1 Tuesday, 8 April 2008
2 [Open session]
3 [Pre-Trial Conference]
4 [The accused Simatovic entered court]
5 [The accused Stanisic not present]
6 --- Upon commencing at 2.18 p.m.
7 JUDGE ROBINSON: Mr. Groome, I understand you have some matters
8 to raise before the witness comes in? Mr. Docherty.
9 MR. DOCHERTY: Yes, thank you for allowing me to raise this,
10 Your Honour. Just briefly, I hope. I thought it might be helpful before
11 the witness comes in to seek some clarification as to what the present
12 procedural posture of the hearing that we're engaged in is.
13 As you know, through a miscommunication, apparent
14 miscommunication, Dr. de Man thought it was his brief to evaluate the
15 fitness of Mr. Stanisic to stand trial. We proceeded to ask a number of
16 questions yesterday concerning his report. The Chamber concluded
17 yesterday's session by asking Dr. de Man the questions that are normally
18 asked of experts regarding fitness. We have, of course, a decision of
19 the Chamber find of Mr. Stanisic fit to stand trial. The Defence have
20 not yet formally moved to reopen that issue and so I am just wondering
21 where we are, and the reason that I am raising this is that if we either
22 deliberately or inadvertently have reopened the issue of fitness, then
23 the Prosecution is renewing its request to the Chamber to have Dr. Mimica
24 see Mr. Stanisic again.
25 Thank you, Your Honour.
1 JUDGE ROBINSON: I am not saying that we are reopening the
2 decision, but it is perfectly clear to me that Dr. de Man's evidence
3 raises questions which the Chamber felt obliged it to put to him the
4 questions which we did put yesterday. Depending on how he answers those
5 questions, and depending on the submissions that the parties make in
6 relation to his evidence, the Chamber will determine what to do.
7 It may very well include doing what you suggested. The Chamber's
8 whole intention is to arrive at a decision which is proper and fair in
9 all circumstances.
10 So let the doctor be brought in.
11 [The witness entered court]
12 WITNESS: JOSEPH DE MAN [Resumed]
13 JUDGE ROBINSON: Doctor, you will recall the questions that were
14 put to you last evening.
15 THE WITNESS: Yes, Your Honour.
16 JUDGE ROBINSON: And I'd like to have a response from you in
17 relation to those questions.
18 The first question was: Is the accused able to understand the
19 nature of the charges and proceedings against him including the
20 consequences of a conviction on those charges?
21 THE WITNESS: Your Honour, my answer to this question is yes. In
22 my opinion, I do consider him able to understand these matters. My
23 opinion is grounded in the fact that I did not find a significant
24 disturbance of cognitive functioning on psychiatric examination. Also,
25 Mr. Stanisic is oriented as to time, place, and person.
1 However, I would like to note that his understanding is intact,
2 as far as clearly cognitive understanding is concerned, more affective
3 understanding, "verstehen" as in Jaspers, will be severely hampered by
4 the accused's affective state, that is to say his depression.
5 JUDGE ROBINSON: I missed the words which you --
6 THE INTERPRETER: Microphone for the presiding judge.
7 JUDGE ROBINSON: I'm sorry. I'm saying that I missed the words
8 which came after "more affective understanding."
9 THE WITNESS: It's more affective understanding being the
10 feelings behind the understanding and then I used the German word
11 "verstehen" which is the part of the philosophy of psychiatrist
12 philosopher Jaspers, Karl Jaspers.
13 JUDGE ROBINSON: I see. So that's for the first question.
14 THE WITNESS: That's for the first question, Your Honour.
15 JUDGE ROBINSON: The second question: Is the accused able to
16 instruct counsel as to his defence in relation to the charges?
17 THE WITNESS: Your Honour, this question I answer in the
18 negative. I do not consider him able to instruct counsel as to his
19 defence. My opinion on this question is founded in my finding on
20 psychiatric examination that the accused is severely distracted by a
21 deeply depressed mood and depressive and suicidal ruminations, thereby
22 lacking the necessary powers of concentration.
23 JUDGE ROBINSON: Thank you for that. And the third question: Is
24 the accused able to testify on his own behalf if he has to do so?
25 THE WITNESS: Your Honour, this question also I have to answer in
1 the negative. In my opinion, the present state of the accused precludes
2 him from being able to give evidence and to be cross-examined. The
3 causes of this disturbance is the same as the reason for his being, in my
4 opinion, unable to assist counsel, namely, my finding on psychiatric
5 examination that the accused is severely distracted by a deeply depressed
6 mood and depressive and suicidal ruminations thereby lacking the
7 necessary powers of concentration. This finding is also at the basis of
8 my classifying his actual level of functioning as reflected in his low
9 score on the Global Assessment of Functioning scale we extensively
10 discussed yesterday.
11 JUDGE ROBINSON: In that low score, there was a reference to the
12 judgement of the accused being affected. Would you like to comment on
13 that in relation to the question?
14 THE WITNESS: I'm not very sure I understand what you want me to
15 answer so -- or at least what you're asking me.
16 JUDGE ROBINSON: Let me find the table with the -- yes, you told
17 Mr. Jordash that the principal basis for your conclusion that the accused
18 was unfit was that you found his judgement impaired and you also found an
19 inability, on his part, to function in almost all areas. I think those
20 are two of the three factors mentioned in that category 21 to 30, and I
21 wondered whether you would wish to elaborate on that in relation to the
22 questions concerning whether he's able to testify on his own behalf and
23 whether he's able to instruct counsel.
24 THE WITNESS: As I tried to put in my answer just now, but it may
25 have condensed my answer a bit too much. One aspect is the depressed
1 mood and the preoccupations with feelings of despair, hopelessness, and
2 the depressive ruminations and suicidal thoughts which occupy his mind at
3 the moment. And there is, so to speak, not much room for anything else.
4 That is the reason why he is at this moment functioning at a very low
5 level, and is also, in my opinion, not able to assist counsel in his own
7 JUDGE ROBINSON: So not able to -- when you use the word assist,
8 it's actually instruct.
9 THE WITNESS: I'm sorry, instruct. I was a bit confused by the
10 Dutch saying.
11 JUDGE ROBINSON: I understand that. Now, the fourth question was
12 whether the accused is physically able to withstand full-time trial
13 proceedings, which is normally five days a week, five hours a day.
14 THE WITNESS: Yes. Your Honour, in asking me that question, you
15 put the term "physically" between parentheses, so I have done that in my
16 answer also, and encompassed psychological functioning due to his mental
18 JUDGE ROBINSON: Just ignore the word "physically."
19 THE WITNESS: I'll ignore it for the moment.
20 In my professional opinion, the accused, in his present state, is
21 unable to withstand full-time proceedings. Even the mitigated schemes as
22 proposed by the psychologist, Dr. Smit and by the psychiatrist,
23 Dr. Mimica, would, in my opinion, not be possible.
24 My opinion is based on my assessment of the severity of the
25 depressive state which has gone from 21, meaning moderate on the 17-item
1 Hamilton scale in the examination of Dr. Mimica on 29th of November, to
2 37, in my own examination of Mr. Stanisic on the 28th of March of this
4 JUDGE ROBINSON: And the last question is: Does his health
5 situation require any particular accommodation to support his ability to
6 stand trial? It's very much related to the last question.
