1 Thursday, 18 March 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.19 p.m.
5 [The witness takes the stand]
6 JUDGE PARKER: Good afternoon.
7 THE WITNESS: [Interpretation] Good afternoon.
8 JUDGE PARKER: The affirmation you made to tell the truth still
9 applies, and Ms. Gopalan continues.
10 WITNESS: DANICA MARINKOVIC [Resumed]
11 [Witness answered through interpreter]
12 Cross-examination by Ms. Gopalan: [Continued]
13 Q. Witness, when we left off yesterday we were looking at a
14 document, a complaint sent by Defence counsel Fazli Balaj to various
15 parties, and you were listed as one the recipients; do you recall that
17 MS. GOPALAN: I will call that up on the screen now. That's
18 06078. And, Your Honours, when we left off yesterday, Mr. Djordjevic had
19 raised concerns about the translations of that document. We have managed
20 to locate a CLSS translation in the system, which I have the doc ID for,
21 and bearing that in mind, I don't think it will be necessary for the
22 witness to read the document through as you had suggested yesterday.
23 JUDGE PARKER: Thank you very much. If we can see that.
24 MS. GOPALAN: The doc ID is 00335434 with an ET at the end, I'm
1 Q. Ma'am, while the document is being called up, I'd like to take
2 you to your testimony in relation to this document. As we saw yesterday,
3 it refers to Isak Aliu's treatment in prison, for example, paragraph 3
5 "As Defence counsel of the accused I am compelled to contact you,
6 particularly with regard to the accused Isak Aliu because he continues to
7 be subjected to grave physical and mental torture."
8 We also had a look at the recipients of this document, and you
9 were listed as one of them, but as I understand your evidence, you do not
10 recall receiving this document; is that right?
11 A. Could I please see the next page as well. And the rest of the
12 text on this page.
13 MS. GOPALAN: If we could scroll down the B/C/S, please.
14 JUDGE PARKER: Next page in English.
15 MS. GOPALAN:
16 Q. Have you finished reading the B/C/S, ma'am?
17 A. Yes, but I still haven't seen the second page.
18 MS. GOPALAN: Could we have the second page in the B/C/S, please.
19 Q. Now, I'd like to draw your attention to the last paragraph, or
20 second last in the B/C/S, you haven't come to that yet, but while you are
21 reading, I'll tell you what the English says:
22 "The investigating judge has been consistently refusing to refer
23 him and my client for medical examination, thus preventing the evidence
24 of torture."
25 Do you see that in the B/C/S?
1 A. Which paragraph is that? Is it on the second page?
2 MS. GOPALAN: Could we scroll down in the B/C/S, please. And
3 then the third page or the last paragraph, which is what I'm referring
5 Q. I think the paragraph I talked about started in the second page
6 and ends at the top of the third page. That:
7 "The investigating judge has been constantly refusing to refer
8 him and my other clients for medical examination, thus preventing the
9 evidence of torture."
10 Ma'am, do you recall this case?
11 A. Before answering your question, I must provide a rather extensive
12 explanation since this is essential. As regards this motion, it says
13 here defence motion, it's not a complaint --
14 Q. We'll get to your explanation in a moment, but my question to you
15 is a very precise one. It says do you recall this case, and by that I
16 mean the case of Isak Aliu that we spoke about yesterday and the
17 complaints of torture made by his Defence counsel. That is what this
18 document is talking about and my question to you is, do you recall this
20 A. This is not a complaint. As for Isak Aliu being tortured, this
21 is the first time I hear of it from you. Yesterday you showed me a
22 finding of the forensic medical institute, it was forwarded to me as the
23 investigating judge concerning a medical examination of the person you
24 are referring to, however, there are many important elements contained
25 here that I need to comment on. It seems you are seeking a certain
1 answer but it has nothing to do with the investigating judge of the
2 competent court. Investigating judges have completely different powers
3 under the penal code, and it differs from the competences of, say, your
4 investigators. An investigator is not the same thing as an investigating
6 Q. That's right. And we remember that yesterday you provided a
7 fairly detailed answer on the role of an investigating judge and the
8 competence of a prosecutor in comparison. And you told us that in
9 relation to these sort of allegations, for example, your competence ended
10 when you reported the case up to prosecutors. I'm not asking you about
11 that now. My question to you simply is, do you recall this case of Isak
12 Aliu where the Defence counsel made allegations of torture? It's a
13 simple question and you can answer yes or no.
14 A. I don't. This is the first time I hear of any mistreatment or
15 torture in the prison.
16 Q. We had a look at that document yesterday as well, so you don't
17 remember seeing this information yesterday?
18 A. Yes, I do.
19 Q. Very well. Let's have a look at some other examples or documents
20 in this case. But before we do that, let's continue with the case of
21 Isak Aliu. Yesterday, as we mentioned, we saw some foreign reports of
22 medical examinations. We saw a report in relation to Isak Aliu. Do you
23 remember that?
24 MS. GOPALAN: We can call it up. It's P1559.
25 THE WITNESS: [Interpretation] I apologise, I wanted to continue
1 answering your question about this motion. There are many things there
2 that remain unclear, but they are quite important. Therefore, you cannot
3 deprive me of my right to answer for the sake of the Chamber. This
4 complaint, as such, was not binding --
5 Q. We'll leave that for the Chamber to decide. My question was a
6 very simple one, and I believe you have answered it, and we are going to
7 move on unless the Chamber feels otherwise.
8 JUDGE PARKER: Please carry on, Ms. Gopalan.
9 MS. GOPALAN:
10 Q. Let's have a look at the document on the screen. This was
11 another one that we saw yesterday as well. It's a report of a medical
12 examination conducted on Mr. Aliu and your testimony in relation to this
13 document was that, "I can't recall it now, but if it's addressed to me,
14 and we can see that it is, at the top of the page, it must have been
15 received." Now, I'd like to see some other medical reports that were
16 also sent to you. Mr. Djordjevic had requested that we show each
17 individual report to you. So having regard to your testimony here that
18 it's been addressed to you, so you must have received it, let's move on
19 to some of the other reports of medical examination.
20 MS. GOPALAN: Can I call up 03105, please.
21 Q. Now, as I mentioned yesterday, there were a number of other
22 results of medical examinations sent to you. This is one for an
23 individual called Murat Sahiti. Do you see the name?
24 A. Yes.
25 MS. GOPALAN: If we could go to the second page, he was indictee
1 10 in the policemen case, or the case of the illegal MUP.
2 Q. We see that that in terms of the opinion of the injuries that he
3 suffered, it says "all of them inflicted with the blunt side of the heavy
4 and strongly swayed mechanical instrument."
5 MS. GOPALAN: Could we go to the second page of the B/C/S or at
6 least scroll down so the witness is able to see the relevant section.
7 Thank you.
8 Q. So we see that this opinion is identical, if not similar, to the
9 conclusions reached in relation to Mr. Aliu, which we saw -- whose
10 document we saw yesterday.
11 MS. GOPALAN: Your Honours, I'd like to tender this exhibit,
13 JUDGE PARKER: It will be received.
14 THE REGISTRAR: As Exhibit Number P01562. Thank you, Your
16 MS. GOPALAN: And if we could move on to the next report, and
17 that's 03104. And we will try to move through these fairly quickly, if
18 we can. It's just for confirmation.
19 Q. Now, we see here, this is another report and it's for Aliden
20 Bejtulah, who was indictee number 21.
21 MS. GOPALAN: If we could go to the bottom of the B/C/S, and the
22 second page of the English, please.
23 Q. At the opinion section it says:
24 "Injuries inflicted with the blunt side of the heavy and strongly
25 swayed mechanical instrument."
1 MS. GOPALAN: I'd like to tender this document into evidence,
2 Your Honours.
3 JUDGE PARKER: It will be received.
4 THE REGISTRAR: As Exhibit Number P01563, Your Honours. Thank
6 MS. GOPALAN: Ma'am, let's have a look at 03103. That's another
7 medical report. And this time it's for Caka, Tahir.
8 Q. Do you see his name there?
9 A. Yes, I do.
10 Q. And this document is also addressed to you, and we see at the
11 bottom opinion "injury inflicted by blunt side of heavy and strongly
12 swayed mechanical instrument."
13 MS. GOPALAN: I'd like to tender this document into evidence,
14 Your Honours.
15 JUDGE PARKER: Yes.
16 THE REGISTRAR: It will be received as Exhibit Number P01564.
17 Thank you, Your Honours.
18 MS. GOPALAN: And the next one 03102. And this was indictee
19 number 13.
20 Q. Do you see the name there, Ramadan Ferizi, ma'am?
21 A. Yes, I see it.
22 Q. It's also addressed to you. If we could scroll down, opinion
24 MS. GOPALAN: May I see the English please on the next page.
25 Sorry, could we have the English on the screen. Thank you.
1 Q. And again it says "inflicted with the blunt side of a heavy and
2 strongly swayed mechanical instrument."
3 MS. GOPALAN: I'd like to tender this into evidence, Your
5 JUDGE PARKER: Yes.
6 THE REGISTRAR: It will be received as Exhibit Number P01565.
7 Thank you, Your Honours.
8 MS. GOPALAN: And the next one, 0101, indictee number 1. Sorry,
9 it's 03101.
10 Q. And do you see the name, ma'am, Avdija Mehmedovic. And again
11 this report is addressed to you; right?
12 A. Yes.
13 MS. GOPALAN: And if we could scroll to the bottom of both
14 languages. Injuries, it says "inflicted by a heavy blow of a blunt heavy
15 mechanical implement." I'd like to tender this, Your Honours.
16 JUDGE PARKER: It will be received.
17 THE REGISTRAR: As P01566. Thank you, Your Honours.
18 MS. GOPALAN: And the next one, 3100.
19 Q. Ma'am, do you see that this is a medical report for Bljerim
20 Oloni? Ma'am?
21 A. Yes.
22 Q. And if we go to the bottom of the page of the B/C/S and the next
23 page of the English, the conclusion section says, as in the previous
24 documents we have seen, "inflicted by a heavy blow from a blunt heavy
25 mechanical implement." That's correct, ma'am?
1 A. Yes.
2 MS. GOPALAN: And the final one is 0 -- oh, yes, I'd like to
3 tender that into evidence, Your Honours.
4 JUDGE PARKER: It will be received.
5 THE REGISTRAR: As Exhibit Number P01567. Thank you.
6 MS. GOPALAN: And the final one is 03098. I perhaps spoke too
7 soon, we have one more to go.
8 Q. And this one, 03098, you see that, ma'am, that it's addressed to
9 you and the individual referred to is Kemalj Alija?
10 A. Yes.
11 Q. And at the bottom of the B/C/S and the second page of the
12 English, we see a similar conclusion. We'll wait for the document to
14 MS. GOPALAN: Could we have the next page of the English, please.
15 Q. Again it says "inflicted by a blunt and heavy object in full
17 MS. GOPALAN: I'd like to tender this into evidence, Your
19 JUDGE PARKER: Yes.
20 THE REGISTRAR: It will be received as Exhibit Number P01568.
21 Thank you, Your Honours.
22 MS. GOPALAN: And the next one is 03098 -- sorry, 03097.
23 Q. Do you see his name there, ma'am, Bruti, Sali?
24 A. Yes, I do.
25 Q. And it's addressed to you.
1 MS. GOPALAN: And the opinion page, please.
2 Q. Again we see "inflicted by heavy blow from a blunt heavy
3 mechanical implement." So similar conclusion to the other documents we
4 have seen; correct?
