1 Monday, 12th October, 1998

2 (Open session)

3 --- Upon commencing at 10.10 a.m.

4 JUDGE KARIBI-WHYTE: Good morning, ladies and

5 gentlemen. May we have the appearances now?

6 MR. NIEMANN: Your Honours, please, my name

7 is Niemann, and I appear with my colleagues, Ms.

8 McHenry and Mr. Huber, for the Prosecution, Your

9 Honours.

10 JUDGE KARIBI-WHYTE: Thank you very much.

11 May we have the appearances for the Defence, please?

12 MS. RESIDOVIC: Good morning, Your Honours.

13 I'm Edina Residovic, Defence Counsel for Mr. Zejnil

14 Delalic. Mr. Delalic is also represented by my

15 colleague, Mr. Eugene O'Sullivan, Professor from

16 Canada. Thank you.

17 MR. MORRISON: Good morning. My name is

18 Howard Morrison. I appear together with Madam Nahada

19 Buturovic for the defendant, Mr. Mucic. My learned

20 friend Mr. Greaves is together with me acting as

21 consultant.

22 JUDGE KARIBI-WHYTE: Thank you. The further

23 appearances, please?

24 MR. KARABDIC: Good morning, Your Honours.

25 I'm Salih Karabdic, attorney from Sarajevo, Defence

1 Counsel of Mr. Hazim Delic. Mr. Delic is also defended

2 by Tom Moran, attorney from Houston. Thank you.

3 MS. McMURREY: Good morning, Your Honours.

4 I'm Cynthia McMurrey and, along with Ms. Nancy Boler,

5 we represent Esad Landzo.

6 JUDGE KARIBI-WHYTE: Thank you very much. I

7 think we will start with the motion by Ms. Residovic.

8 We will have a reply by the Prosecution, if there is

9 any. Can we hear you, please?

10 MR. O'SULLIVAN: Yes, Your Honours. Good

11 morning. Your Honours have before you our written

12 submission on this matter. We ask that attachment

13 number 3 and annexes "A" to "G" of the Prosecution's

14 Sentencing Submission be struck from that submission

15 and, thereby, from the record.

16 We have two bases for making this motion,

17 Your Honours. First, in our submission, this is a

18 deliberate attempt by the Prosecution to place before

19 the Tribunal documents which this Chamber and the

20 Appeals Chamber have ruled inadmissible.

21 I must say at the outset, Your Honour, that,

22 in our submission, this borders on misconduct by

23 counsel, and at least it certainly would be close to

24 that in some national jurisdictions. In any case, in

25 our submission, it amounts to a flagrant disrespect for

1 the rulings and lack of deference of the rulings of

2 this Tribunal, and it's an inappropriate attempt to

3 circumvent decisions already handed down by two

4 Chambers of this Tribunal.

5 A second basis for which we say that these

6 attachments and annexes ought to be struck is that

7 they amount to a violation of the fair trial provisions

8 of the Statute, Articles 20 and 21, and a violation of

9 the Rules regarding the presentation of evidence, and

10 those are Rules 85 and 89. By presenting to the

11 Tribunal evidence or documents which have been ruled

12 inadmissible, it amounts to a prejudice of detrimental

13 effect to the accused and does not provide for a fair

14 determination of issues before the Trial Chamber.

15 For those two reasons, Your Honours, we

16 respectfully request the relief sought, namely, that

17 attachment 3 and annexes "A" to "G" be struck from

18 the Prosecution's Sentencing Submission and from the

19 trial record.

20 Those are our submissions.

21 JUDGE KARIBI-WHYTE: Thank you very much. Is

22 there any other contributions?

23 MR. MORRISON: Your Honours, on behalf of

24 Mr. Mucic, I respectfully adopt the submissions made by

25 Professor O'Sullivan and simply add this addendum to

1 it, without reducing, in any way, the impact of those

2 submissions. Although the Court is going to be seized,

3 on many occasions, of evidence where a judicial

4 decision has to be made to filter out those parts of

5 any given statement which go, perhaps, to guilt and

6 those which go to mitigation, that is never an easy

7 exercise, even with the greatest respect to experienced

8 Judges.

9 Therefore, with an abundance of caution, in

10 my submission, if there is any doubt at all as to the

11 efficacy, effect, or direction in which any testament

12 or statement goes, it is within the bounds of natural

13 justice to exclude it, so that the defendant himself is

14 certain, in his own mind, that no account, either

15 conscious or subconscious, has been taken of that

16 document.

17 With that addendum, I adopt the former

18 submissions.

19 JUDGE KARIBI-WHYTE: Thank you very much.

20 May we hear Mr. Moran?

21 MR. MORRISON: Yes, Your Honours, we will

22 also join Ms. Residovic's motion, and we will join for

23 the reasons she set forth and for two additional

24 reasons.

25 One, it is clear in every jurisdiction that I

1 have ever heard of that sentencing for rules of

2 evidence and letting evidence in is much looser than

3 deciding whether someone is guilty or innocent. It is

4 to provide the Court with information to sentence. But

5 that having been said, this Court has specifically

6 ordered that these documents not be admitted and,

7 secondly, the Court, in its scheduling order of

8 September 10th, said that this proceeding will be

9 limited solely to issues relating to punishment. Those

10 documents clearly, I believe, relate solely to guilt

11 and innocence.

12 I don't want to relitigate that issue. We've

13 already done that, and I think the Court should exclude

14 that, strike it from the record.

15 JUDGE KARIBI-WHYTE: Thank you.

16 MS. McMURREY: Your Honours, I would like the

17 record to reflect also that the Defence of Esad Landzo

18 joins in the arguments of Counsel for Delalic.

19 JUDGE KARIBI-WHYTE: Thank you very much.

20 May we hear the Prosecution, please, in reply?

21 MR. NIEMANN: Thank you, Your Honour. Your

22 Honours, the approach that's been adopted by the

23 Defence in this case seems to proceed on the assumption

24 that there's only one basis upon which evidence may be

25 admissible before you. As Your Honours well know,

1 evidence may be admissible on a number of grounds. It

2 doesn't have to be related strictly to the issue of

3 guilt or innocence.

4 Mr. Moran is quite right, that when it comes

5 to sentencing, the procedures are much different to

6 that which apply to tendering evidence in the course of

7 the trial in order to determine guilt and innocence.

8 Indeed, this is reflected, if Your Honours

9 please, by the Rules of the Tribunal, because Rule

10 100(A) makes reference to the fact that the Prosecutor

11 and the Defence may submit any relevant information,

12 which, Your Honours, is a much broader and wider term

13 than, for example, the tendering of evidence in order

14 to determine guilt or innocence.

15 The material that is put before you, in our

16 submission, specifically for the issue of the behaviour

17 of the accused after their arrest and during the course

18 of the trial, Your Honours, in the course of the

19 submissions that will be urged upon you by the Defence,

20 particularly in the annexes of Delalic, specific

21 reference is made to the sentencing principles which

22 apply in Yugoslavia.

23 I'll take Your Honours to them in the course

24 of my submissions, but you'll see by that, Your

25 Honours, that clearly conduct after the arrest, during

1 the course of trial, and up to the time of sentence is

2 a matter that is appropriately considered by the Courts

3 of Yugoslavia. They are not alone in that. There are

4 numerous jurisdictions which permit that. It certainly

5 comes within the rubric of relevant information, Your

6 Honours. On that basis, that is the course taken by

7 the Prosecution.

8 I have a couple of cases on the point which

9 may assist Your Honours, and there is a reference that

10 I have to the Queen v. Albright, 1987, that's reported

11 in 37 Canadian Criminal Cases, 3d, page 106. In that

12 judgement, the Court is referring to an earlier decision

13 of the Queen v. Gardener, 1982, 68 Canadian Criminal

14 Cases, and the Supreme Court of Canada says this in

15 relation to evidence which may be submitted during the

16 sentencing process, as opposed to at trial. They say,

17 and this is at page 106:

18 "It is commonplace that the strict rules

19 which govern at trial do not apply at a sentencing

20 hearing and it would be undesirable to have the

21 formalities and technicalities characteristic of the

22 normal adversary proceeding prevail. The hearsay rule

23 does not govern the sentencing hearing. Hearsay

24 evidence may be accepted where found to be credible and

25 trustworthy. The judge traditionally has a wide

1 latitude as to the sources and types of evidence upon

2 which to base his sentence. He must have the fullest

3 possible information concerning the background of the

4 accused if he is to fit the sentence to the offender

5 rather than to the crime."

6 There is also, Your Honours, a helpful

7 comment in a decision, which, no doubt, Mr. Moran is

8 familiar with, of Williams v. New York, reported at

9 page 337, 247 United States Reports, where the Supreme

10 Court of the United States related to a similar issue

11 observed:

12 "Tribunals passing on the guilt of a

13 defendant always have been hedged in by strict

14 evidentiary procedural limitations. But basically

15 before and since the American colonies became a nation,

16 courts in this country, and in England, practised a

17 policy under which a sentencing judge could exercise

18 wide discretion in the sources and types of evidence

19 used to assist him in determining the kind and extent

20 of punishment to be imposed within the limits fixed by

21 law."

22 They then go on and say:

23 "Rules of evidence have been fashioned for

24 criminal trials, which narrowly confine the trial

25 contest to evidence that is strictly relevant to the

1 particular offence charged. These rules rest, in part,

2 on a necessity to prevent a time-consuming and

3 confusing trial of collateral issues. They were

4 designed to prevent Tribunals concerned solely with the

5 issues of guilt of a particular offence from being

6 influenced to convict for that offence by evidence that

7 the defendant had habitually engaged in other

8 misconduct. A sentencing judge, however, is not

9 confined to the narrow issues of guilt. He is tasked

10 with affixed statutory and constitutional limits as to

11 determine the type and extent of punishment after the

12 issue of guilt has been determined. Highly relevant,

13 if not essential, to his selection of the appropriate

14 sentence is the position of the fullest information

15 possible about the defendant's life and

16 characteristics.

17 Modern concepts of individualising punishment

18 have made it all the more necessary that a sentencing

19 judge not be denied the opportunity to obtain pertinent

20 information by a requirement of rigid adherence to

21 restrictive rules of evidence properly admissible at

22 trial."

23 Your Honours, to suggest that, somehow or

24 another, we are guilty of misconduct because we have

25 put before you information which you may find of

1 assistance when it comes at the imposition of a

2 sentence, in light of those quotes that I have given

3 Your Honour, is an absurd suggestion. The information

4 that Your Honours have, you can accept or reject it.

5 It's a matter for Your Honours. It's put there as

6 information which we think may be of assistance to

7 you.

8 Because it's been ruled inadmissible in the

9 course of the trial in no way precludes its admission

10 at this stage if Your Honours should find it of

11 assistance to you when you are reaching your

12 determination on the appropriate sentence to be

13 imposed.

14 Those are our submissions, Your Honour.

15 JUDGE KARIBI-WHYTE: Thank you very much.

16 I'm not familiar with the decided cases of the

17 jurisprudence on which these quotes have been cited,

18 but I think that there is some substantive difference

19 between a situation where mitigation of sentence is

20 part of the proceedings before conviction, and the

21 situation where it becomes only the proceedings after

22 conviction.

23 Here, it appears mitigation of sentence is

24 part of the proceedings before conviction, and that is

25 what our new Rules appear to suggest. It's not a

1 differentiated procedure after conviction.

2 MR. NIEMANN: I think, Your Honours, that the

3 information that is put before you now and over the

4 course of the next few days --

5 JUDGE KARIBI-WHYTE: I'm not saying that the

6 theories you have put forward are wrong, because

7 sentencing is mainly a discretionary matter, but it's

8 the procedural rules that I'm a little worried about,

9 because there are a few things in favour of accused

10 persons during trial. These are not things which could

11 be affected by the sentencing procedure, if you bring

12 it within the trial.

13 MR. NIEMANN: I assume that when the decision

14 was made for Your Honours to consider sentencing

15 matters in a more economical way, I might say, during

16 the course of the trial, rather than after a verdict

17 has been returned, was based primarily on the fact that

18 it is recognised and understood that Your Honours are

19 judicially trained, legally trained, judicial officers,

20 who will deliberately exclude sentencing material from

21 your consideration when it comes to the determination

22 of guilt or innocence. I presume that Their Honours

23 considered this when they amended the Rules to make

24 provision for this information to be provided at this

25 stage of the proceedings.

1 It's interesting, Your Honours, that there's

2 been no amendment to Rule 101, for example, which, if

3 Their Honours were concerned about the issue that Your

4 Honour Judge Karibi-Whyte mentions to us, they might

5 have amended that, because, specifically, Rule 101

6 provides that the parties may put before the Court, in

7 determining sentence, any aggravating circumstances.

8 Your Honours, I would be surprised if you

9 will hear any material or evidence of aggravating

10 circumstances coming from that side of the room.

11 Presumably, it's intended that the Prosecutor would put

12 that before Your Honours, if that information is

13 available.

14 If that's not the case, then Rule 101(B)(i)

15 becomes dead letter or, alternatively, there must be an

16 opportunity, after this exercise when Your Honours

17 return your verdict of guilty or not guilty, for the

18 Prosecutor to then present to you evidence of

19 aggravating circumstances.

20 It's our understanding that that was not the

21 intention of the Rule. The intention of the Rule was

22 that all of these matters were to be dealt with in the

23 course of presenting evidence at trial and that Your

24 Honours would very carefully separate and distinguish

25 material which is to be considered for sentence from

1 that which is to be considered for the determination of

2 guilt or innocence.

3 It is on that very basis that some evidence,

4 which is completely inadmissible for the purposes of

5 trial, can become admissible for the purposes of

6 sentencing.

7 JUDGE JAN: Any documents which you have

8 added, would they have a bearing on the quantum of

9 sentence?

10 MR. NIEMANN: They go to the character of the

11 accused, which is an issue that Your Honours will be

12 concerned with when --

13 JUDGE JAN: To show the character of the

14 accused, or do they relate to the guilt or innocence of

15 the accused?

16 MR. NIEMANN: We put them up only on one

17 basis, Your Honour, we make this very clear, it is put

18 up on the basis of going to the character of the

19 accused for the determination of any sentence that may

20 be appropriate, having regard to the fact that Your

21 Honours will want to become familiar with the

22 circumstances of the character of the accused. That's

23 the only basis that it is put before Your Honours.

24 JUDGE KARIBI-WHYTE: Thank you very much.

25 MS. RESIDOVIC: Your Honours, may I just

1 briefly comment on this remark on the part of the

2 Prosecution? You have already pointed to us not to

3 seek other legislations if we have rules of our own.

4 We have a unified proceeding here, and we have had a

5 presentation of evidence which should be sufficient for

6 the Trial Chamber to reach its decision.

7 This Trial Chamber is now proceeding in the

8 same manner as the courts in the former Yugoslavia and

9 now in Bosnia and Herzegovina are proceeding. In other

10 words, we have a unified proceeding in which both the

11 aggravating and mitigating evidence may be presented in

12 order to present all the facts of the case, but they

13 cannot offer inadmissible evidence. This would

14 constitute the evidence that this Tribunal has already

15 rejected.

16 Both this Trial Chamber and, in some cases,

17 the Appellate Chamber has rejected some of this

18 proposed evidence four times and six times. In our

19 legal system, our rules of procedure also point to

20 that, to take into account the legislations of the

21 former Yugoslavia. First, the evidence offered by the

22 Prosecution can be rejected on its own merits, and we

23 stay with all the evidence which we have presented and

24 which my colleague, Eugene O'Sullivan, has offered to

25 you.

1 JUDGE KARIBI-WHYTE: Thank you very much.

2 Mr. Morrison, have you anything to add?

3 MR. MORRISON: Just one matter, please, Your

4 Honours. Even on the limited basis which the

5 Prosecution say they seek the inclusion of this

6 evidence, that is, going after character, they make, in

7 my respectful submission, a fundamental mistake.

8 Before relevance and, therefore,

9 admissibility is finally determined in respect of any

10 piece of evidence, the Tribunal has to be satisfied as

11 to its reliability as a fundamental pre-set of the

12 admissibility of any evidence. It would be patently

13 unjust to admit any document or any part of any

14 document if there has been any doubt as to its

15 reliability, credibility, and trustworthiness. I use

16 the words "credibility" and "trustworthiness"

17 deliberately, because, in his recent submission, my

18 learned friend Mr. Niemann quoted an authority where

19 the basis for the admission of any evidence was its

20 credible and trustworthy nature.

21 Now, if I may refer to you to page 3 of the

22 submissions, this motion, as far as my learned friend

23 madam Residovic is concerned, it says this at the

24 centre of page 3: "Annex D contains a document

25 which is purportedly a report on the handing over of

1 the duties of prison warden," allegedly signed by

2 Mr. Mucic, Mr. Delic, and Mr. Delalic. There is no

3 proof of authenticity of this document, either in

4 regards to its provenance or its authorship. Indeed,

5 the Trial Chamber stated in its decision of the 19th of

6 August, 1998: "This is a document of doubtful

7 validity."

8 Well, if any document is of doubtful

9 validity, that is simply another way of saying that it

10 is not credible. If it doesn't pass the credibility or

11 reliability test, and that is on the criminal burden of

12 proof beyond a reasonable doubt, not on the civil test

13 of a balance of probabilities, then it simply is

14 inadmissible for any purpose, whether it goes as to

15 character or as to issues of guilt.

16 If, in any Tribunal, judges wish to find

17 aggravating circumstances, then, of course, they are

18 entitled to do it from credible, admissible evidence,

19 and nothing else.

20 Those are my submissions.

21 MR. MORRISON: Your Honour, to rather quickly

22 explain the Supreme Court case that Mr. Niemann quoted,

23 it's the practice in American Federal Court for a

24 probation officer, who is an officer working for the

25 Court, to prepare a background investigation on the

1 defendant. It's been the practice for many years.

2 It's changed because of our sentencing guidelines, but

3 the Court's decision was to allow the admissibility or

4 allow the Court to consider -- it is not even

5 admissible evidence. It's not evidence at all. It is

6 information that it given to the judge so that the

7 judge can know the background of the defendant and some

8 of the facts.

9 Clearly, if a defendant is caught in the gaol

10 with a weapon or is fighting with the guards or

11 something like that, that's relevant to a sentencing

12 decision. In fact, if --

13 THE INTERPRETER: Could Counsel please speak

14 up a little bit for the benefit of the interpreters?

15 Thank you.

16 MR. MORRISON: Sure. But the lack of

17 evidence of that doesn't -- in fact, the Court can

18 almost presume that if the Prosecutor doesn't show

19 evidence that someone has been behaving badly in gaol,

20 that he is behaving well. That is different from

21 admitting or presenting to the Court, for its

22 sentencing decision, evidence that has been excluded by

23 a court order.

24 For instance, again, using the American

25 system, if a federal judge has excluded a confession

1 because it was not taken under the proper procedures,

2 similar to our rules where a person is warned, the

3 Court could not consider that confession at punishment

4 in arriving at a sentence. It's just simply not usable

5 for anything.

6 Here, again, no one is complaining, or at

7 least I'm not, about evidence of my client's behaviour

8 in custody or what he did here, what he did there.

9 What our complaint is about is presenting to the Court

10 documents which the Court has explicitly excluded from

11 evidence, saying that, for whatever reason, it should

12 not be presented to the Trial Chamber. That's a wholly

13 different thing from evidence of showing character.

14 Our objection is limited not to the

15 background information, i.e., what Mr. Niemann was

16 talking about, their behaviour, or at least my client's

17 behaviour, between his arrest -- actually, his

18 surrender, he wasn't arrested, he surrendered, and

19 today, but, rather, those documents that the Prosecutor

20 tried to get in, and the Trial Chamber and the Appeals

21 Chamber said, "No. We're not going to admit them."

22 MS. McMURREY: Your Honours, my colleagues

23 have discussed, at length, the credibility of the

24 evidence to be admitted on sentencing, but I would like

25 to remind the Court that the Prosecution has also

1 included, in their submission, evidence that is not

2 relevant to the punishment of our clients, in that in

3 their victim impact statements, they have included

4 losses, pains, injuries, that the witnesses say

5 themselves were a result of the war in general, the

6 loss of their home, the loss of their income, the loss

7 of the lives of their family.

8 Under the Tadic decision, of course, the only

9 relevant evidence is the evidence which is directly

10 related to the injuries, pains, or problems associated

11 and related directly to the defendant in this case.

