Tribunal Criminal Tribunal for the Former Yugoslavia

Page 170

1 Monday, 3 November 2003

2 [Initial Appearance]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 3.00 p.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-01-42-I, the Prosecutor versus Vladimir Kovacevic.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 Mr. Kovacevic, can you hear me in a language you understand?

11 Is Mr. Kovacevic on the right channel?

12 THE ACCUSED: [Interpretation] Yes, I can hear you, Your Honour.

13 JUDGE ORIE: Thank you, Mr. Kovacevic.

14 May I have the appearances. Prosecution first.

15 MS. SOMERS: Thank you, Your Honour. For the Prosecution, Susan

16 L. Somers. To my right, Mr. Phillip Weiner; to my left Ms. Victoria

17 McCreath.

18 JUDGE ORIE: Thank you, Ms. Somers.

19 And for the Defence, please.

20 MR. MORRISON: Your Honour, Howard Morrison.

21 JUDGE ORIE: Thank you, Mr. Morrison.

22 The first thing this Trial Chamber has to do at an initial

23 appearance, Mr. Kovacevic, is to satisfy itself that your right to be

24 assisted by counsel is respected. I see that you are assisted by

25 Mr. Morrison. Is this in accordance with your wish at this moment, to be

Page 171

1 assisted by Mr. Morrison?

2 THE ACCUSED: [Interpretation] Yes.

3 JUDGE ORIE: Mr. Kovacevic, this initial appearance mainly serves

4 to confront you with the charges against you and to hear from you whether

5 you want to enter a plea on those charges either within the next 30 days

6 or today.

7 May I first ask you whether you received a copy of the indictment

8 that was brought against you in a language you could read.

9 THE ACCUSED: [Interpretation] Yes.

10 JUDGE ORIE: Have you discussed the content of the indictment with

11 counsel?

12 MR. MORRISON: Your Honour --

13 JUDGE ORIE: I do not hear any translation at this moment, but

14 from the original, I understand the answer was in the negative.

15 Mr. Morrison, could you --

16 MR. MORRISON: That's correct, and it is for this reason: There

17 is a supervening, or potential supervening problem in this case as to

18 whether or not the accused is a person who is fit to plead to the

19 indictment, so that's the matter which is causing at the moment the

20 greatest concern to the Defence. I have a copy and I've read the

21 indictment, as indeed has the accused. So we both know what's in the

22 indictment. It's not a question of what's in the indictment at the

23 moment, it's his capacity to enter an informed plea that's in issue. So

24 that's the reason why we haven't discussed the details of the indictment.

25 JUDGE ORIE: Yes, I do understand, Mr. Morrison. This Chamber, as

Page 172

1 you may have noticed from the fact that his initial appearance has been

2 delayed, has received some documents in relation to the health of

3 Mr. Kovacevic. The last information, written information, we received

4 dates from last Friday, I believe, and the last information we received

5 orally -- oral information was given to us today.

6 Could you give us any -- from what you say, Mr. Morrison, I do

7 understand that we, the Chamber, would not even ask the accused whether he

8 could enter a plea and, rather, at this moment limit itself to confronting

9 the accused with the indictment as such.

10 Is it your opinion that Mr. Kovacevic is capable of listening to

11 the charges brought against him today so that he can consider over the

12 next 30 days, as the Rules say, whether or not to enter a plea? I mean,

13 if it is of any use to read the indictment today to him or do you say,

14 well, he wouldn't understand it anyhow?

15 MR. MORRISON: Your Honour, there is no question about his

16 intellect. He can certainly read, as I understand it, and understand the

17 words in the indictment. It's not reading the words of the indictment or

18 understanding their literal meaning which is the problem. It's whether or

19 not he has a sufficient mental capacity to be fit to plead to it and

20 thereafter to stand trial.

21 So as I understand it, obviously speaking as a layman and not a

22 psychiatrist, there is nothing -- there will be no value today, in fact,

23 in reading the indictment out to him because he wouldn't -- I would urge

24 you not to arraign him so that he wasn't going to enter a plea today.

