1 Monday, 16 February 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.09 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in the courtroom. This is case number IT-06-90-T, The
9 Prosecutor versus Ante Gotovina, et al.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 [Interpretation] Good morning, Mr. Baccard.
12 THE WITNESS: [Interpretation] Good morning, Your Honour.
13 JUDGE ORIE: [Interpretation] We'll now resume the
14 cross-examination today, and I would like to tell you that the solemn
15 declaration that you made is still in force, of course.
16 Mr. Kehoe.
17 MR. KEHOE: Thank you, Mr. President.
18 WITNESS: ERIC BACCARD [Resumed]
19 [Witness answered through interpreter]
20 Cross-examination by Mr. Kehoe: [Continued]
21 Q. Good morning, Doctor. Good to see you back.
22 Doctor, we left off several days ago talking a little bit about
23 post-mortem and pre-mortem injuries. And in my discussion with you on
24 that score, you noted in discussing your report which is P2314.
25 MR. KEHOE: And, Mr. President, if I may, I think the doctor had
1 a copy of his report prior to that. It may be expeditious if we could
2 provide him with that so he could page through.
3 JUDGE ORIE: Do we still have a hard copy, Mr. Margetts?
4 MR. MARGETTS: Mr. President, apologies, I don't have one to
6 JUDGE ORIE: If you could -- if someone could provide. If not,
7 then we will have to do it on the screen. But if someone has a copy
9 MR. MARGETTS: Mr. President, I will just search the other
10 binders that we have with us, but I'm not hopeful at this stage.
11 MR. KEHOE: Nevertheless, Mr. President, I will proceed. I
12 think that we --
13 JUDGE ORIE: If you provided, and if meanwhile someone tries to
14 find a hard copy for Mr. Baccard.
15 Please proceed.
16 MR. KEHOE:
17 Q. Doctor, I noted during the course of your testimony, and this is
18 on page 15794. At line 2, you noted that:
19 "I believe that I must remind that you my report is a monitoring
20 report, is a report of a monitor. I was present there in order to give
21 my opinion on the quality of work undertaken by my Croat colleagues, and
22 this is not an expertise report. This is a report drafted by an expert
23 on the expertise that I did not carry out myself."
24 Moving down a bit to line 10 -- 9:
25 "So these are elements taken into account, but I, myself, did not
1 have to make any -- make -- to make any this particular observation as to
2 this. My report was rather -- internal report. It was made for the OTP,
3 and I never thought, or did not think, that would be produced
4 subsequently to the Chamber. This is not an expertise -- a report. I
5 draft expert reports that are completely different. This is a technical
7 If I can explore that commentary or testimony with you just a
8 bit, Doctor. Do I understand you to say that the report that you had was
9 merely pointing out different things that you observed during the course
10 of these pathology examinations and other items that the Office of the
11 Prosecutor might want to look into, but was not intended to substitute
12 your opinion for the opinion of the pathologist who did the autopsy.
13 A. Well, the purpose of this report was to give my opinion as to the
14 scientific validity of the reports made by the Croat experts.
15 Q. Well, was your opinion intended to be taken by the Chamber as a
16 substitute for the opinion rendered by the pathologists who did the
18 A. When I took part in this mission, in this observation mission,
19 there was absolutely no intention at the moment of doing anything for the
20 Trial Chamber. I was working for the OTP, as I told you.
21 Q. Maybe I wasn't clear in my question.
22 You noted during the course of your testimony that if this had
23 been an expert report, you would have done a much more detailed and
24 thorough job. So my question for you is: Did your commentary, or did
25 you intend your commentary on the work of the pathologists to be accepted
1 by the Trial Chamber as a substitute for the opinion of the underlying
2 pathologist, or the pathologist who did the autopsy?
3 A. I don't think that I was clear in my answer either.
4 When I took part in this mission, when I was in the observation
5 mission, I did not have the Trial Chamber in mind at all because my
6 report was for the OTP. It was a technical report for the OTP.
7 Q. Okay, sir. So the answer to the question was your commentary
8 meant to substitute for the opinion of the underlying pathologist, the
9 answer to that question is, no, it was not intended. Is that right?
10 MR. MARGETTS: Mr. President, that is it not an accurate summary
11 of the answer.
12 MR. KEHOE: Mr. President, maybe I'm not asking the question
13 clearly enough. I'm not really -- maybe I'm not being doing well as it's
14 being translated, I'm not sure.
15 JUDGE ORIE: There are several elements in your question,
16 Mr. Kehoe, and that might confuse the witness.
17 First of all, what kind of use to be made of his report in Court
18 and how we should consider it is, of course, not for the witness to
19 consider. Because whether it stays in the hands of the Office of the
20 Prosecution, whether it's sent to the Court, whether the Court considers
21 this to replace the expert opinion by those who performed the autopsies
22 is not something I think -- that's what the witness explained to us, is
23 not something was on his mind at the time.
24 Therefore, I think you couldn't summarize the answer as you did,
25 so please put your next question to the witness.
1 MR. KEHOE: Yes, Your Honour. My sole intent, and I will move
2 on, was just finding out exactly what the Trial Chamber is supposed to
3 rely on for expert testimony or expert evidence that is being presented
4 by -- [Overlapping speakers] ...
5 JUDGE ORIE: We then try to cut this short.
6 Mr. Baccard, was it your intention at the time to verify the
7 scientific quality and merits of the autopsy performed by others and was
8 not your role, that is not to say that your opinion would be -- would
9 replace their opinion, but your opinion just gave an assessment of
10 quality, reliability of -- mainly of the conclusions where you had not
11 performed the autopsies yourself.
12 THE WITNESS: [Interpretation] Yes, absolutely, Your Honour.
13 JUDGE ORIE: [Previous translation continues] ...
14 MR. KEHOE: Thank you, Mr. President.
15 Q. Doctor, you didn't perform any of these autopsy, did you?
16 A. During this mission, no.
17 Q. Doctor, if we can turn your attention to -- back to Dr. Clark's
18 report. That's P1251.
19 MR. KEHOE: And if we can go to the fourth page of that document.
20 Q. In the -- in the fourth paragraph down and under the heading
21 deciding whether injuries found had occurred before or after death,
22 Dr. Clark notes that:
23 "Strictly speaking, therefore, in these decomposed and often
24 incomplete bodies with no soft tissues in which to see bruising, and no
25 body cavities in which to find internal bleeding or disrupted organs, it
1 was virtually impossible to be certain that any injury found necessarily
2 occurred in life, and theoretically all of them could have occurred after
3 death, even the very obvious gun-shot injuries."
4 Now, Doctor, of course, Dr. Clark is talking about basically
5 skeletonized remains with no soft tissue and no body cavities to find
6 internal bleeding. But with that information, do you agree with that
7 statement presented to this Trial Chamber by Dr. Clark?
8 A. Well, regarding the difficulty of determining whether the wounds
9 were anti-mortem or post-mortem on skeletal remains, yes, I must agree.
10 It is very difficult to do so. But it's all a case-by-case system.
11 Anyway you have to look at things on a case-by-case basis.
12 Q. Now, shifting gears a bit to causes of injuries. Again, we've
13 talked earlier about the fact that there was a significant passage of
14 time involved here, and you were dealing with skeletonized remains many
15 times. And would you agree, Doctor, that it was difficult, extremely
16 difficult, to actually ascertain what the cause of injury actually was?
