¹¹⁹⁷ Wednesday, 7 May 2008

(Open session)

[The accused Simatovic entered court]

[The accused Stanisic is not present]

--- Upon commencing at 9.02 a.m.

JUDGE ROBINSON: I understand the Defence has a matter to raise. Mr. Knoops.

MR. KNOOPS: Yes, thank you, Your Honour, good morning. In light of Your Honours' ruling of yesterday, the decision on provision of documents and scheduling of witnesses, the Defence would like to raise the following remark.

The order contains the instruction to the Defence to provide the Prosecution, the registry, and the Trial Chamber with a list of documents and materials it intends to use in court during cross-examination at the commencement of the examination in chief of that witness and after he or she has made the solemn declaration pursuant to Rule 90 (a) of the rules. Mr. President, in light of the testimony to be expected of the witness today, the expert, it is clearly that the Defence cannot comply with this witness or expert with Your Honours' order simply because first of all, the definite list of exhibits was provided Monday afternoon by the Prosecution to the Defence, so less than the required 72 hours as contained in the order.

Secondly, Your Honours' ruling was from yesterday, so our request is whether the Court would allow the Defence to release our list with, exhibits at the latest, tomorrow morning. ¹¹⁹⁸

JUDGE ROBINSON: How long will the examination in chief be?

MR. GROOME: Your Honour, it's scheduled for five hours, Your Honour.

JUDGE ROBINSON: Five hours. I see. Yes, we'll allow that, then.

MR. KNOOPS: Thank you, Your Honour.

MR. GROOME: Your Honour, just a brief matter.

JUDGE ROBINSON: Yes.

MR. GROOME: In -- with respect to B-299, the Prosecution failed to formally tender the 92 ter statement into evidence. I'd like to do that at this time if I may. The Prosecution would tender document ID B-299 Martic testimony as well as the two accompanying exhibits and they are 65 ter number 2823 and 65 ter number 2824.

JUDGE ROBINSON: We admit them. Let the witness be brought in. But before the witness is brought in, I have to observe the accused Stanisic is not present and I will make an inquiry of the court deputy as to whether she can inform us about his attendance.

THE REGISTRAR: Your Honours, Mr. Stanisic informed the court that he is unwell to attend court today and he will neither be in the video conference room and we are awaiting for the medical examination to have more information regarding his health.

JUDGE ROBINSON: By the medical examination, you mean the standard form which is usually sent by the UNDU?

THE REGISTRAR: Yes. The nurse will examine Mr. Stanisic in the ¹¹⁹⁹ course of the morning and will inform us as to the results.

JUDGE ROBINSON: I am to say that it has taken more time than the Chamber had expected to complete the list of procedures. We plan to complete that list of procedures to be followed in relation to the attendance of the accused and we'll issue that order this afternoon. Yes, Mr. Knoops.

MR. KNOOPS: Your Honour, may I.

JUDGE ROBINSON: Yes.

MR. KNOOPS: May it please the Court to be informed that the Defence yesterday afternoon also tried to contribute to the expected order by responding to the Prosecution's submissions so the Court should have our submissions if correct right now. I think they are filed at 9.00. They were filed yesterday around 5.00 but I didn't see them on the --

JUDGE ROBINSON: I haven't seen them either but I certainly will check to see that we have the benefit of --

MR. KNOOPS: Some brief submissions also on our behalf to contribute to the expected order.

JUDGE ROBINSON: Yes. Yesterday, you indicated that you had no instructions from the accused. What is the position today?

MR. KNOOPS: Your Honour, that's actually still the same and we'll also --

JUDGE ROBINSON: When you say that, Mr. Knoops, is it that you have tried to get instructions from him and you have failed?

MR. KNOOPS: That is correct, Your Honour. ¹²⁰⁰

JUDGE ROBINSON: Meaning what? That he hasn't been able to speak to you or communicate with you?

