1 Wednesday, 25 February 2015
2 [Open session]
3 [Accused not present]
4 --- Upon commencing at 10.00 a.m.
5 JUDGE DELVOIE: Good morning to everyone in and around the
7 Madam Registrar, could you call the case, please.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-04-75-T, the Prosecutor versus Goran Hadzic.
10 JUDGE DELVOIE: Thank you.
11 May we have the appearances, please, starting with the
13 MR. STRINGER: Good morning, Your Honours. For the Prosecution,
14 Douglas Stringer, Elizabeth Spelman, Stravroula Papadopoulos, case
15 manager Thomas Laugel.
16 JUDGE DELVOIE: Thank you.
17 Mr. Zivanovic, for the Defence.
18 MR. ZIVANOVIC: Good morning, Your Honours. For the Defence of
19 Goran Hadzic, Zoran Zivanovic and Christopher Gosnell with legal intern
20 Alessio Gracis. Thank you.
21 JUDGE DELVOIE: Thank you.
22 We have noted that Mr. Hadzic is not present and waived his right
23 to be present, so that means we can continue.
24 The hearing today arises from a request made by the Prosecution
25 in its response to the Defence's urgent request for provisional release.
1 The aim of the hearing is to have the appointed independent expert,
2 Dr. Cras and Dr. Seute answer questions from the Prosecution and Defence
3 and possibly the Chamber, to provide further explanations and
4 clarifications regard their expert report filed on 13 February, 2015. We
5 will be hearing from Dr. Cras today and from Dr. Seute tomorrow.
6 Today's hearing will begin with 30 minutes of questioning from
7 the Prosecution, followed by 30 minutes of questioning from the Defence,
8 and conclude with the Chamber's questions, if any.
9 I will now call for submissions from the parties regarding
10 whether the hearing should be conducted in private or in open session.
11 We all know that hearing in open session -- hearings in open session are
12 the rule and private session is the exception. Discussing health matters
13 is a good reason for private session; however, the Defence's request for
14 reclassification of filing related to Mr. Hadzic's health conditions as
15 public and its public redacted reply concerning urgent request for
16 provisional release suggest that open session could be considered.
17 To hear the parties' submissions, we will go into closed session.
18 Closed session, please.
19 [Closed session] [Confidentiality partially lifted by order of the Chamber]
17 [The witness entered court]
18 JUDGE DELVOIE: I would think Dr. Cras has his report with him,
19 but we'll ask. The Chamber has copies, of course, and I suppose everyone
20 else has.
21 Good morning, Doctor. Could I ask you, for the record, to state
22 your name and date of birth.
23 THE WITNESS: My name is Patrick Cras. I'm born at the 19th of
24 June, 1958.
25 JUDGE DELVOIE: Thank you.
1 And your profession is?
2 THE WITNESS: I'm a medical doctor.
3 JUDGE DELVOIE: Thank you. You are about to make the solemn
4 declaration we ask all witnesses to make, and this means that you have to
5 tell the truth and nothing but the truth, of course. And that if you
6 would give false or misleading information to the Court that you could be
7 liable for -- you could be --
8 THE WITNESS: Accused?
9 JUDGE DELVOIE: Yes, that's the word, indeed, accused of contempt
10 of court.
11 Please make the solemn declaration.
12 THE WITNESS: I solemnly declare that I will speak the truth, the
13 whole truth, and nothing but the truth.
14 JUDGE DELVOIE: Thank you. Please be seated.
15 THE WITNESS: Thank you.
16 WITNESS: PATRICK CRAS
17 JUDGE DELVOIE: Mr. Stringer.
18 MR. STRINGER: Thank you, Your Honour.
19 Examination by Mr. Stringer:
20 Q. Good morning, Dr. Cras. My name is Douglas Stringer and I'm one
21 of the attorneys for the Prosecution. And just some questions today
22 about your report and the circumstances that you've been considering here
23 in this case. If I ask a question you don't understand, please don't
24 hesitate to ask me to rephrase.
25 You conducted your personal examination of Mr. Hadzic on the 5th
1 of February, I take it, this year. Correct?
2 A. That's correct.
3 Q. How long did that examination last?
4 A. It lasted about an hour.
5 Q. Okay. And if I understand correctly, this examination occurred
6 about eight days, I believe, after he had discontinued -- or not
7 completed but had discontinued that first round of his chemotherapy; is
8 that about right?
9 A. That's correct.
10 Q. And at that time, we see from your report that you found
11 Mr. Hadzic to be operating at a normal cognitive level under the Montreal
12 Cognitive Test that you'd administered; correct?
13 A. That's correct. Although, he did have some subjective
15 Q. And as a part of that examination -- during the course of that
16 examination, were you able to conclude that he understood your questions
17 and was able to express himself sufficiently well?
18 A. That's correct. And I even asked the translator whether he found
19 that Mr. Hadzic had any word finding difficulties and that was not the
21 Q. And in your report, you actually indicated you felt as though he
22 could understand much of what you were saying in the English language?
23 A. That was very difficult to judge because I didn't have really
24 feedback on that.
25 Q. Okay. And prior to examining Mr. Hadzic on the 5th of February,
1 you did all of your preparations. You reviewed all the medical records
2 that had been accumulated during the course of his diagnostic phase, I
3 guess; correct?
4 A. Correct.
5 Q. And then also you consulted, spoke with his treating
6 neuro-oncologist, and that's Dr. Taphoorn?
7 A. I spoke to Dr. Taphoorn for about five minutes on the tone.
8 Q. Do you know Dr. Taphoorn or who he is?
9 A. I don't know him personally, but he is an internationally
10 renowned specialist, neuro-oncologist.
11 Q. Right. We'll get to this a little bit later but I saw from your
12 report it appears that he's actually one of the authors of the article
13 which sets out the standard for treating this form of glioblastoma, the
14 stoop scheme; is that correct?