7 THE WITNESS: Yes, Your Honour. In my opinion, I -- what is
8 required at the moment is adequate clinical care including vigorous
9 psychiatric treatment. At the moment of examination, treatment of this
10 nature and quality was offered by the UNDU medical staff including the
11 psychiatrist, Dr. Vera Petrovic, and by the staff of the penitentiary
13 Further decisions on treatment policy need, in my opinion, to be
14 made on the basis of experience gained in this particular case and
15 depending on further developments in the case.
16 In my experience, and to my knowledge, full restoration of
17 functioning is well within the realm of possibility in a case like this,
18 despite the severity of the depression at its present stage, and the
19 presence of psychotic features.
20 JUDGE ROBINSON: Let us go back to question number four, whether
21 he's able to withstand full-time trial proceedings. You said that he
22 wouldn't be able to withstand even the mitigated schemes proposed earlier
23 by other doctors. I'm not sure exactly what you are saying. Are you
24 saying he can't withstand any trial proceedings or whether he's to be
25 tried four days a week or three days a week?
1 THE WITNESS: Yes, that was what Dr. Mimica advised that he
2 should be tried only one part of the day and three days a week, but at
3 this moment, I think he will be not only be able to function in a trial
4 which is for the -- which was answered in the first questions, but also
5 that the trial as such would be deleterious to him at this moment.
6 JUDGE ROBINSON: I'm sorry to come back to you. So in plain
7 terms, what are you saying? In plain terms.
8 THE WITNESS: He is not only -- he is, at this moment, simply too
9 sick to be here. To say it in normal words.
10 JUDGE ROBINSON: Thank you very much.
11 [Trial Chamber confers]
12 JUDGE PICARD: [Interpretation] Sir, I have one or two questions
13 to ask you. You stated yesterday that your report was made on the basis
14 of an examination of Mr. Stanisic at one particular point in time. In
15 fact, you saw Mr. Stanisic for an examination which lasted less than one
16 hour or one hour, approximately. You were well assisted by an
17 interpreter. He was hospitalised. He had had morphine administered to
18 him and he was apparently suffering from renal problems at the time.
19 Do you think that your conclusions regarding the mental state or
20 health of Mr. Stanisic are nevertheless relevant if he is not
21 hospitalised, if he doesn't have any physical problems, if he does not
22 take morphine anymore, et cetera, et cetera? In other words, is your
23 conclusion, according to which you're stating that he is not capable of
24 withstanding trial because of his mental state, but would these
25 conclusions still be applicable today while he is no longer in a hospital
1 or would that still be applicable in a week from now, for instance?
2 THE WITNESS: The reason I -- the reasons I gave for my judgement
3 of the mental state of Mr. Stanisic are due to psychological condition,
4 first and foremost, because I am not an expert on his -- on his
5 gastrointestinal or other physical ailments. Nevertheless, I do agree
6 with you that his physical state and his mental state are clearly linked
7 and that the story of Mr. Stanisic in the recent past, as he told me in
8 his experience of suffering blows, both physically and mentally during
9 the last month, are intermingled.
10 Nevertheless, the depth of his depression was very clear to me at
11 the time of examination, which would have lasted longer if the clinical
12 conditions of Mr. Stanisic had permitted me to do. And this finding, the
13 severity of the depression is the foundation of my advice to the Court.
14 I hope my answer is satisfactory to Your Honour. Not really?
15 JUDGE PICARD: [Interpretation] No, no, I believe that you've
16 answered in part, certainly, my question. I think that it is clear that
17 Mr. Stanisic is suffering from a deep depression, and I believe that
18 every doctor that examined him would agree on that point, and agree on
19 that point, for that matter.
20 But the question I would like to put to you is to -- is the
21 following: You said that his depression deteriorated, in other words, it
22 became even deeper lately but you only met him on one occasion so this is
23 a conclusion that you drew from probably what Dr. Petrovic told you or
24 what Mr. Stanisic told you himself. But I'm wondering if his depression
25 became more severe because of his physical problems when you examined him
1 or if, in fact, he is more or less in the same state, approximately a
2 month ago when he was examined by other physicians?
3 THE WITNESS: My conclusions from studying his file on record
4 within the detention unit was that the development in the recent period
5 has been a negative one, and besides the sayings of Dr. Petrovic, I have
6 based that impression both on written data within his medical charts and
7 on Dr. Paulus Falke with whom I also spoke in this matter. Especially
8 that was in fact the only question I asked from him is: How do you see
9 the development? And he agreed with Dr. Petrovic that there was a rapid
10 deterioration taking place. Sorry about that word.
11 I do agree with you that -- and that's the reason why I mentioned
12 that in my -- the answer to the Learned Judge's last question being that
13 we have to follow-up on the examinations made in the past which, as you,
14 in my opinion, rightly said do show a great deal of common ground besides
15 having a certain difference within the severity of the depression.
16 There's no discussion about the diagnosis, apart from the psychotic
17 features, but the -- the fact that there is a depression is acknowledged
18 only we see a falling off of the severity. Yet it gets worse, not
20 JUDGE ROBINSON: Judge David has a question but I just wanted to
21 see whether I could clarify for the doctor what I believe Judge Picard
22 was asking him.
23 I think the substance of her question is whether the doctor
24 believes that the fact that the accused had been administered morphine
25 some time before, perhaps shortly before the examination, and that he had
1 hallucinations caused by mirtazapine, whether these factors accounted for
2 the condition in which you found him and therefore, explained your
3 finding so that absent those, let us call them, external factors, would
4 you have found the accused in the same condition to warrant the finding
5 that you made?
6 THE WITNESS: Yes, I understand. Thank you very much for this
7 clarification, Judge.
8 One of the points is that I am not convinced that the
9 hallucinations which have been reported in several cases by Mr. Stanisic
10 for a long period of time stem from the mirtazapine, although I -- of
11 course I cannot prove that they don't, but the time-frame does give me
12 the opinion that the nightly occurrences which Mr. Stanisic reports
13 are -- do predate his use of mirtazapine.
14 As to the morphine, I specifically asked Nurse Remelsvan [phoen]
15 to instruct me as to the time when he did get morphine and she told me
16 that that was in the evening before his examination which means about 18
17 hours before, and he did not get a repeat dosage. That is what I was
18 told. So due to the half-life of the drug, I did not judge his clinical
19 situation to be significantly altered by the fact that he had been
20 treated with morphine.
21 JUDGE ROBINSON: Thanks very much.
22 JUDGE DAVID: Dr. de Man, in the previous reports of the experts
23 Mimica and Smit, they say that it was possible that a depression was a
24 reaction to his incarceration. And this has been reflected in paragraph
25 75 of our Chamber's decision.
1 Do you believe that depression, in the psychiatric and
2 psychological literature as well as in this case is an accompanying
3 factor to most incarcerated persons, especially when the prospects are
4 for long-term incarceration?