MR. KNOOPS: No, Your Honour, he is able to and willing to speak to us but he is simply not able to go into the case and discuss matters with us. He's not able to intelligibly comment on documents and give us proper instructions. On a repeated basis we visit the accused approximately two or three times a week and those visits last an average of approximately 30 minutes but which were not able to retrieve any sensible instructions from the accused. That's why I remark yesterday not to irritate the Court further with this matter, but it is my obligation to mention that the current cross-examinations are without those proper instructions we deem to have.

Of course especially with an important expert witness as Mr. Nielsen, this will seriously hamper my abilities to conduct the cross-examination I'm prepared to do and we prepared within the boundaries of our duty, of course, the cross-examination but it's not maybe a surprise that we are restricted in our abilities to effectively go into all of the materials suggest.

JUDGE ROBINSON: You were receiving instructions from the accused all along. When did this stop that you were not able to obtain any instructions from him?

MR. KNOOPS: Mr. President, actually, the account given by Dr. de Man was -- is fairly accurate. He mentions in his report that as of, I recall, September/October last year, the situation gravely deteriorated and also Dr. de Man referred to the fact that at that time, Mr. Stanisic ¹²⁰¹ was not able to work longer with the Defence team, not in terms of not willing to work but not able to work. This is also our experience that actually until autumn last year, we were able to retrieve instructions and from then on, the situation became worse. So in this regard, the account given by Dr. de Man is fairly accurate.

So, you know, I can try again to the Court to request an adjournment and suggest that we wait for the medical report. I know the Court's opinion so we will --

JUDGE ROBINSON: I am prepared to hear submissions, though. Mr. Groome, you made a submission yesterday on this point.

MR. GROOME: Your Honour, the Prosecution's position is that as long as Mr. Stanisic is physically able to use the videolink facility, that his failure to do so would be -- should be considered a voluntary waiver of his right to participate. I was concerned yesterday that we were possibly proceeding under conditions in which it wasn't clear that he was physically able so -- and that's why I had suggested on Friday that I thought it was important for the Chamber to assess the evidence before it and make a finding that he is in fact able to use those video facilities and declined to do so.

One of the things that I have been considering raising with the Chamber and I suppose now might be an appropriate time is it seems that Mr. Stanisic is well able to go travel to Bronovo Hospital and to discuss his medical condition with medical professionals. It seems that it would be entirely appropriate for the Chamber to actually bring Mr. Stanisic to the courtroom and ask him what his position is. It does not implicate ¹²⁰² any right against self incrimination. I know that I would have a clearer view of his condition to actually hear him address the Court as to what he perceives his limitations on participation are. So I'd ask the Court maybe to consider that.

With respect to this morning, I mean hopefully the UNDU can provide us medical -- or provide the Chamber medical information first thing in the morning so that the Court can proceed. It seems that the Court is put in a difficult position of having to wait around for the nurse to go and examine him. It seems to me entirely reasonable that the Chamber would direct the UN detention unit medical staff to make it a priority to examine him 7.30, 8.00 in the morning so that when the Court comes in it has the information it needs to make the decision that it needs to make each day.

JUDGE ROBINSON: We will do that but so far as today is concerned, if we proceed, what would be the basis on which we are proceeding? I've been giving this matter some consideration overnight. Prior to receipt of the certificate, would we be proceeding on the basis that the accused is able to attend the video conference room and has not? That was his position yesterday.

MR. GROOME: Your Honour, I believe the only proper basis for the Court to proceed would be upon a finding that he is able to use the video conference but is declining, and there is some evidence before the Chamber, his statement written down that he will not use it or he does not want to use it. But I think on a daily basis, unfortunately, the Chamber is put in the position of having to make the decision as to ¹²⁰³ whether or not he is being physically prevented, is he physically unable to use that video conference. If the Court does find that because of his illness he is physically inable to use -- either come to Court or to use the video conference link, it seems that we're not proceeding on a basis that I believe is safe and possibly could be considered in error upon review of the Appeals Chamber.

JUDGE ROBINSON: You use the word "physically," Mr. Groome. I presume not in the -- not in a narrow sense.

MR. GROOME: No, Your Honour. With respect to fitness, Your Honour, the Chamber has ruled on that and I believe that stands until such time as the Chamber decides or should the Chamber ever, upon new evidence, decide differently.