15 A. That's correct.
16 Q. You've reviewed the records also, the reports written by the
17 medical officers who were at the detention unit. We've seen a few
18 different names. There is a Dr. Tenhaeff, I believe, and I believe
19 you've actually spoken with Dr. Falke who is the chief medical officer
20 there; correct?
21 A. That's correct.
22 Q. Now, my understanding is that the medical personnel at the UN
23 Detention Unit sort of are the ones that are communicating the treatment
24 regime and the information they're getting from the treating physician,
25 Dr. Taphoorn, and his people. Is that also your understanding of the
1 source or the background that they're operating with?
2 A. That's partially correct. From my viewpoint, I get information
3 by both the medical officers of the United Nations Detention Unit, but I
4 also have direct information because I have copies of all the imaging
5 results and also copies of the letters that were written by his treating
7 Q. Of course. I think I should have asked it more clearly. My
8 understanding is that the information that the medical people at the DU,
9 the UN Detention Unit are putting in is they are sort of a link between
10 the Chamber and Dr. Taphoorn, if I could put it that way?
11 A. Correct.
12 Q. Because we do not hear directly, we've got no reports from
13 Dr. Taphoorn available to the Chamber or the parties as far as I'm aware.
14 A. That's correct.
15 Q. Okay. You also consulted with the other expert who has been
16 appointed in regards to this, Dr. Seute?
17 A. That's correct, I talked to her on the phone.
18 Q. Now, in terms of the record available there is one thing that I
19 wanted to clarify because we have a report -- one report that was filed
20 by the Deputy Registrar of this Tribunal dated the 29th of January, and
21 what that report did was to address some of the concerns or complaints
22 that Mr. Hadzic had raised regarding his ability to get rest and also the
23 food, the nutritional aspect of the conditions at the detention unit.
24 That specific report is not referred to in your report, and I wonder
25 whether this is something you've seen or not seen?
1 A. I did read that report.
2 Q. Okay. After the 5th of February, have you had any subsequent
3 contact either with Mr. Hadzic or his attorneys?
4 A. No, I didn't.
5 Q. Is there anyone else that you've discussed this matter with apart
6 from those that we've just mentioned?
7 A. No -- well, I did call Ana Osure once to get more information on
8 his present medication.
9 THE INTERPRETER: Interpreter's note: Kindly pause between
10 questions and answers for the sake of interpretation. Thank you.
11 MR. STRINGER: This is my fault. I should know.
12 Q. I'm being asked to pause between question and answer because with
13 some of the terminology, I think today is particularly challenging, for
14 the interpreters.
15 Dr. Cras, before you were contacted about becoming appointed in
16 your capacity here, did you have any information or background knowledge
17 about this case?
18 A. No, absolutely not.
19 Q. And in its Scheduling Order that the parties received from the
20 Chamber, that the Chamber directed that you and Dr. Seute would be
21 provided with the papers submitted by the parties, the motion for
22 provisional release, the Prosecution response, and the Defence reply.
23 Have you had an opportunity to review those?
24 A. I'm not sure what kind of documents you're referring to.
25 Q. These are the legal papers regarding a request by the Defence
1 that Mr. Hadzic be released to go back to Serbia until he returns in
2 early May for the MRI.
3 A. I was aware of his request for provisional release, yes.
4 Q. Okay. Have you read any of the papers that were written and
5 filed by the parties on that issue?
6 A. Do you refer to the latest papers that I received, I think, the
7 day before yesterday?
8 Q. It's possible. I'm referring to a Defence motion for provisional
9 release, and then there is the Prosecution response to the Defence motion
10 for provisional release --
11 A. Describing some analogies to some other cases --
12 Q. Yes.
13 A. -- that have presented to a similar fashion in the past?
14 Q. Yes.
15 A. I did read those papers, yes.
16 Q. So you're aware that at least one of the questions that's before
17 the Chamber right now relates to whether he should be released from the
18 detention unit to go back to Novi Sad in Serbia in order to -- well, to
19 be there while taking his chemotherapy cycles until he comes back here in
20 early May. You're aware of that?
21 A. That's correct.
22 Q. All right. When you met with Mr. Hadzic, did you discuss with
23 him at all the situation that he was proposing to go to in Serbia?
24 A. No, we did not.
25 Q. You might be aware from having read the papers on this -- what we
1 call provisional release, that Mr. Hadzic was a fugitive for about seven
2 years before he was arrested and brought to the Tribunal. You're aware
3 of that?
4 A. I am aware of that.
5 Q. All right. So were you aware that the place he's proposing to go
6 now is a place actually that he's not been to in over ten years?
7 A. I assume that. I have no further information.
8 Q. Okay. Because in your report, your second report in particular,
9 you described optimal conditions for him in order to gain the most from
10 his treatment as being in a familiar sort of family environment.
11 A. Um-hm.
12 Q. And so my question is to what extent do you have any specific
13 information about the specific conditions and environment in which he's
14 proposing to go in Serbia?
15 A. I would only presume that his family environment would be
16 supportive and would provide all the conditions for his optimal
18 Q. All right. So I think it's common sense that, generally
19 speaking, patients can benefit -- or the optimal conditions, really, in
20 general terms, involve being in a familiar sort of home environment. Is
21 that a --
22 A. That's what I assume.
23 Q. -- correct -- okay. You're not able to say, though, to what
24 extent the optimal conditions really exist for Mr. Hadzic in Novi Sad
25 based upon what awaits him there?
1 A. That's correct.
2 Q. All right. You've been practicing quite some time, Dr. Cras. Do
3 you encounter cases where for whatever reasons optimal conditions just
4 can't be met?
