Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16478

 1                           Tuesday, 10 September 2013

 2                           [Open session]

 3                           [The accused not present]

 4                           --- Upon commencing at 9.54 a.m.

 5             JUDGE ORIE:  Good morning to everyone in and around this

 6     courtroom.  Madam Registrar, would you please call the case.

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

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

 9             JUDGE ORIE:  Thank you, Madam Registrar.

10             I established that Mr. Mladic is not in the courtroom at this

11     moment, and the first thing, therefore, I would like to do is to go

12     through the recent history, looking at it from a medical point of view.

13     And I start with the report of the 4th of September, that is almost a

14     week ago.

15             On the 4th of September, the reporting medical officer reported

16     that Mr. Mladic's state of physical and mental health continues to be

17     closely monitored and is discussed at periodic multi-disciplinary

18     meetings.  Regular measurements of the blood pressure and diabetic checks

19     remain within normal ranges.  Mr. Mladic was in a good mood during the

20     interview.

21             4, the medical treatment plan remains unchanged and we will

22     closely monitor the health of Mr. Mladic.

23             Taking into account his physical and mental condition, it is the

24     opinion of the reporting medical officer that Mr. Mladic is able to be

25     transported to the court.  He is able to participate in the proceedings,

Page 16479

 1     provided that he is able to take several breaks during the Court session

 2     and the advice is continued for a four days' court schedule with

 3     preferably the break on Wednesdays.  And then there is an announcement

 4     when he will be assessed again.

 5             That is as far as last week is concerned.

 6             Now we move to yesterday, where, during the first break,

 7     Mr. Mladic had reported that he felt unwell.  He was then seen by the

 8     nurse, who, as the Chamber understands, initially said that Mr. Mladic

 9     was fine but then later apparently changed her mind under unknown

10     circumstances.  And the Chamber would like to receive a detailed report

11     what made the nurse change her mind and advise that Mr. Mladic would be

12     returned to the UN Detention Unit.  That is one part of what happened

13     outside court during the first break.

14             Then there was another matter, another thing that was reported to

15     the Chamber as having happened.  Mr. Lukic, I'm asking you to carefully

16     listen.  It was reported to the Chamber, Mr. Lukic, that you were yelling

17     at the representative of the Registry, that you expressed to her that the

18     Chamber, and you mentioned me personally, are killing your client.

19             Then in the same mood, apparently, you said that you would not

20     further come to court unless we would have accepted the four days'

21     schedule.

22             You expressed that Mr. Mladic was getting unwell more and more

23     and after all that, as we understand, you apologised to the

24     representative of the Registry and made gestures which she understood as

25     a kind of an explanation that this is how you would have to address her

Page 16480

 1     under the circumstances and in the presence of Mr. Mladic.

 2             Mr. Lukic, before we continue, could I ask you whether what was

 3     reported to the Chamber is accurate?

 4             MR. LUKIC:  I only didn't understand the last part.

 5             JUDGE ORIE:  Did you apologise to the Registrar for what you had

 6     said and that you had yelled?

 7             MR. LUKIC:  Yes, I did.

 8             JUDGE ORIE:  I then leave it to that and her interpretation of

 9     what your gestures were.  Did you make any gestures?  Perhaps I would

10     like that kind of gestures.

11             MR. LUKIC:  Maybe I waved my hands.  I don't know.  I don't think

12     I made any rude gesture.

13             JUDGE ORIE:  I'm not -- I'm just establishing at the moment

14     whether any gestures were made.  You say you may have made gestures, and

15     I did put on the record how she interpreted those gestures.

16             Then I continue where we left off, that is after Mr. Mladic had

17     been returned to the UN Detention Unit.

18             The Chamber received an internal memo, and I read the most

19     relevant part of it, which is -- it is --

20                           [Trial Chamber confers]

21             JUDGE ORIE:  And since the memo is confidential, I'll limit

22     myself to one paragraph, which is relevant and should be public.  It

23     says:

24             "Mr. Mladic has now been examined by Dr. Falke," and that was

25     after he returned, "and the medical report containing more detailed

Page 16481

 1     information has been prepared and will be filed as soon as Mr. Mladic has

 2     consented to such disclosure.