When I say "physical," I mean his entire holistic health and is he able to go to that videolink, recognising that, from what information that we have, that it's simply a short walk down the hall. I must say that I am somewhat curious as to how he is able to participate in these other activities such as travelling to hospitals and discussing his medical situation with other medical professionals but somehow keeps reasserting that he's unable to walk down the hall and watch proceedings on the TV screen.

But until we -- until the Chamber has before it clear information from medical staff that he is able to do that, I think it's difficult for the Chamber to proceed without it.

JUDGE ROBINSON: So that notwithstanding, say, the certificate that we received yesterday and which we are likely to receive again today ¹²⁰⁴ to the effect that he is unwell to attend court, your submission is that the Chamber would be in a position to conclude that he is nonetheless well enough to attend the video conference room.

MR. GROOME: Your Honour, I believe the forms that the Chamber has been receiving and I think the Chamber's already recognised their inadequacy are largely initiated by Mr. Stanisic's decision that he is -- his self assessment that he's not well. And the vague statement that there are observable symptoms, I believe, is insufficient information for the Chamber. It seems entirely possible that the medical staff could make an oral report to the Chamber within minutes about what are the observable symptoms so that the Chamber who has -- who upon rests the primary responsibility not only for Mr. Stanisic's health but the expeditious progress of these proceedings could make a determination. So if the observable symptom is that he has a cold or the observable symptom is that he really is having to use the toilet every 30 minutes, the Court could weigh that and make its own determination as to whether he is able to use the videolink facility or whether he needs a day or two to recuperate from whatever temporary illness he might be suffering that prevents him from walking down the hall.

We know that many of the chronic illnesses that he has should not prevent him from going down the hall to the videolink such as the kidney stones, the osteoporosis, those should not prevent him from using the videolink facility, so I think it's important that the Chamber have specific information about what it is today that's been observed by the medical staff that they believe corroborates Mr. Stanisic's statement ¹²⁰⁵ that he feels too unwell to use the video conference link.

JUDGE ROBINSON: Yes, Mr. Knoops.

MR. KNOOPS: Your Honour, could I, with your permission, try to make a modest contribution?

With respect to your question what the basis is to proceed today, I still believe that of course there is an element of voluntariness or decision to go to the videolink room, yet there is, on the basis of the report of Dr. Falke on the 2nd of May prima facie ground to assume that it's not totally the own decision of the accused.

First of all, Dr. Falke, and the Prosecutor pointed that out yesterday, indicated that Mr. Stanisic was not able to use or to attend or be able to attend the videolink conference on the 29th and there was a medical reason indicated. And secondly, in that letter, Dr. Petrovic indicates the time frame of a potential recovery from the mental problems.

Now, what is particularly striking that the information yesterday was that the frequency of the stools has now been increased to every 30 minutes. In connection with the pains, et cetera, which we all know from medical evidence, it's fair to say that the decision to go or not to go to the videolink conference room is in a way now supported by a medical certificate other than the standard form relating to the observable or non-observable symptoms.

And that's why, in our submissions of yesterday afternoon, we suggested to the Court to indeed not restrict the term "physically" to only the physical elements of the disease but also to take into account ¹²⁰⁶ the mental elements. Therefore, if the Court would order the UNDU to expand that form that this situation should be taken into account as well.

As far as today's situation is concerned, it is our belief that at least there is a prima facie basis to say that it's not merely the nurse who wrote down the comment of Mr. Stanisic, because that document is supported by the underlying medical report of Dr. Falke of the 2nd of May which has not been superseded yet by any other more recent medical document.

And when you read the third paragraph of that report, Dr. Falke relies upon the assessment of Dr. Petrovic, the psychiatrist in the UNDU, that gives a clear indication about the ability of Mr. Stanisic to attend the videolink conference.

So I believe that at the least, we should try to retrieve the most recent information before proceeding.

Those are my submissions. I hope that they will contribute to a decision for the continuation of today's hearing.

JUDGE ROBINSON: If the report which we will receive is in the same form as yesterday, what, then, would your submission be?