5 A. Yes.
6 MS. GOPALAN: I'd like to tender this into evidence, Your Honour.
7 JUDGE PARKER: Yes.
8 THE REGISTRAR: It will be received as Exhibit Number P01569.
9 Thank you, Your Honours.
10 MS. GOPALAN:
11 Q. Now, ma'am, yesterday we saw in Mr. Balaj's statement that you
12 had delayed medical exam for Isak Aliu to allow his injuries to heal.
13 Now, in relation to any of these indictees, do you remember if you
14 delayed their medical examination?
15 A. The statement of Fazli Balaj is incorrect, as is what you have
16 just said.
17 Q. So in answer to my question, did you delay medical exams for any
18 of these individuals, please answer.
19 A. That is not correct. I did not delay anything. If I received
20 submissions from any defence counsel, each such a person would be
21 referred for medical examination right away.
22 Q. And do you recall receiving any of these reports?
23 A. Of course I received these reports because I forwarded them to
24 the parties and Fazli Balaj confirms that he had received the findings
25 relating to his client.
1 Q. Now, do you know if any further steps were taken following these
2 reports being forwarded on?
3 A. That depended on defence counsel and the public prosecutor.
4 Q. Ma'am, I'm asking you --
5 A. Defence counsel were there to state themselves whether they
6 followed it up with any criminal reports against people who had committed
7 that. It was up to the public prosecutor and defence counsel to submit
8 criminal reports against people whom they suspected of having committed
9 crimes. I could not submit criminal reports, I was there to forward
10 documents to the parties, and it was up to the parties to follow it up.
11 The prosecutor was in charge of discovering and prosecuting perpetrators
12 of criminal acts.
13 Q. Ma'am, let me repeat my question and it was, do you know if any
14 further steps were taken following these reports being forwarded on? Do
15 you know?
16 A. Steps or measures taken by whom?
17 Q. Well, based on your answer, prosecutor?
18 A. I don't know whether the prosecutor did anything. It was within
19 his power to do so. It wasn't up to me to monitor and check what he was
20 doing, I was not authorised to do so.
21 Q. So you don't know what steps were taken after these reports were
22 forwarded on; correct?
23 A. I don't know that.
24 Q. Now, Witness, on Tuesday, I think you testified about a number of
25 cases you had been involved in and the diligence with which you conducted
1 these investigations. For example, you spoke about a case where you were
2 willing to go to the crime site even though you were advised against it
3 by the prosecutor due to safety concerns so that the bodies that lay in
4 the crime site wouldn't be taken away by dogs. Do you remember that case
5 that you talked about?
6 A. If you have in mind the on-site investigation in Racak, then it
7 is correct. As for me performing my duties in a professional and legal
8 way, I can prove it by telling you that I was recently called back to
9 Pristina to work because I was offered a choice between being a domestic
10 judge or a judge at the EULEX or the Supreme Court.
11 Q. Thank you, ma'am. Now, we said that you are a professional and
12 that you took your work seriously. Now, how is it then in a case
13 involving individuals that you had investigated when you receive medical
14 reports that show similar type of injury, you do not seem to know what
15 happened in relation to these complaints? How is that?
16 A. I don't know how to answer that question, how to explain. You
17 seem not to understand the powers of an investigating judge. How often
18 do I have to repeat that?
19 Q. Ma'am, I understand that this is not something within your
20 powers, but my question simple relates to your knowledge of whether if
21 anything was done to address these complaints. And I believe you have
22 said that you do not know; is that right?
23 A. I told you that I didn't know and it wasn't up to me to know. It
24 wasn't me who monitored the work of a prosecutor. The defence counsel
25 could have provided evidence whether anything was done following his
1 complaint. It's the defence counsel who protects the interests of his
2 client and takes further steps. The finding, the medical finding was
3 that his client suffered a light injury and it's for the defence counsel
4 to file a criminal report and for the public prosecutor to take steps.
5 I don't know how to explain that. Fazli Balaj knows that
6 perfectly well. He only wanted to accuse the investigating judge,
7 because the investigating judge, a statement given to the investigating
8 judge is very difficult to rebut in trial, if the statement was given in
9 a legal manner. And that was the purpose of all these submissions of
10 Fazli Balaj to be in a better position once an indictment is raised.
11 Q. So as an investigate judge, you were not interested in knowing if
12 these men had been beaten in custody?
13 A. I as an investigating judge receive regular reports from the
14 administration of the prison or the state, and they were duty-bound to
15 inform me whenever I called them up because there are medical check-ups
16 conducted there and if the indictee is dissatisfied with the treatment he
17 receives in jail can turn to me. And if anything like that happened in
18 prison, the prison warden was duty-bound to inform the investigating
19 judge, and I never received such information, at least as regards the
20 cases that I worked on.
21 Q. Thank you, ma'am. Now, let's move on to another document.
22 MS. GOPALAN: This is 65 ter 391. And it's also Exhibit P1551.
23 It's been marked for identification.
24 Q. Now, ma'am, we see here that this is a Human Rights Watch report
25 from the cover page, and you see that it is dated December 1998, and it's
1 headed detention -- "Detentions and Abuse in Kosovo." Do you see that,
3 A. Yes, I do.
4 MS. GOPALAN: And now I'd like to go to page 17 of the English
5 and the B/C/S.
6 Q. Ma'am, I'm interested in the case of A.D. Let's wait for it to
7 come up on your screen. And while it's coming up, I will read the
8 document. It says:
9 "A.D. is a primary school teacher with five children from Zaskok
10 village near Urosevac. He was arrested on June 28, 1998, tortured with
11 electric shock, and held in prison for 86 days. According to A.D., three
12 or four plain clothes policemen came to his house around 5.30 a.m.
13 ordered him to the police station in Urosevac without an explanation.
14 They took him to the state security building on the fourth floor where
15 they accused him of hiding weapon for the KLA, which he claimed was not
16 true. He insisted that he -- they insisted that he had weapons and was
17 working with the KLA in the village and started to beat him. He told
18 Human Rights Watch: They beat me with a truncheon all over my body, but
19 not on the head. They were changing, three or four policemen always
20 beating me. They asked me about my activity in the KLA, about weaponry.
21 Do you know this person, for example. They let me recover, and we had a
22 normal talk, and then they would start beating me again."
23 Now, ma'am, do you know about this case of A.D.?
24 A. I don't know what I could have to do with this. This is the
25 first time I hear of it and this makes me laugh. I really have no
1 comment, and I have no idea why you are asking me this. What is the
2 connection with me?
3 Q. [Overlapping speakers] ... say that he was taken to the Urosevac
4 police station. Wasn't Urosevac within your jurisdiction as the district
5 judge in Pristina?
6 A. Well, you know, yes, as far as subject matter jurisdiction and
7 territorial jurisdiction is concerned, yes, but I have nothing to do with
8 the building of the SUP of Urosevac. So this really has nothing to do
9 with me.
10 Q. Very well then. Now, A.D. also speaks about being tortured with
11 electric shock, and that I will read is the second last paragraph. It
13 "They used electric shock. There is some kind of engine. They
14 were keeping me with a part and every time I received a shock, that was
15 the most difficult. Then they would ask some questions. It was very
16 painful. I can't remember the number of times, I could only count the
17 first few. I lost consciousness. They used water and a ventilator to
18 reawaken me."
19 Now, ma'am, do you know anything about electric shock being used
20 against prisoners?
21 A. This is the first time I hear of this. Really, I can tell you I
22 can't comment, nor do I have any answer to this, and I can only repeat, I
23 don't see why you are asking these questions to me.
24 Q. Perhaps the next paragraph will help, ma'am. It says here:
25 "According to A.D., the abuse stopped after the three days in
1 prison. On July 3rd he was taken to the investigative judge, Danica
2 Marinkovic in Pristina, who ordered A.D. to be held in pre-trial
3 detention. A.D. had a lawyer present, who subsequently allowed to visit
4 him four or five times in prison. On September 22, the charges against
5 A.D. were dropped without an explanation when he was released."
6 Now, does this refresh your memory in terms of this case?
7 A. No. This is a completely false. I don't know where this report
8 came from and on which information is based. But this is beyond reason.
9 It's totally untrue. I don't know what is behind this. I don't know why
10 this was written this way. And this person A.D., if all this happened to
11 him once he was released, he could have gone to the chief of the SUP of
12 Urosevac with his lawyer and reported everything and of course criminal
13 proceedings would have been launched. That's very clear. If all this is
14 true, then that's what he and his lawyer should have done, otherwise,
15 I've nothing to do with this.
16 Q. So you don't recall dealing with this individual, that's your
18 A. It's not true, I would never do anything like this. I've been a
19 judge for 34 years. I know my job. I don't know where all these reports
20 came from. If these organisations could have stated something positive,
21 then we could have spoken about it. We weren't -- we didn't live in the
22 age of slavery. We respected the human rights of everybody, of all
23 accused persons, and I have come here to speak the truth. And it is
24 really so that all the human rights of the accused persons were
25 respected. They had the right to a defence lawyer, the right to use
1 their mother tongue, so both the defence counsel and the Judge would have
2 noticed any traces on the body of an abused person and a report would
3 have been made. Could I have remained judge for 34 years if any of this
4 were true?
5 Q. [Overlapping speakers] ... I have allowed you to provide a fair
6 amount --
7 A. Well, I didn't answer, I say it isn't true.
8 JUDGE PARKER: Thank you very much. Our system involves counsel
9 asking you questions. If they are unclear, you can raise that problem,
10 but if they are clear, if you would please pay attention to answering
11 them. Under our system, if you are not allowed to say all that you wish,
12 either the counsel who called you would be able to raise that again with
13 you later or this Chamber would. So for the moment, if you can
14 concentrate on the questions and answering those, it will help us all to
15 proceed more quickly. Thank you.
16 MS. GOPALAN: Could we move to another page in this document,
17 please. Page 8.
18 THE WITNESS: [Interpretation] I apologise to the Chamber.
19 Q. Now, this is the case of Rexhep Bislimi and it's headed "Deaths
20 in Detention" and it says here:
21 "Rexhep Bislimi an activist with the council for the defense of
22 human rights and freedoms in Urosevac and the father of three, was
23 arrested on July 6, 1998
24 from beatings he sustained while in detention."
25 Ma'am, do you know Rexhep Bislimi?
1 A. No.
2 Q. So you don't know anything about this case, of him being beaten
3 to death?
4 A. I don't know.
5 MS. GOPALAN: If we could go to the bottom of the page, and I'll
6 read out the last paragraph.
7 Q. And it says:
8 "Three or four days later, the family learned that Rexhep was
9 being held in Gnjilane prison. The chief investigative judge in
10 Pristina, Danica Marinkovic, gave Rexhep's mother and Fadil permission to
11 visit. According" -- and could we move to the next page, please?
12 "According to Fadil, the two of them tried to visit on July 16th,
13 but the police didn't not allow them to enter the prison because Rexhep
14 was in interrogation. The police kept the visiting permit and said that
15 the family could return in three or four days."
16 Now, ma'am, according to this report, you permitted Mr. Bislimi's
17 family to visit him in prison, and this was an individual that was beaten
18 to death in prison, so you were involved in this case, and you say you
19 don't remember this case?
20 A. I don't know, I don't remember. A persons against who I
21 investigated and were in pre-trial detention and the district prison in
22 Pristina, I don't know anything about this case.
23 Q. Was it usual for prisoners to die in detention?
24 A. Well, there may have been such occurrences, very rarely. I can't
25 remember. There have been such cases, but very few.
1 Q. But if they were such rare occurrences, ma'am, wouldn't you
2 remember that a case that you had been involved in resulted in death in
4 A. Well, you know, I would have to know the details first, whether I
5 investigated against him, whether he was really beaten up, whether he
6 really died and what he died of because there have been cases when people
7 died for reasons of poor health. This is the first time I've read
8 anything like this. This is unfamiliar to me. I know nothing about it.