5 A. That's an interesting question. For example, if people do not
6 get appropriate health care for any particular reason, either -- it's
7 usually an access problem, whether they are not in the financial
8 situation to have optimal care, or whether they're treated in a -- what
9 we call peripheral hospital, not in a specialised, tertiary, reference
10 centre, that might not meet the conditions of optimal care. That occurs,
12 Q. Now, as a layperson, it seems to me that one thing that's optimal
13 so far as is the quality of the medical care and treatment that
14 Mr. Hadzic is receiving here in The Hague. Would you share my opinion on
16 A. I think there is two aspects to that. I think the formal medical
17 treatment is probably optimal because he's being treated by a well-known
18 specialist, neuro- oncologist. He's receiving the standard treatment,
19 which might not be available everywhere in the world. He's being closely
20 followed. I think that's probably optimal.
21 With regards to the conditions in the detention unit, which you
22 already referred to, these may not be the optimal conditions for a
23 patient suffering with a glioblastoma.
24 Q. We might have a situation where from the strictly medical point
25 of view the optimal conditions are here, whereas from a sort of location
1 or housing point of view the optimal conditions might not be here. Is
2 that a -- would you accept it --
3 A. That's a correct assumption, I would say. Yeah.
4 Q. Regarding the conditions at the UN Detention Unit, because again
5 I'm referring mostly to your second report now, you've indicated that the
6 necessary conditions can be met there, I think you said "with
7 difficulty." Do you recall that?
8 A. I do recall that.
9 Q. Okay. And your understanding, your knowledge about the
10 conditions at the detention unit are based on -- let me just ask you:
11 What's your knowledge of the conditions there?
12 A. That's an important question, because I haven't visited the
13 quarters where the detainees live. I don't know what -- what they're
14 quarters look like, what kind of environment that is. I know that I have
15 some cursory information from my visits to the detention unit, but most
16 of my visits took place in the medical unit.
17 Q. Okay. So is it -- can we say that similarly, as with the
18 situation in Serbia, as a general rule - and I think it's not
19 surprising - as a general rule, the conditions in a place like a
20 detention unit or some prison facility, some facility involving detention
21 of accused people is really never going to be the optimal place for a
22 person to undergo such treatment as Mr. Hadzic is undergoing?
23 A. It would be very difficult to judge for me, because I'm not a
24 regular visitor of detention units. I don't know the exact conditions
25 where the detainees live in.
1 Q. Now, in terms of the medical facilities available to Mr. Hadzic
2 in Serbia should he go there, are you familiar with the facilities in
3 Serbia, in Novi Sad, the quality of the care that he might expect once he
4 arrives there?
5 A. That would only be speculative, I guess. I did look up the
6 hospital that was referred to in the documents, the hospital in Novi Sad,
7 and it seems that they have the necessary facilities to treat a person
8 like Mr. Hadzic.
9 Q. Looking strictly from the point of medical care and facilities
10 available, however, if I were to suggest that that probably doesn't
11 change the assessment that what's here in The Hague for him is the
12 optimal situation, would you disagree with that? Again, recognising that
13 the location is important.
14 A. His further treatment is quite simple. It's receiving
15 chemotherapy for about six months and with a close follow-up to any
16 complications that may arise from his chemotherapy, both a close
17 follow-up of his medical condition, a possible evolution and
18 deterioration of his condition due to tumour progression --
19 Q. Um-hm.
20 A. -- so it's actually quite simple.
21 Q. As long as there are no significant complications?
22 A. Exactly.
23 Q. My impression is that during the course of this treatment,
24 however, he's -- according, again, to your second report, there are a
25 variety of side effects which can present a rather fluid situation
1 healthwise as he goes through the treatment.
2 A. That's correct. Although, treatment is most likely to be
3 interrupted due to the progression of the tumour rather than by -- caused
4 by the side effects of the treatment.
5 Q. Now, in your first report you indicated that in your view, there
6 might be some days, and this is page 8 and 9, this is the report dated
7 February 12th. There may be some days where Mr. Hadzic would be fit to
8 attend the trial - this is during the course of his treatment - but that
9 this is difficult to predict, certainly at this point. I take it then,
10 you're not able to rule out the possibility that Mr. Hadzic on individual
11 days might be fit to attend court proceedings?
12 A. Absolutely. That cannot be ruled out.
13 Q. And one of the reasons why we asked to speak to you directly was
14 to clarify what you and also Dr. Seute have in mind when we talk about
15 being present or attending. And could you just briefly describe what you
16 have in mind there in terms of the view or the question whether
17 Mr. Hadzic can attend?
18 A. That's a very important question, I think, because the questions
19 refer to both being physically present and participating in the trial,
20 and I have no first-hand experience on what it means to be participating
21 in a trial. So whether he can be physically present, yes, he probably
22 can, given the necessary support and maybe some pauses when he feels ill.
23 And then whether he can participate in the trial, that's another
24 question. That would have to be judged on a day-by-day basis I guess by
25 the officer of the medical detention unit.
1 Q. If all that was necessary was for Mr. Hadzic to be able to sit
2 and listen and watch without speaking, is it, in your judgement,
3 something that he might be capable of doing at times during this phase of
4 his treatment?
5 A. I think that's a tricky question, because even my -- some of my
6 patients who are moribund can be listening in a chair and listening to
7 what's happening.
8 Q. Let me rephrase it because I'm not trying to ask you tricky
10 A. Yeah.
11 Q. Would he be capable of following and understanding much in the
12 same way that he seems to be following and understanding during the
13 course of his conversation with you?
14 A. Yeah, he probably would.
15 Q. Thank you, Dr. Cras. Thank you for coming.
16 MR. STRINGER: Mr. President, if I have a few minutes left out of
17 my 30, I respectfully request the possibility to save the time for
18 follow-up questions.