12 The victim impact statements that they have submitted

13 as sentencing evidence and aggravating circumstances,

14 the whole war was an aggravating circumstance, but it

15 has to be directly related to Esad Landzo who caused

16 that event to happen on each one of these victims.

17 I know that, based on the Tadic decision,

18 this Court will be able to see that 90 per cent of the

19 victim impact statements that they presented are

20 irrelevant to this proceeding. Thank you.

21 JUDGE KARIBI-WHYTE: We will take these

22 arguments into account when the sentencing procedure

23 will take place, because the whole thing is part of the

24 proceedings, and we don't give a separate decision on

25 each part of the proceedings. It is an integrated

1 procedure. Thank you.

2 I think the next matter we have is

3 Ms. McMurrey's witness; is that right?

4 MS. McMURREY: Yes, Your Honour. I'm

5 assuming that the Prosecution does not have any

6 witnesses to present at this hearing, and the order of

7 appearance of the Defence evidence in this sentencing

8 hearing was reversed, and I am prepared to go forward

9 this morning.

10 I would like to apprise the Court that I have

11 a change in the presentation of oral evidence.

12 Dr. Van Leeuwen will not be appearing, and the only two

13 witnesses we will be calling today will be Dr. Goreta

14 and then Goran Jelisic, who is a detainee in the

15 Detention Centre who will be present here this

16 afternoon. So we have only two witnesses to offer oral

17 evidence today.

18 JUDGE KARIBI-WHYTE: You can proceed with

19 your first witness now.

20 MS. McMURREY: The Defence of Esad Landzo

21 calls Dr. Miroslav Goreta.

22 Your Honours, while we're waiting for

23 Dr. Goreta, I would like to offer the written

24 statements that we are offering into evidence for

25 mitigation to punishment for Esad Landzo at this time.

1 They have previously been provided to the Prosecution,

2 and I would like to submit these at this time as

3 evidence for mitigation of punishment.

4 JUDGE KARIBI-WHYTE: Thank you.

5 MS. McMURREY: If I might have the assistance

6 of the usher.

7 (The witness entered court)

8 MS. McMURREY: In lieu of oral testimony, the

9 Defence would like to offer these written statements as

10 evidence of mitigation of punishment.

11 JUDGE KARIBI-WHYTE: Would you kindly swear

12 the witness, please?

13 THE WITNESS: I solemnly declare that I will

14 speak the truth, the whole truth and nothing but the

15 truth.

16 JUDGE KARIBI-WHYTE: Thank you very much.

17 You can take your seat, please.

18 MS. McMURREY: Your Honour, just for the

19 record, were those written statements admitted into

20 evidence for sentencing?

21 JUDGE JAN: These are your written

22 statements?

23 MS. McMURREY: Yes, sir.

24 JUDGE JAN: I'm telling you, speaking for

25 myself, I will have a look at these documents only

1 after I have decided whether your client is guilty or

2 not guilty.

3 MS. McMURREY: I think that would be most

4 proper.

5 JUDGE JAN: The same applies to the documents

6 which the Prosecution has added. I look at them only

7 after I have decided whether the particular accused is

8 guilty or not guilty.

9 MS. McMURREY: Thank you, I think that's most

10 appropriate. I'm submitting them now just based upon

11 the scheduling order and trying to follow the orders of

12 this Court. So, they are submitted into evidence to be

13 considered at your leisure, Your Honours.

14 JUDGE KARIBI-WHYTE: Kindly examine your

15 witness.

16 WITNESS: MIROSLAV GORETA

17 Examination by Ms. McMurrey:

18 MS. McMURREY: Thank you. Could I ask the

19 usher to move this thing? I can't see Dr. Goreta.

20 Thank you very much.

21 MS. McMURREY:

22 Q. Good morning, Dr. Goreta?

23 A. Good morning.

24 Q. This has nothing to do with the case, but I

25 would like the Court to know that I have taken

1 Dr. Goreta away from his home and family today. It is

2 his birthday and his son's birthday. So happy

3 birthday.

4 A. Thank you.

5 Q. Would you please state your full name for the

6 record?

7 A. My name is Miroslav Goreta.

8 Q. Dr. Goreta, can you tell me, what is your

9 profession?

10 A. I have specialised in neurology and

11 psychiatry, and I'm dealing with forensic psychiatry.

12 I've been doing that for almost 30 years now.

13 Q. Thank you. Can you tell the Court a little

14 bit about your educational background, please?

15 A. I completed the school of medicine in Zagreb

16 at University of Zagreb in 1969. After that I did one

17 year internship also in Zagreb. After that I worked as

18 a physician with the Yugoslav People's Army, which was

19 part of my regular military service. After that, I

20 specialised in neuro-psychiatry, that is neurology and

21 psychiatry, at the psychiatric clinic of Vrapce where

22 I've been working since 1971 until today.

23 At that clinic, at that hospital, as part of

24 my duties in 1980, after I completed postgraduate

25 studies in psychotherapy, I defended my thesis, which

1 had the title Psychodynamic Aspects of the Criminal

2 Behaviour.

3 In 1983 I defended my doctoral thesis, whose

4 title was Psychoanalytic Approach in the Evaluation of

5 Criminal Responsibility.

6 As I have already told you, I've been working

7 as a forensic psychiatrist, and as part of that I also

8 was head of certain departments at the clinic, and I am

9 now head of the Centre for Forensic Psychiatry. For

10 the past four or five years I've been head of the

11 department of the forensic psychiatry.

12 I have organised a number of programmes for

13 subspecialisation in the field of forensic psychiatry,

14 which lasts three years and which is conducted for the

15 most part at our institution at the Centre for Forensic

16 Psychiatry.

17 Since 1980 I've been working as assistant at

18 the medical school of the University of Zagreb, the

19 chair of forensic psychiatry. In the past four years

20 I've been working as the head and organiser of these

21 particular studies. I have four courses, I teach four

22 courses in the field of forensic psychiatry.

23 I have also lectured at several other

24 postgraduate studies at the University of Zagreb,

25 within the same field, again, forensic psychiatry. I

1 am also a lecturer at this legal faculty at the

2 University of Zagreb, and I teach a course entitled

3 Forensic Psychiatry, again.

4 I'm also president of the Croatian

5 Association of Forensic Psychiatry, which is part of

6 the Croatian Medical Association, and I'm on the board

7 of the Croatian Association for Studies in

8 suicidology. I am also a member of several other

9 psychiatric associations and societies.

10 As for international organisations are

11 concerned, I would like to state that I'm a member of

12 the International Committee for Mental Health, which

13 has its seat in Montreal. I'm also a member of the

14 International Association for Forensic Psychotherapy,

15 which was founded in Leuven and has its seat currently

16 in London.

17 I believe that this is, that I've given you

18 the most important points as regards the question that

19 you have asked me.

20 Q. You were also, I see, president of the ethics

21 committee, as far as psychiatry goes at your hospital;

22 weren't you?

23 A. I was the president of the ethics committee

24 at our hospital; but now I am a member of the ethics

25 committee of the Croatian Psychiatric Association,

1 which is an umbrella organisation for all associations

2 that I have mentioned.

3 Q. You are widely published, you've written many

4 articles and several books; haven't you?

5 A. Let me correct you. I'm not quite sure I

6 understood you. Did you say ethics or ethnic

7 committee? Of course, I was the president and a member

8 of the ethics committee. This may be quite important

9 in this particular context.

10 Q. You are correct, I did say ethics. So,

11 that's what I understood.

12 A. Very well, then.

13 Q. Can you tell the Court a little bit about

14 your history as far as publications go?

15 JUDGE KARIBI-WHYTE: Don't you think you will

16 save a lot of time if you let him give his evidence?

17 If there is any other way you can introduce his

18 curriculum vitae, let us do it.

19 MS. McMURREY: Your Honour, I do have his

20 curriculum vitae to introduce into evidence;

21 unfortunately, the list that I have of publications and

22 writings is still in Croatian. I will substitute that

23 at a later date, but he is quite well published, and I

24 would like to offer this into evidence at the moment,

25 with the assistance of the usher.

1 Just to assist, since it is in

2 Serbo-Croatian --

3 JUDGE KARIBI-WHYTE: This is evidence in

4 mitigation of factors which are admitted in

5 mitigation. The most important thing -- we appreciate

6 his quality, everything is quite good; but let us hear

7 exactly why you think there should be mitigation.

8 MS. McMURREY: Then I'm going to proceed on

9 the assumption that you accept that Dr. Goreta is an

10 expert in the field.

11 JUDGE KARIBI-WHYTE: Yes.

12 MS. McMURREY:

13 Q. Now, Dr. Goreta, you have written one article

14 in particular that was introduced into evidence in the

15 Defence case as D83/4, but it was only introduced for a

16 limited purpose. Can you tell the Court the

17 circumstances surrounding, and the reason for the

18 studies and the article that you wrote called

19 Post-Traumatic Stress Disorder Resulting from War

20 Traumas and its Forensic Psychiatric Meaning?

21 A. The basic reason for studying war trauma and

22 its significance for forensic psychiatry was the

23 situation that was the result of war. Our centre

24 participated in sending a number of perpetrators of

25 various criminal offences who participated in war

1 activities, and for whom it was established by the

2 Court that they were perpetrators, and they requested a

3 number of opinions as to the forensic aspects of such

4 disorders.

5 So, very often we had evaluation as to the

6 criminal responsibility, mental responsibility, the

7 danger that a person would pose to its surroundings,

8 and the need to conduct psychiatric therapy.

9 In most of these cases, the Court, in view of

10 war circumstances, emphasised the need for us to

11 explain the extent to which the war situation could

12 have influenced a particular individual in terms of

13 trauma, and so on; bearing in mind, of course the

14 situation in Croatia during the war, and also in

15 Bosnia-Herzegovina during the war, because we had a

16 number of requests from courts in the territory of

17 Bosnia and Herzegovina.

18 Therefore, we were often required to throw

19 some light on these circumstances and to discuss

20 possible pathology of these subjects, and the

21 evaluation, and the importance of these court

22 evaluations.

23 Since I worked as the head of this particular

24 clinical department, and since I am also a lecturer and

25 teacher, in addition to our daily practical work, that

1 is, the drafting of our professional opinions and

2 reports, we also tried to bear in mind, to take into

3 account the scientific side of such expertise.

4 This was one of the first researches that I

5 conducted personally and which I deemed suitable for

6 publication abroad so that necessary comparisons could

7 be made with the other various authors from other

8 countries, especially countries that found themselves

9 in similar situations, that is, regional war, such as

10 in Vietnam, the Falkland Islands, Lebanon and many

11 other regions, which I don't need to dwell on at the

12 moment.

13 Q. Dr. Goreta, if the expert witness for the

14 Prosecution said there was no difference in the

15 psychodynamics of the Vietnam syndrome and the

16 psychodynamics of the Balkan war; would he be correct?

17 A. It is a matter for the international research

18 community to accept or to refuse in the following

19 years. I don't know.

20 My impression, my personal impression, which

21 I mentioned in my article, and which by no means had an

22 objective to establish criteria, definite criteria for

23 evaluating this, is that, as far as we are concerned,

24 we are happy with the criteria stated in two major

25 world psychiatric classifications.

1 As for specific circumstances of the Balkan

2 war, which are difficult to explain here in few words,

3 they have been discussed in a number of papers and

4 books by authors from the former Yugoslavia and other

5 countries which published very precious papers on this

6 subject.

7 My attitude is these special circumstances

8 can be evaluated as an additional criteria for

9 diagnosis; and therefore, we should offer them to the

10 international psychiatric community and also to our

11 courts, which has been accepted now as part of our case

12 law.

13 As for the psychodynamics and the description

14 of the symptom, this may not be the main purpose of

15 this question. However, I wish to mention, as far as

16 I'm familiar with this case, there have already been

17 problems in regard to that; that is, the descriptive

18 explanation of terms and symptoms, and the

19 interpretation of these symptoms.

20 One symptom can be, can function differently

21 at a pharmacological level, and it can mean something

22 completely different at this particular level, the

23 descriptive psychodynamics.

24 Throughout my work I have tried to integrate

25 this descriptive pharmacological approach and the

1 psychodynamic approach. And I thought, I hoped that

2 such an integration, such a common approach will yield

3 more quality results, more quality findings than a

4 reduced approach that we had so far, which was more

5 theoretical, and which sometimes did not pay enough

6 attention to the subject concerned.

7 Again, everything we say must result from our

8 communication with the person in question, and that

9 communication has to be put into the context of

10 relevant classifications which are accepted today.

11 However, this all has to be explained through

12 the psychodynamic dimension, without which it would be

13 practically impossible to follow the dynamics of that

14 particular communication, the mechanisms of defence,

15 the treatment of the victim and so on.

16 I have to apologise for the length of my

17 explanations.

18 Q. I think the main question is: Can you state

19 specifically what the main difference in the criteria

20 is between the PTSD associated with the Vietnam war

21 versus the PTSD and the results associated with the

22 Balkan war?

23 A. As for the essential criteria, there are no

24 differences, because we are obliged to accept the valid

25 psychiatric classifications.

1 However, I have to add that in Croatia and in

2 the former Yugoslavia before, we were legally bound to

3 apply criteria of the World Health Organisation, and

4 the classification. Before the classification that was

5 applicable, ICD-9 and DSM-3 were also valid at that

6 time.

7 However, in Croatia right now we are bound to

8 apply the ICD-9 classification. There are no basic

9 differences in these two classifications, and there

10 should not be any. But what I offered as a possible

11 touchstone, for practical purposes, is the fact there

12 is a difference between a soldier going to fight in a

13 foreign country and a soldier fighting in military

14 operations in his own country.

15 In many cases this was often in the vicinity

16 of his home, where he had to defend his family, his

17 children, his home. That particular effect further

18 complicated his relations with his family, with his

19 neighbours, with persons who were very close to him,

20 but who had different political and religious

21 convictions.

22 In such a situation we have a very sensitive,

23 we're dealing with a very sensitive area, and it is

24 very difficult to define, to delineate. For example,

25 war front, front-line, in the particular area; and one

1 of the greatest problems that I came across throughout

2 my work with these people is the very loosely defined

3 role of the enemy.

4 Enemy could be a member of the regular JNA,

5 regular Yugoslavian People's Army, which disintegrated

6 later on, and where there were a lot of paramilitary

7 formations on various sides.

8 A neighbour could also be the person who

9 would attack the subject, that is the patient, or a

10 neighbour could participate in informing the enemy

11 about the subject. The neighbour could participate in

12 a number of irregular military attacks, and so on.

13 So, these are the specifics of the situation

14 we are dealing with. Civilians took part in these

15 conflicts. There were people wearing various uniforms,

16 various types of clothes, and there were cases of

17 Croatian army soldiers failing to recognise a fellow

18 Croatian soldier because of a type of uniform. I'm

19 speaking in general terms.

20 It is quite clear we should try to evaluate

21 the individual in every particular case, but we should

22 also try and assess the situation and the specific area

23 in which the events took place.

24 My conclusions are related to the situation

25 in Croatia in most of the cases; however, I'm very well

1 aware of the fact that the situation in Bosnia and

2 Herzegovina was much more difficult.

3 I can speak also as a citizen, but this can

4 also be translated into psychiatric jargon. I wish to

5 say that I do know that the Bosnian situation was far

6 more complex and more difficult than the situation in

7 Croatia. In my opinion, again, bearing in mind

8 individual cases, all our evaluations adopted an

9 individualistic approach, and they could be part of

10 forensic and psychiatric expertise. This was normally

11 accepted as expert opinion by the courts in our

12 country.

13 Q. Dr. Goreta, the article that I asked you

14 about, the Post-Traumatic Stress Disorder Results from

15 War Trauma and its Forensic Psychiatric Meaning; that

16 was published in a journal in the United States called

17 Journal of Psychiatry and Law; is that a well thought

18 of journal in international circles of forensic

19 psychiatry?

20 A. I think that you could get a more reliable

21 answer to that question from an American psychiatrist;

22 however, for myself, I can say that this is one of the

23 three most important publications, Forensic

24 Psychiatry.

25 We haven't mentioned the Forensic Psychiatry

1 magazine issued by the committee that has its seat in

2 Montreal, it's the International Journal of Mental

3 Health and Law, and I think that this is the number

4 one, which is immediately followed by the Journal of

5 Psychiatry and Law, and the bulletin of the American

6 Academy of Psychiatry and Law.

7 I am talking about English journals, which I

8 believe are the most interesting ones here. There is a

9 number of other very important, very valuable journals

10 that are published in other languages, as well.

11 MS. McMURREY: With the assistance of the

12 usher I would like to distribute and re-offer D83/4 into

13 evidence for all purposes, before it was introduced

14 only as something Dr. Grippon relied upon; now I

15 believe Dr. Goreta has written it, he says it is

16 reliable.

17 Q. One further question, Dr. Goreta, Judge Jan a

18 few months ago had asked, he said since this was

19 written in 1994, he asked whether this might still be

20 the opinion of you in 1998. I believe this study was

21 based on 25 people that you studied, and you've had the

22 opportunity to study many more cases.

23 Do your writings in 1994 still support your

24 beliefs and opinions today?

25 A. I believe so, and if anything I am even more

1 convinced of the correctness of the assertions which

2 have been offered in that article. I base that on the

3 subsequent research, one of which has been offered to

4 the Defence counsel here, but perhaps in a form that

5 may not rise to the level of a legal, of the highest

6 standard, because it has not been published yet.

7 This research continues, and this research

8 actually encompasses 120 subjects who have been

9 examined in the Vrapce Hospital Centre for Psychiatry,

10 and through which these findings have actually been

11 reconfirmed.

12 As the head of the centre, I have worked on

13 maybe 50 to 60 of these cases, out of 120, and have

14 written them up; but I have also examined all the other

15 subjects and contributed to the findings, and I believe

16 that I have had full insight into the entire work.

17 I want to add that the communication with

18 those subjects, as well as the part of the subjects

19 from this other larger study, it has been based on both

20 the descriptive level and the psychodynamic level,

21 which may not have been the case with some other

22 experts, it was also not necessary, that is, the other

23 experts who worked on the same sample.

24 So, the cases which have been described in

25 the first article have been more detailed, and the

1 article that is appending is based more on the

2 descriptive analysis and less on the, sort of the more

3 in-depth psychological analysis, even though the

4 majority of the psychiatrists working at our centre are

5 aware of the fact and are able to use this method as

6 well.

7 MS. McMURREY: Your Honours, based on the

8 fact that Dr. Goreta has now substantiated and believes

9 his report in 1994 is even more valid, from 25 subjects

10 now to 120 subjects, I ask that this article be

11 accepted into evidence for all purposes here at

12 sentencing, in total, for sentencing purposes, Your

13 Honours.

14 JUDGE JAN: What do you mean for all

15 purposes?

16 MS. McMURREY: I meant now you can consider

17 that it is not just something Dr. Grippon based his

18 opinion on.

19 INTERPRETER: Microphone, Your Honour,

20 please.

21 MS. McMURREY: Your Honour, I just want to

22 make it clear, the reason I'm going into this is

23 because, if the Court, you know, taking guilt or

24 innocence aside, chooses not to accept the affirmative

25 defence of diminished mental responsibility, then

1 diminished mental responsibility is still a most

2 appropriate issue for mitigation of punishment.

3 So, whichever way you look at it, the premise

4 of diminished mental responsibility is appropriate for

5 guilt or innocence and for sentencing considerations.

6 So, now I'm just asking that this Court be allowed to

7 read this whole article and take it as the word of this

8 expert, in his opinion. And so, I'm offering it for

9 sentencing purposes, Your Honour.

10 JUDGE JAN: In the sentencing stage we can be

11 a little more liberal in admitting evidence, as Mr.

12 Niemann has rightly pointed out.

13 MS. McMURREY: Yes, Your Honour.

14 MS. McHENRY: We have no objection.

15 JUDGE JAN: The Court has to exercise its

16 discretion, and the Court wants to make sure that no

17 injustice is done, even in the severity of sentence.

18 MS. McMURREY: Your Honours, we certainly

19 appreciate the discretion that is going to have to be

20 placed upon and the burden of discretion that has to be

21 placed upon this Court by being forced to hear

22 sentencing evidence prior to a determination of guilt

23 or innocence, and we have confidence that the Court is

24 able to differentiate those evidences and the burdens

25 they apply to.

