Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13285

1 --- Tuesday, 23rd June, 1998

2 --- Upon commencing at 10.06 a.m.

3 (Private Session)

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Page 13286













13 Pages 13286 to 13315 redacted - in private session













Page 13316

1 (In open session)

2 JUDGE KARIBI-WHYTE: Yesterday I was

3 mentioning to the Prosecution whether they would be

4 prepared to take the motion of the Defence. Are you

5 ready for it this morning?

6 MR. NIEMANN: Yes, Your Honour, we can argue

7 the matter today.

8 JUDGE KARIBI-WHYTE: Yes. Can we hear -- I

9 think it's Ms. McMurrey's motion, this question of the

10 safe conduct for Defence witnesses. Is that the one we

11 were referring to? Yes. Is that the one were all

12 Mr. Moran's motion --

13 MR. NIEMANN: It was Mr. Moran's motion. I

14 think we are in a position to --

15 MR. MORAN: Whatever the Court's pleasure,

16 as far as we are concerned. We can put in another one

17 today, just for logistical reasons, but whatever order

18 the Court wants to do it in, that's fine.

19 JUDGE KARIBI-WHYTE: Either of them, because

20 I didn't think there was any difficulty in dealing with

21 any of them. Which of them are you willing to take

22 on?

23 MR. NIEMANN: We are willing to take

24 whichever ones Your Honours want to do. When Your

25 Honours first raised it, I thought you were talking

Page 13317

1 about the motion by Mr. Moran in relation to

2 Dr. Bellas.


4 MR. NIEMANN: That was the one I was --

5 JUDGE KARIBI-WHYTE: Yes, I think we can do

6 that. Although yesterday, from what you were saying,

7 we did not think there was so much in it, except Mr.

8 Moran suggested that there was far more to it than

9 merely hitting a person with a baseball bat. If there

10 is much more than that, then perhaps you might add the

11 addition of reasons why you think he needed a medical

12 doctor for it.

13 MR. MORAN: Your Honour, there is

14 considerable evidence of not only beatings throughout

15 the -- from numerous Prosecution witnesses, but also

16 testimony about burnings and other things, plus

17 testimony about conditions in the camp.

18 Now, I agree with Judge Jan that the Court

19 doesn't need an expert to tell it that if someone gets

20 hit 250 times with a baseball bat, he is going to be

21 severely injured. But there are other instances where

22 Prosecution witnesses claimed injuries, and there are

23 other incidents where they claim things occurred

24 involving conditions in the camp.

25 As a forensic pathologist, board certified

Page 13318

1 both in pathology and forensic pathology, Dr. Bellas

2 has the training and experience to interpret some of

3 the testimony that was given, and I believe aid the

4 Court in the credibility of that just by talking about

5 the reasonable medical probability of these things.

6 Just so the Court will know, I've gone

7 through most of the transcript, and I am still going

8 through more, pulling out testimony from the

9 Prosecution witnesses and then delivering it to

10 Dr. Bellas. And I am also going to provide a disk of

11 all that I pull out to the Prosecutor, so nobody is

12 going to be surprised by anything.

13 I think that this could be helpful to the

14 Trial Chamber in judging credibility of some of these

15 witnesses, I say solely based on reasonable medical

16 probability.

17 The registry has informed me unofficially --

18 verbally that they have no problem with Dr. Bellas

19 appearing. I have not received any written

20 confirmation on that, but I'm sure that that will be

21 coming. I suspect that his testimony will not be so

22 long that it would delay the trial unnecessarily. In

23 fact, given the amount of time that your scheduling

24 order has given me, I suspect I am going to give the

25 Court some time back.

Page 13319

1 JUDGE JAN: Forensic medicine is a very large

2 subject. If you tell us the fields in which he is

3 going to cover, maybe that will be helpful.

4 MR. MORAN: Well, first, based on his

5 background, of course. Dr. Bellas was the former --

6 JUDGE JAN: That's all right, but the fields

7 that you want to cover.

8 MR. MORAN: Yes, Your Honour. Well, we want

9 to cover things like blunt trauma injury and with

10 specific in testimony. In all reasonable probability,

11 if you were hit across the bottom of the back twice

12 with a board, which is one piece of the testimony, in

13 all reasonable medical probability, given no medical

14 treatment, what would the result of that be.

15 In all reasonable medical probability, if you

16 were in a hot tin building with very -- with limited

17 water, what would the result of that be over a period

18 of months. That type of thing, Your Honour.

19 MS. McMURREY: Your Honours, I would like to

20 join in with Mr. Moran, because I believe this forensic

21 specialist would be helpful also in the Defence of Esad

22 Landzo with regard to the allegations of burns that the

23 Prosecution witnesses have told about. And also we

24 have photographs, we have medical examinations of the

25 witnesses here, and he would be able to relate those as

Page 13320

1 to what it would have been like, or what the

2 probability of those existing in 1992 or prior to

3 1992. So I believe he would be very helpful to the

4 Defence of Esad Landzo also.

5 So we join in Mr. Moran's request for this

6 forensic psychologist -- psychologist -- this forensic

7 specialist to help us also. Thank you.

8 JUDGE KARIBI-WHYTE: Any comments on this?

9 MR. NIEMANN: Thank you, Your Honours. Your

10 Honours, now we know a little more about what this

11 testimony is about. But we object to the calling of

12 Dr. Bellas, and we are submitting to Your Honours that

13 the motion should be denied.

