Tribunal Criminal Tribunal for the Former Yugoslavia

Page 781

1 Monday, 7 April 2008.

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused Simatovic entered court]

5 [The accused Stanisic not present]

6 --- Upon commencing at 2.46 p.m.

7 JUDGE ROBINSON: The purpose of today's proceedings, as you know,

8 is to hear from Dr. de Man. I notice, however, that the accused Stanisic

9 is not present. May I ask the court deputy if he has any information

10 about that?

11 [Trial Chamber and registrar confer]

12 JUDGE ROBINSON: The court deputy will inform us as to the

13 information he has.

14 THE REGISTRAR: Your Honours, we got a report that the accused is

15 still not feeling all right to attend proceedings today.

16 JUDGE ROBINSON: In the meantime, did we receive a report from

17 the medical officer.

18 MR. GROOME: Yes, Your Honour, we have received a report today

19 dated with today's date. I can give my copy up to the Chamber if the

20 Chamber has not received such a copy.

21 JUDGE ROBINSON: Will you just read what it says for me.

22 MR. GROOME: It's today's date, Your Honour. It says: "Dear

23 Deputy Registrar, further to my update of the 4th of April, 2008, I met

24 with Mr. Stanisic and examined him this morning. I notice that there has

25 been a decline in his psychiatric state over the weekend and have

Page 782

1 discussed the matter with his treating psychiatrist, Dr. Petrovic, who is

2 of the same opinion. The reason for this decline is likely to be due to

3 multiple factors including the change in psychopharmatherapy (as

4 mentioned in Dr. de Man's report of the 31st of March, 2008)."

5 THE INTERPRETER: Please slow down.

6 MR. GROOME: "Which requires time to take effect and the

7 exacerbation of tertiary medical ailments as mentioned in my update of

8 the 4th of April, 2008.

9 "I would advise that he does not attend court today due to this

10 decline. Due to the combination of factors, I suggest it is unlikely

11 that he will recover in the next few days. Should there be an unexpected

12 upturn in his condition permitting attendance in court, I will inform you

13 immediately. Otherwise, I will inform you of his condition in my weekly

14 update on Friday, 12 April, 2008. Sincerely yours, Paulus Falke."

15 JUDGE ROBINSON: Thank you, Mr. Groome, I now have the report in

16 front of me and so do my other colleague Judges.

17 We are going to proceed with the hearing of evidence from

18 Dr. de Man relating to his report. I issued an order today allowing

19 questioning of Dr. de Man in relation to the reports of certain specified

20 doctors but I must caution that I have done so on the strict

21 understanding that such questioning must be strictly relevant to the

22 proceedings the parties are not at large, by any means.

23 There was one report that was not sought by the Prosecutor and I

24 have indicated that Dr. de Man may also be questioned on that report. So

25 let Dr. de Man be brought in.

Page 783

1 In principal, I will allow each party something in the range of

2 30, 35 minutes.

3 MR. GROOME: Your Honour, perhaps if I might make use of this

4 time securing Dr. de Man's attendance, last week I asked for an

5 opportunity to speak with the Prosecutor, Mr. Brammertz, regarding the

6 Prosecution's position with respect to videolink. I believe I set out

7 the case why it was technically and legally possible. I have had an

8 opportunity to meet with Mr. Brammertz and he does support the use of

9 videolink to deal with the special set of circumstances which the Chamber

10 is now faced with. Thank you.

11 [The witness entered court]

12 JUDGE ROBINSON: Thank you for that information.

13 Let the witness make the declaration.

14 THE WITNESS: I solemnly declare that I will speak the truth, the

15 whole truth and nothing but the truth.


17 JUDGE ROBINSON: Thank you. You may sit. And Mr. Groome, you

18 may begin or is it Mr. Docherty.

19 MR. GROOME: It's Mr. Docherty.

20 JUDGE ROBINSON: Mr. Docherty, you may begin your examination.

21 Yes.

22 MR. KNOOPS: My apologies but the response motion of the Defence

23 of last Friday would also include the specific request of the Defence to

24 have a hearing of Dr. De Man conducted in private or closed session. And

25 I believe the ruling, the order Your Honour gave this morning did not go

Page 784

1 into that specific request. It did, I believe, in paragraph 10 say that

2 Your Honours were not able to lift the confidentiality and ex parte

3 nature of the reports and I'm reading from paragraph 5 of the order. The

4 order was restricted to just the requests of the Prosecution to lift the

5 confidentiality but in our response motion of last Friday, we argued that

6 also on the basis of certain case law, we believed that the public

7 interest have now been satisfied and therefore, the privacy rights of the

8 accused should outweigh any further disclosure of medical details.

9 This was a specific --

10 JUDGE ROBINSON: My impression was that the ruling dealt with

11 that but I'm going to have a look at the ruling.

12 Mr. Knoops, the paragraph 2, I think, makes it very clear what

13 the Trial Chamber's position is. The Chamber begins by referring to Rule

14 34 by stating the position that it had previously taken on the same

15 request and by explaining that on those previous occasions, it had ruled

16 that the medical information should be heard in public session because in

17 the view of the Trial Chamber, at this stage of the proceedings, and in

18 light of the extent of interference that has been caused by the illness

19 of the accused, his illness had become a public matter.

20 The paragraph finishes by saying: "In the Chamber's view, in

21 those circumstances, it is entitled to take the action that it has and

22 will take in relation to the current submission of the Stanisic Defence.

23 The requirements under Rule 34 of the detention rules have been fully

24 met."

25 The Chamber, therefore, quite clearly rejected the submission of

Page 785

1 the Defence and determined that the hearing should be in public.

2 Let us proceed.

3 MR. DOCHERTY: Your Honour, I don't wish to unnecessarily

4 belabour the point but paragraph 5 of the Court's order of today

5 indicates that the confidential and ex parte nature of the earlier

6 reports should not at this stage be lifted. I was therefore under the

7 impression that if I wished to speak to Dr. de Man about those earlier

8 reports and I do briefly, it would be necessary to move into private

9 session.

10 Am I correct that in that, Your Honour? May I ask that

11 clarification before I commence my examination.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: There will be no need to apply because

14 consistent with the approach that the Chamber has taken in relation to

15 the previous hearings concerning those reports which were in public

16 session, it follows that these reports may be examined in public session.

17 MR. DOCHERTY: Thank you for the clarification, Your Honour.

18 Cross-examination by Mr. Docherty:

19 Q. Good afternoon, Dr. de Man.

20 A. Good afternoon, sir.

21 Q. I think we're finally ready to commence. You conducted a

22 psychiatric evaluation of Mr. Stanisic on the 28th of March; correct?

23 A. That is correct.

24 Q. And in general, Doctor, a psychiatric evaluation can include a

25 number of different tools, one of which would be a clinical interview; is

Page 786

1 that correct?

2 A. That's correct, yes.

3 Q. And what you did on the 28th of March was the clinical interview

4 of Mr. Stanisic?

5 A. That's correct, yes.

6 Q. Now, the 28th of March was the first day on which you had met

7 Mr. Stanisic, am I correct in that?

8 A. You are quite correct.

9 Q. So you did not have a personal history with him or a therapeutic

10 relationship?

11 A. Especially not that but I did not know Mr. Stanisic in any

12 capacity.