1 But, I guess I'm used to, when I'm offering

2 something into evidence, I'm supposed to hear, in my

3 jurisdiction, it's accepted or not accepted; and that's

4 why I keep offering it. So, I'm assuming if there is

5 no objection from the Prosecution, it is accepted.

6 JUDGE KARIBI-WHYTE: Your main problem is you

7 don't know how to limit your arguments. If you are

8 proceeding in one, you know what you are offering in

9 evidence for that purpose, and do that. That is what

10 you are doing, you are offering Dr. Goreta's evidence

11 for the purpose of sentencing. It's all right for the

12 Trial Chamber to admit it for that purpose. You do not

13 go back to areas which have been traversed and to raise

14 the issues again, merely because you want to offer

15 evidence for sentencing. This is what you are now

16 trying to do. You don't go back to those areas.

17 MS. McMURREY: No, Your Honour, I'm trying

18 not to re-explore them and I do appreciate you pointing

19 out that one of my main problems is maybe focusing, but

20 I will try to concentrate. Thank you.

21 MS. McMURREY:

22 Q. I want to go on to -- you have written

23 several books dealing with the pathology of the body of

24 people caught up in the Balkan war. Can you tell us

25 how an intelligent, normal individual could display

1 behaviour that is totally inconsistent with their

2 normal pathology?

3 A. We are talking about intelligent, normal

4 persons. It is possible, and it has been shown, both

5 in this war and in some other wars, that influence by

6 some mad psychosis which is generated in such war

7 situations, especially with characteristics which I

8 have mentioned before as being present in a war

9 situation in the territory of the former Yugoslavia, it

10 is possible, and I'll say it conditionally, a normal

11 person can be brought into a situation that his or her

12 critical judgement becomes problematic and they reach

13 decisions or have perceptions or experiences of reality

14 which is completely twisted and different, based on

15 their intelligence.

16 I can step out of this situation in

17 Yugoslavia and point out to the Hitler's Germany, where

18 the top intellectuals, in one period of their lives,

19 completely lost critical judgement with respect to the

20 Nazi ideas and actually participated in the realisation

21 of those ideas, and the German psychiatrists who

22 themselves believed in the idea of Ubermensch and the

23 pure race, and of the racial cleansing of the German

24 people; and with full conviction, and in belief they

25 were doing a good and even sacred thing, sent thousands

1 of people to gas chambers.

2 Let me take you back to the former

3 Yugoslavia. I have to point out the influence of

4 propaganda, the influence of the media, which are well

5 documented, created enormous pressure on the people in

6 those territories and created effects that were full of

7 fear, a sense of threat, a sense of danger; and

8 regardless of the intelligence which these people may

9 have possessed, including intellectuals, have actually

10 brought into question their rational judgement.

11 It is interesting to observe such people

12 today, after the war has ended; and when they are able

13 to reflect on their positions and their judgements with

14 certain distance, how a number of them cannot

15 comprehend how at that time they were able to think in

16 such a way and even behave in a manner that was very

17 dangerous and which clearly could fall within the ambit

18 of criminal acts.

19 Some of the leading ideologues of this war

20 were psychiatrists themselves, and I think that their

21 names we all know.

22 Q. Now, you've dedicated a lot of your time and

23 energy to the study of the importance of the diagnosis

24 of Post-Traumatic Stress Disorder in the assessment of

25 criminal responsibility; is that true?

1 A. Yes.

2 Q. In particular, you've related the total

3 picture of the psychodynamics of the soldier or the

4 police officer to the commission of criminal acts

5 during the aggression by the Serb Yugoslav JNA from

6 1992 to 1994; that was the focus of your study, wasn't

7 it?

8 A. Yes.

9 Q. What was the description of the

10 characteristics, the basic characteristics of the group

11 of individuals that you studied and investigated?

12 A. I do not know how wide I should go with my

13 explanation with these characteristics, but what has

14 been published in these articles, most subjects from

15 these samples were young men, usually between 20 and 25

16 years of age, but there were also policemen, soldiers,

17 ranging up to 40 years of age.

18 This was logical because of the way the

19 Croatian army was constituted, and I believe, actually,

20 I am certain that it was a similar case in Bosnia,

21 where there was a sudden unexpected attack which took

22 place against these states, and the army needed to be

23 established as soon as possible. So, the criteria of

24 selection were very low.

25 The basic criteria was that somebody was

1 prepared to join in those combat operations, so, the

2 age, social status and even the health condition was

3 not considered that much.

4 So, one of the answers about what conclusions

5 we can draw from these articles, we see that a number

6 of the subjects had already been treated by

7 psychiatrists, and there were a number of those who

8 already had criminal records. All this is based on the

9 fact of this particular selection, that is, a need to

10 organise military units as soon as possible, those

11 units who could counter the attacks and aggression of

12 the Yugoslav People's Army and the paramilitary units.

13 Now, I do not want to go into any political

14 issues over any of this, but it was the situation that

15 this was a need to resist what was then considered as

16 the fifth or sixth largest army in Europe.

17 As far as their education and as far as the

18 entire organisation, it is clear that this was far from

19 perfect. Many of these units, at first, could not

20 function as modern armies. Many things there were

21 improvised, starting with the control and command to

22 the structure and so on, but these are not psychiatric

23 problems, strictly speaking, but it had its influence.

24 This is what I would have to say regarding

25 the sample. Maybe I'm going too wide here, so maybe it

1 is better if you ask me a question that would limit it

2 more to the psychiatric and forensic aspects of it.

3 Q. Basically, the group that you studied, I'm

4 assuming, is from 20 to 25 years old, mainly with a

5 couple younger and a few older. They were soldiers or

6 police officers, and they were persons who, during the

7 war, were accused of criminal acts?

8 A. Yes.

9 Q. I believe that you also said that most of

10 them had a secondary education, but that was about the

11 limit of their education?

12 A. Yes. Those are the basic data which are

13 relevant, both for the first research and then the

14 subsequent research. The individuals with higher

15 education, college graduates, were not typical there.

16 Mostly, these were people with elementary education or

17 some secondary education or part thereof, and then

18 there were also some who were peasants, that is, who

19 came from agriculture.

20 JUDGE JAN: Would persons with a higher

21 education behave differently? Would persons with a

22 higher education behave differently in such

23 circumstances?

24 THE WITNESS: I believe that, again, this

25 should be done based on the individual research. If

1 I'm to give an interpretation of the statistics here, I

2 believe that it could be interpreted at the level of

3 motivation. It appears that individuals with higher

4 education were not as motivated to step into such

5 high-risk situations as the individuals with a lower

6 level of education were. I think it is a matter of

7 ethics, and I would not want to go further into the

8 analysis there.

9 But through the research, as we came up with

10 results, people joined in mostly for patriotic reasons

11 or to defend their homes. As psychiatrists, obviously,

12 we do not always just accept these simplified,

13 straightforward reasonings, and we could easily

14 identify other motives they had. Especially with

15 people who had special mental disorders, these motives

16 were correlated. It had to do with the disassociation

17 aspects of these persons. This opened up the door to

18 the free expression of aggression, which would even be

19 awarded, which, as you know, is a general situation.

20 It is not specific to Croatia.

21 In many of these criminal acts, most of them

22 were murder attempts, commission of bodily injury, but

23 there were other criminal acts which were based on more

24 material motivations, regardless of the level of

25 rationalisation mechanisms. But overall, these

1 criminal acts were similar to the acts which such

2 persons had committed before the war, but now it was

3 rationalised in order to gain a more advantageous

4 position in court.

5 MS. McMURREY:

6 Q. I believe one thing that we discussed before,

7 in reference to Judge Jan's question, was that the

8 factor of intelligence and a normal pathology,

9 sometimes these people were just as affected with their

10 intellectual ability to function and reason normally

11 during this war situation as someone who was not as

12 intelligent. Would that be accurate?

13 A. Of course. I also believe that in the

14 layperson's -- even in court, the intelligence or IQ

15 can be used as a criterion for this person's ability to

16 distinguish between good and bad and that this is

17 sufficient to judge the criminal behaviour. But I must

18 say that this is a big illusion. It is true that such

19 persons in an experimental situation, they may score

20 well in a psychological test, but in some other

21 real-life situation, especially in a situation which

22 has strong effects linked to them, such as anger or

23 fear or a sense of threat, their rational behaviour can

24 be reduced and, in some extreme cases, can even be

25 excluded.

1 Now, I'm talking here about the very

2 intensive effects, and I do not need to point out their

3 presence in this general chaos and the sense of threat

4 which was present during the war in Croatia and

5 Bosnia. However, we have additional factors which may

6 further complicate the situation which is a very

7 frequent situation of alcoholic intoxication. I know

8 that in certain legislation, it is not allowed,

9 especially for psychiatric analysis, but a Court can

10 evaluate a state of tensions, but there are some

11 pathological states of tension which the normal action,

12 I believe, falls within the ambit of psychiatric

13 evaluation, and it will be evaluated as such by the

14 Court.

15 The third factor may be drugs which, in a

16 wartime situation, are usually not controlled and were

17 largely available for consumption. The use of such

18 drugs can also contribute to the reduction of, let's

19 say, an expected functioning, which is out of

20 proportion with the intellectual potential of a

21 particular individual, so that such an individual, in a

22 particular real-life situation, may behave completely

23 differently from what they would have normally done,

24 especially in a time of war where they are, let's say,

25 even a leader of a unit, and then he places both his

1 and his soldiers' lives in jeopardy.

2 JUDGE KARIBI-WHYTE: The Trial Chamber will

3 now rise and reassemble at noon.

4 --- Recess taken at 11.30 a.m.

5 --- On resuming at 12.06 p.m.

6 (The witness entered court)

7 JUDGE KARIBI-WHYTE: Please inform the

8 witness he is still under oath.

9 THE REGISTRAR: I remind you, sir, that you

10 are still under oath.

11 JUDGE KARIBI-WHYTE: Ms. McMurrey, I thought

12 you have done enough on the general background now.

13 This is a mitigation proceeding, and I think you should

14 focus on Mr. Landzo's mitigation evidence.

15 MS. McMURREY: Your Honour, I'm going to try

16 to stick exactly with my specific questions that I had,

17 which were focused from the beginning, but somehow we

18 have gotten off track. I will do my best. Thank you.

19 If I may proceed?

20 JUDGE KARIBI-WHYTE: Yes, you may.

21 MS. McMURREY: Thank you.

22 Q. Dr. Goreta, you have written extensively on

23 the application of PTSD on criminal responsibility. It

24 is your opinion that PTSD alone will not excuse

25 criminal responsibility of the individual, but PTSD,

1 combined with the total psychodynamic pathology of the

2 individual, can and often does rise to the level of

3 diminished responsibility. I think what you're saying

4 is that you have to take in the whole, total

5 individual. Would you explain that just a bit?

6 A. Yes, I would. I do not exclude the

7 possibility for the PTSD to be the reason for a

8 complete exclusion of criminal responsibility. In our

9 criminal law, we use the term "mental responsibility,"

10 "mental accountability," and so on. We have to bear

11 in mind that there are several editions of our criminal

12 texts. The term we use is "mental responsibility."

13 We have to take into account flashback

14 situations, for example, hallucinations. These are the

15 phenomena which, at the level of the individual, may be

16 identical to an event that the individual experienced

17 during the war, and now these phenomena are

18 reappearing, resurfacing in the real-life situation

19 when there is something similar that causes it. The

20 situation may be completely different. The individual

21 may find himself with his friends, family, and so on.

22 If, in such a situation, an individual

23 commits a criminal offence and his behaviour is

24 psychopathological, then that person can be deemed

25 mentally irresponsible. If the Court accepts such an

1 explanation, that person can be held criminally

2 accountable. We've had such examples in relevant

3 literature, but I haven't come across any of that

4 during my work.

5 The most frequent situation we've dealt with

6 is the PTSD being influential in the sense that it

7 decreases, diminishes, the mental responsibility. We

8 had a different system of various levels of criminal

9 mental responsibility. We've had severely diminished

10 mental responsibility and so on. It is possible, once

11 again, that such a phenomena can occur at the level of

12 PTSD. However, it is more likely that we are dealing

13 with a combination of various influences, that is,

14 primary disorders, personality disorders, as they are

15 described in one of the classifications that I have

16 mentioned some time ago.

17 Then we have stressful reactions, reactive

18 states, and so on. As far as the American

19 classification is concerned, there was no diagnosis of

20 this acute stress disorder, which has now subsequently

21 been introduced, and there are reasons for its

22 introduction. It is something that is quite important,

23 but at the time when we were doing our analysis, we

24 often gave a diagnosis which did not exist according to

25 the American classification. Had we done that

1 recently, we would have used the American type of

2 classification.

3 The reason I am mentioning this is the fact

4 that PTSD is something that is defined as a disorder

5 which lasts up to a month. If, however, it continues

6 outside that period of time, then it will get a

7 slightly different diagnosis.

8 Therefore, you can see that a purely

9 theoretical application of a diagnosis, without

10 properly taking into account other factors, is not

11 something that is objective, because we are also

12 dealing with the various conventions, various

13 descriptions, of particular illnesses. Therefore, you

14 can have various results, various findings, in

15 different analyses.

16 Also, I would like to mention, once again,

17 the importance of the impact of alcohol and other types

18 of intoxication. Those were the most common

19 combinations that led to a potential mitigation of

20 criminal responsibility.

21 Q. I believe what you're saying is that PTSD, in

22 severe cases, can rise to diminished mental

23 responsibility, but most often, when you have found

24 that there was diminished mental responsibility, it was

25 due to a combination of either a personality disorder

1 with PTSD or some kind of addictive alcohol or drug

2 addiction combined with PTSD; would that be fairly

3 accurate?

4 A. This would be accurate. However, I have to

5 state, once again, that the diagnosis is only the first

6 element for our evaluation. The subject who receives a

7 particular evaluation is then viewed within the context

8 of the criminal offence with which he has been

9 charged. Therefore, a person who commits,

10 intentionally, a theft or forgery of a document or

11 something similar, regardless of the severity of his

12 PTSD, he can be fully mentally responsible.

13 However, if such an individual is acting in a

14 situation which is particularly difficult for him in

15 terms of his effective functions, then we, as

16 psychiatrists, can evaluate him as not being fully

17 mentally responsible. This can lead to a mitigation of

18 sentence.

19 Again, we have to bear in mind the

20 individual, and we have to bear in mind all of the

21 factors that influence the individual and all of the

22 factors that influence the behaviour of the individual

23 at the relevant times, at the time of the commission of

24 the crime.

25 Q. When you talk about these effective

1 functions, I believe that the key that you're looking

2 at is whether he's able to understand his actions and

3 to control his actions at the time that he committed

4 the crime. Would that be the key that you're talking

5 about?

6 A. We always evaluate both intellectual and

7 willing functions, volitional functions. These can be

8 equally reduced in a particular situation. In extreme

9 cases, these volitional functions may even be

10 excluded. In some cases, however, there may be a

11 different problem. There may be a person who

12 understands his behaviour. There may be a person who

13 is fully aware of the fact that he is about to commit a

14 criminal offence. However, that person may be in such

15 an effective situation that he is acting out of fear, a

16 sense of threat or danger, and he, therefore, cannot

17 fully use that awareness. Because of that, a crime is

18 committed.

19 In view of all of these factors, we can,

20 therefore, talk about mitigating circumstances. This

21 is, I believe, defined in a similar way in most of the

22 legislations.

23 Q. In your studies that you conducted on these

24 soldiers and young police officers, can you tell the

25 Court what the general victimology was? Who were the

1 victims that they chose?

2 A. I believe that there are two large groups of

3 victims. There is a group of victims who were injured

4 parties in the combat area, in the area of military

5 operations. In our analysis, we had the so-called

6 suspicious Serbs, that is, the persons who, in spite of

7 their awareness of their own involvement in potentially

8 criminal acts, those were the persons who were thought

9 to be collaborators or informants of enemy forces or

10 were thought to hide weapons, to inform the other side

11 of specifics of grid references, and so on, that is,

12 the persons who were thought to be somehow involved in

13 military activities.

14 In the psyche of these persons, there is

15 something on the basis of which they were treated as

16 members of paramilitary forces. However, there were

17 those who participated in real military actions, and

18 these persons were, in most cases, victims. Very

19 often, they were taken prisoner, were detainees who

20 were not detained in any regular prison facilities.

21 They were detained, for example, in schools or some

22 other makeshift locations.

23 These situations are very harsh for such

24 individuals and can, somehow, be related to the

25 post-traumatic stress disorder. These persons were

1 victims of such perpetrators. These are the areas

2 closest to battle zones. However, in the area where

3 there were no military operations, such as Zagreb,

4 where soldiers would come for rest and recuperation,

5 very often, the victims were civilians, Croats or

6 members of some other nationality that was not the

7 enemy nationality.

8 However, because of the conflict, these

9 persons were somehow directly or indirectly related to

10 the military situation. These persons may have been

11 told that they were not very good soldiers, that they

12 were not participating in a proper way in the war, that

13 they had some kind of connections with the enemy, and

14 so on. Very often, we were dealing with persons who

15 had a narcissistic problem, and then they reacted out

16 of anger and, very often, again, they were in an

17 inebriated and intoxicated state, and they would pick

18 up victims among the citizens of the Croatian

19 nationality.

20 Let me give you an extreme situation, an

21 extreme case: There is the idea of an enemy which is

22 highly paranoical. Many Hungarians or Italians, for

23 example, were victims, people who were members of some

24 neutral nationality, neutral ethnic background, because

25 these perpetrators thought, believed, that they were

1 Serbs who were somehow colluding with the enemy and who

2 were about to attack them in the future.

3 Q. In your study of the soldiers who committed

4 crime during this time, you came up with some general

5 consistencies in their situations. I believe one of

6 them was the heightened feeling of being endangered; is

7 that correct?

8 A. Yes. I believe that I mentioned this during

9 my introduction, and I have offered several examples.

10 This is accurate. However, there is something that was

11 a realistic danger at the time. I'm sure you've come

12 across a number of examples of that. People had a

13 permanent sense of being endangered, and one could

14 never know when such feelings could result in very

15 severe situations. You have the example of Sarajevo,

16 for example, where parts of the town could be shelled

17 at any time from the surrounding hills.

18 All citizens of the town of Sarajevo at that

19 time had a long-lasting feeling that they could become

20 victims any time of the day. We had similar situations

21 in Vukovar or Dubrovnik. This was a realistic type of

22 danger. This was something real.

23 However, in addition to that, there was also

24 the problem of rumours, if one can call them that, and

25 the media propaganda. All these mechanisms that I have

1 mentioned are here at play. We have situations where

2 people react aggressively, paranoid, towards all

3 members of the so-called enemy nationality, enemy

4 religion, or enemy political party. This can be

5 related to any such segment of the social life. Any

6 person who had any kind of association with these, this

7 person can be viewed automatically as an enemy, as a

8 suspicious person, who would do something against the

9 perpetrator in the future.

10 This is very important in terms of social

11 psychology. This, by all means, intensifies the

12 feeling of being in danger. We all know that there

13 were lots of cases of neighbours killing neighbours,

14 members of one family killing members of the other

15 family, and so on. In the Croatian army, for example,

16 you could have an Albanian soldier or a Serb

17 soldier, and his need to demonstrate his loyalty to the

18 Croatian army was far greater than the need of simple

19 soldiers. He felt compelled to act braver and so on.

20 He could have felt the need to show himself off.

21 All these mechanisms should be taken into

22 account and related to the individual situation, of

23 course, bearing in mind the general psycho-pathological

24 context of the situation at the time.

25 Q. The second consistent factor that you found

1 in them was the undefined enemy, which we've already

2 talked about. I believe the third consistent factor

3 that you found in them was this breakdown of the

4 law-based state and their need to punish the

5 offenders. Can you just tell us a little bit about

6 that?

7 A. Again, I do not wish to be subjective. I

8 think it's common knowledge that neutral institutions,

9 neutral scientists, neutral scholars, have pointed out

10 that particular problem, that is, that in many areas

11 that were affected by the war, there was a breakdown of

12 the law-based state. Of course, even today, we have

13 similar problems. There was a total disintegration of

14 the legal system almost everywhere in the former

15 Yugoslavia, and the society itself could not function

16 properly.

