Tribunal Criminal Tribunal for the Former Yugoslavia

Page 712

1 Wednesday, 2 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 2.20 p.m.

7 JUDGE ROBINSON: Well, this afternoon we'll have an illustration

8 of the classical rule of lawyers, that is to assist the Bench, and I do

9 hope the submissions that we will hear will provide a solution to the

10 very difficult problem that we face in getting this trial started.

11 I'm going to give each party 50 minutes and I just remind you of

12 the issues that I'd raised, the question of severance under Rule 82, the

13 question of keeping the trial in the pre-trial phase prompted by

14 Dr. de Man's conclusion that the accused would not be well enough to

15 attend court for another three to six months. The third was also

16 prompted by Dr. de Man's finding of unfitness, perhaps another round of

17 examinations on the question of the accused's fitness, video conference

18 link, number four, what would be the optimum conditions to secure the

19 most efficient and fairest manner for that procedure.

20 The fifth one was starting the trial on Monday the 7th on the

21 basis that the accused would be out of the hospital on the Thursday or

22 Friday of this week and the circumstances that under which we would

23 commence the trial, and then this morning I asked my officers to relay to

24 you another question that I formulated and which I think gets to the root

25 of the issues that we face. In what circumstances, if any, may an

Page 713

1 accused, one, whose illness prevents him from being present in court;

2 two, who has not waived his right to be present; three, who is

3 represented by counsel; and four, in relation to whom a motion for his

4 unfitness has been rejected, be tried by a Trial Chamber in his absence.

5 Mr. Groome.

6 MR. GROOME: Thank you, Your Honour. It is my hope that we are

7 of assistance to the Chamber in deciding this difficult question.

8 JUDGE ROBINSON: I should say that I would prefer if you were to

9 deal with them in the order in which I set them but I appreciate that the

10 issues overlap.

11 Mr. Knoops.

12 MR. KNOOPS: Your Honours, apologies for my interruption. We

13 just would seek an oral application that when it concerns detailed

14 citations from the report of Dr. de Man, those could be conducted in

15 private session because we believe that the privacy of the accused should

16 not unnecessarily be invaded. Although Your Honour has ruled that it's

17 now a matter of public interest, we do believe that the report itself

18 contains also information about the private circumstances of the accused

19 which have not yet been disclosed to the public audience. So we

20 respectfully ask the court if the Prosecution intends to cite from that

21 report, and intends to disclose portions of information which have not

22 yet been disclosed, that those portions will be dealt with in private

23 session.

24 We as Defence, we will restrict ourselves by quoting and citing

25 in detail from the report in public session and we hope that the

Page 714

1 Prosecution and Your Honours could agree that this is something which

2 goes to the direct privacy of the accused. Thank you.

3 [Trial Chamber confers]

4 JUDGE ROBINSON: Mr. Knoops, I understand the submission that you

5 made and perhaps also your duty to make it as counsel for the accused

6 Stanisic, but my decision remains the same. Where the health of an

7 accused has interrupted and interfered with the course of a trial, as the

8 health of this accused has, it becomes a matter of public interest in the

9 Trial Chamber's view, and the proper administration of justice requires

10 that the proceedings, even if they relate to those health conditions be

11 conducted in public session.

12 MR. GROOME: I would like to preface my submissions on the five

13 questions posed by the Chamber yesterday with a few comments and

14 observations. Yesterday, the Chamber expressed its concern that

15 Mr. Stanisic's health had now become a persistent impediment to the

16 commencement of this trial. The question the Chamber faces and has asked

17 for submissions today is similar to a question posed and answered by the

18 Appeals Chamber in another case which I will discuss later in detail.

19 I'd like to give the Court a short quote from that decision:

20 "How should the Tribunal treat a defendant whose health, while good

21 enough to engage in the ordinary and non-strenuous activities of every

22 day life, is not sufficiently robust to withstand all the rigours of

23 trial work. Must the Trial Chamber be forced to choose between setting

24 that defendant free and allowing the case to grind to an effective halt?

25 In the Appeals Chamber's view, to ask that question is to answer it."

Page 715

1 That is a quote from the Slobodan Milosevic case, the decision on

2 the interlocutory appeal of the Trial Chamber's decision on the

3 assignment of Defence counsel at paragraph 14.

4 Dr. de Man's report, which has precipitated this discussion

5 today, was an unexpected development given the recent hearings held in

6 this case. Before I address the specific questions posed by the Chamber,

7 it is important at the outset to recognise several important facts.

8 First and foremost, less than a month ago on the 10th of March,

9 this Chamber issued its decision on the motion regarding the fitness to

10 stand trial. This decision is a carefully reasoned decision based upon a

11 comprehensive hearing which fully and carefully explored all of the

12 issues related to Mr. Stanisic's health. It is a decision based upon

13 contemporaneous and reliable evidence that was before the Chamber. It is

14 my view that the findings of the Chamber and the decision that flowed

15 logically and legally from those findings can only be impugned or

16 reconsidered upon a showing with similar, similarly reliable evidence

17 that there has been a change of circumstances over the last couple of

18 weeks. Obviously the focus then turns to whether the report of

19 Dr. de Man does this and I will address this question later in my

20 submissions.

21 Second, during the course of that hearing, the Chamber heard

22 evidence from all of the experts that Mr. Stanisic exhibited no symptoms

23 indicating the presence of a psychosis.

24 While the symptoms significance of psychotic symptoms in a

25 determination of fitness was discussed in the hearing and referenced in

Page 716

1 the Chamber's decision, it was clear that there was nothing approaching

2 psychotic symptoms last month. The first observation of these was by

3 Dr. de Man last week. The Chamber must carefully scrutinize the findings

4 related to the psychotic features observed by Dr. de Man and consider

5 whether Mr. Stanisic, a man of admittedly high intelligence, could and is

6 now mimicking features he now fully appreciates support his desire to

7 have this case dismissed on the grounds of fitness.

8 Thirdly, there is no basis for any finding that Mr. Stanisic's

9 condition is a permanent or terminal one. Even those experts who suggest

10 that he may be unfit all agree that this condition is treatable and in

11 time he will be in a condition to effectively participate in his trial.

12 The most dire prediction we have regarding how long this will take is

13 from Dr. de Man who says it may take from between 3 and 6 months.

14 Mr. Stanisic has been found fit, he has been found fit by this

15 Trial Chamber, and any colourable claim that he is unfit is a claim of a

16 temporary condition.

17 The first question that the Chamber asked us to address was the

18 issue of a severance. It is the Prosecution's position that any

19 consideration of a severance of Mr. Stanisic is premature at this

20 juncture. While we must be vigilant of how delays occasioned by

21 Mr. Stanisic's health impact the rights of Mr. Simatovic, we have yet to

22 be confronted with a delay that places his rights in jeopardy. The

23 standard is not that his trial commence as soon as possible. He entered

24 this present period of detention less than two months ago and even if the

25 Chamber were to adopt the conclusions of Dr. de Man creating the greatest

Page 717

1 delay, Mr. Simatovic would be in pre-trial detention for approximately 8

2 months, a time period clearly falling within an appropriate period.

3 Similarly, it is difficult to conceive of a colourable claim that

4 a delay of six months would result in the loss of evidence or of

5 witnesses Mr. Simatovic might wish to call in his defence.

6 On the 3rd of September, 2000, in the Trial Chamber hearing the

7 Blagoje Simic case, presided over by you, Judge Robinson, the Chamber

8 issued a decision entitled, "Decision on a motion for separate trial for

9 Simo Zaric." That decision resolved a motion by Mr. Zaric seeking a

10 severance under Rule 82(B) of the Rules of Procedure and Evidence. On

11 page 2 of that decision, the Chamber summarized the basis upon which

12 Mr. Zaric sought severance. Among those reasons are some reasons that

13 are relevant to the Chamber's consideration today. One of the reasons

14 was that the joinder with other accused would result in a delay to the

15 start of the trial for reasons unrelated to Mr. Zaric.

16 The Chamber in denying the motion stated: "That a joint trial

17 avoids duplication of evidence, minimizes hardship to witnesses and is

18 generally in the interests of judicial economy."

19 In short, while we must always have the impact of Mr. Stanisic's

20 illness on Mr. Simatovic in mind, the Prosecution believes that the

21 situation with respect to Mr. Simatovic can be resolved in a manner and

22 in a time-period that will not cause undue prejudice to Mr. Simatovic.

23 The second question, whether or not to adjourn the case for three

24 to six months and leave it in the pre-trial phase.

25 It is the Prosecution's position that it is certainly premature

Page 718

1 to consider adjourning the case for such a long period. I believe that

2 the Chamber's decision was predicated or the Chamber's question was

3 predicated on Dr. de Man's conclusions that a regime of tricyclic

4 antidepressants Mr. Stanisic could regain fitness in a period of three to

5 six months.

6 My cursory review of the literature and our communication with

7 Dr. Mimica last evening suggests that positive results of tricyclic

8 therapies are most often seen much earlier and in most cases reach full

9 effectiveness in a period of four to six weeks. There is a reference in

10 Dr. Dominecus's report to a change of medicines in February. Although we

11 do not know when Mr. Stanisic was first placed on tricyclics, he may

12 already be on them for several weeks and it is possible that he will

13 realise tangible benefits very shortly.

14 I think the question of what would be an appropriate adjournment

15 is best reserved to my discussion of how we determine Mr. Stanisic's

16 present psychological condition. I think in the resolution of that

17 matter, what if any adjournment is required will become clear.

18 The third question, whether the court should order another round

19 of psychiatric evaluations and a new hearing into the fitness of

20 Mr. Stanisic.

21 As I stated at the beginning of my remarks, the Chamber has less

22 than one month ago issued a carefully reasoned decision based upon its

23 findings after a thorough hearing into the fitness of Mr. Stanisic.

24 It is my position that those findings should stand until such

25 time as it is demonstrated that the circumstances have sufficiently

Page 719

1 changed to warrant the Chamber to reexamine this issue. The question is

2 whether the report of Dr. de Man does this.

3 For two reasons, the Prosecution does not attach great weight to

4 the report of Dr. de Man, and questions whether it establishes a basis

5 for questioning the Chamber's carefully rendered decision.

6 First, Dr. de Man has been admirably candid about the limitations

7 of his own examination. One, he had a single encounter with

8 Mr. Stanisic.

9 Two, the encounter lasted 60 minutes and the effective time spent

10 with Mr. Stanisic is in reality much less given that the interview was

11 conducted with the assistance of an interpreter.

12 Three, Dr. de Man had absolutely no access to the medical file.

13 Although he notes that Mr. Stanisic gave full permission for access to

14 his medical records, it seems that this came during the evaluation itself

15 and that Dr. de Man was not able to follow up on this. There is nothing

16 in Dr. de Man's report that would indicate that the contents of those

17 reports played a role in his evaluation, and there is some evidence that

18 they did not. For example, Dr. de Man's misstatement of Mr. Stanisic's

19 place of birth, a fact that is indicated correctly on most of the prior

20 medical records.

21 Four, at the time of the evaluation, Mr. Stanisic was being

22 treated for renal colic which is technically the severe pain associated

23 with kidney stones. We have already heard in great detail the

24 relationship that Mr. Stanisic's physical condition has with his mental

25 condition.

Page 720

1 JUDGE ROBINSON: Mr. Groome, you mentioned that the doctor only

2 had one session with Mr. Stanisic. Is that not the same for the -- most

3 of the doctors who examined him in relation to the hearing that we had?

4 I don't recall that they had more than one session.

5 MR. GROOME: Your Honour, I don't have at the tip of my fingers

6 the amount of time spent by the other experts but I do note in

7 Dr. de Man's report he suggests that the time that he wanted to spend was

8 limited by the physical condition of Mr. Stanisic, indicating that he did

9 not have an opportunity to conduct a full examination or the examination

10 he would have wanted to have conducted with Mr. Stanisic. And I will try

11 to retrieve the specific information regarding other examinations.

12 Finally, although the exact time and dosage are not indicated,

13 Dr. de Man notes that Mr. Stanisic had taken morphine within 24 hours of

14 the evaluation, so it is quite possible that he was still under the

15 effects of a very powerful analgesic morphine during the time of his

16 examination.

