Tribunal Criminal Tribunal for the Former Yugoslavia

Page 473

 1                          Friday, 15 September 2006

 2                          [Rule 11 bis hearing]

 3                          [Accused not present]

 4                          [Open session]

 5                          --- Upon commencing at 4.55 p.m.

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

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

 8    IT-01-42/2-PT, the Prosecutor versus Vladimir Kovacevic.

 9            JUDGE ORIE:  Thank you very much.  We're here for a hearing on a

10    request under Rule 11 bis.  May I have the appearances.

11            Prosecution, first.

12            MS. SOMERS:  Thank you, Your Honour.  Again, good afternoon,

13    Your Honours, counsel, esteemed members from Serbia.  For the Prosecution,

14    Susan Somers.  To my right, Mr. David Re, trial attorney; to his right,

15    Ms. Carmela Javier, case manager.  Behind me is Mr. Phillip Weiner, trial

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

17            JUDGE ORIE:  And for the Defence.

18            MS. RADOSAVLJEVIC:  Good afternoon, Your Honours, my learned

19    colleagues and everybody else present in the courtroom, especially the

20    representatives of the state.  I am representing Mr. Vladimir Kovacevic,

21    and I'm assisted by Mr. Dragoslav Djukic, my temporary case manager that

22    has been assigned by the registry to me for these proceedings.

23            JUDGE ORIE:  Thank you, Ms. Radosavljevic.

24            The Chamber has invited representatives of the Republic of Serbia.

25    Could you, although it's on record in another case, but could you please

Page 474

 1    introduce yourself.

 2            Mr. Obradovic.

 3            MR. OBRADOVIC: [Interpretation] In spite of this, Your Honour, I

 4    will wish you a good day again, also to all the others present.  My name

 5    is Sasa Obradovic.  I am the First Advisor at the Embassy of the Republic

 6    of Serbia in The Hague, and with me is Mr. Dusan Knezevic, the Deputy

 7    Prosecutor for war crimes.  Today we shall be representing the Government

 8    of Serbia.  Thank you.

 9            JUDGE ORIE:  Thank you very much, Mr. Obradovic.

10            This hearing is scheduled to give an opportunity to the parties

11    and to the representatives of Serbia to make additional oral submissions.

12    The Chamber is not seeking any repetition of what is already in your

13    written submissions, but since, when writing these submissions, you do not

14    know what the other party will write or what the other information will

15    be; apart from that there may be new developments.  So therefore I would

16    like to give an opportunity to you first, Ms. Somers, to address the

17    Chamber.

18            MS. SOMERS:  Thank you, Your Honour.  With the same request

19    that I may not use all my time right now, but I might have an opportunity

20    to respond to anything that should arise in the course of this

21    proceeding.

22            The characterisation of this case would be as a classic 11 bis in

23    what is contemplated by the Security Council.  It is an intermediate level

24    or low-level to immediate-level accused, the seniors from which have been

25    before this Tribunal and are under sentence.  It is a case which is

Page 475

 1    susceptible of being tried in international jurisdiction with respect to a

 2    jurisdiction that is up and running, that has the ability to try cases, as

 3    the Chamber has heard from the representatives of Serbia earlier.  I just

 4    wanted to make sure that it was part of this record as well.

 5            The issues that have lingered over the referral have been more in

 6    line with the issue of the fluid finding of fitness or not.  And just so

 7    it is quite clear from our submissions, and I hope it is, that it is our

 8    position that it is not a factor in any way barring a referral for the

 9    reasons we set forth, but further to emphasise that the Republic of Serbia

10    has responsibly been seized of taking care of this accused for the past

11    two years -- actually, over two years, the affect of the referral would be

12    of really a change in the indictment-seizing tribunal, and there is no

13    limitation that would be evident, either from any logical reading of the

14    Rules or from the actual facts as they exist in this case, which may be

15    more unique than other cases in that provisional release had been granted

16    to the accused prior to even entry of any type of plea, which has not been

17    entered here, which is not required.  But the record before the Chamber of

18    Serbia's very active and responsible role is one that we would ask the

19    Court to take great -- to give great weight to, along with, of course, its

20    submissions, which indicate its willingness and ability.  And I would

21    defer to any further comment until I have heard any other comment made by

22    my learned colleague opposite.  But we wanted to make sure that when the

23    Chamber summarised all of it, it boiled down very much to these essential

24    points.