 3             "In the interim," the memo says, "I understand that Dr. Falke

 4     believes Mr. Mladic is fit to attend court tomorrow."

 5             That was the memo we received yesterday.

 6             This morning it was reported to the Chamber that Mr. Mladic has

 7     said that he's unable to attend court proceedings due to illness, that he

 8     has discussed the matter with counsel, and that he does not waive his

 9     right to be present at trial today.

10             That is confirmed by the principal officer.  Before Mr. Mladic

11     signed he wanted to consult his lawyer.  After he had spoken with his

12     lawyer, he signed and ticked the boxes as we find it in the absence from

13     court due to illness form.

14             That's where we are at this moment.

15                           [Trial Chamber confers]

16             JUDGE ORIE:  The Chamber was further informed that Mr. Mladic

17     would be examined by the doctor at this very moment, at 10.00, and

18     I think the wisest thing to do would be to wait for a message from the

19     doctor whether he considers Mr. Mladic to be fit to stand trial today, to

20     come to court.

21             Is there any need to make any submissions?  I'm looking at the

22     Defence first, being the most directly involved party.

23             MR. LUKIC: [Interpretation] Good morning.  Since he needs to be

24     examined by the doctor, perhaps we should suggest to the doctor that he

25     make clear whether General Mladic, after returning from court -- is it

Page 16482

 1     all right now?  So we should ask the doctor to make it clear whether

 2     General Mladic is indeed abed after returning from court all the time

 3     because of fatigue, that this has been going on for several weeks now,

 4     that he's unable to socialise or even watch TV.  He only wants to lie

 5     down, and he has no contact with anyone.  The only time when he's active

 6     is the time he spends here in the courtroom.  And we would kindly ask the

 7     doctor to give his opinion about this.

 8             JUDGE ORIE:  That needs perhaps a bit more thorough medical

 9     report, if -- if you would like to have a more thorough report, we can't

10     ask a reporting doctor who hasn't observed all this to report within half

11     an hour on that.

12             Mr. Lukic, I know that you said that the Chamber did not pay

13     attention to the medical reports, although we did in quite some detail.

14     Paying attention to reports does not necessarily mean that the Chamber

15     accepts under all circumstances the advice of doctors.  The Chamber will

16     also look at on what that advice is based, and if you think that there is

17     need for a more thorough examination of Mr. Mladic in respect of his

18     overall functioning, you can ask for it and the Chamber will consider

19     that, or you can ask for it to the Registrar and such an examination most

20     likely will then take place.  The Chamber, however, does not accept, as

21     you did yesterday, and as you did to the representative of the Registry

22     yesterday out of court, that not following an advice is equal to not

23     seriously considering medical reports.  And I would like you to keep that

24     in mind.

25             We'll first wait and see what the first report of the doctor will

Page 16483

 1     be, unless there is any other submission to be made, either by

 2     Prosecution or by the Defence.

 3             MR. McCLOSKEY:  Very briefly, Mr. President.  As you make your

 4     determinations on this important matter, I would just like to emphasise

 5     that as we have heard four and a half days of Mr. Butler on some of the

 6     most, in my view, essential evidence in the Srebrenica component, this

 7     period of cross-examination is absolutely essential period for the

 8     fairness of this trial.  And from what I saw, Mr. Mladic was carefully

 9     listening to Mr. Butler and he has assisted his lawyers in their work and

10     his presence during this cross-examination, I think, is very important

11     for -- for this trial and to meet our obligations under Article 20 and

12     21.

13             So I know you will take that in account.  I know you are taking

14     that into account but I think this is a particularly important time for

15     this trial.

16             JUDGE ORIE:  That's put on the record.

17             Any further submissions?  If not, the parties are instructed to

18     remain stand-by until we have received our first reports from the

19     United Nations Detention Unit and from the doctor.  The Chamber will then

20     consider whether and how to proceed in court today.