13 THE INTERPRETER: Could the speakers please make pauses between

14 questions and answers. Thank you.

15 MR. DOCHERTY: Doctor, what we are saying here is being

16 translated into a number of languages and it would be very helpful to the

17 interpreters if I wait for your answer to be finished before I ask my

18 next question and if you similarly could please wait for my question to

19 finish even if you know what I'm going to say before beginning your

20 answer. It will make their jobs quite a bit easier.

21 Q. Now, I note in your report that Mr. Stanisic gave you permission

22 to examine his medical file; correct?

23 A. That is correct, yes.

24 Q. Did you have the time to actually go and examine the file before

25 conducting the interview?

Page 787

1 A. No.

2 Q. And it was just before court today that you saw other evaluations

3 that had been done by other mental health professionals earlier in this

4 process?

5 A. That is correct. I did see a part of the notes you gave me from

6 Mr. Blagojevic. They were in the file at the UNDU.

7 Q. All right. And just to be clear when you say that I gave you, do

8 you mean what the court gave you?

9 A. The court gave me. Yes, of course.

10 Q. That's fine. Now, did you note that none of these other

11 clinicians, and I'm talking about Dr. Mimica, Ms. Najman and your

12 colleague from the Dutch Forensic Psychiatry and Psychology Institute,

13 Dr. Smit, that none of these had noted in their report, the presence of

14 any psychotic features in Mr. Stanisic's mental health picture?

15 A. Yes, that is correct.

16 Q. Now, you, in fact, did find psychotic symptoms and correct me if

17 I describe them wrongly, you indicate that there are creatures,

18 terrifying creatures, which he sees particularly at night-time which tell

19 him to take his own life; is this correct?

20 A. It is correct up to the point that those creatures are described

21 as threatening but I have not heard him say that they tell him to take

22 his own life.

23 Q. All right. But they threaten him in some way?

24 A. They do.

25 Q. And during the course of your examination, you were made aware --

Page 788

1 or perhaps afterwards, talking with your colleague, Dr. Petrovic, you

2 learned that she had been in some doubt as to whether these should

3 properly be classified as psychotic or as something else; is that what

4 Dr. Petrovic told you?

5 A. That is correct. Dr. Petrovic told me, as far as I can remember,

6 in her exact words that she had been considering the diagnosis of

7 psychosis in his case but thought that Mr. Stanisic was able to control

8 those symptoms before he became worse.

9 Q. And when he was able to control those symptoms before he became

10 worse, did Dr. Petrovic talk about how this was done?

11 A. She meant that -- at least that's what she told me, that

12 Mr. Stanisic was reluctant to discuss these symptoms as he felt either

13 threatened or ashamed of them.

14 Q. All right. But in any event, through some act on his part which

15 perhaps he did not want to discuss because of his feelings about it, he

16 was able to exercise some control over these symptoms that he reported to

17 you and Dr. Petrovic?

18 A. Yes.

19 Q. In your report, I notice that you indicate that Mr. Stanisic was

20 switched from an anti-depressant of the SSRI type?

21 A. Yes.

22 Q. To an antidepressant called mirtazapine?

23 A. Yes.

24 Q. And this switch occurred approximately one month before your

25 examination; is that accurate?

Page 789

1 A. That is correct, yes.

2 Q. And you then note in the very next sentence that there was a

3 deterioration of his condition over the past month.

4 A. Yes.

5 Q. And so in other words, there was a deterioration of his condition

6 coincident with the time that he was on the mirtazapine?

7 A. Yes, that's true.

8 Q. And are you aware that some sources, and I will particularly

9 refer to the American regulatory agency, the Food and Drug Administration

10 have reported vivid nightmares as a side effect of some patients who are

11 taking mirtazapine?

12 A. No, I was not.

13 Q. And are you aware of an English study which found that 13

14 patients on mirtazapine out of a sample population of quite large, about

15 13.000, reported visual hallucinations while on mirtazapine?

16 A. No, I'm not familiar with that study.

17 Q. Are you aware of from any source of vivid nightmares or visual

18 hallucinations as a side effect of mirtazapine?

19 A. Yes.

20 Q. And is that part of the reason why you talked with Dr. Petrovic

21 about changing Mr. Stanisic's medication to a tricyclic type?

22 A. Yes, that is correct. Both that and the apparent ineffectiveness

23 of mirtazapine as a sole agent.

24 Q. So would you expect that if the visual hallucinations, vivid

25 nightmares are attributable to his taking mirtazapine, that once he

Page 790

1 starts taking tricyclics or sometime after the tricyclics have begun that

2 these symptoms may resolve, may clear up?

3 A. They should do that, yes, if the cause is mirtazapine.

4 Q. If the cause is mirtazapine.

5 A. Yeah.

6 Q. Now, these night-time hallucinations that Mr. Stanisic has, you

7 reported a score on a scale called the General Assessment -- Global,

8 excuse me, Assessment of Functioning?

9 A. Yes.

10 Q. And you reported a fairly low score down in the 20s; correct?

11 A. It's quite a low score and the clear difference with what has

12 been ascertained before.

13 Q. Yes. For example, Dr. Mimica, who examined him, found a GAF of

14 65 to 70, I believe?

15 A. Yes.

16 Q. Would it be fair to say, Dr. de Man, that what is driving this

17 Global Assessment of Functioning score down is the hallucinations?

18 A. I wouldn't think so. I think that the Global Assessment of

19 Functioning scale is negatively influenced by several factors. One of

20 them is the fact that he has psychotic-like symptoms, hallucinations, but

21 the exhaustion, the fears, the -- and especially the very low mood of

22 Mr. Stanisic have a lot to do with that also.

23 Q. With regard to the hallucinations, these are hallucinations that

24 Mr. Stanisic reports to you, and they would have to be, there is no

25 objective test for hallucinations, is there?

Page 791

1 A. No.

2 Q. And you are aware, of course, from your years of experience as a

3 forensic psychiatrist that sometimes people in situations like that of

4 Mr. Stanisic think it might be in their best interests to appear sicker

5 than they in fact are?

6 A. Of course.

7 Q. Of course. Okay. And when you examined Mr. Stanisic, he was in

8 the middle of a treatment for a renal colic?

9 A. Yes.

10 Q. And renal colic is the medical term for the pain that is

11 associated with kidney stones; am I right?

12 A. That's quite right.

13 Q. That pain is very severe, is it not?

14 A. Yes.

15 Q. In fact, this particular episode had caused Mr. Stanisic, as you

16 note in your report, to be administered morphine during the 24 hours

17 preceding your examination?

18 A. Yes.

19 Q. But even while in great pain, and having consumed morphine, in

20 the words of your report, you found that Mr. Stanisic was oriented

21 properly as to time, place and person; correct?

22 A. He was that, yes.

23 Q. You noted that he had no cognitive defects; correct?

24 A. That's correct.

25 Q. You noted that his attention span was limited but not accompanied

Page 792

1 by any memory problems; is that accurate?

2 A. That is accurate, yes.

3 Q. And you noted that he was cooperative with you; is that correct?

4 A. That's correct also.

5 Q. And in your report, it appears that Mr. Stanisic was able to tell

6 you in some detail what medications he had been on, for how long, what

7 the dosages were --

8 THE INTERPRETER: The speakers are kindly asked to slow down for

9 the sake of the interpretation. Thank you very much.