25 The question of the next 30 days is clearly the issue which needs

Page 173

1 to be determined, what happens between now and the expiration of 30 days,

2 and what I'm going to ask the Trial Chamber to do is to order expedited

3 psychiatric reports. I say "expedited" because I know my own experience

4 in my own jurisdiction is that it usually takes a great deal longer than

5 30 days to get a full psychiatric report unless the court orders an

6 expedited report, and it is usual to have two reports from two separate

7 psychiatrists to see whether or not there is a coincidence of professional

8 opinion or whether there is a divergence of opinion, and one can discover

9 that at an early stage by having two reports, and I think that would be

10 the most useful exercise that we could undertake, subject, of course, to

11 the Court agreeing to my submission.

12 Plainly, it would assist if the psychiatrists were able to speak

13 to the accused in a language which he understands rather than having the

14 additional problem of anything coming through in translation. I

15 appreciate that adds rather than detracts from the problem, but I'm sure

16 there must be available to the Tribunal such expertise.

17 JUDGE ORIE: Yes. Are you aware, Mr. Morrison, of the last

18 written report the Chamber has received?

19 MR. MORRISON: No.

20 JUDGE ORIE: Then perhaps I -- would you prefer to deal with it in

21 closed session rather than in open session or -- it concerns the -- well,

22 the psychological aspects of the health, psychiatric aspects, not

23 necessarily -- I mean, it has been clear to the public that there are some

24 problems, but if it comes to details, I leave it up to you or

25 Mr. Kovacevic whether you apply for closed session to deal with it.

Page 174

1 MR. MORRISON: My instinct, without taking instructions in the

2 matter, is to ask for a closed session because I haven't seen the

3 document, and I would be hostage to fortune to do anything else.

4 I'm sure Mr. Kovacevic has heard what I've said in translation,

5 that it's my suggestion that we go into closed session, i.e., in case he

6 don't understand what that means, an element of privacy, and perhaps he

7 could indicate what his views are.

8 JUDGE ORIE: Yes. Apart from that, private session would perhaps

9 also do because it's rather a matter of the spoken words than to have the

10 curtains down.

11 MR. MORRISON: Yes.

12 JUDGE ORIE: Mr. Kovacevic, Mr. Morrison thinks that you'd prefer

13 to discuss your psychiatric health not with the public hearing whatever

14 has been said but to -- to say -- to put the microphones off as far as the

15 outside world is concerned.

16 I do understand from your nodding that you would agree with that,

17 but before giving any decision, Ms. Somers, would you please express the

18 position of the Prosecution on both points. The first one is that it

19 would not even be of any use to read the indictment to the accused today,

20 and the second one is whether or not to go into closed session in order to

21 discuss the health situation of the accused.

22 MS. SOMERS: Your Honour, inasmuch as we are not in closed session

23 at this moment, I would simply indicate that the Prosecution is also not

24 aware of anything more current than the 27th of October, and so I would be

25 very grateful to see the most recent or hear about the most recent

Page 175

1 assessment. And based on prior reports, it was our understanding that

2 perhaps proceeding might be possible. Accordingly, I have to leave it in

3 the Chamber's hands to let us have a look.

4 JUDGE ORIE: Yes. Perhaps then we'll turn to private session in

5 order to discuss the latest reports on the health situation of

6 Mr. Kovacevic.

7 [Private session]

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4 [Open session]

5 JUDGE ORIE: Mr. Kovacevic, the Chamber has understood that you

6 have medical problems at this moment and that therefore it's not sure that

7 it's of value for yourself, to any use yourself to have the indictment

8 read to you, but this initial appearance has several functions. One of

9 them, to inform you about the indictment, but also to inform the public

10 about the case. Therefore, I'll briefly explain to you what this case is

11 about.

12 The charges brought against you concern the events that happened

13 on the 6th of December, 1992, at Dubrovnik. On that day, an attack was

14 launched, according to the indictment, against the city of Dubrovnik, and

15 you are specifically charged with your participation in that attack, an

16 attack that, according to the indictment, resulted in the death of two

17 persons and three persons injured, and an attack which caused considerable

18 damage and devastation that was not caused by military necessity, of

19 civilian objects, and specifically also it caused destruction and damage

20 done to institutions dedicated to religion, charity, education, arts and

21 sciences, and historical monuments, and finally also works of art.

22 Your participation, in the indictment, is one which entails your

23 criminal responsibility either by direct participation or because you're

24 held responsible because of your command position.

