Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3078

1 Friday, 30th May 1997

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18 (11.00am)

19 (Status conference adjourned)

20 (2.30 pm)

21 (In open session)

22 JUDGE KARIBI WHYTE: Good afternoon, ladies and

23 gentlemen. Can we have the appearances, please?

24 MR. OSTBERG: I am Eric Ostberg. I appear this session

25 with Mr. Giuliano Turone and Ms. Elles van Dusschoten.

Page 3099

1 Ms. Teresa McHenry has other tasks this afternoon.

2 Thank you.

3 MSMr. RESIDOVIC (in interpretation): Good afternoon. My

4 name is Edina Residovic, defence counsel for Mr. Zejnil

5 Delalic. With me in the defence team is Mr. Eugene

6 O'Sullivan, Professor of Criminal Law.

7 MR. OLUJIC: Good afternoon, your Honours. My name is

8 Zeljko Olujic. I am defence counsel for Mr. Zdravko

9 Mucic. Mr. Michael Greaves will not be with me in the

10 courthouse this afternoon, so that I will be responsible

11 for the cross-examination of this witness. Thank you.

12 MR. MORAN: Good afternoon, your Honour. Tom Moran for

13 Hazim Delic. My lead counsel, as the court is well

14 aware, is out of town on other business.

15 MR. ACKERMAN: Good afternoon, your Honours. I am John

16 Ackerman appearing on behalf of Mr. Esad Landzo. Ms.

17 McMurrey is in the United States for a court appearance

18 that she is required to make there. Thank you.

19 JUDGE KARIBI WHYTE: Thank you very much. Can we now have

20 the witness?

21 MR. OSTBERG: Thank you. I am going to call Witness O.

22 (Witness entered court)

23 JUDGE KARIBI WHYTE: Kindly swear the witness. Let him

24 take his oath.

25 Witness O (sworn)

Page 3100

1 Examined by Mr. Ostberg

2 JUDGE KARIBI WHYTE: You can now proceed.

3 MR. OSTBERG: Thank you very much, your Honour. Good

4 afternoon, sir.

5 A. (in interpretation): Good afternoon.

6 Q. Because of the protection you have asked for and been

7 granted I will in this courtroom address you with the

8 pseudonym O; is that okay?

9 A. Yes.

10 Q. Sir, due to what you are going to testify to in this

11 trial we cannot possibly conceal your profession.

12 Would you mind telling us what is your profession?

13 A. It is no secret. I am by profession a surgeon, a

14 trauma surgeon and orthopaedic surgeon and I can speak

15 about my profession and I hope what I say will be

16 acceptable.

17 Q. Thank you very much. Then I will address you as Dr O

18 in our conversation. Can you tell the court what kind

19 of speciality, if any, you have?

20 A. Yes. I first graduated medical school. Then

21 I specialised in general surgery and after that

22 traumatology and orthopaedics.

23 Q. Thank you. Considering the fact that many doctors

24 practise in the city where you practise, would it be in

25 any way harmful to you if you told us where you

Page 3101

1 practise?

2 A. I am working in a clinical centre in Belgrade.

3 Q. Thank you very much. It appears from the investigation

4 made by the Prosecution's office that you have examined

5 at least 24 persons who have been previously detained in

6 the Celebici camp in Konjic. Can you, without

7 revealing your identity, tell us how that happened?

8 A. I was born in Bosnia-Herzegovina, actually in Konjic,

9 and the detainees upon leaving the camp all knew of me,

10 and sought medical assistance from me.

11 Q. When I asked you how it happened, I also meant if you

12 could tell the court where they came to see you and how

13 they announced their coming. Can you tell us something

14 about that?

15 A. Yes. Since I am working at this large clinical centre

16 in Belgrade, upon being released from the camp they had

17 heard of me and they came in groups as they left the

18 camp, but some of those people knew me from before, and

19 that is why they came, and they passed on to others that

20 they would be given medical treatment by me, and that is

21 why quite a large number of the people released from the

22 camp looked me up for me to examine them and extend

23 medical aid.

24 Q. Did they make a previous appointment with your sector

25 nurse, or did they just show up at your clinic?

Page 3102

1 A. No, they didn't make appointments with my secretary.

2 They just came individually when they left the camp.

3 Q. Okay. Was it correctly stated that -- I mentioned the

4 figure 24. Is that a correct figure of people who had

5 been detained in Celebici camp that you examined?

6 A. No. That is not the exact figure. There were more of

7 them that came. I brought with me the documentation

8 for the 24. I could have brought more if the court so

9 requires. I can bring more, if necessary.

10 Q. Thank you very much, but we have this 24. I now ask my

11 case manager to give the originals of your statements to

12 the Registrar to be marked for identification, and then

13 I will show them to Dr O one by one in the order they

14 are put. The defence have been provided with copies of

15 these statements and they appear in Serbo-Croatian and

16 also appear in English translation. The court is now

17 also given copies in English translation.

18 MR. MORAN: Excuse me, your Honour. Are they planning on

19 introducing this document into evidence?

20 MR. OSTBERG: We are trying to introduce these things as

21 evidence, yes.

22 MR. MORAN: I have a few objections before it is admitted

23 into evidence.

24 MR. OSTBERG: Could we have our witness -- could we have

25 them marked and have our witness look at them before

Page 3103

1 your objections are raised?

2 MR. MORAN: That is fine. I just have some objections on

3 several things as to them.

4 MR. OSTBERG: Thank you. What I will try to do now, Dr O,

5 is to go through with you the 24 statements, and you

6 will tell the court whether you have made the statements

7 and signed the statements and seen the patient in

8 question. I will start with a patient by the name of

9 Novica Kuljanin. Do you have them before you or are

10 you still waiting for them? . We are still waiting for

11 them.

12 A. No.

13 Q. I ask the Tribunal's patience while they are being

14 marked?

15 MR. ACKERMAN: Your Honour, it is my understanding that what

16 Mr. Ostberg is asking now is merely identification and

17 that there will be no testimony about what is contained

18 in the document by this witness. With that

19 understanding I have no problem with him going ahead

20 with the identification, but if he plans to get into any

21 of the content of any of these statements, then Mr. Moran

22 and I, I think, both have objections in that regard.

23 JUDGE KARIBI WHYTE: I think he will first identify them as

24 documents coming from his jurisdiction. Later if there

25 is any need for going further ....

Page 3104

1 MR. OSTBERG: Can we do it this way, Dr O? We start with

2 number one in the English translation. The patient is

3 Novica Kuljanin. Did you examine him and sign a

4 statement concerning him?

5 A. Yes.

6 Q. Number two is a patient by the name of Ranko Ninkovic.

7 Did you examine and sign a statement concerning him?

8 A. Yes.

9 Q. Number three is Slobodan Zelenovic. Same statement

10 concerning him?

11 A. Yes.

12 Q. Number four, Radovan Mrsic. Same question concerning

13 him?

14 A. Yes.

15 Q. Number five is Radoslav Vujicic. Same question

16 concerning him?

17 A. Yes.

18 Q. Six is Vukasin Mrkajic. Same questions concerning him?

19 A. Yes.

20 Q. The seventh is Goran Djure Gligorevic. Same question

21 concerning him?

22 A. Yes.

23 Q. Number eight is Sreten Zelenovic. Same question

24 concerning him?

25 A. Yes.

Page 3105

1 Q. My number nine is Dragan Kuljanin. Same questions

2 concerning him?

3 A. Yes.

4 Q. Number ten is Ranko Zelenovic?

5 A. Yes.

6 Q. Thank you. Number 11 is Simo Zelenovic?

7 A. Yes.

8 Q. Number 12 is Sretko Sinikovic?

9 A. Yes.

10 Q. I apologise whenever I try to pronounce these names. I

11 do my best. Number 13 is Miodrag Inujundzic. Is that

12 yes also?

