1 Tuesday, 4 September 2007
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE PARKER: Mr. Mettraux.
7 May I remind you, Doctor, that the affirmation that you made still
8 applies today.
9 WITNESS: SIMON EICHNER [Resumed]
10 [Witness answered through interpreter]
11 MR. METTRAUX: Good morning, Your Honours.
12 Cross-examination by Mr. Mettraux: [Continued]
13 Q. Good morning, Doctor. I should have asked you this yesterday,
14 Doctor, but were you aware that at the time and to this day the only
15 method available to the Macedonian expert to identify what could be
16 gunpowder residue is indeed the paraffin glove tests with the
17 diphenylamine chemical reaction, were you aware of that fact?
18 A. I did read this note from Frau Kunovska in her report
19 yesterday -- well, I read the note yesterday and saw that. And I could
20 imagine that is the problem that Ms. Kunovska refers to, the problem that
21 she had. I'm quite sure and believe her that if she had had further
22 possibilities to carry out further analyses, she would have done so, but
23 that was the only -- obviously, the only possibility she had.
24 Q. And yesterday, Doctor, and in your report you indicated that
25 another way to explain transfer of nitrate particles and in this case, or
1 and/or power residue would be if a person were to be exposed to the clouds
2 of a TNT explosion and you've also indicated that the particles of TNT
3 would be quite similar from those of a gunpowder sort and that it would be
4 difficult to differentiate between them. Do you recall saying that?
5 A. What I said was that TNT particles burn in a very similar way, and
6 the appearance of the TNT particles, when partially burned, cannot be
7 distinguished from propellants particles. If there is a cloud of TNT
8 after an explosion -- I don't think we referred to that. What we talked
9 about were particles on an object from a cloud of TNT and this could
10 possibly cause confusion.
11 Q. And would another possibility to be considered be the direct
12 exposure by an individual to an explosion cloud. Is it another scenario
13 which you would consider or you would judge it too unlikely to be of
15 A. It is possible, but I suspect the result would be different. If
16 particles can be seen on individuals, I don't think these individuals
17 would still be living.
18 Q. And I would like to ask you one or two question, Doctor, about the
19 subject which you just touched upon, namely, the visual appearance of the
20 TNT particle. Is that correct that TNT is, in fact, present in many
21 cartridge propellant?
22 A. In cartridge propellants, TNT is not usually used. TNT is a
23 military explosive for grenades which causes an explosion at the goal of
24 the -- so in the -- so TNT is not usually contained in such propellants,
25 from some cartridge propellants.
1 Q. But it might in some cases, is that correct, Doctor, with some
2 types of cartridges?
3 A. I don't know any cartridges of smaller weapons which contain TNT
4 as a propellant. It would be far too risky. It is very inflammable and
5 very -- a very sensitive type of explosive.
6 Q. And, Doctor, in terms of appearance, of visual appearance of TNT
7 particles is that correct that they are flake-like in appearance and they
8 vary both in size and shape. Is that correct?
9 A. TNT is a compact substance that is poured into grenades and it can
10 break into various types of fragments, among which are part fragments
11 which look very much like propellant but it's not a granulate. It is
12 usually a compact mass, which, after the explosion, as with propellants,
13 it can happen that residue sticks on people who have been confronted with
14 the cloud of explosives.
15 Q. But sticking for a minute with the issue of their appearance, if
16 an expert were to take let's say an explosive device containing TNT that
17 he or she would observe the flakes of TNT, is that correct that they would
18 vary quite a great deal in terms of shape and size, one from the other, is
19 that correct, there would be a great variety in that regard?
20 A. Yes, that is true. After an explosion, there are usually very
21 small particles of less that one millimetre with an exception in cases if
22 the grenade does not explode completely or properly, then there could be
23 larger particles which result.
24 Q. And turning to the propellant containing cartridges of a bullet,
25 is that correct that within a single cartridge the particle would be
1 uniform in size and shape. Is that correct?
2 A. There are such propellants, but there are also propellants
3 with more variety in form. It depends on the manner of manufacturing.
4 There are various forms of it. There are cylinder form; there are forms
5 that look like little pieces of Spaghetti; there are spheres; there are
6 forms in which the spheres have been pressed flat and look like little
7 discs. There are forms that look like dice. So there's a whole spectrum
8 of forms possible.
9 Q. And, Doctor, I would like to ask you if -- if this would be an
10 acceptable scientific process. If you were able to collect, let's say, a
11 family of different particles from different experiments carried out and
12 put them together, would it be acceptable from a scientific point of view
13 to compare all of them to see whether they resemble each other. Would
14 that be acceptable scientifically?
15 A. Visual observation can always be carried out. This is always a
16 valid method of investigation. But the problem is the conclusions one
17 draws from it. Visual observation does not always enable the proper
18 conclusions that one would reach with further -- with more profound
19 chemical analysis.
20 Q. I understand that, Doctor. But taking it perhaps one step back
21 would there be any scientific value to comparing those various particles
22 as a group and would there be any scientific conclusion to be drawn from
23 the fact that they are all similar in kind?
24 A. This conclusion as to a similarity between them would always be
25 able to be reached, but it is not a scientific conclusion. It's a
1 conclusion based on visual observation and it is subjective on the part of
2 the observer. So have you to make a distinction here.
3 Q. But you would agree, Doctor, that should those particles be
4 similar in kind, again, this might be a factor perhaps of not great weight
5 but of some weight to draw certain conclusions as to the nature of the
6 particles in question. Is that correct?
