Tribunal Criminal Tribunal for the Former Yugoslavia

Page 367

 1                          Wednesday, 7 December 2005

 2                          [Motion Hearing]

 3                          [Accused not present]

 4                          [Open session]

 5                          [Witnesses entered courtroom]

 6                          --- Upon commencing at 2.23 p.m.

 7            JUDGE ORIE:  Mr. Registrar, would you please call the case.

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

 9    IT-01-42/2-I, the Prosecutor versus Vladimir Kovacevic.

10            JUDGE ORIE:  Thank you, Mr. Registrar.  And good afternoon to

11    everyone before this recomposed Chamber in this case.  Judge Moloto has

12    joined us and has replaced Judge El Mahdi.

13            May I have the appearances?  Prosecution first.

14            MS. SOMERS:  Good afternoon, Your Honours.  Susan L. Somers,

15    senior trial attorney.  To my immediate left, David Re, trial attorney, to

16    my right case manager Helena Tavares-Borges.

17            Behind me, as for the Prosecution staff, Mr. Phillip Weiner, trial

18    attorney, and Mr. Aleksandar Kontic, trial attorney.

19            JUDGE ORIE:  Thank you.

20            MS. SOMERS:  There are, of course, other people sitting at counsel

21    table.  Will the Chamber take the initiative or --

22            JUDGE ORIE:  I'll take the initiative.  If these are experts, I'll

23    try to find out where the experts are and how many there are.

24            Defence, please.

25            MS. RADOSAVLJEVIC:  Good afternoon, Your Honours.  For Mr.

Page 368

 1    Vladimir Kovacevic, Tanja Radosavljevic, Defence counsel.

 2            JUDGE ORIE:  Thank you, Ms. Radosavljevic.

 3            As far as the order of this afternoon is concerned, I suggest to

 4    the parties the following.  At the beginning, I'd like to ask all experts

 5    that have appeared and that have reported on the mental health of

 6    Mr. Kovacevic to make a solemn declaration, to confirm that they did write

 7    their reports to the best of their abilities, and having given this solemn

 8    declaration, I would like to invite the parties to put any additional

 9    questions to experts, whether it be experts called by themselves or called

10    by the other party, and to do that in approximately 45 minutes first

11    round.  Then we have a break.  And on the basis of the answers given by

12    the experts, the Chamber may have some additional questions as well, and

13    the parties will have another possibility responding to what the experts

14    have told us to put more questions to the experts in approximately 25 to

15    30 minutes.  So altogether, that would be 75 minutes for each party.  The

16    logical order in my view would be that if you have any questions to --

17            Yes, your microphone is on.  Perhaps it's better to --

18            To start putting questions to your own expert or, and only at the

19    very last, to put questions to the expert of the other party.

20            What we could do, actually, is to split up even the first 45

21    minutes and give an opportunity to Prosecution and Defence to first put

22    the questions to either the Court's experts or the experts called by

23    themselves, and then after you have done that, then to put any questions

24    to the expert called by the other party.  So please split up your time as

25    you deem fit for the first 45 minutes.  We will keep some record on that.

Page 369

 1    If you would, for example, use 15 minutes to put additional questions to

 2    your own expert, you would have 30 minutes remaining for experts called by

 3    the other party.

 4            That's what I suggest to the parties.  If there is any comment on

 5    that, or any disagreement, I would like to hear it now.  And let's not

 6    forget the Chamber has read all the reports.  There is no need whatsoever

 7    to solicit from the experts what they have put on paper already.

 8            Is that clear?

 9            MS. SOMERS:  Thank you, Your Honour.

10            Just a brief mention that yesterday, perhaps it was explained to

11    us somewhat differently so we prepared more for full examination of ours.

12    We weren't sure if the 75 minutes were to include cross.  It wasn't really

13    broken down.

