Tribunal Criminal Tribunal for the Former Yugoslavia

Page 827

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.

Page 828

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]


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.

Page 829

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

Page 830

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

Page 831

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

6 defence.

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

17 state.

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

Page 832

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

3 year.

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

12 hospital.

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?

Page 833

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

Page 834

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

Page 835

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

19 lighter.

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

Page 836

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.

Page 837

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?


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

24 that.

25 JUDGE DAVID: So it might follow that it is a precipitating

Page 838

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.


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

Page 839

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.

Page 840

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

7 system.

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

Page 841

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 ...


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

Page 842

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

10 Psychology?

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

17 us?

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

Page 843

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.

Page 844

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.

Page 845

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

11 matter.

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

19 answer.

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

25 questions.

Page 846

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.

Page 847

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

9 deteriorated."

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

Page 848

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

5 clinic.

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

Page 849

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

14 outside.

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."

Page 850

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

Page 851

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

Page 852

1 the next few months.

2 JUDGE ROBINSON: Thank you.


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

Page 853

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

5 month.

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]

Page 854

1 MR. DOCHERTY: Your Honour, just to clarify.


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

9 issue.

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,

Page 855

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

Page 856

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

Page 857

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

7 Court.

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

16 culture.

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.

Page 858

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

Page 859

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.

Page 860

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

21 situation.

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

Page 861

1 mitigating schedules, it is not possible for the accused to attend

2 proceedings or to participate due to the severity of his depressive

3 state.

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

Page 862

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

Page 863

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

5 proceedings.

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

Page 864

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

17 reports.

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

25 March.

Page 865

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

Page 866

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

18 accused.

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

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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.