7 A. Of course. If things look the same visually, there is nothing
8 which would contradict the possibility of thinking that the various
9 particles have the same origin -- or are of the same nature. But that is
10 all one could say.
11 Q. But the consistency in size and shape of those particles would
12 also be a factor that an expert could take into consideration to draw
13 certain conclusions, is that correct, because of the fact of consistency?
14 A. Yes, of course. Any type of analysis brings more knowledge, gives
15 us more possibilities to draw conclusions about the particles. This is
16 obvious. But where are the limits? But I do agree with you that every
17 analysis brings us closer to our goal of finding out exactly what the
18 nature of these particles are.
19 Q. And, Doctor, you have made the point earlier that a person which
20 would be exposed to the residue cloud of a TNT explosion would in fact
21 risk losing his or her live and/or being exposed to shrapnels. But
22 perhaps can you assist us in that way. How close would a person have to
23 be from the explosion not to be killed but still to be exposed to this
24 cloud? Is it something which is within your knowledge?
25 A. This depends on the strength of the explosion itself. There are
1 very small explosions. If you are in the same room, for instance, you
2 would have difficulty hearing afterwards. If the explosion were from 100
3 grammes to one kilogram, then it would be a substantial explosion and in
4 such cases it is very probably that those standing around in the area
5 would be killed, not only from the pressure which arises from an explosion
6 but also because of the speed with which the fragments are propelled in
7 all directions from the jacket of the grenade.
8 Q. And as a result of this, Doctor, would you agree that the deposit
9 which is possible in such a situation would likely be very small in nature
10 or very superficial, is that correct, the deposit of TNT particles?
11 A. This depends on the size of the grenade used and on how it is
12 brought to an explosion. It depends on the amount of grenades which
13 explode in a certain area, so there is a whole variety of possibilities to
14 contaminate a different site.
15 Q. Well, Doctor, I will ask you to open the binder on the tab 3 of
16 the binder which we have given to Your Honour. This is Rule 65 ter 361,
17 it has an ERN of N002-5794. This is the report of Dr. Stein. The ERN of
18 the Macedonian version is N002-5794. N002-5799-MF/2.
19 Doctor, I would like to turn for a second to the report of your
20 colleague Dr. Stein and I'll ask you to turn to page 5 of that report.
21 That's N002-5798.
22 A. Yes, I have the page.
23 Q. Would you agree with the proposition, Doctor, that -- would you
24 agree with the proposition that a person or, put it differently, that the
25 identification of particles which could have been transmitted to a person
1 exposed to a reaction cloud of a TNT explosion would be a very difficult
2 one to draw because of the small amount of particle that would have been
4 A. As far as I see, Dr. Stein is referring to people in the vicinity
5 of the explosion and on the possibilities of contamination over a larger
6 distance. It is obviously -- obvious that direct contamination would be
7 less likely and the diphenylamine test would not suffice, but what can
8 also be seen from his report is that the gunpowder residue from TNT taken
9 later would give a positive reaction with diphenylamine. This is another
10 conclusion of Dr. Stein.
11 So there is a possibility that a person who is directly in the
12 cloud of an explosion and survives and is contaminated and has particles
13 on his body, then there is obviously a link between the -- to the
14 explosion. But one must not ignore the fact that it is possible that the
15 grenade could explode and the person could be there at a different time,
16 not at the same time, so there would be no injury yet there could be
17 contamination and this would have a positive result, according to the
18 report of Dr. Stein.
19 Q. Let's take the report one step at a time. As you indicated,
20 Dr. Stein distinguished between the two situations which you mentioned.
21 One is the situation where there would have been indirect contamination by
22 a person touching an object which has itself been contaminated and I would
23 put this one aside for a minute.
24 If you look at the middle of the page where he considers the
25 alternative scenario which is a direct contamination by exposure to a
1 reaction cloud, Dr. Stein says this: "On the other hand, if a person is
2 exposed to reaction clouds of explosives, the amount of residue is, as a
3 general rule, not enough to produce a positive diphenylamine test result,
4 as discussed below."
5 And with that, you would agree, Doctor?
6 A. Yes, I would agree with that. And this is valid for weapons used
7 from a greater distance. We are aware of this phenomenon that, or the
8 phenomenon that gunpowder residue can travel through the air and
9 contaminate people. But I think the likelihood of such particles being
10 proven by diphenylamine is not great. I'm talking about a distance of
11 more than 20 metres here. In such cases, I think that the particles could
12 only be proven with high quality apparatus. In such cases, if you did
13 have such apparatus of higher quality, you would be able to detect certain
15 Q. I'm grateful, Doctor, this was the next part of my questioning.
16 The doctor, Dr. Stein makes the same point as you do where he mentioned
17 that if a person were in the immediate vicinity of an explosion, he would
18 not survive. Then he makes a comment about the quantity of residue. And
19 in the last paragraph of this report, if you look at it, he makes the same
20 point as you did, if you agree, which is that a positive result to nitrate
21 particle or to TNT particle would only be possible, as you mentioned, if
22 more sophisticated facilities were used. Would you agree with the last
23 paragraph of the report of Mr. Stein in that regard?
24 THE INTERPRETER: The interpreters would like to ask Mr. Mettraux
25 to please slow down.
1 A. With reference to weapons, yes, of course I would agree with his
3 MR. METTRAUX:
4 Q. And the conclusion is also applicable to the reaction cloud, I
5 will read it out to you. Dr. Stein says this: "It would be possible to
6 produce a positive result only by using very sensitive instruments; that
7 is, scanning electron microscopy, liquid chromotography-tandem mass
8 spectrometry, high performance liquid chromotography, such as those used
9 at the BLKA."