17 A. Well, I would have to refer to the reports. If I remember right,
18 the bodies were in different states of conservation, sometimes they were
19 putrefied, sometimes they were skeletal remains. I need to take a look
20 at my report in order to answer because it does depend on the status of
21 each body. I can't give a general answer.
22 Q. Let's do that, Doctor. We'll explore some of the items that the
23 Prosecutor has put on the clarification schedule as people who are
24 killed, and will analyse those.
25 MR. KEHOE: And if we can take a look at, first P1556. P1556.
1 And, for the record, this is number 58 on the clarification
2 schedule of bodies killed.
3 Q. In this particular exhibit, as we go through the manner of death,
4 there is, as can you see there, no signs of trauma, and the cause of
5 injury is unknown.
6 Now, in this particular instance, and I will tell you, Doctor,
7 that just reading your three-line analysis of this, you say that -- and
8 this is on page 66 of your report, which is P2314. In the spirit of
9 expediency, Your Honour, if I can read three lines, as opposed to
10 bringing it up on the screen, it may be quicker.
11 "My notes are consistent with Dr. Definis-Gojanovic. The cause
12 of death is unknown, and no data can be obtained from the examination of
13 clothes and of the photograph taken after death."
14 So with regard to this particular exhibit, and we have others
15 there are quite of - we'll go through those - where it remained unknown,
16 you agreed that the cause of death was unknown, as the underlying
17 pathologist opined.
18 So in this particular instance, for example, you cannot exclude
19 death from natural cause, could you?
20 A. In this specific case, I don't have my report at hand, but I
21 believe that what you have just read is exact. But thank you for giving
22 me the report now.
23 Q. [Previous translation continues] ... Yes. And, Doctor, and what
24 I'm talking about, if you can turn to page 66 of your report. This is
25 the -- your analysis of 04/011.
1 A. Yes.
2 Q. Okay. So once again my question for you is in this -- because
3 the cause of death is unknown, and for instance, there is no signs of
4 trauma, you can't exclude death by natural causes, can you?
5 A. I can't exclude any cause of death, just like my colleague did.
6 Q. [Previous translation continues] ...
7 JUDGE ORIE: You're putting twice now the same question, even
8 without putting that question. If the cause of death is unknown, this
9 Chamber understands that it could be anything, including natural death
10 and at least there are no signs, there's no trauma, so that's perhaps
11 even more -- more likely or at least that it's an open possibility.
12 MR. KEHOE: And I think, Mr. President, with all due respect, and
13 I agree with the chamber entirely, the question, of course, is why with
14 these pathological reports being in the possession of the Prosecutor, we
15 find these in the killing schedule that has been presented to the
17 JUDGE ORIE: And do you think that this expert witness could
18 answer that question?
19 MR. KEHOE: I think the answer to the question is, if in fact he
20 says that with all of these -- and I have just a sampling of a half a
21 dozen, and there are more. A sampling of these where the cause of death
22 is unknown, and then he cannot exclude natural causes - in fact there is
23 some in here that reflect natural causes - that they are -- obviously the
24 Prosecution cannot prove that these were in fact killings and natural
25 deaths. [Overlapping speakers] ...
1 JUDGE ORIE: [Overlapping speakers] ... let's -- let's stick to
2 what this expert can tell us. And he has told us, and I take it,
3 Mr. Baccard, that would be true for the others as well, that if the cause
4 of death is unknown that you could not exclude and there may even be
5 signings for --
6 THE WITNESS: [Interpretation] Absolutely.
7 JUDGE ORIE: [Previous translation continues] ...
8 MR. MARGETTS: Mr. President, if I may, it may be helpful given
9 that the rationale of the Prosecution is being raised by my learned
10 friend. First to look at the specific example.
11 JUDGE ORIE: Is it a matter that we can discuss in the presence
12 of the witness or the expert?
13 MR. MARGETTS: Yes, Your Honour.
14 JUDGE ORIE: [Overlapping speakers] ... If you start
15 interpreting what he ...
16 MR. MARGETTS: Yes, there are other matters in the autopsy report
17 which are reflective of certain conclusions that may be helpful.
18 JUDGE ORIE: Something for re-examination.
19 MR. MARGETTS: Possibly for re-examination, or since it is in
20 evidence, I just invite my learned friend if he is going to be pursuing
21 this line of cross-examination that he be inclusive in the references he
22 makes to the indicia of killing in the reports.
23 JUDGE ORIE: We have heard similar invitations from -- going from
24 one side to the other. If Mr. Kehoe fails to do so, I'm quite confident
25 that will you do it.
1 Please proceed.
2 MR. KEHOE: Mr. President, with all due respect, I thought that
3 Your Honour was asking me not to go through these unknowns because the
4 witness could not exclude that manner of death.
5 JUDGE ORIE: If you just want to stick to the unknowns, and that
6 was what your questions were about at this moment, then Mr. Margetts at a
7 later stage might find it interesting to look at other matters. And he
8 is free to do so.
9 Please proceed. But to ask the witness not only two times, but
10 seven or eight times whether --
11 MR. KEHOE: Mr. President --
12 JUDGE ORIE: [Previous translation continues] ... an unknown
13 cause of death means that you can't exclude death by natural causes, I
14 think that's understood better.
15 MR. KEHOE: With all due respect, Mr. President, I asked him
16 twice, and I simply asked him the second time after the witness had the
17 opportunity to review his report, as I'm sure the Chamber saw the
18 courtroom deputy giving it to him.
19 JUDGE ORIE: You may proceed.
20 MR. KEHOE: Yes.
21 Q. The next report is 1557. And for you, Dr. Baccard, it is 04/021.
22 Again, if we put that on the screen, which is a P1557, this is a
23 document that -- an autopsy that again notes that there are no visible
24 signs of injuries. And if we could move to the -- the anthropological
25 analysis, it notes that this person has been disabled for a long time.
1 If we turn to page 2 of this, again, there is no evidence of any
2 gun-shot wounds. And I believe in your report, on page 66, no particular
3 remark can be done on this case because the cause of death remains
5 Again, we have a situation where cause of death from natural
6 causes can not be excluded. Is that right, sir?
7 A. Well, regarding -- as far as forensics are concerned, no cause of
8 death can be excluded, including natural death, of course.
9 MR. KEHOE: P1691.
10 Q. This is another document that says no traces of injuries found on
11 the body. The cause of death unascertained. I believe that ... your
12 actual autopsy report is consistent with an unascertained cause of death.
13 Is that correct, sir?
14 A. This is not my autopsy report but the autopsy report of
15 Dr. Petrovecki. And regards the answers, I confirm that I agree with the
16 fact that this cause of death was not ascertained.
17 Q. Now let me show you as part of this document, the information on
18 the body that was contained.
19 MR. KEHOE: And if we can ask to open X016-4905, and I do believe
20 that additional translation is needed in that.
21 Q. Now, this is an information sheet, Doctor, that was -- I
22 understand was provided to you when you were -- these bodies were being
23 examined, and subsequently it was made a part of this file. Is that
25 A. I do not recall having seen a file of this type regarding the
1 identification of the body of this victim.
2 Q. Did you see similar reports such as this?
3 A. A file of this type or a report of this type, no.
4 Q. So I take it if we can just scroll down on this sheet for this
5 person, so I take it that you didn't see, for instance, in line 13 where
6 determined or supposed cause of death is the natural cause of death.
7 A. Not my recollection, no. I do not recall having seen this
8 document, sir.
