Tribunal Criminal Tribunal for the Former Yugoslavia

Page 705

1 Tuesday, 1 April 2008

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused Simatovic entered court]

5 [The accused Stanisic not present]

6 --- Upon commencing at 2.25 p.m.

7 JUDGE ROBINSON: Today's hearing was set for the purpose of

8 having a pre-trial conference and the opening statements in the case. It

9 will be apparent to all of you that the accused Stanisic is not present.

10 In that regard, I have two reports which the parties will also have. The

11 first is from Dr. Falke, the medical officer of the Detention Unit. It's

12 dated the 28th of March. I'll read the relevant parts. It says that:

13 "I am to report on the medical condition of Mr. Stanisic to allow

14 adjustments to the schedule to be made and therefore, I must inform you

15 about the urgent hospitalisation of my patient yesterday."

16 The 28th was Friday of last week, so the patient, Mr. Stanisic,

17 would have been hospitalised on Thursday of last week. The report

18 continues: "Due to the acute nature of his kidney stones, he was taken

19 by ambulance to the accident and emergency department of the Bronovo

20 hospital. Following thorough investigation by the urologist,

21 Mr. Stanisic was transferred to the penitentiary hospital where he will

22 remain and undergo a specific treatment for a period of 7 days. After

23 this period, the urologist will reassess his situation, performing

24 further diagnostics and treatment as necessary. Consequently, he will be

25 unable to attend court until this acute problem is resolved."

Page 706

1 Then you will recall that the Trial Chamber had requested the

2 registrar to have Mr. Stanisic examined by a psychiatrist, and we have a

3 communication from Dr. de Man, who is a psychiatrist, and that is dated

4 the -- I'm trying to find the date -- the 31st of March. And he says in

5 his letter to --

6 MR. KNOOPS: Your Honour.

7 JUDGE ROBINSON: -- to the registrar.

8 Yes?

9 MR. KNOOPS: My apologies for the interruption but is the

10 court -- we would be greatly indebted if the court would not read out the

11 second paragraph of Dr. de Man's letter because it contains a rather

12 private and at the same time new element in this case.

13 JUDGE ROBINSON: I don't consider it any longer private and new.

14 The question of Mr. Stanisic's health has taken on an importance in this

15 case that it is a matter of public interest, and that is why this session

16 is being held not in private. Ordinarily, it would be, but I have made a

17 determination, as I did previously, that the court hearing and discussion

18 in relation to Mr. Stanisic's illness would be held in public.

19 So I will read Dr. de Man's letter to the registrar. He says

20 that: "The examination took place at the prison hospital where

21 Mr. Stanisic was admitted because renal colic a day earlier. The

22 conclusion of my examination is that the subject is suffering from major

23 depression with psychotic features and is clearly unfit to stand trial on

24 psychiatric grounds only. His medical status will be judged by other

25 experts."

Page 707

1 "After consultation with the UNDU psychiatrist, Mr. Stanisic's

2 medication was changed to a hopefully more effective tricyclic

3 antidepressant drug. Even if this medication has a very positive result,

4 I do not expect the subject's fitness to be restored within at least

5 three, possibly six months. Please expect my full report with motivation

6 shortly." I am given to understand that by 4.00 today, the registry

7 would have received the fuller report from Dr. de Man, and we are also

8 very eager to see that report.

9 Now, this is the third time that this trial has been unable to

10 commence because of Mr. Stanisic's medical condition. We can't continue

11 in this manner. The Trial Chamber has been deliberating on this very

12 carefully and we are of the view that certain steps will have to be

13 considered. An important factor is that there is another accused who is

14 on trial, and the prolonged postponement of the commencement of the trial

15 is bound to affect his right to a fair and expeditious trial.

16 It is the Chamber's intention to invite the parties to make

17 submissions on the future course of the trial, and I will just outline

18 some possibilities. I'd ask the parties to take note of the

19 possibilities and I'll hear their submissions tomorrow.

20 The first is perhaps the most radical, which is the possibility

21 of a severance under Rule 82 in the interest of justice.

22 The second is prompted by Dr. de Man's conclusion that he does

23 not expect Mr. Stanisic's fitness to be restored within at least three,

24 possibly six months. Of course we don't know or we would not know until

25 we see the fuller report from Dr. de Man on what basis he arrived at that

Page 708

1 conclusion. But that would open the possibility that the -- this trial

2 could perhaps remain in its pre-trial phase and the President would be

3 asked to assign the Chamber another trial.

4 The third possibility is prompted by -- again, by Dr. de Man's

5 finding of unfitness and here again, I repeat that we don't know the

6 criteria which he used to arrive at that conclusion, but prompted by that

7 finding, such as it is, the Chamber could order another round of

8 examination of the accused and have another hearing as to the accused's

9 fitness for trial.