10 So the position of Dr. Stein if I understand it correctly is to
11 say that in such a scenario, a positive result would only be possible if
12 using more sophisticated methods, in other words, the paraffin glove test
13 with diphenylamine would not be capable of identifying those particles.
14 Is that correct?
15 A. If we are talking about air transportation of particles over a
16 larger distance, for instance, a distance of more than 20 metres, then I
17 would think this is correct. However, in explosions here we would have to
18 take into consideration the fact that the fragments from the shells can be
19 propelled even farther, and can contain remnants of TNT. It is quite
20 likely that there would be gunpowder residue of this type and so these
21 objects would be contaminated with TNT residue. This is not a convection
22 phenomenon but a transportation phenomenon; we have to distinguish the
24 Q. Yes. And the point of Mr. Stein seems to be quite different from
25 the one you're making. I don't think -- I do not understand the report to
1 suggest that the transport or the transfer of the particle would not be
2 possible within a longer distance. The point that Dr. Stein appears to be
3 making is that if transportation were to occur in such the circumstance,
4 the amount of particle that would be transported would not be sufficient
5 to lead to a positive result with a paraffin glove test. Is that your
6 understanding as well of Mr. Stein's conclusion?
7 A. We are only talking about convection here and the transportation
8 of particles through the air by wind and nothing else. And this
9 convection phenomenon refers to small particles of TNT and the same thing
10 would happen with other gunpowder. The convection is like the movement of
11 dust in the air, and it reduces over a distance. So we're only talking
12 about convection with wind. I don't see anything else that is referred to
14 Q. But taking the scenario which you just outlined as a basis, would
15 you agree that this scenario is compatible with the further conclusion
16 drawn by Mr. Stein as a chemist which is that in such a scenario, the
17 paraffin glove test would not be capable of detecting the particle in
18 question that might have travelled beyond 20 metre. Would you agree with
20 A. I know this phenomenon from propellant powder in fire-arms, and
21 with regard to fire-arms I must clearly say that a convection phenomenon,
22 as a rule, can be identified only with high resolution apparatus. And
23 Dr. Stein obviously extended his judgement to diphenylamine, but I believe
24 that Dr. Stein will come in person, so you may want to ask him about that
25 in more detail.
1 Q. And simply to clarify this matter, Doctor, you had not been
2 provided with any information or evidence by the Prosecution indicated
3 that any of the 15 persons whose results you were provided had, in fact,
4 been exposed to a reaction cloud of TNT. Is that correct?
5 A. I received no exhibits in this case, only documents.
6 Q. And none of those documents indicated to you that any of the 15
7 persons in question had in fact been exposed to a reaction cloud of TNT.
8 Is that correct?
9 A. As far as I remember, those documents spoke about the use of
10 explosive devices and that information had to be considered also. That's
11 what I tried to do.
12 If explosive devices were launched in the area and did indeed
13 explode, I think that that fact must be considered when giving such an
14 expert opinion.
15 Q. Thank you for that. The further question following on this,
16 Doctor, is you had no information in the material provided to you by the
17 Prosecution which would indicate that any of the 15 person, and I'm only
18 interested in those 15 persons at the time, you had no information that
19 any of those 15 persons had been exposed to a reaction cloud of TNT. Is
20 that correct?
21 A. Well, I think, if they had been directly exposed, then the
22 injuries would have been massive, if they had been close to the explosion
23 cloud. But I have no information as to whether or not there was a direct
24 position -- exposure in this case.
25 Q. Another one of the hypothesis which you raise in your report,
1 Doctor, is the one of a situation where an individuals would put his hands
2 in front of him as the person is shooting at him or her and as a result of
3 this exposure, there could be some transfer of particles on to the hand of
4 the persons putting his or her hand forward. Is that correct?
5 A. That is a possibility that we know from our experience. There --
6 there are such cases of application of gunshot residue on occasions of the
7 use of fire-arms, and the distribution of gunshot residue on the palm of
8 the defending hand can be very much like the distribution on the palm of a
9 hand that fired a weapon.
10 Q. And in order for that person to have deposits of particles as you
11 mention on the palm, is that correct, Doctor, that the shot should have
12 been fired within a radius of two metres from the hand, approximately?
13 A. Yes, more or less. Of course the shot may have missed the person,
14 but a distance of up to two metres, roughly, is a distance in which you
15 would be able to observe such -- such marks on a hand that was exposed to
16 the cloud of particles coming out of the muzzle of a fire-arm.
17 Q. You would agree with me, Doctor, that it's a rather unlikely
18 explanation for the contamination of 16 individuals. Do you agree with
20 A. I cannot follow to what extent or, rather, how likely this
21 scenario is. It will have to be concluded based on the individual
22 circumstances of the case. I was only referring to the possibility of
23 contamination and such contamination on defending hands and on shooting
24 hands cannot be distinguished. I was not an investigator. The
25 investigation is up to the authorities in charge.
1 Q. But you would agree that in such a situation there would be the
2 likelihood and, very possibly, the possibility that the defending hands
3 would be hurt by the fire, that the hand or the fingers would be shot off.
4 Do you agree with that?
5 A. No, no, on the contrary. Why? The cloud coming out of a muzzle
6 is very large, and -- but the bullet coming out of the muzzle or the
7 trajectory of the bullet is very small, narrow. So if you are in front of
8 or sideways from a weapon fired, you will be contaminated with gunshot
9 residue even if the bullet didn't hit you.