5 THE WITNESS: The prospect of long-term incarceration is
6 something which is maybe unfortunately quite known to be, as I have been
7 working in long-term prisons, and what -- we do see changes in behaviour
8 due to long-term incarceration, but clinical depression even amongst
9 people incarcerated for a long time while threatened by a life sentence
10 or even having been sentenced to life imprisonment is still quite rare.
11 JUDGE DAVID: The report I have in front of me indicated that in
12 epidemiological studies done both in the U.S. and Canada, psychiatric
13 syndromes, severe depression is part of the evolutionary process of
14 people when they feel themselves with the prospect of dying in prison or
15 long-term possibilities of staying there. Do you believe that in the
16 case of Mr. Stanisic, the increased level of depression is caused by the
17 prospect of his own "verstehen," if you want, of the situation?
18 THE WITNESS: Yes.
19 JUDGE DAVID: Or not?
20 THE WITNESS: I think the prospect of severe sentence being given
21 and prolonging of what he experienced -- experiences as being banished
22 from his own country is certainly a very severe burden and contributive
23 factor to the clinical state of Mr. Stanisic, there's no doubt about
25 JUDGE DAVID: So it might follow that it is a precipitating
1 factor in the aggravation or it could be.
2 THE WITNESS: It could very well be. It certainly is
3 contributive to the total image.
4 JUDGE DAVID: If that is so, there is no, then, alternatives to
5 every inmate in the same situation except alleviation through
6 psychological and biological therapy or physiological therapy, you know?
7 THE WITNESS: Yes. I think that people incarcerated are entitled
8 to the same kind of care people outside get. I'm sure that this Tribunal
9 has the same opinion. But that is not the same as opening the back door,
10 I can understand that.
11 JUDGE DAVID: You said yesterday, if I am not mistaken, that this
12 is a dynamic process.
13 THE WITNESS: Yes.
14 JUDGE DAVID: It is not an irreversible process, neither an
15 instructural condition. Is that correct?
16 THE WITNESS: That is correct, sir.
17 JUDGE DAVID: Thank you very much.
18 [Trial Chamber confers]
19 JUDGE ROBINSON: If the parties have questions to put to the
20 doctor, they may do so.
21 Mr. Docherty.
22 MR. DOCHERTY: Thank you, Your Honour.
23 Cross-examination by Mr. Docherty:
24 Q. Doctor, I just have a couple of questions based on the answers
25 that you've given. There are two topics that I want to cover. One is
1 the process by which Mr. Stanisic should be evaluated, what you think is
2 the optimal process, and the other question is about the care that is
3 available, as you know it, in the United Nations Detention Unit.
4 To begin with the first question or the first topic, excuse me.
5 Yesterday, when describing the way that this process would go forward in
6 the criminal justice system of the Netherlands, you used words such as
7 longitudinal, and multi-disciplinary, and today, you have said that it
8 would require experience with Mr. Stanisic and "further developments in
9 the case."
10 A. Yes.
11 Q. The question is this: Could you describe to us how a situation
12 like this, how a defendant like Mr. Stanisic, charged with a serious
13 crime, stating that he is psychiatrically unfit to stand trial, how would
14 that be evaluated in the Netherlands criminal justice system?
15 A. Yes, I can tell you something about that. What we try to do
16 within the Netherlands penitentiary system is to have adequate care
17 available, even to those who are -- have to stay within the confines of
18 the prison system.
19 For that, we have Statute law which makes it possible to treat
20 people while they are still legally incarcerated, either within a
21 hospital or within TBS facility, which is a special facility, special
22 hospital which is under the regulations of the Dutch government.
23 That means that we don't have to lose control, you might say, our
24 Prosecutors don't have to lose control of a detainee once complicated
25 treatments are necessary. That's one aspect.
1 The other aspect is -- and that's maybe something your learned
2 friend from the Defence might instruct you about from his scientific
3 point of view. Our view, the Dutch view of being -- of unfitness to
4 stand trial has a much higher threshold than in the Anglo-Saxon system or
5 in Germany, for example, where unfitness to stand trial and the ability
6 to assist counsel is weighed much more heavily than in the Dutch legal
8 But I'm afraid it's very difficult to make a good comparison
9 between the two systems in this respect.
10 Q. I'm sorry if I was unclear. I understand that treatment would be
11 available, even in a penal setting within the Netherlands?
12 A. Yes.
13 Q. But my question was more if an accused, if a criminal, a person
14 charged with a crime says, "I am not able to be tried," how is that claim
15 able to be evaluated? And the reason I'm asking that question, and don't
16 let me put words in your mouth, but I have picked up in several of the
17 answers you have given, some dissatisfaction with the limits on your
18 ability to talk with Mr. Stanisic. You wanted to see him at different
19 times. You wanted to see him for more time. So I'm wondering how would
20 that be handled in the Dutch system.
21 A. In the Dutch system, an important question like that would be
22 addressed by at least two specialists working together. One of them --
23 always a forensic psychiatrist, and the second almost always a clinical
24 or mental health psychologist or -- appointed court experts.
25 In some cases, there is a third-party evaluation by psychiatric
1 social worker but that's mostly just in case of a first trial and not in
2 a case like this.
3 There is a third possibility which is admission to a special
4 remand house we have in Utrecht called Pieter Baan Centrum where
5 extensive multi-disciplinary observation by psychologists, psychiatrists
6 and psychiatric social workers is possible, and that examination would
7 last for seven weeks.
8 Q. I was going to ask how long the Pieter Baan Centrum evaluation
9 would last but you've answered that. Would it be fair to say that you
10 would want to see Mr. Stanisic over a longer period of time and on more
11 occasions than you have been able to do so far?
12 A. Yes, sir.
13 JUDGE ROBINSON: About how much longer?
14 THE WITNESS: Well, I think it would be very beneficial to be
15 able to see him. We generally do two or three times and a third or
16 fourth time in order to explain the results to be examined because that
17 is one of the things we are bound to do. The duration of the -- each
18 examination will be dependent on the clinical state, so it may be that we
19 see somebody for four times, two hours, but in the case of Mr. Stanisic,
20 we would tend, as long as he is in a bad state as I saw him on the 28th,
21 I wouldn't want to see him longer than this hour, because of the
22 principle of not harming the examined person. So ...
23 MR. DOCHERTY:
24 Q. And how long would pass if you saw him, let's say, four times,
25 how much time would pass between examinations to the extent that it's
1 possible to answer such a question?
2 A. Normally, when I get an order from the Dutch courts, they give me
3 eight weeks in order to prepare my report, in which time I have to
4 examine the subject, but also have to confer with my colleague, and
5 because mostly it's a multi-disciplinary evaluation, and sometimes it's
6 also necessary to ask for help in formulating our advice clear enough for
7 the court and then we can use special lawyers who are part of the
8 organisation of NIFP.
