³²¹³⁵

Monday, 5 July 2004

[Open session]

[The accused entered court]

--- Upon commencing at 11.12 a.m.

JUDGE ROBINSON: Today was the day set by the Chamber for the accused to commence the presentation of his defence. But last week the Chamber received two medical reports concerning the health of the accused, and the Chamber thought it right to convene this hearing so that consideration could be given to these reports in the light of any implications they might have for the continuation of the trial. I'm going to read the reports and then ask the parties for their comments. The first report was received on Thursday, the 1st of July, from the medical officer, and it says: "Due to the discovery of extremely high blood pressure, it is absolutely essential that Mr. Milosevic rest. Confirmation of this necessity will follow shortly --" Yes, Mr. Milosevic?

THE ACCUSED: [Interpretation] Mr. Robinson, you can't read out my medical report just like that. It is my private affair, although they have been sent in to you. You know full well what is contained in those reports and so do I.

JUDGE ROBINSON: Mr. Milosevic, the jurisprudence of this Tribunal is that medical reports are confidential except when they are needed for the purposes of trial, and we have considered this matter and have concluded that it is right that the public should be informed. I continue. The report continues that: "Confirmation of this ³²¹³⁶ necessity will follow shortly in a letter from the treating cardiologist, Dr. van Dijkman.

"Mr. Milosevic needs to rest until at least the 9th of July, 2004. His condition will continue to be monitored until that point, when a new assessment will be submitted."

The Chamber considered that report and made an order on Friday, the 2nd, requiring the Registrar to obtain a report from the treating cardiologist, Dr. Dijkman, by the end of that day, indicating, one, whether the accused is unfit to participate in court proceedings on the 5th of July (a) to deal with administrative matters, including by videolink from the United Nations Detention Unit; or (b) to present his case; and two, if the accused is unfit, to explain what are the features of his high blood pressure or any other aspects of his health that render him so unfit.

On the same day but after 5.00 p.m., the Chamber received Dr. Dijkman's report, and I'll read the pertinent parts of this report. It says that: "Last week we again faced a serious rise in Mr. Milosevic's blood pressure during his present trial. Values of around 200/130 were measured. Meanwhile, he has had some rest, which, as in previous instances, has proven to be necessary.

"For the sake of clarity, I will once more state the following: The patient is known to have essential hypertension with organ damage in the form of hypertrophy of the left ventricle. He is undergoing extensive medical treatment and during periods of rest his blood pressure could be deemed acceptable, around 140/80. If the patient is experiencing stress, ³²¹³⁷ the blood pressure rises sharply; systolic above 200 and diastolic around 120-130, and the blood pressure must be adjusted again. After a period of rest, the situation returns to normal, and he even becomes dizzy at the at that moment relatively low blood pressure." I think there is a problem in the translation there but the sense is that he becomes dizzy even at that relatively low blood pressure.

I continue: "It is therefore necessary to navigate constantly between sufficient rest, optimum medication and the stress of the trial. My proposal is now again to take a period of rest while strictly controlling the blood pressure. I do not consider it sensible to introduce stressful moments again during the trial next week, but I do not think there are any objections to discussing the administrative sides of the case. As soon as the blood pressure has reached values which are normal for him, the trial could start again, but I expect the blood pressure to rise again after a short period of time. At that moment agreement on sufficient rest will have to be reached again." It is in the light of that report that we are here today, and I'd like to hear from the -- from the parties their views in relation to -- to the report and any implications that the reports might have for the continuation of the trial.

I'm going to start first with Mr. Milosevic, then the amicus, then the Prosecutor, and then Mr. Milosevic to reply. Mr. Milosevic.

THE ACCUSED: [Interpretation] Mr. Robinson, you have forgotten to mention that this morning -- you were quoting in fact a report from last ³²¹³⁸ week which states that I should be given periods of rest, and you forgot to say that this morning, in fact, you received a report based on an examination that I underwent this morning, and without further ado, let me just say that the physician --

JUDGE ROBINSON: Mr. Milosevic, let me stop you. We have not received any report this morning. I make a -- just a minute. Just a minute. I make an inquiry of the legal officer and the registrar whether we are in possession of any report from the medical officer of today's date.

