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IN THE TRIAL
CHAMBER
AMICUS CURIAE
REQUEST
MOTION FOR
URGENT SPECIALIZED MEDICAL ATTENTION AND PROVISIONAL RELEASE FOR
SLOBODAN MILOSEVIC
To the Judges of
Trial Chamber III of the International Tribunal;
The ICDSM (International Committee to Defend Slobodan Milosevic), a non-profit, non-governmental organisation, seeks leave to make submissions necessary for a proper determination of the case, pursuant to article 74 of the Rules of Procedure and Evidence of the ICTY;
This Chamber has already afforded amicus
curiae status to outside counsel to assist it, stating that
it has done so as a result of President Milosevic's written
decision not to retain defence counsel, and with the objective of
ensuring a fair trial as well as a proper determination of the
case1;
The two remaining amici
appointed by the Chamber have not adequately pursued the crucial
issue of the accused's serious medical condition, nor have they
secured the basic conditions and facilities required for the
preparation of his defence;
Slobodan Milosevic is
exercising his most fundamental right to defend himself in
person, yet his health is threatened by the hectic trial schedule.
He has been exhausted attempting to attain the "equality of
arms" against a powerful prosecution determined to adduce
vast quantities of documentation of all types, large portions of
which are not relevant to specific counts in the indictments. On
November 1st, 2002, Slobodan Milosevic suffered an
episode of a rapid rise in blood pressure, due to his condition
of malignant hypertension, which has been exacerbated by long
days of hearings without appropriate rest, and accumulated months
of hearings.
The ICDSM seeks leave to
request this Trial Chamber to adjourn proceedings to provide
Slobodan Milosevic with the specialized health care he requires.
He should obtain this medical attention from practitioners
familiar with his condition, in Belgrade. The ICDSM also requests
that following Slobodan Milosevic's complete convalescence the
Trial Chamber follow the medical recommendations provided to it
by its own appointed medical practitioners. In addition, the
ICDSM requests that the Trial Chamber order the provisional
release of Slobodan Milosevic so that he may properly exercise
his right to the equality of arms in the conditions and with the
facilities required under international law. The provisional
release requested would be for President Milosevic, subject to
any conditions and guarantees deemed appropriate by the Trial
Chamber, to be permitted to prepare his trial in a non-custodial
residence in The Hague.
The facts
Mr. Milosevic is suffering from
two significant medical conditions, malignant hypertension and
angina pectoris, which have been brought to the Chamber's
attention by a medical concilium having examined him by order of
the Chamber itself. Malignant hypertension is aggravated by
stress. Untreated, the mortality rate is elevated: only 25% of
patients survive one year2.
The Chamber has ordered that
Mr Milosevic be examined. The medical practitioners appointed
accordingly provided the judges with conclusions and
recommendations with respect to the deterioration of Mr.
Milosevic's state of health as a result of the grueling trial
schedule and exorbitant effort that he is obliged to provide in
order to mount his defence.
The Trial Chamber then stated
that it would not adopt the medical recommendations "literally",
but rather, " as far as the spirit is concerned"3 . In reality, however, the trial schedule
has remained generally long, hectic, and exhausting for Slobodan
Milosevic.
In fact, pressure on the
defendant had recently increased. Until the Chamber's
announcement that Slobodan Milosevic had complained of
exhaustion, the Chamber now frequently sat for full days, having
abandoned its previous practice, following Mr. Milosevic's
illness, of sitting for shorter half-day sessions. Mr. Milosevic
was spending his lunch break in a basement with access to a
sandwich for nourishment. It would have been impossible to argue
that Slobodan Milosevic was receiving a treatment in any way
compatible to the "spirit" of medical recommendations
made to this Chamber.
The "spirit" of the
medical recommendations made to the Chamber, it is submitted, was
to reduce the stress and strain incurred by Mr. Milosevic as a
result of his overwhelming efforts to prepare and face a trial of
exceptional magnitude. To have skirted the medical
recommendations was to ignore rather than adopt their "spirit",
to have continued hearings at the previous rhythm threatened
Slobodan Milosevic's life.