17 The second reason. Despite all of this, Mr. Stanisic's

18 evaluation by Dr. de Man is by and large consistent with the reports that

19 were reviewed by the Trial Chamber during the fitness hearing and which

20 did not constitute, in the Trial Chamber's view, an unfitness to stand

21 trial.

22 The expert consensus is that Mr. Stanisic is depressed, and that

23 this depression is caused by a combination of his present life

24 circumstances, for example, his failed marriage, his incarceration in a

25 foreign country, facing a serious criminal trial, and having -- and being

Page 721

1 worn down by his intestinal disease and its complications.

2 Those complications include kidney stones, which have a

3 relationship as we know with Mr. Stanisic's pouchitis, and Dr. de Man's

4 opinion fits comfortably within the broad consensus of the other forensic

5 experts that testified before the Chamber.

6 This was not found by the Trial Chamber to constitute unfitness

7 to stand trial. Dr. de Man's evaluation should also not be found to

8 constitute unfitness to stand trial, notwithstanding his use of

9 conclusory language to the effect at the end of his report.

10 As noted above, Mr. Stanisic's depression is a reactive one, and

11 one of the things he is reacting to, by getting depressed, is his

12 physical condition. In that regard, it is significant that Dr. de Man

13 noted a more severe depression than other experts. In particular, he is

14 the first of the seven mental health professionals who has examined

15 Mr. Stanisic to find psychotic features attached to his depressive state.

16 All of the prior psychiatrists and psychologists have affirmatively ruled

17 out psychosis, except for one passing note in a letter by Dr. Blagojevic.

18 With respect to the reference in his report to psychotic features

19 and the visitations or the possible hallucinations he is recently

20 perceiving at night encouraging him to kill himself, it is really not all

21 that different from Dr. Blagojevic's testimony and one wonders could the

22 difference or a different characterisation of those reported symptoms be

23 due to the fact that this particular evaluation was conducted through a

24 translation? Could it be a translation error? Could it be a possible

25 cultural misperception? And yet even in the severe depression,

Page 722

1 Dr. de Man describes Mr. Stanisic on page 4 of his report as, "Clearly

2 ill and physically suffering but nonetheless alert and cooperative,

3 57-year-old male who is well-oriented in place, time, and person. The

4 attention span is limited but there are no signs of diminished function

5 of memory, neither are there any signs of cognitive deterioration."

6 Dr. de Man then goes on to describe Mr. Stanisic as having a

7 clear wish to die. This of course must be taken seriously but again the

8 detention unit is probably one of the safest places for a suicidal person

9 given the 24-hour attention that can be paid.

10 While it is up to the Chamber to decide, the Prosecution believes

11 the Chamber could consider Dr. de Man's report and make a determination

12 that in light of its inherent limitations, it does not establish cause to

13 reconsider its recent findings in March based upon what the Prosecution

14 believes is more reliable evidence.

15 It appears that Dr. de Man like some of the other experts drew

16 the conclusion based upon their determination of certain symptomology of

17 unfitness and in some ways usurping the Court's -- the Court making its

18 legal decision of whether those symptoms did constitute true unfitness in

19 the legal sense.

20 The Court, consistent with its responsibility, can consider his

21 observations and yet draw different conclusions than Dr. de Man.

22 In the alternative, the Chamber could convene a relatively

23 limited hearing in which Dr. de Man would appear before this Chamber and

24 discuss his findings related to Mr. Stanisic. It may be that after that

25 hearing, the Chamber finds that his report does not give rise to a

Page 723

1 reconsideration of its 10th of March decision finding Mr. Stanisic fit.

2 In the event that the Chamber finds that it does reawaken this

3 issue, the Prosecution suggests that the Chamber, having heard from a

4 number of experts, is in a position to direct which experts it wishes to

5 conduct follow-up examinations of Mr. Stanisic. The Chamber may take the

6 view that it will be assisted in making a determination of Mr. Stanisic's

7 present psychological state by follow-up examinations of one or more of

8 the experts that have already testified.

9 As I said yesterday, the Prosecution would seek, if necessary, to

10 have Dr. Mimica conduct a follow-up examination of Mr. Stanisic. We have

11 been in contact with Dr. Mimica and he is willing to conduct such an

12 examination.

13 JUDGE ROBINSON: The hearing that you contemplate is -- would be

14 confined to Dr. de Man.

15 MR. GROOME: I suggest that that would be the first course of

16 action, Your Honour, and if after that, the Court felt that it needed

17 more information, perhaps by psychiatrists and psychologists that have

18 seen Mr. Stanisic on a prior occasion and can perhaps give the Chamber

19 some indication of whether or not there has been a deterioration that the

20 Chamber could then, rather than reconvening or starting from scratch as

21 it were on a fitness hearing, could simply ask some of the experts that

22 testified at the fitness hearing to do a follow-up examination and then

23 report that to the Chamber.

24 Dr. Mimica has also suggested that he would be able to give the

25 Chamber a more complete picture of Mr. Stanisic's mental health if he

Page 724

1 could include in his report some psychometric tests which would be

2 administered by a psychologist. He is prepared to recommend such a

3 psychologist with whom he has worked and in whose work he has great

4 confidence.

5 In short, the Prosecution recognises that given Dr. de Man's

6 report, the Chamber must satisfy itself that there has been no change of

7 circumstance, but such can be done after a reading of the report or after

8 a hearing strictly limited to this particular issue without having to

9 conduct, once again, a lengthy hearing so shortly after the Court's

10 comprehensive hearing last month.

11 The fourth issue we were asked to address, the feasibility of

12 video conferencing.

13 JUDGE ROBINSON: Before you go on to that, can I ask you: How

14 would the Chamber treat with Dr. de Man's summary that the situation has

15 deteriorated into a clinically significant depression with psychotic

16 features? Is the Chamber to ignore that?

17 MR. GROOME: No, Your Honour, but I think given the fact that

18 what we know about the relationship between the psychosomatic illness and

19 the psychiatric illness that Mr. Stanisic suffers from, recognising that

20 he was directly in the middle of what perhaps is one of the most painful

21 illnesses or conditions someone can endure, the passing of a kidney

22 stone, and from my conversations with Mr. Knoops yesterday, he indicated

23 that on Friday, the day of this examination, Mr. Stanisic was still very

24 much in extreme pain, so the Court could reach the view that given those

25 circumstances of this evaluation, the pain, the morphine, the limitations

Page 725

1 placed on Dr. de Man, the Court could reach the view that this report is

2 simply unreliable and rely on the comprehensive reports and evidence that

3 the Chamber heard only a short time ago.

4 JUDGE ROBINSON: Thank you.

5 MR. GROOME: With respect to video conferencing, this morning I

6 had a phone conversation with David Falces who would be the person

7 responsible for administering and supervising the exploration of the

8 ability of current technology to set up video conferencing about -- a

9 video conference link between the courtroom here and the detention unit.

10 Mr. Falces informs me that it would be possible to do the following:

11 One, to establish a secure video link between the court and place

12 in the detention unit from which Mr. Stanisic could effectively

13 participate in the proceedings. The Tribunal already has a leased cable

14 between this building and the detention unit capable of transmitting the

15 proceedings back and forth in a secure manner. 20 of the 60 detainees

16 already have computers in their detention rooms. It would not be

17 complicated matter to provide one to Mr. Stanisic.

18 Two, Mr. Falces also informs me that it is also possible to

19 provide Mr. Stanisic with a secure means of communication with his

20 Defence team by both e-mail during court proceedings and by video

21 conferencing during breaks. A means of communication that would be

22 secure not only from interference from outside the Tribunal but also

23 secure and unreadable to anyone in the Tribunal except the Defence team

24 thereby ensuring that these privileged communications are never

25 inadvertently compromised.

Page 726

1 I want to convey Mr. Falces's view that although he sees no

2 technological impediment to establishing such links, he is unable to say,

3 without looking into the matter further, how long it would take to set

4 this up.

5 It was my impression that he was talking in terms of weeks and

6 not months in considering the different tasks that would have to be

7 undertaken to establish this system. He advised me that they, in

8 connection with an earlier case, had already made some preliminary

9 exploration of the potential to establish such communication.

10 The next issue which is raised by the Court in asking us to deal

11 with this issue is the legal question. Under what circumstances is

12 participation via videolink legally permissible. And I'd like to examine

13 with the Chamber some of the relevant jurisprudence.

14 The first and perhaps clearest example of when such an

15 arrangement would be permissible is in the case in which the accused

16 expressly waives his right to be physically present for the proceedings.

17 The Milan Simic case is the only ICTY case in which an accused has

18 participated in the trial phase of proceedings via videolink.

19 Milan Simic followed his trial from the detention unit through a

20 videolink due to health reasons, health complications that he was

21 experiencing but he did waive his right to be present in the court.

22 JUDGE ROBINSON: Am I given to understand that he had pleaded

23 guilty, if I'm not mistaken, so that that puts a different complexion on

24 it.

25 MR. GROOME: I will check my information. There are some such as

Page 727

1 Mrs. Plavcic who pled guilty via videolink but I believe Mr. Simic was

2 someone who had a bad back problem and actually did go through the trial,

3 at least a part of the trial until he pled guilty through a videolink,

4 but I can check that information.

5 [Trial Chamber and legal officer confer]

6 JUDGE ROBINSON: We can check it out, but I understand that it

7 was the sentencing judgement that he followed by video conference link.

8 MR. GROOME: I will check that further, Your Honour, and perhaps

9 if I could have a few minutes later to clarify that.

10 Currently, in a current case, the Prlic case, the accused Pusic

11 in that case has been absent from court on multiple occasions due to

12 health reasons but there has always been a waiver and there has been no

13 other alternative arrangement for his participation in the trial such as

14 video conferencing.

15 The other scenario would be where there is no waiver and the

16 jurisprudence such as in Barayagwiza there it is permissible where the

17 accused is found to have obstructed the proceedings or has engaged in

18 some conduct which amounts to a waiver.

19 In the Barayagwiza case in the decision of the 2nd of November,

20 2000, the Chamber found that the trial can continue in the absence of the

21 accused if he is aware of the ongoing trial and voluntarily decides not

22 to attend. Mr. Barayagwiza never attended personally but was represented

23 by counsel.

24 That's indicated in the judgement of the 3rd of December, 2003,

25 at paragraph 83.

Page 728

1 In paragraph 6 of the November 2000 decision, it reads: "In such

2 circumstances, where the accused has been duly informed of his ongoing

3 trial, neither the Statute nor human rights law prevent the case against

4 him from proceeding in his absence."

5 We can find similar jurisprudence in the cases of the

6 Special Court for Sierra Leone, for example, the Gbao case in a decision

7 decided on the 12th of June, 2004.

8 In another case from the Special Court for Sierra Leone, the

9 Sesay case, a case in which Mr. Jordash will be familiar as he

10 represented the accused, in its decision of the 19th of January, 2005,

11 the Trial Chamber found that the unexplained absence of Mr. Sesay and

12 Mr. Kallon, who were mentally fit and had no known medical condition at

13 the time, perceived their voluntary refusal to attend court as a waiver

14 of their right to attend trial.

15 Also in Article 63 of the ICC Statute, in that case, they adopted

16 the same principle that the use of video technology in certain cases,

17 particularly in where the accused has voluntarily waived their right or

18 has obstructed the process in such a way as to constitute a waiver of the

19 right, that this technology is not deemed to infringe on the basic right

20 of an accused to be present during the trial.

21 Now, the third category, perhaps the one that may be relevant

22 here is where the alternative means might be employed in the case of an

23 accused who through no fault of his own is made to participate via

24 videolink and this was the case in the Zigiranyirazo case in the ICTR.

25 In the ICTR Appeals Chamber decision of the 30th of October 2006, the

Page 729

1 Appeals Chamber found that when important witnesses testifies, it is not

2 enough for the accused to participate through videolink. It is not equal

3 to being physically present at trial.

4 The Appeals Chamber, its decision on interlocutory appeal in the

5 case of Prosecutor versus Zigiranyirazo is directly relevant to the

6 question of an accused's presence in trial via videolink.