10 MR. DOCHERTY: My apologies.

11 Q. He was able to tell you in some detail what medications he had

12 been on, for how long, dosages. Am I correct that the source of that

13 information in your report was what Mr. Stanisic told you?

14 A. The information he gave me on that respect were quite limited.

15 Q. And at one point, in fact, while undergoing this treatment and

16 having this renal colic, Mr. Stanisic was even able to describe his

17 present situation to you by drawing an analogy to the legal practices of

18 ancient Rome; correct?

19 A. I understand that is one of his hobbies, yes.

20 Q. So would it be fair to say, Doctor, that these visual

21 hallucinations, if they exist, do not impair Mr. Stanisic's daytime

22 functioning?

23 A. That is correct.

24 Q. Your estimate is that Mr. Stanisic might be better in three

25 months, but he might be better in double that, six months?

Page 793

1 A. Yes.

2 Q. So I understand, of course, the limits that you have to work with

3 but it is somewhat speculative as to how long it might be before

4 Mr. Stanisic is better; correct?

5 A. Yes.

6 JUDGE ROBINSON: Just a minute. In his report, did the doctor

7 say that Mr. Stanisic would be better in three months or did he not say

8 that he would not expect him to be better before three to six months?

9 THE WITNESS: That is the exact wording I used, yes.

10 MR. DOCHERTY: I take those as roughly similar because he is

11 saying he would not expect him to be better before three to six months.

12 But I certainly, Your Honour --

13 Q. Doctor, the exact wording from your report is that you would not

14 expect him to be better for three to six --

15 A. I would not predict -- dare to predict the course in any case,

16 not judging Mr. Stanisic within a period like that.

17 JUDGE ROBINSON: I think there is a difference. I would prefer

18 if you stick to what the doctor said exactly, Mr. Docherty.


20 Q. But as you say, you would not care to predict, and you are aware

21 that the other mental health professionals who have evaluated

22 Mr. Stanisic have also declined -- those who find him unfit have declined

23 to give an estimate as to the time that would be needed; is that correct?

24 A. If you say so. I have not read the things given to me so exactly

25 that I can refer to that wording.

Page 794

1 Q. I understand. And when you say in your report that Mr. Stanisic

2 would not "be fit," did you have in mind or did you -- were you aware of

3 the legal standard for fitness that is used by this Tribunal?

4 A. Not exactly, no.

5 Q. Okay. But you do understand that fitness to stand trial is

6 something that would be decided by the Judges after they have heard the

7 facts?

8 A. Of course, yes.


10 THE WITNESS: If I may, Mr. Chairman.

11 JUDGE ROBINSON: Yes, you may.

12 THE WITNESS: Thank you. I was given to understand that the

13 fitness to stand trial was the core goal of my examination.

14 JUDGE ROBINSON: If you are given to understand that, I'm afraid

15 that that doesn't accord with what the Trial Chamber asked you to do.

16 The Trial Chamber did not ask you to comment on the accused's fitness but

17 nonetheless, I accept that you may have been given that impression.

18 THE WITNESS: I was afraid that might be the case.


20 Q. Doctor, this evaluation, this interview, was it conducted through

21 an interpreter?

22 A. It was conducted with the assistance of an interpreter, yes.

23 Q. And it was about 60 minutes in length?

24 A. That was about the maximum time possible, yes.

25 Q. You say that and that accords with what I saw in your report

Page 795

1 which said that it was cut short by the accused's medical condition.

2 A. Yes.

3 Q. So you would have wanted to continue --

4 A. I would have liked to examine him for a longer period of time in

5 order to get a better view of the situation and to also I would have

6 liked to have examined him on different moments in time, but as the Court

7 ordered me to give a report immediately after, it was not possible.

8 MR. DOCHERTY: Your Honour, could I have a moment to consult with

9 a colleague?


11 MR. DOCHERTY: Thank you.

12 [Prosecution counsel confer]

13 JUDGE ROBINSON: Yes, Mr. Docherty.

14 MR. DOCHERTY: Thank you, Your Honour, and thank you, Doctor. I

15 have no further questions.

16 JUDGE ROBINSON: Doctor, may I ask you whether, in light of the

17 evidence that you gave that the hallucinations could have been caused by

18 mirtazapine, whether you took that factor into account in arriving at the

19 conclusions that you did as to the mental state of the accused?

20 THE WITNESS: I did take that into account, sir, but I also took

21 into account that there were many other possible causes of those visual

22 hallucinations that the examined person described.

23 JUDGE ROBINSON: And as for the morphine that was administered to

24 the accused prior to your examination of him, to what extent would that

25 have affected the condition in which you found the accused, and to that

Page 796

1 extent, your own conclusions?

2 THE WITNESS: We know that morphine also can cause many

3 disturbances of mental functioning, but I do not -- I did not consider

4 morphine to be the prime cause of those hallucinations because they

5 existed long before the moment that he had -- only had been administered

6 morphine that night before I examined him.

7 JUDGE ROBINSON: Yes, Mr. Knoops or Mr. Jordash?

8 MR. KNOOPS: Mr. Jordash will examine the witness.

9 JUDGE ROBINSON: Mr. Jordash.

10 Cross-examination by Mr. Jordash:

11 Q. Just briefly, if I may deal with your qualifications, it's right

12 looking at your CV that you have -- you are a consultant psychiatrist and

13 have been practising since 1985; is that right?

14 A. That's correct.

15 Q. And in 1985, practising for the Ministry of Health and now

16 working for the Ministry of Justice?

17 A. Yes, I am, in part time.

18 Q. Part time?

19 A. Yes.

20 Q. And the assessment you conducted with Mr. Stanisic, is this

21 something which is a normal part of your occupation?

22 A. No, it's not part of my duties as a civil servant. I was asked

23 to do this as a private practitioner.

24 Q. But as a consultant psychiatrist, this is something which isn't

25 unusual for you?

Page 797

1 A. I have experience in making these kinds of evaluations, yes.

2 Q. Thank you. Now, you were --

3 JUDGE ROBINSON: And do you make them -- those evaluations wholly

4 on the basis of a clinical examination?

5 THE WITNESS: Mainly, but I also try and make assessments using

6 structured interviews and rating scales, if they are possible to be used.

7 Besides, most of the examinations done for Dutch courts are done

8 multi-disciplinary way, meaning that a psychologist and a psychiatrist

9 work together and giving the psychologist also the opportunity to support

10 the findings by psychological testing.


12 Q. If I can take you, Dr. de Man, just briefly to your conclusion

13 which is on page 5 of the report. Conclusion that the subject is

14 suffering from major depression with psychiatric -- psychotic features

15 and is clearly unfit to stand trial on psychiatric grounds.

16 You expressed no reservation or qualification to the conclusion?

17 A. No.

18 Q. Can we assume from that you had no reservation about your

19 diagnosis?

20 A. I have no reservation of my diagnosis and -- yes.

21 JUDGE ROBINSON: You have no reservation, even taking into

22 account the possibility that the hallucinations could have been caused by

23 mirtazapine.

24 THE WITNESS: No, that is not a reason for me to doubt the

25 psychiatric -- deep psychotic notion. It's still whatever the cause may

Page 798

1 be, it's still a psychotic depression. The classification, according to

2 the DSM which we use in the Netherlands as well as in America, does not

3 clarify the cause, only the disorder as such.