9 Q. By NIFP, that's the Netherlands Institute for Forensic
11 A. Exactly. And that's both the organisation which -- which is
12 responsible for treatment within the prison system and for advice to
13 peripheral courts is part of that organisation, but also Pieter Baan
14 Centrum is one of the working units of NIFP.
15 Q. What sorts of cases are evaluated at the Pieter Baan Centrum
16 versus evaluated on the sort of schedule that you have just outlined for
18 A. The one legal obligation of Pieter Baan Centrum is to see people
19 who are under a remand order because you need an incarceration in order
20 to be able to put somebody under observation within the prison system.
21 And besides that, we try to limit the admission to Pieter Baan Centrum,
22 which of course has a limited capacity, to severe cases in which the
23 decision has a great effect on the decision of the court -- advice has
24 the great effect on the decision of the court as it is here.
25 Q. What in your view, are the advantages of an evaluation of the
1 sort that you have been outlining in your answers to the last few
2 questions that I have put to you as opposed to a single visit such as you
3 have had with Mr. Stanisic?
4 A. Of course a single visit would be exceptional even in ordinary
5 cases, because we always try to see people two or three times, but the
6 order of the Court was clear that I had to examine him on the 28th and
7 deliver a report on the 1st of April which didn't give much -- any space,
8 I must say. I understand -- I quite understand that given the
9 circumstances, but in ideal circumstances, for a clinical evaluation, we
10 would -- we would like to use more time and the advantage of -- I checked
11 with your question for a moment, if you don't mind -- the advantage of
12 extensive clinical examination is that you can -- you get more
13 opportunity, so to say, to second-guess yourself. You're not only with
14 several disciplines but you can go back at any moment and check on a
15 certain point. You have the observation of skilled personnel who also
16 see somebody on a 24 and 24 basis in a small group of six or eight people
17 being under observation. You get all kinds of data which you put
18 together to a report from the Pieter Baan Centrum is generally about 50
19 to 60 pages.
20 Q. The second topic I wanted to cover, I wanted to clear up
21 something from yesterday, and I confess I did not entirely catch this as
22 you were saying it. But were you told anything on the 28th of March
23 about Dr. Petrovic's availability over the preceding month? It sounded
24 to me like you said that she had been in Belgrade and thinking about it,
25 I wasn't clear how long she had been in Belgrade.
1 A. What I had heard was that she was back in the Netherlands for the
2 last for, I think, one or two weeks before my examination. And before
3 that, she had been in Belgrade for two or three weeks, I'm not sure how
4 long because I'm not familiar with her exact schedule.
5 Q. And do you know if Dr. Petrovic is not available because she is
6 in Belgrade or for any other reason, are any -- is any psychotherapy
7 available in the UNDU other than the continued administration of
8 prescribed anti-depressant medications?
9 A. Not that I am aware of at this moment.
10 MR. DOCHERTY: Your Honour, unlike the other experts, we got
11 Dr. de Man's answers to these questions just today so may I have a moment
12 to consult with Mr. Groome before concluding?
13 JUDGE ROBINSON: Certainly.
14 MR. DOCHERTY: Thank you, Your Honour.
15 [Prosecution counsel confer]
16 MR. DOCHERTY: Just two final questions, Doctor, and then I will
17 be finished. When you say that when you say that at the Pieter Baan
18 Centrum a patient is under 24 out of 24-hour observation and therefore
19 you get lots of data, what sort of data do you get? What are these
20 observations oriented towards, what is the point of these observations?
21 A. The point is to observe the symptoms of the person under
22 observation over a long period of time, that means also that they are
23 objectified. Of course you do gather a lot of trivia is this way. So
24 reading a report from the Pieter Baan Centrum can sometimes be an
25 exercise in data mining but that does not mean it's not a good system.
1 You do get -- you can get information you discard later on but it gives
2 you much more security about the persistence of symptoms over time,
3 whether they can be objectified.
4 Q. And lastly, in your opinion, how often should Mr. Stanisic be
5 seen in order to do an evaluation that is not hampered by the limitations
6 you have described on the evaluation you have been able to do?
7 A. In order to make a proper examination, being unable to answer
8 questions as to the kind of treatment, for example, which should be
9 offered and the effects of the incarceration, I think I would need at
10 least three or four visits and be able to confer with colleagues on this
12 Q. How often, in your view, should Mr. Stanisic be seen by a
13 psychotherapist for treatment, or how frequently, at what rate?
14 A. Well, that's a difficult question to answer because as I already
15 said in my last answer, that the scope of my evaluation was not such that
16 I can give well-founded advice as to treatment. So I think I will have
17 to give -- not to give you an answer on this question, because I simply
18 haven't evaluated the accused significantly to be able to give you that
20 Q. Understanding that, Doctor, nevertheless, could Dr. Petrovic's
21 absence have been a contributing factor to the observed severity of
22 Mr. Stanisic's symptoms which you found on the 28th of March?
23 A. I cannot exclude the fact, but I have no positive indication.
24 MR. DOCHERTY: Thank you, Your Honour. I have no further
1 JUDGE ROBINSON: I should have said that the court deputy
2 informed me that the accused was at the detention unit. He had been
3 informed that the doctor indicated that he was not well enough to attend
4 court and that the customary documentation will be provided to the
5 Chamber and I want to stress to the court deputy the importance of that
6 documentation being sent to the Tribunal as quickly as possible.
7 May I ask whether Mr. Knoops has any questions for the witness?
8 MR. KNOOPS: Thank you, Your Honour.
9 Cross-examination by Mr. Knoops:
10 Q. Dr. de Man, good afternoon.
11 A. Good afternoon.
12 Q. You testified, Doctor, that I quote: "I was only able to examine
13 Mr. Stanisic for one hour and the clinical conditions had permitted me
14 not to see him longer."
15 Now, would you agree that this hour visit was due to his medical
16 condition, i.e., the level of exhaustion or lack of concentration that
17 you had to break-up your visit after one hour?
18 A. He was clearly too tired for me to continue, yes.
19 Q. You were also asked by the Learned Judges about the potential
20 influence of the factor incarceration on the GAF scale?
21 A. Yes.
22 Q. Would you agree that the GAF score is an overall score and
23 therefore, the level of incarceration as such is only one of the many
24 factors you accounted for?
25 A. That's certainly true, yes.
1 Q. Now, speaking about the -- actually the moment of depression and
2 the fact whether there is a relationship or not with the incarceration, I
3 noticed in your report on page 3 that you spoke with the accused about
4 the moment his condition deteriorated. It's on page 3, second paragraph.
5 You mentioned, "On the subject of his cooperation with counsel."
6 A. Yes.
7 Q. "Mr. Stanisic states that he has been able to work with the
8 Defence team very well until 7 or 8 months ago as his condition
10 Now, my question to you is, Doctor, whether you were able to find
11 any positive indications in your evaluation of this case, the data you
12 saw, that the deterioration in terms of his clinical depression indeed
13 started before his incarceration?
14 A. I checked this with Dr. Petrovic, whether I understood well what
15 Mr. Stanisic had told me. I did come to the conclusion that the moment
16 of decline was, in fact, during his stay in Serbia Montenegro, not during
17 the incarceration time.
