Tribunal Criminal Tribunal for the Former Yugoslavia

Page 18124

1 Tuesday, 25 March 2003

2 [Open session]

3 [The accused not present]

4 --- Upon commencing at 9.07 a.m.

5 JUDGE MAY: The accused is not present. On the 18th of March, he

6 did not attend the trial, and the medical report from the Detention Unit's

7 medical officer stated that his blood pressure was increased. It was

8 recommended that he rest for a few days and that there be a consultation

9 with the cardiologist.

10 On the 19th of March, the cardiologist reported that, in his

11 opinion, the dosage of medication received by the accused had to be

12 increased in order to keep his blood pressure under control. However, the

13 accused had so far refused to follow this advice. This was confirmed in a

14 report from the medical officer which stated that the accused had refused

15 to take the extra medication and was unable to attend trial this week.

16 That was the position. I understand there's been no change in the

17 situation, and we'll hear submissions as to how we should proceed.

18 MR. NICE: Your Honour, we had heard some additional material,

19 perhaps informally, that led to the possibility of the accused changing

20 his position, but of course the position may be as blunt as stated by Your

21 Honour. There's the possibility that he might change his position on

22 receiving other and different medical advice, and I don't know what the

23 information coming to the Chamber is about that.

24 As things stand at present, he representing himself, his ability

25 to attend is an absolute prerequisite of the trial. I have given thought

Page 18125

1 to the possibility -- or we've all given thought to the possibility of

2 installing electronic communication, telephone or video, with the

3 Detention Unit, but that doesn't get over the problem that he is said to

4 be unfit to attend and, therefore, would be of either limited or no

5 utility.

6 The position cannot be allowed to continue long or indefinitely

7 where the accused, by his own decision, renders himself incapable of

8 attending court, but for the time being, we have no specific proposals to

9 make. The Chamber knows what the alternatives --

10 JUDGE MAY: One possibility would be for a warning to be issued to

11 him that unless he takes his medication, the trial will proceed without

12 him, because he cannot be allowed to choose whether he makes himself fit

13 or not and render himself effectively unfit for trial.

14 MR. NICE: Your Honour, that's a course we would support,

15 providing he's been given the chance, as a warning would give him, to

16 reconsider his position.

17 I am aware that his associates are, as ever, present in the public

18 part of the court. The terms upon which they are engaged may or may not

19 render them susceptible to being summoned before the Court for the

20 purposes of ensuring that such a warning is given at the greatest degree

21 of proximity to the accused by communicating directly with his associates.

22 That's something the Chamber may wish to consider.

23 May I say that for the timetable of this week, there are

24 particular problems to which I'll turn after the following observation.

25 Having heard of the position today, we'd reconsidered, Mr. Groome and I,

Page 18126

1 the provisions on depositions, Rule 71. It seems to us that again, they

2 provide only limited or possibly even no solution to the problem because

3 under Rule 71(C), the other party shall have the right to attend the

4 taking of the deposition and cross-examination of the person whose

5 deposition is being taken.

6 I suppose, on reflection, the Chamber could take a deposition from

7 witnesses - for example, the witnesses who are coming by way of videolink

8 evidence - saying that the accused had the right to attend in the same way

9 as he has the right to attend the rest of the trial but declined to

10 exercise his right wilfully, by wilfully refusing to take medication that

11 would enable him safely to do so. But nevertheless, Rule 71(C) does

12 afford him the right to attend the taking of the deposition.

13 With those observations - and I may, if my colleagues think of

14 other things I should say, seek leave to come back - may I tell you what

15 the particular practical problems for this week are, and they are pretty

16 serious. First, as you will know, arrangements have been made for two

17 videolink -- video-conference link witnesses to be heard from [redacted],

18 one today, one tomorrow, and we forecast it would be possible for them

19 both to be heard within one sitting day tomorrow if that seemed a sensible

20 course.

21 JUDGE MAY: How are we to achieve that without the presence of the

22 accused?

23 MR. NICE: Well, subject to the presence of the accused. I'm just

24 saying for timetable problems.

25 Obviously a huge amount of time and significant quantities of

Page 18127

1 money has already gone into arranging that, not just by the Office of the

2 Prosecutor but also by Registry.

3 The Chamber knows that General Marinovic is available this week

4 and has taken certain steps which the Chamber may be aware to make himself

5 available this week, but he simply will not be available, as I understand

6 it, hereafter for a very considerable period of time. Again, I can make

7 further telephone inquiries and confirm that position, or have those

8 telephone inquiries made.