9 Q. Let us turn to P1555. P1555.
10 And you examined this on page 34, I believe, of your report. We
11 have the anthropological report and the autopsy is -- it says no visible
12 signs of injury, and the cause of death is unknown.
13 Now, in your actual report, you note that basically to paraphrase
14 what you have, since a bullet was found in the pants, that the gun-shot
15 wound -- that you could hypothesize, or these facts suggest that the
16 victims contained gun-shots possibly concerning the soft tissues. This
17 is it only a hypothesis.
18 Do you see that, sir?
19 A. Yes, I do.
20 Q. Now, with regard to that the actual cause of death in this
21 remains unknown because you couldn't view any organ damage for this body
22 to come to any final conclusion on this, other than the fact that given
23 there are no visible signs of injury, we can't make a determination on
24 cause of death.
25 A. I will have to specify my answer.
1 With regard to the forensic analysis, the body was partially
2 putrefied and partly skeletonized, and this did not allow to us see which
3 were the traumatic lesions on the body. So I have to answer if I base my
4 answer on the analysis of the body there was no traumatic lesions that
5 was visible.
6 However upon examining the body, we were also able to examine the
7 clothing and the secondary examination which followed which is the
8 examination of the clothes which was done in the presence of the forensic
9 pathologist as I explained at the beginning. We found a presence of a
10 fragment of a projectile as well as some tears that showed that there was
11 a defect created by the projectile. An entry point was found at the pant
12 level, and this is why in my report I talked about this hypothesis. I
13 said that it is a hypothesis, that it is only a hypothesis consistent
14 with a gun-shot wound, but there is absolutely no certainly, and I leave
15 it up to the Trial Chamber to draw their own -- its own conclusions.
16 Q. But as you sit here today, you are not changing the underlying
17 autopsy conclusion that this cause of death is unknown, are you?
18 A. I've already answered this question, and my answer was slightly
19 nuanced. If you wish I could explain it to you again.
20 JUDGE ORIE: [Previous translation continues] ... please proceed,
21 Mr. Kehoe.
22 THE WITNESS: [Interpretation] Thank you, Your Honour.
23 MR. KEHOE: Let us turn to the next one, P1551.
24 Q. And I believe in your report, Doctor, it is the bottom of
25 page 91.
1 Now, Doctor, P1551 again is an uncertain death. And during -- if
2 we look at the summary of this autopsy, it says: "Probable fracture of
3 the left side of the pelvis, partial rib factures. It is hard to say
4 when this damage, these damages occurred."
5 Now, this is it an example, is it not, Doctor, of the difficulty
6 of ascertaining injuries that are either post-mortem or ante-mortem,
8 A. That's correct in this particular case, yes.
9 Q. And in this case, of course, as with the others, you can't
10 exclude natural causes as a cause of death. Correct?
11 A. In this particular case, as I already explained earlier, if or
12 when the cause of death is under determined, one has to take into account
13 the possibility of a natural death as well. We cannot exclude that
14 cause, just like we cannot exclude other causes.
15 JUDGE ORIE: Mr. Kehoe, could I seek some clarification.
16 Dr. Baccard, sometimes we see "cause of death unknown." In other
17 reports we see "unascertained." Is there any meaning in this different
18 -- difference of language?
19 THE WITNESS: [Interpretation] To my mind, no. There are no
20 differences. It really depends on the style of the forensic pathologist.
21 Some people may use one term and others may use another term. But as far
22 as I'm concerned the use of those two terms is very similar, and that's
24 MR. KEHOE:
25 Q. And, Doctor, the last one in the series --
1 MR. KEHOE: I'm sorry, Mr. President, I didn't mean to cut the
2 Chamber off, if there was a follow-up question.
3 The last in this series is P1561.
4 Q. And I believe that you are -- that your opinion on that is at the
5 -- or your statement on that is at the bottom of page 104.
6 I think you note some discrepancies with some of the statements
7 concerned post-mortem injuries. But if we look back at the autopsy
8 report on the screen. Again, we have a situation where there were signs
9 of injuries and at least one post-mortem injury on the right facial bone
10 and with no other known death -- excuse me, known cause of death. Again
11 without repeating what we did before with this, other than the minor
12 additions or commentary you make to Dr. Strinovic's report. Again we
13 have one that is unknown, where the cause of death by natural causes
14 cannot be excluded.
15 That is correct, is it not?
16 A. That is correct.
17 Q. Let us move on. Let us move on to the actual cause of death and
18 some of the difficulties presented in getting to the cause of death. And
19 if I can, if I can turn back to Dr. Clark's report.
20 MR. KEHOE: Again, that is P1251, on page 5 of that document.
21 Q. As this is coming up, Doctor, when you were working for the
22 Office of the Prosecutor and doing this commentary, did you have anything
23 to do with putting together this scheduled list of killings that the
24 Prosecutor has submitted to the Trial Chamber?
25 A. No, not at all, no.
1 Q. If we can turn to page 5 of this document, and in the -- under
2 the area of deciding on the significance of the injuries found and
3 whether they were the cause of death, under number 4, under that bold, it
4 says: "In this respect" -- it's the second paragraph under the bold in
5 the middle.
6 "In this respect it has be realized it is not the damage to the
7 bones themselves that kills people, but rather the associated damage to
8 surrounding tissues and internal organs. With most of the latter missing
9 in these cases, it was therefore seldom possible to strictly prove a
10 precise cause of death, only to imply it."
11 Now, do you agree with that statement, Doctor?
12 A. I must nuance this answer as well. And especially when we read
13 the first sentence mentioned by my colleague, Dr. John Clark. The
14 lesions inflicted to the human bones may be fatal because the internal
15 cavity of the bones is the seat of a -- marrow which is in blood, and
16 this can be a cause of hemorrhage and that can be fatal. So this being
17 said, I confirm what is written in this paragraph.
18 Q. [Previous translation continues] ... so if we take this one step
19 further, Doctor, when we're doing these types of pathological
20 examinations and autopsies, there is a relatively high degree of
21 speculation on the part of the pathologist when he or she is trying to
22 come up with the actual cause of death. Isn't that right?
23 A. Speculation is not the right term that I would use. I would
24 rather use the word scientific deduction. When you have a point of
25 entry, which is situated on the arch of a rib, for instance, and when you
1 can see also an exit point on the opposite rib, and if we know that the
2 heart is between those two points, the entry point and the exit point,
3 the scientific deduction which is the not a speculation allows us to
4 conclude that the projectile transfers or crossed the organ which was
5 between those two ribs. It's a deduction.
6 Q. I understand, sir, and, of course, this is not the type of
7 deduction that you would normally make in your practice as a forensic
8 pathologist when you're examining bodies, for instance, for the French
9 authorities back home or in a similar venue when you're making a
10 determination on the cause of death, looking at a relatively fresh body?
11 A. We have at our disposal other means and those means are -- for
12 instance we have to examine the body and the soft tissues. But this is
13 part of the scientific reasoning.
14 Q. Well, one of the things that you have in other circumstances --
15 other instances to come up with a cause of death, you often times have
16 information on the actual manner of death, don't you?
17 A. I don't understand very well your question. Do you mean that we
18 have information coming from other body parts that are present when we
19 carry out our autopsy?
20 Q. I'm talking about information, Doctor, that -- concerning the
21 actual place where there was located -- or where the body was recovered.
22 For instance, information such as, was this body at a front line position
23 in a trench? Or was this body found in the middle of a minefield?