18 Q. Now, as to treatment and the possibility of restoration of his
19 situation, as you clearly indicated that it's not irreparable, would you
20 say that as a professional, such a restoration of mental state,
21 preferably should take place in a clinical environment instead of a
22 detention environment?
23 A. From a clinical point of view, a detention environment is not
24 something you would prescribe. Nevertheless, it is my experience as a
25 forensic psychiatrist also working in a prison system from 1988 that good
1 clinical care on -- that you might say on an out-patient basis, can be
2 offered within the prison system and even with serious depressions, I see
3 that both in my official practice and in my private practice at home,
4 that it is possible to treatment severely ill people outside of the
6 The decision whether somebody has to be admitted to a psychiatric
7 hospital or to a facility like we have within the Dutch prison system,
8 that decision is a multi-factorial one. You cannot -- it's not a
9 one-on-one relationship between the severity of the illness and the
10 necessity of clinical hospitalisation.
11 Q. But you would agree that as a professional, if you had to
12 prescribe any form of treatment, you would give your preference to a
13 situation whereby the patient is in a clinical environment instead of a
14 detention environment.
15 A. I would try and have the same -- well, same is difficult, but
16 almost the same reason for admission inside or outside the -- my -- the
17 point I judge when asked whether somebody is fit to be detained, which is
18 something which is much more frequent question asked by Dutch courts,
19 "detentie geschiktheid" they call that, then I usually say that nobody is
20 fit to be detained from a psychiatric point of view but that once the
21 necessary medical treatment turns out to be impossible within the prison
22 system, then there is a compelling need to hospitalise.
23 Q. Doctor, you were asked some questions by my learned friend of the
24 Prosecution about the Pieter Baan Centrum, the observation clinic who
25 operates under the auspices of the ministry of justice in the
1 Netherlands. Would you agree with me that the Pieter Baan Centrum is not
2 a -- an institution for mental recovery but rather to arrive at a proper
3 diagnosis of an accused person? Would you agree with that?
4 A. I would entirely agree with that, sir.
5 Q. And would you agree with us that we have a diagnosis, not only
6 from you, but also from other experts. Therefore, the focus of the
7 future of this case should be the proper treatment instead of considering
8 the accused to be admitted to the Pieter Baan Centrum where primarily,
9 the diagnosis has to be made.
10 A. Yes, but the diagnosis, the prognosis on treatment is of course
11 part and parcel of a full clinical observation which also can take place
12 at the Pieter Baan Centrum. It's not a treatment centre. But they do
13 give advice on the treatment necessary, both within the TBS system and
15 Q. Speaking about the prospect of the recovery of Mr. Stanisic, and
16 the Court's decision on the basis of your testimony, would you agree with
17 Dr. Falke's position as explained in his letter of 17 March 2008. I will
18 just quote --
19 A. Yes, please, I'm not familiar with that letter.
20 MR. KNOOPS: Your Honours, I'm quoting from Dr. Falke's letter,
21 second letter of Dr. Falke of 17 March 2008, last paragraph.
22 "With regard to point 3 in the court order, further expert
23 examinations are contraindicated at this point from a medical point of
24 view, as they can further increase the anxiety of the patient and can act
25 as a catalyst to the depression."
1 Q. Would you agree with the observation of Dr. Falke that any
2 further examinations by other experts could indeed result in this
3 phenomenon as described by Dr. Falke?
4 A. Of course, it is always a risk that an examination, so to speak,
5 stirs up the mud in a person's psychological make-up which could make for
6 a worsening of his situation. That was the reason why I limited my
7 examination to this one hour, because I, primum non nocere, try at least
8 not to do harm.
9 Q. And, Doctor, if you would confine yourself to the case at hand,
10 would you agree that this risk as described by Dr. Falke is realistic in
11 the case of Mr. Stanisic?
12 A. There is a risk of an examination overdose, yes.
13 Q. Two final questions, Doctor. You also questioned about the --
14 and you mentioned yourself the follow-up examinations?
15 A. Yes.
16 Q. Would you agree that any follow-up examinations should be
17 conducted instead of in terms of weeks, in terms of months in light of
18 your prognosis that the deep depression could only recover at the least
19 between six -- at least between three and six months?
20 A. Yes. I understand your question. What I meant to say in
21 seeing -- in the mentioning that the further decisions on treatment
22 policy need to be made on the basis of experience based on follow-up,
23 there is also the follow-up of treating physicians who should have
24 restoration of functioning on their agenda. So it's not just the
25 examination of independent experts, of course, which are a necessary
1 evil, in this case, but also the examination by treating physicians and
2 their report either to the independent experts or to the Court.
3 Q. Thank you, Doctor. My final question is: Doctor, you have
4 answered the questions of the Learned Judges, the five additional
5 questions, do you expect that your answers to those five questions will
6 change within the three months from now?
7 MR. DOCHERTY: I object to that question, Your Honour. That's
8 highly speculative and the witness should not be expected to answer that.
9 MR. KNOOPS: Your Honour, I --
10 JUDGE ROBINSON: The witness is --
11 THE INTERPRETER: Microphone, Your Honour, please.
12 JUDGE ROBINSON: The witness, in my view, is in a position to
13 answer it and to provide a basis other than speculation, if he can.
14 THE WITNESS: I'm always afraid of being speculative, I must say.
15 The change in the condition of Mr. Stanisic which forms the basis of my
16 answers I already stated in my first report that I expected some time,
17 three to six months, to be necessary in order to recover from this
18 depression which has lasted for more than -- for about a year now, and
19 is -- has become more severe. This is on the basis of what I know of the
20 general pattern of recovery from depression.
21 I cannot predict, and I would not like to predict exactly what
22 may happen, but if, from a statistical point of view, and you know
23 statistics always lie when you have one person in front of you, but from
24 a statistical point of view, I would expect this three months to be
25 reasonable. But I cannot predict the -- what is going to happen within
1 the next few months.
2 JUDGE ROBINSON: Thank you.
3 MR. KNOOPS:
4 Q. And Doctor, to be completely clear, that's -- that prospect you
5 just described is a prospect which is conditioned upon proper treatment,
6 i.e., psychotherapy on a structural basis?
7 A. That is based on an effective treatment of the depression and the
8 latest insights are that both talking and medication are necessary for --
9 to achieve a cure in this matter. And of course the total environment is
10 of the utmost importance also.
11 MR. KNOOPS: Thank you, Doctor.
12 No further questions, Your Honour. Thank you.
13 JUDGE PICARD: [Interpretation] Doctor, sir, I would like to ask
14 an additional question. What would be the time-frame regarding the
15 potential cure of the patient? You've just answered that question, but
16 what the Court is interested in would be what period of time would be
17 necessary in order for him to be fit to be judged? To be fit for court?
18 THE WITNESS: Your Honour, I'm afraid that's one of the answers
19 you can only be -- we can only find on follow-up, because if somebody
20 does get better, he doesn't get better in the same pattern, and you
21 should -- we should also take into consideration the fact that an early
22 return to the box might even mean that the recovery is hampered. Nobody
23 knows that at the moment. You have to follow that very closely during
24 treatment itself.