21             We adjourn.

22                           --- Recess taken at 10.11 a.m.

23                           --- On resuming at 1.03 p.m.

24             JUDGE ORIE:  We resume.  The Chamber has received meanwhile a --

25     although not directly but through the intermediary of the Registry, the

Page 16484

 1     oral report of the doctor that examined Mr. Mladic this morning.

 2     I summarise it.  Nothing new has been found.  Mr. Mladic was found to be

 3     very much stressed in relation to the trial, Mr. Mladic is fit to come to

 4     court and to attend the hearings, and the advice to sit four days rather

 5     than five was reiterated by the doctor.  I do understand that

 6     transportation would be available if Mr. Mladic would wish to come to

 7     court.  And I also was informed, Mr. Lukic, that you would like to make a

 8     submission or -- then please do so.

 9             MR. LUKIC: [Interpretation] Thank you.

10             Before all we have to say, and you just mentioned now that you

11     got the oral report of the doctor whereas we did not get any report at

12     all, so we don't know the basis of your decision to continue with the

13     trial.

14             JUDGE ORIE:  First of all, I have not decided anything at this

15     moment.  Second, in order to inform you, I gave the report so that you

16     were informed about it, Mr. Lukic.  That's what I did.  Please proceed.

17             MR. LUKIC: [Interpretation] We wish to emphasise that our client

18     came to the trial even when he was not able to.  The reason was that we

19     insisted that the trial not be interrupted, that it continue, and we

20     persuaded him that the decision would be made very soon that he doesn't

21     have to attend unless he's perfectly able to.  That is why we feel so

22     responsible and that's why I was angry when I addressed the

23     representative of the Registry yesterday.

24             This morning, we heard that the Court of the -- is of the opinion

25     that an additional, more detailed examination is needed to establish why

Page 16485

 1     my client is unable to sleep or eat.  It is clear that such an

 2     examination could not have taken place within such a short time and it

 3     hasn't.  So we do not have a sufficiently detailed and accurate report

 4     from the medical staff about his state of health.

 5             JUDGE ORIE:  Mr. Lukic, I would like to put on the record that

 6     you're not presenting exactly what I said this morning.  But I leave it

 7     to that at this very moment.  You may proceed.

 8             MR. LUKIC: [Interpretation] I do not think I misquoted anything,

 9     although I did not cite it verbatim.  But let me continue.  There was a

10     discussion about why the nurse changed her mind, and on this point I will

11     tell you how I remember it.  The nurse came, took Mr. Mladic's pressure

12     and the oxygen levels in his blood, and after that she said he was fit

13     for trial.  However, only later did she receive the information that

14     I interpreted, uttered by my client, that he had not been sleeping or

15     eating for days.  Then the nurse said in that case the situation is

16     different to what you told me before, and perhaps it is even a virus

17     because she also found General Mladic in bed, unable to sit up or stand

18     up.

19             I talked to General Mladic just before this session.  The guards

20     raised him from bed and he came to the telephone.  I asked him

21     explicitly, was it the case that he was unable to attend the proceedings

22     or he was unwilling to attend?  He told me, calling me by my first name,

23     It's not that I don't want to.  I cannot.  I am in bed.  I'm ill.  I'm

24     not able to attend.  At this moment, therefore, it is our position that a

25     continuation of the trial without the presence of General Mladic would be

Page 16486

 1     a violation of the Rules of this Tribunal and that we, as a Defence team,

 2     do not wish to participate in that of our own will.

 3             If we are compelled by the Trial Chamber to attend the trial that

 4     would continue without the presence of our client who is unable for

 5     health reasons to attend, we would be forced to request the recusal of

 6     the Trial Chamber because we believe that this trial, without the

 7     explicit waiver from the client, cannot continue.

