Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12849

1 Tuesday, 12 November 2002

2 [Open session]

3 [The accused not present in court]

4 --- Upon commencing at 9.17 a.m.

5 JUDGE MAY: Mr. Nice, if I could address you on the matter. We

6 have a report from the Detention Unit that the accused has said that he's

7 tired, but also his blood pressure is described as being too high. The

8 doctor is coming to see him. We shall order a report from the doctor

9 today, first as to the current state of health of the accused, what it is

10 that's wrong with him, his health; when is he likely to be able to resume

11 the trial; and finally, a prognosis as to his future fitness.

12 Depending on that report, the Trial Chamber will consider whether

13 it's necessary to have a further report from the specialists.

14 MR. NICE: Thank you, Your Honour. May I inquire if the first

15 report is going to be from the same doctor who provided the most recent

16 report, the regular doctor attending the prison?

17 JUDGE MAY: Yes. He is the doctor who will be attending.

18 MR. NICE: I think we may have made plain by implication or even

19 expressly the difficulties that we face when we -- the Chamber faces and

20 we, to the extent we face these difficulties, when confronting reports of

21 the limited nature that have been provided in recent or on recent

22 occasions, and it must be extremely difficult for the Chamber to make

23 informed decisions on the basis of that form of medical opinion.

24 JUDGE MAY: That matter has been attended to, and I understand

25 that we can expect a proper report on this occasion.

Page 12850

1 MR. NICE: I hope it may be made available to us so that we can

2 give the best informed contribution on the decisions you have to make as

3 soon as possible.

4 JUDGE MAY: If appropriate, certainly.

5 MR. NICE: Thank you.

6 JUDGE MAY: That being said, are there any matters which you want

7 to raise, Mr. Nice?

8 MR. NICE: Your Honour, I don't think so. We are simply putting

9 the timetable back with necessary adjustments to witnesses to be called.

10 So far as procedural matters are concerned, I think the next procedural

11 matter that's been listed is consideration of the financial report

12 together with the witness K-038, which we'd originally scheduled to follow

13 the present conditions, and I hope that we may at least stick to that

14 plan, although we're always happy to substitute evidence for procedural

15 argument where that's sensibly possible. We can't deal with that --

16 JUDGE MAY: I remember the financial evidence. We've had

17 submissions on that, as I recollect, written submissions.

18 MR. NICE: Yes. The thing was put back. The matter was put back.

19 JUDGE MAY: Have we had representations in writing from you? It

20 may be not.

21 MR. NICE: I don't think so, no. I think the matter was put back

22 for oral argument on both the financial reports generally and the Witness

23 K-038 in particular.

24 JUDGE MAY: Just remind me of the -- yes. These two being

25 connected.

Page 12851

1 MR. NICE: It's all connected, and I think I overheard one word

2 from His Honour Judge Robinson which correctly identifies the nature of

3 that protected witness's occupation.

4 JUDGE MAY: The question is --

5 THE INTERPRETER: Microphone, please, Your Honour.

6 JUDGE MAY: The question is whether there's anything we can do in

7 the absence of the accused.

8 MR. NICE: Your Honour, if there is any procedural matter to be

9 dealt with that doesn't require a contribution from him, then he's

10 safeguarded because he can have a video recording of the hearing, but in

11 reality, there are no procedural matters that can proceed in his absence.

12 If there are matters of information, we can deal with those but they take

13 a couple of minutes and it serves no purpose, really, to notify you in his

14 absence.

15 JUDGE MAY: Well, we must consider, if this is going to be a break

16 of any length, as to whether we can sit to deal with any matters. It may

17 be that none spring to mind, and it may be there aren't any, but we ought

18 to think as creatively as possible about that.

19 MR. NICE: We'll turn our mind to that.

20 JUDGE MAY: And we will, of course, have to consider those matters

21 which have been put before us in relation to the future conduct of the

22 case.

