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Judges Rule Mladic Must Attend Trial

Defendant claims he is too ill to be present at proceedings.
By Rachel Irwin
  • Ratko Mladic in the ICTY courtroom. (Photo: ICTY)
    Ratko Mladic in the ICTY courtroom. (Photo: ICTY)

A continued disagreement over Ratko Mladic’s state of health and how often the trial should convene threatened to derail the proceedings against the former Bosnian Serb army commander this week.

Citing illness, Mladic was absent from court for most of the day on September 9 and did not show up at all on September 10. The accused did not waive his right to be present, but his lawyers said they would not willingly participate in the trial until Mladic felt well enough to attend, emphasising that it should not go on without him.

However, according to presiding Judge Alphons Orie, a medical examination found the accused to be “very stressed” but otherwise fit to attend proceedings.

The doctors also reiterated their recommendation that the trial sit for four days per week instead of five, with a day off on Wednesdays. Mladic’s defence lawyers have twice made this same request to the chamber, but the judges declined to grant it. In July, they said the opinion of the medical officer in the detention unit was “subjective” and the “strength of the medical reasoning supporting the recommendation for a reduction of the trial sitting schedule is low”.

Judges also questioned whether it would be beneficial to sit for fewer days a week and thuse prolong the trial.

Mladic’s defence has appealed against that decision, but the issue came up on September 10 during a tense exchange between Judge Orie and Mladic’s lead lawyer, Branko Lukic.

“It was reported to the chamber that you were yelling at a representative of the registry. You expressed to her that the chamber – and me personally - are killing your client,” Judge Orie told Lukic.

“Then, in the same mood, apparently you said that you would not further come to court unless we would accept the four day [per week] schedule. You expressed that Mr Mladic was getting unwell more and more. And after all that, you apologised to a representative of the registry and made gestures that suggested this was how you would have to address her in the presence of the accused. Is this accurate?” Judge Orie asked the lawyer.

Lukic confirmed the account, but said he did not believe that any gestures he had made were “rude” in nature.

Later, Lukic said that his client had come to court “even when he was not able to”.

“The reason was, we insisted that the trial not be interrupted… and we persuaded him in that decision… that’s why we feel responsible and that’s why [I became] angry when addressing the representative of the registry yesterday,” Lukic said.

Lukic added that “for weeks” Mladic had been unable to “socialise or watch TV. He only wants to lie down. The only time he’s active is when he’s in the courtroom.”

He said that he had talked to Mladic earlier that day, and that prison guards had to “raise him from bed” to come to the phone.

“Mladic told me… it’s not that I don’t want to, I cannot, I am in bed, I am ill, I am not able to attend,” Lukic said.

He stressed that if the trial continued without Mladic physically present in the courtroom, the defence would not willingly participate in the proceedings.

“If we are compelled to attend a trial that would continue without our client… we would be forced to request the recusal of the trial chamber. We believe that this trial, without an explicit waiver from the client, cannot continue,” Lukic said.

In response, prosecuting lawyer Peter McCloskey acknowledged the strained atmosphere in the courtroom and observed that the parties “have come to a bit of a brink today”.

“I merely propose to the court what we know to be the internationally recognised wisdom of ‘tomorrow is another day’,” McCloskey said, adding that everyone should “take a deep breath”.

He also noted the doctor’s assessment that the accused is “very stressed” but is still “fit to come to come to court”.

“These are contradictory conclusions. I think we know how dangerous stress is,” McCloskey said.

The chamber took some time to consider the matter, but ultimately ruled that the “medical reports which were presented today and yesterday establish nothing that would justify the finding that the accused is unfit, rather than unwilling to attend.

“It is the chamber who finally determines whether the accused is fit to appear, and it will do so on the basis of medical reports it receives. To the extent that the defence or accused might think it is them who makes such determinations, that would be a misunderstanding,” Judge Orie said.

He added that if the accused decided not to come to court despite being found fit, “the chamber will consider that a waiver of his right to be present. It is the chamber who controls the proceedings and not the defence.”

Judge Orie said that the trial would continue with or without the accused, barring any significant changes in the situation.

While the parties seemed poised for another stand-off on the matter, the situation was diffused the next morning when Mladic showed up in court.

The cross-examination of expert prosecution witness Richard Butler continued without incident.

Prosecutors allege that Mladic, the commander of the Bosnian Serb army from 1992 to 1996, is responsible for crimes of genocide, persecution, extermination, murder and forcible transfer which "contributed to achieving the objective of the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory”.

He is also accused of planning and overseeing the 44-month siege of Sarajevo that left nearly 12,000 people dead, as well as the massacre of more than 7,000 men and boys at Srebrenica in July 1995. Mladic was arrested in Serbia in May 2011 after 16 years on the run.

The trial continues next week.

Rachel Irwin is IWPR’s Senior Reporter in The Hague.