130528ED

Page 8

1 Tuesday, 28 May 2013

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.20 p.m.

6 JUDGE BAIRD: A very good afternoon to you all.

7 Mr. Registrar, call the case.

8 THE REGISTRAR: Thank you and good afternoon, Your Honours. This

9 is case number IT-95-5/18-R77.3 in the contempt case of Radislav Krstic.

10 JUDGE BAIRD: Let counsel appearing for Mr. Krstic introduce

11 himself.

12 MR. VISNJIC: [Interpretation] Good afternoon, Your Honours. I am

13 Tomislav Visnjic, attorney, and I am the counsel of Mr. Radislav Krstic

14 in this case.

15 JUDGE BAIRD: Thank you.

16 Mr. Krstic, can you hear me in a language that you understand?

17 THE ACCUSED: [Interpretation] Yes, I can hear you and understand

18 you.

19 JUDGE BAIRD: Are you receiving the interpretation in your own

20 language?

21 THE ACCUSED: [Interpretation] Yes, I hear it quite well.

22 JUDGE BAIRD: We are convening today for the trial of

23 Mr. Radislav Krstic, accused of one count of contempt. Before we

24 proceed, we are obliged under Rule 73 bis (A) of the Tribunal Rules of

25 Procedure and Evidence to proceed with the Pre-Trial Conference prior to

Page 9

1 the commencement of the trial. I must also state that Rule 77(E)

2 provides that "the rules of procedure and evidence in Parts Four to Eight

3 shall apply mutatis mutandis to the proceedings" under Rule 77.

4 The Chamber has decided to prosecute the charge of contempt set

5 out in the order in lieu of indictment against Mr. Krstic issued on the

6 27th of March, 2013, pursuant to Rule 77(D)(ii) of the Tribunal Rules of

7 Procedure and Evidence.

8 Mr. Krstic, the order in lieu of indictment charges you with one

9 count of contempt for having refused to comply with the Chamber's

10 subpoena of 23rd October 2012 and the addendum to the subpoena of 7th

11 November 2012. The Chamber, satisfied that there were no medical reasons

12 which amounted to good cause for you not to comply with the subpoena,

13 found that there was sufficient reason to believe that you knowingly and

14 wilfully interfered with the administration of justice and therefore may

15 be in contempt of the Tribunal.

16 At your initial appearance on April 4, 2013, you maintained your

17 position that you were not willing to testify in the case of the

18 Prosecutor versus Radovan Karadzic. Now, Mr. Krstic, I ask you once

19 again whether you are willing to testify in the Karadzic case. If

20 necessary, you may consult your counsel before answering the question.

21 And if you prefer, we can go into private session.

22 THE ACCUSED: [Interpretation] Your Honours, I stand by my

23 position. I simply want to protect my health. I never said that I did

24 not want to testify. Thank you very much.

25 JUDGE BAIRD: Thank you.

Page 10

1 Well, I shall first go over some details about the conduct of the

2 trial.

3 Mr. Visnjic, at this stage I will ask whether the Defence will

4 make an opening statement pursuant to Rule 84 and whether the accused

5 wishes to make a statement pursuant to Rule 84 bis of the Rules.

6 MR. VISNJIC: [Interpretation] Thank you, Your Honours. We do not

7 intend to make an opening statement, nor is General Krstic willing to

8 make any statement pursuant to Rule 84.

9 JUDGE BAIRD: Now, does the Defence intend to call any witnesses?

10 MR. VISNJIC: [Interpretation] Your Honours, we intend to call one

11 witness and that is the expert witness Ana Najman whose report you

12 received in our submission dated the 21st of May, 2013.

13 JUDGE BAIRD: How long do you expect your submissions would last?

14 MR. VISNJIC: [Interpretation] As for the timing, we expect that

15 during one session we should finish the whole procedure, so not more than

16 one hour and a half. We shall try to be efficient and therefore a part

17 of our arguments are prepared in a written form submitted as a special

18 motion entitled "Krstic Brief on Hearing on 28 May 2013, Filed on 21 May

19 2013". So our arguments will be focused on one part of the problem that

20 we believe we are faced with, and our final statement, if we make one,

21 will also be very brief.