9 Q. In this case at least these portions I read out initially say
10 that the death in custody was due to beatings, so there's no doubt about
11 that in this case.
12 MS. GOPALAN: Now, let's have a look at another case. Page 10 of
13 the English and the B/C/S, please.
14 Q. And this is the case of --
15 JUDGE PARKER: Before you move on -- [microphone not activated]
16 THE INTERPRETER: Microphone for the Judge.
17 MR. DJORDJEVIC: [Interpretation] Your Honours, as far as I
18 understood, the words of my learned friend, Ms. Gopalan and for the sake
19 of the transcript and what has been recorded, her last conclusion was as
20 for as I can tell from this document, the death in custody was due to
21 beatings, so there is no doubt about that. Is my learned friend
22 referring to the document that we see on the screens or to some forensic
23 report that we haven't seen here, because I cannot draw that conclusion
24 based on this document, and I just want to make sure what my learned
25 friend was referring to. Thank you.
1 JUDGE PARKER: Thank you, Mr. Djordjevic.
2 Ms. Gopalan.
3 MS. GOPALAN: Let's go back to the page that we saw, the section
4 that I read out, Your Honours, begins at page 8 of this document, so if
5 we could go there. And it says:
6 "Human rights groups in Kosovo have documented five cases since
7 July 1998 in which detainees, people held in police stations, state
8 security buildings, or prisons died from torture by police officers or
9 prison guards."
10 And then we see that the case of Rexhep Bislimi follows on.
11 JUDGE PARKER: And I see in the first paragraph under the heading
12 of Rexhep Bislimi, I think the passage which you may have read, he died
13 on July 20th from beatings he sustained while in detention.
14 Mr. Djordjevic, is there anything further?
15 MR. DJORDJEVIC: [Interpretation] I just wanted to make sure so my
16 learned friend meant this document where we see the mere allegation by
17 humanitarian organisation that something happened without any additional
18 documents corroborating that this person really died, such as the ledger
19 of deaths, which was usual for Kosovo, or a forensic report, a
20 pathologist finding, or any other document which would beyond reasonable
21 doubt confirm this mere allegation made by Human Rights Watch. And as
22 far as I know, they usually enclose documents corroborating their
23 allegations, but we haven't seen any such documents, so I ask myself,
24 whether this allegation is verifiable at all.
25 JUDGE PARKER: The Chamber is well aware that Ms. Gopalan is
1 proceeding on the basis of a report which is second-hand for her
2 cross-examination. Whether or not this particular person died as
3 suggested is a matter of fact which may have to be determined by the
4 Tribunal or not, but at the moment it's merely the report is merely the
5 subject of cross-examination.
6 Carry on, Ms. Gopalan.
7 MS. GOPALAN: Thank you, Your Honours.
8 Could we go to page 10, please, of the English and the B/C/S.
9 Could we go to the previous page, my apologies, I'd like the section
10 heading for Cen Dugoli. Thank you. Also in the English, please. Thank
12 Q. Now, ma'am, do you know someone called Cen Dugoli?
13 A. The name is unfamiliar.
14 Q. Now, it says here:
15 "Cen Dugoli, an activist with the democratic league of Kosovo in
16 Urosevac, and the father of four, died on August 17, 1998 in Pristina
17 hospital from beatings sustained while in detention. Photographs of
18 Dugoli obtained from Human Rights Watch reveal signs of extreme beating
19 and deep subcutaneous bleeding over large parts of the body."
20 Now if we go down the page it refers to the family visiting, and
21 it says:
22 "The family first visited the prison on July 1. According to
23 Mereaj Dugoli, her son looked tired, and he had some bruises on his face.
24 Dugoli's lawyer, Destan Rukiqi visited Dugoli in prison on July 19.
25 Rukiqi told human rights" -- could we move on, please, to the next page.
1 "Watch that Dugoli had been beaten and they could not discuss the details
2 in the presence of the prison guard."
3 MS. GOPALAN: I'd like to move on to the last paragraph just
4 before the section headed Adem Berisha, and could we move in the B/C/S as
5 well so the witness can follow?
6 Q. It says here:
7 "While Dugoli was in prison, his lawyer Destan Rukiqi was
8 arrested on July 23rd or insulting Judge Danica Marinkovic while trying
9 to review Dugoli's case file. Dugoli himself spent 30 days in prison and
10 was severely beaten on the kidneys while in the Lipljan prison, see
11 below. Rukiqi first learned of Dugoli's death when he was released from
12 prison on August 22nd."
13 Now, ma'am, you said you didn't know Cen Dugoli. Do you know his
14 defence lawyer, Destan Rukiqi?
15 A. Let me tell you, all the cases that you've read out to me
16 including Cen Dugoli, I didn't have contact with them as accused persons.
17 This may be -- may have been in the pre-investigative phase while that is
18 before an investigation was launched because a person could be detained
19 for three days before an investigation was launched. So these are all
20 cases I've never heard of before.
21 Q. Ma'am, the question was, do you know his lawyer, his defence
22 lawyer, Destan Rukiqi?
23 A. Let me tell you, this is the first time I hear that Destan Rukiqi
24 was his lawyer. I know Destan Rukiqi, he was a lawyer, and he defended
25 other accused persons.
1 Q. Do you recall this incident of him being imprisoned for insulting
3 A. I remember the event when he insulted me in my office in the
4 presence of two witnesses. And I called the misdemeanours judge and
5 reported that misdemeanour to him because I considered that he had no
6 right to insult me or the institution I represent. But what happened
7 subsequently in the misdemeanour proceedings, I don't know. This was --
8 it was up to the misdemeanours court to decide about that, so what you
9 have just read out to me is unfamiliar.
10 Q. Well, let's see if we can refresh your memory on what happened to
11 Mr. Rukiqi.
12 MS. GOPALAN: Could we go to page 21 of the English and the
13 B/C/S, please.
14 Q. So we see here:
15 "Destan Rukiqi, a lawyer in Pristina who has defended dozens of
16 ethnic Albanian political prisoners in Kosovo in recent years was
17 arrested on July 23rd, 1998
18 proceeding to the maximum 60 days in prison for disturbing public order.
19 Rukiqi was beaten on his third day in detention and suffered severe
20 damage to his kidneys."
21 Now, did you know about these beatings that Mr. Rukiqi received?
22 A. No, this is the first time I've heard of it. Nobody informed me
23 of that, nor was that necessary. I merely reported the incident and
24 another court is in charge. What happened to him in prison, I don't
25 know. But he is a lawyer, he must have reported that to the prison
1 warden, if anything like that happened to him.
2 Q. Now, it goes on to say:
3 "The arrest was related to an incident on the morning of July
4 23rd when Rukiqi got into an argument with the investigative judge in
5 Pristina, Danica Marinkovic. According to Rukiqi, Marinkovic had
6 prohibited him from viewing the file of his client, Cen Dugoli, for two
7 days. On the third day, July 23rd, Rukiqi was allowed to see Dugoli's
8 file but was forbidden to take notes. When Rukiqi took notes,
9 nonetheless, Marinkovic snatched the file from his hands and an argument
10 ensued. According to Rukiqi, he stormed out saying 'I am in the court
11 but you are acting like the police.'"
12 Do you recall this argument, ma'am?
13 A. This is incorrect. What can I tell you. Cen Dugoli was never
14 accused in a case I handled. That's number one. Number two, each
15 defence counsel could view case files if it was allowed in that case. I
16 wouldn't engage in conduct such as this. This is completely untrue. I
17 have no comment to offer or nothing to say about it. Of course, I
18 wouldn't stand him insulting me. I was a public servant and if I tried
19 to insult anyone here at this Tribunal, measures would be taken against
20 me certainly. As for the rest of what he is saying, I'm not familiar
21 with it. I'm simply surprised that the humanitarian organisation
22 referred to never attempted to visit me to try and verify what they are
23 claiming to see whether I had those case files indeed and whether I had
24 anything to do with it. They should have heard my side of the story.
25 This is a practice of listening to only one party, and I basically didn't
1 really know what this international humanitarian organisation was busy
2 with. In any case, they should have visited me to discuss it with me as
3 well. Members of the International Red Cross always came around, we had
4 very good co-operation, we visited the prison, and I provided them with
5 permits to go out and visit by themselves, but this particular
6 organisation never bothered to visit me.
7 Q. Thank you, ma'am. And we may have a look at some International
8 Red Cross reports shortly, but for the moment dealing with the case of
9 Destan Rukiqi, you agree that following his encounter with you where he
10 insulted you, he was imprisoned?
11 A. I don't know when he was imprisoned. I only reported --
12 Q. Ma'am, I didn't ask you when he was imprisoned. I just said that
13 he was imprisoned. Was he imprisoned?
14 A. I don't know, I wasn't interested in what happened next. I
15 simply reported the case, and that was it. I had my own work to do.
16 What happened to Rukiqi is completely something I'm completely not
17 familiar with.
18 Q. Very well, ma'am. We may come into further details of what
19 happened to Rukiqi.
20 MS. GOPALAN: Your Honours, can I ask that this exhibit be marked
21 for identification -- oh, it's already marked for identification. So
22 I'll just move on in that case.
23 Now, let's have a look at 06087.
24 Q. Ma'am, we see that this is a MUP staff report and it's dated the
25 24th of July, 1998. And it's headed: "Summary of security related
1 incidents, events, and information recorded on the 23rd to 24th of July,
3 MS. GOPALAN: And could we move to item 3, please.
4 Q. And I'll read that out to you. It says -- if we could have the
5 same in the B/C/S, thank you.
6 "On 23rd July, 1998
7 attorney at law from Pristina, violated law and order in the office of
8 the district court in Pristina when he came uninvited to the
9 investigating judge, Danica Marinkovic, and insulted her saying, 'You
10 should put on a police uniform and work for the police' in accordance
11 with Article 305 of the law on misdemeanours. He was brought before the
12 misdemeanours judge who sentenced him to 60 days imprisonment."
13 Now, this is the same incident we have been discussing; correct?
14 A. I suppose so, I don't recall the date, but this sounds like it.
15 I know only that he came during the afternoon.
16 Q. Thank you, ma'am. I'd like to move on to another document.
17 MS. GOPALAN: Could I tender this into evidence, Your Honours.
18 JUDGE PARKER: It will be received.
19 THE REGISTRAR: As Exhibit Number P01570. Thank you, Your
21 MS. GOPALAN: 6091, 65 ter. Sorry, 06091.
22 Q. Now, we see here, ma'am, that this is a report from the
23 "Financial Times," and it's dated the 27th of August, 1998
24 down to the B/C/S and the English, this incident that we have been
25 discussing is mentioned. It says:
1 "Defending Mr. Dugoli was Destan Rukiqi," and I'm reading here
2 the second last paragraph of the English, and the last paragraph of the
3 B/C/S on page 1.
4 "Defending Mr. Dugoli was Destan Rukiqi, Kosovo's most prominent
5 human rights lawyer, who was arrested after an argument with Judge Danica
6 Marinkovic while seeking access to records of his client's testimony
7 during investigation. Mr. Rukiqi was sentenced to two months in jail for
8 insulting the state and Mrs. Marinkovic. He alleges that guards beat him
9 unconscious on his back and legs with truncheons and then put him in
10 solitary confinement."