13 A. Yes.

14 Q. Number 14 is Novica Ivkovic?

15 A. Yes.

16 Q. Thank you. 15 is Branislav Djordjic?

17 A. Yes.

18 Q. 16 is Dragan Mrkajic?

19 A. Yes.

20 Q. 17 is Zeljko Mrkajic?

21 A. Yes.

22 Q. 18 is Branislav Gligorevic; is that --

23 A. Yes.

24 Q. 19 is Jelenko Kuljanin?

25 A. Yes.

Page 3106

1 Q. Number 20 is Duro Gligorevic?

2 A. Yes.

3 Q. You find that also. Number 21 is Janko Glogovac.

4 A. Yes.

5 Q. Number 22 is Nenad Cecez?

6 A. Yes.

7 Q. Number 23 is Bosko Mrkajic?

8 A. Yes.

9 Q. Fine. The last one is Radoslav Kuljanin?

10 A. Yes.

11 Q. Thank you very much, Dr O?

12 A. Thank you.

13 Q. What I would like to do now, your Honours, is to go to

14 the content of these statements and ask Dr O whether he

15 had made the findings in the document before signing

16 it. That will be my next question to the witness.

17 A. Yes.

18 MR. OSTBERG: Just a moment. There is an objection.

19 MR. ACKERMAN: Your Honour, at this point I would lodge an

20 objection to any testimony from this witness regarding

21 the contents of this document. The court has it before

22 it. You can look at each of these documents. It is

23 clear that in each of these documents what is contained

24 there is a medical diagnosis as a result of a medical

25 examination, where medical findings were found. This

Page 3107

1 witness will, if discussing what is contained in these

2 documents, be testifying as an expert witness. He will

3 be giving his opinions as an expert, not observations

4 that he made as a lay person. There is an order

5 entered by this court regarding notification to us by

6 the Prosecutor of who will be their expert witnesses.

7 This particular witness was never -- there was never any

8 notification to the defence pursuant to the order of

9 this court in the terms of the order of this court that

10 this witness would be called as an expert witness. We,

11 therefore, have not had the opportunity that we would

12 have had if we had received notification timely and in

13 accordance with that order to do the investigations and

14 to do the research that would be necessary to properly

15 cross-examine an expert witness on these matters.

16 Therefore, we object to this witness referring to the

17 contents of these documents. We object to the

18 admission of the documents, and we object to any

19 testimony by this witness that would be in the nature of

20 expert testimony, that is an opinion based upon a

21 medical examination, a finding based upon a medical

22 examination that he did of any of these persons.

23 MR. MORAN: Your Honour, to add to that objection, even if

24 he is allowed to testify as an expert, these documents

25 are full of things that are clearly outside of his

Page 3108

1 expertise as a physician. Specifically let us just

2 pick one at random from the middle of the document.

3 Dragan Mrkajic. I do not even know what number he is

4 but the first phrase in here is:

5 "Patient released from the Ustasha detention camp

6 from Celebici in Konjic".

7 That is clearly outside any knowledge any

8 physician would have as an expert. He clearly has no

9 personal knowledge about any of that. It is well

10 outside of any expert testimony that he could give.

11 MR. OSTBERG: Yes. May I deal with this last objection

12 first and say this is certainly why he is called as a

13 mixed witness by the Prosecution. This is a fact I am

14 going to question him about, and I maintain that this is

15 saying what the patient told him, namely where he came

16 from, is hearsay. I think the learned counsel agrees

17 that that is hearsay, but my point is that this is

18 admissible hearsay, because it has probative value and

19 it is reliable and, in my view, even if I am not an

20 expert in common law, which I have had the opportunity

21 to demonstrate many times, even in that jurisdiction

22 I believe hearsay consisting of information from a

23 doctor of what -- not being a doctor-client privileged

24 -- what a patient told him under asking for advice or

25 treatment would be admissible under the presumption that

Page 3109

1 the circumstances are such that it must be considered

2 reliable. Therefore, in so far what Dr O can tell us

3 is to be considered hearsay, it is admissible hearsay,

4 and it is reliable hearsay. It has probative value and

5 there is no prejudice against any defendant in the

6 evidence of this kind.

7 MR. MORAN: Your Honour, along that line, the first thing is

8 I do not think hearsay is a rule. If Mr. Ostberg wants

9 to debate the contents of the Federal Rule of evidence

10 8035, I will be happy to do it with him. The fact of

11 the matter is the Tadic Rule is what applies in this

12 court. Tadic says it has to be reliable and has to be

13 reliable as a statement made from medical diagnosis or

14 treatment. The statement would have to relate to

15 medical diagnosis or treatment. The fact that someone

16 has injured -- in fact, it is an a written motion

17 I handed to the court some time ago. While it may very

18 well be a statement that: "I was hit by a car" may be a

19 medical diagnosis or treatment, but the fact it was a

20 yellow car at the corner of 5th Avenue and Madison

21 Avenue in New York City is not medical diagnosis or

22 treatment. It is outside of that kind of reliability.

23 JUDGE JAN: Mr. Ostberg, all these persons he examined, are

24 they witnesses before us?

25 MR. OSTBERG: I beg your pardon?

Page 3110

1 JUDGE JAN: All these persons the doctor has examined are

2 witnesses before us?

3 MR. OSTBERG: Not all. Some are.

4 JUDGE JAN: Maybe the statement they were detained in

5 Ustasha camp would not be such a reliable piece of

6 evidence.

7 MR. OSTBERG: I did not quite --

8 JUDGE JAN: The Rule of hearsay admits only reliable

9 evidence which goes to value. Persons who are not

10 witnesses before us, somebody has said that to him.

11 That is all.

12 MR. OSTBERG: This court has already ruled that even things

13 happen to persons not being mentioned in the indictment,

14 for instance, can be heard, due to the fact they are

15 general allegations of creating conditions in this

16 camp. I would like to relate this to the counts 38,

17 39, 46, 47. Through this I am going to substantiate

18 that these people were in Celebici camp. Your Honour

19 is now referring to a name on the camp, and only Dr O

20 can tell us why he put that down and how he got it. I

21 am going to -- I bring this witness for the very simple

22 reason to show the court these people we have now heard

23 the name of have all been detained as prisoners in

24 Celebici, and this is the fact that these people were

25 brought to the witness I am going to examine. This

Page 3111

1 witness happened to be a doctor and happened to be in

2 the position to have diagnosed and helped these

3 people. So that is why he is a mixed witness, and

4 I think that his statement is to me clearly

5 admissible. I cannot see -- as I just said about

6 hearsay, it is hearsay. When a patient comes into this

7 doctor's office and says: "I am detained in Celebici

8 camp for three months and I had this and this illness as

9 a result of it", could that not be a fact that a witness

10 could give to the court?

11 JUDGE KARIBI WHYTE: Actually the main contention is not

12 that he cannot give evidence but he might not be able to

13 give evidence in a particular capacity, that is as an

14 expert on the matters which he intends to testify.

15 MR. OSTBERG: To come over that hurdle, your Honour, we have

16 sent the defence lawyers his CV and they can clearly see

17 that he is a doctor with a certain speciality and fully

18 capable of establishing through examination the status

19 of a patient. That is all I want to bring him for.

20 We have tried to get over that by giving the CV. He is

21 in that capacity an expert. I have before me, if I

22 will go on arguing, the Modern Law of Evidence, Adrian

23 Keane. On page 378 -- the title is the Modern Law of

24 Evidence -- saying:

25 "A non-expert witness", as we have seen, "may give

Page 3112

1 opinion evidence on matters in relation to which it is

2 impossible or virtually impossible to separate his

3 inferences from the perceived facts on which those

4 inferences are based. In this circumstance the witness

5 is permitted to express his opinion as a compendious

6 means of conveying to the court the facts he perceived".

7 MR. MORAN: Your Honour, if I might, a lay opinion would be

8 something like: "He smelled of alcohol. He was

9 stumbling. In my opinion he was drunk." That is a lay

10 opinion. The fact that a man's left rib has been

11 healing and shown by X-rays or that he has strong

12 palpitatory soreness on the left side of the left

13 haemothorax sounds to me a whole lot like something that

14 would go beyond a lay opinion and would require some

15 sort of special training and expertise such as medical

16 school. Also we were, in fact, provided with a

17 one-page resume on May 26th. That is the date of the

18 cover letter.

19 JUDGE KARIBI WHYTE: You have also heard the witness

20 himself. The witness has given you his credentials

21 too.

22 MR. MORAN: Actually, your Honour, I am not sure he has.

23 It does not show anything about any residency. It does

24 not show anything at all about any undergraduate

25 study. It does not show anything about any internship,

Page 3113

1 any articles that this person may or may not have

2 published. Those are the kinds of things that at least

3 I would consider important.

4 JUDGE KARIBI WHYTE: Here before us he has told us he

5 attended medical school, he graduated in general

6 surgery, traumatology and orthopaedic surgery. At

7 least we have heard that here. I know no notification

8 of the matter has been given to you earlier for you to

9 pursue it, but at least you know the area of his

10 specialisation.