24 Information like that, that would assist you in coming to a determination
25 on the cause of death. Isn't that right?
1 A. If you're referring to the forensic practice, which is the
2 current forensic practice in France
3 first elements of the investigation when we carry out an autopsy, but in
4 the sites for which I took part as an observer, I did not have those
5 information -- that information, precise information, with regard to each
6 of the victim, and an investigation had not been carried out in that way.
7 We were not informed of these elements at the time.
8 Q. So if we look at -- let's look at P1554. And, for instance this
9 is an individual who, according to the autopsy report, is dressed in a
10 military uniform. This autopsy says most likely an explosive injury to
11 the head. You note your autopsy that it was a gun-shot.
12 But in a situation such as this, regardless of the actual cause
13 of death, none of your analyses discount that this is a -- a cause of
14 death or injuries that resulted from actual combat. Isn't that right?
15 A. That's correct. I was not able to know what were the
16 circumstances surrounding the death. I could only see the cause of
17 deaths but not the circumstances of death.
18 Q. I understand, Doctor, and I guess that would take us one step
19 past combat because you can't -- don't know the circumstances. You
20 wouldn't, for instance, know if this person died from friendly fire or
21 enemy fire?
22 JUDGE ORIE: Mr. Kehoe, is it really something that an expert
23 should tell this Chamber, whether, if you get a partly saponified body,
24 that this witness could tell us whether it was friendly fire if in combat
25 or enemy fire. Is this really something you consider to be within the --
1 and having listened to the very, very precise answers of this expert,
2 would you really expect him to say, Well, of course, you could say it is
3 friendly fire or this. On the basis of the autopsy, Dr. Baccard, I take
4 it, that your answer would be in the negative, that you couldn't make any
5 distinction between whether it was in combat or not, as you said before.
6 So if you can't determine whether it was in combat yes or no, I take that
7 you could not tell us that if it was in combat, that it was -- whether it
8 was friendly fire or not.
9 THE WITNESS: [Interpretation] That's correct, Your Honour, I was
10 not there while everything was unfolding, and so this is not something
11 that an expert witness can answer.
12 MR. KEHOE: And just for the record, Mr. President, what I'm
13 actually doing is -- and I know Your Honour understands this, but I'm
14 trying to make a record, not only for the Trial Chamber but for anybody
15 else that looks at this, to try and go through facts and circumstances
16 that may be --
17 JUDGE ORIE: Mr. Kehoe, if you are before a jury, address the --
18 make a record for the jury. If you are before a professional Bench, make
19 a record for the professional Bench who have to determine the matters
20 before it.
21 Please proceed.
22 MR. KEHOE: If I may, Judge, that is, by way of clarification,
23 that's what I'm trying to do, make a record for this. So I will move on.
24 Q. The other issues, just on this score, if we can turn to P1546.
25 I'm going show you two exhibits on this. P1546 for you, Doctor,
1 is 04/016. This is a female that was -- died, it looks like from
2 explosive injuries. And these are actually parts of a female, if I'm
3 correct. Because it is 04016 BP, so as opposed to a body, these are body
4 parts, where it reflects that it was explosive injury and the actual
5 underlying documents note that the clothing was burnt. And I believe in
6 your report on page 69 you say that this is consistent with an explosive
8 MR. KEHOE: If we can turn to P1668.
9 Q. I'm going to ask questions about both of these together. That is
10 03009 for you, Doctor.
11 This is unusual in the sense that this is a body that was wrapped
12 in a blanket. I believe you note that on page 50 of your report. And
13 likewise in this item we had some burning on the flesh of this
15 Now, in both of these, Doctor, were these consistent with --
16 these injuries, and both of these consistent with someone walking into a
17 minefield and stepping on a mine?
18 A. I really cannot answer that question. In this particular case, I
19 can only describe the lesions, I can only attribute a cause to these
20 lesions, but it is very difficult for me to explain the circumstances in
21 which this occurred because I don't have sufficient elements for this.
22 Q. So when you say death by explosion, it could be any type of
23 explosion; mines, tank fire, artillery fire. Any of the above. Is that
25 A. Insofar as there is no shrapnel inside the body or in the soft
1 tissues, we cannot analyse the shrapnels, so, therefore, we cannot know
2 where they come from. It is very difficult to answer this question.
3 The way the lesions are shown or distributed on the body can give
4 us a clue and can -- can make us believe that there was an explosion. If
5 you have an explosion of a mine, if you step on a mine, then the inferior
6 members are going to be affected, and then the lesions will go from the
7 lower body -- from the lower parts, lower limbs, to the head, but if we
8 don't have shrapnel inside the body, embedded, we cannot really make any
10 Q. You noted, and I did too, a mine that was stepped on. Of course,
11 you're familiar with other mines that are triggered by wiring, are you
13 A. Yes, indeed.
14 Q. Okay. And, likewise, going through these autopsies, you could
15 not exclude that there was criminal violence from one person on another,
16 even one Serb person on another Serb person, could you?
17 Let's take an example, and I will show you one. I will be
18 probably easier that was.
19 MR. KEHOE: Let us turn to P1685.
20 Q. For you, Doctor, it is G 06/24.
21 JUDGE ORIE: Mr. Kehoe, I would like to see whether we can get an
22 answer, but I will rephrase your last question.
23 Dr. Baccard, if you do not know the ethnicity of the victim and
24 if you do not know the ethnicity of someone who may have played a role in
25 the cause of death, then you couldn't exclude that it was one Serb
1 killing another Serb, is it?
2 THE WITNESS: [Interpretation] Absolutely, I have no scientific
3 criteria that allow me to determine the ethnicity.
4 JUDGE ORIE: [Previous translation continues] ... please proceed,
5 Mr. Kehoe.
6 MR. KEHOE: If we can take a look at P1685.
7 Q. And this is a report that the autopsy initially comes out with an
8 explosion to the head and trunk injury -- explosive head and trunk
9 injuries. And you disagree because of pellets that are likely fired from
10 a shotgun.
11 Do you see that, sir?
12 A. Yes, that's correct.
13 Q. [Previous translation continues] ... Now, two things about that,
14 with regard to the explosive. The first question I have for you is: Was
15 it your rationale that this was, for instance, not a mine or hand-grenade
16 because of the pellets?
17 A. As regards the fragment, the foreign parts, this was lead pellets
18 as used in ammunition of the hunting rifle type --
19 JUDGE ORIE: Mr. Kehoe, I may have missed where this case appears
20 in the report of Dr. Baccard.
21 MR. KEHOE: This is it on page 99 of his report.
22 JUDGE ORIE: Thank you.
23 MR. KEHOE: At the bottom of the page, Mr. President. And my
24 apologies for not pointing that out.
25 Q. Now, sir, are you familiar with mines in the former Yugoslavia
1 that had contained in them little steal balls that were triggered and
2 fired out on assaulting troops. Are you familiar with those?
3 A. I'm not a specialist in weapons and ammunitions. I'm speaking of
4 projectiles that were highlighted during the autopsy and that have
5 visible in X-rays were not pellets but small spheres such as those used
6 in hunting rifles with multiple projections. These were -- pellets for
7 me is a flat geometric form. These were small spheres.
8 Q. Like small balls. Is that right?
9 A. Small balls, I don't recall the dimension, but 2 millimetres or
10 1.5 to 2 millimetres. They're visible on the photographs. Some were
11 embedded in the bones.