25 JUDGE ROBINSON: Doctor, I just wanted to clarify something that
1 you have testified about more than once, that is the deterioration in the
2 condition of the accused. The last time that he was seen by one of the
3 doctors who testified before us was the end of February, that's February
4 29th, and you examined him on the 28th of March. That is exactly a
6 Are you satisfied that the kind and level of deterioration that
7 you saw could take place in the space of 28 days?
8 THE WITNESS: Yes, Your Honour, I think that is possible,
9 especially in view of the fact that there also were medication changes in
10 those -- in this period of time, and his physical condition did undergo
11 some changes also, as far as I know.
12 [Trial Chamber confers]
13 JUDGE ROBINSON: Doctor, that concludes your evidence, and the
14 Chamber is grateful for you to coming to the Tribunal to give it. You
15 may now leave.
16 THE WITNESS: Thank you very much, Your Honour.
17 [The witness withdrew]
18 JUDGE ROBINSON: I will now hear submissions from the parties on
19 their assessment of the evidence of the doctor, and -- Mr. Docherty.
20 MR. DOCHERTY: Your Honour, we have received a good deal of
21 information in the last hour and 15 minutes. It would be a help to the
22 Prosecution in giving the Chamber a succinct and well-organised
23 submission if we could take the recess a bit early and counsel could
24 consult before making their submissions, if the Court please.
25 [Trial Chamber confers]
1 MR. DOCHERTY: Your Honour, just to clarify.
2 JUDGE ROBINSON: Yes.
3 MR. DOCHERTY: I wasn't asking to adjourn for the day, I was just
4 asking for the usual 20-minute break earlier than usual.
5 JUDGE ROBINSON: We knew you were more industrious than that,
6 Mr. Docherty. I should say that what I want you to concentrate on in
7 your submissions is what impact if any has Dr. de Man's evidence made on
8 the Chamber's finding of fitness. That, to my mind, is the crucial
10 We will adjourn then for half an hour.
11 --- Recess taken at 3.28 p.m.
12 --- On resuming at 4.16 p.m.
13 JUDGE ROBINSON: Yes, Mr. Docherty.
14 MR. DOCHERTY: Thank you, Your Honour.
15 On the question posed by the Chamber, the effect of Dr. de Man's
16 report on the Chamber's previous finding that the accused Jovica Stanisic
17 was fit to stand trial, the Prosecution --
18 JUDGE ROBINSON: Not just his report but also the evidence that
19 he gave.
20 MR. DOCHERTY: The Prosecution notes that the Chamber's earlier
21 decision was based on a thorough analysis of reports and testimony from a
22 number of mental health professionals. We also note that Dr. de Man was
23 quite clear both in his evidence today and in his report that he found no
24 cognitive impairment in Mr. Stanisic.
25 Dr. de Man saw Mr. Stanisic one time for less than 60 minutes,
1 although he was granted access to the medical file, he was not able to
2 look at it until later. And at the time that he met with Mr. Stanisic,
3 Mr. Stanisic was suffering from renal colic and 18 hours earlier had been
4 administered morphine. Even under these circumstances, Dr. de Man found
5 no cognitive impairment and of course, the Strugar opinion requires that
6 there be a cognitive impairment of some sort or other before an accused
7 can be found psychiatrically unfit to stand trial. It is therefore the
8 Prosecution's position that Dr. de Man's report and evidence do not
9 unseat this Chamber's earlier decision, and the Prosecution therefore
10 recommends that once Mr. Stanisic is physically fit for trial, which we
11 understand from the medical reports should be later this week or early
12 next week, the trial should commence. This should be coupled with
13 continued psychotherapy and with regular psychiatric reports from the
14 treating psychiatrist about Mr. Stanisic's progress.
15 In the Chamber's decision of the 10th of March, 2007, it was
16 ordered that, "The Trial Chamber will receive a report on the medical
17 condition of the accused once a week from the resident doctor of the UNDU
18 so as to allow for adjustments in the schedule to be made where
19 necessary. In addition, the accused is to be examined at least once
20 every four weeks or more often when necessary by a gastroenterologist."
21 The Prosecution would request that this be extended to a regular report
22 from the treating psychiatrist with, of course, the necessary and I hope
23 obvious proviso that progress report be given without going into the
24 content of any therapeutic conversations.
25 In other words, Your Honour, a strict application of the strict
1 letter of the law would say that we should go forward with this trial.
2 We recognise, of course, that the report and the evidence of Dr. de Man
3 could be a cause of concern. And contrary to what my learned friend
4 Mr. Knoops said in a question that he put to Dr. de Man, there is not, at
5 this point, if Dr. de Man's report is taken at its face, there is not at
6 this point agreement on a diagnosis. There is agreement on a general
7 level of diagnosis which is to say that Mr. Stanisic is depressed. But
8 there is no agreement on the cause of that depression. Is it a reaction
9 to incarceration? To family issues? Is it a matter of biochemistry? Is
10 it a reaction to his physical ailments? Is it a combination of these?
11 There is no agreement on the severity of his depression. The
12 hallucinations reported by Dr. de Man are self-reported by Mr. Stanisic,
13 and even Dr. de Man can't rule out the possibility that mirtazapine,
14 which he has been taking for the last month, is a cause of those
15 hallucinations. And there is no agreement on treatment.
16 If you look at Dr. de Man's report, there is an enumeration there
17 of a number of different drugs that have been tried with Mr. Stanisic
18 over a period of time.
19 Taking into account the concern that Dr. de Man's report and
20 testimony may have caused, the Prosecution persists in its recommendation
21 that the trial should commence, but offers as an alternative
22 recommendation that Mr. Stanisic be evaluated within the Dutch criminal
23 justice system as outlined today by Dr. de Man. And in particular, we
24 would recommend that Mr. Stanisic go to the Pieter Baan Centrum in
25 Utrecht for observation. There, 24-hour observation, as Dr. de Man
1 indicated, would be possible. This will take into account the very real
2 possibility of malingering which, after a preliminary review of the
3 literature, is a genuine and serious concern in cases such as this one.
4 There will be no more self-reporting of symptoms but rather, as
5 Dr. de Man said, symptoms will be objectified, will be studied, will be
6 observed by outsiders. There will be a detailed report submitted to the
8 We have had very preliminary consultations with the Netherlands
9 authorities and it appears on the basis of those preliminary discussions,
10 that Mr. Stanisic could be evaluated in the Dutch system.
11 We would further ask if the Court decides to go down this
12 particular path, that Dr. Mimica also see and evaluate Mr. Stanisic once
13 again. The advantages of that are that Dr. Mimica has seen Mr. Stanisic
14 in the past and has done a forensic evaluation of him. That Dr. Mimica
15 speaks the language of the accused, and shares with the accused a common
17 For all of those reasons, Your Honour, the Prosecution submits
18 both its primary and its secondary, if you will, assessment or
19 recommendation, excuse me. The primary being that the trial should go
20 forward because there has been no finding of a cognitive impairment. The
21 secondary being that there should be a thorough evaluation, not a
22 one-time visit by Dr. de Man, upon which the Chamber can base future
23 decisions as to the course of this trial.