25            Thank you.

Page 476

 1            JUDGE ORIE:  Thank you, Ms. Somers.

 2            Ms. Radosavljevic, I would like to give you an opportunity as well

 3    to add anything to what you have already submitted in writing.

 4            MS. RADOSAVLJEVIC:  Your Honours, as the Defence has already

 5    stated in its written submission, the Defence of Mr. Kovacevic accepts the

 6    legal submission both of the state and of the Prosecution that refer to

 7    the applicability of a case such as this to a national court.  What I mean

 8    is that the submissions on the gravity of the crime, in light of the other

 9    proceedings before the ICTY, is -- in light of the gravity of the crime,

10    Rule 11 bis is applicable in this case.

11            Also, the position of Mr. Kovacevic in the military hierarchy in

12    regards of the crime charged is a mid-level or even maybe a lower-level

13    position, and especially having in mind that his superiors have already

14    been tried in this Tribunal, this case would be applicable for a referral

15    under 11 bis.

16            Also, the legislation of Serbia Montenegro, now only Serbia, in

17    the last few years brought the national law closer to the practice of the

18    ICTY, and that has already been uttered in both the submissions of the

19    state and of the Office of the Prosecution.

20            We, as you already have been informed, have a new law on the

21    protection programme of the participants in criminal proceedings, which

22    was brought in 2005, and also the law on the organisation and jurisdiction

23    of state organs in the proceeding against war crimes, brought in 2003 with

24    changes in 2004 and 2005.

25            Also, I would take the opportunity, just briefly, to state a

Page 477

 1    personal opinion that as a member of the Belgrade bar and of the legal

 2    system of my state, I am very glad that the cooperation between my country

 3    and the Office of the Prosecution of the International Criminal Tribunal

 4    is at this high level.

 5            Having in mind that the Referral Chamber has ordered the parties

 6    to make oral submission related to the mental health of the accused at the

 7    hearing to be scheduled, as it is said, in the order issued on the 17th of

 8    July, the Defence would like to take the opportunity and to state again,

 9    that, in this particular case, the position of the Defence is that it

10    opposes to a referral of the case.  This position is not out of legal

11    reasons but out of factual reasons concerning the particular accused and

12    his circumstances.

13            Mr. Vladimir Kovacevic, the accused, has been transferred to the

14    UN Detention Unit and has been under the jurisdiction of the International

15    Criminal Tribunal for the former Yugoslavia since the 23rd of October,

16    2003.  From this day up until the present day, the accused underwent seven

17    examinations by medical expert witnesses.  In December 2003, he underwent

18    the examination by the medical expert witness team appointed by the Trial

19    Chamber, Dr. Goreta and Professor Krajinovic.

20            After that, in February 2004, he underwent an examination

21    conducted by Dr. Dusan Kosovic, a medical expert witness of the Defence.

22            In December 2004, we had again an examination performed by the --

23    performed by the Trial Chamber-appointed expert -- medical expert

24    witnesses.

25            Then in March 2005, Dr. Rosic was the examiner.  She was a medical

Page 478

 1    expert witness of the Defence.

 2            At last, in October 2005, he went through three examinations in a

 3    period of three weeks that were medical expert witnesses of the Trial

 4    Chamber, Dr. Goreta and Professor Krajinovic.  Then Ana Najman and Dr.

 5    Vladimir Ortakov which were -- which were the team -- the Defence medical

 6    expert witness team.  And at last the medical expert team that the

 7    Prosecution sent, Dr. Folnegovic and Professor Zakic.

 8            So altogether seven examinations.  These examinations included a

 9    lot of hours of conversation of my client and also of tests that he

10    performed which were very exhausting for him.