10 Q. So as an expert you would regard it as a possibility or as a
11 possible explanation that 16 different people were shot at from a distance
12 of less than two metres, putting their hands forward and that all of them
13 would have been contaminated as a result of this. Is that a possible
14 scientific explanation?
15 A. We mustn't speak about scientific explanations here. I'm speaking
16 about experience, about empirical fact collected in a period of 20 years
17 and these -- there have been such instances. So we must take into
18 consideration the possibility of hands being contaminated from or by
19 clouds of particles coming out of a muzzle. But whether or not that was
20 indeed the case is up to the investigator to decide, because he or she
21 would know about the event that actually happened, and in order to
22 correctly interpret the -- the evidence or the traces found, you must take
23 all options into consideration.
24 Q. And, Doctor, to follow up on your point, this information which
25 you say might have been available to the investigator might assist in
1 narrowing down the range of possible explanations, is that correct, for
2 the presence of the particles?
3 A. It is possible that certain ways of contamination may be ruled out
4 if you know that things couldn't possibly have happened that way. Yes,
5 that is possible.
6 Q. And simply to bring these empirical facts to the present case, do
7 you have any information provided to you by the Prosecution or otherwise
8 obtained that this scenario of a defensive hand could have been relevant
9 to any of the 16 individuals who tested positive to the test. Did you
10 have that information in your possession?
11 A. No, I did not have such information and that wasn't the request
12 submitted to me. I wasn't asked to do that. I was -- it was my duty to
13 point out the possibilities. Whether or not any of these possibilities
14 should have been taken into consideration in this particular case, I do
15 not know.
16 Q. And, Doctor, there is another hypothesis which you raise in your
17 report and that is the situation where contamination would have occurred
18 when a person who is being arrested or detained is put handcuffs or other
19 binding devices by, let's say, a police officer or another person who is
20 himself has been contaminated. Do you recall saying that in your report?
21 A. Yes, that's correct.
22 Q. Thank you. And another hypothesis which you raised of the same
23 order is the situation where a person would have been transported in a
24 vehicle which itself has been contaminated with gunpowder residue and the
25 transfer could occur as a result of that. Is that correct?
1 A. Yes, I have described such a situation too. There have been such
2 instances in reality, and it was established -- it was thus established
3 that hands can be contaminated that way in a very characteristic fashion.
4 Q. Is it correct also, Doctor, that touching of two pairs of hands,
5 particularly if this is done quickly and not particularly gently, is also
6 likely to rub the particles off the hand of the first person. It's as
7 much likely to rub them off as to transmit them to another pair of hands.
8 Is that a fair proposition?
9 A. Yes, of course. Such contamination is even likely in such cases.
10 Q. But what is likely also to happen in this situation is that the
11 rubbing of two pairs of hands would lead the particles to fall on the
12 floor. Is that correct?
13 A. Yes, particles can fall on the floor too. It always depends on
14 the structure of the palm. If the skin is moister or greasy, adhesion
15 will be greater than in a freshly washed and dried hand, or in persons
16 that have very dry skin, with dandruff or scaly skin. This all affects
17 the duration of adhesion. And there also may be protective mechanisms as
18 in the case that I mentioned, the cuffing of a person. Here, for example,
19 the sleeves pulled -- pulled over or pulled up may -- may remove particles
20 from the arm and when you pull the sleeves down again, then the particles
21 may fall down on the hands, or something along those lines.
22 This all affects the time after which the particles would actually
23 fall down.
24 Q. And the likelihood of the particles having, in fact, fallen from
25 one hand either to the other or to the floor or any other part is also the
1 result of the fact that the gunshot residue do not have a great adhesion
2 on transferred areas, is that correct, that is one of the reasons that
3 explains the transfer of particles?
4 A. That is correct. That gunshot residue doesn't stay around long,
5 anyway not longer than ten hours on unprotected hands. But in practice we
6 must also take into consideration mechanisms that favour recontamination.
7 According to our experience, that is a case when persons with -- whose
8 hands are contaminated with gunshot residue, when they put their hands
9 into their pockets, then there will be a partial transfer of that residue
10 to the trousers. But if that person puts his or her hands into their
11 pockets again, there may be recontamination and this must also be taken
12 into consideration when -- before reaching a finally evaluation.
13 Q. And also, Doctor, the rate of adhesion, if I may call it that,
14 would depend on the velocity at which the particle was projected upon the
15 area on which it attached. And in the case of a transfer from hand to
16 hand, this velocity would be quite low, and therefore, the particle likely
17 to fall off. Is that correct?
18 A. In the case of such transfer, the situation is no different than
19 in other types of transfer. The rate of transfer is low. And it also
20 depends on whether or not the particles are transferred to folds in the
21 skin or -- or smooth areas, but there are methods how you can reach even
22 the folds, the wrinkles.
23 When a hand is -- was directly exposed to a -- to a cloud of
24 residue and that residue was propelled at very high speed on to the skin
25 at a speed of over 1.000 metres per second and such a case is the
1 residence time significantly greater. But as a rule, the residence time
2 will be around ten hours in the case of normal use of hands, in hands that
3 are not particularly protected or when the particles did not reach the
4 wrinkles or folds of the skin. Then they would have fallen off again,
6 Q. Well, Doctor, can I ask you to turn to your first report which is
7 under tab 1 of the binder for a minute.
