 these very public claims that cooperation with the Tribunal will cease.
24 Thank you.
25 JUDGE ROBINSON: And they are part of the ...
1 THE REGISTRAR: Your Honours we are in open session at the
3 MR. GROOME: I'm sorry.
4 JUDGE ROBINSON: Yes. And this party is what, is likely to form
5 a government?
6 MR. GROOME: Your Honour, there was an election a few weeks ago,
7 May 11th and the results were inconclusive. There was different numbers
8 of parliamentary seats won by the various parties. They are now
9 struggling to try to form a coalition government. They have not been
10 successful so far, but the SRS party was one of the parties that had a
11 significant showing and its leaders have been publicly stating that it
12 would cease cooperation with the Tribunal if it were in a position to do
13 so, that it had control of the government, and that's something that the
14 Chamber I believe has to be very mindful of.
15 JUDGE ROBINSON: Mr. Jovanovic.
16 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. First of
17 all, I would like to remind you of this: In reviewing the case, the
18 motion for provisional release, the Prosecution had the same arguments.
19 At that time, they stated that the government of the Republic of Serbia,
20 regardless of which parties were forming the government then, that they
21 would not honour the guarantees and that they would not extradite the
22 accused, and this Trial Chamber and also the Appeals Chamber assessed
23 that the position and conduct of the accused towards this Tribunal was
24 relevant when they made their decision and this conduct was such that
25 Franko Simatovic, the accused, on his first appearance stated that he
1 considers this Trial Chamber or this court to be a domestic court, a
2 court of his own country and that he considered it incumbent upon him to
3 appear before this Court. I also don't think that it is appropriate to
4 analyse the political situation in Serbia when considering this.
5 What the Prosecution is stating that a member of the Serbian
6 Radical Party publicly said, Mr. Tomislav Nikolic, about this cooperation
7 with the Tribunal was actually during the preelection campaign and I also
8 want to remind you that the leader of that party voluntarily surrendered
9 to this Court.
10 Also I would like to remind you that there is a legal obligation,
11 there is a law on cooperation with the International Criminal Tribunal
12 and issuance of guarantees that are to be observed are issued based on
13 this law so if anyone should want to neglect this law, they would have to
14 change the law in the regular procedure.
15 For the time being, the Serbian Radical Party does not have this
16 option to form a government on its own. They are currently negotiating
17 with the Serbian Democratic Party as a possible coalition party, and let
18 me remind you that President Kostunica is the leader of that party and it
19 is precisely during his Presidency that the largest number of accused
20 actually surrendered to the ICTY. At this point it is not clear who will
21 be able to form the government and what kind of coalition will be built,
22 but as I mentioned already, this is a legal obligation and it is not up
23 to any political party to follow these -- this law on its own. And I am
24 certain that any future government will cooperate with this Tribunal and
25 whatever individuals may state during a campaign, I have to remind you
1 that this is just something that's said in a campaign.
2 Now, the accused Ojdanic was released provisionally. He returned
3 on the 11th of May in other words, one day after the elections, so the
4 fact that the government was dismissed and that there were new elections
5 had no effect on this decision of the Trial Chambers in the case of
6 Milutinovic and others so I think this is something to be considered as
8 JUDGE ROBINSON: Yes, please clarify exactly what it is that you
9 are requesting.
10 Mr. Knoops.
11 MR. KNOOPS: Your Honour, we -- our request is a provisional
12 release in order to have Mr. Stanisic treated in a non-custodial, secure
13 environment which primarily, in our view, is the Military Medical
14 Hospital but if the treatment dictates so, and the treating doctors would
15 advise so, including the doctors who would advise the Court or report to
16 the Court, the Defence asked the Court not to exclude a further treatment
17 in a private environment, i.e., at and within the private chambers of the
18 accused, but our primary goal is to have him treated in a non-custodial
19 secure environment. The Military Medical Hospital is secure, it's a
20 secure building, it's totally secure, because nobody can get in or out
21 without permission of the authorities.
22 JUDGE ROBINSON: Are you unnecessarily restricting yourself? If
23 he is entitled provisional release, can you satisfy us as to the
24 conditions in Rule 65?
25 MR. KNOOPS: Maybe, Your Honour --
1 JUDGE ROBINSON: Not necessarily in a -- in a particular
3 MR. KNOOPS: Your Honour, in this regard, I'm maybe too modest in
4 my expression and I would not necessarily restrict the request to the
5 treatment in a non-custodial and secure environment. We do want to leave
6 the option open that Mr. Stanisic, if the treatment has been successful
7 in the Military Medical Hospital and further, adaptation in society is
8 necessary for his full recovery, we would not exclude the possibility
9 that Mr. Stanisic could further recover in his private environment. In
10 this way, I think that the Prosecution is entitled to respond to the
11 request as we have put it in the motion, not only restricted to purely a
12 non-custodial and secure environment but that it should be understood as
13 including any form of treatment which is dictated by the experts and the
14 findings. But of course to have a start for such recovery, we believe
15 that it should start in a medical institution such as the Military
16 Medical Hospital but we would not like to necessarily restrict us to that
17 institution or exclude any other possibilities for recovery in society.