11 Could we move on to the next page, please.
12 Q. Ma'am, this is the case we've been discussion; correct? Mrs.
13 Marinkovic, is this the case we have been discussing?
14 A. Concerning Destan Rukiqi? I told you already, I don't know what
15 happened with him. I was going through the list of files, and he doesn't
16 figure as a defendant at all in any of the cases I handled. I don't know
17 him at all and I was never in charge of any investigations into his case.
18 In any case, it is correct that he insulted me, I reported him, and
19 that's the end of it for me. I did not try to interfere with the work of
20 the Judge who sentenced him. In any case, what he asserts is incorrect.
21 Had they come to see me to talk to me, they would have had a clearer
22 picture of the situation.
23 Q. Ma'am, in this news report it says:
24 "Mrs. Marinkovic denied that Mr. Rukiqi or anyone else had been
25 beaten in prison and insisted that all deaths in custody were of natural
1 causes. The Serbian judicial system was so correct and fair, she
2 maintained, that there was nothing for the UN to investigate. 'Some
3 people after they are released following their jail term, come and thank
4 me and say hello to me in the street, she added. When they go abroad,
5 they send me post cards and greetings'."
6 Ma'am, it appear that is this incident was discussed with you by
7 someone. So do you recall saying this?
8 A. No, this is incorrect. No one ever discussed it with me. This
9 is completely untrue. These words may have been copied from another
10 newspaper about the accused saying hello and sending me post cards, but
11 as for Destan Rukiqi, this is completely untrue. No one came to me to
12 speak about him, and I don't know what ensued following his departure
13 from my office.
14 Q. When it says here Mr. Marinkovic denied that Mr. Rukiqi or anyone
15 else had been beaten in prison and insisted that all deaths in custody
16 were natural causes, you are saying this is not what you said?
17 A. I never spoke to this journalist or anyone from his agency. He
18 may have copied this from something I told another newspaper. I was
19 talking about a person who died while in prison while being part of
20 criminal proceedings. An autopsy was done right away and we knew of the
21 cause of death. Each and every such case was recorded, autopsy was
22 performed, and records kept in cases in which any of the defendants in my
23 cases died. I don't recall off the cuff what the results of the finding
24 in this case were, but concerning Destan Rukiqi, he was never accused in
25 any case I handled. I have never heard of this particular journalist
2 Q. Ma'am, were you often questioned by journalists about death in
4 A. No. It's not that it wasn't often. I was never asked about such
6 Q. And that was because, as you said earlier, it never happened, or
7 it was a very rare occurrence?
8 A. You know, it happened seldom, and we would only inform the
9 family. No journalists ever came around asking how many prison deaths
10 were there. Such cases were rare. Very rare. During my entire career
11 as the investigating judge, I don't recall any such cases. My guess
12 would be it happened extremely rarely. In any case, there must be
13 evidence of that in the case files. There should be Official Notes,
14 autopsy findings, everything should be in the case files.
15 Q. Very well, ma'am.
16 A. This way of reporting is biased. It is not supported by
18 MS. GOPALAN: Let's have a look at another report in that case.
19 And before we move on, I'd like to tender this into evidence, Your
21 JUDGE PARKER: It will be received.
22 THE REGISTRAR: As Exhibit Number P01571. Thank you, Your
24 MS. GOPALAN: And this is 06094.
25 Q. Now, we see that this is a report in a Serbian media source;
1 correct? "Nin." Do you see that, ma'am?
2 A. Yes, I do.
3 Q. [Overlapping speakers] ... January 1999.
4 MS. GOPALAN: And I'd like to go to page 4 of the report and that
5 would be the last page of the B/C/S as well.
6 Q. And I'll read this out. It says:
7 "On 30th July, Destan Rukiqi, a lawyer from Pristina was
8 transferred from the prison in Lipljan to Pristina hospital where he
9 received five therapies of haemodialysis because he suffered serious
10 damages to his kidney following the heavy beatings in the prison. On the
11 6th of August he was directed to the KPD hospital in Belgrade
12 received haemodialysis and three blood doses. Failure in the kidney
13 function was in the relation to the harms police inflicted over him while
14 he was imprisoned. Rukiqi was arrested on 23rd July and that same day he
15 was criminally convicted to 60 days imprisonment. The conviction and
16 arrest followed immediately after the conflict he had that same day with
17 Danica Marinkovic, investigative judge of the district court in Pristina.
18 She did not allow Rukiqi to write down data from the files of the case of
19 his defendant Ceno Dugoli, (Dugoli died on 17 August subsequent to the
20 police torture) ..."
21 Ma'am, this is a Serbian newspaper, and you say that at that time
22 you did not hear about the beatings suffered by Rukiqi?
23 A. I am completely honest when I say that I didn't hear of it. This
24 is Serbian paper, but I don't read "Nin." I'm not trying to deny all
25 this, but what do I have do with his medical condition and his sentence
1 in a misdemeanour proceedings? I have nothing to do with it. This may
2 well be true.
3 Q. No one you knew read this article and informed you about this?
4 A. Well, you know, at the time we had lots to do. We didn't have
5 time to read papers or exchange information of this kind. Some of my
6 colleagues may have been aware of this but they never told me. Whatever
7 happened to him in jail is something that I don't know of. I have
8 nothing to do with it. Perhaps the perpetrators were discovered.
9 Perhaps you have some additional information or proof as to who did that.
10 Q. Beatings in custody, that would be a serious issue, wouldn't it,
12 A. Yes, if it took place. I condemn such conduct and the
13 perpetrators of that should be punished. However, to repeat, I have
14 nothing to do with it.
15 Q. Ma'am, over the course of yesterday and today we've looked at a
16 number of documents, Human Rights Watch reports, newspaper articles, the
17 one on the screen which is a local newspaper. We've looked at
18 international newspapers, the one that we saw before. We saw a statement
19 by a defence lawyer yesterday, Fazli Balaj, and all of them consistently
20 say that beatings or mistreatment occurred in custody. Now, why would
21 such a diverse group of individuals make such a claim?
22 A. Well, you know, if this indeed was so, I have nothing to do with
23 it. There is standard procedure. Defence counsel know what to do,
24 prosecutors know what to do, I have no powers to investigate that. If
25 there were such individuals, it should have been reported and the
1 perpetrators sanctioned if such conduct occurred. Each state condemns
2 that. I don't think anyone would turn a blind eye on that -- to that.
3 If there was any evidence, perhaps something was done or maybe this was
4 just a general blanket statement without any support. This is very
5 single sided. All of this had to have been verified by checking
6 documents, by visiting the jail, the prison warden, the court, everyone
7 concerned should have been interviewed, medical examination documents
8 checked, as well as autopsy findings verified, and then one could make a
9 conclusion. I cannot comment any of this because I don't have any of the
10 case files. As for Destan Rukiqi, it may well be true, but I have
11 nothing to do with it. He did insult me, I reported that, and that was
12 the end for me. As far as I'm concerned, he should have been released
13 right away.
14 Q. All these sources are saying that these beatings occurred, the
15 torture occurred in custody, and you are saying that you knew nothing
16 about this at that time?
17 A. You know, the sources --
18 Q. Ma'am, it's a simple question. We know what the sources say.
19 What I'm interested in is what you say about it. And as I understand it,
20 you are saying you knew nothing about this at that time; correct?
21 A. These sources were not available to me. I didn't know of any
22 mistreatments in the prison and no one ever told me about it. I hear of
23 these NGOs for the first time as well as of their reports.
24 MS. GOPALAN: Your Honours, I believe it's almost time for the
25 break. I'm moving on to another topic, and I would suggest if possible,
1 that we take the break now.
2 JUDGE PARKER: Very well. We will adjourn now, and we will
3 resume at quarter past 4.00.
4 [The witness stands down]
5 --- Recess taken at 3.44 p.m.
6 --- On resuming at 4.17 p.m.
7 MS. GOPALAN: Your Honours, while the --
8 JUDGE PARKER: Ms. Gopalan.
9 MS. GOPALAN: While the witness is being brought in, I'll just
10 briefly mention that I'm intending to use a video with this witness.
11 This has been notified to Mr. Djordjevic, we've spoke about it, and his
12 concern is the provenance of the video, and I will provide that
13 information when I show the video. In essence the information is
14 provided in the video itself.
15 JUDGE PARKER: Thank you.
16 [The witness takes the stand]
17 JUDGE PARKER: Ms. Gopalan.
18 MS. GOPALAN: Before we move on, I'd like to tender the last
19 document that was on the screen before the break, that's 06094.
20 JUDGE PARKER: Mr. Djordjevic.
21 MR. DJORDJEVIC: [Interpretation] The document is such that the
22 witness was unable to confirm its contents at all. The same applies to
23 the one previous document, the one from the "Financial Times." That is
24 why the Defence objects to the admission of this document.
25 [Trial Chamber confers]
1 JUDGE PARKER: The view of the Chamber is that it should be
2 received in the context in which it and others are offered, that is, a
3 group of publications, an issue arising being whether or not the witness
4 had an awareness of this reaction to the incident that is alleged in
6 Thank you, Ms. Gopalan.
7 MS. GOPALAN: Thank you, Your Honours.
8 THE REGISTRAR: If will become Exhibit P1572, Your Honours.
9 MS. GOPALAN: Could I call up P741, please. And if we could go
10 to page 64 of the English and page 67 of the B/C/S. Let's start with the
11 cover page first, please.
12 [Trial Chamber and Registrar confer]
13 JUDGE PARKER: At the moment there is a technical problem with
14 the Court Officer's computer. It may be able to be overcome.
15 MS. GOPALAN: 66. Your Honours, the witness has a copy of the
16 B/C/S version, and perhaps I can read out from the English version.
17 JUDGE PARKER: Thank you. I am at the same time watching the
18 screen of the Court Officer. The technician is trying to deal with it,
19 but that seems still to be stalling, so we'll carry on as you propose.
20 MS. GOPALAN: I see Mr. Djordjevic on his feet.
21 JUDGE PARKER: Mr. Djordjevic.
22 MR. DJORDJEVIC: [Interpretation] I believe that the Defence
23 should also receive a copy of the document during the cross-examination.
24 JUDGE PARKER: I'm sure you are entirely correct, as usual,
25 Mr. Djordjevic. Just at this moment technology is frustrating us.
1 MS. GOPALAN: Perhaps I could ask the witness to read the
2 relevant section in the B/C/S, Your Honours.
3 JUDGE PARKER: As long as it is not long, that could be the
5 MS. GOPALAN: No, it is not long at all.
6 Q. Ma'am, could you have a look at the document that was just handed
7 to you. The first page, the cover page. Ma'am, the first page of the
8 document. And in the English version it says: "Humanitarian Law
9 Violations in Kosovo" and it's another Human Rights Watch report;
11 A. That is what it reads: "Humanitarian Law Violations in Kosovo."
12 Q. Thank you, ma'am, and could we now go to page 66 of the B/C/S
13 version of your hard copy. And I have the English.
14 And, ma'am, do you see in the B/C/S there is a section headed
15 "Deaths in Detention"? That would be on page 66 of your B/C/S.
16 JUDGE PARKER: Which page in English, please?
17 MS. GOPALAN: On the e-court, Your Honours, it's page 64, but in
18 the hard copy it's page 58.
19 JUDGE PARKER: Thank you.
20 MS. GOPALAN:
21 Q. Do you see that, ma'am?
22 A. Here, here I cannot see the subheading. You mean on page 66?
23 Q. Let me maybe find an easier example. Could you flick forward to
24 section 7 headed "Detentions and Arrests." So it's Chapter 7, headed
25 "Detentions and Arrests." And that's page 53 of the English.