[Trial Chamber and legal officer confer]

JUDGE ROBINSON: I understand an oral report was received. We haven't received any written report. Continue.

THE ACCUSED: [Interpretation] I was told that the physician categorically stated -- he said categorically and angrily protested, in fact - categorically and angrily protested, those were his words - against any kind of idea of bringing me in to court here today and that he told the deputy head of the detention centre or, rather, Mr. Tolbert let the deputy head of the detention centre know, the Deputy Registrar, and he said you were aware of the situation, had been informed of it, and that despite that, regardless of my state of health, your order was that I be brought into court here today.

JUDGE ROBINSON: Let me stop you again, Mr. Milosevic, to explain the basis on which you are here. The report from the cardiologist, which I read out, clearly stated that it would be proper for you and not inimical to your health for you to be brought here for a hearing to ³²¹³⁹ discuss administrative matters. Continue.

THE ACCUSED: [Interpretation] I understand fully what you're saying, but what I don't understand, Mr. Robinson, is that you do not understand what I'm telling you here and now, and that is that the medical examination of this morning strictly prohibited my appearance, and this morning's medical examination is the latest one, and the latest information rather than the report of last week. And the report I received from the deputy head of the detention centre was that you had been informed of the medical report and by the by, as you have read everything about this, let me say that my diastolic blood pressure is 125 as of this morning and that the doctor was categorically opposed to me being brought into court here today. He was told you have been told and nonetheless you ordered me to be brought into court here today. I'm wondering now who it is who afraid of my good health when it comes to the start of my defence case, my half time, and whether it is clear to you that through your measures, the measures and steps you have taken, that you have directly and systematically made my situation worse. You have not taken into account either the decision of my physician to limit my work in court to three days a week, nor did you take into account the report by your own services with respect to the 50-day time period of leave, and it seems that I am responsible for adhering to the reports written out by the physicians.

You have thus decided to bring your own ruling on biology, on medicine, and all other matters, let alone the reshaping of history which you have been doing for a long time. But you have decided to give your ^{32140 BLANK PAGE 32141} own rulings in science this time. And let me tell you, Mr. Robinson, in the history of mankind, this kind of ruling and decision making and passing sentence is only something we know from the times of the Inquisition in the Middle Ages, never before and never after. Therefore, I really don't understand that despite this categorical protest from the physician you nonetheless gave orders that I should be brought into court at all cost, and that on the basis of a finding which was made known to you which was negative, highly negative, and which therefore must have been grounds and reason for you not to demand that I come in to court here today.

Therefore, Mr. Robinson, the fact that you have brought me into court is not based on legal reasons. And I've already said here once that what is happening here has nothing to do with the law at all. It is not in the realm of the law but in the realm of politics and the media. You cannot quote a single legal ground for ignoring the medical examination conducted this morning. You could have said that there should be no further medical examinations, quite simply, if you wanted to do what you have done.

Therefore, I should like to conclude by saying the following: My health situation has deteriorated and it is the direct result of your refusal to enable me to get my health back. And this can also be concluded from Dr. van Dijkman's letter, who says that my condition -- my poor condition can repeat itself because I'm not given adequate time to rest. Adequate time for my recuperation is certainly not these 10-odd days. It is quite certainly a longer period of time, especially if we ³²¹⁴² bear in mind the fact that you have set deadlines which demand that I work very intensively to adhere to them. I, for my part, will of course do my best for the truth to be heard here regardless of all the steps that you have taken, and your actions here today is a classical example of maltreatment of prisoners, the physical maltreatment, in fact, of a prisoner.

JUDGE ROBINSON: Thank you, Mr. Milosevic. Before Mr. Kay makes his comments, I just want to say two things: To stress once again that you're here on the basis of Dr. van Dijkman's report on Friday, the 2nd, which clearly stated that there are no objections to your discussing the administrative sides of the case. We are not in possession of any other report which says to the contrary.