25 That is, in short, your participation in what happened on the 6th

Page 181

1 of December, 1991, in Dubrovnik, causing death, injury, and damage.

2 I am not going to ask you today whether you -- whether you want to

3 enter a plea or not. The Chamber will first consider whether it's

4 necessary to have a psychiatric examination done. The Rules say that an

5 accused enters a plea within 30 days, but they can do it right away. I

6 will not invite you to do it right away. It will -- you'll be asked to do

7 so at a later stage if at least the Chamber is of the opinion that you are

8 fit to enter a plea.

9 For the public, I'll briefly read in what counts the events are

10 legally formulated.

11 Count 1 is murder in violation of the laws or customs of war as

12 recognised by Common Article 3(1)(a) of the Geneva Conventions of 1949,

13 punishable under Articles 3 and 7(1) and 7(3) of the Statute of the

14 Tribunal.

15 Count 2: Cruel treatment. That relates to people injured. Cruel

16 treatment, a violation of the laws or customs of war, as recognised by

17 Common Article 3(1)(a) of the Geneva Conventions of 1949, punishable under

18 Articles 3 and 7(1) and 7(3) of the Statute of the Tribunal.

19 Third count is attacks on civilians, a violation of the laws or

20 customs of war as recognised by Article 51 of the Additional Protocol I

21 and Article 13 of the Additional Protocol II of the Geneva Conventions of

22 1949, punishable under Articles 3 and 7(1) and 7(3) of the Statute of the

23 Tribunal.

24 As far as the damage done to objects is concerned, the attack on

25 the 6th of December, 1991, on the city of Dubrovnik, in the opinion of the

Page 182

1 office of the Prosecutor in count 4: Devastation not justified by

2 military necessity, a violation of the laws or customs of war, punishable

3 under Articles 3(b) and 7(1) and 7(3) of the Statute of the Tribunal.

4 Count 5: Unlawful attacks on civilian objects, a violation of the

5 laws or customs of war, as recognised by Article 52 of Additional Protocol

6 I to the Geneva Conventions of 1949 and customary law, punishable under

7 Articles 3 and 7(1) and 7(3) of the Statute of the Tribunal.

8 And finally, it amounts in count 6 to destruction or wilful damage

9 done to institutions dedicated to religion, charity, and education, the

10 arts and sciences, historic monuments and works of art and science, which

11 is a violation of the laws or customs of war, punishable under Articles

12 3(d) and 7(1) and 7(3) of the Statute of the Tribunal.

13 Attached to the indictment is one annex which deals with the

14 overall military structure of the forces involved in the attack as

15 described in the indictment, and a second schedule what is a list of

16 approximately 50 pages describing in detail the damages to the

17 institutions dedicated to religion, charity, and education, arts and

18 sciences, historic monuments and works of art in the old town of

19 Dubrovnik.

20 Mr. Kovacevic, before we adjourn and before the Chamber will

21 deliberate on the questions raised by Defence counsel whether you're fit

22 to enter a plea, I'd like to ask you and the Prosecution whether there's

23 any other issue to be discussed at this very moment.

24 Mr. Morrison. And I'm specifically thinking of detention

25 situation, which is often one of the issues accused want to raise during

Page 183

1 the initial appearance.

2 MR. MORRISON: The instructions I have to date are that the

3 accused is suffering, in addition to whatever psychiatric illness he may

4 have, from a sense of claustrophobia, of being contained within the

5 Detention Unit. That may or may not be part of the general psychiatric

6 picture, I'm not qualified to say. But he certainly has specifically

7 talked of the claustrophobic effect of that, and indeed that became

8 apparent when we were together in a small room in the Detention Centre.

9 It was plain that, without the door being left open, he was very

10 uncomfortable. That was observable by myself.

11 That, of course, has inevitably a knock-on effect. The sense of

12 claustrophobia leads in itself to a sense of unease and distress, again,

13 which one doesn't need to be a psychiatrist or a doctor to see that. It

14 is a matter of common observation, and those are matters which -- not only

15 which I've observed - and I'm not entitled to give evidence - but those

16 are matters which are apparent from just seeing the accused and about

17 which he complains himself. And that's caused, amongst other things, a

18 loss of appetite, and he is generally, if I can put it in very lay

19 language, he appears to be less than physically -- less well than he

20 should be, but that may be as a result of the psychiatric problems rather

21 than any clinical physical problem which he has.