11            And at the end the Trial Chamber has reached a decision on 7 April

12    2006 with which the Trial Chamber declared the accused not fit to plea or

13    not fit to stand trial.  This decision was without any prejudice to any

14    further criminal proceedings against Mr. Kovacevic.

15            The Defence would like to refer to some parts, very short parts,

16    of the expert witnesses' reports in this case that will show the Chamber

17    why the Defence opposes a referral under the Rule 11 bis, and therefore I

18    would ask if we could -- because all those reports were submitted

19    confidential, if we could just for five minutes enter into private

20    session.

21            JUDGE ORIE:  Yes, Mr. Registrar, the Chamber would like to go into

22    private session.

23                          [Private session]

24  (redacted)

25  (redacted)

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24                          [Open session]

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

Page 483

 1            JUDGE ORIE:  Thank you, Mr. Registrar.

 2            Please proceed, Ms. Radosavljevic.

 3            MS. RADOSAVLJEVIC:  Should this case be referred to the national

 4    courts -- court at this point, under the national law, it would be

 5    necessary to undertake another examination of Mr. Kovacevic.  Just to

 6    repeat my last sentences from the private session, the opinion thinks --

 7    the Defence is of the opinion that this would just derogate the already

 8    poor mental health of Mr. Kovacevic.

 9            Another question that is more rhetorically is the following:

10    Should this case be referred to the national court?  And the accused would

11    be, again, going through the same procedure through which he was going the

12    last two and a half years.  What kind of exercise did the participant of

13    the case of Mr. Kovacevic before the Tribunal perform and undertake?  And

14    especially having in mind that we are talking about an accused who is

15    mentally challenged.

16            That is all that the Defence has to submit on this issue.

17            JUDGE ORIE:  Thank you, Ms. Radosavljevic.

18            I would like to give an opportunity, Mr. Obradovic, to add

19    anything to what is already in your written submissions, and they are

20    extensive.  They give us a lot of information, not only about criminal law

21    and criminal procedure, but also information about the Serbian law on

22    extradition procedure which informs us about what are the possibilities to

23    take care of someone who is mentally ill and at such a level that you

24    could not just leave him on his own.  But if you'd like to add anything,

25    please go ahead.

Page 484

 1            MR. OBRADOVIC: [Interpretation] Thank you, Your Honours.  We stand

 2    by our submission of the 10th of August, which is quite detailed enough

 3    and which was not challenged by other parties in these proceedings.

 4            My distinguished colleague, Mr. Knezevic, deputy war crimes

 5    prosecutor from Belgrade, stands ready to answer any questions you might

 6    have about the referral of this case to Serbia, and also any questions

 7    about various procedural issues that may arise in view of the special

 8    circumstances of this case.

 9            Once again, I would like to thank the Prosecution in this case for

10    agreeing with us on the issue that, due to special circumstances in this

11    case, this case should be referred to the Serbian judiciary.

12            In addition to that, I would like to inform the Chamber that I

13    obtained two additional reports today.  These reports are of confidential

14    nature, and I would like to know from you whether you wish me to hand you

15    over these two reports, or would you like me to do that at the Status

16    Conference which follows immediately after this hearing?  I'm also

17    prepared to do this in private session, in view of the fact that this

18    concerns confidential information.

19                          [Trial Chamber confers]

20            JUDGE ORIE:  Mr. Obradovic, if these reports would show any

21    significant change in the health condition of Mr. Kovacevic, then the

22    Referral Bench would like to be informed about it.  If there is no

23    significant change, then the Referral Bench would be satisfied if it would

24    be dealt with at the Status Conference to follow.

25            MR. OBRADOVIC: [Interpretation] Your Honours, the problem lies in

Page 485

 1    the fact that it is difficult for me to assess whether there are any

 2    changes or not.  Given that these are confidential reports, you must be

 3    aware that I was not privy to previous reports which were also

 4    confidential.

 5            Also, the additional problem is there was some delay in us

 6    receiving this, and I made sure that I had these two reports when coming

 7    today -- to today's hearing.

 8            So I can't give an answer to your question.  At any rate, a copy

 9    can be made and we can provide these reports to the Chamber.