4 JUDGE ROBINSON: Is the hallucination the main basis for your

5 conclusion that he has some psychotic depression?

6 THE WITNESS: The hallucination is the main reason by saying that

7 the depression has a psychotic nature. That's one of the reasons. The

8 other is the extent of the depression which is much deeper than it used

9 to be, according to the data I was given.

10 JUDGE ROBINSON: Tell us what is meant by "a psychotic condition"

11 or "psychotic depression."

12 THE WITNESS: We speak about psychosis when there is thought

13 disturbance and/or disturbance in the senses, meaning that either

14 hallucinations or a particular disturbance of thinking which is not

15 compatible with functioning reality testing.

16 JUDGE ROBINSON: Yes, I'll come back after Mr. Jordash has asked

17 some more questions.

18 MR. JORDASH: Thank you, Your Honour.

19 Q. Dr. de Man, I wanted to ask you firstly about the process you

20 followed in coming to your conclusion and then move on to the actual

21 conclusion. You were contacted, is this right, to come to the detention

22 centre to carry out an assessment. You were not quite sure what that

23 assessment was supposed to be but presumed it was fitness for trial.

24 A. I had in my possession an internal note by Mr. Monkhouse which

25 stated that fitness to stand trial was the goal of the examination.

Page 799

1 Q. Right. And the question -- sorry to interrupt.

2 A. That's quite all right. I wanted to add that this was sent to me

3 from UNDU by fax.

4 Q. Right. And you told the Court a moment ago that you had not had

5 the opportunity, when you arrived at the detention centre, to see the

6 medical file. Did you have time to speak to the various personnel who

7 were present, who you refer to, I think, on page 2 of your report

8 underneath the title "report"? I'm particularly interested first of all

9 in Mr. McFadden? Were you able to speak to him before, during or after

10 your examination of Mr. Stanisic?

11 A. I spoke to him shortly but only in acknowledging his presence and

12 him thanking me to be able to come to the help of the Tribunal on such a

13 short notice, but we didn't discuss the case formally.

14 Q. Right. Was there any stage you did discuss the case formally

15 with Mr. McFadden?

16 A. Not with this specific fellow. I did confer with my colleagues,

17 Dr. Falke and Dr. Petrovic.

18 Q. And which one and when did you consult with first?

19 A. I consulted with Dr. Falke, who informed me on the medical

20 condition of Mr. Stanisic before examining him, and mainly in telling me

21 that he had been transferred to the prison hospital and why. And I

22 conferred with Dr. Petrovic afterwards, which was my choice, because I

23 wanted to have Mr. Stanisic's permission in order to discuss his case.

24 Q. Right. So the information you went into the diagnosis with was

25 the information from the Court, Mr. Monkhouse, Dr. Falke, who detailed

Page 800

1 his physical condition?

2 A. Yes.

3 Q. And then after the clinical examination, you spoke to

4 Dr. Petrovic?

5 A. Yes.

6 Q. And is it your understanding or was it your understanding that

7 Dr. Petrovic has been treating him or is effectively his treating

8 psychiatrist at the moment?

9 A. Yes, that was the policy in which I spoke to her.

10 Q. And whilst your examination of Mr. Stanisic was limited because

11 of his physical condition, at the end of that examination, did you feel

12 as if with consult, with further consultation with the medical personnel

13 at UNDU, you would have sufficient information?

14 A. Yes, I did have and -- yes, I did have.

15 Q. And when you spoke to Dr. Petrovic, did she appear knowledgeable

16 of Mr. Stanisic's condition at that time, psychiatric condition?

17 A. Yes, she did.

18 Q. And were you able to consult in detail concerning her

19 observations of it and your own observations of it?

20 A. Yes, we were able to do so especially because we were assisted by

21 interpreters at that moment.

22 Q. On the issue of interpreters, there was an interpreter who

23 assisted you during the examination of Mr. Stanisic.

24 A. Yes.

25 Q. Is the fact that an interpreter -- what was the fact that there

Page 801

1 was an interpreter at some point of concern for you or were you able to

2 receive the information you felt you needed?

3 A. No, I think that the examination was partly conducted in English

4 of which Mr. Stanisic has some knowledge, and the interpreter,

5 Mrs. Snezana Ojdanic has been working at the UNDU for a long time and is

6 very well acquainted with most of the detainees.

7 Q. Right. So that is not -- the fact that the examination was in

8 part through an interpreter, is that something you need to take into

9 account when considering your conclusions?

10 A. No, at the moment, many of the examinations I have to undertake

11 are with the aid of an interpreter also for Dutch courts, so I didn't

12 feel hampered by the presence of the interpreter, on the contrary.

13 Q. Thank you. And at the end of the consultation with Dr. Petrovic,

14 did you have any concerns about not having enough information to go away

15 and write your report?

16 A. As I said, I would have liked to have the opportunity to

17 examine -- to examine the -- Mr. Stanisic at another moment, but I felt,

18 especially due to the severity of the depressive disorder I witnessed, I

19 was -- I thought I had enough information for that moment.

20 Q. Thank you. And Dr. Petrovic and yourself, I'm getting this from

21 your report, appeared to have agreed on the diagnosis and agreed on the

22 need for a change in the treatment?

23 A. For a change to the treatment in order to get more effect, yes.

24 Q. And that agreement which you observed when you consulted her, to

25 what extent was there agreement? Was there agreement on the severity of

Page 802

1 the depression?

2 A. Yes.

3 Q. And was there agreement, at that stage, on the psychotic

4 features?

5 A. Yes.

6 Q. And agreement on the Global Assessment Functioning score?

7 A. We didn't discuss the score but we did discuss the -- the exact

8 score, but we did -- we were in agreement on the fact that the general

9 situation of Dr. -- of Mr. Stanisic had deteriorated to a large extent.

10 Q. And Dr. Petrovic had observed this deterioration in the weeks

11 before you arrived?

12 A. Yes. I think she was back from Belgrade for a week at the moment

13 when I examined Mr. Stanisic, and she had been seeing him -- she had been

14 there for four weeks, so she had the possibility to witness a certain

15 interval.

16 Q. Right. You've read the report which, I think you read them

17 today, that have been compiled in relation to an earlier hearing?

18 A. Yes.

19 Q. And there's obviously a degree of variance of opinion in the

20 report, but all agree that Mr. Stanisic is depressed.

21 A. Yes.

22 Q. And it would appear has been depressed for some time. In light

23 of that depression, were you surprised or from a psychiatric point of

24 view, that there could have been this deterioration in this period of

25 time?

Page 803

1 A. No. I had -- of course I cannot make sure in every case what

2 elements are -- will cause deterioration, but in this case, it seems that

3 there were many factors which might contribute to a worsening of the

4 situation. One of them possibly being the fact that the medication did

5 not have the desired effect.

6 JUDGE ROBINSON: And tell us what the others might be.

7 THE WITNESS: The others might be the fact that Mr. Stanisic is

8 suffering from a debilitating gastrointestinal disease, that he has

9 kidney stones giving him considerable trouble, and that some of the

10 medication he is given for both his colitis -- for his colitis does give

11 him complications causing him pain in the musculoskeletal system.

12 JUDGE ROBINSON: Mr. Jordash, you asked about deterioration in a

13 short time. What time is that? Would you put that precisely to the

14 witness?