8 MR. METTRAUX: Your Honour, this would be P421, Exhibit P421.
9 THE WITNESS: [Interpretation] I apologise to the interpreters.
10 MR. METTRAUX: And if we could turn to page 4 of Dr. Eichner's
11 report, please.
12 Q. Doctor, I would like you to turn your attention to the third
13 paragraph in the middle of this page which starts with the words:
14 "Returning to gunshot residues."
15 And I will read the passage in question for the transcript.
16 "Returning to gunshot residues, these particles do not have a great
17 adhesion on transferred areas like human skin except when the gunshot
18 residue particles are impacted with great velocity into the transferred
19 area. This happened in practice only near the muzzle of a firing weapon
20 or near the slit between the drum and the barrel of a revolver."
21 Can you see that, Doctor?
22 A. Yes, that is correct, and I have tried to explain that a minute
24 Q. Thank you. And simply to clarify the matter in question, again,
25 you did not have any indication that any of the 16 men who tested positive
1 to the paraffin glove test had been handcuffed or had otherwise been bound
2 with any devices. Is that correct?
3 A. I didn't have such information at my disposal. What exactly
4 happened to those persons was unknown to me. I focussed only on showing
5 the ways how a person may be contaminated in accordance with our
7 Q. And you did not have any information either that any policemen who
8 might have been involved in carrying out an arrest or handcuffing any of
9 those person was himself or herself contaminated with gunpowder residue.
10 Is that correct?
11 A. I did not have such information, but from my experience I know
12 that it is very likely that police officers who carry weapons are
13 themselves contaminated with gunshot residue. For that reason, the
14 paragraph on the last-but-one page of my expert opinion was actually
15 inserted in the opinion. But I have no knowledge about what exactly
16 happened to the persons in question upon the event.
17 Q. And you had no information in your possession, Doctor, to suggest
18 that the -- any of the 16 person in question had been transported in a
19 contaminated vehicle. Is that correct?
20 A. I have already said that I do not know what happened. I only
21 provided a statement about the fact that it is highly likely that police
22 vehicles are contaminated by gunshot residue. And this experience was
23 also discussed on the occasion of our latest meeting with the FBI, namely
24 the contamination of persons in vehicles and through contact with police
1 So this is not only our experience that I have put forward here.
2 Q. I would like to take advantage of your expertise, Doctor, to ask
3 you about another possible mode of transfer or contamination.
4 Is that correct that there exists various sorts of hand-grenades,
5 various types of hand-grenades?
6 A. Yes, obviously.
7 Q. And one type of hand-grenades would use hermetically sealed
8 explosive while some, let's say, less sophisticated hand-grenades would
9 use unprotected explosive. Is that correct?
10 A. I do not understand the terms that you used. Could you explain
11 what you mean by unprotected explosive or protected explosive.
12 Q. Is that correct that within a hand-grenade you would find
13 different sort of, let's say, construction that within the metallic
14 structure some hand-grenade would have a sealed container of explosive
15 while in some others the explosive would be in direct contact with the
16 metallic structure surrounds or that constitute the hand-grenade. Is that
18 A. If you look at it that way, there are hand-grenades in which the
19 explosive is directly poured into the sleeve or jacket, and others in
20 which the explosive is contained in a sort of a -- sort of plastic bag.
21 Q. I'm grateful for that, Doctor. And is it correct that a
22 contamination could result or theoretically possible a contamination to
23 nitrate particles is theoretically possible from the use or handling of
24 hand-grenades. Is that correct, Doctor.
25 A. You can never exclude that.
1 Q. And it could result, for instance, from the explosive not having
2 been properly sealed within the hand-grenade. Is that correct?
3 A. There are many possibilities here. You cannot rule out the
4 possibility of such contamination. Even hand-grenades can -- even in
5 hand-grenades on the outer surface there can be traces of nitrate.
6 Q. Well, Doctor, you have anticipated me. The contamination could
7 also result from the fact that the hand-grenade itself was contaminated,
8 for example, as a result of the manufacturing process. Is that a possible
9 situation or scenario?
10 A. I don't want to rule that out.
11 Q. Doctor, I would like to turn now to your third report to move
12 faster and that's your report of the 16th of April of 2007 which is under
13 tab 4 of your binder.
14 Is that correct, sir, that you were asked in effect to compare a
15 number of bullet or bullet fragments to three guns which had been provided
16 to you by the Office of the Prosecutor?
17 A. Yes, indeed.
18 Q. And I have a preliminary question about the scope of your report,
19 Doctor. It seems from the list of exhibits which were provided to you
20 that, if I counted them properly, 23 bullets or bullet fragments were
21 provided to you but that you only carried out examination on 15 of those
22 bullets. And is there any particular reason, Doctor, for your having
23 eliminated eight of those bullets?
24 A. I was commissioned to examine certain exhibits. Those were the
25 exhibits BA-1 --
1 I apologise to the interpreters.
2 BA-1, 4, 6, 10, 15, 17, 18, 19, 20, 23, 24, 25, 26, 27, and 33.
3 Q. Thank you, Doctor. So this means that you were not commissioned
4 to examine bullets 28, 29, 30, 31, 32, 34, and 35 which had been provided
5 to you also as exhibits. Is that correct?
6 A. No, I was not commissioned to do that.
7 Q. And were you informed by the Office of the Prosecutor that the
8 ballistic material which was provided to you was, in fact, only a sample
9 of a greater collection of bullet fragments which had been collected
10 during the exhumation process in Ljuboten. Were you aware of that fact?