7 In that decision, the Appeals Chamber held that: "An accused's

8 right to be tried in his or her presence implies a right to be physically

9 present at trial."

10 The Chamber concluded this based on: One, a plain reading of

11 Article 20(4)(d) of the ICTR Statute, which is analogous to our Article

12 21(4)(d). The legal framework of the ICTR and ICTY noting that no rules

13 provide for the participation of an accused in the trial phase via

14 videolink and that Rule 65 bis(C)(ii) gives rise to an inference that

15 participation via video or teleconference is not the same as physical

16 presence.

17 And three, the practice of the ICTY and ICTR noting that the

18 accused have only participated via videolink with their consent.

19 And four, the fact that other international, regional, and

20 national systems share a similar view that the right to be present

21 implies the right to be physically present.

22 The Appeals Chamber did go on to note that the right to physical

23 presence is not an absolute right, but that it was a very important

24 right, and restriction of it must be "in the service of a sufficiently

25 important objective."

Page 730

1 The Appeals Chamber gave little guidance regarding what might

2 constitute a sufficiently important objective, but they implied that two

3 particularly important considerations were: One, the ability to assess

4 the credibility of witnesses, which the Appeals Chamber seem to hold by

5 inference could not be done by videolink. And two, whether the situation

6 requiring the accused to participate via videolink was the fault of the

7 accused, as where, for example, an accused would disrupt proceedings.

8 The Appeals Chamber also noted that the need to ensure a

9 reasonably expeditious trial was of "general importance."

10 While the jurisprudence might at first glance suggest that

11 participation via videolink is not a suitable substitute for physical

12 presence, this issue merits closer examination. Could there ever be a

13 voluntary waiver? Assuming that Mr. Stanisic never signs a waiver to

14 participate in these proceedings by videolink and we don't know that

15 that's true, but assuming that he doesn't, unless the Trial Chamber finds

16 that the accused is voluntarily absent from the court, by a conduct that

17 is implicit in his actions, it is difficult to continue a trial via

18 videolink to the detention unit.

19 Should Mr. Stanisic fall ill during this trial, even if that

20 illness did not prevent him from viewing the proceedings on video and

21 communicating with his counsel, the present state of the jurisprudence

22 would not clearly support a decision of the Chamber to proceed by way of

23 video conference absent the express consent of Mr. Stanisic to do so and

24 in fact would in simplest terms require an adjournment of proceedings

25 until he can be physically present.

Page 731

1 However --

2 JUDGE ROBINSON: Is that how you read that case? I had gathered

3 when I read it that it turned on its own facts in that the Appeals

4 Chamber found that the use of video conference link was not the most

5 restrictive -- was not the least restrictive means that could be

6 employed, and it was open to the Trial Chamber to employ some other --

7 some other device. I didn't read it as outlawing the use of video

8 conference link without the consent of the accused.

9 MR. GROOME: Your Honour, as Your Honour will hear as my remarks

10 continue, nor does the Prosecution believe it is an absolute bar. What

11 it does talk about is a sufficiently important objective. I believe that

12 there is other jurisprudence which would indicate that the situation that

13 we face here may present a situation where the Court may very well find

14 that videolink conferencing does serve a sufficiently important objective

15 and would allow the Court in a limited way to restrict the right of

16 physical presence in the trial even if Mr. Stanisic should not waive his

17 physical presence in the trial.

18 But going back to another possibility for how the Chamber might

19 employ video conferencing. If on a particular day, the Chamber finds

20 that Mr. Stanisic --

21 THE INTERPRETER: Please slow down for the interpreters. Thank

22 you.

23 MR. GROOME: My apologies.

24 If on a particular day, the Chamber finds that Mr. Stanisic,

25 despite his chronic medical complaints, is physically and mentally fit to

Page 732

1 come to court and then declines to do so, the Chamber would be entitled

2 to find that such a voluntary refusal with no medical basis constitutes a

3 voluntary waiver and would be entitled to proceed via videolink.

4 As Zigiranyirazo states, the right of an accused to be physically

5 present at trial is not absolute but that the right is fundamental right

6 that can only be restricted "in service of a sufficiently important

7 objective." In addition to any restriction, "must impair the right no

8 more than is necessary to accomplish the objective."

9 A decision in another case sheds light on what constitutes a

10 sufficiently important objective, to justify the restriction of a similar

11 fundamental right. In the decision on interlocutory appeal of the

12 Trial Chamber's decision on the assignment of defence counsel in the

13 Slobodan Milosevic case, the Appeals Chamber states that the right to

14 representation is an "indispensable cornerstone of justice" on a

15 "structural par" with rights such as the right to remain silent, the

16 right to confront witnesses, and the right to a speedy trial.

17 More significantly for our case, the Appeals Chamber specifically

18 drew a parallel between the right to self-representation, and the right

19 of an accused to be tried in his presence, saying that the comparison of

20 the two rights is particularly instructive and emphasizing that the

21 accused's right to be present at trial and the right to

22 self-representation are "listed in the same string of rights and indeed

23 the same clause" of the Statute.

24 The Appeals Chamber clearly views the two rights as being of

25 similar importance.

Page 733

1 Despite the fundamental nature of the right to

2 self-representation, the Appeals Chamber nevertheless acknowledged that

3 the right to self-representation could be curtailed on the grounds that a

4 defendant's self-representation is substantially and persistently

5 obstructing the proper and expeditious conduct of his trial.

6 It is particularly significant that the Appeals Chamber made this

7 holding in a context in which it was the health of the accused that

8 caused his right to self-representation to disrupt the trial, rather than

9 any intentional, blameworthy, disruptive behaviour on the part of the

10 accused.

11 Indeed, the Appeals Chamber goes on to say that intentional

12 disruption of the trial by an accused is not the only kind of disruption

13 of the trial that justifies the restriction of the fundamental right to

14 self-representation.

15 Specifically, the Chamber says, and this is the full quote of

16 what I had began my comments today with: "How should the Tribunal treat

17 a defendant whose health, while good enough to engage in the ordinary and

18 non-strenuous activities of everyday life is not sufficiently robust to

19 withstand all the rigours of trial work -- the late nights, the stressful

20 cross-examinations, the courtroom confrontations -- unless the hearing is

21 reduced to one day a week or even one day a month? Must the

22 Trial Chamber be forced to choose between setting that defendant free and

23 allowing the case to grind to an effective halt? In the

24 Appeals Chamber's view, to ask that question is to answer it."

25 To be clear, the Appeals Chamber made these comments in

Page 734

1 connection with the accused's right to self-representation and in light

2 of the increased demands placed on the health of the accused by

3 exercising that right. Nevertheless, the Prosecution submits that the

4 analysis is applicable to this case as well. In this situation, should

5 the Trial Chamber be forced to choose between setting Mr. Stanisic free

6 and sitting only on days when Mr. Stanisic is physically capable of

7 travelling to the Tribunal to attend court in person, when the workable

8 alternative of a videolink is available? In the Prosecution's view, to

9 ask that question is to answer it. We must be able to come up with an

10 alternative to physical presence.

11 If one examines one of the considerations of the Zigiranyirazo

12 case, is the accused's ability to assess the credibility of witnesses.

13 The Prosecution would submit that the Tribunal's now regular use of

14 videolink testimony is a clear indication that judges are able to make

15 important decisions of credibility and reliability by viewing the

16 witnesses on a video monitor. It would seem that an accused would have

17 the same capacity as judges to make similar assessments of credibility.

18 If the feed sent to the detention unit was of the camera focused upon the

19 witness instead of the roving cuts and pans that show all of us in this

20 process, if the feed that was sent to Mr. Stanisic was confined to a view

21 of the witnesses, he would have the same ability as the judges in

22 assessing credibility of witnesses over the screen of a monitor.

23 In fact, if you consider the reality of the participation that

24 other accused have in their trial, it is reasonable to conclude that a

25 system of videolink plus secure communications offices Mr. Stanisic's

Page 735

1 equal and arguably more effective participation in the proceedings.

2 At present, most in-court consultations between the accused and

3 their attorneys occur during the breaks. If Mr. Stanisic were able to

4 contemporaneously communicate with his defence team via secure e-mail or

5 instant messaging, he would be able to send and receive messages

6 throughout the course of the examination any time that he saw fit.

7 The Chamber could reach the view that in light of Mr. Stanisic's

8 health, that helping him participate in the comfort of his room with

9 toilet facilities close at hand, that in avoiding the extra time spent in

10 travel and the increased access to his defence team that secure

11 communications would give him, the Chamber could -- considering all of

12 this, would justify the Chamber implementing a regime in which

13 Mr. Stanisic has the capacity to participate in the trial via videolink

14 even in the absence of his waiver of that right.

15 The Chamber would have a basis for restricting the important

16 right to be physically present at trial if it found that maintaining

17 Mr. Stanisic's health and ensuring the predictable progress of this trial

18 were in the words of the Milosevic Appeals Chamber, a sufficiently

19 important objective. It is the Prosecution's position that such would

20 constitute such grounds.

21 I have discussed with the Chamber the technical and the legal

22 possibility of establishing such a video conference link. Before I

23 commit the Prosecutor, Mr. Brammertz, to a definitive position on such

24 novel issues as this, I would ask for an opportunity to speak with him.

25 I have tried since yesterday afternoon to confer with him on this novel

Page 736

1 issue and other issues related to developments in this case. He is

2 currently at UN headquarters in meetings and I have been unable to speak

3 with him. I expect that I will be able to speak with him later in the

4 week or at the latest upon his return next Monday. After conferring with

5 him, I will immediately inform the Chamber of the Prosecution's position

6 regarding the establishment of creating a method of participation through

7 videolink.

8 JUDGE ROBINSON: Does that mean that the Trial Chamber would not

9 make a decision on this matter before you conferred with the Prosecutor?

10 MR. GROOME: Your Honour, I'm not requesting that the Court delay

11 its important work for me to do so and I have set out why I think it's

12 technically and legally possible but it is a novel issue that I am

13 somewhat reluctant to commit Mr. Brammertz to without having had an

14 opportunity to speak with him.

15 So if the Court deems it prudent to proceed, it would have to

16 proceed without a formal position of the Prosecution until such time as I

17 am able to speak with Mr. Brammertz.

18 JUDGE ROBINSON: Very well.

19 MR. GROOME: The last point the Chamber asked for our submissions

20 on was since there has already been a finding of fitness, should we

21 proceed went 7th of April when Stanisic will presumably be out of the

22 detention unit hospital.

23 In short, the Prosecution's position is that in light of

24 Dr. de Man's report, the Chamber must satisfy itself that Dr. de Man's

25 report does not impugn the conclusions it arrived at several weeks ago.

Page 737

1 It is our position that the Chamber may do this based on the report

2 itself, in conjunction with the evidence the Chamber heard that is

3 necessary -- heard from the hearing that is necessary to interpret

4 Dr. de Man's report. Or, the Chamber can do so after a relatively short

5 hearing in which Dr. de Man appears before the Chamber.

6 So in essence, the Prosecution believes it is possible for the

7 Chamber to commence the trial with the openings on the 7th of April. The

8 Prosecution stands ready and willing to do that. But it would seem that

9 prudent that the Chamber must make some finding with respect to the

10 significance of Dr. de Man's report.

11 Your Honour, with respect to some of the issues that I was unable

12 to address earlier. With respect to Dr. Mimica, he spent about two and

13 three quarter hours examining Mr. Stanisic. With respect to Ms. Najman,

14 she had three days in which she spoke with Mr. Stanisic. And with

15 respect to Dr. Smit, we know that she had two visits; I'm not sure of the

16 duration of those -- to those two visits.

17 With respect to the Simic case, the trial commenced on the 10th

18 of September, 2001, and he pled guilty on the 15th of May, 2002. So in

19 the period between September 2001 and to the plea in May 2002, he did

20 participate in the trial via videolink. I'm sorry, Your Honour. From

21 the 10th of September 2001 up and until the -- I'm sorry, excuse me,

22 Your Honour, he participated via videolink in that trial in the period

23 between the 11th of February 2002, and 15th of May, 2002. So a period of

24 approximately three months.