17 This goes also for the military. One could

18 see that the hierarchy, the organisation, the

19 structure, did not really function. Many units were

20 acting only according to the orders of the low-level

21 commander and had no contact with higher authority.

22 People had the feeling that they were

23 defenceless, that there was nobody they could complain

24 to, that there was nobody they could sue. They had to

25 interact with their fellow unit members and so on.

1 When they found themselves in the situation where they

2 were able to capture the enemy or send him to prison,

3 these people, these individuals, experienced it as

4 something very, very unusual, something that was not

5 likely to happen, and so forth, because they had heard

6 of many prisoner exchanges.

7 There were quite a few people there, quite a

8 few prisoners, who were thought to be war criminals,

9 and these individuals had their own sense of justice.

10 It is, at this point, that their superego comes into

11 play. This is this fear where all social laws are

12 irrelevant. These individuals thought that they could

13 take justice into their own hands and that they could

14 act as judges to people whom they deem to be war

15 criminals. They thought that they were doing a good

16 thing. They thought that they were doing a favour to

17 their state, which could not properly function at the

18 time and which could not organise proper legal

19 proceedings.

20 Again, we have to take into account all other

21 psychological mechanisms, and we can also bear in mind

22 our common idea, our common view, that every crime

23 should be punished. But I better, perhaps, stop here,

24 because we are entering a rather complex area.

25 Q. Now, the fourth consistency you found among

1 your subjects was a transference of aggression. Can

2 you explain that to the Court, please?

3 A. It is a well-known mechanism, when we are

4 unable to counter the aggression because of the

5 circumstances, that then we will easily and quickly

6 transfer this aggression to someone else who does not

7 have this dimension of threat to us, or where we can

8 express this aggression without severe circumstances.

9 Again, in relation to PTSD, if a soldier

10 would be exposed to a high-stress situation, such as

11 death or mutilation of some of his fellow soldiers or

12 members of his family or destruction of property, and

13 when he was not able to return this aggression, then

14 you have a mechanism which would be a short-circuited

15 affect, where this aggression is transferred to someone

16 else who is, in any way, connected or associated with

17 his perception of the enemy.

18 In precisely such a case where you had

19 killings of prisoners, killings of neighbours, or

20 infliction of severe bodily injury to such persons,

21 this would be the mechanism of transference of

22 aggression.

23 Q. Dr. Goreta, you have read the previous

24 reports of the other mental health experts. You have

25 read the indictment, and you have reviewed most of the

1 documents in this case. Do you remember a specific

2 incident, including the testimony of Mr. Landzo before

3 this Court, a specific incident with an older man named

4 Bosko Samoukovic at Celebici. Can you relate this to

5 this concept of transference of aggression, so that the

6 Court can understand. This is a prime example, in your

7 opinion, is it not?

8 A. On the basis of information which you have

9 just mentioned which I learned, I believe that this

10 case would fit very well into the interpretation which

11 we have just given.

12 Q. Was there a brutal act that Mr. Landzo had

13 viewed out at Repovci? And then upon return to the

14 Celebici camp, did he exhibit the transference of

15 aggression when he arrived back at Celebici?

16 A. I know, both from the Court transcript and

17 from the reports of other psychiatrists, and obviously

18 from my conversation with Mr. Landzo, that what

19 preceded this was his knowledge of the death of nine

20 compatriots of his, among whom were some people who

21 were close to him. I believe that he may have even

22 seen some of the mutilated bodies. This is information

23 which I gained from Mr. Landzo, so this could be

24 brought under the umbrella of the PTSD. It must have

25 been an exceedingly traumatic experience with respect

1 to somebody who was close to him, so this could have

2 been a reason for this type of reaction.

3 We, again, go back to this case. If this was

4 experienced for the first time, it would be an acute

5 stress disorder, but if it was a repeated experience,

6 which was the case with people who spent a prolonged

7 time at the battlefront, then these traumas would

8 multiply and reactions would be enhanced, and they

9 would then compromise the psychic functioning even

10 more.

11 With respect to Mr. Landzo, there are some

12 earlier stress situations or other traumatic situations

13 I mentioned, especially his confrontation with the

14 brutal killings in a camp, which allegedly was run by

15 HOS, one of the Croatian military formations in that

16 area.

17 Q. Now, the fifth consistency that you found in

18 many of your subjects was centred around the special

19 relationship between the commander and the offender.

20 Can you explain a little bit about that?

21 A. Yes, I can, and I believe that this is very

22 important too. I would, again, like to stress the

23 significance of a situation where life, in a zone where

24 all ties with a law-based state has been severed, and

25 his commander -- let me use a hyperbole here: His

1 commander would be his god. This is where the soldier

2 transfers his superego first, because the commander

3 knows what good or what evil is.

4 Let me refer you, again, to the situation

5 where they thought that the enemy was going to destroy

6 their heritage, their families, their properties,

7 everything. So this significance would be enhanced in

8 comparison to a regular army situation. That meant

9 that any order is carried out without any critical

10 judgement, and I'm referring to my own personal

11 experience here. I spoke to a number of perpetrators.

12 It is not that they carried out the orders. They

13 needed, almost, to guess what the commander would like

14 them to do but may not be able to tell them because of

15 all kinds of political and other circumstances under

16 which the war was waged at the time.

17 The commander is somebody to whom all this

18 ethical system, so to speak, is transferred. Also, his

19 sense of responsibility is transferred, because if the

20 commander ordered something, "He knows better, and I

21 need to carry this out."

22 The model that I'm offering here should not

23 be applied indiscriminately to any case. When it came

24 to expertise, some of these soldiers, when analysed,

25 would say that they were betrayed by their commanders.

1 When these commanders would then be brought to testify,

2 they said that they never ordered any such thing, and

3 then, at the subjective level, this would be

4 experienced as betrayal. It becomes a catastrophe,

5 because the communication between the soldier and their

6 commander was such that it is a great betrayal, and it

7 generates a depressive reaction.

8 There were even cases when this happened in a

9 wartime situation. They were even attacking and, in

10 some cases, even killing their commanders because of

11 this sense of disappointment and betrayal.

12 Q. This heightened importance and significance

13 of the superior is worsened in a closed sphere such as

14 the Celebici camp, wouldn't it be?

15 A. I cannot specifically speak of Celebici, but

16 I can give you the generally known information

17 regarding concentration camps or similar types of camps

18 which are totalitarian institutions and where control

19 is complete on the part of the people who run them.

20 Obviously, it was manifested in its worst aspect

21 against the prisoners, and if there was any disobedience

22 of orders, this could also be turned against the person

23 who did not carry out the order.

24 These mechanisms in the camps such as you

25 mentioned were obviously there, and surrendering your

1 own integrity into the hands of the leader or whoever

2 was issuing orders there, that was never a matter for

3 discussion. It was an extreme situation.

4 Q. The sixth factor that you found consistent

5 with these people who did commit crimes during wartime

6 was the accessibility to arms which wasn't there before

7 the conflict; would that be right?

8 A. Yes. That was a very serious problem. It is

9 a problem that continues to be present in the regions

10 which have nothing to do with the wartime situation

11 anymore.

12 Let me give you an example. You have

13 quarrels, let's say, in bars and restaurants about,

14 let's say, an unpaid bill or something which used to

15 result in fist fights. Now you have weapons and even

16 hand grenades used in such situations. When the former

17 JNA barracks were taken over, there were huge amounts

18 of weapons which ended up in the hands of civilians,

19 and they still have not been retrieved to date.

20 Psychologically speaking, what is important

21 here is that if a person has problems with his or her

22 aggression or narcissism and similar things, weapons

23 serve those persons to overcome such deficiencies,

24 something which they lack, which is a lack of a sense

25 of power, of control. This is why such persons are

1 additionally motivated to acquire such weapons or to

2 join such formations where, by use of such weapons,

3 they could demonstrate their power or strength.

4 This is a universal phenomena, and we very

5 frequently encountered it with people who were

6 otherwise insecure, fearful, or had other identity

7 disorders.

8 Q. Now, can you just tell the Court what

9 materials you did review before you met with

10 Mr. Landzo?

11 A. Before I met with Mr. Landzo, I reviewed

12 materials from the Court proceedings here, which I

13 believe you may be better able to advise the Trial

14 Chamber as to the dates. I believe this refers to

15 July. It could have been later too. I also reviewed

16 materials where the written expert reports by expert

17 psychiatrists and psychologists were enclosed.

18 However, I did not have enough time to review

19 such voluminous material, but I was able to read

20 through it once over, and if I'm asked to, I probably

21 can comment on that.

22 Q. When, you reviewed the opinions of the other

23 experts, did you think that their evaluations were

24 fairly thorough in total? Not individually, but in

25 total, was it a fair evaluation of Mr. Landzo?

1 A. I believe that I am not in a situation where

2 I can really give you a very qualified opinion on the

3 extent of these reports. I have only spent the last

4 ten days reading them. I spoke to Mr. Landzo for three

5 and a half hours only, whereas, other experts had had

6 an opportunity to talk to him much longer.

7 In giving my opinion, I must first say that I

8 have not done everything I usually do in conducting a

9 full-scale expertise, but as far as I can tell, this

10 was not what was asked of me. I was just invited here

11 to give some views on the forensic aspects relating to

12 the wartime traumas.

13 With respect to everyone else who has worked

14 on the expert reports and opinions here, I would say

15 that they were of varying degrees, but what all the

16 experts seem to be saying is that they all agreed that

17 this was not a case of any kind of mental disease or

18 illness that was involved here.

19 Also, there were no mental disorders caused

20 by any organic or chemical causes, even though there

21 were some indications that, during one period of time,

22 he may have consumed larger amounts of alcohol, that

23 is, at one time, which, from my experience, was very

24 frequently the case during that period of time, but it

25 was not critical enough to rise to the level of

1 addiction.

2 Also, everybody agreed that Mr. Landzo --

3 JUDGE JAN: Doesn't that take the case out of

4 the British Homicide Act?

5 MS. McMURREY: Your Honour, I'm going to

6 follow-up. I believe he was talking about an organic

7 problem. I don't believe that he mentions --

8 JUDGE JAN: He talks about the normality

9 of --

10 MS. McMURREY: Yes, mental disease --

11 JUDGE JAN: -- mental development or disease

12 origin.

13 THE INTERPRETER: Microphone, Your Honour.

14 MS. McMURREY: Well, I think there is mental

15 disease and mental illness, and then there's organic

16 problems which come from a birth defect or something

17 like that. I believe that maybe he's confused, and I

18 will clear that up in a few moments, because I believe

19 mental disease and mental illness would fit under the

20 category of personality disorder.

21 MS. McHENRY: Your Honour, I certainly would

22 object to Ms. McMurrey testifying about the witness

23 being confused. I believe the witness's testimony

24 is --

25 JUDGE JAN: We will leave that to the

1 witness, won't we?

2 MS. McMURREY: I will clear it up, but I

3 would also like to remind the Court that this is in

4 sentencing only, not to be considered in the guilt or

5 innocence phase of this trial. So as the evidence

6 stands for --

7 JUDGE JAN: The diminished ability has two

8 dimensions. Firstly, relating to guilt, it reduces the

9 degree of homicide, murder to manslaughter. Second, a

10 sentence reducing the quantum sentence.

11 MS. McMURREY: Yes, Your Honour. Of course,

12 I really will clear this up with a follow-up question.

13 As a matter of fact, I was going to go ahead and

14 introduce his report into evidence first, and then I

15 will follow-up, if the Court would so like, but I will

16 ask him right now, because this is very important.

17 Q. You said, upon review of the other experts'

18 evaluations, that you saw that they did not find any

19 mental disease or illness, but in your expertise as a

20 forensic psychiatrist, personality disorder, combined

21 with a PTSD, would be a mental illness or disease, just

22 not an organic mental illness; would that be correct?

23 MS. McHENRY: I would object to the leading

24 nature of these questions.

25 MS. McMURREY: Your Honour, I just thought I

1 would expedite the answers to this by -- I am asking a

2 leading question, and I ask that maybe I be allowed to

3 ask that leading question in this situation.

4 JUDGE KARIBI-WHYTE: I'm sure it's too

5 technical for you, who is a layperson, to ask him such

6 questions. He tells you what it is, not you telling

7 him what it is.

8 MS. McMURREY: I'm just asking him to clarify

9 his position.

10 JUDGE KARIBI-WHYTE: You are not qualified to

11 give evidence like that.

12 MS. McMURREY: Yes, Your Honour. I don't

13 know that I'm so much a layperson after all I've read

14 recently.

15 JUDGE KARIBI-WHYTE: You are not qualified to

16 give evidence like that.

17 MS. McMURREY: I'm just teasing, but I would

18 like to ask him if that is his opinion or not.

19 JUDGE KARIBI-WHYTE: He has his opinion to

20 give.

21 JUDGE JAN: He's an expert witness. He's not

22 a witness as to fact. So the question of leading

23 questions really does not rise here.

24 JUDGE KARIBI-WHYTE: He knows what he says.

25 JUDGE JAN: It is a fact that you can

1 certainly ask. You know the question, suggesting the

2 answer itself --

3 THE INTERPRETER: Microphone, please.

4 MS. McHENRY: Normally, I would agree with

5 Your Honours, and, in fact, we have not objected, given

6 a very large amount of leading questions, but in this

7 particular case, given the circumstances, we do believe

8 it's objectionable.

9 JUDGE KARIBI-WHYTE: Let him answer the

10 question. He deserves the right to answer whatever

11 questions are put to him.

12 MS. McMURREY:

13 Q. Should I repeat it, Dr. Goreta, or do you

14 remember the question?

15 A. It's not necessary. Thank you. I only feel

16 the need to say that a discussion on what is a disease

17 and what is a disorder were very detailed. I can

18 reopen this discussion, but I'm not sure how much use

19 we will have of that.

20 In short, a disease is something that is

21 defined, and let me give you an example. Let's say

22 schizophrenia, a manic depressive psychosis, paranoid

23 psychosis, or an alcohol-induced delirium, in other

24 words, severe damage of psychic functions with a

25 severance from reality, but what we're trying to talk

1 about today is part of disorders. These are mental

2 disorders. Specifically, we are actually talking about

3 personality disorders.

4 A moment ago, I said that all the diagnoses,

5 which were not accepted by the previous experts, and

6 what I have just started saying, what was accepted by

7 most of them, is that Mr. Landzo has a combination of

8 personality disorder from the category which I

9 mentioned and based on both the classifications that

10 are in use.

11 The question is only which of these

12 personality disorders is dominant, given that what was

13 mentioned was the dependent personality disorder and

14 the schizoid personality disorders, the disassociative

15 personality disorders, and maybe one or two others.

16 The analysis of the entire material, and my clinical

17 impression from this single, but still long enough,

18 conversation seems to support the findings which go to

19 the dependent personality disorder.

20 However, I, too, agree that this is a

21 combination of several personality disorders, which is

22 why, in this short report, I specially mentioned his

23 problem of uncertain identity, which, in the

24 classification, may be found in different places, and I

25 may have omitted to say this. I think that this is

1 exceptionally important with a narcissistic personality

2 disorder and a borderline and schizoid personality

3 disorders. That means, in all cases, a problem of

4 identity.

5 This has been analysed in great detail in a

6 number of expert findings. To use a situation of the

7 false self, which is not so well-known, when the

8 subject does not have a well-defined personality and

9 tends to partially take over identity of some other

10 persons and is always seeking objects with whom he may

11 identify and whose models of behaviour they will

12 absorb, that's another aspect.

13 The third aspect is the problem of

14 narcissism, which, again, may not be related to a

15 single disorder. It is present with four or five

16 different categories, the most present with the

17 narcissistic, but also with paranoid, with borderline,

18 and with disassociative personality disorders. I'm

19 leaning towards the opinion that this dependent

20 personality disorder is in the foreground and that the

21 other aspects complete the diagnosis, and they may

22 account for his biography during the war and also his

23 biography overall.

24 Another thing that I want to mention here is

25 the post-traumatic stress disorder. Again, from

1 today's point of view, if I were to analyse all these

2 conditions, I think that it would be very difficult,

3 because six or seven years have gone by. Looking at

4 the entire material and the opinions of all the

5 experts, we see certain differences in opinion as to

6 when this PTSD actually has set in, in his case, what

7 intensity did the symptoms have, what forensic

8 relevance they may have, and how reliable the

9 information on these extreme traumatic situations are,

10 that is, the situations which we presume may have

11 caused this disorder.

12 I am inclined to accept that this disorder

13 did exist, whereas, in Mr. Landzo's case, a number of

14 arguments were offered for this theory. In addition to

15 the psychiatric criteria, there were also psychological

16 tests offered too.

17 I apologise. Is everything clear now? I

18 probably pushed some button.

19 Q. Dr. Goreta, we still have one question left

20 to be answered. I believe, in summary, what you have

21 just said is, yes, in your opinion, he had a

22 personality disorder with dependent personality in the

23 forefront, and then you list several others that he

24 exhibited also, combined with PTSD.

25 In your opinion, do these rise to the level

1 of a mental illness under the definitions that we're

2 dealing with or an abnormality of the mind?

3 JUDGE KARIBI-WHYTE: I don't see the

4 relevance of this. I don't see the relevance at all.

5 If you're asking him any causes for mitigation, you may

6 do so.

7 MS. McMURREY: Well, Your Honour, he's a

8 forensic --

9 JUDGE KARIBI-WHYTE: Please, I have told you

10 what you should do.

11 MS. McMURREY: Okay.

12 Q. You wrote a report based on your meeting with

13 Mr. Landzo. With the assistance of the usher, I would

14 like to -- you wrote this report this past Friday,

15 October 9th, didn't you?

16 A. Yes.

17 Q. You believe that report accurately reflects

18 your opinions, based on the time that you had to spend

19 with Mr. Landzo and the material that you have

20 reviewed?

21 A. Yes. My apologies. When I interrupted

22 myself, I thought that my communication here was

23 interrupted.

24 I did not say that this was my opinion of the

25 PTSD. My opinion is that there are no current clinical

1 symptoms, which does not mean that it may not reoccur

2 if the retraumatisation took place, in other words, the

3 manifestation of another trauma which may mobilise,

4 again, such symptoms. This is just what I wanted to

5 say in closing.

6 Let me move on to the next point. I don't

7 know about the terms, if it is "disease" or "illness"

8 that is being used, and, again, let me repeat,

9 Mr. Landzo does not have a mental disease, but he has a

10 serious psychological disorder, which I think we called

11 a personality disorder.

12 JUDGE KARIBI-WHYTE: I don't know whether Ms.

13 McMurrey briefed you on the need for your giving

14 evidence in these proceedings. All evidence about his

15 mental condition, about his mental state, has been

16 given in the proceedings proper.

17 In these particular proceedings, you are

18 merely invited to give evidence relating to

19 mitigation. We are not reopening all matters about his

20 mental condition or anything which concerns that. So I

21 don't think we should go back into those proceedings

22 and allow this. We have done enough of that for the

23 whole morning, and it appears that you are continuing

24 with the matter, and I don't think it is right.

25 MS. McMURREY: Your Honour, I just want it

1 known, for the record, that diminished mental

2 responsibility is the issue for sentencing also.

3 Therefore, even though what is evidence as far as guilt

4 and innocence goes has been given, and the Court has

5 that body of evidence, this body of evidence is still

6 relevant to sentencing. So his mental capacity, his

7 mental responsibility, is relevant at this point for

8 sentencing purposes also.

9 In this phase, it's only mitigation of

10 punishment. In that phase, it's a special defence, but

11 it's still relevant to both phases.

12 JUDGE KARIBI-WHYTE: I don't think you

13 understood what I said. We are not reopening whatever

14 we have done before now. This is what I've just said.

15 I thought it's simple enough for a normal, average

16 person to understand.

17 MS. McMURREY: Okay.

18 Q. Dr. Goreta, you have written this report, and

19 that report reflects your opinions on Mr. Landzo's

20 mental state at the moment, doesn't it?

21 A. Yes.

22 Q. Now, you met with Mr. Landzo on Thursday of

23 this week, October 8th, the day you arrived here,

24 didn't you?

25 A. Yes.

1 Q. How was your meeting with Mr. Landzo?

2 A. My meeting with Mr. Landzo was a three and a

3 half hour conversation on all relevant circumstances of

4 which I was aware and which I needed to address here as

5 my own and as I just understand are the focus here. It

6 was based on everything that I had read before, and as

7 I assumed it was going to be just one conversation, I

8 focused on all the aspects that may confirm or go

9 counter to the conclusions already present there.

