Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9538

 1                           Tuesday, 9 April 2013

 2                           [Open session]

 3                           [The accused not present]

 4                           --- Upon commencing at 10.39 a.m.

 5             JUDGE ORIE:  Good morning to everyone in this courtroom.

 6             Madam Registrar, would you please call the case.

 7             THE REGISTRAR:  Good morning, Your Honours.

 8             This is the case IT-09-92-T, the Prosecutor versus Ratko Mladic.

 9             JUDGE ORIE:  Thank you, Madam Registrar.

10             First, I would like to explain to the parties that all kind of

11     technical problems arose this morning, which caused us to swap courtrooms

12     with another Trial Chamber.  It also caused some of the delay but not

13     only that technical reason but also because we had to consider the

14     present situation.  That situation being that Mr. Mladic is not present

15     in court.  We do understand for medical reasons.

16             Finally, I should have said that before, the public gallery is a

17     bit difficult to have access to it, but the doors are open, and if

18     there's anyone in the public who wants to follow the proceedings,

19     unfortunately, they cannot be seated in the public gallery, but they have

20     to stand at the door opening and will be able to follow the proceedings.

21             Mr. Lukic, the Chamber was informed that Mr. Mladic - and we have

22     received a short report, I would say the standard report, by Dr. Falke -

23     that Dr. Falke has examined Mr. Mladic today, that he confirms that he

24     has -- Mr. Mladic has observable symptoms which indicate that he may feel

25     too unwell to attend court.  Still, we are a little bit in the dark,

Page 9539

 1     because we have no further information.

 2             If you could give the Chamber an update, that would be

 3     appreciated.

 4             MR. LUKIC:  Yes, Your Honour.  Two of my colleagues --

 5             JUDGE ORIE:  One second.  If you would like to do that in private

 6     session, we'll move into private session.

 7             MR. LUKIC:  Yeah, it may be better to move into private session.

 8             JUDGE ORIE:  Then we move into private session.

 9                           [Private session]

10   (redacted)

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Page 9540











11 Page 9540 redacted. Private session.















Page 9541

 1                           [Open session]

 2             THE REGISTRAR:  We're in open session, Your Honours.

 3             JUDGE ORIE:  Thank you, Madam Registrar.

 4             Having read the short report by Dr. Falke and considering the

 5     information you, Mr. Lukic, provided to the Chamber, the Chamber decides

 6     that we'll not proceed with the trial, and since it's a bit uncertain how

 7     much time it would take and when we could resume, we'll adjourn without

 8     setting a date when exactly we will resume.

 9             Meanwhile, there are a few matters of a primarily administrative

10     nature which the Chamber would like to deal with briefly.  And, again, as

11     we said yesterday, we'll not deliver any oral decisions but these are --

12     one issue is of a practical nature, and the other one is not directly

13     related to this case.

14             Therefore, I would suggest that we deal with those matters.  And,

15     Mr. Lukic, whether you want to proceed with the application or the

16     submissions to be made by the Prosecution, we'd like to hear from you

17     whether you consider that appropriate or not.

18             MR. LUKIC:  We have no objection --

19             JUDGE ORIE:  No objections to that.

20             Then I move to my agenda items.

21             The first one is about -- well, as the Defence announced

22     yesterday, the Chamber will soon receive a motion concerning amendment of

23     the court schedule for reasons related to the health of the accused.  The

24     Chamber will deal with this matter in due course.

25             However, there is a matter which is unrelated because it doesn't

Page 9542

 1     deal in any way with any medical reasons but may have a kind of an effect

 2     which would be similar to the -- the motion we are expecting from you.

 3     But, therefore, totally separate from the health issue, the Chamber would

 4     like to inform the parties that for trial management reasons and for

 5     those reasons only, it had decided that we would not sit on the following

 6     Mondays in the months of April and May 2013.  That would be Monday, the

 7     15th; the 22nd; and the 29th of April; as well as the 13th and the

 8     27th of May.  As already announced yesterday, the Chamber will not sit on

 9     Orthodox Easter Monday, which is the 6th of May; and in addition, with

10     Monday is an official UN holiday which falls on the 20th of May, again, a

11     Monday, this year, and, therefore, we'll not sit on that day either.

12             I would like to hear from the Prosecution whether this decision

13     by the Chamber would cause any problems with regard to fixed

14     pre-scheduled witnesses for next week, Monday specifically.

15             MR. GROOME:  Your Honour, I believe that based on having some

16     earlier information about this possibility, I think that it does not

17     present a problem for next Monday.