25 In conclusion, Your Honour, while yesterday's developments were

Page 738

1 unexpected, they should not disrupt the careful and considered approach

2 the Trial Chamber has adopted in ensuring that all the rights of

3 Mr. Stanisic and Mr. Simatovic are meticulously guarded while we attempt

4 to get this trial underway. The allegations in the indictment are

5 grievous. The conditions of Mr. Stanisic which impedes our progress is

6 at best a temporary condition.

7 International justice cannot countenance its objectives being

8 frustrated under these circumstances.

9 It is incumbent upon all of us as participants in this trial to

10 work together to find a way forward, a way that protects the rights of

11 both accused and brings justice to the victims of the crimes charged.

12 The Prosecution remains at the disposal of the Chamber in its continued

13 efforts to move this case forward.

14 Thank you.

15 JUDGE ROBINSON: Thank you, Mr. Groome.

16 Mr. Knoops.

17 MR. KNOOPS: Thank you, Your Honours. Your Honours, the Defence

18 for Mr. Stanisic will address the six options addressed by the honourable

19 Trial Chamber. I myself will address the first option and the fourth,

20 fifth and sixth option while my learned friend, Mr. Jordash will address

21 the second and the third option.

22 As a preliminary remark, we as Defence for Mr. Stanisic would

23 like to stress that his current physical and medical mental situation

24 prevents us from having received detailed and adequate instructions from

25 the defendant.

Page 739

1 However, within the boundaries of our ethical codes, we believe

2 that we are at liberty to engage in some legal discussions and raise some

3 points of law, submissions on the fitness issue in order to assist the

4 honourable Chamber in arriving at the justifiable conclusion.

5 When it concerns, Your Honours, the first option, the severance,

6 possibility for severance, our principal view as Defence team is that

7 such a request or initiation for request should either come from the

8 Prosecution or the Defence team from Mr. Simatovic, since predominantly

9 his procedural rights, his procedural position in this case seem to be

10 involved in the event of a need for severance due to medical reasons.

11 Your Honours, apart from the time limit for an application for

12 severance as set out in Rule 72(a) which could be met even after the

13 expiry in the event of new information or circumstances, it might be

14 instructive as a point of law to take into account the analogy with the

15 case law as developed by the ICTY in the event of joint trials with

16 co-indictees which were not yet in the custody of the court.

17 There are two precedents, Dokmanovic, the ruling of 28 November,

18 1997, granting a motion for separation of trials on the grounds that none

19 of the co-accused of that individual was at that time in the custody of

20 the court, nor did it appear to be in the process of being transferred to

21 the custody of the court.

22 The Chamber in this case, Your Honours, considered the

23 application of also Article 21, section 4 under C of the Statute

24 guaranteeing the accused's right to be tried without undue delay.

25 Also, the case law of the ICTR reveals a similar approach,

Page 740

1 holding that the element of avoiding undue delay and assuring the

2 accused's right to a speedy trial may be seen as a factor for

3 justification for an order of separation of trials. However, the fact

4 that an accused's trial will be speedier if severance is granted, does

5 not in itself constitute a reason for granting separation of trials as a

6 point of law, when the co-accused is already in the custody or awaiting

7 trial.

8 Reference can be made to the decision of 25th September, 2006 in

9 the Delalic case, decision on the motions for separation of trials filed

10 by the accused Delalic and Mucic and I'll refer also to a --

11 JUDGE ROBINSON: [Microphone not activated] ... from that

12 decision. I am asking whether what you just stated comes from that

13 decisions.

14 MR. KNOOPS: Yes, Your Honour. It's a summary from the principal

15 ruling of Delalic et al.

16 In the instant case, we as Defence team for Mr. Stanisic, believe

17 that it's primarily up to Your Honour's discretion to assess the

18 applicability of this factor in specific with regard to the accused

19 Mr. Simatovic, of course in the event of a substantial adjournment of the

20 case of Mr. Stanisic is unavoidable.

21 When it concerns, therefore, the first option, we, as Defence for

22 Mr. Stanisic, leave the possibility for a potential severance in the

23 hands of the Court believing that the primary initiative for such a

24 request should either be the Prosecution or the Defence of Mr. Simatovic.

25 My learned colleague Mr. Jordash will address the second and

Page 741

1 third option and I will return, Your Honours, with the fourth to the

2 sixth option.

3 JUDGE ROBINSON: Yes, Mr. Jordash.

4 MR. JORDASH: Thank you, Your Honours. In relation to the second

5 and third options, clearly there is a degree of overlap and I hope you

6 will forgive me if I deal in part with that overlap.

7 It's our preference and we would put forward this approach that

8 the number two option is the best option and the fairest option and the

9 option which is likely to obtain an expeditious trial and one that can

10 continue with the least interruption.

11 We would submit that Dr. de Man's report, seen in conjunction

12 with Dr. Falke and the treating psychiatrist at the UNDU clearly provides

13 ample information which can satisfy the Trial Chamber that Mr. Stanisic

14 is seriously unwell, but that there is a good chance, a very good chance,

15 an expected chance that he will recover and we will return to the

16 situation dealt with by Your Honours in the fitness decision of the 10th

17 of March of this year.

18 Presently, we have a huge amount of medical evidence and it's

19 wrong, we would submit, that the report of Dr. de Man is seen in

20 isolation from that medical evidence. I'm not going to clearly take

21 Your Honours through it, but it must be seen in conjunction. It is the

22 latest and it's the latest medical evidence and an indication of the

23 deterioration of the medical condition.

24 I would make the following observations: One, it's an

25 independent evaluation, this is Dr. de Man's report, clearly not in any

Page 742

1 way swayed by any adversarial consideration. And secondly, it is medical

2 evidence which, number one, stands alongside and has been arrived at

3 through proper consultation with both Mr. McFadden and the medical staff

4 from UNDU and in particular, Ms. Petrovic and Dr. Falke. And it's

5 important to note that there is a concurrence of diagnosis between the

6 treating psychiatrist and Dr. de Man.

7 If Your Honours look at Dr. de Man's report at page 4 of the

8 report, paragraph 3, I won't read it out but Your Honours will see that

9 there is a concurrence of opinion considering the depth of the

10 depression.

11 Likewise, paragraph 5, there appears to be a concurrence in the

12 view as to the appropriate treatment. There is no suggestion, we would

13 submit, that Dr. de Man did not see the medical records. In fact, it

14 would be rather strange to indicate on page 1 of the report that the

15 accused had given permission to look at the medical records but then not

16 to go on to actually peruse them.

17 In any event, whether the medical records were seen or not,

18 Dr. de Man consulted with the treating psychiatrist, so we can be fairly

19 confident that Dr. de Man had access to the relevant details of

20 Mr. Stanisic's mental illness or mental condition.

21 JUDGE ROBINSON: Mr. Groome, why did you submit that Dr. de Man

22 did not see the medical records when he had asked for the medical records

23 and had been given permission to view them?

24 MR. GROOME: Because, Your Honour, it seems that he doesn't

25 mention anything from the medical records, as well as there seems to be

Page 743

1 some incorrect information regarding the birth date and place of

2 Mr. Stanisic, which is correctly reported in the medical records. So we

3 don't have a clear, affirmative indication of that but there seems to be

4 implicit in his report the fact that he did not have the access that he

5 required of those medical records.

6 MR. JORDASH: Your Honours, looking at the paragraph just below

7 the title report, it's quite clear that this doctor, Dr. de Man, obtained

8 information from Mr. McFadden, obtained information from Ms. Petrovic,

9 and thereafter, appears to say obtained permission from Mr. Stanisic for

10 the medical file and gave permission for additional questions to be put

11 to the medical officer, Dr. Falke.

12 It's a detailed report, we would submit. It's consistent with

13 the latest report from -- well, relatively consistent with the latest

14 reports from Dr. Falke and I'll come to those in a moment. It's

15 certainly consistent with way in which the medical condition appears to

16 have been developing since the 14th of March, 2008, shortly after

17 Your Honours' decision.

18 But Your Honours will see in relation to page 4 of the report,

19 the DSM-IV classification is referred to. I personally didn't know

20 exactly what that referred to so I obtained from the internet what this

21 classification meant.

22 In particular, in relation to the GAF score of 21 to 30, the

23 Global Assessment of Functioning scale, and I handed up copies of what

24 these scales mean to your learned's legal officer, and I don't intend to

25 refer to all of the comments, but I would particularly refer Your Honours

Page 744

1 to the 21 to 30 score, GAF axis 5 which is relevant, we would say, to a

2 consideration of almost all the options Your Honours are considering,

3 particularly of videolinks and the idea of starting within a week, that

4 Dr. de Man's report would seem to suggest that there is a great deal of

5 reason, of many reasons to be somewhat cautious of the trial starting in

6 any form.

7 JUDGE ROBINSON: Just point us again to the relevant section.

8 MR. JORDASH: If Your Honour would look at the actual report from

9 Dr. --

10 JUDGE ROBINSON: Does the Prosecution have this?

11 MR. JORDASH: Yes, I gave a copy to them. But I'm particularly

12 referring to axis 5 GAF, Global Assessment of Functioning scale, score 21

13 to 30, which one, suggests that Dr. de Man took his task very seriously

14 and actually went and used proper diagnostic tools but secondly, the

15 actual result is a cause of concern, particularly when considering

16 whether the trial could stand in the very near future.

17 JUDGE ROBINSON: And you are inviting us to look at the second --

18 at the document headed "Global Assessment of Functioning (GAF) scale."

19 MR. JORDASH: Yes.

20 JUDGE ROBINSON: And 21 to 30.

21 MR. JORDASH: Behaviour.

22 JUDGE ROBINSON: "Behaviour is considerably influenced by

23 delusions or hallucinations or serious impairment in communication or

24 judgement."

25 MR. JORDASH: Yes. We would say that that clearly impacts upon a

Page 745

1 consideration of whether the trial should start in any form at present

2 but also indicates this is a psychiatrist, a neuropsychiatrist, at that,

3 who took his task extremely seriously and approached it with some depth.

4 The issue of opening up another --

5 JUDGE ROBINSON: Mr. Jordash, just help me with this --


7 JUDGE ROBINSON: -- GAF scale. It starts at zero and it goes up

8 to 91 to 100. So is this a gradation or a scale of the gravity of the

9 illness?

10 MR. JORDASH: It would appear to be a scale of -- indicating the

11 gravity of the impairment, yes. Impairment in functioning, according

12 to -- sorry, I beg your pardon. It appears to be the consideration of

13 the client's psychological, social and occupational functioning on a

14 hypothetical continuum of medical health illness - I'm reading from the

15 title of the top - which does not include impairment of functioning due

16 to physical or environmental limitations.

17 Which would be of course consistent, if Your Honours go back to

18 the report, Dr. de Man's --

19 JUDGE ROBINSON: Does it proceed from the worst to the better,

20 from zero to 91 to 100.

21 MR. JORDASH: 91 to 100 is superior functioning down to the

22 bottom which would appear to be -- appear to deal with a serious suicidal

23 act, so less suicidal risk or suicidal act to the most grave dealt with 1

24 to 10.

25 JUDGE ROBINSON: All right. Thank you.

Page 746

1 MR. JORDASH: In our submission, there is plenty of evidence

2 given the way in which that report was compiled and the consultations

3 which were taken during the compilation.

4 In relation to number three, we would submit it would be

5 medically inappropriate and unhelpful from the standpoint of an

6 expeditious trial to launch forward into more examinations, and I

7 particularly refer Your Honours to the medical evidence which has emerged

8 from Dr. Falke since Your Honour's decision on the 10th of March, 2008.

9 In particular, the letter of the 14th of March, 2008 in which Dr. Falke

10 noted at paragraph 3 one of the factors which has led to a deterioration

11 was the stress caused by scrutiny into health over the past few weeks.

12 This was echoed again by Dr. Falke on the 17th of March who noted again

13 that the constant medical examinations are causing a deterioration or at

14 least a factor in the deterioration. And interestingly and significantly

15 noting that Rule 34(b) of the Rules of Detention were certainly in

16 Dr. Falke's mind in terms of the conflicts being created in terms of

17 carrying out the investigations for the Court and at the same time being

18 the treating doctor. And again, on the 28th of March, 2008, Dr. Falke,

19 in the letter there to the Registrar makes exactly the same point.