10 Mr. Landzo, as I pointed out, was very open,

11 very motivated for cooperation, so that he was able to

12 provide valuable information about the situation. Now,

13 a certain situation he was not able to fully

14 reconstruct, and he justified that by a certain amount

15 of loss of memory, but otherwise, he answered

16 everything that I asked of him.

17 Q. I want to go back to Dr. Van Leeuwen's report

18 or his testimony where he mentioned this concept of

19 vulnerability. Can you explain where that fits into

20 the diagnosis of his personality disorder?

21 A. There have been several questions in relation

22 to this particular issue. I can say that this falls,

23 within this response, to that part of the personality

24 which I referred to as narcissistic personality

25 disorder. It is a common characteristic for all

1 narcissistic personality disorders, whether within the

2 diagnosis of the narcissistic personality disorder

3 itself, or within some other area, where these problems

4 are particularly emphasised. These are very sensitive

5 problems.

6 If anything can trigger their sense of

7 self-respect, and it is in this area where certain bad

8 or dark characteristics of these personalities are

9 being disclosed. It is in these type of situations

10 that these individuals can overreact. This can seem,

11 to a neutral observer, as something very exaggerated or

12 unnatural. However, for the person who has suffered

13 such a disorder, who has experienced this type of

14 aggression, this, itself, can lead to very aggressive

15 reactions, which are often defined as a narcissistic

16 anger.

17 Q. By the way, Dr. Goreta, Mr. Landzo doesn't

18 display the characteristics of a sadistic personality,

19 does he?

20 A. A diagnosis of a sadistic personality as a

21 separate psychiatric entity simply does not exist,

22 although there has been an idea to incorporate it

23 within the DSM-IV classification. What I can say in

24 respect of Mr. Landzo, regardless of the formal

25 existence of the definition of this type of disorder,

1 is that what can be termed as a sadistic disorder was

2 not found by myself during the conversation with

3 Mr. Landzo. This is something that I could not, was

4 not able to recognise as an important factor in any of

5 the reports who, in the past, examined Mr. Landzo.

6 Q. Also, Dr. Goreta, you didn't see that

7 Mr. Landzo displayed any anti-social or dissocial

8 behaviours either, did you?

9 A. It is very clear that Mr. Landzo, as part of

10 his behaviour, which is incorporated in the indictment,

11 did exhibit certain aggressive reactions. However,

12 these aggressive reactions, if viewed in the context of

13 his life and his behaviour in general, are simply not

14 sufficient to justify the diagnosis of the dissocial

15 personality disorder, because the fundamental criterion

16 for that type of disorder, is the existence of a

17 lasting model of dissocial behaviour. Mr. Landzo may

18 have had isolated aggressive acts which were related to

19 a certain conflict situations in his life which were

20 not part of his stay in the camp. Or his aggressive

21 reactions may have been related to the general

22 situation in the camp at the time, and this is

23 something I have already discussed, the type of

24 communication in the camp and so on.

25 So this may have something to do with the

1 structure of Mr. Landzo's personality. This is the

2 specific personality structure which is responsible for

3 some possible reduction of his ability to control, to

4 have control over his own acts and to comprehend the

5 full significance of his acts.

6 There is another argument which goes against

7 the theory of dissocial personality disorder in the

8 case of Mr. Landzo. In a prison context, these

9 individuals would retain the same type of behaviour.

10 They would enter into conflicts with guards and other

11 detainees, and they are inclined to suicidal actions,

12 taking large quantities of pills and so on. So this

13 same pattern of behaviour would still take place in the

14 prison situation. This is something that I could not

15 find. This is something that I could not conclude on

16 the basis of my conversation with Mr. Landzo and on the

17 basis of the previous reports.

18 He had adapted well to the circumstances of

19 the prison life. He felt the need to respond to the

20 requirements of the prison environment that he was in

21 at the time.

22 Q. By the way, dissocial is for ICD-X, is that

23 the same thing as the anti-social personality disorder

24 under DSM-IV?

25 A. Yes, more or less. There are certain

1 discussions as to the right term for this particular

2 disorder, but, in general, I can agree with that.

3 There have been other diagnosis as well, and this was

4 all discussed in the context of pathological social

5 personality disorders. However, this term,

6 psychopathological, has been left out, because it

7 affects the communication with the patient at the

8 hospital and at the court, but these are identical

9 categories.

10 MS. McMURREY: Your Honours, I notice it's

11 ten after one. I have about thirty minutes more worth

12 of questions, so I would like to know if we would break

13 now or if you would like me to continue. I have a

14 couple of more pages.

15 JUDGE KARIBI-WHYTE: We have the whole day

16 for your questions. We will have to break now and come

17 back after lunch.

18 --- Luncheon recess taken at 1.11 p.m.

19

20

21

22

23

24

25

1 --- On resuming at 2.32 p.m.

2 MS. McMURREY: Your Honours, while we're

3 waiting for the witness, I have another written

4 statement that was just given to me by Mr. McFaden from

5 the U.N. Detention Centre, which I would like to offer

6 into evidence as a written statement in support of

7 mitigation for sentencing, if the Court would allow me

8 to do so now?

9 (The witness entered court)

10 MS. McMURREY: Here's the original and

11 there's the copies. Thank you.

12 JUDGE KARIBI-WHYTE: Yes. You may proceed

13 with your witness.

14 MS. McMURREY: Thank you, Your Honours.

15 THE REGISTRAR: I remind you, sir, that you

16 are still under oath.

17 MS. McMURREY:

18 Q. Dr. Goreta, in your review of all the

19 materials, you came across testimony that described the

20 behaviour of Esad Landzo during his stay in Celebici

21 camp and his behaviour when he was assigned to the

22 duties at Musala Prison. How do you explain the

23 differences?

24 THE WITNESS: Excuse me. I have no

25 translation. I understand, but it is better that I

1 have a translation.

2 MS. McMURREY: Thank you for telling us.

3 Q. I'll ask it again, yes. In your review of

4 all the materials, you came across testimony that

5 described the behaviour of Esad Landzo during his stay

6 at the Celebici camp and his behaviour while he was

7 assigned to his duties at Musala Prison. How do you

8 explain the difference?

9 A. If we assume that the diagnoses are accurate

10 and the situations in both camps are properly

11 described, then this kind of change would further

12 justify the diagnosis that's been offered, in view of

13 the emphasised need of the accused to adapt himself to

14 the circumstances and to the persons he depends on,

15 including, of course, his superiors or a person that he

16 identifies with and has high esteem for. In other

17 words, he's the kind of person who would try to adapt

18 himself as much as possible as to fulfil the

19 expectations of these persons who I have just

20 mentioned.

21 So if the organisation and the system, the

22 atmosphere, in these two camps was different, this

23 would be another explanation for the change in his

24 behaviour.

25 Q. Through your review of the materials and also

1 through your conversation with Mr. Landzo, you are

2 aware of the different treatments and therapies that he

3 has received in the last couple of years. Can you tell

4 the Court what therapy he has undergone and what kind

5 of provisions have been made to try to heal him of

6 those problems?

7 A. I do not have a full insight into all of the

8 therapies that have been conducted with Mr. Landzo,

9 because the therapists have not provided a full

10 description for the needs of the Court, which, from the

11 ethical point of view, is fully justifiable. So I do

12 not know exactly how the treatment went.

13 However, I can surmise that a certain

14 psychotherapy has been conducted, and that

15 psychotherapy probably did not go into any deep

16 assessment, evaluation, any deep analysis that would

17 disclose all kinds of problems. What has been

18 conducted was a so-called superficial psychological

19 analysis.

20 In addition to that, the accused has probably

21 been treated with certain medicine which had to help

22 him overcome his depressive state. The therapy that

23 has been conducted or the therapies, we cannot expect

24 such therapies to restructure his personality fully,

25 because, as it has already been mentioned in the

1 diagnosis, we are dealing here with states and

2 disorders which are long-lasting and which probably

3 have causes in his childhood. These diagnoses can only

4 be established after the age of 18. Therefore, we

5 cannot expect him to change completely. We cannot

6 expect his personality to alter completely.

7 However, and I believe that this has been

8 achieved, his characteristics, through therapy, which

9 would make him more insightful as to his behaviour so

10 far, this therapy has achieved a certain objective. In

11 the future, it can be, therefore, expected that he

12 would be feeling much better and that he would be more

13 self-assured and self-confidant. The final result

14 would have to be his lesser dependence on authorities

15 and persons he tends to identify with.

16 For the patient, the accused, to accept a

17 normal type of existence without any violations of law,

18 I think that this is possible, and I believe that this

19 adaptation can be achieved.

20 Again, I do not know what the outcome of

21 these proceedings will be. When the accused is finally

22 free, and once he finds himself in a situation in which

23 he will not experience these risks, I think that things

24 will be much better. Therefore, this is why I stated

25 in my report that this environment should not be his

1 former country, in his home, and that he should not

2 return to Bosnia-Herzegovina. It is, therefore, to be

3 expected that he will be able to function normally in a

4 different kind of environment.

5 As for the dependent personality disorder or

6 the characteristics thereof, which were rather risky in

7 a certain environment, could, in a positive kind of

8 environment, be factors of a better adaptability.

9 Because if he finds himself in a situation where he

10 would have a mature authority to follow, to be guided

11 by, a person who would influence him in a positive way,

12 I believe that he will be perfectly able to function

13 without any major problems.

14 If there had not been war in that country,

15 just as many other people, he would not have been the

16 subject of these psychotherapies. These people cannot

17 be judged as cases of mental illness, but because of

18 the circumstances, they acted the way they did, and

19 they ended up needing psychotherapy and some kind of

20 medical treatment.

21 Q. In summary, I believe that you support the

22 general diagnosis of the other mental health experts

23 that have been here, in that there was a basic

24 personality disorder, that had he not experienced the

25 trauma that he did, he probably could have lived a

1 normal life; is that correct?

2 JUDGE JAN: You asked this question earlier

3 on today, whether he confirmed the opinions --

4 THE INTERPRETER: Microphone, Your Honour,

5 please.

6 JUDGE JAN: You asked him earlier in the

7 morning whether he confirmed the opinions of the other

8 psychiatrists and psychologists. He gave his answer.

9 Why do you want to repeat this question?

10 MS. McMURREY: Okay. If the Court is

11 satisfied, I will go on to the next one.

12 Q. Your basic diagnosis is still PTSD plus -- I

13 mean, a basic personality disorder, plus a PTSD that

14 occurred in 1991 or 1992; is that correct?

15 A. Yes, that is correct. But in addition to

16 that, I stated that the symptomatology that is

17 currently applicable today does not have any influence

18 on that, because I do not see any reason to question

19 the accuracy and the objectivity of the diagnosis which

20 has been offered by high-level psychiatrists.

21 Q. Your general prognosis about his future is

22 stated in your report that you have written, but can

23 you just tell us how you feel about whether he is

24 rehabilitated or his rehabilitation?

25 A. I believe that this is possible, and I

1 believe that I have already answered that question in

2 some detail. However, there are certain criteria which

3 should be met in order to avoid a possible reoccurrence

4 of such a situation.

5 One of the preconditions would be for the

6 accused to continue his life in a different

7 environment, an environment that would be an incentive

8 as to a full resocialisation, and other factors of risk

9 should be avoided. I don't know what will happen with

10 him, but in any other legal system, if he should

11 continue his life in prison, I suggest that he no

12 longer continues the current therapy. I believe that

13 this therapy has already yielded very good results.

14 I think that all modern principles

15 of criminology should be respected and that once he's

16 free, it should be ensured that he is still under some

17 kind of professional surveillance, in the sense that he

18 should be, somehow, guided by experts in that area,

19 social workers, psychologists, and so on.

20 If all these criteria are met, I really

21 believe that it would be possible for him to

22 rehabilitate.

23 Q. Now, you are aware that Mr. Landzo did

24 attempt to commit suicide on previous occasions. How

25 does that relate to an anti-social or dissocial

1 personality disorder, which you have said that

2 Mr. Landzo does not have?

3 A. The suicide attempt is a non-characteristic

4 type of reaction which, however, can be found in

5 various types of classifications. Even normal,

6 conditionally speaking, people, when they find

7 themselves in crisis, can attempt a suicide. So that

8 particular symptom, that kind of behaviour, can, by no

9 means, be a decisive criteria for offering any

10 diagnosis.

11 When I spoke about anti-social personality

12 disorder, I emphasised the permanent need of such

13 people to act aggressively towards their environment

14 which, sometimes, can have elements of criminal

15 behaviour. As suicidal reactions with anti-social

16 types are a symptom of this suppressed aggression,

17 often it takes place when they cannot express that

18 aggression. At that particular moment, they express

19 aggression towards themselves, but this is not

20 characteristic.

21 Whether a person is going to cut his or her

22 veins or inflict pain on himself or herself or use any

23 other forms of self-punishment, this is a different

24 area. This, by itself, is not sufficient for a

25 diagnosis of an anti-social or dissocial personality

1 disorder.

2 Q. In fact, isn't suicide a symptom or a

3 reaction for other personality disorders also?

4 A. Again, it is not characteristic. It can be

5 found with various types of personality disorders.

6 Very often, they are a consequence of a depression, but

7 we can also have them with some other cases.

8 For example, while discussing a PTSD, in

9 Croatia, for the past several years, we have seen an

10 increase in suicide attempts with the persons who have

11 that particular diagnosis, that is, PTSD. Again, I do

12 not want to claim that the only reason for their

13 suicidal behaviour is the PTSD. However, it is certain

14 that this is more frequent with these types of

15 persons.

16 Another important aspect is the fact whether

17 they have been accepted in the new environment after

18 the war. This has been discussed in American

19 psychiatry journals and so on. Once the person comes

20 back from war, it is very debatable whether he or she

21 will be able to adapt himself to the new environment.

22 Such suicidal attempts are not surprising; however,

23 they are not decisive as to a specific diagnosis.

24 Q. Your diagnosis of Mr. Landzo of a personality

25 disorder with PTSD, is it an abnormality of the mind?

1 A. I can say that this is an abnormality of the

2 mind.

3 JUDGE JAN: What definition do you have in

4 mind when asking this question?

5 MS. McMURREY: I don't have any definition

6 that I've put forward to him, except the memorandum of

7 law that I faxed to him in Zagreb, Your Honour. Based

8 upon the definitions that I've given him before, would

9 it rise to the level of an abnormality of mind? I sent

10 him the memorandum of law that I did on the Homicide

11 Act of 1957 from the UK

12 Q. Because of your forensic experience and the

13 definitions that have been provided to you, does your

14 diagnosis rise to the level of an abnormality of mind?

15 A. I must give you some additional explanation,

16 because this is related to the issue of the defining of

17 illness/disease and the personality disorders and the

18 difference between those two concepts. When I spoke

19 about what is a disease and what is not a disease, I

20 was using criteria that have been generally accepted in

21 Europe, and I have compared them with our tradition.

22 According to the European psychiatry, this would not

23 fall into the category of disease, but this doesn't

24 mean that some other system, like an American system,

25 would not classify a PTSD as a disease.

1 However, when we talk about personality

2 disorders, anxieties, the PTSD would fall under the

3 category of anxiety. We are dealing with mental states

4 which are borderline cases between health and mental

5 disease.

6 I was comparing this with something that can

7 be termed as an abnormality of the mind for sure, but

8 this is not a pathology of the personality. What you

9 have given to me is actually a legal definition of the

10 abnormality of the mind, and this is my position on

11 that.

12 Q. Thank you. Dr. Goreta, after your review of

13 the evidence and seeing Esad Landzo today, in October

14 of 1998, do you consider that he would be any threat to

15 society if released today?

16 A. I cannot claim that with certainty. This

17 should be decided by the persons who are in charge of

18 his treatment and who will be evaluating all aspects of

19 his behaviour. Of course, another criteria would be

20 his actual behaviour once he is released from custody.

21 But what I can say now, and in view of what I have

22 examined, I can say that there have been significant,

23 positive changes with the accused. One cannot see that

24 there is any type of aggressive orientation of the

25 accused towards the environment.

1 However, there is a so-called counterphobic

2 manoeuvring, and this, I believe, has been stated in

3 some other expert opinions. This has to be viewed in

4 relation to his overidentifying himself with the legal

5 system itself and his emphasised need to start anew.

6 He, himself, has used terms such as "building up of a

7 new personality," and so on. This is probably

8 something that he has come across during his therapy.

9 However, on the basis of the documentation

10 that has been provided to me, and on the basis of my

11 conversation with the accused, I can clearly see a

12 wish, a need, to fully adapt himself to the

13 environment. In as much as he wanted to be a perfect

14 soldier during the war, he now is trying to be a

15 perfect detainee, and he is also trying to be a perfect

16 patient. We can, therefore, think that he will want to

17 be a perfect rehabilitated person.

18 I may be over-optimistic, and this may not

19 conform with the reality; however, on the basis of what

20 I have learned in my conversations with him, the fact

21 is that he has made significant progression during his

22 therapy. Again, provided that all the criteria, all

23 the requirements which I have mentioned are met, I

24 think that he has a fairly good prognosis in that

25 respect.

1 MS. McMURREY: I pass the witness, Your

2 Honours.

3 JUDGE KARIBI-WHYTE: Have you any other

4 witnesses to call?

5 MS. McMURREY: Your Honour, I do have another

6 witness to call, but I believe the Prosecutor would

7 love to have some cross-examination.

8 JUDGE JAN: The other accused, do they have

9 anything to say?

10 MS. McHENRY: The Prosecution does have

11 cross-examination.

12 JUDGE KARIBI-WHYTE: Do any of you have

13 cross-examination of this witness?

14 MS. RESIDOVIC: Just for the record, Your

15 Honours, the Defence of Zejnil Delalic has no questions

16 of this witness.

17 MR. MORRISON: Your Honours, the Defence of

18 Mr. Mucic has a number of issues to raise with this

19 witness, and I will be as brief as I possibly can.

20 Cross-examined by Mr. Morrison:

21 Q. Dr. Goreta, you have said in your evidence

22 this afternoon, as far as Mr. Landzo is concerned, that

23 some of his problems relate to incidents and causation

24 in his childhood; is that right?

25 THE INTERPRETER: Microphone to the witness,

1 please.

2 JUDGE KARIBI-WHYTE: Did you understand the

3 question?

4 A. Yes. I did understand that his problems from

5 childhood were mentioned, but not specifically.

6 However, I may be able to start my answer, and then the

7 additional questions may be asked.

8 As far as his childhood is concerned, and I

9 did not have an opportunity to come to a full

10 reconstruction of it, I only know it from the materials

11 that I have read, what may be needed to be taken into

12 consideration was the asthmatic bronchitis which he

13 suffered from; however, I did not see the relevant

14 documents in that regard.

15 There were frequent visits and stays in the

16 hospital. Such early separations from the family,

17 primarily from his mother, may be a relevant and

18 significant cause for a future disorder.

19 The asthma itself, this asthmatic bronchitis,

20 is a psychosomatic condition which often entails

21 psychological problems which relates to dependency,

22 need for protection, need for security, and the need to

23 rely on others. When such needs are not satisfied or

24 frustrated early on, it all may have significant

25 consequences.

1 In the documents I have read, his isolation

2 is also discussed, which, at that time, was compensated

3 through association with dogs, stray dogs, which, to

4 him, were compensation for his inadequate relations

5 with his peers. This could be one of the reasons for

6 his withdrawal, his insecurity, his avoiding people.

7 Again, another reason that has been mentioned

8 frequently is that he could not participate in physical

9 activities at the same level with others because he had

10 problems with breathing. Allegedly, other kids were

11 mocking him, and he was an object of jokes. These are,

12 sort of, relatively banal incidents from his everyday

13 life, but it could have been fateful for his

14 development, especially if they occurred so early in

15 his childhood.

16 This is what I had in mind when I referred to

17 his childhood.

18 MR. MORRISON: I hadn't realised I'd asked

19 such a long question, Your Honour.

20 Q. What I really wanted to establish is that if

21 there were any psychological trauma in his childhood,

22 it's plain, is it not, that that predates any causation

23 arising out of the incidents to which this trial

24 relates? That must be right, mustn't it?