1 MS. GOPALAN: Perhaps the usher could assist the witness with the
2 Court's leave. Chapter 7.
3 THE WITNESS: [Interpretation] I can see 8, but I can't see ...
4 MS. GOPALAN: I think it's chapter 8 in the B/C/S. Page 62.
5 Q. So you see there, ma'am, it's the chapter headed "Detentions and
6 Arrests." Correct?
7 A. Yes.
8 Q. And if you flick through, there's a section headed just arrests,
9 and if you go on, there's a reference to individual cases, and one of the
10 cases is the case of Destan Rukiqi, which is the case we've just been
11 talking about. And that is page 56 of the English. And I am interested
12 in footnote 80. And in the B/C/S if it helps, it's page 66 for you.
13 Do you see that page, ma'am? And do you see footnote 80? And I
14 will read it out to you and for the benefit of the parties. Footnote 80
16 "Judge Marinkovic has presided over a number of political trials
17 against ethnic Albanians in Kosovo in which the defendants were tortured.
18 See Human Rights Watch/Helsinki 'Persecution Persists, Human Rights
19 Violation in Kosovo,' December 1996, page 22."
20 Now, ma'am, my question to you is, do you agree that you have
21 presided over trials -- political trials against ethnic Albanians in
23 A. No.
24 Q. Very well, ma'am.
25 JUDGE PARKER: Page 56, please.
1 MS. GOPALAN: I think the correct page on the e-court for this
2 reference would be page 64 of the English.
3 JUDGE PARKER: Thank you.
4 MS. GOPALAN: So you don't agree. Let's have a look at another
5 document. And this is a witness statement of a protected witness, so I
6 believe we may have to go into private session, Your Honours.
7 JUDGE PARKER: Yes. Private. We need footnote 80.
8 [Private session]
11 Pages 13066-13068 redacted. Private session.
3 [Open session]
4 THE REGISTRAR: We are in open session, Your Honours.
5 JUDGE PARKER: Thank you very much.
6 MS. GOPALAN:
7 Q. Ma'am, this is a newspaper report dated the 23rd of June, 1999
8 And it's about an individual called Flore Brovina and the charges that he
9 faced. Now, that's just the background. What I'm interested in is the
10 reference to you in this article.
11 MS. GOPALAN: And I'd like to go to page 3 of the English and the
12 same in the B/C/S.
13 Q. Now, for the B/C/S it's the second last paragraph from the
14 bottom, and I'll read out the section that relates to you:
15 "The charges against Brovina were filed in docket number 46/99 in
16 a Pristina court with investigative Judge Danica Marinkovic presiding.
17 The Judge is widely feared in the province for decisions viewed as biased
18 in favour of the police."
19 Ma'am, were you aware at that time that this was your reputation?
20 A. This is the first I hear of it. My reputation was that of a
21 professional judge. It was nothing like this.
22 Q. Ma'am, we just saw another document in which a witness, an
23 insider witness, said that you were a policeman just like them. Doesn't
24 that suggest to you that that was also your reputation? That that was
25 your reputation that you had?
1 A. No, this is the first time I hear that that was my reputation.
2 Q. Very well, ma'am.
3 MS. GOPALAN: Your Honours, I'd like to tender this into
4 evidence, please.
5 JUDGE PARKER: Yes.
6 THE REGISTRAR: This would be Exhibit P1574, Your Honours.
7 MS. GOPALAN: And I'd like to call up P1560.
8 Q. Ma'am, this is a statement that we've already gone through, a
9 statement of Fazli Balaj, which we do not have a B/C/S translation for.
10 If you remember he was the Defence counsel if the case of Isak Aliu.
11 MS. GOPALAN: And can we go to paragraph 3 of the statement,
13 Q. And I'll read it out to you. It says:
14 "I first met Danica Marinkovic in the Pristina district court
15 around 1985 or 1986. Danica Marinkovic was an investigative judge in the
16 Pristina district court, and she often led the investigations of
17 'political cases' i.e., cases where defendants were charged with criminal
18 actions against the state brought under chapter 15 of our Criminal Code.
19 The authorities of the Republic of Serbia
20 under this law during the 1980s. I have personal knowledge that Judge
21 Danica Marinkovic took no action when she was aware that certain
22 defendants detained under her authority were subjected to physical and/or
23 psychological torture. Some of these prisoners died while they were
24 detained. In her professional capacity as a judge, Danica Marinkovic
25 applied the policies of the Serb regime rather than the law."
1 Ma'am, do you agree with Mr. Balaj that in your professional
2 capacity as a judge you applied the policies of the Serb regime rather
3 than the law?
4 A. No. This is incorrect. I can tell you that I was appointed as
5 judge in 1984. Before that I worked in civil law cases. This is the
6 extent of my learned friend Fazli Balaj's knowledge of what I did and
7 when. There were thousands of clients and statements and yet you keep
8 going back only to his statement, what about the rest?
9 Q. Thank you, ma'am. Now, we have seen a number of different
10 sources. We have seen a Human Rights Watch report, we've seen a
11 newspaper article from "The Times," we have seen a statement made by a
12 policeman, and we've also seen this statement made by Mr. Balaj. And all
13 of them seem to have reached the conclusion that you were a political
14 judge or a police judge, meaning a judge who was biased in favour of the
15 police. Why is that the case?
16 A. That is incorrect. My work was to be assessed by those superior
17 to me. If this is as they say, they could have submitted criminal
18 reports at any point for abuse of authority and that never happened.
19 Hence, I conclude that everything you have stated is untrue.
20 JUDGE PARKER: Mr. Djordjevic.
21 MR. DJORDJEVIC: [Interpretation] I would kindly ask my learned
22 friend Ms. Gopalan to be more specific. I didn't quite understand what
23 she meant when she said that the witness worked for the police as the
24 Judge. I wasn't able to grasp what the driving point was when she
25 referred to the five witness statements. What does it mean in any case,
1 that a judge is working for the police? Or in favour of the police?
2 JUDGE PARKER: I think you may have a problem there with
3 interpretation, Mr. Djordjevic. What was said in English was directed
4 toward a bias in favour of the police, rather than working for the
5 police. But the question has been put and answered and the witness has,
6 I think, understood the question correctly and answered it directly.
7 THE WITNESS: [Interpretation] The way I heard it was that I was a
8 police judge.
9 THE INTERPRETER: Defence counsel ... interpreters believe since
10 the speakers overlapped that he says this was the way it was interpreted
11 to them.
12 JUDGE PARKER: I think however the question was interpreted, the
13 answer is very much to the point and makes very clear the witness's
15 THE WITNESS: [Interpretation] Yes.
16 JUDGE PARKER: Carry on, please, Ms. Gopalan.
17 MS. GOPALAN:
18 Q. Ma'am, on the 18th when you went to conduct the on-site
19 investigation in Racak, you went to the trenches, didn't you?
20 A. No, we didn't go to the trenches first. We proceeded gradually
21 with the on-site investigation. First we went to the mosque where we
22 found the corpses. Then we --
23 Q. Ma'am, let me stop you there. My question was, on the 18th did
24 you go to the trenches? You testified extensively about the whole
25 investigative procedure. I just want to know whether you went to the
2 A. Yes, in my record of on-site investigation, it does say that
3 among other things we did that day, we visited the trenches.
4 Q. And you also tried to locate the pit or the gully where the
5 bodies had been found; correct?
6 A. What I said was that we attempted to locate the gully where we
7 saw Walker
8 corpses of those killed were located.
9 Q. Now, during this investigation, did you inspect the residents'
10 property in the village?
11 A. Firstly concerning the events in Racak, I didn't conduct the
12 entire investigation. I was only in charge of a single investigative
13 measure which is the on-site investigation. On that day we tried to
14 visit every location in and around Racak that was accessible to us. I'm
15 not sure what you mean by your question precisely, but we tried to see
16 everything there was in Racak that we could.
17 Q. Did you inspect the residents' property in the village, meaning
18 any homes? Just yes or no?
19 A. No, there was no need to inspect any property.
20 Q. Ma'am, yesterday you said that you did not see any traces of
21 shelling or of any houses being set ablaze.
22 MS. GOPALAN: And this is, for Defence counsel's reference, on
23 transcript page T-12983.
24 Q. Now, you were not on the ground in Racak during the MUP action on
25 the 15th, were you?
1 A. When the action was underway by the MUP, I wasn't there. I did
2 enter Racak on the 15th -- on the 15th though at around 2.00 p.m.
3 Q. Ma'am, if you didn't inspect the residents' property in the
4 village, how is it you say that you did not see any traces of shelling?
5 A. I still claim that we didn't notice any traces of shelling. We
6 could see the houses in the village, but there was no need to enter. I
7 simply observed the houses and I noticed there were no traces of
9 Q. Now, you were aware that international observers monitored the
10 incident at Racak on the 15th, are you?
11 A. No, I heard that in the police station when I arrived there.
12 They told me that OSCE representatives did monitor it. On the 15th when
13 I came, there were two orange vehicles used by them still up on the hill.
14 Q. And so what you saw on the 18th would be a later observation;
16 A. This was not a later observation. Since we were unable to
17 complete the on-site investigation on the 15th, on the 18th we were
18 successful in completing that procedure. As I said, we tried to see
19 everything there was to see and what we could see for safety reasons.
20 Q. But you have already said that what you saw was -- what you saw
21 from a distance, there was no need to inspect the property, so you didn't
22 see these traces of shelling up close, did you? You didn't go from door
23 to door and inspect all the homes in Racak?
24 A. Well, you know, I had no authority to enter houses through closed
25 doors. If you look from afar, you could see that there were no damage --
1 there was no damage on the house. The houses were not destroyed,
2 including the house where there had been their staff. We passed by those
3 houses but did not enter. There was no indication of any shelling and
4 you can see that in the footage as well.
5 Q. Very well, ma'am. Yesterday you testified that General
6 Drewienkiewicz tried to influence your work and prevent you from carrying
7 out your job. This is at T-12972 onwards. Now do you understand that
8 the job of the KVM and General Drewienkiewicz was to prevent fighting in
10 A. No, I don't agree with that assertion. Being aware of the text
11 of the agreement, I wouldn't say so. And there was no place for
12 Drewienkiewicz to interfere with the work of the judiciary. He was a
13 foreigner, an observer who was supposed to monitor the situation but he
14 was not supposed to mettle with the authority of an investigative judge.
15 I asked General Drewienkiewicz, if I came to you, to England
16 prevent you in the conduct of an on-site investigation would you stop me
17 from doing so? I'm sure you would.
18 Q. Now, ma'am, we have evidence in this case that it was the role of
19 the KVM to try to stop fighting between the MUP, the VJ, and the KLA.
20 Now, when you attempted to do an investigation in Racak on the 15th, you
21 were escorted by the police; right?
22 A. Yes, they were authorised to monitor, to escort. Not only me,
23 but the other members of the team as well.
24 Q. And you were also fired at; right?
25 A. Yes.
1 Q. And when you attempted to investigate again on the 16th, you were
2 escorted by the police; right?
3 A. Yes. Both on the 16th and the 17th we were escorted on the
4 police, but there were fewer of them than was the case on the 18th.
5 Q. And again on the 16th, you were fired at; correct?
6 A. Correct.
7 Q. Now, when you met with General Drewienkiewicz on the 17th, he
8 told you it would not be safe for you to enter the village with the
9 police and that the KVM should escort you instead, so as not to spark
10 further firing; right?
11 A. That is not what he said. He said that there were villagers
12 there who would be scared upon seeing the police, and then he said that
13 these villagers would open fire at the police causing another clash. He
14 asked me to accompany him alone to conduct that on-site investigation.
15 This was not allowed, and he couldn't request any such thing. The law
16 clearly prescribes who is to be present during an on-site investigation.