10                          [Referral Bench confers]

11            JUDGE ORIE:  I suggest to the parties the following procedure:

12    Since reporting is done before a Trial Chamber, and the Referral Bench

13    only has a global insight and the final conclusions, that the new reports

14    will be presented to the Trial Chamber or the Judge sitting on the Status

15    Conference.  If the Trial Chamber or the Judge considers that there is any

16    significant change in the position the Referral Bench should be aware of,

17    that the parties would express this to the Trial Chamber and the Trial

18    Chamber would then take the initiative to make sure that the information

19    finds its way -- finds, in a transparent way, its way to the Referral

20    Bench.

21            Is that agreeable for the parties?  Ms. Somers.

22            MS. SOMERS:  I just want to make sure, Your Honour, I understand.

23    Will the parties have an opportunity to see the reports, or will it be a

24    reporting by the Chamber back, basically?

25            JUDGE ORIE:  I think, as a matter of fact, the reporting always is

Page 486

 1    part of the file before the Trial Chamber, so then of course the parties

 2    will have an opportunity to compare this report with other reports they

 3    received earlier and can form their opinion on whether this would be

 4    relevant to be brought to the attention of the Referral Bench.  And, of

 5    course, the Trial Chamber might proprio motu decide that it is so relevant

 6    that it should be brought to the attention of the Referral Bench.

 7            Is that agreeable to you, Ms. Somers?

 8            MS. SOMERS:  Yes, Your Honour.

 9            JUDGE ORIE:  It's just to avoid duplication --

10            MS. SOMERS:  I understand.

11            JUDGE ORIE: -- and -- yes.

12            Ms. Radosavljevic.

13            MS. RADOSAVLJEVIC:  Yes, Your Honour.

14            JUDGE ORIE:  The Trial Chamber will then revisit the matter later

15    today.

16            MR. OBRADOVIC: [Interpretation] That is quite clear, Your Honour.

17            In this case, I suggest that Mr. Knezevic address you about

18    various procedural issues that may arise should this case be referred to

19    Serbia, bearing in mind that there are special circumstances in this case

20    relating to the health condition of the accused, Mr. Kovacevic.

21            JUDGE ORIE:  You're invited to do so, Mr. Knezevic.  At the same

22    time, be aware that the Referral Bench has, of course, read the written

23    submissions in which it's clearly explained how proceedings are -- how

24    they are suspended, when they are resumed.  Of course this answers the

25    question the Bench had put to you.  And that the Referral Bench has also

Page 487

 1    read the proceedings without consent accommodated in a psychiatric

 2    institution, and how those with consent are accommodated in psychiatric

 3    institutions, and what the procedures are.  So there's no need for

 4    repetition, but if you would like to add anything, you can do that now.

 5            MR. KNEZEVIC: [Interpretation] Your Honours, I learned my lesson

 6    during the last hearing when I started telling you about what was already

 7    contained in our written submissions, so I will do my best not to repeat

 8    that mistake now.

 9            What I would like to say is:  Should this case be referred to a

10    domestic judiciary, what would be the procedural consequences?  There are

11    two situations, two possible scenarios.

12            What I fully agree with when it comes to the arguments of the

13    Defence is that, in the further disposition of this case, it will be

14    necessary under our law to perform yet another examination in order to

15    establish whether Mr. Kovacevic was legally competent at the time when the

16    crime was committed and nowadays.

17            There are two possibilities.  Should the expert team, should the

18    team of psychiatrists, establish that at the time when the crime was

19    committed he was not sane and that his condition remains the same to this

20    day, in that case, certain security measures would be handed down which

21    would envisage that he needs to be committed to a closed-type mental

22    institution.

23            If it is, on the other hand, established that at the time of the

24    commission of the crimes he was fully, legally competent and sane but that

25    nowadays he's not fit to stand trial and that this is due to a temporary

Page 488

 1    nature of his impairment, then in that case the proceedings would be

 2    stayed and additional periodical reports of psychiatrists would be needed,

 3    and, if there are any changes, that the proceedings would be reinstated.