11 JUDGE JAN: Have you given a copy of this document to the

12 defence earlier or are you producing it for the first

13 time.

14 MR. OSTBERG: They have had it long ago.

15 MR. MORAN: Your Honour, we have had it for -- I was handed

16 this document in English the last time this witness was

17 supposed to testify, that day or the day before, so

18 whenever that was. Because of the delays we have had,

19 it is -- I have had it a while.

20 MR. OSTBERG: That is not the whole truth, as far as I can

21 hear, because we have given the translations long

22 beforehand to all the defence, that this was a revisited

23 -- it was brought to my attention that this was not in

24 some parts absolutely accurate. Then as a service to

25 the defence lawyers we gave them a revised one in its

Page 3114

1 totality a document like the other one they already had.

2 MR. MORAN: The original one I had had five names on it that

3 were contained somewhere in these nails. I understand

4 it was provided some time ago in Bosnian, but the 24

5 names, the first I saw of them was some time ago.

6 JUDGE KARIBI WHYTE: Your objection is mainly you have not

7 been able to verify the claims of his qualification.

8 Is that your main objection?

9 MR. MORAN: No, your Honour. First, he has not been

10 designated. Secondly, he is clearly testifying as an

11 expert. At least from this document he is clearly

12 going to be testifying -- at least they want him to

13 testify outside his area of expertise to some extent,

14 and finally these documents refer to a lot of things

15 that because we have not been provided with the full

16 copy of the report, we cannot verify. For example,

17 numerous, the very first page, says X-rays enclosed.

18 The very top one, Novica Kuljanin. If there is an

19 X-ray enclosed, I cannot get a copy of that X-ray and

20 send it to an orthopaedic surgeon somewhere else and

21 say: "Okay, doctor. What does that X-ray show?" .

22 The third one, Zelenovic:

23 "X-ray of the chest shows".

24 Fourth one, Mrsic, however that is pronounced,

25 X-ray of the thorax. Next page, two X-rays. One

Page 3115

1 below that, Mrkajic, Vukasin Mrkajic, X-ray. Next

2 page, Gligorevic, X-ray. Zelenovic, x-ray of the

3 chest. Just to give the Trial Chamber some example.

4 How can I have someone else -- I do not have the

5 expertise to look at an X-ray and say this shows a

6 compression fracture of L5. I would have to hire that

7 gun. I would have to have that X-ray go to somebody.

8 That is why in January the Trial Chamber entered an

9 order about expert witnesses, designations, CVs, set

10 deadlines. That is why it was done. If this man

11 wants to give what would be a lay opinion, I have no

12 problem with that. If he has some personal knowledge

13 about what he saw at Celebici, what he saw in the Konjic

14 area, what he saw in areas relevant to this case, I have

15 no problem with him testifying about that. If he wants

16 to come in and say someone was limping, one of these

17 people was limping, that is a lay opinion. I have no

18 problem with him testifying about that, but when you

19 start getting beyond that, you start getting into the

20 area of true expertise.

21 MR. OSTBERG: Just for clarification, I cannot accept this

22 objection that this is not -- everything has not been

23 brought to the attention of the defence counsel.

24 Mr. Karabdic inspected the Serbo-Croatian originals in

25 July 1996. I cannot help that counsel are partly

Page 3116

1 speaking Serbo-Croat and partly speaking English. I

2 can do nothing about the communication between counsel

3 of different languages, but proper counsel for all

4 defendants has been given this in July or June 1996,

5 every single statement contended now in translation

6 before the learned judges. That is reality. If you

7 have miscommunication, that is not to be a burden on the

8 shoulders of the prosecution, in my opinion.

9 MR. ACKERMAN: Your Honours, there are two matters that

10 I would like to address regarding this. The first one

11 is a pure evidentiary question. I happen to be, not to

12 be self-aggrandising, the author of a treatise on Law of

13 Evidence that is widely used in Texas. When we talk

14 about the hearsay rule and the exceptions that have

15 grown up with regard to the hearsay rule in that system,

16 the exceptions are all based upon what a court there

17 would call circumstantial guarantees of

18 trustworthiness. There can be an exception to hearsay

19 if there can be a determination that that statement is

20 trustworthy or reliable, as the Tadic Decision would

21 instruct. Therefore, statements made to a doctor for

22 purposes of treatment are generally considered to be

23 reliable, because a person is there wanting to make sure

24 that the doctor has sufficient information so that a

25 proper treatment decision and diagnosis can be made. A

Page 3117

1 statement like: "I was in Ustasha camp in Celebici" has

2 nothing to do with the diagnosis of any condition that

3 person may present or the treatment which may need to be

4 prescribed for that treatment (sic), so there is not any

5 law which would support that particular statement coming

6 under a reliability standard with regard to statements

7 made for the purpose of diagnosis or treatment.

8 Now, it may be, and I am not quite certain because

9 Mr. Ostberg's representation was a bit ambiguous, it may

10 be this witness is prepared to testify that he was at

11 Celebici camp and saw all these people there. If that

12 is true, then yes, he can say: "I saw this particular

13 person when I visited Celebici camp." Then he can give

14 evidence that that person was there. If some of these

15 people are to be called as witnesses then, of course,

16 they can tell the court they were in Celebici camp, but

17 for anyone who is not going to be called here as a

18 witness, for this witness to say: "I was told by my

19 patient that he was in a camp in Celebici" is, I think,

20 extremely unreliable and should not be accepted by this

21 court.

22 Now, the second matter: ordinarily, and I think

23 without exception, when an expert witness is slated to

24 testify in a case, the opponent of that evidence is

25 entitled to all of the underlying data upon which that

Page 3118

1 expert makes his expert conclusion. In this case that

2 underlying data certainly consists of X-rays which have

3 never been provided to us. In addition, that

4 underlying data must of necessity consist of laboratory

5 tests, because throughout these reports we see findings

6 that the urine contained traces of blood. That is not

7 a finding that can be made visually. That is a finding

8 that has to be made in the laboratory. You cannot look

9 at urine and say what it is that is discolouring that

10 urine is blood. You may guess that, but you may not

11 make that as a diagnosis without a laboratory

12 analysis. So I am making the assumption that in each

13 of these cases where there is a statement that there was

14 blood in the urine that there was a laboratory test

15 which confirms that. We have not been provided with

16 any laboratory tests.

17 So the problem with this witness not being

18 designated properly as an expert and then coming here to

19 give expert testimony is that we have not been provided

20 with the underlying data upon which that testimony is

21 based. Without that underlying data, we cannot show it

22 to our own expert for the purpose of preparing a

23 cross-examination or for the purpose of calling our own

24 expert to counter what this one is saying. We have to

25 take this person's word for what he saw on the X-ray.

Page 3119

1 We have to take this person's word for what he read in a

2 laboratory test. That is not the way it is supposed to

3 work. That is not the way justice says it is supposed

4 to work.

5 Now, if the Prosecution wants to designate this

6 person -- I mean, we were talking about this almost two

7 weeks ago and they have still not designated him as an

8 expert. They gave us a CV. The CV we have today does

9 not seem to match the testimony he just gave here. The

10 CV, your Honours, is in the English translation less

11 than half a page. I am showing it to you

12 (indicating). He told us today when he began that he

13 had received specialised training in traumatology and

14 orthopaedics. If we look at the CV that is given to

15 us, there is nothing in here that says he has received

16 that specialised training. There is simply a short

17 statement at the bottom that says he is now practising

18 as a specialist in traumatology and orthopaedics. I do

19 not know if one practises in a clinic in Belgrade

20 without special training in traumatology and

21 orthopaedics or whether he has had special training in

22 trauma and orthopaedics, or where he has had the special

23 training in trauma and orthopaedics. I do not know

24 what university we may contact to say was Dr O a student

25 at that university. As far as we know, we have a

Page 3120

1 person that has just walked in out of the ozone,

2 representing himself to be a doctor, who now wants to

3 testify as an expert before this court without having

4 been designated as an expert by the Prosecution.

5 I think this is highly irregular and highly improper.

6 There may come a time, if we are furnished with the

7 underlying data upon which this person's expertise is

8 based, that the Prosecution could very well call him,

9 because then we would be prepared to conduct the kind of

10 cross-examination that would be necessary. We would be

11 prepared to have our own experts look at the X-rays.