The second matter is I think you made a reference to the time that you lost during the three-month period that was given to you. We are in possession of the Registrar's report which we had asked him to produce on this matter. We thank the Registrar for his report. It does indicate that you lost some time, that you did not have the full benefit of the three-month period due to ill health. The Chamber takes this into consideration and will find an appropriate time to compensate you for the loss.

Mr. Kay.

MR. KAY: Dealing with -- with one matter. It was brought to my attention a few moments ago that there was a problem with him entering court this morning, and a doctor was attending him, and I don't know the full details but it's just a report given to me was concerned, ³²¹⁴³ notwithstanding the letter dated the 2nd of July, about his attendance this morning. The letter dated the 2nd of July stated Mr. Milosevic was fit enough to deal with administrative matters - and we all understand what that means in the context of the case - rather than more stressful events. That was the situation on the 2nd of July, the Friday. But it seems that his condition may have become worse since that report was initially written, and I understand they conducted a test this morning and a doctor saw him to consider his position.

Two issues are arising at this stage. One is the fitness of the accused to present his defence case at this time; and secondly, his fitness to stand trial at all, and that matter as yet has not been considered as I read the medical reports which have been concerned with more immediate issues of health.

All of us involved in this trial since it began in February 2002 will have been aware of the condition of his health since the trial started and the medical reports which were at first not detailed as to his background, that were subsequently ordered, that advised the Court of his underlying state of health and condition and fitness for work. It's clear, in our submission, that that condition has deteriorated over the last 18 months and one needs to consider a year ago what the condition was then and the interruption to the trial that the Court experienced and in this year the continuing decline in health which has been more pronounced. In many respects, the time we've had since January, where we've only had a few court appearances, has not been so stressful for him as in the previous year when we had a large number of court attendances, yet it's ³²¹⁴⁴ quite clear over the last five months that his health has been gradually declining. And it may well be that the Court is at the stage now of having to consider that as a distinct issue on this trial as to his very fitness to stand trial at all.

Those are the observations of the amicus on that point. On a separate matter regarding the commencement of the Defence case, we put it simply this: That he is plainly not fit enough this week, and to commence his case he would need, obviously, a period of time to make up for the lost two weeks or so when he's been unfit to deal with case preparation. That obviously has an impact on the trial schedule. It can be calculated and worked out, but it seems to us that it should be subject to review by the medical experts, in particular the consultant cardiologist who is treating him at the moment.

That's all I have to say on those two distinct areas if -- yes, Your Honour.

JUDGE BONOMY: Mr. Kay, one possibility that occurred to me in relation to the purpose of today's proceedings, which was initially to have the opening statement, was that that might be presented in written form to avoid any further stress being imposed on Mr. Milosevic by requiring him to present orally an argument. Is there any particular reason why that course could not be adopted and perhaps make -- some progress could be made? The Tribunal -- the Chamber could read the opening, and indeed it could be made public.

MR. KAY: Yes. Unless it had any confidential areas, such a document would normally be in the public domain as the filings in the case ³²¹⁴⁵ are.

In terms of content, it's always far easier and quicker to speak than it is often to write these things, and having just spent a great period of time over the previous six months dealing with the Rule 98 motion, which hundred pages took us a great deal of time and effort. It may be that such a document takes far longer to prepare than the day it takes to deliver.

JUDGE BONOMY: I made the suggestion only on the assumption that it might already be available.

MR. KAY: Yes.

JUDGE BONOMY: Bearing in mind how the earlier statement made by Mr. Milosevic was presented --

MR. KAY: Yes.

JUDGE BONOMY: -- it clearly was written out in substantial detail.

MR. KAY: Yes. I don't know whether it is available. I haven't seen such a document. All I can do on the general issue is mention the time taken to deliver it. It may be that that prevents other work being done.

JUDGE BONOMY: Thank you.

MR. KAY: Your Honour.

JUDGE ROBINSON: Thank you, Mr. Kay. Mr. Nice, and in light of the report which was apparently made this morning but which the Chamber has not received, I would try to make this hearing as brief as possible.

MR. NICE: Your Honour, we of course had no knowledge of any ^{32146 BLANK PAGE 32147} report this morning. The latest report we had was the report of the 2nd of July from Dr. van Dijkman.