19 JUDGE DELVOIE: Thank you, Mr. Stringer.
20 Mr. Gosnell, you're putting the questions to Dr. Cras?
21 MR. GOSNELL: Yes, I will be, Mr. President. Good morning.
22 JUDGE DELVOIE: Good morning.
23 Examination by Mr. Gosnell:
24 Q. Good morning, Dr. Cras.
25 A. Good morning.
1 Q. My name is Christopher Gosnell. I represent Mr. Hadzic. I just
2 will have a few questions for you today, and if any question is unclear
3 please let me know.
4 Now, you say at page 9 of your report that:
5 "Attending and participating in the trial will be hazardous to
6 Mr. Hadzic's health and will most likely compromise the treatment plan.
7 Chemotherapy with Temozolomide, even if fairly well tolerated, will be
8 accompanied by fatigue, nausea, and reduced functional status."
9 Can you elaborate on what you mean by "reduced functional
11 A. If you refer to the adjective hazardous, that may be an
12 overstatement obviously.
13 Q. Sorry, Dr. Cras, let me just stop there and focus on the term
14 "reduced functional status."
15 A. Thank you.
16 Q. That's the term I don't, as a layperson, know necessarily what
17 that means?
18 A. With reduced functional status, I mean in terms of physical
19 stamina, first of all; and secondly, in terms of cognitive function in
20 the sense of short term memory, reaction time, maybe also some language
21 difficulties, abstract reasoning. Things like that.
22 Q. What about the ability to synthesise information?
23 A. Absolutely. That would include that too.
24 Q. And are you giving that information based upon your experience
25 with treating in observing patients with this condition and receiving
1 this treatment?
2 A. In a general sense, yes. I see many patients with reduced
3 functional status both by -- caused by brain tumours as well as other
5 Q. And how long have you been treating and observing patients with
6 this condition and receiving this form of treatment? And how many
7 patients would you say you've been able to observe in that time?
8 A. Well, I think that's pretty clear from my curriculum vitae. I am
9 not a neuro-oncologist. Dr. Seute, who will be appearing tomorrow is. I
10 don't treat glioblastoma patients from day-to-day. I am more involved in
11 the diagnosis of the glioblastoma because these patients present with
12 neurological symptoms, and I am also more involved in end-of-life care of
13 these patients. I don't treat them during chemo nor during radiotherapy.
14 Q. And in terms of the affects of short-term memory deficits which
15 you've just mentioned, and language difficulties, abstract reasoning,
16 ability to synthesize information, does that tend to manifest in
17 relatively simple tasks or does it have more of a manifestation in
18 respect of sustained intellectual tasks that require, as I say, sustained
19 concentration over time?
20 A. I would say in both. These can limit both intellectually
21 straining exercise as well as very simple daily activities.
22 Q. But, for example, it would be possible for someone to not present
23 any or any significant symptoms upon a physical examination or a simple
24 test of cognitive ability, and yet nevertheless there would be a
25 significant functional or dysfunction in respect of more complex tasks;
1 is that correct?
2 A. Absolutely. And I was going to make a comment about the Montreal
3 Cognitive Assessment, as mentioned by the Prosecutor, because that's only
4 a screening test and people -- when people fail on the Montreal Cognitive
5 Assessment, they are usually not in a very good condition, but you can
6 still succeed the Montreal Cognitive Assessment and not be able to teach,
7 for example, or to exercise any particular profession that is more
9 Q. So, for example, the Montreal Cognitive Test would not
10 necessarily be a strong indicator of ECOG as you've described it in your
12 A. No, ECOG refers to more a combination of both physical and
13 intellectual ability. The Montreal Cognitive Assessment is only a
14 screening test for cognitive abilities.
15 Q. And that test takes about ten minutes to administer; correct?
16 A. The Montreal Cognitive Assessment, if all goes well, takes about
17 ten minutes.
18 Q. Now, you say in your report at page 8, referring to the study of
19 Gazelle, that only 28 per cent of younger patients could return to work
20 after treatment. Now, may I ask you: Do patients with glioblastoma
21 multiform who are undergoing the treatment that Mr. Hadzic is about to
22 start receiving, do they work?
23 A. That's an important question because -- I mean, it's -- it's the
24 best, let's say, analogy, or the best study that I could find that would
25 even approach the question if somebody is able to stand trial, whether he
1 or she is able to exert a profession after being diagnosed and treated
2 for glioblastoma. Of about two-thirds of people that were examined in
3 that study, two-thirds had a profession, and about one-third of that
4 two-thirds returned to work after having the treatment applied. Even if,
5 in my opinion, and this refers to a rather young population, I think it's
6 similar to the population that we studied in the first Stup report,
7 population of the mid-50s, about like Mr. Hadzic age, even if that
8 younger population really considers it important to return back to work.
9 I mean, they are motivated to go back to work. About one-third returns
10 back to work.
11 Q. But, Doctor, let me focus you to my question, and perhaps I
12 should have clarified: The Gazelle Report, as I understand it, and you
13 can correct me if I'm wrong, measured the return to work six months after
14 the end of radiotherapy, which, if I'm correct in understanding the
15 nature of treatment, that means at the end of the adjuvant chemotherapy;
16 is that correct?
17 A. That's correct.
18 Q. Now, my question is during the period that the adjuvant
19 chemotherapy is being undertaken. And I know that the report itself
20 doesn't say this, it only looks at the six-month mark. But in your
21 experience do people, during that period of the adjuvant therapy, would
22 you say that there is a lesser likelihood that they are working or do you
23 think that there is a greater likelihood that they are working after the
25 A. It would probably be the same. It would be about one-third of
1 people who return back to work despite the treatment.
2 Q. Well, I understand that. But let's say in the middle of the
3 treatment, are people working in your experience?
4 A. That's probably the case.
5 Q. You think that the figures would be the same in terms of the
6 numbers who are working through the therapy?
7 A. They would probably be the same.
8 Q. And -- and what kind of -- that Gazelle Report included a cohort
9 of patients that were under 40 years old; isn't that correct?