12 Q. Let me show you 1D00-0763, if I may. And this is a recognition
13 handbook that was put together by the Canadian authorities. And is says
14 -- if we can just go to the front page and blow that up just a bit.
15 That's the front page, Doctor, of this recognition handbook, and this is
16 a book that has various types of armaments. And I have annexed a page.
17 If we can turn to the next page, and just bring that down a little bit.
18 This is it an MRUD anti-personnel mine that -- if you notice at
19 the type of the kill, it is a fragmentation effect with 650 steal balls
20 in it, strung together when it is triggered. Are you familiar with this
21 type of mine, Doctor?
22 A. Once again I have to say that I'm not a weapons specialist.
23 Q. Okay.
24 MR. KEHOE: Your Honour, at this time, we'll to offer 1D00-0763
25 into evidence.
1 MR. MARGETTS: No objection.
2 JUDGE ORIE: Mr. Registrar.
3 THE REGISTRAR: As Exhibit D1310, Your Honours.
4 JUDGE ORIE: And is admitted into evidence.
5 Mr. Kehoe, it may have been clear from the answer of this expert
6 that the size of the steel balls might play a role. If there would be
7 any information in relation to the size of the 650 steel balls, that
8 certainly assist the Chamber in following the -- the possible explanation
9 you have suggested.
10 MR. KEHOE: Mr. President, and I was hoping the witness could
11 help that. I don't know, but I will find out yet further. As an officer
12 of the court, I have to tell you, I don't know the size of those balls,
13 as to whether or not they are consistent with the actual steel balls that
14 the witness found or not.
15 JUDGE ORIE: Thank you. Please proceed.
16 MR. KEHOE:
17 Q. Now --
18 THE WITNESS: [Interpretation] Excuse me, it was not steel, this
19 was led. These were -- these were led spheres, not steal spheres.
20 JUDGE ORIE: Not iron, but ...
21 MR. KAY: Excuse me.
22 JUDGE ORIE: Thank you -- Dr. Baccard.
23 MR. KEHOE:
24 Q. Now, Doctor, just moving ahead through this --
25 [French on English Channel]
1 Q. [Previous translation continues] ... that this was a -- these --
2 it says pellets in your English report, but I guess the lead balls that
3 you saw were fired by a shotgun. And my question to you is, you know
4 that that's -- a shotgun is not a weapon that's normally carried by a
5 soldier. Isn't that right?
6 A. I am not familiar with the equipment, the weapons equipment of
7 the -- of the forces that were on the ground at that point.
8 Q. Based on your experience in the former Yugoslavia and doing this
9 type of work for the OTP, you would agree with me that a shotgun is,
10 based on your experience, not a weapon that is normally carried by
11 soldiers, is it?
12 A. Well, I would say that in my experience I have encountered in
13 some cases that it's difficult for me to assess precisely this type of
14 injury, but I don't feel competent to answer the question as to whether
15 they are part of the standard issue of a military personnel.
16 Q. Let us take this one step further, and you correct me if I'm
17 wrong, I think I tried to go through these autopsies with some degree of
18 diligence, but pardon me if I didn't. But I do believe that is the only
19 instance in your autopsies that have been presented, and I do believe
20 that there are 53 of them where a shotgun is a weapon that you conclude
21 or opine was the weapon used to shoot the projectiles that caused the
22 death. Is that right?
23 A. I don't know whether it's the only case or whether I found it in
24 another cases. What I can say is that this type of injury is a type of
25 injury that we frequently come across in civilian practice. It's a type
1 of injury that I know well. I would also add that assuming we would
2 think that it's an explosive device, that disseminated the small balls,
3 this lead shot, we would have on clothing very different appearance. In
4 the event of a firing of these signal lead pellets or balls with a
5 shotgun, the flow is by a barrel, it has a certain shape. And in terms
6 of the distance from the target, we would have on the clothing a wide
7 tear with small peripheral pellets, but if we're thinking of the
8 explosion of a device, we would see dissemination at the outset and a
9 multitude of small impacts on the clothing which wasn't the case in this
10 particular file.
11 Q. Thank you, Doctor. Your answer, just triggered something in my
12 mind, and it is the first, you know, first two lines of page 24 -- excuse
13 me, page 24, line 10 and 11 you say:
14 "What I can say that this is the type of injury" -- excuse me.
15 "That this type of injury is the type of injury that we frequently come
16 across in civilian practice."
17 As an expert let me have you assume certain facts. The
18 Prosecutor has charged that this death occurred -- and this at number 290
19 of their clarification schedule. Has occurred on the 5th of August, of
20 1995. Likewise assume that the evidence in this Chamber is that there
21 were no Croatian soldiers in Donji Lapac on the 5th of August, 1995
22 Based on that, sir, would that be consistent of -- with your statement
23 that you just gave, that this would be the type of weapon you would see
24 in civilian practice and you could rationally conclude that this was done
25 in a civilian setting as well on the 5th of August, 1995?
1 MR. MARGETTS: Mr. President, I consider the sentence that the
2 sentence regarding the fact that Dr. Baccard has substantial experience
3 in this type of examination, he has seen these types of injuries before,
4 cannot be equated or should not be taken out of context and placed with
5 this hypothetical scenario. It is distorting the witness's answer.
6 JUDGE ORIE: The witness has shown several times to know exactly
7 where the limits of his expertise are, and we will hear from him whether
8 he can answer your question or not, Mr. Kehoe.
9 Dr. Baccard.
10 THE WITNESS: [Interpretation] No, absolutely not. The reference
11 that I was making to the unexceptional nature of this type of injury in
12 my forensic civilian forensic practice was only aimed at indicating that
13 I was used to seeing this sort of injury. And that if I wrote that it
14 was related to a shot fired with lead pellet projectile, that this is
15 something that I was basing on my experience. Any other assumption or
16 conclusion drawn from that sentence would be erroneous, and I'm not
17 competent either to speak to the nationality of the soldiers present at a
18 particular point or as to the date, that's totally foreign to my area of
20 MR. KEHOE:
21 Q. Let us move on to some of the analyses that -- or some of the
22 discussion in your report that goes back to the autopsies as they pertain
23 to explosions or blast injuries.
24 And I note just on some of these -- that some of the autopsies in
25 your opinions. And you note on -- at least six occasions, and I think
1 it's more than that, in P1546, P1549, P1559, P1568, and P1544, that
2 individuals died from explosions and blast injuries. And I believe that
3 you concurred with that assessment. And trust me, Doctor, I went
4 through, and I went through all of those, and you in fact didn't concur.
5 But my interest -- and if we can just take one for example, just
6 go to P1546 which is 05010 for you.
7 Now, this is a blast injury, and I believe in page 81 of your
8 report you agree with the conclusions, and I think you told us you can't
9 tell us anything about the circumstances of death. And the Prosecutor
10 has alleged --
11 JUDGE ORIE: Mr. Kehoe, it is now for the second time that you
12 say that the cause of death was, where the report says probably. Would
13 you please be as precise as the witness is, that what is the probable
14 cause of death is not the same as what is a determined.
15 MR. KEHOE: Absolutely, Judge. My apologies.
16 [Defence counsel confer]
17 I said that, Judge, simply because I was looking from a different
18 item than the exhibit that was on the screen, and that is -- I should be
19 looking at P1549. My apologies. That's on the screen now. It is 0510.
20 Q. And the Chamber is 100 percent correct, this is -- you know, all
21 probable causes of death notwithstanding causes of death, it is all
22 probable. But, Doctor, with regard to something like this, I mean it is
23 impossible for you to say when this death occurred. Isn't that right?