9 It was because of his particular problem that I pressed informally

10 through the usual channels Registry to make the video-conference

11 facilities available in [redacted]on Thursday of this week rather than

12 Friday to allow for mishap in the equipment or something of that sort, but

13 they explained that it wasn't possible, if [redacted]witnesses were taken

14 today and tomorrow, for the equipment to be in [redacted]on Thursday and,

15 therefore, the time and facilities have been planned for Friday of this

16 week, which is, as it were, the very last day.

17 By one means or another, it is extremely desirable that that

18 witness is available to be heard. The Chamber wanted to hear him. No

19 doubt the amicus will have some questions for him, and we know that

20 Mr. Tapuskovic asks questions which are closely allied, it would appear,

21 to the interests of the accused and can reasonably be expected, if it's he

22 who would be to cross-examine, to explore the evidence with the accused's

23 interests in mind.

24 So our particular concern is to have General Marinovic heard this

25 week at the latest.

Page 18128

1 Can I just check the note that I received from my colleagues?

2 JUDGE MAY: Let me see if I've got the application right. So

3 you're asking for General Marinovic to be heard. Which day would you be

4 asking for him to be heard?

5 MR. NICE: The present arrangements are that he should be heard on

6 Friday because I couldn't advance it to Thursday. Everything is likely to

7 change, depending on the state of health of the accused and the decision

8 the Chamber makes.

9 May I, incidentally, before I do anything else, ask that the site

10 of the other video-conference link witnesses, the geographical site, be

11 redacted from the transcript. I shouldn't have mentioned it, and it's not

12 necessary. By identifying even the site, there could be some associated

13 risk.

14 So back to General Marinovic.

15 JUDGE MAY: So let me just get this right. Are you applying --

16 you seem to be saying that even if the accused is unfit, you would ask us

17 to hear that witness that day.

18 MR. NICE: Yes. If the Chamber gives the warning it has given or

19 has announced a consideration of giving.

20 JUDGE MAY: Yes, consideration, of course.

21 MR. NICE: Then Friday is a day we would very much like him to

22 give evidence. We would have preferred Thursday to allow for mishap, but

23 Friday would do.

24 The Chamber will know, I think, the reason why it has to be then

25 and no later, and it's not something that needs to be gone into any

Page 18129

1 further here.

2 JUDGE MAY: I'm just thinking about Friday. He would be on first

3 thing, I take it.

4 MR. NICE: Yes.

5 JUDGE MAY: Because it may not be possible to sit beyond 12.00 on

6 Friday.

7 MR. NICE: The Chamber will recall his original position was that

8 he might only be able to manage an hour. My estimation is that he would

9 be able to -- probably would be able to manage a couple of hours before

10 tiring, and he's very enthusiastic about contributing insofar as he can to

11 these proceedings. If we were able to sit 'til 12.00, that would give us

12 two sessions, and I would have thought that would be enough, given that

13 I'm not going to ask him very much by way of examination-in-chief, just

14 really a couple of questions.

15 JUDGE MAY: The question is this: If the accused one way or

16 another is not fit, because clearly if he takes the medication but he is

17 still unfit, we will not be able to go on, but you would still ask us to

18 hear General Marinovic in those circumstances.

19 MR. NICE: If there's any way under the Rules that we can hear him

20 in part in the absence of the accused, reserving the position that he may

21 subsequently, if he is fit and the accused is fit, be subject to

22 cross-examination by the accused, then yes.

23 JUDGE MAY: And as for the rest of the week, you talk about

24 Thursday, and you've got a video-conference lined up for then, have you?

25 MR. NICE: No. Video-conference for today and tomorrow have been

Page 18130

1 lined up, with Thursday the travelling day for the equipment, because the

2 Registry weren't anxious -- the problem is the Registry weren't anxious to

3 have videolink operative in site A on one day and operative in (redacted)

4 on the following day because of the problems of moving it from one to the

5 other.

6 JUDGE MAY: We have -- we have, then, a witness today available

7 but who could be available presumably another day. Not the same --

8 MR. NICE: Could be available tomorrow, for example.

9 JUDGE MAY: Not in the same position as the general is.

10 MR. NICE: Not in the same position as the general, although there

11 is a technical problem about that witness that we must address separately,

12 but I don't believe that's an insoluble problem.