18             JUDGE ORIE:  Yes.

19             MR. GROOME:  With respect to the other dates, I believe we will

20     be able to adapt.

21             JUDGE ORIE:  Yes.  So then we'd not sit on the 15th of April,

22     that Monday, in -- next week.

23             MR. GROOME:  That's acceptable to the Prosecution, Your Honour.

24             JUDGE ORIE:  Yes.  Thank you for that information.

25             I move to my next item, which is the request filed by the Gvero

Page 9543

 1     Defence for access.

 2             On the 23th of the January, 2013, a request was filed on behalf

 3     of Milan Gvero for access to confidential information and materials from

 4     the Mladic case.  Milan Gvero passed away on the 17th of February, 2013.

 5     On the 7th of March, 2013, the Appeals Chamber terminated the appellate

 6     proceedings in relation to Mr. Gvero.  And under these circumstances, the

 7     Chamber considers that there's no further need to decide on the motion

 8     for access, all appellate proceedings having been terminated.

 9             Madam Registrar, the Chamber would like to instruct you to inform

10     counsel of the late Mr. Gvero of this decision.

11             These were my agenda items.  Mr. Groome, please proceed, making

12     submissions as you announced.

13             MR. GROOME:  Thank you, Your Honour.

14             Your Honour, based on Mr. Mladic's health, hearings will not be

15     held today and the Chamber has said that it is uncertain whether we will

16     resume -- when we will resume.  One of the witnesses that is presently in

17     The Hague and scheduled to testify this week is RM396, a survivor of the

18     mass executions -- I'm sorry, 346.  A survivor of the mass executions at

19     Branjevo Military Farm described in Schedule E9 in the indictment.  He is

20     a witness who has suffered greatly and for whom testifying exacts a high

21     toll, not only because doing so requires him to revisit painful and

22     terrifying events, but also because he travels a great distance from

23     where he now lives, something which, apart from the inconvenience, is

24     something which has implications for his working life as well.

25             Given these circumstances, the Prosecution makes an oral

Page 9544

 1     application under Rule 71 that this Chamber take a deposition of this

 2     witness's evidence to be used once Mr. Mladic is healthy enough to be

 3     present in court.

 4             Rule 71 states in relevant part:

 5             "Where it is in the interests of justice to do so, a

 6     Trial Chamber may order, proprio motu or at the request of a party, that

 7     a deposition be taken for use at trial, whether or not the person whose

 8     deposition is sought is able physically to appear before the Tribunal to

 9     give evidence."

10             Rule 71(A) goes on to provide for the appointment of a presiding

11     officer for this purpose.

12             Rule 71(C) provides for the full cross-examination of the witness

13     by the opposing party.

14             And finally, subsection (D) provides that such deposition can

15     occur at the seat of the Tribunal as well as at a remote location.

16             The Prosecution submits that the very circumstances faced by the

17     Chamber this week are of the type that appropriately justify the taking

18     of a deposition.  While the Prosecution does not advance this argument

19     for either Mr. Ruez or Ms. Gallagher, two investigators also scheduled to

20     testify this week, it does so for RM346, a traumatised witness who would

21     be subjected to additional hardship should his evidence not be heard this

22     week.

23             I submit further that given that the witness was scheduled for

24     this week, there can be no prejudice to the Defence with respect to the

25     ability of the Defence to prepare to cross-examine the witness.

Page 9545

 1             I would also submit that there is nothing in the Rule that would

 2     prevent this Trial Chamber from sitting en banc in lieu of appointing a

 3     single presiding officer.

 4             Further, as an additional safe-guard, the Prosecution would

 5     include in its request that should we proceed in this manner, that the

 6     Mladic Defence should have the right to make an application to re-call

 7     the witness for additional cross-examination upon a showing of good cause

 8     that Mr. Mladic's inability to be present during the taking of the

 9     witness's evidence prevented them from putting all relevant questions to

10     the witness.

11             The witness has arrived in The Hague and is currently reviewing

12     his prior testimony today and would be prepared to commence his evidence

13     first thing tomorrow morning, if this application were to be granted.

14             Thank you, Your Honour.

15             JUDGE ORIE:  Thank you, Mr. Groome.

16             Mr. Lukic.

17             MR. LUKIC:  We have no objections, Your Honour.

18             JUDGE ORIE:  There are no objections.

19             Then the Chamber will have to consider whether we would --

20     whether a -- and let me, again, look at Rule 71.  Whether we will --

21     whether a presiding officer will be appointed or whether the Chamber will

22     hear that evidence, as you said, en banc, if we grant the motion.