11 A. I was not privy to that information. This material was sent to me
12 and I compared these fragments to other -- to other pieces of ammunition.
13 Q. And you have also explained in your report that there are
14 essentially four categories of conclusions which may be reached when
15 examining bullet fragments in parallel with guns or handguns and you have
16 described those four categories at page 4 of your report, is that correct,
17 A, B, O, and X?
18 A. That is true.
19 Q. And if one turns to page 7 of your report, you have drawn up a
20 table which -- or where you have applied these four possible conclusions
21 to the ballistic material which was provided to you by the Prosecutor. Is
22 that correct?
23 A. That is correct.
24 Q. And looking for a minute to Exhibit 1 at first, which is the first
25 of a couple of Kalashnikov guns, am I correct to understand that based on
1 your expert analysis there were nine bullets which could not be excluded
2 as having been fired from Exhibit 1. Is that correct, Doctor?
3 A. Yes, you can see that in the table. Here you can see that the
4 possibilities O and B are to be considered for Exhibit 1. Four, five,
5 six, seven, eight, nine -- for nine of these parts of ammunition. I can
6 see that but could not exclude weapon 001 for them or we cannot provide --
7 there is no conclusion to be drawn.
8 Q. And in lay terms, Doctor, this would mean that these nine bullets
9 or bullet fragments would be consistent or, in any case, not inconsistent
10 with the suggestion that they were fired from Exhibit 1. Is that correct?
11 A. One cannot exclude that possibility. And, as a result, we have to
12 deal with this possibility. But there is no particular indication the --
13 to put in a zero, there's no individual indication here or individual
14 proof here for B.
15 Q. And turning to exhibit number 2, Doctor, that's the other
16 Kalashnikov weapons which you looked at, would you agree that in 13 of the
17 15 bullets which you studied, 13 of those 15 bullet could possibly have
18 come from exhibit number 2. Is that correct? Is that the way to
19 interpret these results?
20 A. If you look at O and B for the 13, I think that you've drawn the
21 right conclusion, so I would agree with you.
22 Q. And -- thank you, Doctor, for that. And you will also recall that
23 you were asked to make a number of -- or to give your expert opinion as
24 regard the possible origin of these three weapons. Do you recall being
25 asked to do that?
1 A. Yes, the task was to investigate the weapons and to see if there
2 was a link to the weapons in the video-clip. That is true.
3 Q. And in drawing up this report of yours and that's your second
4 report dated 15 of January, 2007, you also gave a number of indication as
5 to the origin or the possible origin of these particular three guns. Is
6 that correct?
7 A. Yes, that is correct. If you mean the origin of the weapons.
8 Q. And my question, Doctor, is were you provided with any information
9 by the Office of the Prosecutor as to the type of guns and the origin of
10 guns which were used at the time by the Macedonian forces?
11 A. I only had the information that the weapons had been seized in
12 this region, but I didn't have any further information.
13 Q. So the Prosecution didn't give you an indication as to whether,
14 for instance, the Macedonian forces did or didn't use any Chinese-made
15 Kalashnikov. Is that correct?
16 A. No, that was not part of my activity.
17 Q. Nor did they give you any information as to whether the Macedonian
18 forces used any submachine-gun Thompson. Is that correct?
19 A. No, I didn't have any such information.
20 Q. And the Prosecution didn't give you any information about the
21 manufacturing origin of ammunition used by the Macedonian forces at the
22 relevant time. Is that correct?
23 A. As to the bullets, the projectiles, I seem to remember that most
24 of the material came from corpses, an area where there were corpses, and
25 because of the -- and the condition of the bullets was questionable.
1 Q. I apologise, Doctor. My question was slightly different. Were
2 you provided with any information from the Prosecution as to the place of
3 origin of the ammunition and in the manufacturing origin of the ammunition
4 which the Macedonian forces used in August of 2001. Were you given any
5 such information?
6 A. No, I did not have such information.
7 Q. And, Doctor, am I correct to understand that the only bullets or
8 bullet fragments which you were asked to match between -- well, the
9 bullets and the three guns in question, were used ammunition. Is that
11 A. The parts of the ammunition used for the analysis, as far as I'm
12 aware, left marks, left rifle marks, and those which did leave rifle marks
13 were shot from weapons. The rest of it could be seen by the condition of
14 the bullets.
15 Q. Well, is that correct that the Prosecution did not ask you to
16 carry out an examination of live round of ammunitions which were found on
17 one of the deceased persons in Ljuboten. Is that correct?
18 A. What do you mean by not shot by ammunition which was not shot?
19 You mean whole --
20 Q. Well --
21 A. -- whole cartridges?
22 Q. Yes, an unused -- were you asked to carry out an expertise on
23 unused ammunition, that is ammunition which could still be shot from a
25 A. But what -- what result would such an analysis bring? Such
1 analyses in criminal technology don't have any sense. What would be the
2 objective of such an analysis or such an investigation?
3 Q. Well, if you look at your report, Doctor, under exhibit 4 and 5 of
4 that report, it suggests that you were provided with two bags of
5 cartridges. Is that correct?
6 A. That is true. There were cartridges with the weapons, which were
7 supplied with the weapons, and they were included in the exhibits. And
8 normally we do not carry out any further examinations of the live
10 Q. And in this particular case, Doctor, were you asked by the
11 Prosecution to carry out an examination to figure out whether any of those
12 cartridges could, in fact, be shot from any of the three guns which you
13 had been given? Was it something that was commissioned of you?