24 Thank you, Your Honour.
25 JUDGE ROBINSON: Thank you, Mr. Docherty.
1 Mr. Knoops.
2 MR. KNOOPS: Thank you, Your Honour.
3 Your Honour, it's the primarily argument of the Defence that seen
4 from the best interests of the accused, we, in this stage at this point
5 will not argue reopening of the fitness issue as such. Rather, we would
6 like indeed to comment on the impact of the evidence Dr. de Man gave
7 yesterday and today on Your Honour's decision of the 10th of March and
8 its consequences for the continuation of the case.
9 I have three topics to address to Your Honours. First, of
10 course, the impact of his evidence on the decision of the 10th of March.
11 Secondly, the issue of the foundation of his evidence and the evidence as
12 such. And in the third place, I will conclude with certain concluding
13 observations and especially in view of the five options Your Honours
14 presented to the Prosecution and Defence last week.
15 As to the first topic of my submissions today is when we would
16 look into the impact of the evidence of Dr. de Man upon the ratio
17 decidendi of Your Honours's decision we would actually detect five
18 elements. First, his evidence is simply new forensic evidence. It's
19 dealing with a new forensic situation. It's evidence that is new simply
20 because Your Honours' decision is stemming from the 10th of March. We
21 are now almost a month further and despite the therapy or the treating
22 the accused is undergoing in the detention centre, there is not any
23 improvement, rather, there is a significant deterioration, to use the
24 words of Dr. de Man.
25 JUDGE ROBINSON: Do I understand you to be saying that the mere
1 fact of the time difference in the examination constitutes a new element?
2 MR. KNOOPS: We are not at liberty to comment on that,
3 Your Honour, as being not experts. We can also submit that it will take
4 more time than expected for any recovery of the accused persons.
5 The evidence given by Dr. de Man is to be taken very serious
6 because, in our humble submission, it's the best evidence the Chamber has
7 received until yesterday. It's evidence issued by a renowned
8 neuropsychiatrist and above that, it's evidence given by a
9 court-appointed expert. An expert who was, in our submission, fully
10 informed and knowledgeable. There is, in our submission, no room for
11 doubt as to the credibility of the testimony given by Dr. de Man.
12 Now, speaking in specific about the impact of his evidence on
13 Your Honours' decision of the 10th of March, we submit that there are two
14 major elements to be detected in his evidence.
15 First, the deterioration in terms of the depression as evidence
16 by the objective standards used by Dr. de Man with respect to the GAF
17 scale, has an impact, we believe, on the paragraphs 76 and 77 of
18 Your Honours' decision where Your Honours relied upon the evidence given
19 by Dr. Mimica.
20 As to the new evidence presented by Dr. de Man, by the way,
21 concurred by Dr. Petrovic as evidenced by his statement, is clearly the
22 forensically new element of psychosis, of psychotic features which
23 impacts upon the paragraphs 39 and 130 of Your Honours' ruling of the
24 10th of March where Your Honours presupposed absence of any psychotic
25 disorders or features.
1 In the third place, the evidence of Dr. de Man has a clear impact
2 upon Your Honours' ruling in specific on paragraph 131 of your decision
3 where Your Honours assumed that a modified trial schedule would
4 accommodate the potential disabilities of the accused person. And we
5 believe that the evidence of Dr. de Man given yesterday and today has
6 also an impact on the five options Your Honour has presented to the
7 Defence and Prosecution of last week.
8 Based on this new forensic evidence given by this expert, he also
9 arrives at one crucial new element for Your Honours in comparison with
10 the decision of the 10th of March, this clearly relates to the answering
11 of the five fitness questions.
12 Dr. de Man has answered the first question and therefore,
13 deviates from the other experts who based themselves on the previous
14 situation of the accused in medical terms. The answer to his first
15 question is that Mr. Stanisic's understanding is intact. We're dealing
16 now with the first question of the fitness issue, yet a more effective
17 understanding - Dr. de Man used the German word "verstehen" - will be
18 severely hampered by his mental and medical state. This is clearly
19 something new which was not before the Chamber when it ruled on the 10th
20 of March. This is clearly something new based on the changing in the
22 Also when overviewing the answers of Dr. de Man with respect to
23 the remaining four fitness questions, one can say that forensically, the
24 Court deals with a new situation.
25 I noted with respect to the fourth question that even with
1 mitigating schedules, it is not possible for the accused to attend
2 proceedings or to participate due to the severity of his depressive
4 Lastly, Your Honours, speaking about the impact upon your
5 decision of the 10th of March. I would like to refer to Your Honours'
6 ruling or holding in the paragraphs 50 and 51 of the decision of the 10th
7 of March where Your Honours have held that, "Trying an unfit accused has
8 been compared to trying an accused in absentia." We believe that
9 virtually we are dealing now with that situation and this is clearly
10 something new and clearly has and should have, in our humble submission,
11 an impact upon the decision of the 10th of March.
12 Now, my second topic deals shortly with the foundation and the
13 evidence as such of Dr. de Man. As mentioned, Dr. de Man is a highly
14 qualified neuropsychiatrist affiliated with the Dutch Ministry of
15 Justice. Above that, his view concurred on all areas with the view of
16 the treating psychiatrist, Dr. Vera Petrovic and of Dr. Falke.
17 Dr. de Man used the data and the available reports, at least he
18 was fully informed when he gave evidence to this Court by reading the
19 previous reports and I recall that Dr. de Man said that he was fully
20 acquainted with the assessment of Dr. Mimica and that to a certain
21 extent, he agreed with Dr. Mimica yet while the situation changed, he
22 could come to a different conclusion as opposed to that of Dr. Mimica.
23 So we are not dealing with an expert as suggested by my learned friend
24 from the Prosecution who had initially, of course, only access to the
25 reports, didn't read them, but when given his evidence before
1 Your Honours yesterday and today, he was fully informed about those data.
2 Now, as to the one-hour examination by Dr. de Man, we should keep
3 in mind that this one hour was limited due to the situation, the medical
4 situation of the accused, which clearly is an indication of the severity
5 of the situation as opposed to an apparent lack of thoroughness of his
6 evidence. And in that respect, we should keep in mind, with all due
7 respect, that also Dr. Mimica saw Mr. Stanisic only once in October 2007.
8 When we look into the evidence as such, Your Honour, the evidence
9 presented by Dr. de Man to Your Honours yesterday and today, it's highly
10 persuasive. It leaves no room for doubt, in our submissions. It clearly
11 shows that it is possible that such a significant deterioration, even on
12 the GAF scale can take place within one month, and I believe it was the
13 Learned Judge, presiding Judge Robinson who just asked the expert about
14 the question whether it is possible that in one month, the health
15 condition of the accused can deteriorate, and I believe the answer of the
16 expert was clearly in the affirmative.
17 I think the evidence also clearly indicates that any suggestion
18 that this depression might be contributed to any fault on the part of the
19 accused is that he is not willing to take medication or he is reluctant
20 to take medication has now been actually counterbalanced by the evidence
21 of Dr. de Man. It is not something which has to do with the position of
22 the accused as to taking medication, it has to do with the proper
23 treatment as such.