 8             JUDGE ORIE:  Prosecution, any response to this submission?

 9             MR. McCLOSKEY:  Mr. President, not so much a response but perhaps

10     a proposal.  From the position of the Prosecution, we seem to have come

11     to a bit of a brink today and an edge of something, and I merely propose

12     to the Court to consider what I would -- we know to be the international

13     recognised wisdom of tomorrow is another day.  We only have, as we know,

14     a matter of really a few thousand seconds left in today and if we take a

15     deep breath and think about perhaps the ability to have Mr. Mladic in the

16     virtual courtroom of the jail, give him another day's rest, get a better

17     chance to look at the doctor's procedure or the doctor's reports because

18     in what you said I noted that the general is very much stressed and

19     I think -- and at the same time he is fit to come to court.  These are

20     contradictory conclusions by the medical doctor.  I think we all know and

21     we've all experienced how dangerous stress is.  So I think we'll all have

22     less stress tomorrow and we might have ways that we can have Mladic

23     involved without going to the brink of where we are now, which is not

24     something -- I would ask us to consider stepping away from it and

25     tomorrow is another day and perhaps we could get to this tomorrow.

Page 16487

 1             JUDGE ORIE:  Thank you.  Anything to be added in are relation to

 2     what Mr. McCloskey said, Mr. Lukic?

 3             MR. LUKIC:  No, nothing to be added.  Thank you, Your Honour.

 4                           [Trial Chamber confers]

 5             JUDGE ORIE:  The Chamber would like to take its time to consider

 6     it and whether that takes five, 10 or 15 minutes, I cannot tell you in

 7     advance but we'll have a short break for that purpose.

 8                           --- Break taken at 1.14 p.m.

 9                           --- On resuming at 1.42 p.m.

10             JUDGE ORIE:  The Chamber has carefully considered the submission

11     made by the Defence and also the submission made by the Prosecution.

12             The medical reports which were presented yesterday and today,

13     although today only orally, do establish nothing that would justify, and

14     it's not new, it happened in previous instances as well, but does

15     establish nothing that would justify a finding that the accused is unfit

16     rather than unwilling to attend.

17             Mr. Lukic, I earlier said to you that you misquoted me, and in

18     order to have everything exactly on the record, I would like to read

19     again what I said so that there is no misunderstanding about that.

20     I read from the transcript of today.  I said:

21             "If you think," and I was addressing you, Mr. Lukic, "that there

22     is a need for a more thorough examination of Mr. Mladic in respect of his

23     overall functioning, you can ask for it and the Chamber will consider

24     that, or you can ask for it to the Registrar and such an examination most

25     likely will take place."

Page 16488

 1             That is what I said, and not what you claimed I said.

 2             This misquotation, Mr. Lukic, adds to a few matters I brought to

 3     your attention earlier today, the manner in which you behaved both in and

 4     out of court.  It is the Chamber who finally determines whether the

 5     accused is fit to appear and it will do so primarily on the basis of

 6     medical reports it receives.  To the extent the Defence or the accused

 7     might think that it is them who makes such determinations, then that

 8     would be a misunderstanding.

 9             In general, if the accused decides not to come to court despite

10     the Chamber's determination that it could not find the accused to be

11     unfit to come to court and to attend court, then the Chamber will

12     consider that to be a waiver of his right to be present.

13             It is the Chamber that controls the proceedings, and not the

14     Defence.

15             What you said, Mr. Lukic, in and out of court today and yesterday

16     and your announcement of your intent to request the recusation of all

17     Judges of this Chamber does not change that in any way.  Tomorrow

18     morning -- let me first address this afternoon.  This afternoon, the

19     Chamber will read the written report which it will then have received.

20             Tomorrow morning, we will continue, unless there are any

21     significant changes in the health of the accused, we will continue with

22     or without the accused being present.

23                           [Trial Chamber confers]

24             JUDGE ORIE:  This is what the Chamber wanted to tell the parties.

25     We adjourn for the day, and will resume tomorrow, Wednesday, the

Page 16489

 1     11th of September, at 9.30 in the morning in this same Courtroom I.

 2             We stand adjourned.

 3                           --- Whereupon the hearing adjourned at 1.49 p.m.,

 4                           to be reconvened on Wednesday, the 11th day of

 5                           September, 2013, at 9.30 a.m.