16 Q. Well, perhaps I can ask the witness to clarify what the witness

17 meant about deterioration and from your consultations with Dr. Petrovic,

18 would you be able to assess the time of deterioration?

19 A. Not because I have only examined him once, I cannot speak from my

20 own experience, but looking at the case notes and hearing from

21 Dr. Petrovic what her ideas were on the subject, I would say that his

22 condition deteriorated significantly in the last month.

23 Q. Would you agree that you were able to say that because of what

24 you learned from Dr. Petrovic, her assessment, and then your assessment

25 and a comparison of the two?

Page 804

1 A. Yes, and also the -- what I heard the findings of Dr. Dominecus

2 were when he examined Mr. Stanisic, I think some six weeks ago.

3 MR. JORDASH: Yes, I think 19th of February, 2008. If I can

4 remind you that Dr. Dominecus noted at that point that there was no

5 psychotic disorder but --

6 JUDGE ROBINSON: In our decision, did we not deal with

7 Dr. Dominecus's report? I'm prepared to reconsider it but my impression

8 is that we --

9 MR. JORDASH: Your Honour, I beg your pardon, you did deal with

10 that --


12 MR. JORDASH: -- and you denied its use so I will move on from

13 that question.

14 JUDGE ROBINSON: Just a second, please.

15 [Trial Chamber confers]

16 JUDGE ROBINSON: May I ask the parties what is the view that they

17 take as to Dr. Dominecus's report? That, you will remember, had been the

18 subject of some discussion in the earlier proceeding.

19 I think principally I should ask the Defence first. Yes.

20 MR. JORDASH: We don't object to the use of the report at this

21 time.

22 MR. DOCHERTY: We had earlier applied to have that report made a

23 part of the record which the Chamber decided was not appropriate at that

24 time. I would ask that -- first of all, I have no objection to

25 Dr. de Man testifying as to what effect that report had on his

Page 805

1 conclusions, but if that is going to happen, I would ask that it be made

2 a part of the record of the case or of this hearing in the case in order

3 that we have a complete record.

4 [Trial Chamber confers]

5 JUDGE ROBINSON: The Chamber will allow the doctor to say how

6 Dr. Dominecus's report influenced him and why and it will become part of

7 the record.


9 Q. Do you have a copy of the report with you?

10 A. No, I do not. I saw it on the day of examination as part of the

11 medical file.

12 MR. JORDASH: I don't know if Your Honours have a copy of that

13 report. I'll just dip into it, if I may.

14 JUDGE ROBINSON: Yes, go ahead.


16 Q. I think Dr. Dominecus found that Mr. Stanisic had an adapted

17 disorder with depressive mood. Does that ring a bell?

18 A. I know that that was his opinion, yes.

19 Q. And as I said before, he found that there was no psychotic

20 disorder, and I quote, "There would be PTSS, post traumatic stress

21 syndrome, however, this does not seem to be at the foreground at this

22 time concerning the personality of the examined, there are certainly

23 narcissistic traits." Does that, again, ring a bell?

24 A. That does ring a bell, yes.

25 Q. Am I correct that you are giving evidence that there had been a

Page 806

1 deterioration from this point or certainly after this diagnosis?

2 A. Yes.

3 Q. Does it surprise you that Mr. Stanisic moved from a non-psychotic

4 disorder to psychotic features in the period of time between the two

5 diagnoses?

6 A. No, it does not, not in view of the general deterioration that

7 took place because the presence or absence of psychotic features in

8 depression is also a function of severity of the disorder as such so I

9 would expect psychotic features to be part of a depression of said

10 severity.

11 Q. And are you able to provide further information as to what was

12 the general deterioration, putting aside the psychotic features?

13 A. What I can say is that as Dr. Mimica before me, but I did not put

14 it in the report at the moment because as I used to do, I did use a

15 rating scale and the same rating scale also used by Dr. Mimica the year

16 before, which was the Hamilton rating scale for depression. And if I am

17 correct he came to a rating of 24 and I came to 37 at my examination

18 which means that there is a very severe deterioration in this period.

19 Q. And are you able to put into layperson's words what 37 --

20 A. 37 means a very severe depression and the score Dr. Mimica

21 recorded is a depression of moderate severity which also was a

22 conclusion.

23 Q. And what is the extent of the scale? How far does it go?

24 A. 37 is about as far as you can get.

25 Q. And the assessment, is it the Hamilton?

Page 807

1 A. Hamilton Depression Rating Scale, the 17-question version, the

2 same version as Dr. Mimica used.

3 Q. And you -- is it based upon observable objective criteria?

4 A. That's the reason why I did not put it in the report. It's a

5 rating scale which is -- also uses observation, so the clinical

6 examination is the basis for the -- for the rating but at the same time,

7 it does give a certain amount of inter-subjectivity.

8 Q. Right. Did you discuss the scale with Dr. Petrovic?

9 A. No. I filled it in afterwards.

10 Q. Right.

11 A. It's not something you have to do with the patient in front of

12 you.

13 JUDGE ROBINSON: Of course you can be severely depressed to the

14 degree that you found the accused with a rating that you attributed to

15 him without having psychotic features.

16 THE WITNESS: The presence or absence of psychotic features is

17 not part of the rating scale. It's rated but it's not counted. So you

18 mention whether there is a psychotic feature but it does not influence

19 the total scale, the result.

20 JUDGE ROBINSON: No, but my question was different. It is

21 whether one can suffer from depression without being necessarily

22 psychotic.

23 THE WITNESS: That's true, you can. Yes.


25 Q. I think you might have misheard my question before the

Page 808

1 Learned Judge spoke. I asked you whether you discussed the Hamilton

2 scale with Dr. Petrovic?

3 A. No.

4 Q. No. Picking up on the Learned Judge's question and having a look

5 at the Global Assessment of Functioning scale, 21 to 30, can you reach 21

6 to 30 without psychotic features with perhaps, say, a severe depression

7 scale of 37?

8 A. Yes.

9 Q. Are you able to assist in relation to whether, without the

10 reported hallucinations, Mr. Stanisic would remain within the 21 to 30

11 Global Assessment Functioning scale?

12 A. It would not make a great difference. It might be that he moves

13 up five or ten points, but that still means that he has a very low

14 assessment of function for the moment that I examined him.

15 Q. May I ask if you have a copy of the Global Assessment of

16 Functioning scale? I would like to have a look at it briefly.

17 A. I do not have it on me because it's part of the diagnostic --

18 MR. JORDASH: I hope Your Honours have the copy that was handed

19 to you on the last hearing. If I can ask that that same copy be handed

20 to Dr. de Man, please.

21 Q. Would you just have a quick look at that and confirm whether it's

22 an accurate reflection of the GAF scale, please.

23 A. Yes, this is the same scale as I have used.

24 Q. So 11 to 20, some danger -- sorry, 21 to 30, "behaviour is

25 considerably influenced by delusions or hallucinations or serious

Page 809

1 impairment in communication or judgement." Would you agree, therefore,

2 that your assessment of 21 to 30 was made as a consequence of both the

3 reported delusions and your assessment of a serious impairment of

4 judgement?

5 A. Yes.

6 Q. And taking away the reported hallucinations at best, would we

7 move to 31 to 40?