18 Now, Your Honour, if I just have my last remark on my learned
19 friend's comments on whether or not a clarification is necessitated by
20 the Appeals Chamber as to the reading of the decision of the 16th of May,
21 the Court will have noticed that the Appeals Chamber in paragraph 3 of
22 its decision acknowledges that the Appeals Chamber notes that the trial
23 in this case commenced on the 28th April 2008, yet the -- in which
24 decision is from the 9th April 2008. Now I agree with my learned friend
25 that the Appeals Chamber did not conclude that a mistrial has been
1 conducted because I don't believe this is actually the stage where the
2 Appeals Chamber has authority to say so. But it's from the deposition
3 clear that the Appeals Chamber reverses the impugned decision of the 9th
4 of April that is several weeks before the commencement of the trial on
5 the 28th of April 2008, i.e., the opening statement. So from the
6 deposition, it's clear and therefore that's totally understandable why
7 the Chamber, Appeals Chamber specifically uses the word "commence" that
8 by reversing that decision of the 9th of April, the Appeals Chamber
9 implicitly conveys the message that because that decision is reversed, it
10 was way before the opening statement, the start of the case, the trial
11 technically, that therefore, the trial should commence again.
12 This is I think the way we should read the Appeals Chamber's
13 decision and I don't see a reason why the parties should seek
14 clarification from the Appeals Chamber. It would take additional time
15 for this urgent matter and although I understand the argument my learned
16 friend just put in closed session, I would respectfully ask the Court to
17 deal with the request without having a specific hearing. I believe we
18 have the hearing and we are grateful for Your Honours' time that we could
19 address the Court today on this matter but if the Court, on request of
20 the Prosecution, would now schedule a hearing for next week on this
21 issue, in our humble submission, it's probably difficult to have this
22 delay in terms of the resolution of the medical situation of the accused.
23 Thank you.
24 JUDGE ROBINSON: The Chamber was considering initially having a
25 hearing but I would think that we have had a very full discussion today
1 and the Chamber, I believe, has profited from the arguments that have
2 been submitted. It's something that I, of course, would discuss with my
3 colleagues again, but I very much doubt that it will be necessary to
4 schedule another hearing.
5 Yes, Mr. Groome.
6 MR. GROOME: Just briefly, in the Seselj case, that was a case in
7 which the Appeals Chamber did order a restart to the trial. In its
8 decision of the 8th of December, 2006 it used -- explicitly stated, "The
9 trial is suspended." I mean, it was very clear. It didn't implicitly
10 cause the trial to be restarted. It was very explicit in its
11 determination that the trial had to be restarted.
12 With respect to hearing, I know the Chamber's heard ample
13 arguments today but I submit that what is essential and what we are
14 hearing would be useful and required is to have a representative of the
15 government come and to discuss with the Chamber the reliability or their
16 ability to commit the next government that is yet to be formed to a
17 guarantee that they would produce Mr. Stanisic and Mr. Simatovic if
18 necessary. These were not the same arguments that were put to the
19 Chamber or to the representative at the initial provisional release
20 hearing. The argument that was put at that stage was that, failing to
21 have produced General Mladic, someone who there was good information was
22 in Serbia, whether that guarantee could be relied upon, and the Chamber
23 sought fit to rely on it.
24 There is a very different situation where there is a government
25 yet to be formed and the Chamber would be seeking to rely on a guarantee
1 given by a government that is in its final days in office.
2 JUDGE ROBINSON: Thank you very much. Mr. Jovanovic, and I
3 believe you will be the last to make a submission.
4 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. Very
5 briefly. The legal deadline for forming a government in Serbia is in
6 September, so if we wait to hear a representative of the new government,
7 we might have to wait until such time as this trial is due to restart.
8 All the arguments have already been put forward. The Trial Chamber has
9 already ruled based on these reasons. The fact that Radovan Karadzic,
10 Ratko Mladic, Zupljanin and others are still at large was put forward as
11 an argument against provisional release when the original decision was
12 made, but it was precisely when a government was in power that the
13 Prosecution was expressing misgivings about, 20 accused arrived at this
15 The Law on Cooperation between the Republic of Serbia and the
16 ICTY will not be amended. The Prosecutor has not put forward any reasons
17 that might lead us to reconsider. They have not put forward any new
18 arguments. The prime minister and deputy prime minister are continuing
19 to carry out their essential tasks until the new government is formed and
20 that might be in September, as I said. Thank you.
21 JUDGE ROBINSON: We thank you all for the submissions that you
22 have made. The Chamber will give a decision on the provisional release
23 application as quickly as possible, recognising its importance, and we
24 hope to do so by Friday of this week. We are adjourned.
25 --- Whereupon the hearing adjourned at 3.56 p.m.