20 So we would submit that there must come a time when the medical

21 condition which has to be considered as absolutely paramount, and this is

22 the time. And in particular, this is the time because there is a remedy

23 and according to the latest evidence from the treating doctors and

24 Dr. de Man, this is a situation which will improve and which will be

25 remedied. And we would submit in those circumstances, the medical

Page 747

1 situation should be given absolute paramount significance knowing that we

2 can be back into court between three to six months back to the position

3 of the 10th of March, 2008 decision that Mr. Stanisic is fit. We don't

4 seek to reiterate those arguments on the current available evidence. The

5 current available evidence suggests give Mr. Stanisic a period of time on

6 the treatment as suggested and he will be ready for trial in three to six

7 months.

8 If I may just finally deal with the suggestion that Mr. Stanisic

9 has already been receiving this treatment. In my submission, that is not

10 borne out from Dr. de Man's statement which indicates on page 4, the

11 final paragraph, there is a recommendation that Mr. Stanisic receives

12 immediate treatment with tricyclic anti-depressants. And again, I

13 reiterate, and if Your Honours turn over the page to the last page of the

14 report, Your Honours will see that Dr. de Man consulted with Petrovic

15 concerning the medication and then the recommendation of this new

16 treatment was agreed upon between the two of them.

17 So we are in a new situation with new diagnosis and a new drug

18 with a hope and a real possibility of being well in three to six months.

19 In my submission, that should be given proper due consideration. We are

20 not, in our submission, at the point where we need to consider the more

21 drastic solutions.

22 Those are my submissions.

23 JUDGE ROBINSON: What is your comment on the impact such a

24 postponement might have on the right of Simatovic to a fair and

25 expeditious trial?

Page 748

1 MR. JORDASH: Well, it's difficult to comment without knowing

2 exactly what their position is. It could impact insofar as there is a

3 further delay, so of course there is some impact. But as my learned

4 friends from the Prosecution indicated when considering -- right at the

5 outset of their submissions, we are talking of only a relatively short

6 delay, a short delay which could, with Your Honours' leave, be dealt with

7 on provisional release, and it may well be that the accused Simatovic

8 does not oppose such a delay, especially if the delay actually prevents a

9 further delay in the future, and we would submit that is likely to be the

10 case. If he is well now before we start, there is likely to be less

11 delay during the trial, in fact we could have a quicker and more

12 efficient trial which would benefit both accused.

13 JUDGE ROBINSON: All of this of course is derived from

14 Dr. de Man's report. The Prosecutor says it doesn't stand up to

15 scrutiny.

16 MR. JORDASH: It's derived from Dr. de Man's report which itself

17 is derived from consultation with the treating psychiatrist. In our

18 submission, there can be no more knowledgeable medical expert at this

19 point other than returning to the fitness issue concerning Mr. Stanisic's

20 present condition, there's Dr. Petrovic, who is most familiar with

21 Mr. Stanisic's condition, and Dr. de Man consulted with her.

22 JUDGE ROBINSON: What do you say about the Prosecutor's

23 suggestion that Dr. de Man might be brought to the Court for a limited

24 examination, limited hearing?

25 MR. JORDASH: We -- may I just take instructions?

Page 749

1 [Defence counsel confer]

2 MR. JORDASH: We wouldn't oppose such a suggestion. We don't

3 think it's strictly necessary given the thrust and tenure of the various

4 reports since we've had the fitness decision but we wouldn't oppose that

5 decision.

6 MR. KNOOPS: Your Honours.

7 JUDGE ROBINSON: Yes, Mr. Knoops.

8 MR. KNOOPS: Thank you, Your Honours.

9 I would like now to make some submissions on the fourth suggested

10 option, the videolink, and we would submit there are three arguments not

11 to follow that option.

12 In the first place, such participation would not change the

13 current disabilities of the accused to participate in such a videolink

14 trial on the basis of his current situation as set out by Dr. de Man. In

15 light of the, in our view, clear reports of both Dr. Falke and

16 Dr. de Man, return of the accused to the detention centre and the start

17 of the case while he participates through videolink is, in our humble

18 view, not realistic.

19 I noted, though, that the Prosecution agrees, acknowledges, that

20 the report of Dr. de Man and also supported by Ms. Petrovic, a new

21 element which was not available at Your Honours' decision of the 10th of

22 March, 2008, where Your Honours in paragraph 39 of the decision held that

23 none of the experts in that time detected any psychosis and both experts,

24 Dr. de Man, and the treating psychiatrist, have now concurred in this

25 view that there is a situation of psychotic features.

Page 750

1 So there is merit in the argument that a trial, through

2 videolink, in this stage is, in this situation, not realistic.

3 The participation akin to magnitude of the case at hand

4 presupposes of course that the accused may participate through such a

5 videolink, otherwise we submit substitution of the physical presence of

6 the accused in the courtroom is of no value.

7 We do not --

8 JUDGE ROBINSON: Why do you say that? Dr. de Man says there are

9 no signs of any cognitive deterioration which would suggest that he's in

10 a position, he would be in a position to understand the proceedings.

11 MR. KNOOPS: That's indeed a valid observation, Your Honour. I'm

12 not in a position to comment on the differentiation between having

13 cognitive capabilities on the one hand and having psychotic features on

14 the other hand. I simply observe that we encounter a new situation in

15 that there is something additional to the medical evidence which was

16 brought before Your Honours which led to the decision of the 10th of

17 March.

18 As a layperson, I can only say that it seems to me quite

19 difficult but for that we could have to indeed invite Dr. de Man or other

20 experts to find out whether somebody with these kind of features is able

21 to participate through a video conference but still, you have the problem

22 that the absence of a physical ability to stand trial of course will also

23 affect the ability to participate through videolink. And of course we

24 don't contest the existence of any technical developments and equipment

25 nowadays to ensure such a trial by videolink. However, it requires, and

Page 751

1 it is predominant for ensuring those -- that equipment to be in place

2 that the defendant, of course, has the technical skills and abilities to

3 make use of them.

4 The Prosecution refers to computer access, e-mail access. All of

5 this, of course, requires presence, basic presence of knowledge and also

6 capacities of the accused to clearly make use of that modern technology.

7 There is a second reason, Your Honours, we submit, why we believe

8 that the video conference is not the most viable option. We submit that

9 legally, legally it equates a trial in absentia. For this, we rely on

10 the case which was brought before the Appeals Chamber judgement in the

11 judgement on the request of the Republic of Croatia for review of the

12 decision of the Trial Chamber II of 18th of July, 1997 and other

13 decisions. Interestingly, Your Honours, in paragraph 59 of that

14 Appeals Chamber judgement, it's been noted by the Appeals Judges that

15 even when the accused has clearly waived his right to be tried in his

16 physical presence, it would prove extremely difficult or even impossible

17 for an international criminal court to determine the innocence or guilt

18 of that accused.

19 As Your Honours know, only for the so-called incidental

20 jurisdiction of the court or ancillary jurisdiction of the court, the

21 Appeals Chamber left albeit with an exceptional possibility, a trial in

22 absentia open.

23 JUDGE ROBINSON: Just remind us of the context of that decision.

24 MR. KNOOPS: Yes, of course. That context related to a content

25 of court proceedings due to the refusal to obey one of the orders issued

Page 752

1 by the Court and although we are mindful that the context is indeed quite

2 different, we believe that this principle as set out in paragraph 59 of

3 the Court's decision is applicable in the instant case.

4 We believe there is a second precedent, and of course --

5 JUDGE ROBINSON: How did the question arise in that case?

6 MR. KNOOPS: Because there was a refusal to comply with the

7 request of the Court to produce evidence to the Court on part of some of

8 the officials of Croatia and I believe that the Court held that binding

9 orders can only be administered against governments, institutions and

10 only individuals can be subjected to subpoenas. That was the essence of

11 the --

12 JUDGE ROBINSON: Was anybody being tried in absentia --

13 MR. KNOOPS: No, as a result of the refusal to comply with the

14 subpoena of the court, contempt of court proceedings were initiated

15 against an individual and in that situation the Court held - and I

16 believe it was unanimous - that only in such a situation, one could

17 deviate from the primary jurisdiction principles of the court, namely the

18 trial not in absentia. But our point is that the decision of the

19 Appeals Chamber also eludes to the availability of a waiver, that even in

20 the event of a waiver, it is difficult to understand how a trial could

21 take place without the physical presence of the accused. And the

22 Prosecution, I think, rightfully pointed to the second precedent in this

23 regard, the interlocutory appeals decision of 30 October 2006 in the case

24 of the Prosecutor versus Zigiranyirazo, the ICTR Appeals Chamber

25 judgement.

Page 753

1 This authority, Your Honours, is maybe more proper than the

2 decision referred to by the Prosecution in the Milosevic case because the

3 Appeals Chamber decision in Milosevic was followed by this decision and

4 notably in footnote 31, 51 and 52, the Appeals Chamber refers to the

5 Milosevic decision. Still it came to the conclusion that the modality to

6 have a trial, at least a part of a trial through videolink violated the

7 rights of the accused and the Appeals Chamber held that the Trial Chamber

8 erred in law in holding that this right could be met by videolink.

9 As Your Honours --

10 JUDGE ROBINSON: Because it was not the least restrictive

11 measure.

12 MR. KNOOPS: Exactly.

13 JUDGE ROBINSON: That is not a decision that says that in

14 principle, a videolink can't be used.

15 MR. KNOOPS: Indeed, Your Honour, it's not an absolute right that

16 the accused should be tried in his physical presence, but if Your Honours

17 would look to paragraph 21 of that decision, the Appeals Chamber notes

18 that the appellant's sense of being wronged in such circumstances is well

19 understandable. As the Prosecution and the Trial Chamber noted,

20 Mr. Bagaragaza's testimony did not cover simply background information or

21 matter other than the acts and conduct of the accused. According to the

22 Prosecution's own statement and the Trial Chamber's consideration, the

23 witness was a key Prosecutor witness against the appellant. Based on the

24 foregoing, the Trial Chamber's restrictions were unwarranted and

25 excessive in these circumstances and failed the test of proportionality."

Page 754

1 Of course it's difficult now to project this ruling on the whole

2 case of Mr. Stanisic but we can observe that there are numerous witnesses

3 in this case which will provide your Chamber with more than simple

4 background information as eluded to by the Appeals Chamber in paragraph

5 21. And although we submit indeed it does not exclude absolutely the

6 trial by videolink, one should contextualise this in also the importance

7 of the charges, the severity of the charges and the evidence which the

8 Prosecution intends to lead.

9 JUDGE ROBINSON: Mr. Knoops, we are beyond the time for the break

10 so we'll take a 20-minute break now.

11 --- Recess taken at 3.51 p.m.

12 --- On resuming at 4.15 p.m.

13 JUDGE ROBINSON: Yes, Mr. Knoops.

14 MR. KNOOPS: Thank you, Your Honour. Just rounding up the fourth

15 option, the videolink option, Your Honour.

16 Your Honours did address me some questions on the Zigiranyirazo

17 decision and it may be brought to the attention of the Court that the

18 situation at hand, similar to the Zigiranyirazo decision, is

19 unprecedented. In paragraph 21, the Appeals Chamber observes that such a

20 procedure over an accused's objection is unprecedented before the

21 Tribunal and before the ICTY. Interestingly, in footnote 41 of the

22 Appeals Chamber's decision, the Appeals Chamber refers to the Simic case

23 as a --

24 JUDGE ROBINSON: I'm sorry, in paragraph 21 --

25 MR. KNOOPS: Paragraph 12. Paragraph 12, you find the

Page 755

1 observation of the Appeals Chamber that such a procedure over an

2 accused's objection is unprecedented before the Tribunal and before the

3 ICTY. And footnote 41 refers to the mentioned Simic case.

4 What is particularly instructive, we submit for Your Honours, is

5 that the Trial Chamber expressly note that not only Simic concerned in

6 sentencing hearing therefore not a determination of guilt or innocence as

7 such --

8 JUDGE ROBINSON: I think that was clarified. It covered both.

9 MR. KNOOPS: Exactly.

10 JUDGE ROBINSON: Both -- I think he had the use of the video

11 conference link for a certain part of the trial as well as the sentencing

12 hearing.