24 A. I can't answer solely on the basis of the first page of the
25 report. Would it be possible to move to the description of injuries?
1 Q. [Previous translation continues] ... sure.
2 A. Page 2 or page 3.
3 May I answer?
4 Q. Yes, of course.
5 A. Absolutely not. In this case it was perfectly possible to answer
6 regarding the fact that these injuries did indeed take place before
7 death. They were ante-mortem. There was soft tissue. There was a metal
8 fragment, shrapnel, that was included in the soft tissues. And the
9 various fractures noted by the Croatian expert confirmed that there was
10 signed of hemorrhaging and, therefore, ante-mortem.
11 Q. My question -- if I could take it one step further, Doctor, and
12 I'm not disputing your conclusions nor the underlying pathologist's
13 conclusions on this score.
14 And my point then is on this particular issue. That -- and this
15 is at 48 of the clarification schedule, I do believe -- excuse me, 49 of
16 the clarification schedule, that the clarification schedule notes that
17 the body was killed on 24 August 1995
18 is that you cannot say whether or not it occurred there or some earlier
19 date or some date after that, can you?
20 A. No, absolutely not.
21 Q. Let us turn to another one of these reports, P1544, 65 ter 6076.
22 That's 07/022. And that's on page 116 of your report.
23 Now, this is an individual that -- if you look at the first
24 summary of the autopsy report, under the clothing, it notes that the
25 clothing torn remains of a military olive green shirt with epaulettes
1 nylon underpants with blue/grey stripes.
2 Now, Doctor, when you saw that type of information, did you and
3 the other team conclude that this person was in fact or had been a
5 A. The type of clothing was mentioned as being military clothing,
6 that's all.
7 Q. I understand, Doctor. But on the assessment as to whether or not
8 this person was in fact a soldier --
9 JUDGE ORIE: Mr. Kehoe, I think the witness clearly says that
10 what he observes is the type of clothing whether that was an actor
11 playing in a war movie, whether that was civilian clothes in military
12 uniform, whether it was someone who had just been demobilized, I think
13 the witness clearly said, and he is very strict in these matters, that he
14 observes facts, and he did not draw any conclusions. When he says, I
15 observed that this was clothing of a military type, that is all. That's
16 a clear answer.
17 MR. KEHOE: I understand, Judge. But the question is, and I
18 think the Chamber wants to know, is when you were looking at this, given
19 the -- well, let me take it one step further.
20 JUDGE ORIE: Yes, but let's stick to what the expertise of the
21 witness is. And I think the witness is -- I'm quite happy to see that,
22 he is very strict in his answers, what is within and what is not within
23 his expertise. And whether -- how this material was used by others, and
24 whether they say, You see from the clothing that it is an actor or not an
25 actor or a soldier, that's not -- neither within the expertise, nor
1 within the limits of the responsibility of this expert witness.
2 Please proceed.
3 MR. KEHOE: Mr. President, I do beg to differ. And I will ask
4 this question of this witness.
5 Q. Did you make assessments during the course of your examinations
6 that certain individuals that you would -- examining had been soldiers?
7 A. That they were wearing military clothing or civilian clothing.
8 Q. Did you make that assessment? If they were in military clothing,
9 they were soldiers; if they were this civilian clothing, they were, in
10 your mind, civilians?
11 A. Well, that must be in my report. There was a table indicating
12 the number of people wearing predominantly military clothing, and I
13 believe I indicated that in a paragraph in the preamble to the report.
14 Q. Going to this particular issue on this particular examination,
15 would you have concluded that this person was a soldier given the fact
16 that he was wearing a military olive green shirt with epaulettes?
17 A. I'm referring to the criteria that were -- in the assessment of
18 the overall results of this mission, the status was affirmed only when
19 there were several items of clothing or typical items of -- of uniform
20 that were present.
21 Q. So let's turn to this particular autopsy. Did you consider this
22 person who was wearing this type of shirt to be a soldier?
23 A. I can't answer. It appears in my notes, and I -- I can't refer
24 to those notes.
25 Q. Well, sir, were you told when you were to those examinations that
1 virtually every male, Serbian male in the Krajina from 18 to possibly
2 even higher than 60 years of age was in fact pressed into service as a
3 soldier? Were you told that?
4 A. No such thing was said to me.
5 Q. Were you ever told that soldiers leaving the front line - not
6 saying all of them - that soldiers leaving the front line discarded their
7 uniforms and put on civilian clothing as they began to leave the area?
8 Were you told that?
9 A. No. In fact, I was told very little when I went on this
10 monitoring mission. I had very little information which -- to a certain
11 extent I deplore.
12 Q. Are you saying, sir, that you would have wanted more
13 information as you were looking through this, but you weren't given that
15 JUDGE ORIE: Mr. --
16 One question first, Dr. Baccard, before you answer the question,
17 if need be, of Mr. Kehoe. Did you ever consider what the status of a
18 person was? Or did you rather observe what he was wearing at the time
19 without drawing any conclusions as being beyond what is within your
21 THE WITNESS: [Interpretation] It is certain that the criteria
22 used to classify a person depending on the clothing worn in one category
23 or another is -- uses limited criteria because very often the clothes are
24 torn, they are in a poor state. But what was is concluded, and this is
25 stated in the preamble to my report, to indicate that a person was
1 military was to have at least two items of military uniform.
2 JUDGE ORIE: [Previous translation continues] ... so you
3 considered him to be clothed in military attire. But did you consider
4 whether someone was or was not a soldier, or ...
5 THE WITNESS: [Interpretation] Absolutely. But I had no way of
6 determining that. That is why I clearly indicated at the beginning of my
7 report what the criteria we used to classify these people in one group or
9 JUDGE ORIE: Please proceed, Mr. Kehoe.
10 MR. KEHOE: Yes.
11 Q. Just finishing with this particular exhibit, Doctor, and looking
12 at your report, and I think the cause of death is most likely explosive
13 injuries, and you can't tell us if this was tank fire, mortar fire,
14 booby-traps, artillery, or whatever, can you?
15 A. No, absolutely not.
16 Q. Now let us move to another exhibit where in fact you disagree
17 with the assessment made by the forensic pathologist.
18 MR. KEHOE: That would be P1678. 65 ter 6042.
19 Q. And in your volume it is, 03/010. And I will get the page for
20 you, Doctor. That would be on page 51 of your report.
21 Now, in the actual underlying autopsy it says gun-shot or
22 explosive injuries of both shanks.
23 And I believe in your report you noted that it was -- a cause of
24 death is undetermined. That's in the last line of your report.
25 Just looking at this, Doctor, when you changed or you offered a
1 different opinion, if I may, other than that put forth by Dr. Blazanovic,
2 did you examine this body, or did you just examine the photographs? What
3 was the basis of your difference of opinion. I note that in your report
4 you looked at some photographs.
5 A. I was, of course, present during the course of the autopsy.
6 Q. Did you have some discussion with Dr. Blazanovic at the time
7 regarding how you might have seen this differently or come to a different
9 A. In all probability. But I don't really recall.
10 Q. So taking that probability, what we have in this instance is two
11 individuals -- two experienced -- or pathologists coming to a difference
12 of an opinion when examining a corpse. Is that right?