The Chamber did not consider
itself bound to adopt the medical recommendations made with
respect to a potentially fatal medical condition, and the
inevitable occurred: Slobodan Milosevic was pushed to the limit
of exhaustion.
+
Slobodan Milosevic has
received over 100 000 pages of documents and 600 videocassettes
from the Prosecutor as disclosure of evidence pursuant to the
relevant provisions of the Rules. Given the massive disclosure of
evidence received by Mr Milosevic, he is now under more strain
than he was when the medical recommendations were made.
For instance, on several trial
days, Mr. Milosevic has had to choose between walking outside for
fresh air or eating a meal. Whatever option Slobodan Milosevic
chooses will be detrimental: he will attempt to prepare his trial
without having eaten, or he will prepare it without a minimum of
fresh air. Either way his rights are violated. This astonishing
state of affairs presents a serious threat to his health, and
increases his level of stress, which is a trigger of his heart
condition.
Mr Milosevic has yet to
receive specialized cardiovascular care, which he requires. The
Freedom Association has previously filed a medical report from Mr.
Milosevic's personal physician, Colonel Zdravko M. Mijailovic,
MD, PhD, who was allowed to observe the examinations of the ICTY-appointed
medical practitioners. Dr Mijailovic stated that Mr. Milosevic's
condition of arterial hypertension exponentially increased the
"risk of fatal incidents (brain stroke, acute myocardial
infarct (sic), hear (sic) arrest, …)". Dr Mijailovic
further recommended a number a number of specialized
interventions and examinations to attempt a stabilization of Mr.
Milosevic's condition.
Argument
If Slobodan Milosevic's trial and prison conditions remain unchanged, there is a real likelihood of fatality. Denial of medical care is a violation of the International Covenant on Civil and Political Rights and may constitute torture4. Hearings have been suspended since November 1st 2002, so that parties may provide recommendations to the Chamber with respect to the continuation of the proceedings.
In the instant case, a medical
opinion has been requested by, and submitted to the Chamber
several months ago. The right to medical attention enshrined by
international human rights instruments5 is a hollow right indeed if medical recommendations
are not followed by the judicial authority. It is tantamount to
affording no right to medical care at all.
It is not for the judicial
authorities to re-evaluate, modify, or otherwise tailor medical
recommendations to other preoccupations, such as the trial
schedule. The accused, under international law, has an actual
right to appropriate, specialized medical care, not only, it is
submitted, the right to a court-ordered medical examination that
a judicial authority can choose to ignore.
Slobodan Milosevic must
receive immediate comprehensive medical care and attention,
preferably from medical practitioners familiar with his condition
over the years. Only they are in a position, it is submitted, to
adequately evaluate his present state, based on known antecedents.
Medical evaluation and care provided by professionals conversant
with the patient's condition over the years is a more efficient
and effective than submitting Mr Milosevic to examinations by
medical personnel ignorant of the previous manifestations and
general evolution of his condition.
President Milosevic should be
released to the Belgrade for this purpose.
Right to defend himself
in person with adequate facilities
The ICDSM submits that the denial of adequate facilities has been a significantly aggravating factor in Slobodan Milosevic's condition of exhaustion and potentially fatal hypertension. In addition to requesting an adjournment of these proceedings so that the defendant can be treated, appropriately, by physicians familiar with his condition, the ICDSM requests that following the defendant's convalescence, he be afforded conditions in which he may prepare his defence in a manner compatible with international human rights instruments and guarantees.
Slobodan Milosevic is defending
himself, which is his fundamental right under the Tribunal's
Statute, as well as under the International Covenant for Civil
and Political Rights6.
This right is no less a cornerstone of international human rights
guarantees, it is submitted, than the right to be represented by
counsel of choice.
This Chamber, in rendering
decisions with respect to the provision of amici curiae,
provisional release, as well as an order concerning practical
facilities to the accused, has acknowledged Mr. Milosevic's
rights to adequate time and facilities to prepare his defence7.