12 We would be prepared to have our own experts look at the

13 laboratory reports to see if they agree with him. They

14 may very well agree with him but we are not ever going

15 to know that until we see that underlying data and have

16 an opportunity to examine it.

17 What could easily happen and why the rules are the

18 way they are and why we do things the way we do it, it

19 could very easily happen that this person would come in

20 here, give you his opinions without any of us receiving

21 the underlying data and then find out six months from

22 now, a year from now, two years from now, when someone

23 may have the opportunity to look at the underlying data,

24 that there is not any, that there are no X-rays, that

25 the X-rays do not show what he claims them to show, that

Page 3121

1 the laboratory tests do not say what he claims them to

2 say. If we are going to have evidence before a court

3 of this importance and a court upon which the eyes of

4 the world are focused, then it ought to be done

5 regularly and properly and in the way that justice

6 demands. Thank you.

7 JUDGE KARIBI WHYTE: Mr. Ostberg, have you any replies to

8 this?

9 MR. OSTBERG: Yes, I have the following. The simple fact

10 is that 24 persons who had been detainees in the

11 Celebici after being released go to see a doctor to have

12 observation on what is the result of the mistreatment

13 they have undergone and ask for advice to be sent on to

14 other clinics and to get help. The Prosecution got the

15 information of the existence of such a doctor. The

16 Prosecution asked the doctor to provide us with the

17 statements he has taken during looking at these

18 patients. These we sent off to our defence lawyers,

19 saying: "We are going to examine this doctor as a

20 witness to establish what he learned from these persons

21 and what he found on these persons".

22 The position now, the reactions now made to all

23 what we want to do, namely to examine this doctor and to

24 listen to him, to hear him, answer questions on

25 cross-examination and so on, to find out what did he

Page 3122

1 really see, and I believe that this is exactly what we

2 find in our statute, something of probative value. All

3 these technical obstacles should be weighed against the

4 weight this probative value would have. I reiterate

5 myself in saying they are given to a doctor in the

6 situation of patient-doctor. They are by their nature

7 reliable. They stand the reliable test. They are

8 probative and the weight of the evidence is to be found

9 out by these learned trial judges. That is all.

10 JUDGE KARIBI WHYTE: My understanding is that they are

11 questioning your compliance with the rules about

12 designation of an expert.

13 MR. OSTBERG: Yes. My answer --

14 JUDGE KARIBI WHYTE: Whether you have actually done so and

15 what the effects will be on non-compliance with Rule 5.

16 MR. OSTBERG: That is correct, your Honour.

17 JUDGE KARIBI WHYTE: Look at Rule 5 of our rules.

18 MR. OSTBERG: I know, your Honour. Putting him on the

19 list, I saw him as a mixed witness to facts and being an

20 expert, and I tried to combine these two and combined it

21 with what my experience of matters like this in my

22 former practice in the Scandinavian countries and found

23 this was a proper way of doing it. Maybe I therefore

24 did not follow this expertise Rule. The word was

25 "expert" in the list of witnesses, that he was an

Page 3123

1 expert as a doctor, but the formal way, as your Honours

2 are now -- indicates, may not have been followed. That

3 is true. I tried to re-do that in a way by supporting

4 his statements to them in very due time and then to

5 support my opponents with --

6 JUDGE KARIBI WHYTE: Try and look up Rule 5 of our rules

7 about the effect of non-compliance.

8 MR. OSTBERG: Yes, I have read this, your Honour. My

9 answer to it is these objections have not been raised at

10 the earliest opportunity. I cannot find it affects any

11 principles of fairness or has occasioned miscarriage of

12 justice.

13 MR. MORAN: Your Honours --

14 JUDGE JAN: What does Ustasha mean?

15 THE INTERPRETER: Microphone please, your Honour.

16 MR. OSTBERG: I have no translation to it. I know it is

17 used as a degrading name on warriors from the former

18 Yugoslavia. It is for our witness to explain why this

19 expression appears in a statement. I cannot give any

20 explanation to that.

21 MR. MORAN: Judge Jan, maybe I can help you with that.

22 Ustasha were Croats who were members of a political

23 party during the Second World War who were very closely

24 allied with the German occupiers of the former

25 Yugoslavia. They have a reputation -- would this be

Page 3124

1 fair -- of being very closely allied with the Nazis --

2 is that a fair assessment -- during the war.

3 JUDGE JAN: I thought Ustasha was a court organisation, if

4 I remember correctly.

5 MR. MORAN: No, your Honour. As I recall, it was a

6 political party that was again -- it is a pejorative

7 term. It is a very pejorative term, your Honour, in

8 this context.

9 MR. OSTBERG: Linked to violence, linked to violence, but

10 I cannot give any explanation.

11 JUDGE KARIBI WHYTE: Do you wish to make any contribution?

12 12 MR. OLUJIC: Yes, your Honour. I fully agree with my

13 colleagues. I would just like to clarify this element

14 of complete lack of the ontology and the rules of

15 medicine. It is obvious from the case histories in

16 these papers here. It is obvious (redacted)

17 not take the personal details of the persons who were

18 examined.

19 MR. MORAN: Your Honour, I think we have to redact something

20 at this point. There was a name mentioned --

21 MR. OSTBERG: Please, please.

22 JUDGE KARIBI WHYTE: Let us explain to Mr. Olujic. I think

23 you do not mention the names. The witness here is

24 known as Dr O. That is all we refer to in here



Page 3125

1 MR. OLUJIC: Yes, I apologise. So there are no personal

2 details here of birth next to the patient's name. For

3 instance, patient number 1 could have been born last

4 year, five days ago or 80 years ago.

5 Second point, it is absolutely impossible that the

6 witnesses, that all the victims, patients described here

7 who went to see Dr O, it is impossible that all of them

8 could have said that they had come from Ustasha camp.

9 It is completely impossible. Anyone who is familiar

10 with the situation in former Yugoslavia is, of course,

11 aware of that.

12 JUDGE KARIBI WHYTE: We will rise for a few minutes and

13 make a ruling when we come back.

14 (3.25 pm)

15 (Short break)

16 (3.40 pm)

17 JUDGE KARIBI WHYTE: The Trial Chamber has considered the

18 matter very carefully and we think we would allow Dr O

19 to give evidence, but subject to certain safeguards and

20 conditions. The Prosecution must supply the defence

21 with all the particular annexures, X-rays and all the

22 tests in which you were involved in the reports. They

23 also must give the complete curriculum vitae of Dr O and

24 would postpone cross-examination on Dr O when the

25 defence has verified these things, because the defence

Page 3126

1 might not be able to go into full cross-examination of

2 these things when all these facts are lacking, but Dr O

3 can give his evidence now, but subject to the objections

4 of the defence. That is the decision of the Trial

5 Chamber.

6 MR. OSTBERG: Thank you, your Honour.

7 MR. ACKERMAN: Your Honour, before that happens, is it

8 possible that I may enquire of the witness one or two

9 questions just to make certain that what the Trial

10 Chamber has just ordered is a possible accomplishment?

11 That is are the X-rays and the lab tests even available

12 any more, or ask Mr. Ostberg to make -- to establish

13 that.

14 JUDGE KARIBI WHYTE: Definitely that will be very relevant

15 for any of those steps, if they want those documents

16 admitted.

17 MR. ACKERMAN: If they are not available any more, it is

18 impossible for the court to order them for handed over

19 and makes it impossible for us to do a

20 cross-examination.

21 MR. OSTBERG: This will be our first question to establish

22 this fact.

23 Dr O, in your statements you have, as already

24 indicated by some of the defence lawyers, said that you

25 took X-rays and you took blood tests and other

Page 3127

1 laboratory tests. Are the documentation of these

2 undertakings from your side available and can they be

3 produced?

4 A. Each finding referring to X-ray and laboratory tests,

5 which is normal for examinations of this kind, because I

6 am not a layman, as the defence counsel has said, but I

7 cannot only distinguish whether a patient is limping on

8 his right or left leg -- my grandmother can ascertain

9 that. Therefore, there is the documentation, but each of

10 those patients has that documentation. Wherever an

11 X-ray is mentioned and the MG, of course defence counsel

12 does not understand what that is, because he is not a

13 doctor, just as I am not an attorney and that is why

14 I cannot interfere. MG is a special test or finding --

15 MR. OSTBERG: Can we stick to the X-rays first. If X-rays

16 are taken, do you attach that to a file for these

17 patients and keep it in your clinic? I did not quite

18 understand what you said. Did you give the X-rays out

19 to the patient to take it away with him, or what?

