Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2257

1 Wednesday, 15 March 2006

2 [Open session]

3 [Accused not present]

4 --- Upon commencing at 9.02 a.m.

5 JUDGE MOLOTO: Yesterday the Chamber made an order that the two

6 doctors who are alleged to be treating the Accused be present in court

7 today and the Accused was excused from attending. I see he's not in court

8 today. I'm not quite sure, anybody from Registry, if you are able to tell

9 us whether any of the doctors or both of them are here outside.

10 THE REGISTRAR: Yes, Your Honour, both of them are awaiting

11 outside.

12 JUDGE MOLOTO: Besides the fact the doctors are here, there is a

13 document. I don't know whether the parties have received a copy of it

14 from Registry.

15 MR. BLACK: No, Your Honour I'm not aware of receiving any

16 document.

17 JUDGE MOLOTO: Mr. Milovancevic?

18 MR. MILOVANCEVIC: [Interpretation] No. No, Your Honour.

19 JUDGE MOLOTO: We adjourned yesterday while we were in private

20 session. I assume we still are. We never went out of private session

21 yesterday, did we?

22 MS. VALABHJI: We are currently in open session.

23 JUDGE MOLOTO: We are currently in open session. We should be in

24 private session. May we please go into private session.

25 [Private session]

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Page 2259

1 (redacted)

2 [Open session]

3 JUDGE MOLOTO: Maybe the -- I don't know whether this document is

4 already with Registry. If it is not we can put it on the ELMO for

5 everybody to see.

6 It is in English, Mr. Milovancevic. Is that okay?

7 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour.

8 Your Honour, can we have a moment to study the document that we

9 haven't seen so far?

10 JUDGE MOLOTO: You're welcome to do that.

11 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

12 You're reading the document, Mr. Black?

13 MR. BLACK: Yes, Your Honour, it's on my screen. Thank you.

14 JUDGE MOLOTO: Have we finished reading the document?

15 Yes, Mr. Milovancevic?

16 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour. We

17 have studied the document and thank you for this short break.

18 JUDGE MOLOTO: Do you have any submissions to make on that

19 document, Mr. Milovancevic?

20 MR. MILOVANCEVIC: [Interpretation] Your Honour, as far as this

21 document is concerned, it was addressed to the Trial Chamber, and we leave

22 this matter with the Chamber and we don't have any further submissions to

23 make.

24 JUDGE MOLOTO: Thank you, Mr. Milovancevic.

25 Mr. Black?

Page 2260

1 MR. BLACK: Thank you, Your Honour. I do have some brief

2 submissions. As I understand this letter, the difficulty in bringing Drs.

3 Petrovic and Falke is that there is a perceived danger to the

4 doctor-patient relationship. I would point out that these documents are

5 not being called as Prosecution witnesses. There is no suggestion that

6 they are testifying against the Accused. In that sense I think the Trial

7 Chamber should give some scrutiny to whether or not there really is a

8 realistic possibility of damaging that relationship. The second point is,

9 what is being sought in this case is a delay in trial. The interests of

10 justice are at stake here. As I mentioned earlier there is an impact on

11 the victim community, on witnesses, and on the general process of justice

12 at this Tribunal.

13 JUDGE MOLOTO: Mr. Black I don't want to curtail your argument.

14 You have made that point yesterday. If you could try to limit yourself to

15 this document, I would appreciate it very much. The Chamber is mindful of

16 what you say, Mr. Black.

17 MR. BLACK: Thank you, Your Honour. The point I was not making

18 quickly enough is we think those interests of justice outweigh this

19 speculative risk of damaging the doctor-patient relationship and we think

20 we should proceed. More fundamentally, the jurisprudence makes clear that

21 if the Defence seeks a delay in proceedings, they bear the burden of

22 establishing temporary unfitness in order to justify such a delay. If

23 these doctors cannot come testify, there is no evidence before

24 Your Honour. Certainly the letters that we received do not address the

25 issues of temporary unfitness for trial. Those capacities set forth in

Page 2261

1 the Strugar decision are simply not addressed, and consequently we say

2 there is no basis before the Trial Chamber right now for a delay in the

3 proceedings. Nevertheless, we understand the practicalities of the

4 situation. There is a suggestion here that an independent expert be

5 appointed. We have no objection to that, but we say the trial should not

6 stop in the meantime.

7 There is no reason why this trial needs to stop while witnesses

8 are waiting here, while we have a videolink scheduled for next week, why

9 everything has to stop while an independent expert is appointed, comes

10 here, and examines the Accused. We see no basis for that, Your Honour. I

11 don't know how this has been addressed in other cases but it seems to me

12 that until they can come forth with evidence demonstrating on a balance of

13 probabilities, his unfitness to continue, we should continue.

14 JUDGE MOLOTO: Thank you, Mr. Black.

15 In so far as this document is concerned, I think we've made one

16 point and I would like to answer you on that point. That point is that --

17 is the perception that they're testifying against the witness, the

18 Accused, rather. That is not what they say, if you look at the document.

19 They say that testifying in proceedings against the Accused. They could

20 be testifying on any side, they could be court witnesses which, in fact,

21 if they did testify they would be. They could be Prosecution witnesses,

22 they could be Defence witnesses but whatever capacity they come in they

23 are testifying in proceedings against the Accused. So I think you sort of

24 misinterpreted their letter there on that point.