10 A. That's correct.
11 Q. And would you say it's more likely that those are the ones who
12 would be able to withstand that kind of or -- treatment, chemotherapy?
13 A. The main factor that drives whether people get back to work is
14 whether they have a neurological deficit or they don't have a
15 neurological deficit. And a deficit is mostly defined as being some form
16 of paralysis of a member.
17 Q. I'm sorry, paralysis of a member?
18 A. Of an arm or a leg or some other deficit that would limit the
19 ability of a person to return back to work. Even if in that particular
20 study, most of the work would have been intellectual workers. I mean,
21 labourers were not included in that study.
22 Q. And the intellectual workers would not be able to return to work
23 because their neurological deficits would have an impact on their ability
24 to perform more complex, sustained intellectual tasks; correct?
25 A. The study refers getting back to work. It does not examine the
1 output of that work. Through my career, I've seen many people that
2 returned back to work but were certainly not as productive as they used
3 to be.
4 Q. And do the deficits that we were discussing earlier - short-term
5 memory, affect on executive function, attention - does that also affect
6 ability to take initiative?
7 A. It certainly would.
8 Q. Now, you say in your report at page 7 that Mr. Hadzic's survival
9 can be estimated in the range of 12 to 24 months depending on the success
10 of the radio and chemotherapy. Now, I note that you don't use the term
11 "median survival" in your report. Can you tell us the distinction
12 between your estimate of Mr. Hadzic's lifespan and median survival?
13 What's the difference, if you can tell us?
14 A. First of all, the median survival is the time at which 50
15 per cent of the patients are still alive. It differs from the average
16 survival which is not a good indicator because if you have long-term
17 survivors, the average is inappropriately long. The median survival is a
18 better estimate of how many people survive. Again, this is a very
19 difficult, very important question is what are his chances of survival?
20 And I would say that the good news is that he's relatively young. At
21 present, he doesn't have an important deficit. He's in a good general
22 condition. And he doesn't take any corticosteroids.
23 The bad news is that it was only a tumour biopsy. There was no
24 attempt to remove the tumour because it's too large. It was throughout
25 the whole right hemisphere. There are some indications that the tumour
1 has characteristics that would let it respond less to the radio and
2 chemotherapy that he's receiving. And so it -- there is no attempt of
3 surgically removing the tumour.
4 Q. And you --
5 A. -- and also, I'm sorry, and also the multifocal character, the
6 extent of the tumour is one poor prognostic indicator.
7 Q. And would the fact that in the most recent medical report, the
8 platelet levels had not risen to the point where he can restart the
9 adjuvant therapy on schedule. Is that also a negative prognostic factor
10 that you would add?
11 A. It could be in the sense that even in the initial Stup trial,
12 only about half of the patients do the full course of chemotherapy, and
13 his likely of surviving would probably be halved if he cannot tolerate
14 any further chemotherapy.
15 Q. All right. And this is just the second course of chemotherapy
16 and already his plate hat are levels are already not back up to the point
17 where he can start on schedule; isn't that right?
18 A. That's correct.
19 Q. And the average age in the Stup test, which is at footnote 1 of
20 your report, and that involves more than 500 patients, the median
21 survival rate of that group was about 14 months; correct?
22 A. That's correct.
23 Q. And the average age of the cohort was 56; correct?
24 A. That's about his age, yes.
25 Q. Now, you say at page 8 of your report "progression free survival
1 in patient's lacking methylation status is notably shorter than in
2 patients who do have this characteristic. In the study by Park et al.,
3 patients lacking methylation status showed a median time to progression
4 of six months, even if median survival was 17 months. This means that
5 Mr. Hadzic is more likely to show early progression. If early
6 progression occurs, it is highly likely that Mr. Hadzic will no longer be
7 able to attend trial."
8 Now, can you just define for us the term "progression" as you've
9 used it here?
10 A. Progression would mean that even if he's not showing any major
11 deficits right now, that that would occur. First of all, he could
12 develop what is called a hemiparesis which means that he could go
13 paralysed on one side of his body, the left side of his body. And there
14 could be other deficits occurring. Epilepsy might be more difficult to
15 contain with drugs he's taking right now.
16 There are two issues or two factors that, let's say, are
17 worrisome in terms of early progression and that is: First of all, the
18 marker, the biomarker that you mentioned, the absence of methylation
19 status, which would mean that he has a lesser likelihood of responding to
20 the chemotherapy; and secondly, the fact that his tumour is multifocal.
21 It is at the same time, it is -- in the cortex, which means the grey
22 matter of the right hemisphere, and it's also deeply located.
23 Q. And those with methylation status have a lower median lifespan
24 and a lower median time to progression; is that correct?
25 A. That's correct.
1 Q. Now, I mentioned earlier in your report that you give an estimate
2 of Mr. Hadzic's lifespan which is different from giving the median
3 lifespan. Can I now ask you if -- possibly to give an estimate for the
4 time to progression for Mr. Hadzic given all the factors that you relied
5 on in coming to the estimate of his lifespan?
6 A. Any estimate of that would be highly speculative, but it could go
7 from weeks to several months, maybe a year.
8 Q. Now, may I ask you a few questions about the nature of the
9 treatment that Mr. Hadzic will be receiving. Am I correct that he can
10 take the Temozolomide orally?
11 A. That's correct. It's an oral treatment.
12 Q. And would it be feasible for Dr. Taphoorn, for example, to review
13 blood results if they were sent to him from Novi Sad?
14 A. Without any doubt.
15 Q. And would that provide most of the information that he would need
16 in order to give proper advice at least up until the time of the MRI scan
17 which occurs in early May?
18 A. Not only blood results but also his physical condition, whether
19 any deficits might occur.