17 Q. And so you insisted on having the police escort, didn't you?
18 A. No. I insisted that I be allowed to conduct that on-site
19 investigation without General Drewienkiewicz trying to prevent me from
20 doing so. The only thing I asked for was that we go together. Of
21 course, the police was charged with securing the scene. It's their duty.
22 Q. So you took the police back into an area where there had been
23 fighting between the police and the KLA that had resulted in the killing
24 of 40 people; correct?
25 A. I don't understand the question.
1 Q. You took the police back to Racak on the 18th with you?
2 A. Yes, I did.
3 Q. And the police were supposed to provide you with security?
4 A. Some policemen were already in the field on the 18th to see
5 whether there are conditions in place for an on-site investigation.
6 Given that there was some sporadic firing on the 18th, we did not set off
7 before the police informed their superior that they managed in securing
8 the location, that there was no firing, and that we should get going. It
9 is true that I was accompanied by a group of policemen who were in charge
10 of providing safety for the members of the team attending the scene.
11 They were there to take care of their safety.
12 Q. Ma'am, in terms of providing you with safety, this meant that if
13 you were fired on, the police would fire back; correct?
14 A. Of course, they were there to protect me and the others. This
15 does not concern me alone. All of us who were there attending the scene.
16 Q. And that would mean another fire fight, the very thing that the
17 KVM was charged with preventing; correct?
18 A. The KVM did nothing to prevent the firing in the -- during the
19 previous three days, although we were out in the field. The KVM did
21 Q. Now, you insisted on being accompanied by the police and you were
22 fired upon again, weren't you, on the 18th?
23 A. You know what, on the 18th we were there most of that day and
24 there were OSCE representatives there on that day, three of them. Still
25 the KLA opened fire on us despite their presence. Their orange vehicles
1 were parked in the centre of Racak.
2 Q. Now, ma'am, I misspoke in my last question. I believe the
3 meeting that you had with General DZ was on the 17th and so it was on the
4 17th that you insisted on being accompanied by the police and you were
5 fired upon again?
6 A. No, no, you know what, don't put so much stress on me insisting
7 upon anything. I didn't insist upon anything. The police was there to
8 accompany us to provide security. As soon as we set out, we were fired
9 upon. The police did not return fire. We were fired at from the hills.
10 They fired upon us without any reason, or rather, the reason was that
11 they were trying to prevent us from entering Racak. On that day there
12 were no skirmishes, there was no exchange of fire. We were fired at from
13 the hills.
14 Q. So far from preventing you from doing your job, General
15 Drewienkiewicz's suggestion that you went to Racak without the police
16 would have allowed you to carry out your job without bullets flying;
18 A. Not correct. Unfortunately not. Drewienkiewicz's intention was
19 to prevent me from going to Racak to conduct that on-site investigation
20 at all. He wasn't concerned with my safety. He was concerned with me
21 going to Racak and conducting that on-site investigation. He knows why.
22 He was so upset after I told him I was to go to Racak that he insulted me
23 and left, and he was very imposing throughout. He spoke in a raised tone
24 of voice, he kept saying, you can't go there, there are villagers, armed
25 villagers. He made a scene and stormed out.
1 Q. Ma'am, yesterday you testified that the bodies you saw in the
2 mosque had shoes which looked like military boots. Some had dark grey,
3 others had navy blue military trousers, and they had military belts on
4 those trouser. This is at T-12976. Now, there has been evidence in this
5 case from General Drewienkiewicz who viewed the bodies on the 16th in the
6 gully. And he said that the bodies were in fact, in civilian clothes.
7 Now, are you saying that the bodies you saw in the mosque were
8 not in civilian clothes?
9 A. I'm saying only what I saw, and I entered that in my report. It
10 corresponds to the footage. The bodies I saw in the mosque, the 40 of
11 them, were in the items of clothing as I described. What bodies
12 Drewienkiewicz saw is something I don't know.
13 Q. Now, you also testified yesterday that Dr. Dobricanin said that
14 on one or two bodies there was damage to the head, injuries to the head
15 where the forensic experts said these had been caused by birds or animals
16 because the corpses had lain outdoors for awhile. That's at T-12976.
17 There's also been evidence from witnesses in this case, including General
18 Drewienkiewicz, that he saw one man who was decapitated and many others
19 who had been shot in the head.
20 Did you observe that when you viewed the bodies?
21 A. The bodies I saw in the mosque, the 40 of them, contained no such
22 corpses as described by Drewienkiewicz. Dr. Dobricanin is a forensic
23 expert. What he said on the spot and what I repeated was video recorded.
24 You can hear him speaking, examining the bodies, saying these injuries to
25 the head were caused by animals or birds since the corpses had lain
1 outdoors. Among the 40, there was not a corpse who had been decapitated,
2 as Drewienkiewicz would have it.
3 Q. Now, you also testified yesterday that the conclusion was that
4 the cause of death of all these bodies were injuries they sustained from
5 fire-arms, hand-held weapons, and that they had been shot at from a
6 distance. Now, we have evidence that General Drewienkiewicz and other
7 internationals saw the bodies or the bodies they viewed appeared to have
8 been shot in the head at close range. Do you agree or disagree with that
10 A. I don't. I was not able to observe the same thing
11 Mr. Drewienkiewicz did. We have the conclusions of the commission in
12 written form. The forensic experts stated their opinions. I merely read
13 out one of their sentences, one of their conclusions. The 40 bodies
14 found in the mosque which they carried autopsies of is what we had.
15 Whether there were any other casualties, I don't know. I know of no such
16 cases described by Mr. Drewienkiewicz. I only know that there was a
17 discrepancy between the number of bodies found in the mosque and the
18 number of bodies in the schedule of the indictment against Mr. Milosevic.
19 With the prosecutors we were able to --
20 Q. [Overlapping speakers] ... yesterday and I believe you answered
21 my question. Do you agree or disagree with that observation? I don't, I
22 was not able to observe the same thing Mr. Drewienkiewicz did.
23 MS. GOPALAN: I'd like to call up a video, and this is the video
24 that I mentioned early on, Your Honours. And Mr. Djordjevic had
25 requested some provenance information on the video. And what we have is
1 that it is an edited version of a video that we obtained from a human
2 rights verifier of the OSCE, someone called M. Pedersen. And the date of
3 the video is the 16th of January, 1999. When the video starts there will
4 also be further information provided about its provenance as well.
5 [Video-clip played]
6 JUDGE PARKER: Are we to have sound?
7 MS. GOPALAN: Yes, we are, Your Honours.
8 JUDGE PARKER: Well, I think we need to stop what is happening
9 and go back to the beginning and find the sound.
10 MS. GOPALAN: Your Honours, we seem to be having a problem with
11 the sound system. I wonder if I could provide the information verbally
12 and we could return to the speaking portion of the video. The rest of
13 the video is just visual, and it's not necessary to have sound.
14 JUDGE PARKER: Mr. Djordjevic.
15 MR. DJORDJEVIC: [Interpretation] Your Honours, Defence is opposed
16 to this way of establishing the authenticity of the document especially
17 as such footage, and we had a chance to see it, contains sequences that
18 differ greatly in quality especially with regard to resolution and pixels
19 as part of it are high quality, parts of it are low quality. So the
20 Defence is inclined to believe that this is -- was produced in ill faith.
21 We are not saying that the Prosecution did it, but whoever made the
22 recording should probably also testify to it. And we are also inclined
23 to submit that this should be inspected by an expert to establish the
24 authenticity of this footage, and it's a very long recording. I believe
25 the overall length is about half an hour.
1 JUDGE PARKER: Is that the case, Ms. Gopalan?
2 MS. GOPALAN: In relation to length, Your Honours?
3 JUDGE PARKER: Yes.
4 MS. GOPALAN: The total video is about 30 minutes, but I had
5 selected some clips to show to the witness, so in terms of the duration
6 of what we would be viewing in the courtroom will just be a few minutes,
7 Your Honours.
8 JUDGE PARKER: Now, have you made progress with the sound
10 MS. GOPALAN: Doesn't appear to be the case, Your Honours.
11 JUDGE PARKER: I think for practicality and to move along
12 conscious of what Mr. Djordjevic has said, we should allow the clips that
13 you wish to put to the witness to be played and to hear the witness's
14 comments, but the question of whether the video or the clips will be
15 accepted as genuine and reliable will be a question that will remain
16 alive and subject to some verification or evidence of another sort. So
17 we will certainly not receive it as an exhibit at the moment. It will
18 need to be marked if it's played, but we will allow the witness to
19 comment on it because that is the significance for the moment of what you
21 [Trial Chamber and Registrar confer]
22 JUDGE PARKER: If we play the extracted clips that you wish.
23 MS. GOPALAN: Yes.
24 [Video-clip played]
25 MS. GOPALAN:
1 Q. Now, ma'am, we can see from this video-clip on the screen that
2 this is a person who has been decapitated; correct? Did you see that?
3 A. Yes, yes.
4 Q. And now.
5 [Video-clip played]
6 MS. GOPALAN:
7 Q. Now, you would agree that this is a head wound?
8 A. Yes.
9 Q. And does this appear to have been caused by birds or animals?
10 A. I'm not an expert to comment such things.
11 Q. Now, does this appear to be military clothing to you?
12 A. Well, you know something, let us get something straight here.
13 The bodies that I found at Racak, those bodies were in the mosque. These
14 are not the same bodies that we saw here. I don't know about these
15 bodies. These two bodies, well, it's clear what happened to them. We
16 saw what they were like, but I didn't find them in Racak. I went around
17 the whole village, but I didn't see these bodies anywhere. I really
18 cannot comment. Was this footage made by an authorised person --
19 Q. You remember seeing precisely which bodies you saw? And you are
20 sure that you didn't see these bodies?
21 A. Not these. And they didn't wear such clothing. I told you what
22 kind of bodies I saw, and there is also video footage where you can see
23 how each body was dressed and what kind of clothes. I believe you saw
24 the pictures and images that we submitted as evidence.
25 Q. And this is another body that appears to have suffered a head
1 wound; correct?
2 A. I don't know. I cannot comment.
3 Q. You see that --
4 A. If they had been --
5 Q. You don't think this looks like a head wound, ma'am?
6 A. Well, I can think what I want. I can see something red here, but
7 I haven't seen the body directly. I should have -- that's necessary for
8 me to describe it. This might be red dye, but this also could be blood.
9 The bodies that you are showing me are bodies that I didn't see in Racak.
10 They weren't in the mosque where I saw and identified 40 bodies.
11 Q. Now, these bodies here, ma'am, they are not in military clothing,
12 are they? We'll have a look at that again.
13 A. Well, as far as I can tell, they are wearing civilian clothes of
14 lively colours. Some have dark trousers, but I can't really make out
15 what kind of clothes those are. This is an image that I think I first
16 saw on television when it was published by Walker. If Walker
17 to co-operate with us, I should have gone to this spot as an
18 investigating judge and established the facts with Walker rather than
20 investigations and show footage on TV and draw premature conclusions. I
21 don't know where Walker
22 MS. GOPALAN: Thank you, ma'am. Your Honours, I'll ask that this
23 video is marked for identification, and I will also note that this video
24 is referred to in the statement of General Drewienkiewicz which is in
25 evidence before this Tribunal or this Trial Chamber.
1 JUDGE PARKER: We'll, at the moment only be marked for
2 identification, Ms. Gopalan.
3 THE REGISTRAR: As Exhibit P1575 marked for identification, Your
5 MS. GOPALAN:
6 Q. Ma'am, yesterday you testified about the 40 bodies that you've
7 talked about, the 40 bodies in the mosque, and you said Dr. Dobricanin
8 inspected each body visually and immediately stated out loud that there
9 was no trace of any slaughter on those bodies. So based on a visual
10 inspection of 40 bodies in the room, the forensic expert was able to
11 declare that there hadn't been any slaughter?