 4            That's all I have to say.

 5            JUDGE ORIE:  Thank you very much, Mr. Knezevic, for this

 6    information.

 7            Then I go back to the Prosecution.  Is there any need to add

 8    anything to what has been said either by the Defence or by the

 9    representatives of Serbia?

10            Ms. Somers.

11            MS. SOMERS:  Your Honour, just certain aspects of what was in

12    closed session, which I'll be very careful about alluding to, that in

13    fact, although there was a finding of a status, there was no affirmation

14    of a diagnosis, to the best of my recollection.  Just the finding of not

15    fit, and I wanted it -- to the best of my recollection, it did not

16    actually confirm, it just said "finding of non-fitness."

17            Secondly, I want to make sure that the Referral Bench has the

18    benefit of being directed to the record at the fitness hearing before the

19    Trial Chamber, particularly to the very detailed testimony of -- sorry,

20    evidence, of Dr. Folnegovic-Smalc, and Ms. Zakic, Danijela Zakic, a

21    psychologist.

22            My colleague points out at paragraph 49 of the decision should be

23    brought to your attention.  Where there was any reference to diagnosis was

24    not -- it was to the UNDU.  That was strictly the reference.

25            Another point is that the Referral Bench, as in a body, has the

Page 489

 1    opportunity to review the dynamics of the findings of the various experts

 2    who've interviewed -- who've conducted medical examinations on the

 3    accused, there has not been a static state, there has been dynamism in the

 4    findings.  It was not consistently not fit and I just wanted to make sure

 5    because it's clearly something that if -- although we believe that it is

 6    not a relevant factor, I just want to make clear that there were clear

 7    indications that it is a situation that is not constant, and that is

 8    reflected in the Trial Chamber's decision where there is a specific

 9    reference to, should there be a change in, as there had been, resumption

10    of proceedings.

11            And I know it's a terribly long record, it's terribly complex, but

12    it does bear looking at various, rather well-buried in the report,

13    findings that I think are helpful.

14            Having said that, returning to the point that it's not something

15    that really should be a factor, there are no substantive weights

16    technically affected now.  It's a procedural venue or forum hearing.  I

17    think the Chamber has been provided with very strong commitment and has

18    seen the strong commitment put into action by the Serbian system.  And

19    should there be any further question about the Prosecution's reaction, we

20    simply support the decision taken by our respective colleagues from the

21    Republic of Serbia, that they are able to handle it quite adequately, and

22    that the Bench has its mechanism for reporting back, should there be any

23    question about conditions.

24            JUDGE ORIE:  Thank you, Ms. Somers.

25            Ms. Radosavljevic, anything to add?

Page 490

 1            MS. RADOSAVLJEVIC:  Thank you, Your Honours.

 2            In regards to paragraph 49 and the exact diagnosis of the illness

 3    of Mr. Kovacevic, I would like to address the Trial Chamber to look at the

 4    transcript of the hearing that was held with all these experts together

 5    with the treating doctor of Mr. Kovacevic.  This transcript will show that

 6    four experts and his treating doctor gave exactly the diagnosis that I

 7    cited in the private session, and the two experts of the Prosecution cited

 8    another one.

 9            As far as the submission of the Prosecution goes towards the

10    possibility of a case that is referred to a national court, can be

11    monitored and then brought back to the Tribunal, I think I don't have to

12    stay that if -- if, in this case, the damage is done, and by "damage is

13    done" I mean the health of my client is even more deteriorating, I don't

14    see that there could be any mechanism that could bring him back to the

15    previous stage.

16            Further on, as far as the submission of the Prosecution goes that

17    his state is a fluid one, I would like to set the attention of the

18    Referral Bench - and I won't quote now, I will just leave it for a later

19    state - to the transcript of the 15 March 2004, pages -- from page 231 to

20    page 237.  You will see that there is something that should be addressed

21    when we are talking about the fluid condition of the accused, and that

22    refers to the potential of him being better or not being better in the

23    future.

