Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12555

 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

 6     courtroom.

 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

12     Prosecution.

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.


Page 12556

 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]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

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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.


Page 12558

 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

Page 12559

 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

14     complaints.

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

20     case.

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,

Page 12560

 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

Page 12561

 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

 6     physician.

 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?

Page 12562

 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

Page 12563

 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

Page 12564

 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

17     treatment.

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?

Page 12565

 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,

11     yes.

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

15     that?

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

Page 12566

 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.

Page 12567

 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

Page 12568

 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.


Page 12569

 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

 9     questions.

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.

Page 12570

 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

10     status"?

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

Page 12571

 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

 4     diseases.

 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;

Page 12572

 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

 8     demanding.

 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

11     report?

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

Page 12573

 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

24     therapy?

25        A.   It would probably be the same.  It would be about one-third of

Page 12574

 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

Page 12575

 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

Page 12576

 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

Page 12577

 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.

Page 12578

 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.


Page 12579

 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

 6     well.

 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?

Page 12580

 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.

Page 12581

 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

Page 12582

 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

Page 12583

 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

Page 12584

 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

 6     proceedings?

 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


Page 12585

 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

Page 12586

 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

 7     feeling?

 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


Page 12587

 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.

Page 12588

 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

 7     circumstances?

 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;

13     correct?

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

20     correct?

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.


Page 12589

 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]

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

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

24     release.

25             We would request and apply for either an oral ruling on the


Page 12590

 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

23     all.

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

Page 12591

 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

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 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.