12 A. That's not correct what you are saying. He directly examined
13 each body visually and he only commented by saying, I cannot see traces
14 of massacre on these bodies. He didn't use the word "slaughter," nor did
15 I relate his words in that way. He visually expected each body
16 individually and stated that there are no traces to the effect that they
17 were massacred, and later on they were autopsied to establish the cause
18 of death of each individual body.
19 Q. Now, ma'am, you then made a statement, a public statement that
20 these bodies hadn't been massacred; correct?
21 A. Depends when I said it. I don't know.
22 Q. On the 20th of January, 1999.
23 A. To who did I say that?
24 MS. GOPALAN: Let's call up 65 ter 6071, please.
25 Q. Yes, we see the article on the screen. Do you see the article
1 head "They Were Not Massacred"?
2 A. I can see the headline, but I cannot read the article proper
3 because it's illegible.
4 MS. GOPALAN: Could we zoom in, please. It's the small box at
5 the bottom, on the bottom right-hand --
6 THE WITNESS: [Interpretation] Yes, I can see it, now it's better.
7 MS. GOPALAN:
8 Q. Would you like it bigger? Are you able to read it?
9 A. I can see it now.
10 Q. Now, the English says:
11 "Danica Marinkovic said: 'The terrorist' corpses have not been
12 massacred, as the more than biased head of Kosovo Verification Mission
13 KVM William Walker has claimed."
14 Do you see that?
15 A. Yeah, well, you have read out only a part of the article, but if
16 you read it all, then the context of my statement is different.
17 Q. Do you agree, though, that -- or was that your view at the time
18 that the terrorist corpses had not been massacred?
19 A. It wasn't my view. I had a direct look at the bodies that we
20 found in the mosque and Dobricanin as an expert stated his opinion that
21 there were no traces to that effect. But, of course, I added that the
22 cause of death would be established by an autopsy, so it isn't my view,
23 or my opinion, or my conclusion.
24 Q. So at this stage the autopsies hadn't been completed yet;
1 A. On the 19th, the autopsies started. On two or three bodies the
2 autopsy had already been performed.
3 Q. And you hadn't been able to locate the pit or the gullies where
4 the bodies had been found, the location that Walker had indicated in the
5 broadcast; correct?
6 A. Correct. We were unable to find the location or the bodies.
7 Q. And you didn't interview any survivors, did you?
8 A. When, on the day when I conducted the on-site investigation?
9 Q. Yes.
10 A. No. Because we didn't meet anyone in the village. The village
11 was empty. And I had no right to speak to them. I could only take the
12 personal information of anyone who was an eye-witness, but we didn't find
13 anybody in the village.
14 Q. And yet you made this statement or you held the view that there
15 hadn't been a massacre. Now, does that strike you as an objective
16 investigation, ma'am?
17 A. Well, you know, Madam Prosecutor, Walker gave a statement that
18 the bodies had been massacred and he had no evidence to support that or
19 he didn't conduct an on-site investigation. And when I said that he
20 didn't say the truth, I wanted to express that there was a different
21 opinion and that the forensic medicine expert already had stated that
22 there had been no massacre. So I don't see that what I say is all that
24 Q. My apologies. Now, the forensic expert that we have seen, that
25 was based on his visual examination, and we are not talking about Walker
1 at the moment, ma'am. We are talking about the investigation you
2 conducted. And I put to you, ma'am, that you did not conduct an
3 objective investigation and the purpose of your investigation was to
4 clear the name of the MUP. Do you agree or disagree?
5 A. You cannot claim that because you don't know what I did. And
6 secondly, I say that Walker
7 judicial bodies present. And he had no right to say that there had been
8 a massacre before the facts are established. Because it serves no one,
9 not you, not me. And I was an investigating judge who merely conducted
10 an investigative activity, an investigative measure, not an entire
11 investigation. It was merely an on-site investigation.
12 MS. GOPALAN: Thank you, ma'am. Your Honours, I believe it's
13 time for the break.
14 JUDGE PARKER: It's over time. We will resume at five minutes
15 past 6.00.
16 [The witness stands down]
17 --- Recess taken at 5.36 p.m.
18 --- On resuming at 6.11 p.m.
19 MS. GOPALAN: Your Honours, while the witness is being brought in
20 I am reminded that I did not tender the last newspaper Article, 06071 and
21 I'd like to have that admitted into evidence, please.
22 JUDGE PARKER: It will be received.
23 THE REGISTRAR: This will be Exhibit P1576, Your Honours.
24 MS. GOPALAN: And the sound issue with the video has been
25 resolved as well, Your Honours, so I'll play the beginning of the video
1 which provides information --
2 JUDGE PARKER: Do you expect to be long now with the witness?
3 MS. GOPALAN: My estimate would be another half-hour or so, Your
5 JUDGE PARKER: I wonder whether we might finish tonight.
6 MS. GOPALAN: I'm hopeful.
7 JUDGE PARKER: You are hopeful you will finish but Mr. Djordjevic
8 may need some time.
9 [The witness takes the stand]
10 JUDGE PARKER: Ms. Gopalan.
11 MS. GOPALAN:
12 Q. Ma'am, the bodies that you saw in the mosque on the 18th, now,
13 these were the bodies that had been killed in Racak on the 15th; correct?
14 A. You know what, I cannot assert with any certainty that these were
15 the bodies. I found them in Racak and I suppose they had been killed on
16 the 15th.
17 Q. Let's move on to the video that we were viewing just before.
18 MS. GOPALAN: If I could call that up, it's P1575.
19 [Video-clip played]
20 MS. GOPALAN:
21 Q. Now, ma'am, the video that has just been played, the information
22 provided states that this was a video that was taken in Racak on the
23 16th. Are you aware that the KVM went to Racak on that date; correct?
24 A. That day in the evening, you could see it on TV. I can see this
25 footage here as well. However, this was done by unauthorised staff who
1 entered Racak without any state institution representatives.
2 Q. Yes, ma'am. And as the video is played --
3 MS. GOPALAN: If we could have a look at it, it's just a short
5 [Video-clip played]
6 MS. GOPALAN:
7 Q. Now, I represent to you that this is what was seen by the KVM on
8 the 16th. These were the bodies that were seen by William Walker on that
9 day. Ma'am, if you had seen what the KVM saw on the 16th, what we are
10 just viewing now, would you have said that a massacre had occurred?
11 A. I can only tell you that I'm not an expert to ascertain that.
12 Neither was Walker
13 autopsies in order to establish the cause of death.
14 Q. Ma'am, we went through a newspaper report and based on your
15 testimony yesterday as well where you declared that a massacre hadn't
16 occurred even before you conducted an autopsy; correct?
17 A. It is not, Madam Prosecutor. I have said it a number of times,
18 the bodies of those whom we found in Racak were not the same as the
19 bodies shown to me now. As an investigating judge, I can also put the
20 question of about whether these people were actually killed there on the
21 spot or were they brought from somewhere else. There is a degree of
22 suspicion, of course, because Walker
23 of state institutions. Had we done this jointly, we would have been able
24 to provide a joint conclusion. As for what I could see in Racak in the
25 mosque, the 40 bodies there, not a single body had any traces of
1 slaughter. Speaking from my experience, I can say that, and there was
2 also a forensic expert there who was the person authorised to provide an
3 opinion on that.
4 Q. Thank you, ma'am. Is this professor Dobricanin that you are
5 referring to?
6 A. Yes, he was there throughout the on-site investigation.
7 MS. GOPALAN: Your Honours, I would like to tender this clip into
9 JUDGE PARKER: We'll leave that question for the moment. In view
10 of what has been raised by Mr. Djordjevic, we'll consider that at a later
11 time. We are not dealing with that question now, Mr. Djordjevic, we are
12 leaving it until a later time. Are you moving on, Ms. --
13 MS. GOPALAN: Yes, yes, I am, Your Honours.
14 Q. Now, ma'am, you gave a statement to this Tribunal in 2002;
15 correct? We can call it up for you to have a look at it. It's 06082.
16 A. If you mean the statement I gave to an investigator of the
17 Prosecution, I think it was in 2002.
18 Q. That's right, ma'am. It's 06082. Now, that was about three and
19 a half years after the Racak incident; correct?
20 A. Could I have the statement placed on the screen, please.
21 Q. It's being called up, ma'am, we have asked for it.
22 A. Very well.
23 Q. So the statement that you gave in 2002, you seem to remember it,
24 and you say that was about three and a half years after events in Kosovo;
1 A. In 2002, yes.
2 Q. Now, did you have an accurate memory of the events in Kosovo in
4 MS. GOPALAN: I see that the statement is not up yet.
5 THE WITNESS: [Interpretation] In 2002 I was no longer in Kosovo
6 and Metohija, therefore, I cannot tell you exactly what was taking place
7 there. I'm not even sure what you are interested in precisely. If I
8 have any knowledge of it, I can share it with you. But I wasn't in
9 Kosovo any longer. I was interviewed by a Hague investigator in
11 MS. GOPALAN:
12 Q. Now, we have the statement on the screen, ma'am, and we see that
13 you have signed this statement. I represent to you that you have signed
14 every page of it.
15 MS. GOPALAN: And if we could go to the end both in the B/C/S and
16 the English.
17 Q. You have certified the statement as being accurate.
18 A. Could I please see the contents. I can only see the front page.
19 Q. Do you see the final page, ma'am?
20 A. Yes, I can.
21 Q. And your certification that this statement is accurate?
22 A. Yes.
23 Q. And were you accurate and truthful in the statement, ma'am?
24 A. Certainly.
25 Q. You testified before this Tribunal in the Milosevic case; right?
1 A. Yes, I did.
2 Q. And when you testified there, you took an oath to tell the truth?
3 A. Yes.
4 Q. And that was in 2005, so about six years after the events in
5 Kosovo; right?
6 A. Yes.
7 Q. And did you do your best to give an accurate and complete picture
8 or to provide accurate and complete information to the Court in the
9 Milosevic case?
10 A. Yes.
11 Q. Ma'am, in your 2002 statement and in your Milosevic testimony,
12 you gave evidence about the Racak investigation; right?
13 A. Yes.
14 Q. And you've already said that you testified correctly and
15 truthfully, and you also testified about events on the 18th of January in
16 Racak; right?
17 A. Yes.
18 MS. GOPALAN: Could I call up 65 ter 3115, which is this
19 witness's Milosevic testimony. Page 107. Could we go to the next page,
21 Q. Now, it says here:
22 "On the 18th, in addition to our team and OSCE representatives,
23 there were many representatives of foreign and local media."
24 Now, ma'am, you are being examined by Mr. Milosevic here, and
25 this is in relation to events in Racak. So you say:
1 "On the 18th, in addition to our team and OSCE representatives,
2 there were many representatives of foreign and local media."
3 "Q. You mentioned that already. Was there anyone else?
4 "A. I don't know who you mean. I can't think of anyone at the
6 "Q. I don't mean anyone in particular. I'm just asking."
7 Now, you didn't mention General Djordjevic being in Racak on the
8 18th, did you?
9 A. That is correct, I wasn't asked about him at the time. Regarding
10 the 18th and the presence of media representatives, that is correct, but
11 they were present on the spot when we entered Racak.
12 Q. So you didn't mention General Djordjevic being in Racak on the
13 18th because you weren't asked about him at that time.