10 The fourth is that when the accused returns to the UNDU, the

11 trial could proceed by video conference link and I would specifically ask

12 the parties to address the conditions that would apply to ensure the most

13 efficient and the fairest manner for conducting the proceedings along

14 those lines.

15 The fifth, the last possibility is following on the Chamber's

16 earlier finding that the accused was not unfit for trial, we could set

17 next Monday, the 7th as the date for the commencement of the trial on the

18 basis that by that time, the accused would be out of the hospital and

19 would have returned to the UNDU.

20 Those are the options that the Trial Chamber sees for the -- for

21 dealing with this particular problem which is becoming a persistent one,

22 and which I anticipate will be with us throughout the trial.

23 I don't know whether any of the parties would wish to make any

24 comments at this stage.

25 Mr. Groome.

Page 709

1 MR. GROOME: Your Honour, the Prosecution will indeed by tomorrow

2 have informed -- have considered the proposals by the Chamber and make

3 full submissions. I would like to point out, I mean the Prosecution does

4 recognise that the summary conclusions of Dr. de Man are a cause of

5 concern. While I do not question the competency of Dr. de Man, some of

6 the circumstances surrounding the examination and evaluation merit

7 examination by the Chamber.

8 We presumably will know when we receive the report the conditions

9 of his examination and how much time was -- he was -- he had and whether

10 he had any difficulties conducting that examination. But what we already

11 know is that he examined Mr. Stanisic and made a psychiatric diagnosis of

12 him during a time that Dr. Falke describes as an acute episode of kidney

13 stones. Having heard from doctors in the hearings here, the pain that

14 attends such an attack, it is hard to imagine that that has had no impact

15 on his ability to conduct an examination. So it's the Prosecution's

16 position that it may very well be necessary to invite Dr. de Man. To

17 come to court and answer questions regarding how the acute kidney attack

18 may have affected his ability to properly diagnose Mr. Stanisic.

19 Also, given the importance of the issues implicated by

20 Dr. de Man's letter, the Prosecution is going to request an opportunity

21 to have Dr. Mimica conduct a follow-up examination of Mr. Stanisic. It

22 is our position that having examined Mr. Stanisic in his native tongue,

23 able to perceive the cultural cues during the interview at a time prior

24 to the first appearance of what Dr. de Man describes as psychotic

25 features, that Dr. Mimica is well equipped to provide the Chamber with a

Page 710

1 reliable assessment of Mr. Stanisic's present psychiatric condition if he

2 has the opportunity to conduct a follow-up examination.

3 It would be my hope that we could have Dr. Mimica here early next

4 week. We have been trying to contact him all day but he is with patients

5 throughout the course of the day. We expect that we will be able to

6 speak with him this evening. It is our hope that he could conduct such

7 an examination shortly after Mr. Stanisic is discharged from the

8 detention unit's hospital quarters and is returned to his own room at the

9 detention unit.

10 So it is the Prosecution's position that this week, as the

11 Chamber has already said, explore in greater detail Dr. de Man's summary

12 conclusions. The Prosecution is, though, asking, and we will be guided

13 by the Chamber whether it wishes to have this in writing, we would seek

14 to have Dr. Mimica to return to The Hague to conduct an examination so

15 that the Court can have a full picture of Mr. Stanisic's present

16 psychiatric state and can make the best decision regarding the future

17 course of the trial.

18 JUDGE ROBINSON: I hear the submissions you have made, but of

19 course since I've asked the parties to make submissions tomorrow on all

20 of the points that I have raised, you would appreciate that your request

21 may be -- may very well be overtaken or swallowed up by some of the

22 responses that will be given but I do note it.

23 Any submissions from Mr. Knoops.

24 MR. KNOOPS: Yes, Your Honour. I think what Your Honour rightly

25 pointed, the submissions of the Prosecution are in this stage for the

Page 711

1 Defence premature to respond to. We have responses but we rather wait

2 tomorrow, tomorrow's opportunity. I simply want to point you on one

3 issue, namely, the language issue, if you read the letter of Dr. de Man

4 well, you may see that Dr. de Man was assisted by two native-speaking

5 B/C/S persons so I don't think that will make his report less viable than

6 the report of Dr. Mimica; but again, the Defence prefers to go into the

7 submissions of today by the adequate opportunity Your Honour will offer

8 the Defence, namely tomorrow. Thank you.

9 JUDGE ROBINSON: Mr. Jovanovic.

10 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. The

11 Defence for the accused Franko Simatovic will give their comments on the

12 proposals put forth by the Chamber tomorrow. Thank you.

13 [Trial Chamber and registrar confer]

14 JUDGE ROBINSON: Very well. We are adjourned until 2.15

15 tomorrow. Courtroom II.

16 --- Whereupon the hearing adjourned at 2.49 p.m.,

17 to be reconvened on Wednesday, the 2nd

18 day of April, 2008 at 2.15 p.m.