Although these rights have
been acknowledged, they have not, in the circumstances, been
respected to the extent required by the sheer complexity and
breadth of the case against Mr. Milosevic. He is simply not in a
position to adequately prepare his defence in a custodial setting.
The stringent rules and security protocols of the United Nations
detention unit do not permit the accused sufficient time or
adequate circumstances to discuss his defence with his legal
assistants. He is subject to a prison schedule that not only is
detrimental to his health, but is inconsistent with the
preparation of a massive criminal trial, one that has grown to
include two new indictments since it began. With respect to the
new indictments, it is worth mentioning that they cover subect
matter from a decade ago. The Prosecutor, with years of
preparation, is at a disproportionate advantage.
The Chamber's March 7th 2002
Order to the Registry to Provide Report Concerning Practical
Facilities Available to the Accused has brought no
significant improvement to the inadequate facilities offered to
Mr Milosevic to prepare his trial. Although he now has legal
assistants, his right to contact them is limited. In addition, he
has received quantities of documentation of every imaginable
type; he is in no position, in the regimented custodial context,
to analyse them all, discuss with his legal assistants, and rest
as he needs to avoid a potentially fatal cardiac episode. The
prison schedule and context simply do not permit it.
Provisional Release
This Chamber has denied a request
for the provisional release of Mr. Milosevic on March 6th
20028. It is now submitted that the request
presented by the amici curiae for provisional release was
inadequately argued then, and that new facts and law should be
considered by this Chamber.
The Chamber denied the request
for provisional release for three reasons:
The arguments raised by the amici in support of their request for provisional release only take up four (4) transcript pages10, and include the following remark:
In light of this comment, it
cannot be said that the amici provided the Chamber with
the proper guidance concerning the facts and the law to the
support the request for provisional release made by Mr. Milosevic.
It is submitted that, although
accommodations have been made to provide some facilities
to Mr. Milosevic, these are at present woefully inadequate.
Although Mr. Milosevic may have the benefit of legal assistants,
if he cannot meet with them for sufficient time to prepare his
defence, his rights to a fair trial and to the equality of arms
are not safeguarded. If Mr. Milosevic is forced to choose between
getting a few minutes of fresh air and eating a meal, his rights
to be treated in accordance with the presumption of innocence12 are also not respected.
Attempts have been made to
provide Slobodan Milosevic with facilities for the preparation of
his defence by means other than provisional release. These
facilities are inadequate. The Statute of this Tribunal provides,
as a minimum right, that of "adequate time and
facilities for the preparation" of his defence13.
It may be that security
concerns and detention facility protocol are incompatible with
the type of facilities and flexible visiting time required to
prepare the defence of Mr. Milosevic. If that is the case, only
provisional release, subject to appropriate safeguards and
guarantees, can afford a fair trial in this case.
The fact that this trial has
commenced does not bar provisional release14. Given Slobodan Milosevic's state of
health and very real risk of fatality if he is to endure constant
strain, consideration must be given to granting him the right to
adequately prepare his defence in a non-custodial setting, in
which he will be free to meet his legal assistants and set his
own schedule so as not to have to choose between fresh air and
food, which would be a minimum prerequisite for the preparation
of his trial.
Provisional release, or more
precisely an adjustment in detention conditions, would be
possible within the city of The Hague. President Milosevic has
asserted that he would not flee, that he wishes to face the
injustice visited upon him and his people15 by this Tribunal. Although Mr. Milosevic did not
voluntarily surrender to the Tribunal, he has never fled. Mr.
Milosevic has only raised legal challenges and asserted his
rights to the full extent of domestic and international law.
It is submitted that a
security arrangement could easily be set, within The Hague, that
would address any potential concerns with respect to the safety
of Prosecution witnesses. There is no way that the defendant
could directly, or indirectly, influence witnesses who reside in
another country.