8 A. At best, 31 to 40, yes. There is always a certain amount of

9 subjectivity, of course.

10 Q. So you would -- Mr. Stanisic might move to some impairment in

11 reality testing or communication, speech is at times illogical, obscure,

12 irrelevant or major impairment in several areas such as work or school,

13 family relations, judgement, thinking or mood."

14 Would that be --

15 A. That would be the realm of possibility but the earlier assessment

16 was -- is also could be supported, I think, but my findings even without

17 taking into account the psychotic features, especially due to the fact

18 that there are -- is a third reason for scoring 21 to 30 being inability

19 to function almost all areas.

20 That has something of a circular argument, of course.

21 Q. Certainly. Does that have a bearing in relation to Mr. Stanisic,

22 that third explanation?

23 A. Yes.

24 Q. So effectively, you found all three descriptions met, were

25 applicable to Mr. Stanisic?

Page 810

1 A. Yes.

2 Q. You spoke previously to my learned friend for the Prosecution

3 about exhaustion, fears, and very low mood.

4 A. Yes.

5 Q. And what are the significance of these factors here?

6 A. They do -- what is the significance of the factors?

7 Q. Well, the mood, I think, obviously we've dealt with, but the

8 exhaustion and the fears, perhaps that's a better question.

9 A. Of course they, too, contribute to the level of functioning and

10 in this case of lowering the level of functioning.

11 Q. Right. Thank you. Just to confirm, I don't want to belabour the

12 point, but 21 to 30, the impairment of judgement and the inability to

13 function in almost all areas, was that the basis upon which you -- the

14 principal basis upon which you decided Mr. Stanisic was not fit for

15 trial?

16 A. Yes.

17 Q. And did you take into account your finding, I think on page 4,

18 paragraph 2, where you note: "His mood is extremely low, showing despair

19 and a clear wish to die."

20 A. Yes.

21 Q. And in your view, that stated clear wish to die was a cause of

22 the impairment of judgement?

23 A. No, the impairment of judgement was mainly caused by the fact

24 that he had intrusive thoughts and ruminations of this kind which didn't

25 give him the opportunity to address his capacities to the matter at hand,

Page 811

1 being this trial.

2 Q. The last sentence there on that same line, "There is pervasive

3 anhedonia"?

4 A. Yes.

5 Q. Could you explain what that is, please.

6 A. Yes, the word "anhedonia" has something to do -- is -- means the

7 inability to perceive pleasure and positive emotions.

8 Q. Thank you. Could I pick up on an answer you gave to my learned

9 friend for the Prosecution. When asked about the visual hallucinations

10 and whether they impaired Mr. Stanisic's daytime functioning, you

11 answered no. Could I ask you to clarify that in light of the Global

12 Assessment Functioning scale, 21 to 30 --

13 A. Mm-hm.

14 Q. -- where the scale appears to, at least in part on 21 to 30, be

15 an assessment of behaviour being influenced by hallucinations?

16 A. Yes, that's one of the pillars on which the distraction on that

17 level can be grounded. It's -- in this case -- okay, I was looking for

18 my scale, sorry. In this case, there are several other reasons in order

19 not to be able to function.

20 Q. Right.

21 A. And because the hallucinations being limited in time, they are

22 not the main cause for this function in daytime.

23 Q. So to summarize, his daytime functioning is impaired to the

24 extent reflected by 21 to 30 and the principal cause for that impairment

25 are factors other than these reported hallucinations?

Page 812

1 A. Yes, that's correct.

2 Q. Thank you. Could I ask you to assist with an explanation of how

3 this fits in with the finding you make at page 4, paragraph 2 of your

4 report where you note: "There are no signs of cognitive deterioration."

5 Could you make a distinction between this impairment you have found and

6 this separate issue of cognitive functioning?

7 A. Cognitive functioning in the sense of lowering of intelligence

8 and -- has not been found.

9 Q. So his intelligence is still there --

10 A. His intelligence is still there, but he's at this moment, not

11 very well able to put it to good use.

12 Q. Right. And in terms of your prognosis, the three to six months

13 which you quote --

14 A. Yes.

15 Q. -- is this based principally on your expectation of how this new

16 therapy, medicinal therapy works?

17 A. It's even the therapy described -- the old gold standard of

18 depression treatments being a tricyclic anti-depressant but the time

19 frame within which somebody gets better if he suffers from a disorder

20 like depression is relatively uninfluenced by the kind of treatment you

21 give him. Even if somebody gets better on his own, then you still need

22 three months in order to get your facilities back.

23 Q. Right.

24 A. There is not -- it's not a function of which treatment you give

25 him. If any treatment works, it will take that time.

Page 813

1 Q. So you've noted the depth of the depression, the mental disorder,

2 and as a normal rule, it would take between three and six months to

3 recover?

4 A. Yes.

5 Q. And can we assume that that assessment relies upon the patient

6 being in optimal conditions, conditions which perhaps relieve some of the

7 stresses?

8 A. I'm not quite sure --

9 Q. Perhaps I can be clearer.

10 A. Yes.

11 Q. Is three to six months your assessment if Mr. Stanisic remains in

12 custody or if he's out of custody?

13 A. I would -- I'm not able to judge whether his treatments can take

14 place within the confinement of detention. I think that that's one

15 bridge too far based on this evaluation only.

16 Q. I won't push you on that, then, Dr. de Man. But finally, without

17 treatment, without rest, is there a probability that Mr. Stanisic will

18 deteriorate further?

19 A. Yes, but he doesn't have far to go, I'm afraid.

20 Q. And --

21 JUDGE ROBINSON: What do you mean by that?

22 THE WITNESS: It means that he can't deteriorate much further,

23 he's at a very low point, and I'm very worried about his general

24 condition. That's the reason also why I went to Dr. Petrovic and

25 conferred with her.

Page 814



3 Q. In terms of participating in a trial, or participating in any

4 relatively involved exercise at this time, is that likely to assist a

5 recovery or is it likely to disinhibit a recovery?

6 A. I think that added stressors of this kind are dangerous at this

7 moment.

8 Q. Am I correct that you, having seen him, having consulted with

9 Dr. Petrovic, do expect him to recover if the conditions are right?

10 A. I -- we had a discussion -- Mr. Stanisic and I had a discussion

11 on this matter, and I told him that I do not believe in hopeless cases,

12 which he thought himself to be, and that I will gladly repeat that in

13 this Chamber.

14 MR. JORDASH: Thank you. I've got nothing further, Your Honours.

15 Thank you.

16 Sorry, could I in fact ask one more question?

17 JUDGE ROBINSON: Yes, go ahead.

18 MR. JORDASH: A few more questions, in fact. I beg your pardon.

19 JUDGE ROBINSON: Even three, if you wish.

20 MR. JORDASH: No, two are fine, I hope.

21 Q. The reports you read this morning, was there anything in those

22 reports this morning that made you alter your conclusions you or made you

23 reflect upon the conclusions?

24 A. Of course they were cause for reflection as any good written

25 report is, but I do not think that in view of the later developments,

Page 815

1 that there is such a great contrast between the reports and what I found

2 if you consider the deterioration.

3 Q. It's a troublesome word.

4 A. It's a troublesome word, at least for me. But if you consider

5 that, it's -- one finding can lead to another.