13 MR. KNOOPS: That is indeed noted by the Appeals Chamber. But

14 what is particularly additional of interest, Your Honour, is that the

15 Chamber notes that Mr. Simic filed a total of 25 waivers of his right to

16 be present in court. And in our humble submission, this is, of course,

17 not without reason cited by the Appeals Chamber in footnote 41.

18 Secondly, Your Honour, you may see that in the same paragraph 12

19 of the Appeals Chamber decision, the Court, Appeals Chamber clearly holds

20 that participation via videolink is not considered presence, therefore

21 it's our submission as mentioned that a procedure via videolink should be

22 equated with a trial in absentia.

23 And my last observation from this Appeals Chamber ruling,

24 Your Honours, relates to the paragraph 14 of this ruling where, although

25 the Appeals Chamber acknowledges that this right to be physically present

Page 756

1 is not absolute, the Appeals Chamber only accepts an exception for the

2 situation as described in Rule 80(b) removing an accused for disruptive

3 behaviour.

4 We submit that none of those ingredients are applicable here and

5 because of the unprecedented character of this fourth option as

6 suggested, we believe there is no legal basis to have a full trial

7 against Mr. Stanisic based on a videolink.

8 I believe this was Your Honour's questions to the Defence,

9 whether we believe that the trial without any exception, trial as such is

10 warranted by law is able to be based on the current law or the

11 jurisprudence.

12 JUDGE ROBINSON: Paragraph 12, this same sentence to which you

13 referred, the Appeals Chamber observes that such a procedure ..." Do you

14 see the word "initially"?

15 MR. KNOOPS: Mm-hm.

16 JUDGE ROBINSON: It perhaps has a significance.

17 MR. KNOOPS: Yes. I agree, Your Honour. But I agree --

18 JUDGE ROBINSON: I think it means that this is a statement which

19 the Appeals Chamber is making at this stage of the -- of its writing of

20 the judgement; but later on it develops arguments that show, in my view,

21 that in some circumstances, the videolink can be used over the objection

22 of the accused.

23 MR. KNOOPS: Your Honour, we as Defence agree with Your Honour's

24 interpretation of the decision with two remarks. First of all, we still

25 believe that the Appeals Chamber is willing to accept any exception to

Page 757

1 this principal rule, and the lack of any express provisions in the

2 Statute, paragraph 12 refers to that, only if the stage of exceptional

3 circumstances have been met, and we believe that that stage has not yet

4 arrived in this instant case, apart from the medical ability or physical

5 ability of an accused to participate via videolink.

6 We still believe that the Appeals Chamber only allows such an

7 exception in very specific and restricted conditions and circumstances.

8 JUDGE ROBINSON: Do you say that we haven't yet reached a stage

9 where recourse to this exceptional procedure is warranted?

10 MR. KNOOPS: It is, of course, with ultimum remedium, you could

11 say in legal terms, which should be administered with great caution if

12 the Court is willing to go beyond as set forth by the Appeals Chamber

13 decision in this judgement, we still believe that going beyond should be

14 restricted to very limited circumstances, and I cannot imagine that the

15 Appeals Chamber had in mind that a full trial will be conducted through

16 videolink.

17 JUDGE ROBINSON: Can I go back, though, to the preference which

18 Mr. Jordash expressed for the second option.

19 MR. KNOOPS: Yes, Your Honour.

20 JUDGE ROBINSON: That is, three to six months down the road we

21 would commence the trial. But that proceeds on the basis that a view is

22 taken that the accused would be well enough then. I mean what allows us

23 to be sanguine about that possibility. Why should we be confident,

24 Mr. Jordash, that in three to six months' time the accused would be well

25 enough to attend court?

Page 758

1 MR. KNOOPS: Well, Your Honour, if you ask the Defence to come

2 with a clear and equivocal answer, we would say the only person who could

3 answer that question will be Dr. de Man because he made this estimation.

4 And it could be helpful, Your Honours, if the Court is willing to go into

5 the suggestion of the Prosecution to hear Dr. de Man about the report is

6 how his -- this term of at least three to six months is determined by

7 him, whether it's based on experience or whether it's based on any

8 diagnosis.

9 Currently, Your Honours, we -- as Defence, we have to deal with

10 the documents we have and if this expert's diagnosis is that Mr. Stanisic

11 will be able to attend trial physically in a normal manner, within three

12 to six months, of course nobody will again give the guarantee that

13 something can happen within that time-frame, but this is of course now

14 the starting point of our legal submissions of today. And if -- having

15 this in mind, we believe that it would be actually a premature exhaustion

16 of the remedies such as videolink conference or trial while not having

17 awaited the opportunity for the recovery as indicated by Dr. de Man.

18 So we are saying that the Appeals Chamber judgement, although it

19 may allow for exceptions to the rule, still requires that the test of

20 proportionality will be met. And in our view, the proportionality has

21 not yet been met since the option of Dr. de Man has not yet been

22 exhausted.

23 So therefore, we believe that starting a trial by videolink in

24 this stage would violate the test of proportionality as envisioned by the

25 Appeals Chamber.

Page 759

1 Your Honour, my learned friend, Mr. Jordash, rightly points to

2 the fact that of course the only thing we as Defence were informed of

3 that, and that's also the starting point of Your Honour's, that

4 Mr. Stanisic - and this was I believe the basis of your decision of the

5 10th of March - needs psychotherapy, yet it was never determined by any

6 specialist until so far for how long this treatment, the therapy, would

7 have to last for the recovery. And I believe that even Dr. Smit, the

8 court-appointed expert, during testimony couldn't give a clear estimation

9 or indication as to the time-frame. So actually this is the first

10 indication, clear indication from an expert about the time-frame. That's

11 where we are. And therefore, we believe, in all modesty, that it's quite

12 premature now to say that all our avenues have been exhausted so let's

13 start with a trial by videolink while there is a possibility for this

14 recovery although we agree with Your Honours that we cannot give, as

15 Defence, apart from being lay persons, any guarantee that indeed this

16 recovery will be concluded within three to six months.

17 But this is the course the best evidence we have. Dr. de Man's

18 report is currently the best evidence we have and therefore, we think in

19 all honesty that it would go against the rationale of the Appeals Chamber

20 decision of 2006 by saying that while this right to be present is not

21 absolute, the videolink option is not ruled out by the Court in that case

22 while knowing that we have another avenue, namely recovery of the

23 accused, to ensure that he can be physically present. And we believe

24 that the case law at this moment, as also set forth by the

25 Appeals Chamber, is in our favour in that also the reference to the

Page 760

1 national jurisdictions, the Supreme Court of the United States cases, the

2 Crosby case of 1993, clearly give preference to the physical presence of

3 the accused person.

4 Now, if Your Honours allow me, I will round up with the fifth and

5 the sixth options that Your Honours have suggested to the Defence team.

6 Of course in light of my observations just a moment ago, I still

7 believe that if Mr. Stanisic would return to the detention centre on the

8 7th of April, in light of the medical evidence, the best evidence we have

9 now, the report of Dr. de Man supported by Dr. Petrovic, we still do not

10 have the recovery of this accused person. Therefore, as to the fourth

11 option, we believe that this is not a viable option.

12 The additional question, Your Honours presented to also the

13 Defence team also goes to the decision, which was not previously

14 mentioned in this courtroom this afternoon, by the Appeals Chamber of the

15 ICTR presided by Justice Pocar in Prosecution versus Nzirorera, the ICTR

16 Appeals Chamber of 5th October, 2007.

17 Quite recently one can say very shortly, Your Honour, the

18 appellant on a certain day in June 2007 was ill and the medical doctor

19 pronounced him unfit to attend trial for three days. Counsel requested

20 the Chamber to adjourn the proceedings until the appellant would be

21 medically fit. The Chamber denied the request and held that it would

22 proceed with cross-examination of a Prosecution witness in relation to

23 the case of a co-accused, so it did not even deal with the case against

24 the appellant himself.

25 In short, the Appeals Chamber reversed its decision holding that

Page 761

1 despite the presence of appellant's counsel, and I specifically refer to

2 paragraph 11 of this Appeals Chamber decision, and although noting that

3 the right to be physically present is not absolute, the proportionality

4 test was not met in that case and there are four interesting

5 observations, very shortly, the Chamber gives in paragraph 15.

6 First, it considered that the circumstances of that case were

7 complex and lengthy. The Appeals Chamber was not satisfied that the

8 three-day delay to the trial was sufficiently to outweigh the statutory

9 right of the appellant to be present because it was no fault of his own.

10 Secondly, the reliance by the Chamber on Rule 92 bis and 94(b)

11 was in view of the Chamber misguided. And thirdly, the Court held it is

12 irrelevant for these purposes whether or not the cross-examination of a

13 witness has been conducted in the case against a co-accused or against

14 the accused, the appellant himself.

15 It was also not relevant, the Chamber held, whether the witness's

16 testimony was likely to concern the alleged acts and conduct of the

17 co-accused only.

18 The Chamber's restrictions on the appellant's fair trial rights

19 were unwarranted and excessive and this failed the proportionality test

20 and therefore, the appeal request was granted from Mr. --

21 JUDGE ROBINSON: Mr. Knoops, that the Appeals Chamber was not

22 satisfied that the three-day delay to the trial was sufficient to

23 outweigh the statutory right of the appellant because it was no fault of

24 his own but might a three-month delay or a six-month delay be sufficient

25 to outweigh that right?

Page 762

1 MR. KNOOPS: I believe, Your Honour, it is very dangerous to make

2 a determination whether three days are sufficient, a week, two weeks.

3 Where is where we draw the line?

4 Our submission is that the principal line is that when there are

5 other avenues which are still open, those should be followed before going

6 into other options. And it's not up to us as Defence team to say

7 whether, in this case, a delay of three --

8 JUDGE ROBINSON: What precisely do you say that is the other

9 avenue that's open to the Trial Chamber?

10 MR. KNOOPS: The other avenue is that the Court considers the

11 possibility or at least gives the possibility for this avenue suggested

12 by Dr. de Man, namely that with a thorough therapy, between three and six

13 months, and maybe on a permanent basis outside the detention centre,

14 because let's face it, the detention centre is, of course, not a hospital

15 and although we have no doubt as to the, of course, the good faith of the

16 medical officers there, it is of course difficult for the detention

17 centre to have a patient there treated on a permanent basis.

18 Therefore, in our humble submission, the other avenue is the

19 avenue which has been offered by Dr. de Man, namely a period of

20 structural -- structural period of treatment. Actually, we're not going

21 back to the fitness issue but Your Honours clearly had in mind when

22 rendering the fitness ruling on the 10th of March, that Mr. Stanisic

23 would undergo a form of psychotherapy and reading the report of

24 Dr. de Man, it seems to us that this is right now the only avenue which

25 is there to make him recover and make him at the least physically fit to

Page 763

1 attend trial. So this is actually also why my learned friend,

2 Mr. Jordash, elaborated on the second option we believe is in the best

3 interests of justice in this stage of the proceedings.

4 May I briefly and as by way of last remark, Your Honour, refer to

5 the fact that the reliance by the Prosecution on the jurisprudence of the

6 Special Court for Sierra Leone in the Sesay case clearly is not suitable

7 precedent, we believe. We submit that in the Sesay case, and indeed

8 Mr. Jordash is lead counsel in that case, one dealt with a refusal to

9 appear. We are dealing here with considering the information as we have

10 received it until now, an absence due to medical reasons.

11 And also the Trial Chamber decision in the Bagaragaza case of the

12 2nd November, 2000, in paragraph 5 and 6 refers to the fact that

13 Mr. Bagaragaza chose not to appear which are two totally different

14 situations as in the current situation.