23             Now, Mr. Groome, and I'm also addressing you, Mr. Lukic, Rule 71

24     says that the application shall indicate the name and the whereabouts of

25     the person.  You've told us about the whereabouts of the persons.

Page 9546

 1             May I take it, Mr. Lukic, that the Defence is sufficiently aware

 2     of which person is covered by this pseudonym.

 3             MR. LUKIC:  Yes, Your Honour.

 4             JUDGE ORIE:  So, therefore, under those circumstances, there is

 5     no need to insist on giving the name in court, Mr. Groome.

 6             The -- let me just briefly confer with my colleagues.

 7                           [Trial Chamber confers]

 8             JUDGE ORIE:  Mr. Groome, before we give a final decision, may I

 9     take it that, if the medical situation of Mr. Mladic would be such that

10     we would -- that we could continue with the trial proceedings tomorrow,

11     that, under those circumstances, you would withdraw the application.

12             MR. GROOME:  Certainly, Your Honour.

13             JUDGE ORIE:  Yes.

14             MR. GROOME:  But, Your Honour, having said that, because of the

15     problems with this witness, we may be seeking to adjust the order of

16     witnesses.  Mr. McCloskey will speaking with both Mr. Ruez and this

17     particular witness to fully ascertain that.

18             JUDGE ORIE:  Yes.  And since you've offered to hear the testimony

19     of the witness tomorrow, I think we should focus on giving priority to

20     hearing the evidence of the witness either -- either by deposition or in

21     court at trial normal proceedings.

22             MR. LUKIC:  Whatever Your Honours find suitable, we are ready for

23     any change in schedule.

24             JUDGE ORIE:  Yes.  Yes.  Then the Chamber decides that the motion

25     is granted.  The Chamber also decides that no presiding officer will be

Page 9547

 1     appointed.  The Chamber will hear the evidence en banc, even if it is a

 2     deposition, which allows the Chamber also to ask any additional

 3     questions, if we would have any of them.  And it's clear on the record

 4     what the position of the Defence -- of the Prosecution is, in relation to

 5     re-calling that witness, if there would be any need to do that at a later

 6     stage.

 7             If this is clear, then I would like to invite the parties to make

 8     any further submissions they want to make.

 9             MR. LUKIC:  Only one additional thing, Your Honours.  We'll visit

10     our client immediately after this sitting and we'll try to see whether

11     there is any possibility for him to attend the trial tomorrow, and we

12     would like, if possible, to arrange his transfer to Bronovo hospital for

13     further checkups.

14             JUDGE ORIE:  Yes.  Now I take it that if we would hear the

15     testimony of that witness en banc here at the -- in the premises of the

16     Tribunal, that we would have the usual video recording of it so that

17     Mr. Mladic, at a later point in time, would not only have the record as

18     provided for by Rule 71 but even a full video record of it.

19             Having dealt with this matter, anything else?  Mr. Groome.

20             MR. GROOME:  Your Honour, just one final matter.  I would ask

21     Mr. Lukic, if he is not already familiar with the video facility that

22     exists at the Detention Unit, or Mr. Mladic is not fully familiar, that

23     he would do that perhaps today and consider the possibility of Mr. Mladic

24     participating in proceedings from that video location.  He may find it

25     more comfortable given these ailments that he is suffering from.

Page 9548

 1             JUDGE ORIE:  Mr. Lukic, it would have the advantage of if there

 2     would be any matter Mr. Mladic would like to raise with counsel, that it

 3     can be done by a telephone line, confidentially, of course, so that we

 4     would minimise the possibility that we would have to re-call that witness

 5     at a later stage.

 6             MR. LUKIC:  Thank you, Your Honour.

 7             JUDGE ORIE:  Yes?

 8             Then nothing else on the agenda.

 9             We adjourn, sine die, we'll inform the parties as soon as we --

10     as we think ...

11                           [Trial Chamber confers]

12             JUDGE ORIE:  And if I say "sine die," I'm talking about the

13     formal proceedings.  We'll continue anyhow tomorrow morning at 9.30, but

14     whether that will be a continuation of the trial or whether that would be

15     hearing a deposition of a witness, that is still to be determined.

16             Then we stand adjourned.

17                            --- Whereupon the hearing adjourned at 11.04 a.m.,

18                           to be reconvened on Wednesday, the 10th day of

19                           April, 2013, at 9.30 a.m.