25 That is the point that I found relevant to this letter that you

Page 2262

1 made. It now behooves the Chamber to make a ruling. I thought you said

2 you had -- okay.

3 MR. MILOVANCEVIC: [Interpretation] I apologise for maybe having

4 interrupted you. I just have a proposal, having heard the Prosecutor's

5 submission. Maybe it would be the most efficient to hear what the doctors

6 have to say but, for the reasons mentioned by the management of the

7 detention unit, I believe that this should be done in private session in

8 order to avoid a possible influence or suspicion that their testimony here

9 will cause a conflict of interests. The Defence believes that this would

10 be the most efficient way to proceed.

11 JUDGE MOLOTO: I hear what you say, Mr. Milovancevic. The Bench,

12 based on the letter that is on the ELMO now, is satisfied that the doctors

13 say their coming here creates an impression that they are testifying in

14 proceedings against the Accused and that that damages the doctor-patient

15 relationship. It is not the intention of the Bench to damage those

16 relationships or to be seen to be trying to damage those relationships.

17 And for that reason, the Chamber is reluctant to call them in. That is

18 why I wanted -- the Chamber wanted the parties to discuss this document so

19 that a decision can be made on whether or not to call them in.

20 Now, if they are going to be called just to come and explain what

21 is explained already in the letter, it seems to me as if the purpose for

22 coming is outweighed by their fear of damaging doctor-patient

23 relationships, if they came for that purpose only. It will be something

24 different if they were coming to testify on the medical condition of the

25 witness. The weighing would have to be re-looked at afresh. For that

Page 2263

1 reason, I don't think Mr. Milovancevic, the Chamber should call the

2 doctors in to testify. I think the Chamber must decide on the further

3 proceedings of this trial based on the document that is before us and the

4 information that we have before us on the condition of the Accused.

5 Now, the report that we -- that the Chamber received from the

6 doctors on the condition of the Accused is very sketchy. It just does not

7 give any good grounds for a conclusion that the Accused is not in a

8 position to understand the proceedings and might not be so for a period of

9 two weeks. That is why questions were put to the doctors. The questions

10 were still not satisfactory -- the answers were still not satisfactory.

11 It was requested that the doctors come here to come and testify and they

12 put -- the hurdle that they put before the Chamber that -- why they cannot

13 testify, the Chamber must now decide the matter on that sketchy report

14 that they gave.

15 The probative value, if any, to be placed on that report is very

16 low, particularly when it is borne in mind how unclear the report is. The

17 report talks of due to the emotional situations in the past few weeks.

18 Now, in the past few weeks, the Accused has been in court here and has

19 displayed absolutely no emotional situation. But then that is not all.

20 The report goes on to say, especially the death of Mr. Babic. Now,

21 Mr. Babic hasn't died in the last few weeks. He has died in the last

22 week. But that's not all. Even after his death, Mr. Martic has

23 participated in the proceedings in court here, and has shown no emotional

24 disturbance. I'm not suggesting that Mr. Martic was not affected by the

25 death of Mr. Babic, but I'm saying he was able to attend his trial for a

Page 2264

1 whole week since Mr. Babic died. The Court can therefore not accept that

2 Mr. Babic's death was the precipitating factor for this temporary

3 psychological crisis that Mr. Martic is alleged to have landed in.

4 If there may have been a factor at all, looking at the time when

5 Mr. Martic displayed this emotional disturbance, that factor might be the

6 death of Mr. Milosevic but Mr. Milosevic's death is not referred to in

7 this report. Not at all.

8 So, it is unclear what is it that precipitated Mr. Martic's

9 psychological problems. The evidence of the doctors, by way of a report,

10 as has already been indicated, has very little, if any, probative value.

11 The Chamber does not know on what treatment in the past few weeks that is

12 being referred to in this report Mr. Martic was on, and what the

13 observations of the doctors were in those past few weeks, and all of these

14 are issues that go to the credibility of this report.

15 The finding of the Chamber, therefore, is that the report of the

16 two doctors is not worth the paper it's written on, and the Chamber has

17 now to decide on how long, if at all, Mr. Martic may be given time to

18 recuperate from his psychological problems before the trial can resume.

19 Mr. Martic is represented by counsel in this matter. The Chamber

20 recognises that Mr. Martic has the right to attend his trial but he also

21 has the privilege to excuse himself if he so wishes, particularly when he

22 is represented by counsel. If he chooses not to attend court because he

23 is unwell, it's -- it is his choice, it is not imposed on him by the

24 Chamber. It will be his choice but he will be represented by counsel in

25 court because he is quite entitled to run his trial either in person or

Page 2265

1 through counsel. The Trial Chamber is not suggesting that he should stay

2 at home, but the Trial Chamber says that is always a choice he can

3 exercise if he so wishes.

4 Out of empathy and sympathy with Mr. Martic, the Trial Chamber

5 will adjourn for the remainder of this week, until Friday, and resume with

6 the trial on Monday as scheduled.

7 Sorry, before --

8 [Trial chamber and legal officer confer]

9 JUDGE MOLOTO: I think I had finished that point. The matter will

10 resume on Monday, as scheduled. Before we adjourn, one or two things to

11 deal with. Can we move into private session, please?

12 [Private session]

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15 --- Whereupon the hearing adjourned at 9.41 a.m.,

16 to be reconvened on Monday, the 20th day of March,

17 2006, at 2.15 p.m.