Observations on what's been said this morning: Any deterioration in the accused's health may now quite clearly be traced in whole or part to his conducting the case himself. That is really reflected in the penultimate sentence of the report of the 2nd of July where the doctor forecasts a rise in blood pressure after a short period of time once he resumes participation in the trial.

JUDGE ROBINSON: You're referring to the last two sentences.

MR. NICE: Yes. The last couple sentences but in particular the penultimate one, which says: "But I expect the blood pressure to rise again after a short period of time."

JUDGE ROBINSON: Yes. I think clearly that is the most significant part of the report.

MR. NICE: Your Honour, the Court -- may I say I respectfully adopt His Honour Judge Bonomy's observations about the use of a written opening statement should one exist or be capable of being produced in short order.

The Prosecution has on several previous occasions generally drawn to the Court's attention the possibility of imposing counsel. It's a matter which the Prosecutor herself, with her much wider experience of the imposition of counsel in the civil system that she has than some of us from the common law system have, has been particularly concerned that this should be pressed, aware from the earliest moment of the risks of it not being done. In our submission, the time has now come when it is ³²¹⁴⁸ essential, if this case is to be properly concluded and within a reasonable period of time, that counsel is imposed to assist this accused in part in presentation of his case.

Our first suggestions would be as follows: That of course he would be involved in the preparation of witnesses but that the taking of witnesses in court, in order to save him from the stress that that will impose on him, could and should be done by counsel imposed. We would invite the Chamber to consider making an order or announcing a decision if it's with us on this, that counsel will be imposed, giving the accused the first option of nominating who it should be, and it could be one of his associates. Were he to decline, it would be possible for the Chamber to consider imposing counsel from one of those who has thus far been engaged as an amicus in the case because of their knowledge of the case. And again, were the Chamber to take that view, it could leave for the accused the choice of which of, I think it would be the three, if one includes Mr. Tapuskovic, who represented him for the majority of the case. But without the imposition of Defence counsel --

JUDGE ROBINSON: He was an amicus. He didn't represent him.

MR. NICE: Sorry, yes, as an amicus. Without the imposition of Defence counsel, according to these last few sentences of Dr. Dijkman's report, we are going to be in the extremely unsatisfactory position of facing the accused having recurring ill health and a regularly fractured timetable with no certainty of a sensible and reasonable conclusion date. May I add to the proposals I've just made this possibility arising from the Chamber's own order: It may well be possible for there to be a ³²¹⁴⁹ live television link established between this court and the Detention Unit. If it is possible for that to be put into place, why then the accused, either generally or from time to time, could, having prepared witnesses or been involved in the preparation of witnesses himself in the Detention Unit, remain there while the trial is conducted, witnesses being called by counsel imposed and cross-examined in his effective presence because the videolink or the live television link would enable him to see exactly what is going on.

But, Your Honour, this is, I know, a proposal to which we return and I know it's been rejected, but circumstances are now different. It is -- we are nowhere near the position that Mr. Kay suggests, and indeed he isn't suggesting that full argument can or should be addressed on that today. This is a case that must be tried. The accused wishes it to be tried. The way it can most conveniently and satisfactorily be tried within a reasonable time limit is for there to be imposition of counsel, in part at least, for the conduct of the Defence case. Your Honour, I don't think I have anything else to say on that topic. I have one or two other observations arising from what's happened since we last met. Perhaps I can deal with those at the very end.

JUDGE ROBINSON: Yes. Mr. Milosevic, anything in reply? Mr. Milosevic --

THE ACCUSED: [Interpretation] It's all right now. Mr. Nice, at an earlier stage when he advocated that the shortest possible time be given me for the preparation, a much shorter period of time than he and his whole machinery had, presented arguments to the ³²¹⁵⁰ effect that, as can be seen, I am functioning very effectively, therefore there's no need for me to get any extension of time. Well, you see, gentlemen, in the Serbian people there is a saying "You can't have it both ways." I can't be working effectively and now be told by Mr. Nice that I need to be imposed a Defence counsel. And this is out of the question, as you know, nor will I ever agree to it. As for quoting this last sentence from the report, I'm very grateful for Mr. Nice for quoting it, because when Dr. van Dijkman says that after a certain period of time my condition might deteriorate, only confirms what I have been saying, that such a deterioration is the result of your decisions not to give me enough time for my preparation, and that is quite clear. Therefore, it is my opinion that you are duty-bound to give me adequate time.