24            I thank you, Your Honours.

25            JUDGE ORIE:  Thank you, Ms. Radosavljevic.

Page 491

 1            May I take it that the representatives of Serbia have nothing to

 2    add to this, which is a bit outside the scope of -- perhaps of what -- of

 3    the information we specifically asked from you?  Is that a correct

 4    understanding?  Yes?  I see you nodding.

 5            MR. OBRADOVIC: [Interpretation] That's absolutely correct,

 6    Your Honour.

 7            JUDGE ORIE:  Let me ask whether any of my colleague Judges have

 8    any questions.

 9            Judge Parker.

10            JUDGE PARKER:  I would like to ask, perhaps, Mr. Knezevic two

11    questions:

12            First, one of the positions you suggested could arise if the

13    accused were referred to Serbia is that on examination now or in Serbia,

14    it would be found that while he was of sound mind at the time of the

15    offence, he was temporarily not fit to stand trial at the present.  In

16    that situation, what type of medical facilities would be provided?  What

17    sort of hospital would he be cared for?  And would it be possible for him

18    to continue in the Belgrade military hospital where he's been treated for

19    some time?

20            MR. KNEZEVIC: [Interpretation] Your Honour, this is what the

21    situation is like:  Should his mental health condition be temporary, the

22    trial proceedings would be stayed for a certain period of time.  Medical

23    teams or, rather, medical experts would be periodically reporting on his

24    state of health, should his health deteriorate, of course -- or should his

25    health improve, that would be -- the trial would be renewed, proceedings

Page 492

 1    would be reinstated.

 2            As for the VMA, that particular institution is open to civilians

 3    to be treated and there would be no obstacle for him to continue to be

 4    treated in that institution.

 5            As stated in the Republic of Serbia's submission, he would be

 6    committed to a psychiatric institution, pursuant to the provisions of the

 7    law on non-contentious procedure.  These are provisions, Article 35 to 55.

 8    There it is stated which persons can be detained there.  Of course, under

 9    the provisions of the law, should his health condition stay the same, his

10    detention at this particular institution can be prolonged.  It is not

11    fixed.  If the reports arrive to the effect that his state of mind is very

12    poor, there would follow urgent measures for his full committal to that

13    institution.

14            I hope I have answered your question.  If not, please, I am open

15    to any additional questions.

16            JUDGE PARKER:  I am particularly interested in if he would be

17    going to a different institution if he is thought at the moment to be

18    temporarily not fit to stand trial, as opposed to the position if he is

19    found at the moment to be unlikely to recover.

20            MR. KNEZEVIC: [Interpretation] Under our law, Your Honour, there

21    is no such phrase as "highly" or "less likely."  He is either temporarily

22    incompetent or permanently incompetent to stand trial.  If he is found to

23    be unfit temporarily, then the proceedings are stayed for a while, as I

24    said; and of course if he is found to be unfit for trial permanently, in

25    that case proceedings are in place to terminate that criminal procedure.

Page 493

 1    In both situations, however, there are no impediments that would make it

 2    impossible for him to remain -- to be committed in a closed type medical

 3    institution.  Such persons are a danger to themselves and to others and

 4    remain committed to such institutions.

 5            JUDGE PARKER:  So he would, in either case, move from -- in the

 6    present situation, move from the hospital or facility where he is

 7    presently being treated; is that correct?

 8            MR. KNEZEVIC: [Interpretation] No, no.  He would remain in the

 9    same hospital, because the hospital is fully qualified and has all the

10    facilities for the treatment of such patients.

11            JUDGE PARKER:  Thank you.

12            JUDGE ORIE:  Since there are no further questions, if the last

13    question would have raised any issue, I'd like to hear from the parties.

14            Not for you, Ms. Somers.

15            Not for you, Ms. Radosavljevic.

16            Then we'll adjourn, and the Referral Bench will deliberate whether

17    it has all the information to give a decision or whether it needs further

18    information.  If all we need is there, in due course a decision will be

19    given.  Otherwise, the parties will hear from us.  We'll stand adjourned

20    sine die.

21                          --- Whereupon the Rule 11 bis hearing adjourned

22                          sine die at 5.46 p.m.