23 MR. NICE: Yes. We suspect that, although I know typically the

24 Chamber deals with these things on written motions, that this is one where

25 a limited amount of debate on the basis of submissions, with a

Page 12852

1 contribution from or on behalf of the accused, would be helpful,

2 particularly in relation to the mechanics or the mechanisms, if any, of

3 either imposed counsel or standby counsel or McKenzie friend and matters

4 of that sort. And it may be that we would want to amplify or modulate our

5 submissions in light of a detailed medical report when it's available.

6 Ms. Uertz-Retzlaff reminds me that there's the intercept topic

7 generally which is going to arise in part in the course of this witness

8 but will also fall for more general consideration in relation to later

9 witnesses. That -- the exercise relating to intercepts is well advanced,

10 and, of course, matters of fact and legal principle will be involved in

11 consideration of the admissibility of intercepts. I'm not sure to what

12 extent that can proceed in the absence of the accused, particularly given

13 that he's been very vocal in his objection to the introduction of any

14 intercept on the grounds of illegality.

15 JUDGE MAY: Have we had your written submission on that? We have.

16 Very well.

17 MR. NICE: And the amici, I gather, are submitting something. I

18 see a nod.

19 JUDGE MAY: Yes. They said yesterday that they were doing it

20 today, I think. Is that right, Ms. Higgins?

21 MS. HIGGINS: Yes, that's right, Your Honour. I would also ask

22 the amici be allowed to address the Court in relation to the arguments

23 raised by the Prosecution concerning the possibility of Defence counsel

24 for the accused in due course.

25 JUDGE MAY: Yes. That would be a matter you may want to address

Page 12853

1 if you have the time, which you may have now. If you want to put

2 something in writing, of course we would consider that.

3 MS. HIGGINS: I'm grateful, Your Honour.

4 JUDGE KWON: I would also like to raise this issue: At this

5 moment, the -- we consider the position of the Prosecution and think about

6 again to reduce the counts of the indictment, reduce the size of the case

7 substantially.

8 MR. NICE: Well, Your Honour, I think we're moving to the merits

9 of the written arguments on the future conduct of the case, and there are

10 two points that need to be made. As the Chamber will remember, there's a

11 discrete issue concerning the Bosnian indictment outstanding and due for

12 return on the 24th of November, in light of an extension. Quite

13 separately from that, there's the question in principle of whether, by

14 reason of the matters that have recently occurred concerning the accused's

15 health, there should be any reduction in the scale of the case he faces,

16 and our submission is quite clear on the point that, in the opinion of the

17 Prosecution, this case is already effectively at its irreducible minimum

18 and there should be no further reduction simply on the basis of these

19 matters.

20 There may have to be an extension of the time available for the

21 case if these problems are going to recur, and we've made it clear that,

22 in our submission, the Chamber will have to give serious consideration to

23 extension. It may be very substantial extension of the time, but our

24 position is that this case is now at its irreducible minimum and that

25 examining only a part of it will not be to do justice.

Page 12854

1 JUDGE KWON: Thank you. I'll look forward to seeing it.

2 JUDGE MAY: Anything anybody wants to raise from the amici? If

3 not, we'll adjourn.

4 We shall sit again -- Mr. Tapuskovic, do you want to say

5 something?

6 MR. TAPUSKOVIC: [Interpretation] Your Honours, I'll be very brief.

7 I will not go into any arguments without the presence of Mr. Slobodan

8 Milosevic. What we wrote in our submission of the 7th November concerning

9 the accused's health and our own opinion of the future conduct of the case

10 is all we have for now. We don't want to add anything to that. We do

11 need -- believe that a debate is necessary in the future on this issue in

12 the presence of the accused.

13 JUDGE MAY: Very well. That will take place. We will adjourn

14 now, and we will give notice when the Court will sit again.

15 --- Whereupon the hearing adjourned sine die

16 at 9.29 a.m.