13 A. Could you repeat the question, please.
14 Q. What we have here simply, Doctor, is two pathologists looking at
15 a particular body and coming to different conclusions --
16 A. Absolutely, yes.
17 MR. KEHOE: Your Honour, I'm about to move into other subject.
18 JUDGE ORIE: Mr. Kehoe, I'm looking at the clock at this moment.
19 How much time would you still need?
20 MR. KEHOE: Half an hour, 45 minutes, Judge.
21 [Trial Chamber confers]
22 JUDGE ORIE: Mr. Kehoe, after the break, you have 25 minutes
23 left. And the Chamber encourages you, and I know that I'm now
24 exaggerating, not to put questions to the witness of the kind, Is it true
25 that you couldn't conclude from the striped under wear what the level of
1 education of that person was, or questions like, If you say red, you
2 exclude that it was green, that type of questions really are totally
3 superfluous. That is also why the Chamber limits you to 25 minutes after
4 the break, and I tried to put you on the right track several times during
5 the examination.
6 MR. KEHOE: If --
7 JUDGE ORIE: We will have a break and resume at 11.00.
8 MR. KEHOE: Mr. President, if i can, I would like to comment on
9 Mr. President's --
10 JUDGE ORIE: I said I was exaggerating.
11 MR. KEHOE: I understand, Judge. I understand. But it was more
12 than exaggeration, and I would like some commentary on that score. And I
13 can do it now, or I can do it after the break, as Your Honour so pleases.
14 JUDGE ORIE: We will see whether we find time to hear your
15 comments on that matter, and I will discuss it with my colleagues.
16 We will have a break, and we'll resume at 11.00.
17 --- Recess taken at 10.34 a.m.
18 --- On resuming at 11.01 a.m.
19 JUDGE ORIE: Mr. Kehoe, you asked to be able to comment.
20 The Chamber will not deprive you of that opportunity, but, at the end of
21 the testimony of the witness, not earlier. And you have 25 minutes.
22 MR. KEHOE: Yes, Your Honour, I'm grateful for having that
23 opportunity. I want to make my position clear to the Chamber and comment
24 on your comments.
25 Q. Doctor, if we can go back and discuss some of the testimony we
1 just were talking about in P1678, an instance where you offered a
2 different opinion on the cause of death from a gun-shot or explosion to
3 undetermined. I want to talk to you a little bit about a situation where
4 we have the converse, in the sense that the cause of death is initially
5 -- is initially listed as undetermined or unknown, excuse me, and you
6 have changed -- you offer a different hypothesis, that it's a gun-shot or
7 an explosion. And the first exhibit on that score is P1566.
8 In your book, sir, it is G07/026, page 120. And I will go
9 through these two different autopsies.
10 MR. KEHOE: If we can go to P1566 on the screen.
11 Q. This is the situation where the cause of death is offered as
12 unknown. And you note in your last line of your report at 120 that the
13 hypothesis of injury by explosion cannot be excluded.
14 MR. KEHOE: The other item, other exhibit on this score is P1555,
15 65 ter 6034.
16 Q. Likewise, and this, it is a cause of death that is unknown.
17 Again, Doctor, it's 02/009 for your reference point, and I will get you
18 the page. It's on page 34 of this document of your report. Where you
19 order that the last line:
20 "These facts suggest that the victim sustained gun-shot possibly
21 concerning the soft tissues. This is only a hypothesis."
22 Now, once again, Doctor, we have two different opinions. I take
23 it you were at the autopsies when both of these were conducted in Zagreb
24 yet two pathologists offer different opinions on the cause of death and
25 come to two different conclusions, as we can see.
1 Doctor, that, of course, renders the scientific certainty
2 regarding these causes of death somewhat how, doesn't it?
3 MR. MARGETTS: Mr. President, I'm not entirely sure that the
4 conclusions, the ultimate conclusions can be said -- can be characterized
5 in the way my learned friend has characterized them. The expert
6 certainly refers to hypothesis.
7 MR. KEHOE: The witness can certainly explain that.
8 JUDGE ORIE: I think, as a matter of fact -- I think in the first
9 example it was clear that there was a hypothesis, and that, in the second
10 one, as well, so the witness can --
11 So half, you're right; half, you're wrong, Mr. Margetts.
12 Please continue, Mr. Kehoe.
13 MR. KEHOE: I believe there was a hypothesises in both of them.
14 And I may stand corrected, on page 120 of the first --
15 JUDGE ORIE: No, but you mentioned once that it was a hypothesis,
16 and I think you didn't mention that for the second one. You are talking
17 about different conclusions.
18 MR. KEHOE: I apologise. The second one on page 34, my learned
19 friend could look at the last line, and that suggested cause of death,
20 also said this is only hypothesis. That is for P1555, the actual exhibit
21 that's on the screen.
22 Q. And, Doctor, my question to you is the same. When you look at
23 these and you offer a different hypothesis, does not -- does your
24 hypothesis or offering a different way to look at this, render the
25 scientific conclusions as to the cause of death low?
1 A. Well, I noted very specifically that I was only offering a
2 hypothesis on both cases. Very early on when we performed the autopsy --
3 THE INTERPRETER: When the autopsy was performed. Interpreter's
5 A. [Previous translation continues] ... there was a discussion among
6 the pathologists. But I was there, during the entire steps of the
7 expertise including the examination of the clothing, and the pathologists
8 had not present for that. And I still believe that checking the clothes
9 is extremely important to be able to ascertain the causes of death
10 because the clothes are around the body, and the clothes can testify to a
11 number of things. They can -- there can be torn, you can see bleeding
12 also on the clothes, and this can help interpret in a certain way what
13 the -- with a was found in the autopsy, and this is exactly what happened
14 in the two cases that you mentioned, in G02/009 and G07/026. I believe
15 that's the one.
16 In the first case G02/009 B, inside the trousers I found a
17 fragment of -- project of the fragmented bullet nose in the trousers, and
18 checking -- we checked the clothes. Well, I was present when the clothes
19 were checked. First they were cleaned, and I could really see that there
20 were tears that were very specific. And it was not just in one layer of
21 clothes, it was on several layers of clothes. When there is a tear,
22 well, sometimes you can give it very relative value, but when you have
23 the same tear on several layers of clothes, for example, in the trousers
24 and the underpants, then you know this is more suspect. And then on top
25 of that you find a piece of projectile inside. I think that
1 scientifically you can offer this hypothesis. With the reservation of
2 course that this is only a hypothesis and that there is no certainty
3 attached to it. But I believe that the legal experts have to be informed
4 that these findings were made.
5 Q. And, Doctor, I'm disagreeing with you that an anthropological
6 examination of the clothing is important. But my next step is given you
7 were there and you examined the clothing and you were there when
8 Dr. Definis-Gojanovic in P1566, G07/026, conducted that autopsy, and in
9 P1555 when Davor Strinovic conducted that autopsy, did you, after you
10 examined this clothing at the scene, go back and talk to these particular
11 physicians and express to them the concerns and ask them to take them
12 into consideration so that the pathology report, the autopsy report would
13 be as accurate as possible? Did you do that?
14 A. I don't remember specifically for both cases. But it's true that
15 on -- in some cases I went back to my colleagues to just tell them about
16 what findings had been made and when the clothes were checked.
17 Q. And when they -- you gave them that position, can you tell us in
18 what instance you did that?
19 A. I can't remember.
20 Q. Based on that information, did the forensic pathologist take that
21 information and take it into consideration in filing his other her
22 autopsy report?
23 A. In some cases, no, since we have a discrepancy in the written
24 report, as we just saw.