6 MR. JORDASH: Right. And with Your Honour's leave, I'd like to

7 put Dr. Falke's or part of Dr. Falke's latest assessment, if I may, and

8 ask the witness to comment. I'm particularly interested in the report

9 dated the 7th of April, 2008 and events over the weekend.

10 JUDGE ROBINSON: Yes, you may.

11 MR. JORDASH: A report was received by Dr. Falke for the purposes

12 of the court and ongoing assessment and Dr. Falke noted on the 7th, so

13 today, of April, 2008, that there had been a decline in Mr. Stanisic's

14 psychiatric state over the weekend and one of the reasons -- well, let me

15 read it to you: "The reason for this decline is likely to be due to

16 multiple factors including the change in psychopharmatherapy as mentioned

17 in Dr. de Man's report of 31st of March, 2008, which requires time to

18 take effect and the exacerbation of tertiary medical ailments as

19 mentioned in my update of the 4th of April, 2008." Does that surprise

20 you?

21 A. No.

22 Q. Consistent with --

23 A. Consistent with the fact that these kind of medication do take

24 some time to take hold and generally, two weeks at least are to be

25 expected.

Page 816

1 Q. Right.

2 A. And also the second aspect of this is that the kind of medication

3 prescribed noratriptyline has to be given in incrementary doses. Start

4 low, go slow is one of the -- the rules taken and we do take -- it will

5 take sometime to get the medication to an adequate blood level which

6 will, however, be checked by Dr. Falke and Dr. Petrovic.

7 MR. JORDASH: Thank you very much, Doctor.

8 JUDGE ROBINSON: What you have explained I understand to mean

9 that the medication will take some time to have effect.

10 THE WITNESS: That's correct, sir.

11 JUDGE ROBINSON: I believe you said -- what was it? A certain

12 number of weeks.


14 JUDGE ROBINSON: But what explains the decline? Does the

15 medication explain the decline in his condition?

16 THE WITNESS: I'm not sure about that because I haven't examined

17 Mr. Stanisic for the last week. I'm not -- I'm not aware of his general

18 physical condition and the other medication which is mentioned by

19 Dr. Falke. There are several factors who may contribute to the fact that

20 now he's even worse than he was when I saw him.

21 Questioned by the Court:

22 JUDGE DAVID: I would like to ask the expert on the nature of the

23 influences caused by delusional hallucinations. You had put Mr. Stanisic

24 on the category 21 to 30, if I recall, of the Global Assessment of

25 Functioning.

Page 817

1 A. Yes.

2 JUDGE DAVID: And the paragraph reads, "Behaviour is considerably

3 influenced by delusions or hallucinations or serious impairment in

4 communications or judgement." Is that what the paragraph says?

5 A. It also says "or inability to function in almost all areas."

6 There are three possible reasons for a classification in this area.

7 JUDGE DAVID: How with one interview, as you had with the

8 subject, is it possible to assert, while at the same time you recognise

9 right orientation in time, place, and person at the end of your report,

10 that his behaviour is considerably influenced by delusions or

11 hallucinations? The question also has to do with the importance of

12 episodic happenings of hallucinations and the difference between episodic

13 happenings of hallucinations or systematic structural psychosis with

14 hallucinations, as it is a case of schizophrenia or paranoid

15 schizophrenia, you know?

16 A. Yes. In many people functioning at this level, the

17 hallucinations are the main cause as in schizophrenia or paranoid

18 delusions. In this case, the problem with reading DSM, and this is part

19 of DSM, is that it's a polythetic system. You do not have to have all

20 the different signs in order to be able to make the diagnosis. In this

21 case, there are three possible causes to be functioning at that level,

22 three possible descriptions who do not have -- who are neither mutually

23 exclusive but do not have to be the case at the same time.

24 You have to have just one. The fact that somebody is in bed and

25 functions at a very low level, the fact that he is in a hospital and

Page 818

1 admitted into medium care facility and being treated hand and foot by

2 nurses means that you will function at a low level. So this -- you have

3 to judge this at one moment, but it is possible that when you see

4 somebody again, that you make another judgement. It's not a -- it's even

5 so that when you give the -- are given the task to treat somebody, that

6 you are judged as a doctor by the fact that someone's GAF goes up, it's

7 not something that you find for the whole time.

8 JUDGE DAVID: In the situation of psychosis, is it correct in

9 contemporary psychiatry to equate episodic instances of hallucinations

10 with structural situations of hallucinations due to a severe psychosis?

11 Because, as I understand, there are certain moments bequeathed by

12 physical factor, medications or bad experience even in the day, you might

13 have hallucinations at night, yet these hallucinations might not

14 constitute a structural part of a syndrome which it could be bipolar

15 disorder, paranoia or schizophrenia or a combination of the three.

16 A. I quite agree with you, sir. The presence of psychotic features

17 does not mean that I diagnosed Mr. Stanisic with a process psychosis as

18 we call it in Europe, like schizophrenia, which is an all-encompassing

19 illness having impairing judgements, 24 hours of the 24. So this is the

20 hallucinations are such -- are no more than a feature of a psychotic

21 nature.

22 JUDGE DAVID: So in the case of Mr. Stanisic, you might have not

23 impaired judgement and yet have hallucinations because impaired judgement

24 for me is part of a structural situation that affects you beyond the

25 instant.

Page 819

1 A. Yes.

2 JUDGE DAVID: Is that correct?

3 A. You use both sides of the table, I'm afraid, we use a different

4 definition of the term psychosis. When we look at the process of

5 psychosis like schizophrenia, it -- the fact that somebody's psychotic

6 causes his dysfunction. If somebody has a depression with psychotic

7 features, the psychotic features may not be the cause of the depression

8 but the depression may well be. I think in this case, the depression is

9 the main cause of dysfunction and the psychosis is not -- is, in my view,

10 not much more than a sign of severity.

11 JUDGE DAVID: The Chamber has studied very carefully and have

12 critically examined all the reports that you will have a chance or you

13 have had a chance to study. In none of these reports anybody spoke of

14 any structural psychosis or even of permanent hallucinations. They only

15 referred to the fact in two instances that he had some episodic

16 hallucinations with no impairment of judgement. And most of the experts

17 agree that his cognitive functions, his judgement as to time, place and

18 person as you have said could and are fit to stand trial, that's why the

19 Chamber has decided that he is able to stand trial.

20 Are you able to say today that facing the symptoms you have

21 described, and being put in the category 21 to 30, are you asserting that

22 he is unfit to stand trial according to the standards you might read

23 later that the Chamber has put to each one of the experts?

24 A. I told the gentleman of the Defence already that I do not see a

25 great discrepancy with the other papers I was presented with just an hour

Page 820

1 ago, and -- but I do see a very strong change in severity between those,

2 those several moments.

3 JUDGE DAVID: When you refer to a standard of fitness, because

4 your conclusion again of your report said that: "In order to -- I do not

5 expect the subject's fitness to be restored." Were you aware when you

6 talk about the fitness of the previous situation of Mr. Stanisic, or you

7 were alluding to an ideal state of fitness?

8 A. I was alluding to a state of fitness from the point of view of

9 psychiatric, clinical expertise. There is of course has to be -- a

10 translation has to be made into the legal field which I am not able to,

11 that is something which it is for the Learned Judges to do. I gave my

12 professional opinion as a doctor, and my view of somebody being able to

13 stand trial is in view of the general definition of the term and not the

14 legal definition of the term.