24 And we believe that when it concerns the exact cause of this
25 severe depression, the Prosecution again refers to the private situation
1 of the accused. Of course this is one of the factors which may have led
2 to the situation, but we are not dealing now any more with the exact
3 causes, we're dealing with the fait accompli that we are dealing with an
4 accused person who, in our submission, is not able to participate in his
6 Your Honours, looking further at the evidence of Dr. de Man, it
7 is clear that the expert was again in full agreement with Dr. Petrovic,
8 also including the rapid deterioration that was on questions of the
9 Learned Judge Picard and that Dr. de Man answered that question. And
10 also the potential argument that his assessment was due to the morphine,
11 I think was counterbalanced by the remark of Dr. de Man that the morphine
12 was adduced to the accused 18 hours before his examination, therefore the
13 results and the assessment by Dr. de Man had clearly nothing to do with
14 the morphine and the situation as a result thereof.
15 What is particularly striking, Your Honours, is that Dr. de Man
16 used objective tests to come to the conclusion that indeed there was a
17 severe deterioration. When you look into the report of Dr. Mimica on
18 page 15, you find the GAF scale on 65 until 70 while we're dealing now
19 with the GAF scale of 21 to 30 and a Hamilton rating scale on page 13,
20 Dr. Mimica reports related to 21 while Dr. de Man referred to 37, which,
21 in his view, is a clear indication of a severe depression, telling the
22 Court that 37 is, "As far as one can get."
23 Of course the evidence cannot be assessed without going into the
24 credibility of Dr. de Man's evaluation. In that respect, it is notable,
25 Your Honour, that the presence or absence of any psychotic features was
1 not part of the rating scale that Dr. de Man testified. Even without the
2 reported hallucinations, Dr. de Man would remain within the GAF scale of
3 21 until 30 was his testimony, and above that, the accused met all three
4 descriptions on the GAF scale: Exhaustion, fears lower his functioning,
5 he testified.
6 When speaking about the GAF scale and the principal cause for the
7 daytime impairment, which is clearly forensically a new situation the
8 Court is dealing with, Dr. de Man testified that these are related to
9 factors, "Other than the reported hallucinations."
10 Most importantly, Dr. de Man testified that the previous reports
11 upon which Dr. Mimica reported did not change his opinion. Dr. de Man
12 was quite familiar with the evidence given by the other expert, in
13 particular, Dr. Mimica, and he specifically referred to Dr. Mimica's
14 report by saying that it didn't change his opinion.
15 As to the fitness itself, Dr. de Man testified that there is a
16 very strong change in severity between his assessment and the previous
18 Your Honour, I now conclude with my observations for the Chamber.
19 At this point, we submit that there is ample reason, legally and also
20 forensically to grant an adjournment of the trial proceedings for at
21 least three to six months. At this moment, there is ample evidence
22 before the Court that trial proceedings can, in all reasonableness, not
23 take place as they would de facto tantamount to a trial in absentia, see
24 the paragraphs 50 and 51 of the Your Honours' decision of the 10th of
1 Dr. de Man testified on questions of the Honourable Judge David
2 that it is possible that the illness of Mr. Stanisic is treatable, it's
3 not irreversible was his testimony. Therefore, in light of the case law
4 we discussed last week, invited by the Chamber on the five options, we
5 believe that this is a viable and also reasonable alternative instead of
6 proceeding with the case including the option which was suggested to
7 proceed through a videolink participation.
8 If one thing has learned us today and yesterday, it is that even
9 that option, in view of the evidence before the Chamber, is absolutely
10 not realistic.
11 Lastly, Your Honour, what we learned today from Dr. de Man's
12 evidence is that any further examination through a potential renewal of
13 the fitness issue and/or inviting other experts to assess the condition
14 of Mr. Stanisic can be contra-indicative and even function as a catalyst
15 for the well being of Mr. Stanisic as written by Dr. Falke in his letter
16 of 17 March which was affirmed today by Dr. de Man's testimony.
17 Therefore, we believe that the suggestion of the Prosecution to
18 consider having Mr. Stanisic being detained in the Pieter Baan Centrum,
19 the Dutch forensic observation clinic, would be against the best
20 interests of the accused and could further hamper his health situation,
21 apart from the fact that Dr. de Man confirmed that the Pieter Baan
22 Centrum observation clinic is primarily there to arrive at a proper
23 diagnosis for the Dutch courts to see whether they can proceed with a
24 case. It's not a treating clinic, as such. This was also confirmed by
25 Dr. de Man's evidence today. And therefore, while all experts in this
1 case are in agreement that Mr. Stanisic suffers from a depression,
2 however they differ as to the nature and the severity thereof, we don't
3 believe, we submit, that a detainment in the Pieter Baan Centrum clinic
4 would be favourable to, and would assist the Court in finding a proper
5 solution for the trial proceedings.
6 In conclusion, we believe that based on this persuasive testimony
7 of Dr. de Man of yesterday and today, notably by court-appointed expert,
8 based upon the principle of best evidence, the Court should not follow
9 the suggestions of the Prosecution to continue with this case, should not
10 continue -- should not consider a treatment or detention in the
11 Pieter Baan Centrum clinic but instead could ask Dr. de Man if the Court
12 would follow the second option as suggested by the Defence, namely an
13 adjournment for at least three months, could ask Dr. de Man to inform the
14 Court in a time-frame as set by the Chamber. To inform the Court about
15 any development in the medical situation of Mr. Stanisic. Further
16 examination by any other expert, and that might also include Dr. de Man,
17 as we know now, might be contra-indicative for the situation of the
19 These are our submissions and therefore, we respectfully request
20 the Court to follow the second option as argued last week by the Defence.
21 Thank you.
22 JUDGE ROBINSON: Thank you, Mr. Knoops.
23 [Trial Chamber confers]
24 JUDGE ROBINSON: In giving its decision on this issue, the
25 Chamber does so on the well-known standard for reconsideration of a
1 Chamber's decision in the Tribunal, and that standard is that a
2 Trial Chamber's decision will be reconsidered in exceptional cases if a
3 clear error of reasoning has been demonstrated or if it is necessary to
4 do so to prevent an injustice.
5 The Chamber, by majority, Judge Robinson dissenting, decides that
6 having read the report of Dr. de Man, having heard his evidence, and
7 having heard the submissions of the parties, there is no need to
8 reconsider its decision as to the accused's fitness.
9 The Chamber will adjourn now for 20 minutes and return to give
10 instructions as to the future course of the trial.
11 --- Recess taken at 4.50 p.m.
12 --- On resuming at 5.34 p.m.
13 JUDGE ROBINSON: The Chamber has decided that the decision on the
14 future course of the trial will be given in writing, and that decision
15 will be available tomorrow for the parties. That decision will indicate
16 when the trial will begin.
17 In those circumstances, we are adjourned.
18 --- Whereupon the hearing adjourned at 5.35 p.m.