13 JUDGE MAY: Yes. We may need to think about this. Is there

14 anything else you want to say?

15 MR. NICE: Not at the moment, no. And the issue of trial without

16 the accused's presence is something we'd, I think, want to give a little

17 thought to.

18 JUDGE MAY: Of course.

19 MR. NICE: But swiftly and having discussed it not only within our

20 own team but also within the office generally.

21 JUDGE MAY: Yes, Mr. Kay.

22 MR. KAY: Well, I make these following observations as points that

23 the accused perhaps would make. Health issues are very difficult and

24 complicated, Your Honour, and it is not unusual for a patient to find

25 himself in conflict with doctors over medication, and this is by no means

Page 18131

1 an uncommon occurrence, particularly with heart patients, patients who

2 have increased blood pressure. Side-effects of the drugs may have

3 particular effects that make the patient feel very uncomfortable and cause

4 difficulties in the conduct of their everyday life.

5 So I would make this observation: That it should be not a

6 situation where one jumps to conclusions that there is non-cooperation

7 with the doctors for any sinister reasons. And it may well be that this

8 is a position where doctors and patient have to spend time together

9 discussing matters to try and find a balance in his treatment. For a man

10 given his physical condition, he is in exceptional circumstances.

11 JUDGE MAY: Mr. Kay, we have to consider this trial. Nearly 40

12 days have been lost due to his illness, and at some stage the amici are

13 going to have to consider how the trial is to be finished in those

14 circumstances.

15 MR. KAY: This can't be a situation of blame on the accused, and I

16 must stress that so far as I am able to on his behalf.

17 JUDGE MAY: Well, except for this, that he has elected to defend

18 himself, and if he is unfit to do so, a Trial Chamber must decide what

19 steps to take. It cannot be that the trial is brought to a close because

20 of his unfitness to defend himself.

21 MR. KAY: He's an accused in a unique position, with a unique

22 position in relation to all the events relating to the formation of this

23 Tribunal. The issue of him defending himself is something that one can

24 readily understand, and his desire to deal with events on his own behalf

25 as well as this trial.

Page 18132

1 In those circumstances, it being a right that is entirely

2 available and open to him, we submit that, even given those weaknesses

3 that he has concerning his health, that that is an issue that the Court

4 has to respect. And given the pressures of this particular case, it is

5 not surprising that a man in his condition will on occasion experience

6 health problems.

7 I have no need to remind the Court that we made these observations

8 right at the start of this trial on the issue of joinder.

9 JUDGE MAY: Well, and we ruled on it.

10 MR. KAY: Those who have ruled against this Trial Chamber have to

11 bear the consequences. The Prosecution were well aware of the

12 observations that the amici were making concerning the stresses and

13 strains of a full trial of three indictments on an accused. Not only on

14 the issues of manageability but on the issues of coping generally. And

15 this is an issue that was flagged up well in advance.

16 In those circumstances, our submission is it is very wrong to

17 attribute blame to it at this stage to the accused. Understanding is

18 needed for his medical condition, and it's by no means --

19 JUDGE MAY: He is refusing to take his medication. If he were --

20 as recommended. If he were prepared to take it as the doctors recommend

21 and render himself fit, of course the position would be different. But

22 since he's refusing to do so, the Trial Chamber must consider that

23 position. It's not the same position as we were in before. In the same

24 position as we were in before it was not suggested that he had contributed

25 in any way to his unfitness, but now that suggestion must be made.

Page 18133

1 MR. KAY: Our submission is that this may well bear far closer

2 examination. As I said at the start, it is not unusual for patients with

3 a heart condition, blood pressure problems, to be in this kind of position

4 concerning the effects of medication prescribed by doctors. It can also

5 be a confidence issue in relation to the doctors themselves.

6 JUDGE MAY: He is in detention. He is in a different position to

7 a patient who is not in detention. And the question is, should he or

8 should we second guess the doctor's opinion? I mean, that seems to be

9 what you're inviting us to do.

10 JUDGE KWON: Mr. Kay, if you can make any observation to this:

11 According to the report - I have it with me now - it is a report from the

12 staff of the Detention Unit, and as to the reason why the accused is

13 refusing to take the increased medication, it says that the accused had

14 explained that he had previously taken the higher dosage medication which

15 caused him to feel drowsy and incapable of performing any tasks relating

16 to the preparation of his defence and subsequently was not willing to put

17 himself in that state.