MR. KNOOPS: Our submission, Your Honour, is that it's not merely a subjective decision made by the accused not to go to the video room conference, but that decision has merit in an objective medical report, namely that of the 2nd of May of Dr. Falke confirmed or not confirmed today by any other document. And in light of Your Honours' last ruling as to the requirements to continue with the trial on the basis of ¹²⁰⁷ videolink participation, it seems to me that we shouldn't try to interpret the criteria too narrowly, that in light of the medical evidence that lies before the Court now, one could say also here the benefit of the doubt should go to the accused if there is a prima facie basis that there are indeed objective symptoms such as increasement of stools every 30 minutes. It seems to us that it's not possible for this defendant to sit in the videolink conference and participate in the way we would expect.

So in answer to your question, Your Honour, I would say that if the information is equal to the information of yesterday or the 2nd of May, the conditions to continue with the videolink conference for today are not met and that there is an --

JUDGE ROBINSON: That would primarily be because of the report yesterday which spoke of a 30-minute frequency in stools.

MR. KNOOPS: That's correct, Your Honour, in combination with the third paragraph in the report of Dr. Falke when he relies upon the information Dr. Petrovic saying although she is mildly positive, the treatment she is now undertaking will give any results, I believe she told the Court through the letter of Dr. Falke within a couple of weeks. But still, apart from the issue of the stools and the impact on the level of participation through videolink conference, of course, we still submit there is a second element, namely whether the defendant, preoccupied by his illness and his depression, is able to, apart from sitting as a physical object in the videolink conference, intelligibly contribute to the proceedings and assist the Defence in a general and basic level. ¹²⁰⁸ So we still believe that apart from the issue of the stools, the medical condition should be perceived broader. And I believe this is also --

JUDGE ROBINSON: There is no indication that it is being perceived narrowly.

MR. KNOOPS: No, but Your Honour requests me to comment on should we only look at the element of the stools. My submission is that, and I believe it's the message of Dr. Falke, that the letter of the 2nd of May aims at the two elements: The physical ability and also the mental ability to sit there and participate through the videolink conference. So I'm not suggesting that the Court is going to look at it narrowly but I'm just responding to your remark whether the Court should only look at the physical symptoms we were informed of yesterday or whether we should also take the issue broader.

And it's our view that the issue should be taken a little bit broader, namely the whole context of the letter of Dr. Falke of the 2nd of May, and I don't believe that Dr. Falke, without merit, pointed to the recent information Dr. Petrovic, and we believe it's an essential element of the overall medical situation.

So if we speak about observable symptoms, I believe that should not be restricted just to the physical symptoms such as stools or kidney problems but it should also include the ability in terms of the mental ability of the accused to sit there. Because as I just explained to the Court, it's -- the problem for the Defence is that the defendant is mentally not open due to his disorder, to his illness, to go into ¹²⁰⁹ discussion about documents. So we experience this really as part of the overall medical situation.

I'm not trying to, of course, reopen the fitness issues, but I really hope that the Court would indeed take the issue a little bit broader than the submissions of the Prosecution. The Prosecution suggested several questions to Your Honours such as, Mr. Stanisic, are you physically able to go to the video room conference --

JUDGE ROBINSON: I asked Mr. Groome whether he was using the word "physical" narrowly. English is not your native tongue.

MR. KNOOPS: Yes.

JUDGE ROBINSON: And he said no. So you can use the word "physical" in the way which Mr. Groome used it to comprehend both mental and what one would ordinarily call physical capacities and he said he was using it in that holistic manner. And that is what I understand, you know. I don't think you can compartmentalise one's health. Mr. Groome, I understand Mr. Knoops to be saying that at least the 30-minute stool factor is -- I see we now have -- can you get copies for the Judges.

The 30-minute stool factor operates to prevent the accused from being in attendance for the viewing of the videolink.

MR. GROOME: Your Honour, I think, and this again reaffirms why I think it's so important the Court have direct objective information about this. We do not know whether that's a self-report. Is that Mr. Stanisic saying that throughout the night, I've had to use the toilet every 30 minutes or is it someone in the detention unit, medical staff or in the ¹²¹⁰ general prison staff saying that Mr. Stanisic has had to be moved to a toilet every 30 minutes. So that's why I believe it's important for the Chamber to have independent information.