14            JUDGE ORIE:  Yes.  As a matter of fact, we leave it entirely up to

15    you.  If you say the reports of my expert are perfectly clear, the only

16    thing I wish to do is to cross-examine the experts of the other party on

17    their reports and when the cross-examination by, for example, the Defence

18    would raise any need to put additional questions in chief to my expert,

19    you could do that in the second portion of 30 minutes.

20            So I leave it up to you, whether you would seek to clarify your

21    own position primarily, or whether you would want to challenge the

22    expertise of the other party, and therefore, it's -- where you put the

23    emphasis is entirely up to you.  You may use your 75 minutes as you deem

24    fit.

25            MS. SOMERS:  May we inquire, does the Chamber plan to ask any

Page 370

 1    additional questions of the court experts, so we know at the time?

 2            JUDGE ORIE:  We may have some questions for the -- perhaps for all

 3    experts.  But, of course, if you have put already all the relevant

 4    questions, we might have less questions.

 5            MS. SOMERS:  Thank you.  We'll try to adapt to this.

 6            JUDGE ORIE:  Yes.  It's -- let's see whether we can proceed.

 7            Ms. Radosavljevic, any comments on the order proposed?

 8            MS. RADOSAVLJEVIC:  I understand that this is actually a ruling of

 9    the Trial Chamber that we have to keep in this time frame.

10            JUDGE ORIE:  Yes, we have to finish today.  Of course, after you

11    have both spent 75 minutes, once we have put questions to the experts, if

12    there is any time remaining then, of course, we could use that to the

13    benefit of the Court, but we have reserved this afternoon for this

14    hearing.

15            MS. RADOSAVLJEVIC:  Thank you.  There is another issue that I was

16    just --

17            JUDGE ORIE:  Yes.

18            MS. RADOSAVLJEVIC:  Well, I cannot say briefly address to the

19    Chamber, but I think I have to.  Namely, the Defence moves the Chamber to

20    in total disregard the medical expertise submitted by the Prosecution for

21    the following reasons.  The Prosecution has put in a motion for

22    reconsideration of the order from the 7th October 2005 to obtain further

23    medical examination.  We all know, and I won't keep us very long, what the

24    demand in this motion was.

25            This motion was denied by the Trial Chamber.  Afterwards, the

Page 371

 1    Prosecution put in a request for certification which was also --

 2            JUDGE ORIE:  Denied.

 3            MS. RADOSAVLJEVIC:  -- dismissed on the 3rd of November 2005.  I

 4    have received a complete B/C/S and English version yesterday of the

 5    medical experts of the Prosecution, and my first impression -- actually,

 6    the confirmation of my previous impression when I just got the B/C/S

 7    version of this report was that the Office of the Prosecutor has actually

 8    given to their medical expert witness another set of questions which are

 9    not the same questions given to all the other experts that appear here in

10    court.  The Defence sees this as a try to -- although the Chamber on two

11    occasions gave their ruling that the questions from the 7th October order

12    are the one that they want answers for, the OTP in this manner find a

13    way -- found a way to, let's say, in -- to put in their -- the questions

14    that they wanted through a small door.

15            JUDGE ORIE:  Yes.

16            MS. RADOSAVLJEVIC:  Therefore, I see this as, well, I don't want

17    to say abuse of procedural rights of the parties but an unfair proceeding.

18    And therefore, I ask -- I move the Chamber to disregard in total the

19    medical report of the experts of the Prosecution.

20            JUDGE ORIE:  Yes.

21                          [Trial Chamber confers]

22            JUDGE ORIE:  Ms. Somers, would you like to respond to that?

23            MS. SOMERS:  Yes.

24            JUDGE ORIE:  I already observed that -- and I think that's true

25    for both the original and B/C/S to the extent that I can compare it and

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 1    the English translation, that at least the questions asked, it says,

 2    please quote here the questions asked, marked as pages so and so in the

 3    attachment.  So therefore in the report itself, the questions do not

 4    appear clearly.