18 The doctors who recommended the increased dosage must have been

19 aware of this situation. Do you think I am right in guessing so?

20 MR. KAY: Well, I haven't seen a copy of the report, but Your

21 Honour has spoken out exactly what was going through my mind, that the

22 effects of higher dosage causes drowsiness, has side-effects in the

23 ability of the patient to perform day-to-day tasks let alone deal with a

24 case of this magnitude. And it's to be expected, as I said, that there

25 will be conflict between doctors wanting to bring the blood pressure down

Page 18134

1 and the side-effects on the patient. And the patient is attempting to

2 deal with the issues of this case with those side-effects, and in my

3 submission, one must respect his judgement on this if it is supportable by

4 medical opinion. And I'm no genius in medical affairs, it didn't take

5 much for me to understand that the side-effects of higher dosage drugs

6 would have an effect on his mental capacity.

7 JUDGE MAY: Well, we don't know that. That's merely your

8 supposition.

9 MR. KAY: Well, it's as good as anything from the experience of

10 someone of my age, which is of only tender years, I know, but we all have

11 perhaps had experience of dealing with people with heart conditions.

12 What I do say, though, is that there can be a tendency to blame

13 the accused in a situation such as this without fully understanding his

14 own concerns, and merely increasing the dosage to bring down the pressure

15 has with it side-effects that he is unwilling to accept because he has to

16 deal with the case thereafter.

17 I don't think --

18 JUDGE MAY: Well, one obvious course would be to obtain a report

19 to see whether there are any side-effects, to see what the truth of that

20 matter is. We can resolve that.

21 MR. KAY: Yes. I think caution needs to be the order of the day

22 when considering the effects of this upon the future conduct of the trial.

23 Is certainly seems from what we have heard that, unfortunately,

24 plans for later on this week in relation to his participation in this

25 trial are probably ill-founded, that they will not work out. The effects

Page 18135

1 of these tablets obviously would take a period of time to produce any

2 noticeable effect. It's not an instant cure.

3 JUDGE MAY: The application is that we hear the general, and you

4 may know the reasons for that, for the urgency of that.

5 MR. KAY: Yes. Rule 71 is quite clear in the fact that the

6 deposition, be it taken via videolink - which I don't think is expressly

7 provided for within the Rule, but we may need to look at that - it gives

8 the right of an accused to attend in the taking of the deposition. So

9 when the deposition is taken in chief, he be present for that and - so

10 conjunctively - cross-examine the person whose deposition is being taken.

11 This is an entire process that requires him to be present for that

12 procedure. In our submission, it would be quite wrong to divorce his

13 participation to a later stage to permit cross-examination.

14 It is an unfortunate fact that -- that this has happened in this

15 trial with this witness for the Prosecution at this time, but there's

16 nothing we can do or say about that beyond the fact that he should be

17 present if that is a procedure that is to be adopted. It may be better

18 to, in view of the costs involved with the videolink, that this aspect of

19 the trial perhaps be shelved for a later time when the Prosecution have a

20 more stable feel concerning the conduct of the case. And by that I mean

21 the normalisation of the accused's health.

22 It's a very risky time, in our submission, to make these kinds of

23 plans given his present circumstances, and perhaps it would be far better

24 that this technology be used when there is a more normal state of affairs

25 for the accused.

Page 18136

1 JUDGE ROBINSON: You would be submitting, Mr. Kay, that the

2 effectiveness of his cross-examination could be -- could be hampered if he

3 were to cross-examine not having been present during the

4 examination-in-chief?

5 MR. KAY: Yes. On the wider point despite -- I've mentioned the

6 linking of the two issues within sub-rule (C) of Rule 71. In our

7 submission, it is essential for a witness [sic] to be present and hear

8 evidence being taken so that he is able to -- we've had a number

9 instances, checking of the translation, issues concerning language, but

10 not only that, actually hear how the evidence comes out and unfolds. It

11 is a world apart from just reading it on paper to have the actual hearing

12 of the evidence.

13 On another issue, whether the amici should take over

14 cross-examination of a witness, I can speak on Mr. Tapuskovic's behalf on

15 this matter. It would be quite impossible for us to do that without

16 instructions from an accused.