22 Apart from that, he appears to have been, as all new detainees

23 are, in a state of shock because of the transfer of lifestyle. That's

24 something the Court will see in almost every case.

25 He has not asked me to deal with any other specific issue, but of

Page 184

1 course I know that the Tribunal will make inquiries of him directly as to

2 that. But those are the sort of broad observations resulting from what my

3 instructions are.

4 JUDGE ORIE: Thank you, Mr. Morrison. Mr. Kovacevic, is there

5 anything you would like to add to what your counsel has submitted to the

6 Chamber at this moment?

7 THE ACCUSED: [Interpretation] My counsel has noticed very well the

8 condition I am in. My late brother also came in to a situation similar to

9 mine today, and he committed suicide. I hope that I will not do that, but

10 I really find it hard in such a small room, even though the staff are very

11 correct and they've opened a small window for me. There is small gym

12 close by, and I spend most of my time there. I shall, of course, try to

13 adjust to the group and requirements of the group. I am trying to prevail

14 as much as I can. I don't know for how long I will be able to.

15 Even before this I was in detention for about a month in much

16 worse conditions in terms of comfort, but something seems to be affecting

17 me more here. I don't exactly know what it is. I'll do my best, but I

18 don't know for how long I shall manage. I'm losing my appetite, and I

19 really feel unwell.

20 So I was better prepared last Friday to appear here, but in the

21 meantime, they had already postponed it. So I don't know. I'll consult

22 with doctors and psychiatrists and we'll see.

23 I'm speaking to you quite frankly and objectively. My Defence

24 counsel himself has noticed some things that I didn't ask him to present

25 here.

Page 185

1 That's all I have to say.

2 JUDGE ORIE: Thank you, Mr. Kovacevic.

3 Ms. Somers, is there any issue to be discussed at this moment or

4 would you like to respond to what has been said until now?

5 MS. SOMERS: Your Honour, I will reserve certain comments until

6 other matters the Chamber has just addressed are known to the parties, but

7 I will say that it is not a unique comment by this accused that

8 confinement does not necessarily suit him or her, and accordingly, I don't

9 take any particular concern at that comment in that context, but only in

10 that context.

11 What I would just raise is that this accused is not alone as the

12 accused in the case, and whatever is decided by this Chamber will have a

13 direct impact on the co-accused Strugar, whose case we must also address,

14 and accordingly, I think that timetable should be very much borne in mind

15 because it has already been set back by circumstances.

16 JUDGE ORIE: Yes. The Chamber is fully aware of the outside --

17 that the cases are this moment still one case, or at least two cases but

18 not severed, still joined cases. Whether that remains or not is another

19 matter. We'll have to see how matters develop, but the Chamber is

20 certainly aware of that.

21 Is there anything else to be raised?

22 MS. SOMERS: I would only add, if the Chamber would permit me,

23 that the Prosecution, should we have gone forward with the first

24 appearance plea or entry of plea, the Prosecution is prepared to submit

25 supporting materials as is required under 66(A)(i). At this point in time

Page 186

1 I believe we'll certainly have to wait but we've made it clear to

2 Mr. Morrison that should he continue, we have the materials for him and we

3 are very happy to meet with him.

4 JUDGE ORIE: Yes. Let me just have one moment to look to -- yes.

5 When I read 66(A)(i), Ms. Somers, I read that the disclosure should take

6 place within 30 days of the initial appearance. It does not say that

7 disclosure should take place within 30 days after a plea entered by the

8 accused, and the Rules provide clearly that at the initial appearance, the

9 accused should be informed that he will be called to enter a plea within

10 30 days. Therefore, I'd like to know from you whether you interpret Rule

11 66 such that the 30 days only start counting on from the moment that the

12 accused has entered his plea or whether these 30 days start of today.