As for my opening statement, I will certainly submit it orally, because, after all, I will present that opening statement on the basis of my notes, not on the basis of any written document. Written documents are prepared by experts, which they file. I'm entitled to make my opening statement on the day that you will set, and I hope that you will take into consideration at least some elementary biological and medical elements. It is on that day that I will present my opening statement. As for videolinks and these other suggestions, they were made earlier on. They're out of the question. I am going to examine my witnesses, and I will be present here in this room to attend their cross-examination. I have no intention of acting in any other way, and I believe that any other procedure would put me in an even more unequal ³²¹⁵¹ position than I am in now.

Therefore, you know that for months we worked normally, without any interruptions, under conditions which are -- meet certain elementary physical and physiological constraints. Gentlemen, you will always have to decide, if you accept the doctor's recommendation that I work for three days a week, that those three days should apply both for my work here in the courtroom and to my interviews with witnesses. You know that on innumerable times when I asked when you will give me time to read those 6.000 pages -- 600.000 pages, you never gave me that time, and not on the basis of the way the side opposite has done for two weeks, three weeks and so on. I will be far more modest, but such physical contact and direct interview and talk is absolutely essential. So this, too, is part of the work which has to be included in the schedule which you will determine according to your own decision.

JUDGE ROBINSON: The Chamber will consult.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, just for you briefly to mention the other matters.

MR. NICE: Your Honour, yes. The other matters are these --

THE INTERPRETER: Microphone, please, Mr. Nice.

MR. NICE: By motion dated the 29th of June, we sought relief following the accused's non-compliance with certain orders. In particular, we sought production of the names of unidentified witnesses within a short period of time, and we sought production of exhibits, in each case inviting the Chamber to impose sanction should the accused ³²¹⁵² continue in his non-compliance with the Court order, and we would press the Chamber for relief in those terms.

The second point simply relates to the sitting days for next week, and I don't know if the Chamber has given any thought to that, but for other reasons with which the Chamber is familiar, it's desirable to know which, if any, days are marked for sitting next week. The last point is this: The accused has provided, through the legal liaison officer, a list by letter from the liaison officer of the 1st of July, helpfully identifying in order the first 26 witnesses. Beside each witness is an estimated total period of time. We have sought clarification from the liaison officer as to whether those times are for examination-in-chief or whether it is intended or expected that they are times for evidence overall, including cross-examination. The times are, if I may say so, commendably short, and that's why we would seek confirmation as to whether it is total or time only for examination-in-chief. The liaison officer has been unable to help us.

JUDGE ROBINSON: Mr. Milosevic, can you give a clarification on the last matter, whether the time that you set out, was that a time for your examination-in-chief alone or a time for examination-in-chief plus cross-examination and re-examination?

THE ACCUSED: [Interpretation] For my examination-in-chief alone. But as I was unable to work, maybe I wasn't precise enough in indicating the times, and I will subsequently provide certain corrections, because I think that there may be some typing errors. But I will make those corrections with respect to the time envisaged. ³²¹⁵³ As for my efforts to be as brief as possible with witnesses, it is because I would like as many witnesses as possible to be given a chance to tell the truth in public and so that the public can follow what you call a trial here properly.

And something else, Mr. Robinson. Since Mr. Kay raised the question of time, in view of the time lost and in view of the doctor's orders, who says that I have to have a break at least until the end of this week at a minimum to avoid any unforeseen consequences, I believe that the date for my opening statement should be fixed not earlier than a month from now. I bear in mind that you have rejected all my arguments, but in view of the current situation and in view of all the elements of that situation, I feel that you should grant me this one month, including the period that I will be forced to rest, and I expect that I will have to continue that rest period even after this week. I don't believe I will be capable of beginning with the hearing of witnesses as soon as that.