 5            MS. SOMERS:  Your Honour, if I may respond.

 6            JUDGE ORIE:  Yes.

 7            MS. SOMERS:  On the 17th of November, the Office of the Prosecutor

 8    sent to the two expert witnesses the questions and the issue if I believe

 9    full awareness was the most contentious one.

10            JUDGE ORIE:  That was the issue.

11            MS. SOMERS:  Right.  It's in the -- I would be very happy to

12    tender it to the Chamber.

13            JUDGE ORIE:  Yes.  I suggest that during the first break, you and

14    Ms. Radosavljevic will have a look at what questions you have put to the

15    experts, and then Ms. Radosavljevic, of course, the issue remains on

16    whether the experts kept to the questions put to them but that's, of

17    course, a different matter and, of course, you're free to argue that for

18    that reason, or if you're not convinced by what Ms. Somers shows you, to

19    persist in your request.  The Chamber will not immediately decide on the

20    matter so we'll continue and we'll consider your request.

21            MS. RADOSAVLJEVIC:  Thank you, Your Honour.  We will follow the

22    guidelines that you've given us.

23            JUDGE ORIE:  Thank you very much.  Then I'd like to find a way of,

24    first of all, to identify all the experts present.  I've got a list.

25    Usually we find the experts just in front of us.  It's a bit complicated

Page 373

 1    today but I think we'll manage.

 2            I would like to know whether Mrs. Folnegovic is present.

 3            THE INTERPRETER:  Microphone, please.

 4            JUDGE ORIE:  Could you please push the button of your microphone?

 5            DR. FOLNEGOVIC-SMALC: [Interpretation] Thank you very much.

 6            JUDGE ORIE:  Ms. Folnegovic, I'd like you -- because questions may

 7    be put to you, therefore I'd like you to make a solemn declaration that

 8    you'll speak the truth, the whole truth, and nothing but the truth when

 9    you answer to those questions.  The text is now handed out to you by the

10    usher.  Would you -- may I invite to you make that solemn declaration?

11            DR. FOLNEGOVIC-SMALC: [Interpretation] Your Honours, I solemnly

12    declare that I will speak the truth, the whole truth and nothing but the

13    truth.

14            JUDGE ORIE:  Thank you, Ms. Folnegovic.  Please be seated.

15            Then Danijela Zakic is present as well.

16            DR. ZAKIC: [Interpretation] Yes, Your Honour.

17            JUDGE ORIE:  You've heard the procedure followed.  I would like to

18    invite you as well to make a solemn declaration that you'll speak the

19    truth, the whole truth and nothing but the truth.

20            DR. ZAKIC: [Interpretation] I solemnly declare that I will speak

21    the truth, the whole truth and nothing but the truth.

22            JUDGE ORIE:  Then please be seated.

23            Ana Najman, is she present?  Yes, Ms. Najman, may I invite you

24    also to make a solemn declaration?

25            DR. NAJMAN: [Interpretation] I solemnly declare that I will speak

Page 374

 1    the truth, the whole truth and nothing but the truth.

 2            JUDGE ORIE:  Thank you very much, Ms. Najman.

 3            Vladimir Ortakov.

 4            DR. ORTAKOV:  Yes, Your Honour, I am present.

 5            JUDGE ORIE:  Yes.  May I also invite you to make a solemn

 6    declaration that you'll speak the truth, the whole truth and nothing but

 7    the truth?

 8            DR. ORTAKOV: [Interpretation] I solemnly declare that I will speak

 9    the truth, the whole truth and nothing but the truth.

10            JUDGE ORIE:  Thank you, Mr. Ortakov.

11            Then Mr. Blagojevic.  Is Mr. Blagojevic present?

12            DR. BLAGOJEVIC: [Interpretation] I solemnly declare that I will

13    speak the truth, the whole truth and nothing but the truth.

14            JUDGE ORIE:  Then Ms. Dunja Krajinovic.

15            DR. KRAJINOVIC: [Interpretation] Thank you.  I solemnly declare

16    that I will speak the truth, the whole truth and nothing but the truth.