13 MS. SOMERS: I think the principal purpose of the first appearance

14 is to enter a plea, and although it may be left somewhat vague, I would

15 submit to the Chamber that the purpose of it is from the date of pleading

16 30 days would be triggered. I would be willing and happy to check any

17 existing jurisprudence on this point, but given two facts, one of which is

18 matters that were discussed both in public and in closed session, and

19 given the fact that we're not clear about the position of counsel at this

20 point in time, to deliver materials with no guarantee of safeguard -- not

21 from counsel, counsel has agreed certainly very responsibly to handle

22 them, but if there is a period where there is some hiatus or change, we'd

23 like to be sure that the materials which are deemed, of course,

24 confidential are with the parties that will ultimately handle the case, if

25 the Chamber so agrees. But I would submit that it would be from the date

Page 187

1 of plea.

2 Again, if the Chamber would like to take a recess, I can check

3 jurisprudence and see how it has been determined, but at this point that

4 would be my submission.

5 JUDGE ORIE: Yes. Perhaps it's not completely necessary that a

6 decision will be taken right away, but may I ask you the following

7 question: Would you consider that disclosure -- copies of the supporting

8 material would also assist the accused in making up his mind as to how to

9 plead?

10 MS. SOMERS: I believe the Chamber is not clear if the accused is

11 in a position to do so at this point in time, so it may be a bit of a

12 circle. So perhaps from a point in time where that is determined and a

13 plea is entered it might be more helpful, given the dialogue that has

14 taken place both in public and in closed sessions.

15 JUDGE ORIE: Mr. Morrison, any submissions in respect of this

16 issue?

17 MR. MORRISON: Your Honour, with respect, I see the common sense

18 force in the Prosecution's position in respect to those matters. It's, in

19 an ideal world, the sooner the accused has sight of the material that he

20 has to face, the better. And perhaps this is a matter that when the

21 Chamber -- essentially the question of disclosure of material is subject

22 to two things. First of all, an independent decision taken by the

23 Prosecutor as to when to disclose it, within the certain time frame, or

24 secondly, by virtue of an order of the Court. And it may well be that

25 whilst Your Honours are in recess determining the matters that you have to

Page 188

1 determine, I can have a word with my learned friend and we can come to

2 what happens in English politics all the time as a good old-fashioned

3 compromise.

4 JUDGE ORIE: Yes.

5 MS. SOMERS: Can I ask the Chamber for one more.

6 JUDGE ORIE: Yes, please Ms. Somers.

7 MS. SOMERS: Thank you, Your Honour. One of the issues, of

8 course, is what is triggered by turning over the materials, which is the

9 Rule 72 motions, the time for them. If the Chamber orders that we turn

10 them over today, we would of course ask that the time begin to run also

11 for those motions if that is going to be an issue. It's hard to separate

12 the two. So I just ask the Chamber to factor in the linked issues to the

13 turning over of materials, again which are ready to be turned over.

14 JUDGE ORIE: Yes. Have you considered that Rule 72 reads that:

15 "Preliminary motions shall be in writing and be brought no later than 30

16 days after disclosure by the Prosecutor to the Defence of all material and

17 statements referred to in Article 66(A)(i)," Mr. Morrison?

18 MR. MORRISON: Well, of course, that is a determining factor, and

19 it may be that in this case, again out of an abundance of caution and out

20 of the fact that I am only counsel assigned for the present, on temporary

21 basis, it would be better to respect the problems that the Rule 72 time

22 limits might generate and not make an order for disclosure today. In

23 other words, to treat the order for disclosure under -- as running from

24 the time of arraignment rather than the time of initial appearance.

25 JUDGE ORIE: Yes. I do understand.

Page 189

1 [Trial Chamber confers]

2 JUDGE ORIE: The Chamber will consider whatever has been submitted

3 today. We'll give whatever orders or decisions appropriate, but we'll

4 first deliberate on all the issues raised today.

5 The Chamber takes it that the parties will continue to have their

6 meetings and to communicate with each other in order to solve whatever

7 problems they can solve themselves, and the Chamber would very much like

8 to be informed about whatever progress has been made in this respect. Yes.

9 The final thing I'll then do is to inform the parties and tell

10 you, Mr. Kovacevic, that at least within 30 days there will be another

11 hearing, whatever will be discussed at that moment, but it might be that

12 you are then called to enter a plea, but it depends very much on the

13 decisions still to be taken by this Chamber, but you'll appear again in

14 this court.

15 So we will adjourn until a date not yet fixed.

16 --- Whereupon the Initial Appearance adjourned

17 at 3.48 p.m.

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