20 Q. And provided he was given that information, would in your view
21 that provide him with a basis to give any information or guidance that
22 would be necessary in respect of the treatment only for the period from
23 now until the time of the MRI?
24 A. Provided any local neuro-oncologist or neurologist would need
25 such support from Dr. Taphoorn, I think it would be possible.
1 Q. Dr. Cras, thank you very much for your testimony.
2 MR. GOSNELL: Those are my questions, Mr. President.
3 JUDGE DELVOIE: Thank you.
4 [Trial Chamber confers]
5 JUDGE DELVOIE: Dr. Cras, we have a few questions for you as
7 Questioned by the Court:
8 JUDGE DELVOIE: I think I might have one.
9 When you examined Mr. Hadzic, was it only a physical examination
10 or did it include asking questions and/or giving information?
11 A. As we doctors commonly do, we start out by asking the patient
12 questions on how he's feeling. And was already mentioned, I did also a
13 Montreal Cognitive Assessment and asked the translator whether he noticed
14 any word-finding difficulties.
15 JUDGE DELVOIE: Thank you. I turn to symptoms of the
16 chemotherapy. Are there times of the day when those symptoms are more
17 acute; for instance, in the morning or to the contrary in the afternoon?
18 A. I think that would be a better question to ask Dr. Seute who is
19 coming tomorrow. In general, the side effects are related to the time of
20 administration of the drug, so they occur shortly after administration
21 but would probably last throughout the day. I would assume that when
22 taking the chemotherapy, he would not be fit to do any -- to be present
23 or to intervene in a trial.
24 JUDGE DELVOIE: If I understand you correctly, you're saying
25 during the day he is taking the medication?
1 A. Right.
2 JUDGE DELVOIE: So that means during the five days of the cycle
3 followed by three weeks of rest period.
4 A. Yes.
5 JUDGE DELVOIE: So during those five days, he would not be --
6 A. He would not be fit, Your Honour.
7 JUDGE DELVOIE: Thank you. In your report, you have indicated
8 that attending and participating in the trial will be hazardous to
9 Mr. Hadzic's health and will most likely compromise the treatment plan.
10 Can you provide the Chamber with concrete examples of how attending and
11 participating in the trial will be hazardous to Mr. Hadzic's health? And
12 I'm not referring to the days he's taking his medication.
13 A. I think that statement needs clarification. I would say that if
14 the participation in the trial would intervene in any way with his
15 therapy, that would be hazardous.
16 JUDGE DELVOIE: Thank you. You told us that you examined
17 Mr. Hadzic on the 5th of February, that is more or less a week after the
18 chemotherapy medication had to be stopped on the 28th of January due to
19 the negative effects of the medication on the production of blood cells.
20 In your report, page 5, you noted in this regard:
21 "The latest lab results that I could examine were of the 27th of
22 January and still showed a moderately reduced number of blood platelets
23 and white blood cells."
24 My first question is about the use of the word "still." You
25 write the 27th January lab results still show moderately reduced numbers.
1 Could you please that word "still" in light of the fact that this lab
2 test is one day prior to a decision to stop the medication due to the
3 blood problem?
4 A. "Still" refers to the fact that the influence of the chemotherapy
5 on the bone marrow producing white blood cell and platelets can be long
6 lasting, and I did receive the blood result from the 5th of February. I
7 can't remember the exact numbers, but there was still a reduction of the
8 platelets in that particular lab result.
9 JUDGE DELVOIE: But you -- in your report you say the last --
10 let's see where it is: "The last lab result that I could examine were on
11 the 27th of January."
12 A. That's correct. It could have been that I received that lab
13 result after I submitted the report. I'm not sure of that.
14 JUDGE DELVOIE: Okay.
15 MR. GOSNELL: Mr. President?
16 JUDGE DELVOIE: Yes.
17 MR. GOSNELL: I'm sorry to interrupt, but I wonder if I could
18 make an interjection here in respect of the question you asked.
19 JUDGE DELVOIE: Why should you, Mr. Gosnell?
20 MR. GOSNELL: It just has to do with the date of the stopping of
21 the chemotherapy.
22 JUDGE DELVOIE: Wasn't what I said correct?
23 MR. GOSNELL: I believe that you said it was the 28th?
24 JUDGE DELVOIE: Yes.
25 MR. GOSNELL: And the medical report of the 21st indicates that
1 the chemotherapy had to be stopped. And that's the 21st of January. I
2 just thought I should bring that to your attention, Mr. President.
3 JUDGE DELVOIE: Okay.
4 MR. GOSNELL: I don't know if it makes any difference one way or
5 the other.
6 JUDGE DELVOIE: I take this information from a report from, I
7 think, Dr. Tenhaeff, but okay. It's on the record now.
8 My second question, Dr. Cras, in this regard is whether on the
9 5th of February when you examined Mr. Hadzic, you were able to see
10 symptoms of this problem that caused the medication to be stopped, or
11 were you able to detect such symptoms in the answers Mr. Hadzic gave to
12 your questions about his health situation?
13 A. No, the lab result does not have an influence on his physical
14 status. The reduction of blood platelets and reduction of white blood
15 cells respectively leads to an increased tendency to bleed, and increased
16 tendency to have an infection.
17 JUDGE DELVOIE: Thank you. I seem to read your report as saying,
18 in short, that at the moment you examined Mr. Hadzic - at that moment -
19 his health condition was not really bad, to put it mildly, but that you
20 are rather pessimistic of the future. The evolution of his health
21 condition being, at a minimum, very uncertain. For the first part of my
22 summary, I refer to the following quotes from your report:
23 "Mr. Hadzic is well-orientated, expresses himself clearly. There
24 are no word-finding difficulties. In the last few days, he has being
25 suffering from light to moderate headaches, and he has been suffering
1 from headaches in the past. His equilibrium seems to be normal. There
2 is no disturbance of fine motor movements. On the Montreal Cognitive
3 Examination, he scores 27 out of 30, which is a normal score. Presently,
4 Mr. Hadzic is in a moderate health condition. He does not show
5 significant neurological deficits."