15 There are of course other precedents to mention therefore we

16 submitted this human rights report to Your Honours, a report of 17th

17 November, 2006. Not that we suggest that human rights, as such, may be a

18 legal authority but the interesting part of this report, Your Honours, is

19 that it gives a brief summary of all the international, national case

20 law, human rights case law, and it also refers to the discussions which

21 preceded Article 63 of the ICC Statute. The Rome Statutes follows a

22 similar approach --

23 JUDGE ROBINSON: Tell us, what is the source? It's not clear to

24 me.

25 MR. KNOOPS: It's a Human Rights Watch report of the 17th of

Page 764

1 November, 2006. We have distributed copies to Your Honours and amongst

2 the participants today.

3 Interestingly, I mentioned the Crosby case of the United States

4 in 1993 is mentioned there. But the interesting part of it is that

5 preceding Article 63 of the ICC Statute, there were three competing

6 perspectives on trials in absentia. And interestingly, the first

7 perspective, namely an exclusion, total exclusion of trials in absentia

8 was the prevailing view.

9 Interestingly, also the United Nations Secretary's report on the

10 establishment of the ICTY, it's my last authority, and the Statute report

11 of the 3rd May, 1993, and the Secretary-General of the United Nations, I

12 quote, he comments as follows: "A trial should not commence until the

13 accused is physically present before the International Tribunal."

14 This was a report which lies at the heart of this

15 Honourable Tribunal and we respectfully submit that also in light of the

16 situation which the accused envisions, namely -- and Your Honours may

17 recall that the Prosecution, during his provisional release hearings

18 announced to seek for life imprisonment of Mr. Stanisic. Now we believe

19 in all honesty and modesty that one cannot commence a trial where a

20 defendant who may be facing life imprisonment without him being

21 physically present and therefore we agree in this regard that the

22 Human Rights Watch report, in our view, reflects the answers to your

23 questions four and five you asked us to comment on.

24 Thank you very much.

25 JUDGE ROBINSON: Thank you.

Page 765

1 Mr. Jovanovic.

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

3 Your Honour, Franko Simatovic's Defence is now in a position to

4 state their opinion and partly accept the argument provided by the

5 Prosecution and partly by the Defence. I'm not going to go over the same

6 ground, I'm just going to state the facts.

7 In a situation that we are now facing, and that is to discuss the

8 possibilities of a trial, this situation has arisen from the opinion of

9 the psychiatrist de Man.

10 We are not in a position to argue with his findings because in

11 the previous part of the proceedings, we heard other evidence and we

12 heard other witnesses and also Stanisic's Defence obviously has immediate

13 contact with their client and immediate insight into his health condition

14 and we, as the Defence, accept the position as such and we will provide

15 our position on the assumption that the Trial Chamber will accept it,

16 together with the recommendations that were provided by Mr. de Man, the

17 psychiatrist, and especially this refers to the deadlines, i.e., to the

18 possibility for Mr. Stanisic's health to deteriorate.

19 The first question that has been raised is the issue of the

20 severance in keeping with Rule 82. The two criteria which have been

21 provided for by Rule 82, the first one is the possible conflict of

22 interest and the interests of justice which would lead to the decision on

23 severing the cases. On the face of it, one might say that there might be

24 a conflict of interest given the situation and that is that the interests

25 of Mr. Stanisic is not to be tried in view of his health condition. On

Page 766

1 the other hand, there is also the interests of the accused Simatovic and

2 that is to have the right to an expeditious trial to be met. However,

3 the right to a fair trial is an overriding right and the right is on the

4 side of Mr. Simatovic.

5 Our position is that only a joint trial, in view of the

6 circumstances, one could indeed speak of a fair trial. Whether there is

7 an infringement of the right to expeditious trial if this trial is

8 delayed in view of the time scale envisaged by Dr. de Man who spoke about

9 the possibility of Mr. Stanisic's health to improve, we have to say that

10 we only partly agree with the Prosecutor and we believe that the right of

11 the accused would not be infringed when it comes to an expeditious trial.

12 In view of that, the Defence can say that unlike the position of

13 the Prosecution that have provided their opinion, and in view of the

14 circumstance that Mr. Simatovic has been detained for two months and that

15 he could spend another six months in detention and that the eight months

16 in pre-trial should not mean the infringement of his rights to an

17 expeditious trial.

18 We believe that all possible consequences would be removed if our

19 client was provisionally released. This is not that we propose as a

20 condition, but as a possibility. This is going to be the subject of a

21 special ruling of the Chamber as a result of a special hearing.

22 The Defence would like to draw everybody's attention to the fact,

23 which has already been done, that the indictment was issued on the 1st of

24 May, 2003, and that these proceedings have already been ongoing for five

25 years and that the right to an expeditious trial has been an issue that

Page 767

1 is long overdue. But there is also an obligation to take into all the

2 other circumstances that have a bearing on the trial and these are the

3 circumstances that concern the work of the Prosecutor's office and the

4 Tribunal as a whole, and taking into account that these are very

5 complicated trials that will necessitate long trials.

6 However, when it comes to the infringement of the right to an

7 expeditious trial, this has been removed by the fact that Mr. Simatovic

8 was already on provisional release. The Defence agrees with the

9 Prosecution in their position that all the recommendations that exist at

10 this moment and especially the recommendations by Dr. de Man are based on

11 a possible unfitness for trial of Mr. Stanisic is of a temporary nature.

12 And this Defence believes that for as long as there is a possibility for

13 a joint trial to continue and the findings of Dr. de Man indicates such a

14 possibility, the Defence believes that this is the avenue that should be

15 explored, i.e., that joint trials should be supported. Obviously there

16 are circumstances that might exclude such a possibility, but I believe

17 that at this point, we are in a situation where we can still reckon with

18 such a possibility.

19 I would like to remind everybody that the counts against the

20 accused Stanisic and Simatovic are identical and that they apply to the

21 same extent to the both accused, that all the evidence that the

22 Prosecution has proposed is similar for both accused. In their work, the

23 Defence has followed the suggestions of the pre-trial judge from one of

24 the previous pre-trial Status Conferences. The Defence has cooperated in

25 order to avoid overlapping and with a view to the most expeditious trial.

Page 768

1 The Defence has decided to propose two joint expert opinions in

2 this -- these proceedings so all these circumstances are not in favour of

3 the severance of the cases and I believe that this, at this moment is

4 more important than the right to the accused of an expeditious trial in

5 case there is a postponement within the deadlines mentioned by Dr. de Man

6 and which were recommended by him as the time needed for Mr. Stanisic's

7 recovery.

8 This Defence believes that a decision on severance would be

9 premature because there is still a fair chance that a joint trial may be

10 conducted and that a decision on severance would not be the right

11 decision at this moment. This also implies that the Defence is inclined

12 to believe and considers that a possible postponement of trial within the

13 time-frames recommended by Dr. de Man, should the trial accept that

14 recommendation, is acceptable and we believe that it would not infringe

15 our client's right to an expeditious trial.

16 Whether the postponement will also mean that the case will have

17 to go back to a pre-trial phase and will have to be referred to a

18 pre-trial judge or whether another option will be considered, that will

19 also require an additional report on Mr. Stanisic's health within shorter

20 deadlines, this Defence believes that it is up to the organisation of the

21 work of this Tribunal and is not in a position to provide any suggestions

22 along these lines.

23 As far as possible medical examinations and evaluations of

24 Mr. Stanisic's health and his fitness for trial are concerned, at this

25 moment, the Defence can only rely on the last report provided by the

Page 769

1 psychiatrist and we are not in a position to provide any evaluation for

2 the reasons that I've already mentioned and those are that most of the

3 proceedings that preceded this moment during which the -- Mr. Stanisic's

4 fitness for trial has been evaluated has always been done in an ex parte

5 form.

6 In keeping with all of that, I believe that the Defence of the

7 accused Simatovic is not in a position to provide any comments to

8 Mr. Stanisic's fitness for trial via videolink and in that sense we

9 accept the arguments that were provided by the Defence of Mr. Stanisic.

10 As for the possible trial based on the decision that was

11 previously passed in view of Mr. Stanisic's fitness for trial, the

12 Defence believes that Dr. de Man's report is of crucial importance on any

13 position and that the Trial Chamber should reach a decision whether they

14 accept Dr. de Man's position or not; and should they not accept it, it

15 would be only then that the possibilities could be considered, and these

16 possibilities would arise from the previously-reached decisions by way of

17 which the Trial Chamber has decided that Mr. Stanisic is fit for trial.

18 The conclusion of the Defence of the Accused Simatovic is that at

19 this moment, the only adequate solution would be to postpone the trial by

20 the time that the Trial Chamber deems appropriate. And once Mr. Stanisic

21 is reexamined, and once his ability for trial is reexamined, then we

22 should embark on further considerations of possible forms of trial unless

23 Mr. Stanisic's health deteriorates.

24 If his health improves, however, the way Dr. de Man has

25 envisaged, then it would be a short period of time which is acceptable by

Page 770

1 the Defence of the Accused Simatovic as a delay and we believe that his

2 interest would not be impaired.

3 In addition to filing an application for provisional release for

4 the Accused Simatovic, the Defence would also like to point to the fact

5 that in the course of February, March, up to the 1st of February, the

6 Prosecution has disclosed lots of documents and that the possible

7 postponement would be made -- put to good use for the preparation of

8 Mr. Simatovic's Defence. The Defence believes that Mr. Simatovic could

9 do that while provisionally released but as I've already said, this will

10 be the subject of separate considerations by the Trial Chamber. Thank

11 you very much.

12 JUDGE ROBINSON: Thank you very much, Mr. Jovanovic.

13 Mr. Groome, would you pay particular attention in your reply to

14 the Defence argument that while there may be derogations from the

15 fundamental right of an accused to be present in court, in this case, the

16 institution of video conference link would be disproportionate because

17 the Trial Chamber would not have exhausted all other avenues.

18 MR. GROOME: Yes, Your Honour.

19 Before I do that, if it is acceptable to the Court, there are a

20 few other matters I would like to just respond to. The first one is the

21 Global Assessment of Functioning, or the GAF scale. If the Court would

22 take a look at that document again, I note that at the top of the first

23 paragraph, the last sentence of that first paragraph states that the

24 assessment is of the client's functioning during the previous 12 months.

25 So this determination or setting or characterisation of Mr. Stanisic's

Page 771

1 mental state is not simply of an isolated day but of a 12-month period.

2 I say that because if the Court recalls, none of the other

3 experts that testified at the trial -- at the hearing described the

4 symptoms that are described in this range of 21 to 30. And in fact,

5 Dr. Mimica, if the Court recalls from his report, his assessment of

6 Mr. Stanisic over a 12-month period was a 65. And also he made a finding

7 that his present, at the time that he examined him, it was actually a 70.

8 So according to Dr. Mimica, there had actually been an improvement on

9 this scale.

10 When one considers why would there be such a dramatic drop in

11 this scale, is it a deterioration, or is it simply that all that's

12 required to create that kind of precipitous drop would be the

13 self-reporting of a single symptom. If the Court looks at 21 to 30, it's

14 phrased in the disjunctive, it's "or ." So just simply one of those

15 symptoms reported by an examinee could lead to a considerable drop and a

16 symptom that I suggest to the Court is simply Mr. Stanisic self-reporting

17 that he has had a hallucination.

18 I would also point out, and I believe it's clear from Dr.

19 Mimica's testimony and his report, that this is simply a clinical aid.

20 It is not a replacement for the overall diagnosis, and I believe that

21 my -- the Defence of Mr. Stanisic is actually placing greater weight on

22 this -- greater significance on this finding of de Man regarding the

23 characterisation on a scale of 21 to 30 than is really warranted.

24 The second thing that I would like to address is with respect to

25 the video conferencing, whether Mr. Knoops raised the possibility that

Page 772

1 maybe Mr. Stanisic is not sufficiently technically equipped to deal with

2 the technology of a computer. I must say I find that quite difficult to

3 believe given that he was the head administrator of a large state

4 security service in the 1990s during the computer age. But even if let's

5 say that is the case, in my conversation with Mr. Falces this morning, I

6 put to him the question if Mr. Stanisic were to be unable to -- if he's

7 unable to type, there is currently now available on the market a tablet

8 PC that operates simply as a note pad that someone with a stylus provided

9 with this computer tablet can simply write notes as if they would write a

10 note in court here and pass it to counsel.