20 A. Let me explain.

21 JUDGE KARIBI WHYTE: Let us get our bearing. Are the

22 results of these tests and X-rays available? That is

23 the thing the defence wants to know, whether they are

24 available.

25 MR. OSTBERG: Are they available?

Page 3128

1 A. Those X-rays are in the hands of the patients as well as

2 the laboratory's test findings as well as all other

3 tests, because I am not able to keep the files on

4 patients who are not regular patients of my clinic and

5 to keep them in the archives.

6 Q. Would the answer then be that they are not available to

7 you? Would the answer --

8 A. That is correct. They are not available to me.

9 Q. That is the answer, your Honour.

10 MR. MORAN: Your Honour, based on the Ruling that was just

11 handed down not two minutes ago, we object to any expert

12 testimony from this witness.

13 MR. ACKERMAN: I think your Honours are also fully aware

14 that what has just been testified to is highly

15 irregular. I have never, ever, ever known of a doctor

16 that did not keep X-rays, laboratory tests, things of

17 that nature in his office. He turned them over to the

18 patient. I mean, that is just highly irregular and

19 very suspicious to me.

20 JUDGE KARIBI WHYTE: I am sure that is not unusual,

21 especially if the doctor has no X-ray unit. If his

22 medical centre has no X-ray unit and they might have got

23 the X-ray done elsewhere, he did not have a copy of

24 that.

25 MR. OSTBERG: The answer is given, your Honour. This is

Page 3129

1 not available to the doctor. I cannot stand up here

2 and say that I can collect all these from these

3 patients. I have no way to say that.

4 JUDGE KARIBI WHYTE: It is very difficult for them to

5 cross-check whether, in fact, any X-ray was done.

6 MR. OSTBERG: That should go to the possibility then we have

7 before we finish that I have to go through these 24 and

8 see how many patients from whom X-rays were taken.

9 There may be others that they did not take X-rays from

10 others.

11 JUDGE KARIBI WHYTE: Not just on X-rays. Blood tests and

12 the samples, all these are relevant for the purposes of

13 admitting the opinions of the tests.

14 MR. OSTBERG: May I put in answer if it goes -- I am not

15 quite in the clear.

16 May I ask you, Dr O, your answer, does that go

17 also to blood tests and other results taken outside your

18 own clinic? You said that you do not have the X-rays.

19 You gave them to the patient. Does that go also for

20 blood tests and other laboratory results?

21 A. I try to make myself clear. All results of tests are

22 given to the patients because they wanted those tests,

23 as many of them went to the States, Canada, other west

24 European countries, and they took those results with

25 them.

Page 3130

1 Q. Thank you very much. What I would ask for, your

2 Honour, is a few minutes to run through this and see if

3 there are statements left that might depend on other

4 examinations than Dr O did himself?

5 JUDGE KARIBI WHYTE: Our problem is he would be testifying

6 on things on which he cannot be examined.

7 JUDGE JAN: You see, the defence is entitled to see the

8 data upon which the expert has based his opinion.

9 MR. OSTBERG: Yes, yes, yes, yes. What I am hinting at is

10 the possibility that there are some statements which are

11 not based on anything but an examination in the

12 examination room.

13 JUDGE JAN: Such as -- which is --

14 MR. OSTBERG: Such as palpitations, listening to the heart,

15 seeing the patient, looking at scars and things like

16 that.

17 JUDGE JAN: That will not be expert evidence, because he is

18 seeing what he has --

19 THE INTERPRETER: Microphone, please.

20 JUDGE JAN: What he is seeing actually.

21 THE INTERPRETER: Microphone please, your Honour.

22 JUDGE JAN: He will be giving evidence about what he

23 actually saw.

24 MR. OSTBERG: He might have been examined. I cannot say on

25 this without going through the 24 cases. He examined

Page 3131

1 someone without having any extra means like blood tests

2 or laboratory tests or X-rays. That is what I want to

3 come to. Then I think it is in the ambit of the Ruling

4 of the Trial Chamber that he can give evidence to it.

5 JUDGE KARIBI WHYTE: Now let him proceed with whatever you

6 can get him to say, because with the objections still

7 standing.

8 MR. OSTBERG: I have them in mind, your Honour. Let us

9 start with if you have before you the statement you

10 wrote concerning Novica Kuljanin. Do you have it? You

11 will get it from the Registrar.

12 MR. MORAN: Your Honour, to save Mr. Ostberg some time,

13 I have been through these and every one of them shows

14 either an X-ray or a lab test of some time.

15 JUDGE JAN: Not necessarily. It says:

16 "He complains of pains all over his body and his

17 left arm in particular .... signs of lesion of mediamus

18 and ulnaris with slight contracture of fingers.

19 MR. MORAN: Then, your Honour, it says:

20 "X-ray is enclosed."

21 MR. ACKERMAN: Therefore, your Honour, it is impossible to

22 tell whether that is based upon what he saw in the X-ray

23 or what he saw with his eyes.

24 JUDGE JAN: He complains of pains all over his body and his

25 left arm. That has nothing to do with the X-ray.

Page 3132

1 MR. ACKERMAN: That is for sure. I agree.

2 MR. OSTBERG: We were allowed to continue and I will put my

3 questions in a way that has nothing to do with this

4 extra laboratory or extra tests. Then we have -- what

5 I will ask to do, Dr O, is to tell you what your

6 diagnosis is. It is in Latin and some of the defence

7 lawyers have complained that they do not read Latin.

8 Could you please tell us what the diagnosis is on Novica

9 Kuljanin.

10 MR. ACKERMAN: Your Honour, that is what we have just been

11 through. He was now asking what his diagnosis is which

12 has to be based on lab tests and X-rays. You have

13 already said, your Honours, that that cannot be

14 admitted.

15 MR. OSTBERG: We cannot make such an assessment until we

16 have heard his diagnosis.

17 JUDGE KARIBI WHYTE: Actually, strictly speaking, all these

18 tests could not be admitted until after

19 cross-examination and you can verify it to be consistent

20 with the examination. He will just give his evidence

21 and then you would challenge it from all he has been

22 asked. If he is unable to supply you with the facts,

23 then that evidence cannot be substantiated.

24 MR. ACKERMAN: I want to make sure I understand, your

25 Honour, the Ruling. It is my understanding that we are

Page 3133

1 not to cross-examine until the Prosecutor has supplied

2 us with whatever X-rays and lab tests that can be

3 found. It seems to me until we know what X-rays and

4 lab tests can be found --

5 JUDGE KARIBI WHYTE: Until you are able to check that.

6 MR. ACKERMAN: I understand, but it seems to me until we

7 know that this person's testimony should not be given,

8 because then you will be hearing testimony that we are

9 incapable of cross-examining because we do not have

10 those things.

11 Now, I understand that what Mr. Ostberg proposes to

12 do now is have the witness sit here and say: "Patient

13 Kuljanin said he had pains all over his body and his

14 left arm in particular." I'm not sure that gets us

15 anywhere other than just wasting some time. It seems

16 to me the thing to do is thank this witness for coming,

17 let Mr. Ostberg and the Prosecution gather up however

18 many X-rays and lab tests they can gather up and get

19 them to us. Once we have had them for a reasonable

20 amount of time, then bring the witness back and testify

21 about those particular patients upon which we can

22 reasonably conduct a cross-examination, but the way this

23 has just started out after the court's Ruling: "What is

24 your diagnosis?" , the diagnosis depends upon the X-rays

25 and the lab tests. That is not a proper question.

Page 3134

1 Maybe a proper question, if the court wants to hear

2 something from this witness today, is: "What did the

3 patient tell you about his symptoms?" , not going into,

4 I hope, the Ustasha camp in Celebici part, because

5 I think that is not admissible in any event.

6 JUDGE KARIBI WHYTE: Actually your position is a very

7 difficult one, because in order to support any of the

8 things being put forward here you must have the

9 supporting data. You do not appear to have.

10 MR. OSTBERG: I do not have them and I cannot promise even

11 to be successful in gathering them.

12 JUDGE KARIBI WHYTE: In any case he cannot give evidence of

13 what is in here. He cannot give evidence of what is

14 stated in the documents.