14 A. You would not have needed a scientific analysis because it would
15 have been evident from the calibre of the ammunition we had. You could
16 see obviously whether such ammunition could have been used in the weapons
17 present. You wouldn't need a scientific analysis for that.
18 Q. And you agree that the evident conclusion that you could draw from
19 this fact is that, indeed, the cartridges in question could have been shot
20 from some, if not all, of these three weapons. Is that correct?
21 A. No, that is not correct. There were various types of cartridges
23 Q. Well, let's look at it first. That's Exhibit 4 perhaps, Doctor.
24 It is a bag contains 40 cartridge of 7.62 ammunition and is the evident
25 conclusion which you have mentioned that those particular 40 cartridges
1 could have been shot from either Exhibit 1 or Exhibit 2, that is the two
2 Kalashnikov weapons which were given to you?
3 A. Exhibit 004, if you look at my second report of the 16th of
4 January, 2007, you will see that Exhibit number 004 could have stemmed
5 from number one -- or from both of the Kalashnikov-type weapons.
6 Q. And what about Exhibit 5, Doctor. Could it have come out of any
7 of those three guns?
8 A. Exhibit 5 could have stemmed from the Thompson submachine-gun.
9 That's number 003. It could have been out of that weapon.
10 MR. METTRAUX: Your Honour, I have no further question.
11 Q. I'm very grateful to you, Doctor. Thank you.
12 JUDGE PARKER: Thank you, Mr. Mettraux.
13 Mr. Apostolski.
14 MR. APOSTOLSKI: [Interpretation] Good morning, Your Honours.
15 Cross-examination by Mr. Apostolski:
16 Q. [Interpretation] Good morning, Dr. Simon Eichner. My name is
17 Antonio Apostolski and together with my colleague Jasmina Zivkovic we
18 appear on behalf of Mr. Johan Tarculovski.
19 After the detailed examination by my learned colleague
20 Guenael Mettraux, I will just follow up on the last round of his
22 MR. APOSTOLSKI: [Interpretation] Could the witness please be shown
23 Exhibit 2D9.
24 Q. It will be displayed for you, on the screen before you.
25 Witness, do you see the photograph in front of you on the screen?
1 Doctor, do you see it?
2 A. I can see -- I can see a container with various objects in it.
3 MR. APOSTOLSKI: [Interpretation] Could the photograph please be
4 zoomed in. Thank you. Very well.
5 Q. Doctor, do you see some silver bullets? They are encircled in
6 blue next to the evidence sign.
7 A. Yes, I can see the cartridges there.
8 Q. Do you see also a little bit to the left also a cartridge circled
9 in blue? The cartridge is silver. In the middle of the picture, the
10 cartridge is silver.
11 A. This could be a cartridge casing. I can see an object there
13 Q. Yes. I would now ask you: Can you tell me whether these bullets
14 would correspond, could be used by Thompson submachine-gun which was the
15 topic of your analysis and expertise?
16 A. The Thompson submachine-gun usually uses .45 ACP ammunition, the
17 automatic Colt pistol .45. And if that is the usual ammunition, I don't
18 see why it couldn't be used.
19 Q. Thank you.
20 MR. APOSTOLSKI: [Interpretation] Your Honours, I have no further
21 questions for this witness.
22 I would like to, however, to inform the Court that exhibits 2D33,
23 2D34, and 2D46 are officially translated by CLSS.
24 JUDGE PARKER: Thank you very much. Does that mean you now wish
25 to have substituted the official translations of those three in e-court or
1 are the official translations already included?
2 MR. APOSTOLSKI: [Interpretation] The official translations should
3 be attached and this will be done.
4 JUDGE PARKER: Thank you.
5 Ms. Motoike.
6 MS. MOTOIKE: Thank you, Your Honours. Good morning.
7 Re-examination by Ms. Motoike:
8 Q. Dr. Eichner, yesterday you were asked and it is referenced on page
9 30 through 32 of yesterday's transcript, you were asked about the use of
10 an optical microscope in analysing results from the paraffin glove test.
11 Do the documents you reviewed regarding the testing and then the ultimate
12 opinions rendered by the Macedonian authorities, do those documents
13 indicate whether or not an optical microscope was used?
14 A. No, I couldn't find that out from the documents that I received.
15 I think there was a visual analysis, but I would have to read the passage
17 The use of an optical microscope - thank you - the use of a
18 microscope, I didn't see anything about that. And I don't remember
19 anything like that. I do remember, however, that there was something
20 about a visual analysis, whatever that may mean, but we would have to read
21 the documents of Mrs. Kunovska again to see exactly what she meant. I do
22 not know exactly what type of optical apparatus was used because it is not
23 specified here.
24 Q. Yesterday you also, on page 45 of the transcript, spoke of visual
25 confirmation and that that would raise the level of certainty after the
1 diphenylamine test indicated a positive reaction. Is the visual
2 confirmation coupled with a diphenylamine test conclusive evidence that
3 the person actually fired a weapon?
4 A. No, no, certainly not.
5 Q. Okay. You also spoke yesterday on page 49 of the transcript as to
6 a discrete distribution and that it not being able to determine the nature
7 of the particle because there were discrete distributions. Were the
8 distributions in the 15 results that you reviewed, would you consider
9 those to be discrete distributions?
10 A. I would see, yes, a discrete distribution. And would see that in
11 all cases where the particles were so far from one another that there was
12 no relationship between them. So there is real -- no real distribution.