25 A. I could answer this question in detail had I

1 conducted a full expert analysis, such as an expert's

2 approach should be. However, my mission here was much

3 more limited. In compliance with that, I can just

4 provide you this aspect of his childhood, but I cannot

5 speak fully to those issues in a way that would be

6 satisfactory to me and to the Trial Chamber.

7 JUDGE JAN: I think there was some witness

8 produced by you who said that he used to play football,

9 even though as a goalkeeper, with the other school

10 boys.

11 MR. MORRISON: I don't think I produced --

12 JUDGE JAN: I think Ms. McMurrey, one of her

13 other witnesses talked about his playing football with

14 the other boys, even though as a goalkeeper.

15 MR. MORRISON: Yes. Well, that's an

16 observation and a line of questioning, Your Honour,

17 into which, you'll be pleased to know, I'm not going to

18 draw this witness, on the basis that the psychological

19 analysis of football is likely to take us at least a

20 week.

21 JUDGE JAN: I was saying group games. If you

22 were withdrawn, you wouldn't be taking part in group

23 games, would you?

24 MR. MORRISON: I wouldn't, that's for sure,

25 Your Honour. I'm afraid that my footballing years are

1 long past.

2 Q. Let me try and ask you some questions to

3 which the answers may be "yes" or "no." You based your

4 analysis of Mr. Landzo, essentially, from reading the

5 reports of others and a three-and-a-half-hour interview

6 that you conducted yourself?

7 A. Yes. I said that, and that is correct.

8 These are actually the boundaries of confidence or

9 certainty in which I can address these issues.

10 Q. One important predicate is that Mr. Landzo,

11 when giving information to others or to yourself, is

12 telling the truth; is that correct?

13 A. The question of truth was also raised with

14 the psychiatrists which were involved in this matter.

15 We do not assess the truthfulness, unless we are

16 requested to directly testify to the veracity of a

17 certain witness's testimony, but even then, our

18 conclusions are not simply "yes" or "no," but just to

19 provide psychiatric elements to the degree of

20 potential veracity based on the psychological factors

21 which may contribute to reaching conclusions as to

22 the veracity of a particular witness.

23 Now, as to the veracity of Mr. Landzo

24 himself, I don't think that I can, and I don't think

25 that I should, offer my views here.

1 Q. With respect, Dr. Goreta, I'm not asking you

2 for your views as to whether or not he was telling the

3 truth. That's a matter for the learned Judges. They

4 determine whether or not they believe a matter is true

5 or not true in the context of the trial. What I'm

6 putting to you is this: If you are asking anybody,

7 Mr. Landzo or anybody else, for that matter, questions,

8 your analysis, based upon his answers, is going to be

9 affected by whether or not he is telling the truth in

10 answer to those questions. That must be correct, is it

11 not?

12 A. Yes, you're right.

13 Q. If any inference is to be drawn, and I'm now

14 speaking purely on behalf of Mr. Mucic, if any

15 inference is to be drawn adverse to Mr. Mucic, in

16 considering the element of mitigation in this sentence,

17 out of what Mr. Landzo has said, either to you or to

18 anybody else, his credibility, his veracity, is central

19 to the issue, isn't it?

20 A. Yes, that is correct.

21 Q. So if, during the course of the case, there

22 was anything that would cast doubt upon that veracity,

23 that would be a significant feature; is that right?

24 A. That would be significant. However, if you

25 will allow me to elaborate on this, rather than answer

1 with "yes" or "no," when an expert has communication

2 with the person he is questioning, he does not proceed

3 in a vacuum, and he has to consider the acts in a case

4 file which have been described as criminal acts. That

5 has to be taken into account, and that will constitute

6 one of the elements.

7 He will also make an assumption that the

8 interviewee is actually speaking the truth. If, later

9 on, it turns out that either of the versions which were

10 received, either from the documents or through the

11 interviewee, if they are not true, or any other facts

12 came to light which would bring into question any of

13 this, then the psychiatrist, himself, is free to change

14 his opinion and to take into account those subsequent

15 circumstances or facts which contribute to his overall

16 opinion.

17 MR. MORRISON: Your Honour, I'm going to be

18 so bold as to assume that you've understood the line of

19 questioning that I undertook in this case and the

20 purpose of it. If that point has been made, that's all

21 I sought to do. Thank you very much.

22 Thank you, Dr. Goreta.

23 JUDGE KARIBI-WHYTE: Any other questions?

24 MR. MORAN: One thing, Judge. I just have to

25 get wired up here. I believe we're wired up now. May

1 it please the Court.

2 Cross-examined by Mr. Moran:

3 Q. Hi, Doctor. My name is Tom Moran. Let me

4 reintroduce myself. I think we met a couple of times

5 in the Defence room, just in passing. I'm going to ask

6 you a few questions, and some of them will require

7 "yes" or "no," but the first one you may want to

8 explain something.

9 You are, of course, an expert in

10 post-traumatic stress syndrome. You have a special

11 expertise in that?

12 A. No. I do not define myself as a PTSD

13 expert. I was called here by other persons who thought

14 that I could say certain things about that. I'm not an

15 expert in such a narrow area. I cover a much wider

16 scope of issues in forensic science.

17 Q. In your experience, have you testified or

18 provided evidence in criminal cases, both before and

19 after the war, as it applies to mitigation of

20 punishment? That may not have been a very

21 artfully-phrased question. If you don't understand it,

22 I would be happy to rephrase it.

23 A. Yes, yes, I did understand.

24 Q. Okay.

25 A. A large part of our expertise is trying to

1 determine the level of mental responsibility, and that

2 is what often determines the punishment.

3 Q. This may be outside your expertise, and if it

4 is, that's fine, but do you know how the courts in the

5 former Yugoslavia treated post-traumatic stress

6 syndrome as it related to mitigation of punishment?

7 A. The courts in the former Yugoslavia, for the

8 most part, did not deal with PTSD, because it became

9 very topical during and after the war. I do not recall

10 that, in that period, I personally was ever called to

11 provide expert opinion on such cases, but after the

12 war, unfortunately, this was very frequently the case.

13 Q. Do the courts in Yugoslavia consider mental,

14 and I'll use the phrase "disorders," which may not be

15 the correct phrase, but mental disorders such as

16 post-traumatic stress syndrome, to be mitigating in

17 punishment?

18 A. The courts in Yugoslavia do not connect any

19 kind of mental responsibility with any kind of act.

20 They always seek the experts to define, as closely as

21 possible, the state of mental health of a person at the

22 time of the crime. That is basically what they have us

23 define for them. If the Court accepts the expert

24 opinion of a psychiatrist, then such person is not

25 considered criminally responsible.

1 It is quite probable that in cases such as

2 psychosis and schizophrenia, 70 to 80 per cent of the

3 cases will result in such a conclusion that such a

4 person was not criminally responsible, but that does

5 not mean that it will be the case in 100 per cent of

6 the cases.

7 Q. What I was getting at was not just completely

8 relieving someone from criminal responsibility, but,

9 rather, reducing the punishment based upon some kind of

10 mental disease or mental defect and whether, although

11 they would still be criminally responsible, the courts

12 took that into consideration in assessing punishment.

13 They did? Okay.

14 Doctor, let me go on to something else. I'm

15 sorry?

16 A. Yes. The Court always allowed the

17 possibility that any diagnosis would be linked to the

18 mitigation of sentence, but they needed to be provided

19 with a reliable opinion. Frequently, a diagnosis would

20 not necessarily result in any mitigation of sentence,

21 because this person may have had a certain mental

22 disorder at the time but still would be responsible

23 enough and knew well enough what his acts were.

24 Q. That's fine, Doctor. Let me go on to

25 something else. You talked about this HOS camp where

1 Mr. Landzo supposedly was taught how to murder people.

2 Do you recall that?

3 A. Yes.

4 Q. By the way, what is HOS, H-O-S, what is this?

5 A. HOS is an abbreviation. I'm not sure if I

6 will be able to say it correctly, but it seems like

7 Croatian liberation forces.

8 Q. That's close enough for government work.

9 A. But I am afraid that this would not be a

10 question for a psychiatrist.

11 Q. That's fine. Let me go on to something that

12 would be a question for a psychiatrist, though. You,

13 of course, have treated a lot of people who have been

14 engaged in activities during the war, the whole period

15 of the war from early until late; is that correct,

16 Doctor?

17 A. Yes, it is.

18 Q. You and your colleagues have probably seen a

19 very, very broad spectrum of people who were engaged in

20 the fighting and saw horrible things during the war and

21 came to you later for psychiatric help?

22 A. Yes.

23 Q. Doctor, has any of your other patients told

24 you that they were around some kind of a HOS camp,

25 especially early in the war, where people were brought

1 in and prisoners were murdered in front of these people

2 so that they could learn how to kill? Have you ever

3 heard -- have any of your other patients ever told you

4 anything like that?

5 A. I, personally, have no such information.

6 Q. Have you ever heard of any of your other

7 patients tell you that they were around some kind of

8 camp where murders were occurring, and after they were

9 there for awhile and had seen a bunch of murders, the

10 people in charge of the camp said, "If you want to

11 leave, just go ahead and go"?

12 A. No. I have no such information.

13 Q. Of course, you're --

14 A. But perhaps, if I may just add, apart from

15 working in forensic psychiatry in a position in which

16 I've been in the last four or five years, I'm a

17 clinical physician, and I have conducted therapy of a

18 number of patients with PTSD, some of whom were

19 individuals who spent some time in camps and who

20 related similar types of experiences.

21 There are a number of issues regarding the

22 organisation of camps, but I do not have pertinent

23 documents in that regard, and you may be better advised

24 to look elsewhere for that.

25 Q. Sure. I'm sure that Mr. Niemann has in his

1 files a lot of information about that kind of thing.

2 Let me go on to a different subject, Doctor,

3 if I could. There is a diagnosis that we use in

4 America in the Diagnostic and Statistical Manual called

5 anti-social personality disorder. You're familiar with

6 that diagnosis, aren't you, Doctor?

7 A. Yes.

8 Q. It used to be called sociopathy, didn't it,

9 in the DSM-II?

10 A. It's one of the synonyms I mentioned

11 earlier. There's a whole spectrum, gamut of synonyms,

12 some of which have been completely abandoned,

13 precisely, because of the negative connotations,

14 and sociopathy is something that has been abandoned for

15 those reasons precisely.

16 Q. When talking about anti-personality disorder,

17 anti-social personality disorder, sociopathy, are some

18 of the --

19 MS. McMURREY: I'm going to object to Mr.

20 Moran. The Doctor has said that that's been

21 abandoned. That's not a term used today and he

22 continues to say that all are sociopathy, and it is

23 abandoned for the reasons that Mr. Moran is using.

24 JUDGE JAN: In any case, Mr. Moran, how does

25 it help you with the plea of mitigation taken up by

1 Landzo as being accepted, or not accepted, or partly

2 accepted? How will that interest you? It will be

3 taken into account only if we find Mr. Landzo guilty.

4 MR. MORAN: Yes, Your Honour. I understand

5 that. What I'm worried about is that there's been some

6 documents presented by Mr. Landzo's lawyers which

7 purport to being --

8 JUDGE JAN: It will only be seen once we've

9 decided if Mr. Landzo is guilty or not, and how would

10 that affect your client?

11 MR. MORAN: Well, certain of those documents

12 could affect my client very greatly.

13 JUDGE JAN: If his plea is accepted, then

14 your client would get a more serious sentence.

15 MR. MORAN: Yes. That's fine. Let me go

16 over my notes, and then I think I'll be done, Judge.

17 Q. Is it common, Doctor, for persons suffering

18 from anti-social personality disorder to do things like

19 shift blame for their bad acts to others?

20 MS. McMURREY: Your Honour --

21 JUDGE JAN: We already have evidence of

22 that.

23 MR. MORAN: Okay, Your Honour. Then I will

24 just pass the witness Your Honour.

25 JUDGE JAN: If you think that only the

1 experts have said that they shift blame onto each

2 others, but also that they are frequently good liars.

3 This is what the psychiatrists have said before us.

4 MR. MORAN: Yes, Your Honour.

5 JUDGE KARIBI-WHYTE: When you start asking

6 questions, I get surprised, because much of the

7 evidence you have is already on the record. So I don't

8 know what you're arguing about. Are there any other

9 questions?

10 MS. McHENRY: Yes, Your Honour. Thank you.

11 Cross-examined by Ms. McHenry:

12 Q. Good afternoon, sir, I'm Teresa McHenry?

13 A. Good afternoon.

14 Q. I'm going to ask you some questions on behalf

15 of the Prosecution. I would like to go through this

16 quickly, and I want to be fair to you. I'm going to

17 ask you a number of questions, some of which I hope

18 only require a "yes" or a "no" or "I don't know." If I

19 ask you, in effect, a "yes" or "no" or "I don't know"

20 question, and you don't believe you can fairly answer

21 it with a "yes" or "no" or "I don't know," please just

22 tell me that before you start explaining your answer,

23 because for some of the questions, I may just go on to

24 another question rather than take up the time necessary

25 that you believe to explore the matter fully, okay? Is

1 that all right?

2 A. Yes.

3 Q. Also, to make sure I'm fair to you, sir, I

4 have some questions about your report, and let me just

5 ask you: Did you write this report yourself in

6 English?

7 A. No. The report was translated into English.

8 My English is not good enough for me to dare make a

9 translation for court.

10 Q. Okay.

11 A. If I may clarify, my English is good enough

12 that I can control whether the translation is an

13 authentic translation of my Croatian original.

14 Q. Thank you. Now, sir, you indicated that you

15 went through some expert reports and some transcript of

16 proceedings from, you believe, July of this year. Am I

17 correct that you did not review the testimony of any of

18 the victims of Mr. Landzo's crimes concerning his

19 behaviour in 1992?

20 A. I reviewed only what I have said I did and

21 what I have received from the Defence counsel, which

22 was, I think, in October. She can probably tell you

23 exactly what was contained in there, but I think it was

24 only the experts' reports.

25 MS. McMURREY: Your Honours, I'm going to ask

1 that Ms. McHenry refrain from making it a statement of

2 the crimes he's committed. He has not been found

3 guilty of these crimes yet, and she's assuming he's

4 been found guilty, and she's misleading the witness by

5 saying so.

6 JUDGE JAN: I think she was probably asking

7 whether he had met any of the victims.

8 JUDGE KARIBI-WHYTE: No, the testimony of the

9 victims. That's what I heard her ask, whether she went

10 through the testimony of the victims. I think that's a

11 normal thing if one wants to go through the whole

12 exercise.

13 MS. McMURREY: Your Honour, my submission is

14 they are alleged victims at this point.

15 JUDGE KARIBI-WHYTE: They are victims. In

16 ordinary English language, they are victims.

17 JUDGE JAN: You have admitted some of the

18 charges partly.

19 MS. McHENRY:

20 Q. Sir, did you review the expert report of the

21 psychiatrist from Bosnia-Herzegovina, a report from

22 1992 about events -- I'm sorry, a report from 1994

23 about events in 1992 which found that Mr. Landzo did

24 not have significant diminished mental responsibility?

25 Were you given access to that report, sir, if you

1 remember?

2 A. I read all expert reports which were

3 contained in the file. If I recall correctly, there

4 was an expert report by Dr. -- and maybe you can

5 remind me of the name, who, if I remember correctly,

6 opined that Mr. Landzo, in a case in which he offered

7 his expertise, his intellectual capacities were fully

8 intact, and I think that they were somewhat diminished,

9 but not significantly diminished. I don't know if

10 that's the expertise that you're referring to.

11 I must, again, remind you that I have read

12 large quantities of materials, and I cannot, at all

13 times, give you very specific information, but I could

14 comment on it again if I were given it to review again.

15 Q. Sir, your report indicates that what you are

16 giving is a preliminary opinion. Can you explain what

17 you mean by "preliminary opinion"?

18 A. A preliminary opinion is a short report on

19 the basis of all the documents which I reviewed so far

20 and on the basis of the conversation I had. In other

21 words, with the reservation that I did not conduct a

22 full expert report. Also, if any new facts would come

23 to light which would bring into question my

24 conclusions, then, obviously, and I stated this today,

25 certain corrections would be possible, in other words,

1 a preliminary opinion is a very short report, and it is

2 not the way I usually write my expert opinions. But I

3 was given to believe that this Court would accept this

4 form.

5 In any event, this is the first time that I'm

6 testifying as an expert report for one of the parties

7 here. This is not the practice we have in my home

8 jurisdiction where we are usually called by the Courts

9 to provide opinions to both parties, all parties

10 concerned.

11 Q. Thank you.

12 MS. McMURREY: Your Honour, could I just ask

13 Ms. McHenry to direct us to what paragraph she sees the

14 word "preliminary"?

15 MS. McHENRY: Second paragraph on page 2,

16 where he says: "I can give the following preliminary

17 opinion." If that helps you.

18 Q. Sir, going forward, I understood you to say

19 that Mr. Landzo had some significant personality

20 problems at the present time and that he had those in

21 1992. I take it you would agree that Mr. Landzo still

22 has, in your view, at least, a dependent personality;

23 is that correct?

24 A. Yes, that is correct.

25 Q. Now, you would agree, sir, that if Mr. Landzo

1 was to return to Bosnia-Herzegovina for any reason,

2 such as that no other country wished to accept him,

3 there could be some problems; is that correct?

4 A. Yes. I've also explained that as well.

5 Q. Even if he did go to another country, if he

6 wasn't extremely closely supervised and if his role

7 model was a not-positive person, you would agree that

8 there would be some serious problems then too; correct?

9 A. Can I say more than "yes" or "no" in response

10 to that question?

11 Q. Is it the case that you don't think you can

12 fairly answer that question with a "yes" or "no"?

13 A. I don't think I can. I've already explained

14 certain things as to these criteria and preconditions.

15 JUDGE KARIBI-WHYTE: I suppose counsel is

16 basing the next question on your theory that you still

17 believe that Landzo has a dependent personality. This

18 is the basis on which her question was put.

19 A. I believe that I have given answers to all

20 these questions, but if necessary, if I'm requested to

21 do so, I can give further explanation as to the

22 circumstances in which he may find himself one day,

23 both positive and negative, circumstances that would

24 propose a risk in any other country.

25 MS. McHENRY:

1 Q. Let me just move forward, sir, thank you.

2 MS. McMURREY: Your Honour, I believe that

3 the witness should be allowed to answer the question.

4 He said he was not able to answer it fully, and he

5 would like to explain. I believe if she is going to

6 ask the question and he says that he needs to explain,

7 that he should be allowed to answer the question.

8 JUDGE KARIBI-WHYTE: Are you pursuing the

9 question or are you still wanting to ask some other

10 question?

11 MS. McHENRY: No, Your Honour. I'm not

12 pursuing it. I'm making the decision that in terms of

13 going quickly, that he has sufficiently explained it

14 enough in his direct. Of course, Ms. McMurrey can ask,

15 with Your Honours' permission, what she believes

16 appropriate re-examination.

17 JUDGE KARIBI-WHYTE: Carry on with your

18 questions.

19 MS. McHENRY:

20 Q. Now, you were asked some hypothetical

21 questions by Ms. McMurrey about the behaviour of normal,

22 intelligent people during the war. Is it your opinion

23 that Mr. Landzo was a normal person before and during

24 the war?

25 A. Mr. Landzo, with the personality disorder

1 that he has, he must have had such symptoms as early as

2 childhood. As I have already stated today, the

3 continuation of these symptoms is always connected to

4 early childhood, and any diagnosis, according to the

5 classifications that I mentioned, can be only made

6 after the age of 18, because this falls within the

7 category of personality disorder of adult persons.

8 These disorders can be diagnosed early on, but bearing

9 in mind certain other categories, certain other

10 disorders, this can be changed later on.

11 Q. Is it correct then, sir, that you would agree

12 with me that, according to your opinion, prior to the

13 war, Mr. Landzo was not a normal person?

14 A. I will agree with you that, at that time, he

15 must have had certain basic symptoms of personality

16 disorders which, later on, were manifested as symptoms

17 of dependent personality disorder. In certain

18 circumstances, these symptoms can go unnoticed, and

19 this type of behaviour can never be termed as

20 psychopathological type of behaviour. However, in

21 certain adverse conditions, this may lead to this kind

22 of behaviour. People who suffer from personality

23 disorders are not necessarily people who are not very

24 well adapted to the society. However, in certain

25 circumstances, such as the war, these personality

1 disorders can be emphasised, can be reinforced and

2 worsened. In some other circumstances, such

3 individuals would have never exhibited symptoms of

4 personality disorders.