6 Would you agree with my reading of your report with regard to
7 Mr. Hadzic's health condition at the moment you examined him?
8 A. That's a correct summary of my report. At present, Mr. Hadzic is
9 in a moderately good health condition. His prognosis is poor, though.
10 JUDGE DELVOIE: Thank you. So I take it you would agree with my
11 reading of your report with what to expect for the future. Would it be
12 accurate to say that for the immediate future, it all depends on
13 Mr. Hadzic's physical and mental reaction to the planned chemotherapy and
14 how and how much side effects of the therapy will develop on the one
15 hand, and on the other hand what the result will be at the end of the
16 therapy cycle; all of this being very uncertain?
17 A. That's correct. Although his condition -- the deterioration of
18 his condition will depend certainly more on the evolution of the tumour
19 than the chemotherapy by itself.
20 JUDGE DELVOIE: Thank you very much, Mr. Cras.
21 Judge Mindua has a question for you, Mr. Cras.
22 JUDGE MINDUA: [Interpretation] Good morning, Dr. Cras. I have a
23 small question to ask you concerning the appraisal, the Montreal
24 Appraisal Test. You said that you have followed a patient in this
25 appraisal, this Montreal Appraisal, and according to you he has a
1 cognitive level which is normal.
2 My first question is could you briefly explain in what
3 consistency exactly this appraisal or assessment? My second question,
4 which I ask now, do you mean to say that on the mental psychological
5 plane, for the moment the patient is capable to understand the
7 A. Your Honour, do I answer you in English or in French?
8 JUDGE DELVOIE: Please do, Mr. Cras.
9 A. The Montreal Cognitive Assessment is a test -- is a screening
10 test, and I emphasise the word "screening test," which is used to examine
11 executive function, which means drawing ability, co-ordination, abstract
12 reasoning, then attention is also examined, short-term memory is
13 examined, and some other tests of word fluency and abstract reasoning.
14 It is a test that is well suited for people who have close to normal
15 cognitive ability, because in that highest range, let's say, of cognitive
16 ability it is very sensitive to change. Is there something wrong?
17 Should I stop?
18 MR. STRINGER: Mr. President, I think English is coming through
19 the French channel and vice versa.
20 JUDGE MINDUA: That is true, but I can follow as well in English.
21 It's okay.
22 THE WITNESS: Excuse me.
23 JUDGE DELVOIE: Please continue, Dr. Cras.
24 A. So it's a test that is well suited to normal function. It would
25 not be appropriate for a patient with early Alzheimer's disease, for
1 example, where we would use another screening test.
2 The second part of your question whether it is a good indicator
3 of whether a person is fit to appear in court and stand trial, I don't
4 think it is. It has not been validated for that purpose. I know because
5 I have some experience with it but in another context, that there is a
6 test but it's more elaborate and a little bit more subjective also, a
7 test which is called the MacArthur Competence Test to plead in court.
8 And we've had some experience with that test, but as I said it's more
9 elaborate and I don't have experience with that test in court matters,
10 but I do have experience with the MacArthur test with patients with
11 reduced competence. So there is a test to see whether a person is fit to
12 plead in court.
13 JUDGE MINDUA: [Interpretation] Thank you very much. Thank you.
14 JUDGE DELVOIE: Mr. Stringer.
15 MR. STRINGER: Mr. President, I tried to save just a minute or
16 two, and with the court's permission I would respectfully request just
17 two follow-up questions, if I may.
18 JUDGE DELVOIE: Please go ahead.
19 MR. STRINGER: Thank you, Your Honour.
20 Re-examination by Mr. Stringer:
21 Q. Dr. Cras, just to clarify your answer in response to one of the
22 questions that His Honour Judge Delvoie asked you about the part of your
23 report that referred to a hazardous impact of court proceedings. If I
24 understood your response correctly, the answer is it would be hazardous
25 if his coming to court prevented him taking his chemo medicine during the
1 five days of the 28 day-cycle. Is that a correct understanding?
2 A. Not just a mere fact of taking the medication but also recovering
3 from the treatment.
4 Q. All right. But during the other, say, 23 days of a given cycle,
5 do you leave open the possibility that he may be able to attend
6 proceedings, of course, depending on his other symptoms and how he's
8 A. That would have to be judged at that particular time.
9 Q. And then the second question relates to something that you were
10 asked by my learned friend Mr. Gosnell. On this issue of progression, as
11 a layperson I think of "progression" as sort of the opposite of
12 remission, maybe that's not a correct way of thinking of it. Remission
13 being the situation has stabilised, the cancer is not advancing or
14 growing. Is that roughly an accurate way of thinking about it?
15 A. That's correct. One talks about progression free survival, for
16 example. "Progression" meaning that the tumour does not grow or does not
17 cause any further deficit.
18 Q. And that as a result of the absence of this methylation status
19 biomarker, the prospects for progression are enhanced in this case?
20 A. That's correct.
21 Q. And as we know again, without being able to make specific
22 predictions, we know that the prognosis for Mr. Hadzic is not good. My
23 question then is is based on what we do know now -- and let me just take
24 a step back to shift away from the question I was asking you about
25 earlier, relating to his going to Serbia or not between now and May, now
1 the question relates to more the prospect of finishing this trial.
2 All being -- all things being equal, it seems to me that as time
3 goes on, the spot -- the prospects for finishing the trial diminish so
4 long as Mr. Hadzic's presence is required. That over the shorter term it
5 may be that the prospects of completing the trial are better than they
6 are over the longer term. Could you comment on that?
7 A. I'm not informed about the present status of the trial, neither
8 of its progression. But -- yeah, you would assume that with time
9 progressing it would be more difficult for him to appear in court and to
10 intervene, yes.