13 One only sees a few particles here and there, and thus the significance of
14 such a surface area distribution would be even less, we could say less
15 about it, than about a diffuse distribution which does give something
17 Q. So in reference to the 15 results that you reviewed, would you
18 then categorise those as discrete distributions present?
19 A. Yes, they were all discrete distributions.
20 Q. On pages 60 through 61 of yesterday's transcript, you were also
21 asked about whether it is scientifically acceptable to consider the
22 results of a group of persons to see whether the probability of a
23 particular result would be higher rather than lower.
24 You indicated at that time that the results of eight individuals
25 as a whole would depend on the circumstances, and you mentioned a factor
1 being if these people had the same movement pattern.
2 Do you recall that from yesterday?
3 A. I remember we discussed the phenomenon.
4 Q. Would it be possible that if these eight individuals had the same
5 movement pattern, say, for example, that these persons were taken to the
6 same police department, or handled by the same police officers at a
7 particular police check-point, that these persons as a group could be --
8 could have been exposed to the same types of contamination sources that
9 you have spoke of today and yesterday?
10 A. This approach to look at the material collectively is possible,
11 and one can draw conclusions from such an approach. It's just as valuable
12 to see how these eight persons were contaminated. And from the
13 collection, or from the grouping, one can draw conclusions, both for the
14 shooting of weapons, from a hand, and for the possibility you referred to,
15 being their treatment by the police. It is -- you can see in the
16 conclusions that similar contamination patterns would be achieved and they
17 would all be through the same type of contamination if they were sent to
18 the police station and touched by the police. It is a possible
19 conclusion, yes.
20 MS. MOTOIKE: Your Honours, have I only two more questions OF this
21 witness. I see the time. Can I continue?
22 JUDGE PARKER: Thank you.
23 MS. MOTOIKE:
24 Q. Dr. Eichner, speaking about contamination which you also discussed
25 today, can I ask you if someone is in an area where there are mortar
1 and/or TNT explosions and then this person was ultimately later detained
2 by police and potentially hit by police officers using the police
3 officers' weapons, could that also lead to contamination?
4 A. Everywhere, where there is contacts -- contact with the hands,
5 everywhere contaminated articles or gunpowder-contaminated articles are
6 present, for instance, be they the police officers themselves, then a
7 contamination can occur to the person, on the persons arrested.
8 Q. Thank you. And, Doctor, after being shown portion of
9 Ms. Kunovska's statement about the performance of these particular tests
10 by the Macedonian authorities, and this was referenced on pages 69 and 70
11 of yesterday's transcript, do you still maintain the opinions you drew
12 regarding the test results that are indicated in your report dated 17
13 March 2006?
14 A. The conclusions of Mrs. Kunovska or my conclusions, do you mean?
15 Q. Your conclusions, do you still maintain your conclusions that you
16 indicated in your report?
17 A. Yes, I maintain my conclusions.
18 Q. Thank you, Doctor.
19 MS. MOTOIKE: Thank you, Your Honours, I have nothing further.
20 JUDGE PARKER: Doctor, you will be pleased to know that concludes
21 the questions which there are for you in this trial. The Chamber would
22 like to express its gratitude to you for your assistance and for having
23 come here from your home. The Chamber would indicate, of course, that
24 you're now free to return and to do so with our thanks.
25 When we adjourn, which will be in a moment, the court officer will
1 show you out.
2 Mr. Saxon.
3 MR. SAXON: Your Honour, the next scheduled Prosecution witness is
4 Mr. Kamberi and the Prosecution had anticipated that Dr. Eichner's
5 testimony would take longer. We were informed yesterday by the Defence
6 that their cross-examination would be shorter. The Defence also told us
7 yesterday that they prefer that Mr. Kamberi not begin his testimony until
8 tomorrow. He will take the full day tomorrow.
9 We will then have witness Klaus Stein, another expert witness,
10 beginning on Thursday. The Defence informed us yesterday that they
11 anticipate that Dr. Stein's testimony will actually be completed on
12 Thursday. Therefore, last night, the Prosecution arranged to bring
13 another witness on Friday and that will be witness Aziz Redzepi, who will
14 be the final so-called crime base witness in the Prosecution's case on
16 The Defence also informed the Prosecution yesterday that they
17 believe that several of the future Prosecution witnesses will actually
18 require a bit less time than the Prosecution's recent estimates indicated
19 and that may mean that we may have some additional time free at the end of
20 next week and so that the Prosecution will work this week to do its best
21 to try to fill in that time and perhaps make some adjustments to the
22 witness schedule.
23 JUDGE PARKER: Thank you, Mr. Saxon.
24 The Chamber would indicate its appreciation of what appears to be
25 a trend toward speeding up the process of the trial, a trend upon the need
1 for which we commented on quite recently. It will be in the interests of
2 all, especially the two accused, that we achieve a speedier rate of
3 progress and we hope in what is now happening that there is a definite
4 move in that direction.
5 We, therefore, encourage you, Mr. Saxon, to take full advantage of
6 that in your planning of the witnesses ahead so that the total length of
7 the trial can be shortened.
8 We realise that we're in a time of flux and, therefore, there is
9 not another witness for the balance of today. We therefore must adjourn
10 now to resume tomorrow at 9.00 with the next witness, as you indicate.
11 Thank you all very much.
12 --- Whereupon the hearing adjourned at 10.33 a.m.,
13 to be reconvened on Wednesday, the 5th day of
14 September, 2007, at 9.00 a.m.