22 JUDGE BAIRD: Thank you.

23 Mr. Krstic, do you have any issues you would like to raise about

24 the conditions of your detention?

25 THE ACCUSED: [Interpretation] Your Honour, I have no issues or

Page 11

1 any problems that I would burden the Tribunal and Your Honours with.

2 Thank you very much.

3 JUDGE BAIRD: Now, the Chamber, Mr. Krstic, is cognisant of the

4 fact that in the past you have consented to discussions related to your

5 health condition in the Karadzic case taking place in public session.

6 The Chamber is aware, however, that the report of Dr. Ana Najman in this

7 case and the medical reports in the Karadzic case have all been filed

8 confidentially. The Chamber would like to know, would you prefer that

9 discussions related to your health take place in public or private?

10 MR. VISNJIC: [Interpretation] Your Honours, if I may answer this

11 question. In this case, as we would deal in detail with some aspects and

12 elements of General Krstic's health, we would prefer if this part of the

13 trial would be conducted in private or closed session, I suppose private

14 session, for the simple reason that I believe that certain details are a

15 part of the general's privacy and are not something that would suitably

16 be discussed in a public session.

17 JUDGE BAIRD: Thank you.

18 Now, following from this, what impact would this have on the

19 filing of Dr. Najman's report?

20 MR. VISNJIC: [Interpretation] Dr. Najman's report, we would

21 suggest that it be admitted as a confidential document as well as the

22 other five documents which we've prepared for admission in this

23 particular trial.

24 JUDGE BAIRD: Thank you.

25 MR. VISNJIC: [Interpretation] Thank you.

Page 12

1 JUDGE BAIRD: The Chamber will now consider the issues raised in

2 Krstic Brief for Hearing on 28 May 2013, filed on 21st May 2013, and

3 state straight away that it has no difficulty as respects the word limit

4 for the filing.

5 As relief sought, the Defence invites the Chamber to enter a

6 verdict of not guilty in relation to the order in lieu of an indictment

7 on the basis that reasonable doubt exists as to whether Mr. Krstic could

8 be expected to comply with the subpoena and addendum in circumstances

9 where that may well impact his mental health. In the same breath and in

10 the alternative, the Defence requests the Chamber to recuse itself in

11 favour of an independent Chamber "so that this vital issue can be looked

12 at afresh."

13 The Chamber is of the opinion that the most appropriate course of

14 action at this juncture would be for it to deal with the question of

15 recusal. The Chamber must stress, however, that should the request for

16 recusal be refused, this refusal must not in any way be construed as

17 having any impact or bearing, one way or the other, on its ultimate

18 decision on the charge of contempt.

19 The well-established and settled jurisprudence of this Tribunal

20 is that an act of contempt can be prosecuted by the Chamber hearing the

21 proceedings in which the contempt arises, unless there are exceptional

22 circumstances for the Chamber to recuse itself.

23 The Chamber gave full consideration to the submission of the

24 Defence and at the end of the day was unable to perceive any exceptional

25 circumstance which could have warranted the Chamber recusing itself in

Page 13

1 this matter.

2 The request is accordingly denied.

3 Now, in line with the Chamber's Scheduling Order for commencement

4 of the trial dated 7th May 2013 and since there are no additional pending

5 issues before the Chamber, we may now proceed with the trial.

6 [Commencement of trial]

7 JUDGE BAIRD: We shall now commence the trial.

8 Now, before hearing the Defence, the Chamber will now give a

9 summary of the case against Mr. Krstic.

10 On the 23rd of October, 2012, the Chamber in the Karadzic case

11 granted a motion by Radovan Karadzic issuing a subpoena ordering

12 Mr. Krstic to appear and testify in the Karadzic case on 15 January 2013

13 or to show good cause why the subpoena could not be complied with.

14 On 7th November 2012 the Chamber issued an addendum to the

15 subpoena, ordering that the appearance and testimony of Mr. Krstic be

16 postponed until 4th February 2013 or that good cause be shown as to why

17 the subpoena should not be complied with.

