¹²⁸⁴⁹

Tuesday, 12 November 2002

[Open session]

[The accused not present in court]

--- Upon commencing at 9.17 a.m.

JUDGE MAY: Mr. Nice, if I could address you on the matter. We have a report from the Detention Unit that the accused has said that he's tired, but also his blood pressure is described as being too high. The doctor is coming to see him. We shall order a report from the doctor today, first as to the current state of health of the accused, what it is that's wrong with him, his health; when is he likely to be able to resume the trial; and finally, a prognosis as to his future fitness. Depending on that report, the Trial Chamber will consider whether it's necessary to have a further report from the specialists.

MR. NICE: Thank you, Your Honour. May I inquire if the first report is going to be from the same doctor who provided the most recent report, the regular doctor attending the prison?

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

MR. NICE: I think we may have made plain by implication or even expressly the difficulties that we face when we -- the Chamber faces and we, to the extent we face these difficulties, when confronting reports of the limited nature that have been provided in recent or on recent occasions, and it must be extremely difficult for the Chamber to make informed decisions on the basis of that form of medical opinion.

JUDGE MAY: That matter has been attended to, and I understand that we can expect a proper report on this occasion. ¹²⁸⁵⁰

MR. NICE: I hope it may be made available to us so that we can give the best informed contribution on the decisions you have to make as soon as possible.

JUDGE MAY: If appropriate, certainly.

MR. NICE: Thank you.

JUDGE MAY: That being said, are there any matters which you want to raise, Mr. Nice?

MR. NICE: Your Honour, I don't think so. We are simply putting the timetable back with necessary adjustments to witnesses to be called. So far as procedural matters are concerned, I think the next procedural matter that's been listed is consideration of the financial report together with the witness K-038, which we'd originally scheduled to follow the present conditions, and I hope that we may at least stick to that plan, although we're always happy to substitute evidence for procedural argument where that's sensibly possible. We can't deal with that --

JUDGE MAY: I remember the financial evidence. We've had submissions on that, as I recollect, written submissions.

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

JUDGE MAY: Have we had representations in writing from you? It may be not.

MR. NICE: I don't think so, no. I think the matter was put back for oral argument on both the financial reports generally and the Witness K-038 in particular.

JUDGE MAY: Just remind me of the -- yes. These two being connected. ¹²⁸⁵¹

MR. NICE: It's all connected, and I think I overheard one word from His Honour Judge Robinson which correctly identifies the nature of that protected witness's occupation.

JUDGE MAY: The question is --

THE INTERPRETER: Microphone, please, Your Honour.

JUDGE MAY: The question is whether there's anything we can do in the absence of the accused.

MR. NICE: Your Honour, if there is any procedural matter to be dealt with that doesn't require a contribution from him, then he's safeguarded because he can have a video recording of the hearing, but in reality, there are no procedural matters that can proceed in his absence. If there are matters of information, we can deal with those but they take a couple of minutes and it serves no purpose, really, to notify you in his absence.

JUDGE MAY: Well, we must consider, if this is going to be a break of any length, as to whether we can sit to deal with any matters. It may be that none spring to mind, and it may be there aren't any, but we ought to think as creatively as possible about that.

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

JUDGE MAY: And we will, of course, have to consider those matters which have been put before us in relation to the future conduct of the case.

MR. NICE: Yes. We suspect that, although I know typically the Chamber deals with these things on written motions, that this is one where a limited amount of debate on the basis of submissions, with a ¹²⁸⁵² contribution from or on behalf of the accused, would be helpful, particularly in relation to the mechanics or the mechanisms, if any, of either imposed counsel or standby counsel or McKenzie friend and matters of that sort. And it may be that we would want to amplify or modulate our submissions in light of a detailed medical report when it's available. Ms. Uertz-Retzlaff reminds me that there's the intercept topic generally which is going to arise in part in the course of this witness but will also fall for more general consideration in relation to later witnesses. That -- the exercise relating to intercepts is well advanced, and, of course, matters of fact and legal principle will be involved in consideration of the admissibility of intercepts. I'm not sure to what extent that can proceed in the absence of the accused, particularly given that he's been very vocal in his objection to the introduction of any intercept on the grounds of illegality.

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

MR. NICE: And the amici, I gather, are submitting something. I see a nod.

JUDGE MAY: Yes. They said yesterday that they were doing it today, I think. Is that right, Ms. Higgins?

MS. HIGGINS: Yes, that's right, Your Honour. I would also ask the amici be allowed to address the Court in relation to the arguments raised by the Prosecution concerning the possibility of Defence counsel for the accused in due course.

JUDGE MAY: Yes. That would be a matter you may want to address ¹²⁸⁵³ if you have the time, which you may have now. If you want to put something in writing, of course we would consider that.

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

JUDGE KWON: I would also like to raise this issue: At this moment, the -- we consider the position of the Prosecution and think about again to reduce the counts of the indictment, reduce the size of the case substantially.

MR. NICE: Well, Your Honour, I think we're moving to the merits of the written arguments on the future conduct of the case, and there are two points that need to be made. As the Chamber will remember, there's a discrete issue concerning the Bosnian indictment outstanding and due for return on the 24th of November, in light of an extension. Quite separately from that, there's the question in principle of whether, by reason of the matters that have recently occurred concerning the accused's health, there should be any reduction in the scale of the case he faces, and our submission is quite clear on the point that, in the opinion of the Prosecution, this case is already effectively at its irreducible minimum and there should be no further reduction simply on the basis of these matters.

There may have to be an extension of the time available for the case if these problems are going to recur, and we've made it clear that, in our submission, the Chamber will have to give serious consideration to extension. It may be very substantial extension of the time, but our position is that this case is now at its irreducible minimum and that examining only a part of it will not be to do justice. ¹²⁸⁵⁴

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

JUDGE MAY: Anything anybody wants to raise from the amici? If not, we'll adjourn.

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

MR. TAPUSKOVIC: [Interpretation] Your Honours, I'll be very brief. I will not go into any arguments without the presence of Mr. Slobodan Milosevic. What we wrote in our submission of the 7th November concerning the accused's health and our own opinion of the future conduct of the case is all we have for now. We don't want to add anything to that. We do need -- believe that a debate is necessary in the future on this issue in the presence of the accused.

JUDGE MAY: Very well. That will take place. We will adjourn now, and we will give notice when the Court will sit again.

--- Whereupon the hearing adjourned sine die at 9.29 a.m.