15 MR. OSTBERG: If the ruling is that is not possible without

16 this background material --

17 JUDGE KARIBI WHYTE: No evidence is complete except after

18 cross-examination.

19 MR. OSTBERG: That is true.

20 JUDGE KARIBI WHYTE: We merely wanted to give opportunity

21 to test the veracity of those things, if, in fact, they

22 do exist. If they do not exist there is nothing on

23 which they can be tested.

24 MR. OSTBERG: That is true.

25 JUDGE KARIBI WHYTE: I do not see how you can continue when

Page 3135

1 you are quite sure that there are no other documents.

2 MR. OSTBERG: Just a second for consultation. (Pause.)

3 What I can do, your Honours, is, as far as I can see,

4 only to question the witness on what -- on the meeting

5 with the patient in question, what he could see on the

6 patients in question without relying on this background

7 tests that has been contested, and even I find the

8 ruling encompassed the possibility for me to ask the

9 question: "What is the meaning of the Ustasha detention

10 camp?", etc. I rely again on this case law which

11 I brought forward that a non-expert witness and mixed

12 witness can rely on his expertise. He cannot separate

13 these two issues from each other. He can say: "This

14 patient came into my office. He told me what he has

15 sustained and what is his symptoms and then was given

16 advice." I would stay away from any questions

17 pertaining to the results based on -- diagnosis based on

18 X-rays or blood tests, etc.

19 JUDGE KARIBI WHYTE: Mr. Ostberg, one of the objections is

20 his credentials as a surgeon, as a doctor. That is

21 even doubted. They do not have the particulars to

22 cross-check what is being claimed. Whatever your views

23 are, they are entitled to know and they deserve to see

24 those things.

25 MR. OSTBERG: In that I think the witness himself can remedy

Page 3136

1 that in examination.

2 JUDGE JAN: I am not sure how that is going to help you.

3 We have evidence that detainees were beaten before they

4 reached Celebici camp mercilessly at the time of their

5 arrest and much time has elapsed between their release

6 from the camp and their examination. So one does not

7 know at what stage they received these injuries. We

8 are more concerned with what happened inside the

9 Celebici camp. So I do not know how this is going to

10 help you.

11 MR. OSTBERG: Of course. In my legal system this witness

12 would be called a support witness.

13 JUDGE JAN: A support witness. The support must be

14 indicated towards the main evidence.

15 MR. OSTBERG: Linked to the place, linked to what happened,

16 linked to the counts in the indictment, etc, but a

17 support witness.

18 JUDGE JAN: I asked you right in the beginning are these

19 witnesses going to appear before us and you said no.

20 MR. OSTBERG: I did not say no. I said some are. Some

21 have and some are to.

22 JUDGE JAN: Confine yourself to those persons whose

23 evidence you want to support instead of taking all

24 this. Refer to the statement.

25 MR. OSTBERG: I can do that, but then I have to go into

Page 3137

1 closed session, because these witnesses, I think all of

2 them are protected.

3 JUDGE JAN: Fair enough.

4 MR. OSTBERG: I can do that in closed session, of course.

5 JUDGE JAN: Then in that case it will be supporting

6 evidence, but I do not know if the main evidence is not

7 there, what are you going to support?

8 MR. OSTBERG: We are thinking about five persons.

9 JUDGE JAN: You can do it in closed session.

10 MR. OSTBERG: Then I will have to ask your Honours to let me

11 go into closed session, because these witnesses have

12 been given protection.

13 MR. MORAN: Even if this is supported evidence, it still has

14 to be based on something. The fact that I presume this

15 man can testify that witness whoever came in and had a

16 --

17 JUDGE JAN: Mr. Moran, if there is evidence of a person

18 saying that he was maltreated inside the Celebici camp,

19 the doctor can come and say: "Yes, he came to me and he

20 was complaining of all these injuries he received."

21 That probably would be supporting evidence.

22 MR. MORAN: I think he can probably testify that far. I do

23 not think he can say "so and so said he was in Celebici

24 camp and this, that and the other." He can say: "The

25 guy came in and had a black eye", that type of thing.

Page 3138

1 JUDGE JAN: I think that will also be supporting

2 evidence. He goes to his doctor and says he was in

3 that camp. That would probably be admissible to that

4 extent.

5 MR. OSTBERG: Well, I would confine myself --

6 JUDGE JAN: Right in the beginning I asked Mr. Ostberg if

7 any of these persons was appearing as a witness.

8 MR. MORAN: I think I count five on his witness list. By

9 the way, noone has ever said that someone who said he

10 was in Celebici camp was not there. That has never

11 been an issue before the court. So I do not know how

12 relevant that is.

13 JUDGE JAN: Let us see what it is.

14 MR. OSTBERG: If we go into closed session, I will confine

15 myself to put questions about these five persons.

16 Thank you.

17 MR. ACKERMAN: Your Honours, I think we now come down to an

18 issue of what is really the best way to proceed at this

19 point. It looks to me like where we are going now is

20 that we are going to take a little bit of testimony from

21 this witness at this point, which will not be

22 cross-examined, and then bring him back at some future

23 date and take more direct testimony from him, which then

24 would be subject to examination, and we were talking

25 about dribs and drabs yesterday. It may not make sense

Page 3139

1 to present testimony in that kind of a drib and drab

2 way. It is also not real late in the day but it is

3 somewhat late in the day. It seems to me what makes

4 sense both for the expediency of this court and for the

5 continuity of what we are doing here that we simply

6 excuse the witness at this point until the matter of

7 what is available in terms of tests and X-rays has been

8 resolved. He is obviously going to have to come back

9 anyhow. At that point it can all be done in one whole

10 part rather than the dribs and drabs that we seem to be

11 moving into at this point. That is just a

12 suggestion. It is not an objection.

13 JUDGE KARIBI WHYTE: It is a fair suggestion, because

14 initially we thought perhaps these materials providing

15 the data might be found, so that it makes it easier for

16 the defence to determine how to tackle the

17 cross-examination, but if they are not there at all,

18 I begin to wonder the wisdom of even postponing, because

19 if they are not there at all, whether you postpone or

20 not, you still would not find them: I do not know what

21 he was coming to do when he knew those things were not

22 part of the evidence he was coming to give.

23 MR. OSTBERG: That is true. (Pause). Your Honours, in the

24 circumstances what I have left to do is treat him

25 exactly as a fact witness and just ask him of the visits

Page 3140

1 of these persons.

2 JUDGE KARIBI WHYTE: And you will forget him as an expert

3 witness.

4 MR. OSTBERG: Then I forget him as an expert witness.

5 I use him as a fact witness.

6 JUDGE KARIBI WHYTE: That is acceptable.

7 MR. OSTBERG: Then, Dr O, maybe we can have some answers and

8 the answers would be of not the kind of your examination

9 of these patients that visited you, but to the fact if

10 and when they came to you. I start again with Novica

11 Kuljanin. Do you remember this person?

12 A. I remember Novica Kuljanin just by his diagnosis that

13 I wrote down. As far as this specific case is

14 concerned in order to show what the situation was really

15 like to the Trial Chamber, no X-rays were made in the

16 case of Kuljanin nor lab tests, except for the MG.

17 This is the kind of test which I already explained what

18 kind it was. As for the diagnosis, he had a gunshot

19 wound to his left --

20 MR. OSTBERG: Just a moment. We should, due to the ruling

21 of the court, stick to the fact of the visit of him. My

22 question is: what do you remember of him?

23 MR. ACKERMAN: Your Honour, I hate to keep rising and

24 objecting. I had understood that we had at least

25 gotten to the point where the Chamber had taken the

Page 3141

1 position that those who were not to be called as

2 witnesses here, that as to those persons this was not

3 supporting evidence, and now we are going there, and

4 maybe that is the wish of the Trial Chamber. I do not

5 know, but I had the impression, maybe the wrong one,

6 that we were only then to talk about the five who were

7 going to be called here as witnesses on that kind of a

8 basis.

9 MR. OSTBERG: No. I did not understand it that way. As

10 the fact witness, he can tell about every person coming

11 and telling where he had been and why he came to him,

12 the pure fact. That can be made, in my opinion, by

13 every one of them as evidence to the counts against the

14 accused.