JUDGE ROBINSON: May I ask, would you get copies of this, Madam Court Deputy, for the parties because we now have the UNDU absent from the court due to illness report. It's not been signed by the accused, which means he hasn't waived his right. On the second page, the principal officer says that the detainee has refused to sign. In the column other comments, it says, "Can't go to video room also." In the column for the UNDU medical service, it says that the detainee has been examined. He has observable symptoms, indicating that he may feel too unwell to attend court. 4(b), an assessment that this illness will require an extended period of convalescence. It doesn't say what that period is. The medical officer has been informed and in the column "other comments: He has frequent stool every 30 minutes." It's pretty much what we had yesterday. Just a minute, Mr. Groome.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Groome, any submissions now that we have the UNDU report?

MR. GROOME: Your Honour, again, I believe it does not have the specific information about the observable symptoms. One suggestion I would make to the Chamber is, we have this video conference link. Could we not have the registrar ask the nurse who examined him today to come to the videolink room and answer a short -- some short questions by the ¹²¹¹ Chamber so the Chamber will have the information that it requires. Similarly, would it not be also wise to have Mr. Stanisic be brought to the video conference link so the Chamber can ask him some questions. Certainly, the questions, I would think, would be less than 30 -- would take less than 30 minutes. I believe at that stage the Chamber would have the information it needs to make the decision as to whether Mr. Stanisic is refusing to make use of the videolink facility, thereby voluntarily waiving his right to be present for these proceedings, or whether he is in fact too ill today to participate.

JUDGE ROBINSON: Mr. Knoops.

MR. KNOOPS: Your Honour, we believe what we pointed out earlier this morning that the last report of Dr. Falke of the 2nd of May actually contains the confirmation about exactly what the observable symptoms are so it's --

JUDGE ROBINSON: What was in that report?

MR. KNOOPS: The report which was of the 2nd of May. I believe we only received it yesterday. It was discussed yesterday morning. It was the second and third paragraph of that report.

The report didn't even mention the frequency of the stools by then, so this is actually in addition to what Dr. Falke wrote on the 2nd of May.

JUDGE ROBINSON: Thank you, Mr. Knoops.

[Trial Chamber confers]

JUDGE ROBINSON: I'm going to ask the court deputy to have the registrar transmit to the UNDU the Trial Chamber's request that the nurse ¹²¹² who examined Mr. Stanisic come to the video conference room and answer a few questions from the Chamber. We believe that the Prosecutor is right when he says that the Chamber does not have the information that it needs to make a proper determination of this important question. We estimate that this could be arranged within half an hour and so we'll adjourn for half an hour. In the meantime, I would ask the court deputy to be in touch with the Chamber if there is any problem in implementing this instruction.

--- Break taken at 9.40 a.m.

--- On resuming at 10.20 a.m.

JUDGE ROBINSON: May I inquire from the court deputy whether the videolink has been set up so that we may ask the nurse some questions?

THE REGISTRAR: Your Honours, the videolink is running and the nurse is awaiting in the video conference room.

[Technical difficulties]

JUDGE ROBINSON: You were not heard, so please repeat that.

THE REGISTRAR: Your Honours, the videolink is running and the nurse is awaiting in the video conference room.

JUDGE ROBINSON: Thank you. It has been -- there is a noise, there is a constant buzzing sound. Are we able to proceed?

THE COURT REPORTER: Yes, I'll just have to interrupt if I can't hear. Sorry.

JUDGE ROBINSON: Well, let us try to proceed. I observe that when I speak the noise stops. It's still going on. It has been suggested that this part of the hearing should be in private session so ¹²¹³ we'll move into private session.

(Private session)

(23 lines redacted) ¹²¹⁴

(12 pages redacted) ¹²²⁶

(16 lines redacted)

--- Whereupon the hearing adjourned at 11.00 a.m. to be reconvened on Thursday, the 8th of May,

2008 at 2.15 p.m.