18 On 6 February 2013 Mr. Krstic, through his counsel, filed a

19 confidential motion arguing that for medical reasons he does not have the

20 capacity to testify, and requesting that the Chamber stay the enforcement

21 of the subpoena "until such time as a further medical review can be

22 completed to assess the medical and mental health conditions of the

23 witness as well as his ability, capacity, and competence to testify."

24 On 7 February 2013 the Chamber denied the urgent motion and held

25 that Mr. Krstic's mental and physical health is such that he is able to

Page 14

1 testify. On 7 February 2013 Mr. Krstic refused to testify and the

2 Chamber heard further submissions as to why he believed he could not

3 testify. The Chamber then ordered that the Registry provide by 8 March

4 2013 a more detailed report outlining Mr. Krstic's physical and mental

5 health.

6 On 14 February 2013 the Tribunal's Deputy Registrar appointed an

7 independent medical expert to conduct the examination.

8 On 13 March 2013, having reviewed the medical report filed on 8

9 March, the Chamber found that there were no medical reasons which would

10 amount to good cause for Mr. Krstic not to comply with the subpoena.

11 Accordingly, the subpoena ordered that Mr. Krstic -- that the Chamber

12 ordered that Mr. Krstic comply with the subpoena and reminded him that

13 failure to do so would constitute contempt of the Tribunal pursuant to

14 Rule 77 of the Rules.

15 On 19 March 2013 Mr. Krstic, through his counsel, filed

16 confidentially Krstic's request for reconsideration of the order dated 13

17 March 2013, requesting that the Chamber reconsider its decision of 13

18 March 2013 because Mr. Krstic was not given the opportunity to make

19 submissions as to the meaning and impact of the medical report.

20 On 21st March 2013 the Chamber found that Mr. Krstic did not meet

21 the test for reconsideration.

22 On 22nd March 2013, the Chamber received a confidential "Letter

23 from Radislav Krstic to Trial Chamber" reiterating his refusal to testify

24 before the Chamber. On 22nd March 2013 the Chamber ordered that

25 Mr. Krstic appear before it on 25th March 2013.

Page 15

1 On 25th March 2013 Mr. Krstic appeared before the Chamber and

2 persisted in his refusal to testify.

3 On 27 March 2013 an order in lieu of indictment was issued.

4 As stated earlier, Mr. Krstic is being prosecuted for contempt

5 for having knowingly and willingly interfered with the administration of

6 justice by refusing to comply with this subpoena.

7 Mr. Krstic, at this point you may lead the Defence. Mr. Visnjic,

8 I do apologise most profoundly.

9 MR. VISNJIC: [Interpretation] Thank you, Your Honour.

10 Before we call our first witness, perhaps I should provide an

11 explanation to the Trial Chamber of certain documents that we have

12 tendered as exhibits in e-court and which are cited in our submission of

13 the 21st of May, 2013.

14 The first document is 1D1 and it is called -- or rather, it's 1D1

15 and it's called -- actually, it's a medical file, I'm sorry. And within

16 that file there is a document cited in our letter in paragraph 6. It is

17 referred to as the Lefrandt report and it's to be found on pages 7, 8,

18 and 9 of the medical file.

19 JUDGE BAIRD: Now, would you want to give this report a separate

20 number?

21 MR. VISNJIC: [Interpretation] No. I only wish to make it clear

22 that within a rather voluminous medical file, what are the references and

23 where they can be found from our brief. Then document 1D2 is a document

24 mentioned in paragraph 12 of our brief as well as footnote 11. The

25 document 1D3 in e-court is referred to in paragraph 13 of our brief and

Page 16

1 footnote 11. The document --

2 JUDGE BAIRD: Mr. Visnjic, may I interrupt you?

3 MR. VISNJIC: Yes.

4 JUDGE BAIRD: Now, can you give me, as you mentioned, some idea

5 what the report is, from which doctor? Now, ID2 is in respect to which

6 doctor?

7 MR. VISNJIC: [Interpretation] 1D2 is a letter, or rather, it's

8 the request for medical documentation. It's the letter that I sent to

9 the UNDU, the commanding officer, on the 3rd of January, 2013.

10 JUDGE BAIRD: Yes.

11 MR. VISNJIC: [Interpretation] Now, 1D3 is Dr. E. van Gellicum's

12 report. The document 1D4 is ...