5 Q. Sir, I take it, from your testimony, that

6 although you would opine that Mr. Landzo is not

7 suffering from PTSD at the present time, you would

8 disagree with any contention that he has recovered

9 completely from any mental difficulties or personality

10 difficulties he may have had in 1992?

11 A. I cannot claim that. This is something that

12 I have already stated and written in my report.

13 Q. Thank you. Sir, you're aware that one

14 Defence expert witness, Dr. Gripon, who interviewed

15 Mr. Landzo for some 40 hours and interviewed a number

16 of his friends and relatives, testified that Mr. Landzo

17 had committed anti-social and violent behaviour before

18 he was a guard in Celebici and after he was a guard in

19 Celebici. Do you agree or disagree with that

20 statement, or do you not have enough information to

21 give an opinion?

22 A. I believe I have already answered that

23 question in response to the question regarding

24 differences in opinion of various psychiatrists.

25 Certain aggressive types of behaviour, by themselves,

1 cannot always be sufficient for a diagnosis of a

2 personality disorder -- dissocial personality

3 disorder. This dissocial personality disorder is

4 defined as a continuous tendency towards criminal

5 behaviour. So, in respect of that part of the report

6 of Dr. Gripon, I cannot agree with that.

7 Q. Now, sir, would you agree that avoidance is a

8 fundamental characteristic of anyone suffering from

9 PTSD?

10 A. Avoidance is one of the categories that is a

11 criterion for the diagnosis of PTSD. According to this

12 criteria, it should be present. However, to the extent

13 I have reviewed the relevant documentation, and this is

14 going back to a discussion we've already had, is that

15 this type of avoidance cannot be a criterion for this

16 particular diagnosis. There is a whole range of

17 defensive mechanisms that are involved here, one of

18 them being, the person reacted in quite an opposite

19 way. It is confronted with the cause of his or her

20 fear in order for the fear to be avoided. We cannot

21 adopt a reductionist attitude here, in view of the

22 number of criteria. We should simply count the points

23 that any criteria is worth, and on the basis of that,

24 we can provide a psychiatric diagnosis.

25 In addition to the clinical picture of the

1 patient at a particular moment, we have to bear in mind

2 the development of the PTSD, because there can be

3 periods where there are no symptoms at all; however,

4 the person is still suffering from the PTSD and in a

5 very acute way. These symptoms can be hyperthymic at

6 one particular point. However, this has to be viewed

7 within the context of the whole situation, even when

8 providing a diagnosis for the PTSD.

9 Q. Sir, during your direct testimony, you

10 indicated that Mr. Landzo was very cooperative, except

11 for a few areas which he justified based on a lack of

12 memory. Did the lack of memory that Mr. Landzo told

13 you about, did that have to do with the alleged crimes

14 committed in Celebici?

15 A. Partly to that as well.

16 Q. Would you agree with me that among the

17 personality difficulties in PTSD that you believe

18 Mr. Landzo has, lack of memory is not a normal

19 characteristic?

20 A. Lack of memory is one of the symptoms of the

21 PTSD; however, it's not very characteristic. The

22 diagnosis of the PTSD can be offered, regardless of the

23 lack of memory, with it or without it. Lack of memory

24 is not a psychiatric diagnosis. It's a symptom that

25 can be found in a various number of psychiatric

1 diagnoses. Its causes can be various. It can range

2 from these that have been mentioned in these

3 proceedings, that is, a conscious, intentional

4 correcting of the statement for the purpose of

5 protecting one's position in the criminal proceedings

6 to some unconscious phenomena which can be found with

7 normal people as well. Certain people cannot simply

8 confront themselves with their past behaviour and may

9 experience a complete amnesia as to certain events.

10 This can be caused by some physical causes, such as

11 contusions and so on. I don't think it is necessary to

12 go further into this.

13 Q. Thank you. Sir, you would agree with me that

14 during your interview with Mr. Landzo, you noted that

15 he had certain difficulties with control over his

16 emotional reactions; is that correct?

17 A. Yes, that is correct.

18 Q. The prior experts, both Prosecution and

19 Defence experts, uniformly talked about a pronounced

20 lack of empathy and lack of remorse in Mr. Landzo. Is

21 that consistent or inconsistent with your opinion?

22 A. Lack of remorse in his case, at least as far

23 as verbal expression of it is concerned, I do not think

24 exists. He mentioned to me on several occasions that

25 he feels guilty and that he feels the need to be

1 punished. If that need is not satisfied, he doesn't

2 believe that he could find his balance once again, that

3 he would be able to live normally again.

4 The problem of guilt, at a deeper level, is

5 another problem, and this was the central issue in my

6 doctoral thesis. I just want to say that in his

7 communication with me, Mr. Landzo did express messages

8 in that respect.

9 Q. You said that Mr. Landzo has a narcissistic

10 pathology. What do you mean by narcissistic?

11 A. I believe that that question has been

12 answered as well. To put it in simple terms, the

13 narcissistic pathology concerns the difficulty of

14 assessing one's own worth, and it goes to the issue of

15 self-respect and the respect that comes from others as

16 well. Such a person has a permanent need to test his

17 or her environment, and he needs to be recognised all

18 the time. He has to receive this type of stimuli all

19 the time.

20 We have also had cases in which such persons

21 wanted to show him or herself in a much better light

22 and present himself as a better person than others. In

23 order to avoid any misunderstanding --

24 Q. Would you agree that narcissistic also,

25 usually, means in a very strong --

1 MS. McMURREY: Your Honour, I'm going to

2 object. Ms. McHenry didn't let Dr. Goreta finish his

3 answer. He was in mid-sentence when she interrupted

4 him. I ask that she just, please, allow him to finish

5 his answer to the questions.

6 MS. McHENRY: I'm sorry. If I interrupted

7 the witness, please continue.

8 A. Thank you. I only wanted to add one more

9 sentence, because there may have been a certain

10 misunderstanding in relation to this issue.

11 Laypersons tend to label, as narcissistic

12 persons, those who enjoy public appearance and they

13 tend to believe that persons who are shy are not

14 narcissistic. These are two aspects of one in the same

15 problem. These are only two different manifestations

16 of one in the same problem. A person who is very shy,

17 keeps to himself, does not mean that he is not

18 necessarily narcissistic. Such a person can also act

19 as a public person, but we have to take into account

20 his external behaviour and relevant circumstances.

21 This picture can change in a very short period of time,

22 and this is also the case with narcissistic persons.

23 If such a person should lose respect within his

24 environment, he's even prepared to attempt suicide, and

25 this is another example of what I said earlier on, that

1 suicidal attempts can be symptoms of various types of

2 disorders.

3 There are many examples of that. You

4 probably know of cases of very famous persons who

5 attempted or committed suicide at the moment when their

6 worth and importance was brought into question.

7 Q. Sir, you were asked a question about sadistic

8 behaviour, and let me ask you about that:

9 Hypothetically, if you have a person who commits

10 violent acts intended to cause pain, including, setting

11 people on fire or putting lit fuses in their anuses,

12 and if that person reports that he enjoyed mistreating

13 people and if that person reports that one of the

14 reasons he mistreated people was because he was bored

15 and frustrated, in your opinion, is that person

16 exhibiting sadistic behaviour?

17 A. What you have just described are elements of

18 sadistic behaviour. However, they should be put in the

19 context of the overall situation which leads the

20 individual to behave that way. If that person is, on

21 his own, looking for such situations, searching for

22 these type of incidents ...

23 Q. Sir, I would like to really move along

24 quickly. If you don't feel you can answer a question

25 with a "yes" or "no," please tell me in the beginning

1 and I may choose to --

2 MS. McMURREY: I'm going to object again. He

3 was just explaining.

4 JUDGE KARIBI-WHYTE: These are simple English

5 words. You do not need a psychiatrist or anybody to

6 tell you who is sadistic.

7 MS. McMURREY: The doctor would like to put

8 it in the context of what he's trying to explain.

9 JUDGE KARIBI-WHYTE: If you are satisfied, if

10 you are not, then you pass on to whatever issue --

11 A. I haven't yet said the key sentence as to the

12 definition of sadism. It's not only physical torture.

13 The basic definition of sadism is the need to have

14 power over another person, to have absolute power and

15 to keep that person under control and in some kind of

16 suspense.

17 JUDGE KARIBI-WHYTE: But enjoying it, a

18 person who enjoys pain who --

19 A. Yes, yes, enjoying it. Yes.

20 MS. McHENRY:

21 Q. Now, sir, you indicated in your examination

22 of war crimes committed in Croatia, you found alcohol

23 or drug abuse in a number of them; is that correct?

24 Just a "yes" or "no" would be fine.

25 A. A significant number of them, because, again,

1 I don't have an opportunity to say that there are

2 actually three categories. The number would range from

3 30 per cent and more of persons who experienced

4 problems with alcohol, but that doesn't mean that they

5 were addicts.

6 Q. Sir, are you aware that there is evidence

7 that Mr. Landzo abused alcohol or drugs in 1992,

8 although he may not have been an addict? Were you

9 aware of that information, sir?

10 A. Yes.

11 Q. Thank you. Sir, in your opinion, can the use

12 of drugs or alcohol be a basis of diminished

13 responsibility?

14 A. It can be.

15 Q. Now, you also talked about a phenomena you

16 described that included suspicious Serbs and related

17 topics. Are you suggesting that when a person commits

18 a crime against a person of another ethnic group,

19 because he views all persons from that ethnic group as

20 the enemy, in your view, is that a basis of diminished

21 responsibility?

22 A. No, no, but, again, I'm afraid I cannot give

23 you a "yes" or "no" answer.

24 Q. All right.

25 A. With your permission, I would like to

1 explain?

2 Q. I just want today clarify. You're not

3 suggesting that with suspicious Serbs or with persons

4 who have superegos, or with persons that have

5 transferred aggression, you're not suggesting that the

6 existence of those phenomena is, itself, a basis for

7 diminished responsibility, are you?

8 A. If you will allow me, because I cannot simply

9 yes or no.

10 JUDGE KARIBI-WHYTE: Yes. You can explain

11 your answers.

12 A. I do not wish, because this was a war between

13 Croats, Muslims, Serbs, I do not wish to take any

14 explanation which mentions a particular nationality. I

15 don't want it to be taken as a basis for diminished

16 responsibility. These were specific problems. But if

17 there is a paranoid experience of other people, if

18 other persons are viewed as people who will harm us in

19 some way, and in that particular situation, those

20 people were Serbs. This is not a psychiatric problem,

21 but the psychiatric problem can take place because of

22 the overall situation. If I see a person who is a

23 Serb, and because of my paranoid state, I connect these

24 persons with all other events, then this can, indeed,

25 be a basis for diminished responsibility, because of

1 that paranoid view of that person, not because of his

2 or her ethnic background.

3 Q. Let me just turn now, sir, to the study that

4 you did in 1994, and it's been introduced. You studied

5 25 soldiers and gave your expert opinion. Can you tell

6 us, were you just trying to understand or explain their

7 conduct or were you trying to excuse or mitigate their

8 conduct?

9 A. Again, I cannot say "yes" or "no."

10 Q. Please explain, sir.

11 A. I think that one of the aspects of the role

12 of the psychiatrist is not to be someone who will be

13 passing moral judgements. The role of the psychiatrist

14 is to offer certain psychological expertise so that a

15 certain category can be viewed as normal or abnormal

16 and so on. In view of that, how can a particular

17 person be assessed? So psychiatrists should offer to

18 the Court their evaluation of a particular behaviour at

19 the relevant times and say whether this could be taken

20 as a foundation, as a basis, for diminished

21 responsibility. It is the discretion of the Court to

22 evaluate diminished responsibility. We provide an

23 explanation, but we do not provide justification for

24 criminal acts.

25 Q. Sir, of the 25 soldiers that you examined and

1 gave your expert opinion, and I'm referring to pages

2 512 to 513 of your article, it's correct that of 12 of

3 those or almost half you found essentially diminished

4 responsibility, and in the other 13, you also found

5 diminished responsibility, such that it would be

6 regarded as a mitigating circumstance; is that correct,

7 sir, that in every case, you either found diminished

8 responsibility such that it could be a mitigating

9 circumstance, or essentially diminished responsibility

10 which is even stronger?

11 A. These data are correct. However, I should

12 add something: This is a selected material, this is a

13 choice or selection of material, because in our centre,

14 we have been receiving the most complex and the most

15 serious cases from the republic. So this can be

16 misleading from the statistical point of view, because

17 many of these individuals who were evaluated somewhere

18 else did not get such harsh, such a severe evaluation.

19 As part of the evaluation of severely diminished

20 responsibility, as far as severely diminished

21 responsibility is concerned, this was only considered

22 as a mitigating circumstance, and the evaluation of

23 that often led to the mitigation of punishment. Where

24 there were cases of capital punishment, the capital

25 punishment was often remitted.

1 I just wanted to say that the courts were not

2 bound to incorporate our evaluation in the verdict.

3 MS. McHENRY: No further questions. Thank

4 you, Your Honours. Thank you, Doctor.

5 JUDGE KARIBI-WHYTE: Any re-examination?

6 MS. McMURREY: Yes, Your Honour, I have four

7 questions, if I might.

8 Re-examined by Ms. McMurrey:

9 Q. Dr. Goreta, based on the questioning by

10 counsel for Mucic, his main thrust of his questions was

11 when you listened to the individual, you have to see

12 whether they are telling the truth, but the truth is,

13 as a forensic expert, you look at the total picture,

14 you look at their behaviour, and you look at the

15 materials that you've read, and because you're an

16 expert, you're able to look for signs of malingering?

17 JUDGE KARIBI-WHYTE: Is this supposed to be a

18 question? What are you trying to accomplish or ratify.

19 MS. McMURREY: I'm asking if this is what he

20 looks for, the total picture, or one dimension of

21 whether the person is telling the truth or not. There

22 are more variables.

23 JUDGE KARIBI-WHYTE: Put it to him.

24 MS. McMURREY:

25 Q. Are there more variables that you look for

1 when interviewing an individual rather than whether

2 they are telling the truth or not?

3 A. Again, let me repeat, as an expert or as a

4 person who has experience in recognising these

5 reactions, including the false representation, I am

6 able to discern that, but I will not say in court that

7 this person was lying and that he did or did not do

8 whatever he is alleged in these proceedings of the

9 trial that is conducted. We have to offer to the

10 Court, indicia, that is, we have to point to the lack

11 of veracity, if you will, and the conclusions are

12 always those that will be drawn by the Court.

13 If I may just add, it is known that certain

14 disorders such as, histrionic disorder, that people

15 will often present themselves in a false light so that

16 they would present themselves in a false light, let's

17 say, of success. This is something that we also

18 mentioned in connection with narcissism, so there is a

19 tendency for this person to lie, but we have to be

20 reserved about expressing our views on whether such a

21 person is, actually, lying.

22 Q. But you, as an expert, are trained to be able

23 to see through that and look at other variables, aren't

24 you?

25 A. Again, we always, we always look for all the

1 characteristics that would provide the full picture of

2 the mental state of our subject, both during our

3 interview and at the time of the commission of the

4 crime. I have to point out that today in Croatia,

5 defendants often use silence as a defence. This is

6 something that is very widespread. So what we have to

7 do is look for all kinds of additional information

8 which can be described as collateral information,

9 anything that we can find up to the point when we're

10 called to provide our opinion. In some cases, this is

11 not frequently so, but occasionally, if we receive

12 significantly different information, let's say, with

13 respect to a person who offered a defence by silence,

14 and at some point this person has actually decided to

15 talk, then we are brought in to provide an additional

16 or widened opinion on whether they told the truth or

17 not.

18 JUDGE KARIBI-WHYTE: The Trial Chamber will

19 rise and reassemble at 4.30.

20 --- Recess taken at 4.00 p.m.

21 --- On resuming at 4.37 p.m.

22 (The witness entered court)

23 MR. NIEMANN: Your Honours, may I just raise

24 a matter very quickly? Just after 5.00, might I be

25 excused? Ms. McHenry will take over this afternoon.

1 JUDGE KARIBI-WHYTE: Yes. You may be

2 excused.

3 You may continue, Ms. McMurrey.

4 THE REGISTRAR: I remind you, sir, that you

5 are still under oath.

6 MS. McMURREY: Thank you, Your Honours.

7 Q. Dr. Goreta, no matter how much the counsel

8 for Delic talked about this anti-social personality

9 disorder, that is not Esad Landzo, is it?

10 A. I believe I have already answered that

11 question in detail. If you need any further

12 explanations, then I think I would need very specific

13 questions.

14 Q. Although Ms. McHenry did not let you finish

15 one of your answers a while ago, Ms. McHenry asked you

16 about sadistic behaviour. Now, there are other

17 explanations for people exhibiting something that may

18 look like sadistic behaviour. Can you explain what you

19 wanted to tell the Court earlier?

20 A. The second model, which may have some

21 external aspects of sadistic behaviour, is conditioned

22 by a combination of these dependent personality

23 disorder characteristics. I explained the

24 identification, the need to identify with the superior,

25 this afternoon, and this relates to the person who

1 fully trusts his superior and upon whom the subject

2 projects complete responsibility for his behaviour.

3 So if this is the model, according to which

4 one can have sadistic -- if this model is taken into

5 view, then we cannot talk about a sadistic type of

6 personality. The sadistic type of personality is the

7 problem of persons who exhibit other types of criminal

8 behaviour. This kind of person, very often, cannot

9 offer any resistance or does not wish to offer any

10 resistance to the person issuing orders, because that

11 individual believes that the superior knows better than

12 he does and that the superior would take upon himself

13 the responsibility for his acts.

14 Here, I'm talking about a certain model of

15 behaviour without giving any specific examples and

16 involving any persons.

17 Q. Now, the last question is that Ms. McHenry

18 had asked you, "If Mr. Landzo goes to another country

19 and he has a bad role model, would it turn out with the

20 same results that it has before?" Can you explain why

21 it would be different now than it was before?

22 MS. McHENRY: I'm going to object. I don't

23 think this arises out of re-examination and, certainly,

24 that was not my question.

25 MS. McMURREY: Your Honour, I believe that --

1 JUDGE KARIBI-WHYTE: It was put not exactly

2 the same way. I think what Ms. McHenry was suggesting

3 is, if he was somewhere else, whether he would manifest

4 the same traits. That is not putting it as you have

5 put it, whether he had another role model, which is

6 quite a different thing.

7 MS. McMURREY: Then I will phrase it

8 according to what the Court wishes.

9 JUDGE KARIBI-WHYTE: Not what the Court

10 wishes, what you wish and what the cross-examination

11 inferred, not what the Court wishes. It's not the

12 Court's question.

13 MS. McMURREY:

14 Q. I would just like to ask you, Doctor, is what

15 would be the difference in his behaviour today compared

16 to 1992, if he's moved into a situation where, let's

17 say, he might be exposed to a Mafia Don in Chicago.

18 What would be the difference?

19 A. For everybody, including persons who are at

20 risk because of the changed structure of personality,

21 it wouldn't be very healthy or advisable to be in a

22 Mafia environment. I think this is common knowledge.

23 You don't need a psychiatrist to offer any explanation

24 in that respect.

25 What can be expected is that, whatever the

1 fate of Mr. Landzo is, he will be treated in accordance

2 with all known penological principles and models. This

3 was purely a hypothetical situation. I wanted to say

4 that he certainly needs certain psychotherapy in prison

5 and that the continuation of such psychotherapy should

6 be ensured.

7 Once he leaves the prison environment, as I

8 said, he will have to spend a certain period of time,

9 and that is to be assessed only later on, I mean, the

10 length of that period. So he will have to be under the

11 supervision of certain experts until it is fully

12 established and evaluated that Mr. Landzo is in full

13 control, like any other citizen, of his moral

14 responsibility. This is something that cannot be very

15 precisely defined at this particular moment. However,

16 on the basis of my knowledge and the conversations I

17 had, I can say that this is all moving towards a

18 positive outcome. I think that Mr. Landzo has a chance

19 to improve in that regard.

20 Whether this particular process will stop

21 because of inappropriate care and inadequate experts,

22 this is something else. I have mentioned, I believe,

23 the factors that are decisive for the idea that I have

24 just exposed.

25 Q. As compared between 1992 and 1998, has

1 Mr. Landzo matured?

2 MS. McHENRY: Objection. This does not rise

3 out of re-examination.