The Chamber does not have to
wait for Mr. Milosevic's health to significantly deteriorate, or
for him to have a potentially fatal cardiac episode or stroke
before adjusting his conditions of detention in order to
safeguard both his life and right to a fair trial. As stated by
Chamber II of the ICTY in Talic16:
" It would be
inappropriate for this Trial Chamber to wait until Talic is on
the verge of death before considering favourably his application
for provisional release and in the meantime allow a situation to
develop which would amount to what is described in the Mousiel
decision supra as being an inhumane one. This is all the more so
when, as stated earlier, detention on remand is not meant to
serve as punishment but only as a means to ensure the presence of
the accused for the trial."
It is now submitted that a
potentially inhumane situation has developed. The defendant has a
potentially fatal medical condition which has deteriorated as a
result of strain and stress incurred by the length of proceedings
as well as inadequate facilities. This Chamber has been made
aware of the defendant's condition. The ICDSM submits that this
Chamber can and must act before it is too late.
The ICDSM asks this Chamber to:
GRANT it amicus
curiae status;
GRANT an immediate adjournment of the trial for medical examinations and specialized treatment under the care and supervision of President Milosevic's personal physician, Colonel Zdravko M. Mijailovic, MD, PhD in Belgrade and any other specialist chosen by the defendant or his practitioners;
AFFORD Slobodan Milosevic with the specialized medical care he requires;
GRANT an additonal adjournment for the complete recovery of the defendant under medical supervision and care;
APPLY, with immediate effect, all medical recommendations with respect to the trial schedule;
GRANT provisional release to the defendant, Slobodan Milosevic, following his convalescence, subject to such conditions or guarantees as may be deemed appropriate; OR
VARY the conditions of
detention of the accused, Slobodan Milosevic, following his
convalescence, to a non-custodial setting in The Hague, with such
security, conditions or guarantees as deemed appropriate.
Done this 5 November 2002, in Amsterdam, The Netherlands
Nico Varkevisser
Vice-Chairman
1 Prosecutor v. Milosevic, Case No. IT-02-54-T, Order Inviting Designation of Amicus Curiae, 30 August, 2001.
2 Medical Report, March 25th, 2002, Professors Bojic, Suvakovic and Janicijevic, filed by Freedom Association, March 30th, 2002
3 Prosecutor v. Milosevic, Case No. IT-02-54-T, English-language transcripts, August 28th, 2002, p. 9042, lines 2-3.
4 Sendic v. Uruguay (Communication No. R. 14/63) United Nations, Human Rights Committee, 28 October 1981, ILR, vol. 69, 183, 193.
5 Standard Minimum Rules for the Treatment of Prisoners, (First United Nations Congress on the Prevention of Crime and the Treatment of Offenders: Report by the Secretariat) Annex I.A, Rule 22 (2): "Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals. (&)"; Basic Principles on the Treatment of Prisoners, Principle 9: "Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation." Body of Principles for the protection of All Persons under any Form of Detention or Imprisonment, Principle 25, affords the right to a second medical examination or opinion. The ICTY Rules for Detention, at Rules 29 and 30, provide the right to medical attention.
6 Statute of the ICTY, article 21 (4) (d); International
Covenant on Civil and Political Rights, art. 14 (3) (d))
7 Order Inviting designation of Amicus Curiae, supra, note 1; Decision on Accused's Application for Provisional Release, 6 March 2002; Order to Registry to Provide Report Concerning Practical Facilities Available to Accused, 7 March 2002.
8 Decision on Accused's Application for Provisional Release, Case No.: IT-02-54-T, 6th March 2002.
9 Id., p. 2.
10 IT-02-54-T, English language transcripts, February 27th, 2002, pages 1132 to 1136.
11 Id., p. 1133, lines 20 to 24.
12 ICTY Rules of Detention, Rule 5.
13 Statute, Article 21 (4) (d). See also International Covenant for Civil and Political Rights, article 14 (4) (d).
14 Prosecutor v. Brdjanin and Talic, Case No. IT-99-36-T, Decision on the Motion for Provisional Release of the Accused Momir Talic, 20 September 2002.
15 Transcripts, supra, note 5, page 1136, lines 9-12.
16 Supra, note 11.