17 JUDGE MAY: Well, not quite. You could effectively act as Defence

18 counsel, and this may be a matter sometime we have to consider, on this

19 basis: You have no instructions, of course, but you would be in position

20 of standby counsel. You would be able, as you do, to take points on the

21 credibility, to take points on the statement. Mr. Tapuskovic is always

22 doing that. You could -- inconsistencies. You could do all that, of

23 course, couldn't you.

24 MR. KAY: But it would be without the instructions of the accused,

25 and in our submission, that hampers this Trial Chamber's work rather than

Page 18137

1 helps it, and I make that as a very broad observation as to the function

2 and purpose of this trial. At the end of the day, very little good will

3 come out of the fact if such a role is taken by others rather than the

4 accused himself, and that's a position that the amici have been quite

5 consistent in advising the Court. We will, of course, do whatever we are

6 told to do, but as it stands at the moment, we certainly make this

7 observation quite strongly to this Tribunal as to the nature of this trial

8 if that route is gone down.

9 I don't think there are any other matters that I need deal with.

10 MR. NICE: Can I make a couple of points? Would it be sensible to

11 have a hearing tomorrow on medical evidence, the better to inform the

12 Chamber? The Prosecution has been advised over the last few months by a

13 very senior medical expert. I don't know if he is available tomorrow, but

14 he might be. And the preparer of the report and the person who authored

15 the other report, who we haven't seen, who speaks of drowsiness, might be

16 available, I don't know, tomorrow. And if we can have a hearing we would

17 all be that much better informed.

18 JUDGE MAY: We don't know whether the other doctors are available.

19 MR. NICE: No.

20 JUDGE MAY: And so we go on in this way without resolving these

21 issues. We had in mind, as I said, obtaining a further report on the

22 side-effects of this medication. Clearly that's an issue that should be

23 addressed.

24 You say you've got some expert, have you?

25 MR. NICE: Yes, a very considerable expert.

Page 18138

1 JUDGE MAY: No doubt. I say some expert.

2 MR. NICE: An expert of considerable stature. I don't even know

3 if he is in the area this week, but if he is, I forecast that he might

4 well make himself available to the Chamber tomorrow because he's been very

5 willing to assist us.

6 JUDGE MAY: Well, is he in a position to put a report in on the

7 various matters we are considering?

8 MR. NICE: I don't know whether he can get that done in writing at

9 the time. I can investigate.

10 But an early hearing of the medical issue or the evidence about it

11 would inform the Chamber, and all of us, and enable the Chamber the better

12 to deal with the possibility it's already raised, the issuing of a

13 warning.

14 Can I return for this purpose to the possibility of requiring the

15 associates to cooperate if it's within the terms of the arrangement

16 between them and the Chamber that they should do so. There's another

17 reason why I have to come back to in a second.

18 As to General Marinovic, at the very least, could his evidence be

19 taken this week and be subject to such cross-examination as the amici in

20 their role as friends of the Court can be prevailed upon to undertake,

21 thus preserving the evidence under Rule 54, if under no other Rule, an

22 ultimate decision on its admissibility being made later. This

23 possibility, as Mr. Groome helpfully reminds me, always being a

24 possibility for the Chamber. But that way, at least, we get the evidence

25 preserved and guard against one particular possibility.

Page 18139

1 There's a separate -- unless there's anything more that you want

2 me to touch on or that I can usefully touch on on the question of health,

3 those would be our submissions, but the earlier we can have a hearing

4 about the medical issues or we can see all the material gathered together,

5 the earlier it's going to be possible for us to take a view as to what

6 representations we should make about trial in the absence of the accused

7 and the earlier it's going to be possible for the Chamber to make a

8 decision about issuing a warning and the date of effectiveness of such a

9 warning should --

10 JUDGE ROBINSON: Mr. Nice, I think it would be within the right of

11 the Prosecution to submit a report from the kind of medical expert that

12 you have mentioned, because the issue has been raised. And in my view,

13 that is a prior issue that has to be resolved before the Chamber can take

14 any step, that is, the side-effects of the higher medication, because the

15 accused makes the claim that, if you listen to what Judge Kwon read from

16 the report of the deputy commanding officer, he makes the claim that it

17 makes him feel drowsy and incapable of performing any tasks relating to

18 the preparation of his defence. That's a very, very serious matter. So I

19 think that's a prior issue that has to be determined. And if you have

20 medical expertise on that issue, for my own part I think it would be

21 welcome. It may be that we will have to have a hearing on it. We haven't

22 addressed that issue yet. But I certainly believe that a medical report

23 from an expert of your choosing on this question would be helpful.