11 So even if the event that Mr. Stanisic does have some

12 deficiencies in computer skills, accommodations could be made according

13 to Mr. Falces that he would ensure that he would have the ability to

14 effectively communicate with his counsel.

15 Your Honour, could I ask for just a minute to confer with my

16 colleagues with respect to the Court's request that I deal with the

17 derogation and whether it's the last result?


19 MR. GROOME: I will just be a minute. Thanks.

20 [Prosecution counsel confer]

21 MR. GROOME: Your Honour, with respect to which is the greater

22 derogation, and the argument could be made that if the Court accepts my

23 evaluation of what is possible with a videolink, the fact that

24 Mr. Stanisic could have contemporaneous, instantaneous conversation with

25 his counsel throughout, it may in fact be viewed in fact less of a

Page 773

1 derogation of his ability to participate in a trial as opposed to what's

2 being recommended, that we adjourn for a period of three to six months.

3 I think another way to look at this is if we were to set up a

4 room, let's say, in this courtroom that could accommodate Mr. Stanisic's

5 particular medical needs, he could sit there and he would be physically

6 present but he would still have no greater capacity to participate in the

7 trial than he would have if he were viewing that from the comfort of his

8 own detention facility.

9 I don't believe that the Court must adjourn this case for any

10 considerable period of time before it is able to make a determination

11 that it is appropriate that a substantial objective is achieved by

12 employing a system of video conferencing on those days when Mr. Stanisic

13 is physically unwell enough to make the trip to the court to be here in

14 person.

15 Many of the cases that we have referred to, particularly those

16 ones dealing with trial in absentia are really dealing with the -- with

17 circumstances in which the accused has absolutely no participation

18 whatsoever. Here we are talking about what is -- or what's being

19 proposed is a situation in which Mr. Stanisic would have equal or greater

20 participation, the only difference would be that rather than viewing the

21 witnesses in person, he would be viewing them over a video monitor.

22 One thing that I did not mention in my initial remarks, but the

23 capacity is also there that it would be a two-way videolink, so any time

24 that Mr. Stanisic wants to address the Chamber, he could simply indicate

25 that to his counsel, they could inform the Court, and then we could be

Page 774

1 looking at Mr. Stanisic in his cell addressing the Chamber directly on

2 any point that he wishes to do so.

3 So again, it's difficult for me to imagine how this incapacitates

4 his participation and in fact I think it facilitates his participation.

5 Have I addressed the concern of the Chamber?

6 JUDGE ROBINSON: You anticipate that Mr. Stanisic, from his cell,

7 could address the Chamber directly?

8 MR. GROOME: So with respect to my discussions with Mr. Falces on

9 his computer monitor could be mounted what is commonly referred to as a

10 webcam so any time that he wanted to address the Chamber, if he indicated

11 that to his attorney, of course we would not have the webcam on all of

12 the time because that would infringe on his privacy if he's some how

13 either using the toilet or something else, but any time that he wants to

14 address the Court, he would be able to do so immediately from his cell.

15 He would have that capacity in short order.

16 JUDGE ROBINSON: Just a minute, please.

17 [Trial Chamber and legal officer confer]

18 JUDGE ROBINSON: Yes, Mr. Groome.

19 MR. GROOME: Your Honour, if I've satisfied the Chamber's

20 question to me initially, I have no further comments to make, sir.

21 JUDGE ROBINSON: Thank you, Mr. Groome.

22 I thank the parties for their submissions.

23 Mr. Knoops, you wanted to have another bite.

24 MR. KNOOPS: Your Honour, only maybe as a closing remark --


Page 775

1 MR. KNOOPS: -- that with all due respect for the answer the

2 Prosecution gave to the Chamber it, at least from our perspective, will

3 still be a fundamental derogation without any fault or part of

4 Mr. Stanisic. It's not about the technology, the abilities, the state of

5 the art to have access to computers and to use computers. This is about

6 whether the situation at hand justifies the conclusion that all

7 alternative avenues have been explored for this principal derogation,

8 this unprecedented derogation the Appeals Chamber alludes to. This is, I

9 think, the key issue. And in all honesty, we not say that in this stage

10 with this deep depression, with all due respect, the defendant can

11 participant through videolink, have access and make access and use all of

12 those state of the art equipment as envisioned by the Prosecution: This

13 is in our view and our submission, the principal point. We therefore, we

14 did stress -- we didn't reach that stage yet for determining whether a

15 videolink is an alternative avenue at this stage. We're still, in our

16 view, in the proceeding stage, namely the situation whether, due to the

17 medical situation, Mr. Stanisic can participate or not.

18 Thank you. Yes, my honourable learned friend, Mr. Jordash,

19 refers that from this perspective, it's the first delay, it's not the

20 third delay. Your Honours have now the timetable from Dr. de Man. If

21 that timetable is not to be met for some reason or the other, then of

22 course there is a new reason, there is a second delay and that may

23 justify another determination of the videolink option. But we think that

24 it's rather premature now in this stage to conclude that videolink fits

25 within the alternative venues as the Chamber has in mind. Thank you.

Page 776

1 JUDGE ROBINSON: But what do you mean when you say this is the

2 first delay? What is the first delay?

3 MR. KNOOPS: Well, the first delay in terms of Your Honours have

4 now for the first time a picture of the timeframe for the recovery. Your

5 Honours, until now, have not heard from any expert in this courtroom, nor

6 the Prosecution experts, nor the Defence experts, nor the Court experts

7 what is exactly now the prospect for recovery. I think that Dr. de Man

8 is the first expert out of the whole series of experts that we have heard

9 who comes to the concrete estimation in terms of time, when it's

10 realistic that this individual can be physically present. This is what

11 we mean with the first delay.

12 In other words, if that time-frame, I believe it was

13 Your Honour's question just a moment ago whether we believe that this

14 time-frame can be met, this time-frame of three to six months, whether

15 that's a viable time-frame, if that time-frame for one or the other

16 reason could not be met, we don't know, but that, of course, that could

17 justify that the Court go into the alternative avenues as set forth by

18 the Appeals Chamber including a videolink. But we believe that this

19 stage is not yet arrived. And it's the first delay in terms of the

20 possibility of the Court to have now the time-frame for the restart of

21 the trial.

22 JUDGE ROBINSON: In practical terms, it's the third delay.

23 MR. KNOOPS: We agree, it's the third delay, but seen from the

24 perspective of the prospect of the recovery, we have now the first

25 concrete indication from an expert as to the time-frame the experts

Page 777

1 apparently need for the recovery.

2 JUDGE ROBINSON: Very well.

3 [Trial Chamber confers]

4 JUDGE DAVID: I would like to ask the Defence if in the

5 assessment, the various psychiatric and psychological assessments, the

6 Defence recalls the reason by which no time, fixed time limits were given

7 by the psychologist and the psychiatrist as to the recovery of

8 Mr. Stanisic? Do you recall why the experts were reluctant to give exact

9 time-frames for the prognosis of problems suffered by Mr. Stanisic?

10 MR. KNOOPS: Your Honour, I believe that --

11 THE INTERPRETER: Microphone for Mr. Knoops, please.

12 MR. KNOOPS: -- I can briefly address that question on behalf of

13 the Defence of Mr. Stanisic. Actually, the question as to the length of

14 the recovery, a specialist would need to have a full recovery was never

15 explored in depth as such.

16 Secondly, it may be difficult for a expert to answer that

17 question in view of the vicious circle of the illnesses Mr. Stanisic is

18 suffering from and the interrelationship. Therefore I think the only

19 person who can really answer Your Honours about how realistic is this

20 time-frame is Dr. de Man. Therefore I said in my submissions he must

21 have had experience with such a situation or is knowledgeable to come

22 with this time-frame but it's, in our submission, the first expert who is

23 concretely speaking about a time-frame for a recovery. And it strikes me

24 that he specifically refers to at least three until six months, while the

25 other experts indeed did not go into that discussion and were reluctant

Page 778

1 in terms of professional reluctance, reservations may be the better word,

2 to give the Chamber a prognosis. Even what I recall Dr. Smit, the Court

3 expert, was very reserved as to the time-frame. I believe she told the

4 Court it could be a matter of weeks or months. That was the only

5 guideline I believe that we got from her testimony.

6 But again, this is the best evidence the Chamber has now in front

7 of it, and therefore, we have to guess why the other experts were not

8 capable of coming with a specific time-frame. And I agree, Your Honour,

9 this is --

10 JUDGE DAVID: I would like to refer the Defence to the reading of

11 our decision when we evaluated the various experts diagnosis, and that's

12 why the -- in the decision, we always refer to the need for a

13 reassessment, dynamic reassessment of the situation of Mr. Stanisic in

14 the absence of any clear-cut time limitation as to the prognosis of his

15 illnesses.

16 Thank you very much.

17 MR. KNOOPS: Maybe, Your Honour, if I may briefly address this

18 last point. Of course my learned friend, Mr. Jordash, did not seek for

19 revisitation of the application on the fitness as such.

20 I think Your Honour rightfully observed that this time-frame

21 which is now rather concrete as suggested by Dr. de Man and was not

22 previously within the knowledge of the Chamber may, in addition to his

23 additional diagnosis, be a new piece of forensic evidence which was not

24 there on the 10th of March and may therefore justify the assessment

25 Your Honours had in mind as a weekly assessment. It's merely a

Page 779

1 suggestion by me. We are not therefore revisiting -- asking the Court to

2 revisit that decision of course, but we simply observe that this is also,

3 in addition to the psychosis, the psychosis features, a new piece of

4 forensic evidence in terms of the diagnosis and prognosis for a recovery

5 of the depression. And this may justify the second option as we, as the

6 Defence team, have referred to the Chamber. Thank you.

7 JUDGE DAVID: I would like also to just make a brief comment that

8 no one of the experts were given, in their assessments to the Chamber, a

9 time-frame even when asked specifically by our President on the various

10 alternatives in relation to the legal dimensions of his illnesses as to

11 enumeration, there were five or six options given by our President, yet I

12 have to mention that in reading the assessment of Dr. de Man, it

13 surprised me suddenly the time dimensions of his diagnosis.

14 I'm saying "surprised" because in psychiatric literature, it's

15 very uncommon just out of the -- in the course of an examination that

16 lasted only a few minutes, to come with a prediction in exact terms of

17 the duration of an illness which is not one illness but a complication as

18 is recognised, of many dimensions, a multi-dimensional situation. I am

19 saying this because really, the diagnosis, in many respects, while

20 confirming the fact that there are not psychiatric dimensions, psychotic

21 dimensions, structurally psychotic dimensions in the personality refers

22 to occasional hallucinations of which -- of whose nature he has not

23 elaborated because they were in consultations the impossibility to

24 assess, if they were just night happenings or psychiatric hallucinations.

25 And of course this brings the Chamber with alternatives so the Chamber

Page 780

1 might decide, you know, on his testimony.

2 Thank you very much, Mr. Knoops.

3 JUDGE ROBINSON: We might very well have to hear from Dr. de Man.

4 This suggestion was made by the Prosecutor, to have a limited hearing.

5 The Chamber will consider that, as we consider the various options that

6 are open.

7 A concern that I would have is that that hearing be limited to

8 Dr. de Man, but I don't know whether the Prosecutor would be in a

9 position to say now whether he would be satisfied with a hearing confined

10 to Dr. de Man.

11 MR. GROOME: Your Honour, forgive me if I was misunderstood. I

12 was presenting a range of options starting with evaluation of a report

13 and a decision based on a report. If that was insufficient, a limited

14 hearing with respect to Dr. de Man. If that was insufficient, then may

15 be something broader. So I'm not proposing at this stage that we

16 automatically open it up a broader hearing and depending on what happened

17 at that hearing, might make submissions that it is sufficient or may need

18 to be broader.

19 JUDGE ROBINSON: Very well. I thank the parties for their

20 submissions which the Chamber has found quite helpful and we'll give a

21 decision shortly. We are adjourned.

22 --- Whereupon the hearing adjourned at 5.23 p.m.