4 MS. McMURREY:

5 Q. Has he developed better coping skills?

6 JUDGE KARIBI-WHYTE: Is that different from

7 your last question?

8 MS. McMURREY: I think it's different because

9 he's able to --

10 JUDGE KARIBI-WHYTE: I think it did not

11 arise.

12 MS. McMURREY: Then I certainly thank you for

13 coming here on your birthday, Dr. Goreta, and I

14 appreciate the testimony you have offered for us.

15 Thank you.

16 JUDGE KARIBI-WHYTE: Thank you very much,

17 Doctor. You have been very helpful. Thank you.

18 THE WITNESS: I would also like to thank this

19 Honourable Chamber for listening to me, and it has been

20 a privilege and an honour for me to participate in the

21 proceedings. Thank you once again.

22 JUDGE KARIBI-WHYTE: You are discharged.

23 (The witness withdrew)

24 JUDGE KARIBI-WHYTE: Can we have your next

25 witness now?

1 MS. McMURREY: Yes, Your Honour. The Defence

2 of Esad Landzo calls Goran Jelisic.

3 Your Honours, just for completeness of the

4 written statements, I was just handed something that I

5 did not file, the original written statement by one of

6 my witnesses with the original signature, so I would

7 like to offer that now. The copies were already filed

8 earlier. If I might, I'll wait for the assistance of

9 the usher.

10 (The witness entered court)

11 JUDGE KARIBI-WHYTE: Let him take the oath.

12 THE WITNESS: I solemnly declare that I will

13 speak the truth, the whole truth, and nothing but the

14 truth.

15 JUDGE KARIBI-WHYTE: Take your seat, please.

16 MS. McMURREY: May it please the Court?

17 JUDGE KARIBI-WHYTE: Yes. You may continue.

18 WITNESS: GORAN JELISIC

19 Examined by Ms. McMurrey:

20 Q. Good afternoon, Mr. Jelisic. You and I met

21 for the first time Friday afternoon, didn't we?

22 A. Yes, we did.

23 Q. Would you please state your full name for the

24 record?

25 A. My name is Goran Jelisic.

1 Q. You're currently charged under indictment in

2 this Tribunal; is that right?

3 A. Yes.

4 Q. What is your ethnic background, Mr. Jelisic?

5 A. I'm orthodox by religion.

6 Q. Are you currently residing at the U.N.

7 detention unit?

8 A. Yes, I am.

9 Q. What date did you arrive there?

10 A. On the 22nd of January, 1998.

11 Q. Do you know a young man named Esad Landzo?

12 A. Yes.

13 Q. Can you describe for the Court your first

14 encounter with Mr. Landzo?

15 A. Yes, I can.

16 Q. Would you do it?

17 A. I arrived in the detention unit of the United

18 Nations, as I've already said, on the 22nd of January,

19 1998. On the 23rd of January at 1.00 p.m., I was

20 allowed contact with other detainees. The guards came

21 at around 1.00, opened the doors of my cell, and then

22 left. I heard voices from other rooms, but I couldn't

23 tell where they were coming from. I simply stood at

24 the door. I didn't know where to go.

25 At that moment, I was approached by Esad

1 Landzo and another detainee of the U.N. detention

2 unit. They were walking through the corridor, and Esad

3 Landzo, I remember very well, said, "Come on here, you

4 brother Serb. Don't fear anything." Then he and the

5 other detainee took me to our living room, and they

6 introduced me to other detainees.

7 After that, Esad Landzo took me to his cell,

8 and he showed me around. He showed me his computer.

9 He told me what he was doing, and we spent some time

10 talking. That was our first encounter.

11 Q. Since that time, have you spent a lot of time

12 with Esad Landzo?

13 A. Yes.

14 Q. Did he try to explain the proceedings to you?

15 A. Yes. It was Esad Landzo who explained to me

16 that I would have an initial appearance a few days

17 later on. He explained to me how this functioned, what

18 the procedure was, and he told me that we were all

19 together there and that we could normally socialise

20 with each other.

21 Q. When you first arrived there, did he also

22 provide you with some clothing?

23 A. Yes, he did. For my initial appearance

24 before the International Tribunal, which took place

25 four days later, Esad Landzo gave me a shirt, a tie,

1 and a blazer. Other detainees lent me their shoes and

2 some other items of clothing.

3 Q. Does he assist the people in the detention

4 centre with translation or interpretation?

5 A. Yes, he does. Together with another group of

6 us detainees in the Dutch section of the prison, Esad

7 Landzo is assisting us with the

8 translation/interpretation in the absence of our

9 interpreter. He helps us with the computer, and he is

10 also a very good cook. He's been preparing meals for

11 us on a regular basis.

12 Q. Did you and Mr. Landzo together initiate

13 special joint celebrations for religious holidays at

14 the detention centre?

15 A. Yes, we did. Upon my arrival at the

16 detention unit, the first religious holiday was a

17 Muslim holiday, the Bajram. On that occasion, I helped

18 Esad Landzo organise the celebration, so we celebrated

19 it together. After that, I helped him clean the place

20 and tidy up the premises. When the orthodox religious

21 holiday came, Esad Landzo helped me and other detainees

22 of orthodox religion with the arranging of the

23 celebration.

24 Q. Were you even subjected to criticism by some

25 of the other Serb detainees for your association with

1 Mr. Landzo?

2 A. Yes.

3 Q. That was mainly only one other detainee,

4 though, wasn't it?

5 A. Yes.

6 Q. Now, does Esad Landzo like children too?

7 A. Yes, he does. Whenever I had a visit from my

8 wife and my 3-year-old son, Esad Landzo would prepare

9 food for my family, and he would take care of my son.

10 He would play ball with him and things like that.

11 Q. When you have telephone conversations, does

12 he send messages back to your family?

13 A. Yes, he does. It can be seen from the

14 conversations at the detention unit, which are taped,

15 whenever I talk to my family, they send their regards

16 to Esad Landzo, and Esad Landzo always sends regards to

17 my family, my wife and other members of my family.

18 Q. When you first arrived here, trying to face

19 the serious accusations that you're charged with, was

20 there a time when Esad Landzo helped you deal with

21 these things?

22 A. Yes.

23 Q. In what way did he help you?

24 A. He helped me by explaining to me how things

25 worked. He gave me some advice and so on.

1 Q. Judge McDonald came to visit all of you at

2 the U.N. detention centre too, didn't she?

3 A. Yes, she did.

4 Q. Was Judge McDonald impressed with the

5 camaraderie that she saw between all of you?

6 A. Yes, she was.

7 Q. What did she tell you?

8 A. The last time Judge McDonald was there, they

9 held a meeting which lasted about three hours. We

10 discussed all our problems. One discussion centred

11 around the fact that, through this Tribunal, a lasting

12 peace needs to be established in Bosnia-Herzegovina.

13 Later on when we sat together, we said that we found

14 peace among ourselves, but how those over there are

15 going to reach it was another matter.

16 Q. Now, Mr. Jelisic, do you know the other

17 Celebici defendants back here?

18 A. Yes.

19 Q. Have you ever had any problems with them

20 whatsoever?

21 A. No.

22 Q. Are you aware of Esad Landzo's problems with

23 bronchitis or asthma?

24 A. He told me a little bit about his health

25 problems, but as I often spend some time in his cell, I

1 saw that he had two small pumps for his asthma.

2 Q. Does his asthma seem to be better since he

3 has regular medical treatment?

4 A. Probably, yes.

5 Q. When you first met Esad Landzo, was he going

6 through certain periods of depression?

7 A. I saw that he was taking a lot of pills.

8 Several months ago, I don't know exactly when, for

9 about five or six days, he did not leave his cell, and

10 I became concerned because we are good friends. So I

11 went over there, and he asked me to leave the room. I

12 could tell that he was going through some major

13 problems.

14 Q. Could you tell a big difference in Esad

15 Landzo after he came before the Tribunal and testified?

16 A. Yes. Esad Landzo does not use anything

17 anymore as therapy. I asked him several days ago, "Are

18 you taking any pills anymore," and he said, "No, I

19 don't."

20 Q. Did you observe any changes in his

21 personality?

22 A. He just seems more serene. I don't know how

23 to put it.

24 Q. In your group over in the Dutch detention

25 centre, you told me how you have all found a bit of

1 humour in each ethnic group. Is there one person in

2 your group that you consider the poet for your group?

3 A. Yes.

4 Q. Can you explain to the Trial Chamber about

5 this poem that you have chosen to express your ideas?

6 A. It's a poem which we put together. In fact,

7 Mr. Zaric wrote it down, and sometimes we actually sing

8 this if we are bored when we're together. This poem,

9 which you have there on paper, is some kind of a

10 message of the U.N. detention unit detainees through

11 which we send a message to our representatives to reach

12 peace for all times, to take into account what we have

13 experienced here, and to take that as a lesson and to

14 achieve a lasting peace. In one of the lines, we also

15 call upon our authorities to cooperate with this

16 institution and to help bring here the real leaders.

17 Q. Does this poem represent the sincere feelings

18 of you and Esad Landzo and your group in the detention

19 centre?

20 A. Yes, the most sincere feelings. We wouldn't

21 have written it down had we not thought so.

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

23 introduce this poem into evidence as mitigating

24 evidence, at this point, of rehabilitation and the

25 rehabilitation of the group as a whole in the detention

1 centre.

2 I only have one copy here of the English

3 translation. I don't know if the Court would just

4 allow me to read the last four stanzas, or if you would

5 like to read it yourselves later, I will provide more

6 copies of the English translation. It really is quite

7 moving.

8 JUDGE KARIBI-WHYTE: That's all right. If

9 that's their poem, who translated it?

10 MS. McMURREY: I have one translation here.

11 Q. Mr. Jelisic, this was written in Serb epic

12 poetry style where it all rhymes, isn't it?

13 A. Yes.

14 MS. McMURREY: The English translation

15 doesn't rhyme, so there may be something lost, but if

16 the Court will allow me, I'll read the last four

17 verses.

18 "It is not important what happened there.

19 It is important how we feel here. Good harmony reigns

20 here among us. Everybody would say it is the way it

21 used to be. They say we are war criminals, and we are

22 just like little kids here. There is fun there. There

23 is the nice gang. No way we are the bad ones. If

24 our compatriots over there only knew how harmoniously

25 we live here, they would lie down on their stomachs and

1 they would destroy their rifles for peace. May this

2 poem be a lesson for all nice and decent people. If

3 there is harmony now in The Hague, follow us. It will

4 be good for everybody."

5 Q. I thank you, Mr. Jelisic, for coming here.

6 Is there anything else you would like to say how Esad

7 Landzo has affected you at the detention centre?

8 JUDGE KARIBI-WHYTE: You have not put in the

9 poem.

10 MS. McMURREY: I'm sorry. The poem, I would

11 like to introduce it into evidence. There are the

12 Bosnian and the English version there.

13 A. If I could just add regarding Esad Landzo --

14 JUDGE KARIBI-WHYTE: Yes. You can say what

15 you want to say.

16 A. Thank you. Another thing that I could add

17 regarding Esad Landzo, which can be seen from the

18 document which about ten of the detainees have signed,

19 that he is a truly social person, very communicative,

20 and a great joker. I also noticed that he really keeps

21 his cell very clean. It is one of the cleanest cells

22 in the unit.

23 He also likes to paint. He now has

24 undertaken to make a painting of my son. He loves

25 sports. We often play football, volleyball, and we

1 socialise. When I came over here to testify regarding

2 the character of Esad Landzo and when I was coming

3 here, all the detainees wished me good luck.

4 MS. McMURREY: Thank you very much. I

5 appreciate you coming today. Thank you. I pass the

6 witness.

7 JUDGE KARIBI-WHYTE: Thank you very much.

8 Any questions?

9 MS. RESIDOVIC: The Defence of Mr. Zejnil

10 Delalic has no questions of Mr. Jelisic.

11 MR. MORRISON: Neither has the Defence of

12 Mr. Mucic. Thank you.

13 MR. MORAN: Your Honour, I have about three.

14 I think that if I can do it from here, it might quicken

15 the process.

16 Cross-examined by Mr. Moran:

17 Q. Sir, my name is Tom Moran, and I represent

18 Hazim Delic. You know Hazim?

19 THE INTERPRETER: I'm afraid the interpreters

20 couldn't hear Counsel.

21 MR. MORAN:

22 Q. My name is Tom Moran, and I represent Hazim

23 Delic. You know Hazim?

24 A. Yes.

25 Q. Sir, first thing, do you talk to Mr. Delic on

1 a fairly regular basis?

2 A. Yes.

3 Q. Do you recall telling him that Mr. Landzo had

4 told you that he was going to come over here and lie

5 about being given orders to commit crimes?

6 A. On the advice of my lawyer, I do not wish to

7 answer that question.

8 MR. MORAN: Your Honour, I move to strike all

9 of his testimony.

10 JUDGE KARIBI-WHYTE: Pardon?

11 MR. MORAN: If he has properly invoked his

12 right against self-incrimination, then I cannot

13 cross-examine him, and his testimony should be stricken

14 from the record.

15 JUDGE KARIBI-WHYTE: There are other

16 questions you may ask, not necessarily this one.

17 MR. MORAN: Yes, sir.

18 Q. Sir, you are currently in some temporary

19 quarters at the U.N. detention centre, is that correct,

20 not the regular detention centre, but an older area of

21 the prison, you and the rest of the detainees?

22 A. Yes.

23 Q. Sir, would it be fair to say that you're

24 confined in an area without toilets, without running

25 water, without a place to wash your hands?

1 MS. McMURREY: Your Honour, I'm going to

2 object to the relevance of this line of question.

3 MR. MORAN: I think the relevance is that it

4 shows that the conditions that these people are being

5 held in are not too dissimilar from the conditions in

6 the Celebici camp.

7 MS. McMURREY: I still don't see the

8 relevance, Your Honour.

9 JUDGE JAN: There's no relevance.

10 MR. MORAN: Fine. I'll pass the witness.

11 JUDGE KARIBI-WHYTE: Any other questions?

12 MS. McHENRY: No questions from the

13 Prosecution.

14 JUDGE KARIBI-WHYTE: Thank you very much for

15 your helpful testimony. I think you are discharged

16 now.

17 THE WITNESS: Thank you too, Your Honours.

18 JUDGE KARIBI-WHYTE: Thank you. You can go.

19 (The witness withdrew)

20 MS. McMURREY: Your Honours, at this point,

21 of course, the Defence of Esad Landzo has no other oral

22 testimony to put before the Court, but we would like to

23 re-urge that the Court reconsider all mental health

24 testimony in the trial in the light of the purposes for

25 sentencing, because it would be a different test to

1 apply as far as for mitigation of punishment.

2 We have nothing further right now on

3 sentencing.

4 JUDGE KARIBI-WHYTE: The procedure is an

5 integrated one in which both the arguments for

6 sentencing and for guilt are built into one. So it

7 definitely will be considered together. There's

8 nothing new in that.

9 Any other witnesses you want to call so that

10 we can proceed?

11 MR. MORAN: Your Honour, I have one witness

12 who is in the witness room right now. He is our expert

13 on Yugoslav law. I suspect that the evidence will take

14 about an hour.

15 JUDGE KARIBI-WHYTE: He has testimony on

16 Yugoslav law and it will take an hour on sentencing?

17 MR. MORAN: Your Honour, it relates totally

18 to the sentencing in the former Yugoslavia. I have

19 provided the Court with a copy of his report, and he is

20 mainly here to just explain --

21 JUDGE KARIBI-WHYTE: We will start with him

22 today, and we will continue with him tomorrow morning.

23 MR. MORAN: First, Your Honour, I would

24 submit to the Court, and the Prosecutor has already had

25 these, a series of statements. These are the English

1 translations that were e-mailed to me. We are getting

2 the originals faxed to us of Mr. Delic's father and

3 another relative. His father was unable to come

4 because Mr. Delic's mother is quite ill, and he is just

5 afraid to leave the Konjic area.

6 MS. McHENRY: If it helps expedite matters,

7 the Prosecution has indicated that it does not object

8 to the introduction of this expert witness's report.

9 JUDGE JAN: Are you going to add to the

10 report?

11 MR. MORAN: No, Your Honour. I'd just like

12 to explain any questions that the Court has because --

13 JUDGE JAN: I wish you had given us a copy

14 before so that if there were any doubts, we could

15 clarify them ourselves.

16 MR. MORAN: Your Honour, it was filed last

17 week.

18 JUDGE JAN: I haven't seen it.

19 MR. MORAN: Your Honour, I apologise.

20 JUDGE JAN: Don't apologise. Maybe I haven't

21 seen it.

22 MR. MORAN: There was some confusion over

23 it. In fact, it actually managed to be filed twice.

24 Your Honour, I sometimes think that the document

25 distribution here is almost as bad as the document

1 distribution system in my own office, and sometimes

2 things just do not get around.

3 Let me suggest this, Your Honour: I have one

4 copy of his report here, and I would be more than happy

5 to provide it to you. If you would like, we could --

6 JUDGE JAN: Maybe it's lying on my table.

7 I'll check on that.

8 MR. MORAN: Why don't I just provide this one

9 here, the only one that I have and ...

10 JUDGE JAN: His examination-in-chief may not

11 take very long. Just ask him a few questions, if

12 necessary.

13 MR. MORAN: Pardon, Your Honour?

14 JUDGE JAN: Just file your report, and if

15 there are any questions that we want to be answered,

16 we'll ask him. Why have an hour for the

17 examination-in-chief?

18 MR. MORAN: That's fine, Your Honour.

19 JUDGE JAN: The Prosecution doesn't object to

20 the accuracy of the report.

21 MR. MORAN: Your Honour, do you think it

22 would expedite things if you took his report, read it

23 overnight, and then we will start with him at 10.00 in

24 the morning?

25 JUDGE KARIBI-WHYTE: I'm not sure what

1 difference his explanation will make, because this is a

2 matter of law, isn't it?

3 MR. MORAN: It's also the practice, and the

4 practice might -- for instance, in some jurisdictions,

5 mine, for instance, you see a lot of maximum sentences

6 given. In other jurisdictions, you see lesser

7 sentences given as a practice. Article 24(1) talks

8 about the practice in the former Yugoslavia.

9 JUDGE KARIBI-WHYTE: That depends on the

10 facts before the Judges.

11 MR. MORAN: Yes, Your Honour, it definitely

12 depends on the facts, but the practice, I think, is

13 what we wanted to bring before you.

14 JUDGE KARIBI-WHYTE: It's a very lasting

15 thing. You don't use that because somebody was

16 imposing a certain amount of years. You also would do

17 that merely because he was doing so. It depends on the

18 facts before you.

19 MR. MORAN: It clearly depends on the facts

20 before the Court, and the only other thing that might

21 require some clarification is there is some

22 distinction -- he is taking some dispute with the

23 sentencing judgement in the Tadic case on what Yugoslav

24 law was. He and Judge McDonald disagree about what the

25 law was, and I think that that's something we need to

1 bring before the Court, that it could have been that it

2 wasn't presented as clearly in the Tadic case as it

3 could have been, or whatever, but we wanted to bring

4 that one thing before the Court also.

5 So shall we start with him at 10.00 in the

6 morning, and maybe about 15 minutes in direct, if that

7 much and --

8 JUDGE JAN: This shouldn't take longer than

9 that.

10 MR. MORAN: I don't think so, Your Honour.

11 This is something, if anything, to help you

12 understand. The second thing is we were going to call

13 Mr. Delic's wife. It appears we may not be doing

14 that. We would like permission, if we rest, to submit

15 a written statement from her in the next day or so, if

16 we decide not to call her.

17 JUDGE KARIBI-WHYTE: I think we can start

18 tomorrow morning at 10.00 and then carry on. Actually,

19 I've always preferred reading the statute myself, and

20 then I know exactly what the position is, because

21 that's what guides me more than what some other Judges

22 do.

23 MR. MORAN: Yes, Your Honour. I presume we

24 will be done before lunch, well before lunch, just to

25 warn my colleagues that they better have their

1 witnesses here.

2 JUDGE KARIBI-WHYTE: The Trial Chamber will

3 now rise and resume at 10.00 a.m.

4 --- Whereupon the hearing adjourned at

5 5.17 p.m., to be reconvened on Tuesday,

6 the 13th day of October, 1998 at

7 10.00 a.m.

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