15 MR. ACKERMAN: I think, your Honours, my earlier suggestion

16 still makes a great deal of sense. I think in order to

17 accomplish this without an objection every few seconds,

18 the Prosecutor at least needs to reinstruct his witness

19 as to where the testimony is going at this point. The

20 witness still seems to think he is here to testify as an

21 expert, and clearly he is not.

22 JUDGE KARIBI WHYTE: Ms. Residovic?

23 MSMr. RESIDOVIC (in interpretation): Your Honours, I fully

24 agree with my colleague Ackerman, because in the answer

25 to the first question made by the Prosecutor the answer

Page 3142

1 is the only kind that this witness can actually give,

2 and he said that he knows Novica Kuljanin just by the

3 diagnosis that he himself gave. Thus he goes back to

4 his expert knowledge and expert explanation. Over

5 three or four years it is absolutely normal that this

6 witness cannot testify as to how this person came into

7 his clinic and what he looked like. So I think that we

8 are really in a situation now that we are facing a fact

9 that has to be resolved just as my colleague

10 suggested.

11 MR. MORAN: Your Honour, I will disagree to an extent with

12 my two colleagues over here, my two friends. I think

13 that Dr O said something about this man had a gunshot

14 wound. I think that a lot of people other than

15 physicians can recognise a gunshot wound. If somebody

16 comes in with a bullet in his belly, I think we know

17 that if it is still bleeding and still there, most

18 people or many people could recognise that as a gunshot

19 wound, but the other side of the coin is if it would

20 have been a gunshot wound that was healed six months or

21 a year ago, that might require special expertise and he

22 may not be able to testify about that.

23 JUDGE KARIBI WHYTE: Thank you very much. I think we will

24 rise until about 5 o'clock and allow Mr. Ostberg to

25 organise himself and know the limits within which the

Page 3143

1 defects in the witness' ability to testify and allow him

2 to lead any evidence. If he is unable to do so, he

3 will tell us.

4 MR. OSTBERG: Okay.

5 (4.10 pm)

6 (Short break)

7 (5.00 pm)


9 MR. OSTBERG: Yes, your Honour.

10 JUDGE KARIBI-WHITE: We spent very valuable time getting

11 you to sort your matters out.

12 MR. OSTBERG: Thank you very much, your Honour. I do

13 appreciate that recess to enable me to do so. I know

14 exactly what I am trying to do. I am now treating Dr O

15 as a fact witness and I will put a very few questions to

16 him, and my aim with these is to tender these statements

17 for the purpose which I will end up telling you. I

18 will now ask you, Dr O, you have already testified that

19 you signed these statements. Are these records kept in

20 your normal course of business?

21 A. Yes.

22 Q. Your answer to my question was yes?

23 A. Yes.

24 Q. Thank you. Do these records accurately reflect the

25 names of the persons that came to you for treatment?

Page 3144

1 A. Certainly they indicate the names of the people who came

2 to me seeking assistance.

3 Q. Do these statements accurately reflect what the patients

4 told you in seeking treatment?

5 A. Yes. May I just make a point of clarification, because

6 the question was asked why the words "Ustasha camp" is

7 stated there.

8 MR. OSTBERG: You do not have to elaborate on that right

9 now.

10 JUDGE JAN: I just wanted to find out what the word

11 "Ustasha" meant.

12 MR. OSTBERG: You wanted an answer to that.

13 JUDGE JAN: I got the answer.

14 MR. OSTBERG: Please --

15 JUDGE KARIBI WHYTE: Before you carry on, you have other

16 statements other than the documents you tendered to us?

17 MR. OSTBERG: Yes.

18 JUDGE KARIBI WHYTE: They are what you are referring to

19 now?

20 MR. OSTBERG: What you have before you is what I am

21 referring to now. I will conclude by telling you what

22 I am going to do with them but on the way to reach this

23 point I ask now: can you please tell this court what is

24 Ustasha and clarify to us all what is meant when the

25 word "Ustasha" appears in the papers?

Page 3145

1 A. I did not make up this word. This is a word that

2 exists for a long time, but when a patient comes to see

3 a doctor, the initial contact is established through

4 conversation. Then you ask him how he feels, what he

5 has come, where he has come from. All of them stated

6 that they came from an Ustasha camp. That is their

7 statement, because, you know, there is first the history

8 of the disease. You have to find out how the disease

9 developed. Then comes the clinical examination.

10 JUDGE KARIBI WHYTE: That is outside the question. All we

11 want to know is what is the meaning of that expression,

12 Ustasha camp. That is all we want to know.

13 A. That can easily be translated. It means a criminal.

14 MR. OSTBERG: Thank you very much. Back to your

15 statements. Do these statements accurately reflect

16 what the patients told you in seeking treatment?

17 A. Of course they do reflect everything the patients said,

18 and that is what I put down.

19 Q. Thank you very much. This is as far as I want to go in

20 bringing this fact witness. I now want to tender these

21 statements for the sole purpose of showing the identity

22 of these concerned persons who came to Dr O's office and

23 to show what they reported to him, and I stay away from

24 all the medical statements made in the statements and

25 want to introduce them just for these two purposes.

Page 3146

1 JUDGE KARIBI WHYTE: Well, they should be read out

2 orally. The statements should be read to show exactly

3 what they came.

4 MR. OSTBERG: Yes. I could also. He has testified that he

5 has signed them and that the person has been there, but

6 if to reach my goal your Honours want it to be read out,

7 I am perfectly happy to do it.

8 JUDGE KARIBI WHYTE: Surely, because if you are setting

9 claims that this is what the documents themselves

10 contain, you must establish those claims.

11 MR. OSTBERG: Yes, and then again I see three gentlemen

12 standing up.

13 THE INTERPRETER: Microphone, please.

14 MR. OSTBERG: In that I stick only to what they told the

15 doctor, not the doctor's finding, not the doctor's

16 diagnosis, not the doctor's, whatever he did. Just

17 I give you the doctor's business record for all that it

18 is worth. I will read them and read exactly what they

19 stated when they came into his office without going into

20 his findings as a doctor.

21 MR. MORAN: Your Honour, I have got an objection for

22 starters that he is trying to get these things

23 introduced as a business record. To be a business

24 record, the very first thing is it has to be kept in the

25 normal course of business. I would suggest these

Page 3147

1 things were prepared in contemplation of litigation, ie

2 so it was not kept in the normal course of business.

3 MR. OSTBERG: He has asked my question.

4 MR. MORAN: Your Honour, if I could continue.

5 MR. OSTBERG: So sorry.

6 MR. MORAN: The second thing is you still have to get by the

7 reliability portion that we have testified about. We

8 talked about earlier that to be reliable, to be

9 admissible under Tadic, as something -- as a statement

10 made for medical diagnosis and treatment, it has to be

11 directly related to the medical diagnosis and

12 treatment. The fact that this person came from a

13 Ustasha camp is clearly not made for medical diagnosis

14 for treatment. If these people suffered some sort of

15 trauma, it really does not make any difference whether

16 it was a Ustasha camp or Auschwitz or whether he slipped

17 and fell in front of whatever hospital this doctor

18 practices in. The fact is that he sustained some sort

19 of trauma. That is the statement that would be for

20 medical diagnosis and treatment.

21 Furthermore, he is trying to get in the back door

22 what this Trial Chamber has already said he cannot get

23 in the front door. He is trying to basically lift

24 himself by his own boot straps and it just doesn't

25 work.

Page 3148

1 JUDGE KARIBI WHYTE: Yes, Mr. Ackerman?

2 MR. ACKERMAN: Your Honours, I see a couple of problems with

3 what Mr. Ostberg is trying to do right now. I suspect,

4 without knowing for sure, that he has had a conversation

5 with Ms. McHenry and she has told him about an American

6 hearsay exception called "the Business Records

7 Exception" and given him at least some of the steps

8 necessary to establish a business record, although they

9 have not all been given, because there are actually more

10 prongs to that process than have been mentioned so far,

11 including a record made by a person with knowledge at or

12 near the time of receiving the information which has not

13 been established but I think that does not really apply

14 in this Tribunal in any event. We are talking about as

15 a result of the Tadic Decision a pure reliability

16 standard.