24 MR. NICE: Well, Your Honour, the terms of the report from the

25 deputy commander is something I've only just heard of in the detail

Page 18140

1 provided by Judge Kwon. If we could possibly have sight of that report,

2 unless there's any reason to the contrary, we would be grateful. And I'll

3 commission the preparation of a report --

4 JUDGE MAY: Yes. We'll get you a copy and the amici and everybody

5 else.

6 MR. NICE: So I'll deal with that as soon as I can.

7 JUDGE MAY: Yes. And you can show it to your expert.

8 Now, unless there's anything -- we will consider the position in a

9 moment about the -- how we should proceed immediately, and we'll also

10 consider the suggestion of a hearing which may have something to recommend

11 it.

12 MR. NICE: Can we keep in touch with your legal officer as to

13 availability and prospects of reports and so on.

14 JUDGE MAY: We haven't got that far.

15 MR. NICE: I realise that.

16 JUDGE MAY: Are there any other matters you want to deal with?

17 Because there's something I want to deal with which has nothing to do with

18 it, which is to announce a ruling in relation to some of the 92 bis

19 applications we've done.

20 MR. NICE: There is a wholly discrete procedural problem in

21 relation to videolink witnesses --

22 JUDGE MAY: Let us deal with that in a moment, but let me deal

23 with a 92 bis application remaining (redacted) witnesses. It's an oral

24 ruling, apologies to the interpreters that they don't have it. It is

25 brief.

Page 18141

1 The Trial Chamber has considered argument in relation to the

2 following witnesses: C-1088, 1092, 1112, 1127, 1159, 1221. All these

3 statements and attachments to them will be admitted under Rule 92 bis (A)

4 since they are all cumulative of evidence already given about (redacted)

5 and meet the criteria for admission under the Rule.

6 The following will only be admissible with cross-examination:

7 C-1092, 1112, 1159, 1221. This is because their evidence raises

8 significant issues about the activities of the JNA or resistance to it.

9 These matters are very much in dispute, and the accused should have the

10 opportunity to cross-examine on them.

11 In relation to the other two witnesses, C-1088, C-1127, the Trial

12 Chamber rules by majority, Judge Robinson dissenting, that their

13 statements should be admissible without cross-examination since in the

14 case of C-1088, the evidence deals chiefly with damage and the evidence

15 about other matters is not significant enough to require

16 cross-examination. And in the case of 1127, the evidence is merely

17 cumulative of much other evidence given about the old town and, in the

18 circumstances, not requiring cross-examination.

19 [Trial Chamber confers]

20 JUDGE MAY: We shall order that there will be a hearing as to the

21 medical issues. We will hold that hearing either tomorrow or the day

22 after, as appropriate for witnesses to attend. If you could have your

23 expert prepare a report and to make himself available, it would be useful

24 to hear from him too.

25 MR. NICE: I'll see what I can do.

Page 18142

1 JUDGE MAY: Or her. And we will then review the position further.

2 MR. NICE: Your Honour, two short points, one that I overlooked

3 making earlier, just for you to have in mind when considering the

4 possibility of evidence being given here in the absence of the accused.

5 I think that there are in place arrangements whereby this trial is

6 shown publicly in any event on television programmes or the like, so it's

7 probably the case that the accused would be in a position to see these

8 hearings, insofar as they're not in closed session, from his prison

9 accommodation in any event. Even if they are not available publicly, it

10 may be comparatively easy, I don't know, to ensure that he can see things

11 as they're being broadcast here. That perhaps can be looked into if

12 necessary.

13 The second point relates to a video-conference link witness, and

14 since it's always possible that things will accelerate beyond our present

15 expectations this week, I must mention it now. It's something that would

16 ordinarily be easier for me to mention in closed session, by think I can

17 identify the problem in open session to avoid any of the problems of

18 closed session in the absence of the accused.