13 [Trial Chamber and Registrar confer]

14 JUDGE BAIRD: Mr. Visnjic, at this point would you prefer that we

15 go into private session or are you happy right now being in public?

16 MR. VISNJIC: [Interpretation] No. For as long as I'm referring

17 to the documents, their contents are confidential but --

18 JUDGE BAIRD: Yes, all right. Very well. So the report of

19 Dr. Gellicum, 1D3 you said?

20 MR. VISNJIC: [Interpretation] Is 1D3, yes. 1D4 is Dr. De Man's

21 expert report or variously referred to as the De Man report mentioned in

22 paragraphs 20 through 23 of our brief, and 1D5 is Najman's report

23 referred to in paragraph 37 of our brief.

24 I hope that this will be of assistance to the Trial Chamber to

25 find their way through the documentation that we are partly to blame for

Page 17

1 having uploaded at this late stage.

2 JUDGE BAIRD: Now, the reports of Dr. Petrovic, would you be

3 referring to them at all?

4 MR. VISNJIC: [Interpretation] This is part of document 1D1. It's

5 part of the medical file.

6 JUDGE BAIRD: This is in the medical documentation? Okay. Thank

7 you.

8 MR. VISNJIC: [Interpretation] And that's pages 10 through 14 or

9 through to the end actually.

10 JUDGE BAIRD: Now, we observed that the CV of Dr. Najman was not

11 uploaded. Would you want to have this admitted?

12 MR. VISNJIC: [Interpretation] Frankly, we have neglected to do

13 that. Perhaps we may upload it at a later date, but that's part of our

14 filing of the 21st of May, 2013.

15 JUDGE BAIRD: I shall be grateful for that. Thank you.

16 MR. VISNJIC: [Interpretation] Thank you.

17 Now that we are on this issue, unless there are any other

18 technical issues, I would like to call our first and only witness,

19 Ana Najman.

20 JUDGE BAIRD: We would have the Registrar apportion the various

21 numbers to the various exhibits.

22 THE REGISTRAR: Your Honours, 65 ter numbers 1D1 through 1D5 will

23 be Exhibits D1 to D5, all under seal and confidential. And the CV of

24 Dr. Najman will be Exhibit D6.

25 JUDGE BAIRD: Also under seal? Also under seal, Dr. Najman's

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1 report?

2 THE REGISTRAR: Dr. Najman's report will be under seal. The CV

3 will be public.

4 JUDGE BAIRD: Thank you.

5 Yes, Mr. Visnjic.

6 MR. VISNJIC: [Interpretation] Your Honours, I'd like to call our

7 only witness, Ana Najman, specialist in psychology and court expert,

8 permanent court expert.

9 [The witness entered court]

10 JUDGE BAIRD: Do take the solemn affirmation.

11 THE WITNESS: [Interpretation] I solemnly declare that I will

12 speak the truth, the whole truth, and nothing but the truth.

13 WITNESS: ANA NAJMAN

14 [Witness answered through interpreter]

15 THE WITNESS: [Interpretation] Thank you.

16 JUDGE BAIRD: Yes.

17 MR. VISNJIC: [Interpretation] Thank you, Your Honour.

18 Examination by Mr. Visnjic:

19 Q. [Interpretation] Good afternoon, Dr. Najman.

20 A. Good afternoon.

21 Q. Your CV has already been admitted into evidence in this case and

22 I will only have one question to do with your CV which actually may add

23 to it. You have also testified before the Tribunal; right?

24 A. Yes.

25 Q. Can you tell us in how many cases did you testify and at whose

Page 19

1 invitation?

2 A. Well, let me say that I was called by the Chamber, although on

3 several occasions I was called by the Defence. And the exact number,

4 it's difficult for me to be precise. Around ten.

5 Q. Now, your report is called "Psychological Expert Examination,

6 Expert Report on Psychological Assessment." What does "psychological

7 expert examination" really mean?

8 A. Well, it consists of a psycho-diagnostic interview conducted with

9 the interviewee which is followed by a series of psychological tests.

10 The tests are chosen depending on the diagnostic assessment arrived at --

11 the diagnostic assessment as a result of the interview conducted.