15 JUDGE DAVID: I am very clear on that.

16 But also what I was referring to is when you said restore his

17 fitness, you were talking about the normal condition of a

18 well-functioning personality or were you aware of the problems that he

19 had faced in the past? For instance, one of the psychiatrists refer,

20 Dr. Najman, to an anal sadic personality, a condition that came from the

21 childhood, according to the theoretical explanation of sadic anal

22 personality in Freud terms or --

23 A. I'm old enough to be familiar with those terms.

24 JUDGE DAVID: I know, Doctor. Excuse me that I use sometimes my

25 modest gross knowledge of the field.

Page 821

1 A. No, no, that's fine. I must tell you that I only had a few

2 minutes to look at Dr. Najman's report, as there was some problem with

3 the photocopy machine and half of it was not legible, but we put that

4 right. But maybe I can say that on reading Dr. Mimica's report which I

5 have had plenty of opportunity to do, I had -- did not have the -- in

6 retrospect, would not have agreed -- disagreed with his judgement based

7 on the findings he made. So I do not think that on -- it is -- it is my

8 opinion that is so much different from that of the other colleagues.

9 JUDGE DAVID: In paragraph 76 of his evaluation, Dr. Mimica said:

10 "I found the accused to be depressed. He also found the accused to be an

11 eloquent man who provided detailed answers. His memory was normal. He

12 had the impression that the accused -- he didn't have the impression

13 never that the accused did not understand him. When he conducted the

14 evaluation, the accused was not suicidal." Paragraph 76.

15 And also, he says that the accused could read and understand and

16 testify.

17 A. His findings were, in essence, very much different from the one I

18 made on examining Mr. Stanisic.

19 JUDGE ROBINSON: And so you think that perhaps were he to examine

20 Mr. Stanisic today, his findings might be different?

21 A. Might be different from the ones he made then, yes.

22 JUDGE ROBINSON: Very well. Thank you. We are going to adjourn.

23 You will have to return. Before we adjourn, I'm going to consult my

24 colleagues.

25 [Trial Chamber confers]

Page 822

1 JUDGE ROBINSON: We are adjourned for 20 minutes.

2 --- Break taken at 4.20 p.m.

3 --- On resuming at 4.47 p.m.

4 JUDGE ROBINSON: Now, Doctor, you had given what I had considered

5 to be important evidence in relation to the health of the accused, and

6 among the things that you said and that struck me is that the main or

7 principal basis for your conclusion as to accused's unfitness was the

8 impairment of judgement and the inability to function in almost all

9 areas. Those are extracted from the 21 to 30 category in the scale.

10 You also told us that you made this determination of unfitness

11 using your own criteria, criteria which you use as a psychiatrist, and

12 which you correctly acknowledged might be different from that which is

13 used in the court.

14 It seems to the Chamber to be only reasonable and fair that the

15 Court should put to the doctor the five questions that were put to the

16 other experts.

17 Now, Doctor, if you are in a position to answer those questions

18 immediately, you may do so, but if you need some time to consider the

19 answers, then let us know. This is not a trivial matter by any means,

20 you know.

21 THE WITNESS: I know, yes.

22 JUDGE ROBINSON: And you should be put in the same position as

23 the other experts who would have had some time, certainly more than you

24 would have had, were you to give the answers today in coming to their

25 conclusions.

Page 823

1 I'm going to try my best to explain to you what the questions

2 mean.

3 The first question is whether, in your opinion, the accused is

4 able to understand the nature of the charges and the proceedings against

5 him to include the consequences of a conviction on those charges. The

6 accused is charged with a number of crimes, the indictment charges him

7 with crimes against humanity, war crimes such as murder. And the simple

8 question there is whether he understands the nature of those charges and

9 what it means if he is convicted. If convicted, he stands to be

10 sentenced up to a term of life imprisonment.

11 The second one is perhaps the most important because it has to do

12 with the level of his communication skills. Is the accused able to

13 instruct counsel as his defence? He is represented by counsel, so he

14 must be able to instruct him, to tell him what his defence is.

15 Otherwise, counsel will be of no assistance to him. Counsel will not be

16 able to put his case to the Chamber. He must be able to pinpoint the

17 main areas of strength in his case, the main areas of weakness in the

18 Prosecution's case, as the Prosecution's case unfolds. So he needs to be

19 able to communicate with counsel and instruct him as to his defence.

20 The third one is perhaps even more important, perhaps the most

21 important. Is the accused able to testify on his own behalf if he elects

22 to do so? He has a right to give evidence. It's a right which he has.

23 He is not obliged to do so but if he does so, then that procedure will

24 involve his own counsel, first, examining him in a manner that one would

25 say is favourable to his case, to elicit from him the main points from

Page 824

1 his case, the answer that he's giving to the charges against him. But

2 even more significantly, he's going to be cross-examined by the

3 Prosecutor.

4 So we want you to say based on the examination that you carried

5 out whether he is able to testify on his own behalf, that is to give

6 evidence in chief, and to be cross-examined. What is prompting me to ask

7 you these questions is what you told Mr. Jordash, that your conclusion

8 was principally prompted by the impairment of judgement and the inability

9 to function in almost all areas that you say you found in the accused.

10 The fourth and fifth questions are more of a procedural nature.

11 Is the accused physically able to -- well, I don't know why physically is

12 there, I would say is the accused able to withstand full-time trial

13 proceedings, that is, normally five days a week and approximately five

14 hours a day.

15 The last one is: Does the accused's health situation require any

16 particular accommodation to support his ability to stand trial?

17 Those are the five questions that were put to the experts and we

18 had their views. They came to court and they were examined in relation

19 to the answers that they gave.

20 Would you be in a position to answer those questions now or would

21 you like the benefit of the evening to consider your answers?

22 THE WITNESS: I think I would choose the last option, if that's

23 open to me.


25 THE WITNESS: Because I would like to formulate my answers as

Page 825

1 succinctly as possible.

2 JUDGE ROBINSON: I believe that that's the best course, Doctor,

3 and the fairest course. But will you be able to return tomorrow?

4 THE WITNESS: I will make myself available to the Court.

5 JUDGE ROBINSON: We very much appreciate that, Doctor, and so

6 tomorrow, we are resuming at 2.15.

7 THE WITNESS: 2.15.

8 JUDGE ROBINSON: Now, I'm going to ask the court officer to make

9 available to the doctor the questions that were posed so that he has them

10 written.

11 Does any party have anything to say in relation to this matter?

12 Yes, Mr. Docherty.

13 MR. DOCHERTY: Will Dr. de Man also have the earlier evaluations

14 he was able to look at today, will he have copies that he can take with

15 him?

16 JUDGE ROBINSON: Yes, those should be made available to him as

17 well.

18 THE WITNESS: Thank you. I'm very much obliged.

19 MR. DOCHERTY: Including that of Dr. Dominecus which was just

20 added to the record today.


22 MR. DOCHERTY: Thank you.

23 JUDGE ROBINSON: We will adjourn until 2.15 tomorrow when we will

24 be in Courtroom III.

25 --- Whereupon the hearing adjourned at 4.55 p.m.,

Page 826

1 to be reconvened on Tuesday, the 8th day of April,

2 2008 at 2.15 p.m.