19 Where a witness is granted voice distortion as well as facial

20 distortion, it is not possible for there to be a broadcast of the

21 proceedings publicly. I've explored this, or we both have explored this

22 with the technical staff this morning, and it isn't possible. We've

23 considered with the staff and with the video -- I beg your pardon, with

24 the interpretation booths whether one can suppress the original voice of

25 the witness and simply put out by way of broadcast the same words in the

Page 18143

1 mouths of the interpreters. That isn't possible either.

2 The Chamber might think that with such a witness it's placed in

3 this unfortunate position of either having to have closed-session

4 testimony, because that's the only way the evidence could be given - and

5 this is something that happened once, as I recall, in the Kordic case - or

6 obliging the witness to surrender his protection of voice distortion

7 already granted, or obliging the Prosecution to do without the evidence

8 altogether.

9 We've been giving urgent thought to this, and it seems to us there

10 is a way around this technical problem which, as I understand it, is

11 incapable of resolution otherwise. And the way or ways around it are as

12 follows: One, that the hearing should be in closed session but that,

13 subject to any particular necessary redactions, a transcript could be

14 produced immediately thereafterwards because the evidence as spoken would

15 be, under the ruling of the Court, evidence that should not be in closed

16 session.

17 Alternatively, and I've asked the technical staff to consider

18 this: It might be possible, the evidence having been given in closed

19 session, for there to be a delayed transmission which would only have the

20 original language spoken by someone else other than in the voice of the

21 witness, and thereby the Chamber would meet its duties of ensuring a

22 public trial by a delayed broadcast which would have questions and

23 answers, the answers not being distorted but being in the voice of an

24 interpreter.

25 That technical possibility has only recently been raised by me

Page 18144

1 with the technical staff, and I don't know whether there is a solution

2 along those lines that's possible. That's a problem that may arise and

3 could arise as early as this week, in theory.

4 JUDGE KWON: How long?

5 MR. NICE: Well, as long as it would take for the necessary

6 delayed broadcast by the technical people to be prepared.

7 If I can explain --

8 JUDGE MAY: Who would give the answers?

9 MR. NICE: Well, the answers would be an interpreter. Can I

10 explain? And if I get it wrong, it will be down to me. The problem

11 arises because once a witness speaks, his voice is part of the recording

12 and part of the record and part of the general transmission, and it's not

13 possible to arrest it at that stage even if, for example, here the words

14 heard were not the distorted words but the words of the interpreter. One

15 can imagine circumstances where you have a witness speaking, a distorted

16 voice, you suppress the distorted voice, you let the language speaker

17 simply reproduce the words and the words go out. That's not possible

18 because the output always contains in some form the actual voice of the

19 witness. If I've got it wrong, it's my mistake, my limited understanding

20 of technical matters.

21 But I've raised with them the possibility that if you have the

22 whole hearing in closed session and then for the record make, I don't

23 know, another video and on that video you do not have the voice of the

24 witness but you only have the voice of the interpreter repeating his

25 words, then that might meet our obligation of a public trial. The

Page 18145

1 alternative is simply a written transcript.

2 Having fed you the problem, as it were, and having asked the

3 technical people to look into possible solutions, there's nothing else I

4 want to say about it at the moment.

5 [Trial Chamber confers]

6 JUDGE MAY: We will consider the position about the general's

7 evidence. Would it be possible to have it on Thursday if --

8 MR. NICE: So far as the general is concerned, definitely. I say

9 definitely; he's anxious to have it.

10 JUDGE MAY: Very well.

11 MR. NICE: Whenever this week, yes.

12 JUDGE MAY: Unless there are any other matters. We understand

13 that Mr. McCormack will be joining us before long.

14 MR. KAY: Yes, at some stage. There is, of course, an order from

15 the Trial Chamber for an opinion on a particular issue that was given to

16 him. I think there was a date set with that.

17 JUDGE MAY: We understand he's -- he's due, it may be next week.

18 You may not have heard that.

19 MR. KAY: I thought he was coming this week, but I've been in

20 e-mail contact with him, and I know that there was a week when he couldn't

21 make it for health reasons. But there is a -- I'm not quite sure what the

22 position is over the date for the opinion. I had advised him to write a

23 letter to the Trial Chamber to extend the time.

24 JUDGE MAY: Well, that may have to be revised.

25 MR. KAY: Yes.

Page 18146

1 JUDGE MAY: Very well. We will adjourn this hearing. We will

2 notify the parties when the next hearing will take place.

3 --- Whereupon the hearing adjourned at

4 10.00 a.m., sine die