14 MS. GOPALAN: Could we have a look at your statement again.
15 THE WITNESS: [Interpretation] General Djordjevic was not in
16 Racak. I never said so.
17 MS. GOPALAN:
18 Q. Now, you didn't mention General Djordjevic being in the Stimlje
19 police station on the 18th, did you, in the Milosevic case?
20 A. I didn't, that is correct. No one asked me about it, and I
21 didn't find it necessary to mention. I didn't even mention Mitic being
22 there. I didn't mention anyone in particular. I didn't mention the
23 chief Janicijevic either.
24 Q. Now if we could have a look at your statement again.
25 MS. GOPALAN: And that is 06082. And if we go to page 12.
1 Q. I'll read out the paragraph for you.
2 A. But I can't see the heading of this. What is this? It says
4 Q. Yes, ma'am, this is your statement that we just saw shortly, the
5 one that you provided to the Tribunal in 2002. And in the English, I'm
6 looking at the paragraph on page 12 that begins with: "On the 18th of
7 January..." and in the B/C/S, that's on page 9.
8 A. But I can't see a paragraph starting with the 18th.
9 Q. It's at the bottom of the page currently on the screen, ma'am.
10 A. Oh, yes, now I see it.
11 Q. And we'll move it shortly to the next paragraph, to the next page
12 so you are able to read it in full. Now, let me read this paragraph. It
14 "On 18th January, 1999, I travelled from Pristina to Stimlje
15 police station with the Prosecutor Dragomir Zivic and Professor
16 Dobricanin. I did not go to any other police station other than Stimlje.
17 There we met inspector Srecko Dabetic --"
18 A. This isn't what the translation says. The sentence starts "there
19 we met," that is, the last sentence you read out is missing from the
21 MS. GOPALAN: We can move on to the next page, please, of the
22 B/C/S and stay on the same page of the English.
23 Q. Do you see it there now?
24 A. Yes. At the top it starts "there to collect evidence at the
1 Q. I'll follow on with the English which reads:
2 "There we met inspector Srecko Dabetic and Sasa LNU, crime
3 technician from SUP Urosevac. (These are the names that I could not
4 remember yesterday). There was another crime technician, Mica LNU, who
5 was there to video record the on-site evidence. I asked the duty
6 policeman what the situation was like during the night, if there had been
7 any shooting throughout the night and the morning, and he said it had
8 been peaceful. The police did not tell me that the mosque was secured
9 and under police security or how many bodies were in there. With this
10 information of no provocation, I decided that we would enter Racak at
11 about noon
12 Now, ma'am, in this statement you provide great detail on who was
13 in the Stimlje police station on the 18th. You mention the Prosecutor,
14 you mention a professor, you mention an inspector, and you mention two
15 crime technicians. And you are telling us now that you did not mention
16 that the chief of the RJB, Mr. Djordjevic, was also there?
17 A. You know something, let's clarify this. What I said here in the
18 statement where I mention the names of those present, this refers to the
19 members of the on-site investigation team because Dabetic is an inspector
20 of general crime of the Urosevac SUP. He is one of the members of the
21 on-site investigation team. The other persons are crime technicians
22 also, members of the on-site investigation team, and they are mentioned
23 in my on-site investigation report as being with me all the time.
24 General Djordjevic was not a team member, nor did he have any authority
25 with regard to the on-site investigation. He came to speak to his
1 colleagues, to the chief of the secretariat, and check whether the
2 situation on the ground was peaceful for the on-site investigation to
3 take place. He came when we were already upstairs where there was also
4 the chief of the secretariat and the chief of the department of the
5 police. He briefly spoke to his colleagues, inquired about the situation
6 in the field and we got up.
7 General Djordjevic didn't interfere with the work nor was it
8 necessary for me to mention him in the on-site investigation report
9 because he wasn't a team member or couldn't be present in any capacity.
10 And nor did anybody ask me about him until my examination here began.
11 But these people here who are team members, they were present. I said
12 the truth. Take a look at my report and you will see that the same
13 persons are mentioned in the on-site investigation report.
14 Q. So, ma'am, in a statement you gave to this Tribunal and in
15 previous testimony to this Tribunal, what events in relation to Racak
16 were discussed, you simply failed to mention that the chief of the RJB
17 was present at the Stimlje police station on the 18th?
18 A. You know, I didn't fail to mention that. I considered it as a
19 piece of non-essential information. It didn't occur to me that it would
20 matter to this Court that I mention General Djordjevic. But I have said
21 the truth in every statement I have given, but nobody has asked me about
22 him until now.
23 Q. Ma'am, given that the conflict in Racak was a high-profile case,
24 high-profile incident, it was in the media, and it was a conflict
25 involving the police, you considered it a non-essential piece of
1 information to say that the head of the RJB was in the Stimlje police
2 station on the 18th of January?
3 A. Well, you know, he is not the only one I didn't mention. I
4 didn't mention the chief of the secretariat or the chief of the
5 department of the police, and I don't think that is essential information
6 because the incident that happened in Racak was in the morning hours of
7 the 15th, and I went to the on-site investigation from the 15th to the
8 18th and I set out to go there every morning on those days.
9 Q. So, ma'am, until yesterday you have never told this Tribunal that
10 General Djordjevic came to the Stimlje police station on the 18th of
11 January, have you?
12 A. No, I haven't. Nobody asked me. I didn't consider that
13 essential. And that applies not only to him but to other persons as
15 Q. Thank you, ma'am.
16 MS. GOPALAN: Your Honours, I'd like to tender the Milosevic
17 testimony and the statement into evidence, please.
18 JUDGE PARKER: You mean the whole of the Milosevic testimony?
19 MS. GOPALAN: Perhaps just the portion that I showed to the
20 witness, Your Honours.
21 JUDGE PARKER: What pages were they?
22 MS. GOPALAN: Pages 107 to 108, please.
23 JUDGE PARKER: They will be received. The statement will also be
25 THE REGISTRAR: This will be Exhibit P1577 and P1578, Your
2 MS. GOPALAN:
3 Q. Now, you said that the reason you hadn't told this Tribunal about
4 General Djordjevic's presence in the Stimlje police station was because
5 "nobody asked me." Now, ma'am, during your testimony yesterday no one
6 asked you either. In fact, you just volunteered this information, didn't
8 A. I mentioned it because I knew it was important because I prepared
9 for my testimony by the Defence, and I reviewed the evidence and the
10 statements in this trial.
11 Q. Now, ma'am, did you also mention it because you are aware that
12 this is a contested issue in this case?
13 A. No, I didn't know it was contested, but during the proofing with
14 the Defence counsel about the question to be asked, to be -- this arose
15 as an issue in that it's important to mention, and that's why I reckoned
16 I should mention it.
17 MS. GOPALAN: Your Honours, I have no further questions for this
19 JUDGE PARKER: Thank you very much, Ms. Gopalan.
20 Mr. Djordjevic.
21 MR. DJORDJEVIC: I have some problem with this microphone. Now,
22 it's okay.
23 Re-examination by Mr. Djordjevic:
24 Q. I believe we will be able to conclude this witness's testimony
25 today and that is why I ask you, Ms. Marinkovic, to provide brief answers
1 to my questions.
2 I tried to shed light on as many details as possible in my direct
3 examination about the situation in Kosovo and Metohija and about the job
4 of an investigating judge. Concerning the fact that my learned friend
5 Ms. Gopalan insisted on the injuries sustained by -- or claimed by
6 Mr. Balaj and others, let me ask you, do you have the right to conduct an
7 investigation outside the request to conduct an investigation by the
8 public prosecutor?
9 A. I cannot see the interpretation.
10 No, I don't have that right.
11 Q. Thank you. Secondly, we saw that those injuries were, in fact,
12 light injuries. Since the criminal report was filed by the police or
13 alternatively if the police did so, or sorry, the defence counsel of any
14 of these persons did so, is there the possibility in that the Criminal
15 Code of Serbia
16 light injuries?
17 A. Yes, in the Serbian Criminal Code there is such a criminal
19 Q. And which court is -- has subject matter jurisdiction for light
21 A. I cannot see the translation on the monitor.
22 The territorial jurisdiction and the subject matter jurisdiction
23 for light bodily injuries are with the municipal court.
24 Q. Thank you. And even if a criminal report had been filed, were
25 you in a position to conduct an examination into that as an investigating
1 judge of the district court?
2 A. No.
3 Q. Thank you. My second question, we heard hearsay incriminations
4 that you are a judge who favours the police. Please explain to this
5 court whether you as an investigating judge at the time acted upon the
6 request of the police or upon the request of the district public
8 A. As investigating judge, I always acted upon the request of the
9 district public prosecutor.
10 Q. Did the police have any authority to manage the proceedings and
11 have such a request of you?
12 A. No.
13 Q. Did any government body have such authority?
14 A. No.
15 Q. My following question has to do with another question of my
16 learned friend Ms. Gopalan. Is it required for you to be the only
17 authorised person, if you run an investigation, to grant permission to
18 forward the accused person to be visited, or can that be done by one of
19 your colleagues in your absence?
20 A. Yes, in my absence, another colleague can do that. And since
21 there were many cases and many accused persons, there was a court clerk
22 who was in the position to give such permits to lawyers and family
23 members, so that this administrative job was done by a clerk rather than
24 a judge.
25 Q. Thank you. Now this is clear also. Ms. Marinkovic, or Judge
1 Marinkovic, please answer me, when you said that Mr. Walker shouldn't
2 have done what he did in the field and we know that my learned friend
3 says that that footage was produced during an investigation of their own,
4 is there a problem that amounts to the destruction of evidence, moving
5 bodies about, was that problem raised immediately after you arrived at
6 the site on the 18th? I am not saying the 15th.
7 A. Yes.
8 Q. Thank you. Tell me, did Mr. Drewienkiewicz mention the existence
9 of the KLA, or rather, of KLA members at the site in Racak at all? Did
10 he tell you that KLA members were there?
11 A. No, he said villagers. He said armed villagers. He never
12 mentioned KLA members.
13 Q. With no single word about the KLA?
14 A. No.
15 Q. But we have very little time left so I won't go back to the
16 names, but you say that on the 18th OSCE representatives, or rather the
17 KVM were present too; right?
18 A. Yes.
19 Q. Did they mention that?
20 A. No.
21 MR. DJORDJEVIC: [Interpretation] Thank you. Since the Defence
22 is not currently in the position of that videotape, we have an agreement
23 with the Prosecution to enable the Trial Chamber to play two video-clips
24 upon the request of the Defence. The first clip with regard to that
25 footage, but we will not agree yet to it being admitted as evidence, is
1 from 17 minutes 18 seconds to 17 minutes 31 seconds. Can we see that on
2 our screens, please. Is that possible, Madam Prosecutor? It seems to be
4 JUDGE PARKER: Could I indicate to help you, Mr. Djordjevic, that
5 we realise that we may be asking too much of you to finish tonight so
6 that can you have time tomorrow as well, if you need it.
7 MR. DJORDJEVIC: [Interpretation] To be honest, if I could be
8 given an additional 20 minutes, that would contribute to clarifying many
9 issues, and I don't have 20 minutes today. Of course, I will agree to
10 continue tomorrow, I'm very grateful to the Chamber for that.
11 JUDGE PARKER: You would like to watch the video now? Play the
12 video now? Tomorrow? It's proposed that we adjourn a few minutes early
13 and continue tomorrow which in fairness seems appropriate. We must ask
14 you to come again tomorrow, I am afraid. We resume at 2.15 tomorrow.
15 [The witness stands down]
16 --- Whereupon the hearing adjourned at 6.52 p.m.
17 to be reconvened on Friday, the 19th day of March,
18 2010, at 2.15 p.m.