17 Now, if we start with document number one that we

18 have been talking about, Mr. Kuljanin, so far to my

19 knowledge there is no evidence before this Tribunal that

20 establishes that this person was at Celebici camp. The

21 question becomes the reliability of this person's

22 statements and its relevance to anything contained in

23 the indictment before this Tribunal. We have no idea,

24 or I have no idea at least, who this person, Novica

25 Kuljanin is. I understand there was a time that the

Page 3149

1 International Committee for the Red Cross came and

2 recorded the names of persons who were confined in

3 Celebici. If this person's name appears on that list,

4 I would think that would be proper evidence that this

5 person was, in fact, in Celebici, but for this document

6 that is being offered to you now to become evidence in

7 this case without some showing of who this person,

8 Novica Kuljanin, is and he is a person whose word we can

9 take, we are just garbaging up the record.

10 The other thing that concerns me is this. If

11 there is that underlying showing of reliability and the

12 documents are only being offered for the name of the

13 person involved and the statements that that person made

14 to the doctor, then I would ask that before they ever

15 become part of this record that every other part of that

16 record be redacted by using an indelible black pen of

17 some form, because there is a danger in the future,

18 either Appellate Chamber or beyond, that someone could

19 conclude that everything contained in these documents is

20 part of the evidence in this case; in other words, if

21 what we are offering is only a portion of the documents,

22 then that is all that ought to wind up in evidence.

23 That does not waive any objection that I have to the

24 whole idea of getting them admitted as a business

25 record.

Page 3150

1 MR. MORAN: Your Honour, one other thing again with

2 reliability. I would point to just the very first one,

3 Mr. Kuljanin. On the front page this document says

4 "X-ray is enclosed." Then I would refer the Trial

5 Chamber to the transcript of today, page 68, line 11:

6 "No X-rays were made in the case of Kuljanin".

7 That goes directly to the reliability. These

8 things flat aren't reliable, judge.

9 MR. TURONE: Who said that?

10 MR. ACKERMAN: When the witness was talking about Mr. Novica

11 Kuljanin, and Mr. Moran has just pointed it out in the

12 transcript, the witness said there were no X-rays with

13 regard to this particular one.

14 MR. OSTBERG: This last point I must object to because the

15 witness said he did not have any recognition more than

16 what was in the statement.

17 MR. MORAN: Then I suggest that the Prosecution look at the

18 transcript from today, page 68, lines 11 and 12, which

19 I just read to the Trial Chamber.

20 MR. OSTBERG: Back to the point, if I am allowed to have a

21 word. I can't -- this reduction problem, I do not see

22 before a panel of learned judges and not with a jury

23 that the judges could have any troubles of seeing what

24 in a document is tendered and what is not tendered, and

25 that makes it absolutely clear what I want to do and

Page 3151

1 what I intend to do.

2 JUDGE KARIBI WHYTE: Mr. Ostberg, let me find out. What

3 actually are you trying to show in merely admitting a

4 business matter?

5 MR. OSTBERG: The business and what the persons said, taken

6 down by the doctor without -- as before, starting during

7 medical evaluation.

8 JUDGE KARIBI WHYTE: Because I do not see a distinction

9 between that fact and just the record, because all you

10 have is the address, for instance, and every other thing

11 contains mainly the opinion.

12 MR. OSTBERG: I am taking away the opinion. It is what the

13 patient told the doctor, not what the patient found

14 doing this and that using X-rays.

15 JUDGE KARIBI WHYTE: That is the problem. What is the

16 relevance of that?

17 MR. OSTBERG: That these people are coming telling the

18 doctor: "I have this and that pains. I have been

19 detained in the Celebici camp". The relevance is that

20 these are people from Celebici camp telling people that

21 they have come from Celebici camp. That makes it

22 relevant. I am quite prepared to read the portion of

23 it that I would like to tender, if it pleases the court,

24 only the portion what the patient told the doctor. To

25 start again with Mr. Kuljanin, his name is given ..

Page 3152

1 JUDGE KARIBI WHYTE: I still find it difficult to be

2 satisfied with what you are trying to do. It does not

3 help one in any way. It does not, because I do not see

4 the relevance of it.

5 MR. OSTBERG: I have tried to lay out the relevance.

6 THE INTERPRETER: Microphone, please.

7 MR. OSTBERG: Sorry. I have tried to demonstrate that

8 I see the relevance is in people from Celebici giving

9 their names, going to the doctor, telling what has

10 happened to them, that that has --

11 JUDGE JAN: Mr. Ostberg, they have not said what happened to

12 them in the camp. Look at the Doctor's opinion. They

13 have been in the camp. Then they were complaining

14 about something. They do not say they received those

15 injuries in the camp. Please refer to any statement

16 where the person examined by the doctor says that:

17 "I received these injuries in the camp." We are

18 concerned with what happened inside the camp.

19 MR. OSTBERG: Yes, of course, of course.

20 JUDGE JAN: So you must show the relevancy then. How is

21 it relevant?

22 JUDGE KARIBI WHYTE: Who is the doctor referred to?

23 JUDGE JAN: Show the relevancy. Read any report you want

24 to bring us on the record anyone who went and told him:

25 "I received these injuries inside." How is it

Page 3153

1 relevant?

2 MR. OSTBERG: If that is not considered to be implicit in it

3 when it says:

4 "Patient admitted after being released from".

5 JUDGE JAN: "After being released from." Your own evidence

6 says that these persons before they reached Celebici

7 camp were brutally treated. All the witnesses have

8 said they were beaten up. You must show the relevancy

9 of these observations to the case before us.

10 MR. OSTBERG: I cannot do that in another way.

11 JUDGE JAN: These reports do not show that, so how is it

12 relevant? We are concerned with what happened inside

13 the camp. You can get a business record of anyone, but

14 it must have relevancy.

15 MR. OSTBERG: Of course I see that.

16 JUDGE JAN: Then they were examined months after their

17 release. Maybe somebody had a fall. Somebody

18 received his injuries in some other manner. It must be

19 relevant.

20 MR. OSTBERG: Obviously, obviously, your Honour.

21 JUDGE JAN: Show me any report where any witness has said

22 that he received his injuries inside the Celebici

23 camp.

24 MR. OSTBERG: This of course, would be a question --

25 JUDGE JAN: You are dealing with a criminal case where the

Page 3154

1 benefit of any doubt goes to the accused. You must

2 show me any report that says he received his injuries

3 inside the camp.

4 MR. OSTBERG: I can do it only in asking the witness.

5 JUDGE JAN: That is what I said. Ask him questions about

6 the witnesses who are going to appear before us. Then

7 that will probably become relevant as supporting

8 evidence.

9 MR. OSTBERG: Meaning then only the witnesses to come.

10 JUDGE JAN: Because they can come and say they received

11 these injuries inside the camp. You know, the rule of

12 hearsay is subject to two qualifications. It must be

13 relevant and it must have probative value.

14 MR. MORAN: Excuse me, Judge Jan. The interpretation booth

15 is waving for you to turn on your microphone.

16 JUDGE JAN: All I was saying is the rule of hearsay is

17 subject to two qualifications. One is relevancy and

18 the other is probative value. If the other person is

19 not appearing, then how do we know they received the

20 injuries inside the camp? We have heard evidence that

21 these persons, particularly from Bradina, were brutally

22 treated before they were taken to the camp.

23 MR. ACKERMAN: Actually, your Honour, on the face of the

24 statements it certainly says virtually all of them:

25 Celebici, Konjic; Celebici, Konjic, Tarcin; Celebici,

Page 3155

1 Konjic.

2 JUDGE JAN: All they are saying is they were released.

3 Nobody is saying these injuries were received inside the

4 camp.

5 MR. ACKERMAN: They are not restricted to Celebici. Some

6 of them deal with other camps.

7 JUDGE JAN: Some of them happened in Musala after

8 Celebici. There is evidence that Musala was bombed,

9 was shelled and some people received their injuries

10 there.

11 JUDGE KARIBI WHYTE: Actually, as I have said, I am not

12 satisfied with the document having any reference to what

13 you are claiming it does have. I see even no

14 continuity on the document. I see nothing.

15 MR. OSTBERG: What I can do, your Honours, is to ask to go

16 into private session and go through the five names of

17 the witnesses.

18 JUDGE JAN: Please do.

19 MR. OSTBERG: Thank you.

20 JUDGE KARIBI WHYTE: Those are witnesses -- those witnesses

21 are not before us yet.

22 MR. OSTBERG: One has been before your Honours and I will

23 start with him.

24 (In closed session)

25 (redacted)

Page 3156













13 Pages 3156 to 3167 in closed session