14 We do that for this reason, that we say that

15 the evidence would be, one, cumulative and, B, not the

16 best evidence. And the reason we say that is because

17 all the way through the Prosecution case the

18 opportunity was available to the Defence, and was

19 availed of, to have Prosecution witnesses medically

20 examined. Medical examinations were carried out and

21 reports were filed and submitted to the Court, and they

22 are before the Court.

23 And what the Defence is seeking to do by this

24 motion is to call a witness to comment upon the

25 evidence. And that's all they are doing. Whereas the

Page 13321

1 medical examinations that were carried out is direct

2 evidence and the best evidence, because an examination

3 of the witnesses was done.

4 JUDGE JAN: We had these photographs on the

5 record. Don't you need an expert to explain those

6 photographs to us?

7 MR. NIEMANN: Well, I wouldn't have thought

8 so, Your Honours. I would have thought that two things

9 may have been helpful with more information as

10 required. One is for an expert -- the doctors that

11 actually carried out the examinations to come along and

12 to explain, A, why there is an absence of, say,

13 bruising at this stage or whatever, or why there isn't

14 extensive scarring and all of those things.

15 And this would have been very helpful if this

16 -- presumably, if this is the line the Defence wanted

17 to pursue, because these doctors carried out the

18 examination and the witnesses were here. And also they

19 would have been in a position to ask any relevant

20 questions of the witnesses, which may have been

21 assisted in this --

22 JUDGE JAN: (Microphone not on) -- did not

23 examine those doctors who took the photograph,

24 therefore, they want to produce a doctor to tell us

25 what those photographs mean.

Page 13322

1 MR. NIEMANN: But the fact that these

2 witnesses weren't examined is not something that should

3 be -- the medical examination wasn't --

4 JUDGE JAN: Let them examine the expert.

5 MR. NIEMANN: Well, if Your Honours feel -- I

6 am making my submission. I submit that it is

7 inappropriate and it will give rise to the Prosecution

8 having to pursue this matter in rebuttal.

9 JUDGE KARIBI-WHYTE: I didn't think it will

10 be of any value at all. I don't see the value in

11 merely commenting on what another doctor has examined.

12 I don't see -- if you want it as evidence, let him come

13 and say something, but definitely I think it's of very

14 little value, because much of what he will be doing is

15 post facto. The thing has happened, the circumstances

16 have changed, he is merely imagining what the position

17 would have been at that time, and it would not be of

18 any use.

19 If he is one of the doctors who examined the

20 accused persons for burns and the like, that will be

21 direct evidence. Now he would not be doing that.

22 MR. MORAN: Your Honour, just so it's real

23 clear, we are --

24 JUDGE KARIBI-WHYTE: If you insist on the --

25 and the registry is prepared to consider that to you,

Page 13323

1 they might do that. But I am only telling you what I

2 feel about the worth of that evidence.

3 MR. MORAN: Just so that it's real clear, we

4 are not going to ask Dr. Bellas to comment upon the

5 examinations of the Dutch physicians. What we are

6 going to ask Dr. Bellas to comment on is the likelihood

7 of -- well, given the testimony of the witnesses and

8 the result that the witnesses say occurred because of

9 this blunt trauma, or this other kind of trauma, or the

10 conditions in the camp, what the medical probability

11 would be of a given result.

12 Your Honour, if the Trial Chamber is going to

13 allow them to appear, I would ask one thing, to try to

14 save everybody a little bit of time and money, that we

15 pick a date certain per chance -- I would suggest the

16 Wednesday, the 8th of July, to have him appear here no

17 matter what else is happening. That's in the middle of

18 the time the Court has set aside. If we finish the

19 rest of our case, bring him in on that day, or if there

20 is another witness. Just because it's probably more

21 economical.

22 JUDGE KARIBI-WHYTE: I will consider that.

23 You say it's evidence, you tender your evidence, but it

24 doesn't mean much to what, perhaps, we have seen and

25 heard and observed the witnesses themselves. I don't

Page 13324

1 now whatever opinion he would be giving us without

2 even seeing any of them.

3 MR. MORAN: Yes, Your Honour.

4 JUDGE KARIBI-WHYTE: I think we will grant

5 it. We'll grant it, I think.

6 MR. MORAN: Thank you, Your Honour. I will

7 have him here on that Wednesday, then. And, in fact, I

8 will have him here a few days early, if the Prosecutor

9 wants to talk to him.

10 JUDGE KARIBI-WHYTE: Yes, we might be able --

11 if he can have them to change their views.

12 Are you -- I think we'll take this other

13 question of the safe conduct application thing. I

14 think that is Ms. McMurrey's application, the safe

15 conduct of some of the witnesses. I think one of them,

16 is it? One witness?

17 MS. McMURREY: No, Your Honour. The safe

18 conduct has a confidential annex, and that's why I

19 believe that maybe we should go into private session at

20 this point to discuss this.

21 (Private Session)

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Page 13325













13 Pages 13325 to 13356 redacted - in private session









22 --- Whereupon proceedings adjourned at

23 12:10 p.m., to be reconvened on

24 Monday, the 29th day of June, 1998,

    1. at 10.00 a.m.