11 Q. Thank you, Dr. Cras.
12 JUDGE DELVOIE: Mr. Gosnell.
13 MR. GOSNELL: Mr. President, may I ask leave for just two
14 follow-up questions in relation to those questions?
15 JUDGE DELVOIE: Go ahead.
16 MR. GOSNELL: Thank you, Mr. President.
17 Re-examination by Mr. Gosnell:
18 The first question has to do with the issue of your use of the
19 word "hazardous" and what might be hazardous or could be hazardous.
20 Would it also be hazardous if Mr. Hadzic is required to engage in certain
21 activities on -- on the days when he is not receiving chemotherapy if it
22 impedes his ability to recover from having received the chemotherapy?
23 A. That's what I mentioned to the question of the Prosecutor. If it
24 would limit his ability to recover from the treatment, it would -- it
25 would impair the treatment, yes.
1 Q. Is stress a major factor that could impede recovery from the
2 effects of taking chemotherapy?
3 A. Stress is a very general expression. It would depend on what
4 kind of stress. Impaired sleep, fatigue, any type of stress, but it --
5 it's too general as a statement.
6 Q. And fatigue could be caused by mental exertion under the
8 A. It could be.
9 Q. And the second question I have for you concerns the methylation
10 status. I just want to be clear about this. It's not the methylation
11 status -- the methylation negative status alone that is a indicator of
12 progression. There are a series of factors that lead to progression;
14 A. As I mentioned already, the poor prognostic factors are the fact
15 that there has been no attempt of resection of the tumour, because it's
16 too large, it's diffuse. Secondly, the methylation status that you refer
17 to, that's the most important.
18 Q. But even assuming that Mr. Hadzic was methylation positive, the
19 immediate assessments of likely progression would still apply; isn't that
21 A. Well, it still remains that the tumour is diffuse and there has
22 been no attempt of resecting it.
23 Q. Thank you, Dr. Cras?
24 MR. GOSNELL: Thank you very much, Mr. President.
25 JUDGE DELVOIE: Thank you.
1 Dr. Cras, we thank you for coming to the Tribunal to assist us
2 with your testimony. We thank you for your report. You are now released
3 as a witness. The usher will escort you out of the courtroom. Thank you
4 very much.
5 THE WITNESS: Thank you, Your Honour.
6 [The witness withdrew]
16 [Open session]
17 THE REGISTRAR: We are in open session, Your Honour.
18 MR. GOSNELL: Mr. President, as I'm -- I know ...
19 JUDGE DELVOIE: Yes, Mr. Gosnell.
20 MR. GOSNELL: Mr. President, the second urgent request for
21 interim relief filed on the 20th of February, as I'm sure I don't need to
22 remind you, is still pending, and of course we understand that these
23 hearings are primarily in relation to the initial request for provisional
25 We would request and apply for either an oral ruling on the
1 second interim request, for which I believe there was a response sent by
2 e-mail yesterday by the Prosecution, or a decision, again issued on an
3 interim or short-term time-frame. I know that Your Honours were able to
4 do that in respect of the first interim request. We were very gratified
5 that that was done so quickly. And so that would be our application,
6 Mr. President, either that there would be an oral ruling or a decision on
7 very short-term basis.
8 JUDGE DELVOIE: Thank you, Mr. Gosnell.
9 Mr. Stringer, do you want to intervene?
10 MR. STRINGER: Well, just --
11 [Trial Chamber and registrar confer]
12 MR. STRINGER: Counsel's correct, Your Honour. We sent an e-mail
13 to Chamber's yesterday in which the Prosecution indicated that we don't
14 intend to file a written response to the second urgent request. We would
15 incorporate what we said in our 16th of February response to the initial
16 provisional release motion as what would be our response to the second
17 urgent request.
18 I would add, if I may, it's our understanding that if it hasn't
19 started already, Mr. Hadzic is scheduled to begin his next round of
20 chemotherapy tomorrow or the day after, and so it's not clear whether the
21 counsel is proposing that he should travel or that this resumption of
22 this next round of chemotherapy impacts the timing of this request at
24 We are going to hear the next expert tomorrow. At that point the
25 Chamber will have everything it needs, I think, to rule on the original
1 motion for provisional release as well as the subsequent urgent request,
2 and we urge the Chamber simply to issue one ruling that embodies not only
3 the issues related to Mr. Hadzic's condition but also what is for us the
4 important issue of flight risk, which is part of the equation here as
5 well. Thank you.
6 JUDGE DELVOIE: Thank you.
7 Yes, Mr. Gosnell.
8 MR. GOSNELL: Just one very brief follow-up on that,
9 Mr. President.
10 And here, the medical report of the 18th of February, 2015, is
11 relevant. Because there is now an indication that the chemotherapy may
12 not be able to start on the date that we had previously thought and that
13 the doctors had foreseen, so there is actually an indication of a
14 possible delay. And also, Your Honours, it's precisely because of
15 assuming that at best case scenario that he is able to start on the date
16 foreseen, that we request an urgent or immediate ruling on this decision
17 because he would be able to start the chemotherapy after having
18 travelled, and therefore that is significant.
19 And if I could just put on the record, and I know Your Honours
20 know this, but also there is a difference in terms of the relief. The
21 second interim request is only asking for three weeks, which now I would
22 also say is encompassed by this most recent decision about fitness or
23 indication of fitness by the medical officer of the ICTY. So that does
24 distinguish it from the original motion.
25 JUDGE DELVOIE: Thank you, Mr. Gosnell. By all means the Chamber
1 is working on a ASAP decision on the matter.
2 If there is nothing further, Court adjourned.
3 --- Whereupon the hearing adjourned at 11.18 a.m.,
4 to be reconvened on Thursday, the 26th day of
5 February, 2015, at 2.30 p.m.