17            JUDGE ORIE:  And finally, Mr. Goreta.

18            DR. GORETA: [Interpretation] I solemnly declare that I will speak

19    the truth, the whole truth and nothing but the truth.

20            JUDGE ORIE:  Thank you very much.  May I put one general question

21    to all of the experts present?  We have received reports -- let me first

22    concentrate on the report from Professor Folnegovic and Professor Zakic.

23    Have you written these reports to the best of your professional abilities

24    and in full accordance with the truth?  May I ask you to confirm if you

25    did so?

Page 375

 1            DR. FOLNEGOVIC-SMALC: [Interpretation] Yes.  That is correct, Your

 2    Honour.

 3            JUDGE ORIE:  Yes.  Thank you, Ms. Folnegovic.

 4            For you, Ms. Zakic, the same question.

 5            DR. ZAKIC: [Interpretation] Yes.  That also applies to me.

 6            JUDGE ORIE:  Then please be seated.  You don't have to stand up

 7    all the time I put questions to you because it would be a fatiguing

 8    afternoon for you.

 9            For the Defence, Defence experts, I would say experts called by

10    the Defence, because you're not experts for the Defence.  You're experts

11    to assist the Court, and that's true for all of the experts, to assist the

12    Court in preparing and making the determinations this Court will have to

13    make.

14            Ms. Najman, is it -- did you also make your report in accordance

15    with the best of your professional abilities and in accordance with truth?

16            Could you please bush the button of the microphone if you answer

17    my question.

18            DR. NAJMAN: [Interpretation] Yes, Your Honour.  Absolutely in

19    accordance with my knowledge, I drafted the report that was provided to

20    you.

21            JUDGE ORIE:  Yes.

22            And the same question to you, Mr. Ortakov.

23            DR. ORTAKOV:  Yes, Your Honour.

24            JUDGE ORIE:  Yes.  I do see this is a confirmation of what I asked

25    before.

Page 376

 1            Then Mr. Blagojevic, you have not recently drafted a report but

 2    you have -- reports were presented on a regular basis.  Were these reports

 3    made in accordance with your -- the best of your professional abilities

 4    and in accordance with the truth?

 5            Could you please push the button of your microphone if you answer

 6    my question.

 7            DR. BLAGOJEVIC: [Interpretation] Yes.  It's correct that I drafted

 8    the reports earlier and I sent them to you at regular intervals as

 9    requested.  However, since August, I have not been sending these reports

10    because, as of August the 1st, I am retired.

11            JUDGE ORIE:  Yes.  Then Ms. Krajinovic, you have recently

12    submitted a report on the request of the Chamber.  Same question for you,

13    whether it was drafted in accordance with the best of your professional

14    abilities and in accordance with the truth.  I see you nod -- yes.

15            DR. KRAJINOVIC: [Interpretation] All the expert reports so far

16    drafted by myself and Dr. Goreta, so not only the most recent one but all

17    the previous ones, were drafted in accordance with our professional

18    knowledge and ethics which applies for forensic examinations.

19            JUDGE ORIE:  Yes.  Then the same question for you, Mr. Goreta, and

20    also including all the previous reports, so not only the last one.

21            DR. GORETA: [Interpretation] I drafted all the reports according

22    to the criteria that you have referred to.

23            JUDGE ORIE:  Thank you very much.

24            Having received this confirmation, I would like to first give an

25    opportunity to the Defence, unless the parties would have agreed

Page 377

 1    otherwise, to use the first 30 minutes putting either additional -- 30

 2    minutes -- no, let me say, to put those questions to the experts you

 3    called yourself.  That would, for you, Ms. Radosavljevic, would be the

 4    report prepared by Ms. Najman, Mr. Ortakov, and also to experts called by

 5    the Chamber.  That would be the report drafted by Ms. Krajinovic and

 6    Mr. Goreta, and if need be, also to the reports presented by

 7    Mr. Blagojevic and reserve your time for any questions you would like to

 8    put to the experts called by the Prosecution, that is Ms. Folnegovic and

 9    Ms. Zakic.

10            So first up to you.  We will just write down how much time you

11    use.  The remaining time of the 45 minutes in the first round, you can use

12    to put questions at a later stage to the experts called by the

13    Prosecution.

14            Please proceed.

15            MS. RADOSAVLJEVIC:  Thank you, Your Honours.

16            I plan to be very brief in the examination of my experts -- well,

17    sorry, of the experts that I have called and that have presented a report.