12 Q. Can you tell us what the difference is between psychological and

13 psychiatric expert examination?

14 A. As I've said, psychological expert assessment implies the

15 application of a series of standardised psychological tests intended to

16 assess the structure and dynamics of a personality, intellectual

17 capacities, mental deficits or deficiencies, if any.

18 Now, the psychiatric examination will mostly include a

19 psychiatric interview and, at times, the application of certain many

20 scales for the assessment of the interviewee's condition as well as

21 focusing on clinical symptoms that may arise in the context of a certain

22 disorder or condition.

23 Therefore, the crucial difference lies in the fact that a

24 psychologist, a clinical psychologist, will use a set of valid and

25 verified psychological tests, whereas a psychiatrist will not be using

Page 20

1 such a valid objectivised series of tests.

2 Q. Thank you. In your report it is stated that you used certain

3 psychological techniques. Some of them were provided as tables in the

4 addendum. Now, the question is: Why exactly these techniques and which

5 of the techniques that you used did you actually provide in the annex?

6 A. Well, first of all, I was guided by the assignment that I was

7 given with regard to the assessment of Mr. Krstic. In addition, there is

8 a statistical protocol dictated by our profession which will help us

9 assess the structure and dynamics of a personality.

10 Now, it is, in fact, an obligatory practice, and this is

11 something that we need to use is the projective test. And in 99.9

12 per cent of cases it's the Rorschach Projective Personality Test that has

13 to be used, which I used. And questionnaires are used, two or maybe even

14 three, as many as necessary, in order to arrive at a psychological

15 diagnosis in terms of the personality structure and emergent disorder.

16 Q. So you conducted several tests and you applied several

17 techniques. Is it necessary for similar results to occur at all the

18 tests or most of the tests in order to be able to come to a conclusion,

19 or is it possible to have some divergences there?

20 A. Well, in psychological diagnosis you have to assess the results

21 of the tests. In layman's terms, everything has to be in agreement,

22 everything has to fit in. The data that you obtained through the

23 interview has to be confirmed by the projective techniques and the

24 questionnaires that you also used.

25 In most cases the psychologist will never use just one test

Page 21

1 because that would be unprofessional and would not yield valid results.

2 But in psychology there is the configural approach, as we call it, which

3 means that we have to produce a compact picture where everything is

4 linked with everything else in order to be able to say this person has a

5 personality structure of this or that kind or that the disorders are of

6 this or that nature. And using the interview and projective techniques,

7 and indeed the questionnaires - this is indeed what I have done - we come

8 to this picture.

9 MR. VISNJIC: [Interpretation] I think that we will be dealing

10 with some quite specific results from the expert report, and I would like

11 to ask us to go into private session. Just to let the audience know, it

12 will probably -- we will probably have to be in private session for the

13 whole duration of Dr. Najman's testimony. So perhaps they should be

14 apprised of the fact that we will be proceeding in private session.

15 JUDGE BAIRD: For the benefit of the members of the public in the

16 public galleries, we shall be moving into private session and it could be

17 that we might be there for some time during the course of this -- the

18 evidence of this witness. Thank you.

19 Private session.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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11 Pages 22-30 redacted. Private session.

Page 33

1 As for the first question, in our motion filed on the 21st of

2 May, 2013, especially in paragraphs 6 to 25 as well as in today's

3 proceedings through Dr. Najman's testimony, we provided a series of

4 evidence showing that the degree of threat to General Krstic's health is

5 such that his testimony in this case would, with a very high likelihood,

6 cause permanent effects which would mean a deterioration of his health

7 with a prognosis that it would be very difficult to treat him fully

8 considering the conditions under which he would be treated.

9 General Krstic is faced with a dilemma, a threat with a short

10 prison sentence due to contempt of court or anxiety, depression,

11 nightmares, flashbacks, and fear that would extend for a period of years.

12 Is that a reasonable justification or a good reason? We believe it is.

13 As for the second question that the Chamber could try to

14 assess -- and perhaps we could now move into private session because I'm

15 not sure if this segment of my speech is confidential or not.

16 JUDGE BAIRD: Private.

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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11 Pages 34-36 redacted. Private session.