JUDGE ROBINSON: I did say, Mr. Milosevic, that we have taken account of the Registrar's report which shows that you did not have the full benefit of the time given for the preparation of your defence, and at an appropriate time we will compensate you.

We'll take under consideration the submission that you -- that you just made.

Mr. Nice, I am to say that the Chamber will give a ruling shortly on your motions.

More generally, I'd like to say that the Chamber is clearly of the view that the time has come for a radical review of the trial process and ³²¹⁵⁴ the continuation of the trial in the light of the health problems of the accused. We are grateful for the submissions that have been made this morning from all parties.

[Trial Chamber confers]

THE ACCUSED: [Interpretation] Mr. Robinson --

JUDGE ROBINSON: I haven't finished, Mr. Milosevic. I was saying that we will undertake a re-examination of the trial process and the continuation of the trial, bearing in mind the health problems of the accused, which are clearly chronic and recurrent based on the most recent report from the doctor. We're going to consider these matters, and we will give a ruling. We'll make an order either today or tomorrow. Mr. Milosevic, Mr. Nice did raise one matter. I'll ask Judge Kwon to raise it with you.

JUDGE KWON: Are you in the position to reply to Mr. Nice's point that you haven't disclosed the full names of the witnesses? You disclosed more names to the Tribunal but not to the Prosecution. Do you have any say on this?

THE INTERPRETER: Microphone, please.

JUDGE KWON: Microphone, please.

THE ACCUSED: [Interpretation] I am acting in the identical manner as the other party. The other party disclosed the names of witnesses three days before they appeared sometimes. Mr. Nice has been given a sufficient number of names, and you have received more than 1.400 names. Therefore, what Mr. Nice has received, I believe, is sufficient for him and his team. And in due course, through the liaison officer, I will tell ³²¹⁵⁵ anyone who is interested the names of witnesses that I believe I should disclose. There's no reason for me to act in any other way than they have acted.

JUDGE ROBINSON: Mr. Kay.

MR. KAY: Yes. Just to assist the Judges. In the Defence witness schedule 2, the first 25 or 26 witnesses are all named, so that the Court is aware of that.

JUDGE ROBINSON: Thank you, Mr. Kay.

JUDGE KWON: But the court order clearly indicated that Mr. Milosevic should disclose all the names of the witnesses unless there are some sensitive reasons not to disclose it.

MR. KAY: Yes, subject to protective measures.

JUDGE ROBINSON: Mr. Nice.

MR. NICE: Your Honour, I would -- I adopt, of course, what His Honour Judge Kwon has said. The sanction we invite the Court to impose on the accused if he breaches in the flagrant way he's indicated he is breaching the Court's order is to disallow him from calling witnesses he does not name to the Prosecution within a further short period of time.

[Trial Chamber confers]

JUDGE ROBINSON: We'll take all these matters into consideration, and we'll give the ruling which we indicated either today or tomorrow. We are adjourned.

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Mr. Milosevic, yes.

THE ACCUSED: [Interpretation] Just a minor point; namely, I ³²¹⁵⁶ request that you look into why the deputy Detention Unit commander told me that you had been informed this morning about the doctor's report, about all the points made in that report, and that, despite that, your order was that I should be brought here, though I see from what you have said that you did not, in fact, receive any information about it. In fact, it would appear -- and of course I believe that you're telling the truth. It would appear that this report was concealed from you. So please look into the matter, who concealed it and why, because in view of that report, there would be absolutely no legal reasons for bringing me here today. So I request that you investigate this. All this was happening within the circle of your personnel, so you are in a position to establish who is manipulating facts in this unacceptable manner.

JUDGE ROBINSON: Mr. Milosevic, there was no subterfuge, and I've since been informed that the doctor who examined you this morning did so on the understanding that you would be brought here for trial purposes. He did not understand that you would be brought here for a hearing to deal with administrative matters.

Nonetheless, to the extent that it is appropriate, we will await any report from the doctor.

We are adjourned.

--- Whereupon the hearing adjourned at 12.02 p.m. sine die