18    So are we going to proceed -- well, sorry, will they take the stand in the

19    witness box or ...

20            JUDGE ORIE:  I --

21            MS. RADOSAVLJEVIC:  Or we can adapt our positions.

22            JUDGE ORIE:  Apart from who is going to sit where, there is one

23    remaining question, whether we are going to deal with all of this in open

24    session, yes or no?  That's an issue I should have raised, although not at

25    the very beginning, because the public is certainly entitled to know what

Page 378

 1    we are doing this afternoon.  But since we do not know finally what the

 2    outcome, what the determination of the Chamber will be, I leave it to the

 3    parties, but especially to Ms. Radosavljevic, to consider whether or not

 4    she would like to go into private session because if Mr. Kovacevic would

 5    finally be found not to be fit to stand trial or to enter a plea, then it

 6    might be not a good idea to discuss the whole of his mental condition in a

 7    public hearing.  There is always a possibility at a later stage if one of

 8    the parties applies to the Chamber, for making public what has been said

 9    in private session.  We always then can consider to make it public.

10            Ms. Radosavljevic, do you have any position in this respect?

11            MS. RADOSAVLJEVIC:  Well, as previously, the Defence is of the

12    opinion that everything that has to do particularly with the diagnosis of

13    Mr. Kovacevic and also any other material that could show to inform the

14    people which diagnosis this actually is should go into a closed session.

15            JUDGE ORIE:  Yes.  Ms. Somers, any objection?

16            MS. SOMERS:  Your Honour, the Prosecution, as was the case in the

17    Strugar case, which was held in open session, and again had a number of

18    issues that, of course, involved issues that may be considered in a normal

19    circumstance private but when the public interest is critical were deemed

20    to be public, the Prosecution would move that the session in its entirety

21    be open.  If there are individual moments where closed session for any

22    particular reason may be required, perhaps, but this, in our view, should

23    be an open hearing in which the public has great interest.

24            JUDGE ORIE:  Yes.  Ms. Somers, one of the problems is that once

25    testimony is given in open session, it's very difficult to make it

Page 379

 1    non-public afterwards.  The other exercise, that is to make public what

 2    has been said in private session, is, of course, easier to do.  But let me

 3    first consult with my colleagues.

 4                          [Trial Chamber confers]

 5            JUDGE ORIE:  Having heard the parties and having read the report,

 6    the Chamber prefers to hear the case in private session and leaves it open

 7    whether at a later stage there will be any need to make public what is not

 8    public today.

 9            Therefore, Mr. Registrar, would you --

10                          [Private session]

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23                          [Open session]

24            THE REGISTRAR:  We are in open session, Your Honours.

25            JUDGE ORIE:  Yes.  I would like to -- I would like to thank all of

Page 472

 1    the experts who have appeared before this Chamber, that is you, Mrs.

 2    Folnegovic and Ms. Zakic.  I always forget to call you all Professors.

 3    But you certainly -- that has got nothing to do with my appreciation of

 4    your professional skills.  Ms. Najman, Mr. Ortakov, Mr. Blagojevic,

 5    Ms. Krajinovic, and Mr. Goreta, thank you very much for coming.  I wish

 6    you a safe trip home again.  The Chamber will, after it has received

 7    further submissions, will give its decisions in due course.

 8            We stand adjourned sine die.

 9                          --- Whereupon the hearing adjourned at 7.28 p.m.