25 Q. So going back full circle, Doctor. When we look at these
1 particular items where you offer hypothesis on a different conclusion,
2 are you saying that your opinion is right and the underlying examination
3 pathologist is wrong? Or are you saying that these are just two
4 different opinions?
5 A. In cases like the one that we're talking about, the two that
6 we're talking about, these opinions are different. I'm not ascertaining
7 with certainty that the cause of death was either an explosion or a
8 gun-shot wound. All I'm saying is that after having been there when the
9 clothes were checked, especially for G07/026, after having checked the
10 photography for this one, the photography that was taken right after
11 the -- closely after death, scientifically there is a possibility of
12 raising other hypothesises. But these remain hypothesis and have
13 absolutely no certainty attached to them.
14 Q. Thank you, Doctor. Let me just conclude with one short area as
15 my time is short. And we have another situation where looking at various
16 autopsy reports, the initial autopsy, cause of death was most probably
17 explosion or blast, and then you offered a different hypothesis of
18 gun-shots. And I will put before the Chamber those numbers.
19 MR. KEHOE: P1554, P1552, P1558, P1565, P1548, P1573, P1685, P17
20 -- 1570, P1694, and P1565.
21 Q. Those, Doctor, are autopsies where their initial cause of death
22 was most likely an explosion or a blast, and you changed to a hypothesis
23 of gun-shot.
24 Without what repeating exactly what we went through before, if I
25 asked you the same questions with regard to these particular autopsies,
1 Doctor, where you offer a different hypothesis, it would be just that,
2 your hypothesis, and would that be again other occasions where you say
3 there is a scientific possibility of raising other hypothesises - I'm
4 reading page 38, lines 6 and 7 - these remain hypothesises and have
5 absolutely no certainty attached to them.
6 Would that -- your answer be the same on the hypothesis that you
7 rendered when you changed these results from gun-shot blast or explosions
8 to gun-shots, would that be the same? That those conclusions would
9 remain simply hypothesises and no certainty attaches to them?
10 A. Well, first, I didn't modify the conclusions of my colleagues.
11 My colleagues took their own responsibility, of course, and wrote the
12 conclusions that they drew and signed their report. I'm not going to
13 modify anything.
14 However, I can highlight my point of view and present my point of
15 view, and I consider that it is scientifically validated. But I can't
16 give you a general answer on all these cases that are on the screen. I
17 have to look at them on a case-by-case basis in order to back what I
18 said. You know, to tell you for this one, this is a certainty; for this
19 one, this is a hypothesis and nothing more, when I differ with the
20 conclusion drawn by the Croat pathologist.
21 Q. If I may, and my time is short, and so if I can just get through
22 this and ask you, if it is a hypothesis, there is it no certainty
23 attached to it, but you do have occasion where you just outright disagree
24 with the forensic pathologist's conclusion. And it is it more than
25 hypothesis; it's certainty in your mind?
1 A. Yes, absolutely. But in such cases -- here, this is it a very
2 general answer. I'm not talking about specific cases. When you -- when
3 you have an expertise that's comprehensive with examination of the body,
4 X-rays, checking the clothes, when you do all these processes, all these
5 steps, I believe you have more elements at hand than when you're limited
6 to just the examination of the body or the skeletal remains. The
7 traditional cases where there was a discrepancy between my conclusions
8 and the conclusions drawn by my colleagues were mainly for -- were for
9 corpses where the expert had believed that it was an explosion that was
10 the cause of death. But as far as I'm concerned, based on the X-rays and
11 based on the clothes that I had looked at as well as photographs, I could
12 provide new elements, other elements.
13 Which were they? Regarding the X-rays it was -- when you have a
14 projectile that is fragmented, the tears are going to be very different,
15 the impact are going to be very different than when have you the shrapnel
16 that create lesions. Why is that? Because the projectile is a different
17 speed. It's very high for those who come from an AK-47, for example, but
18 when it's a fragment that is projected either by a grenade or mine or a
19 shell, then the speed is much lower. Then there's also the different in
20 the nature of the metal used in the projectile.
21 Thirdly, when you look at X-rays, with a body that is full of
22 shrapnel -- is full of fragments coming from a mine, this is very
23 different than when you have a body with a projectile was fragmented.
24 For example, a thigh that has been hit by a bullet. What is it going to
25 happen there? From the entry wound, you will have broken bone, the
1 broken femur and then we'll have a cloud, a snow cloud, you know, because
2 of the -- because the first the projectile hits the bone and then is
3 scattered. So if we have an X-ray with a person that has been shot by
4 explosion and fragmented, the fragmentation can be seen from the entry
5 wound. All these fragments enter everywhere in the body, so you can't
6 mix -- there is no confusion possible. There is no -- you can't mix
7 things up.
8 Then secondly, regarding the clothes, it's the same thing for the
9 clothes. Somebody who is hit by a grenade, with fragments of grenades,
10 you will have a number of entry wounds and several defects on the body,
11 whereas if the person is first hit by a projectile that fragments inside
12 the body will have one entry wound and then everything will be scattered
13 on the way out.
14 So there is different steps and -- that are very important when
15 you examine a body. And depriving yourself either voluntarily or
16 involuntarily of the information you can get from one of the steps,
17 whether X-ray, whether it's the clothes check, is going to place the
18 expert in a situation where he has less information at hand to draw his
20 Q. Doctor, quickly because my time is running short, let us look at
21 one exhibit on the list of exhibits that I just discussed and that would
22 be P1573, 65 ter 6060.
23 For your purposes, it is on page 97, G06/012 B.
24 This notes, probably an explosive injury to the head.
25 If we go to the next page and we look at the fluoroscopy
1 examination. Down a little bit, point E. Thank you.
2 It notes, post-mortem remains mixed with dirt, stones showing
3 only a head without fractures. There is no mandible or any other
4 metallic objects.
5 In analysing this, Doctor, where it says probably an explosive
6 injury, you offer on page 97 yet a different conclusion without any
7 metallic or fluoroscopy objects -- any metallic objects seen during the
8 fluoroscopy examination that the location of the injuries and their
9 aspect appear to be do more likely to a gun-shot coming from the right,
10 rather than an explosion.
11 Now, is that a conclusion that you're making there, Doctor, or is
12 that again a hypothesis to be considered?
13 A. There's no certainty attached to this. I say that it appears to
14 be more likely due. So there is two reservations here. Saying that with
15 my experience I would tend to favour the hypothesis of a gun-shot wound,
16 rather than an explosion wound.
17 Q. [Previous translation continues] ... using that word, that
18 statement by you on page 97, is a hypothesis as well.
19 A. Well, I feel it is.
20 JUDGE ORIE: Yes. Could we try to -- because we're talking about
21 hypothesis, we are talking about likelihood.
22 Dr. Baccard, is my understanding right, and I'm -- take you
23 through a couple of situations, that if the expert concludes that no
24 cause of death can be established, that when you come with a hypothesis,
25 that what you're actually saying is that you found indicators which give
1 an explanation at a level of probability or likelihood but without
2 certainty, where the indicators are strong enough to express that
3 likelihood or probability, and then you call it a hypothesis.
4 Is that correctly understood?
5 THE WITNESS: [Interpretation] Yes, absolutely.
6 JUDGE ORIE: Second situation, where the expert comes to a
7 conclusion, probable or likely, if you give a competing hypothesis or a
8 competing likelihood, do I understand that you say that the indicators
9 you have observed cause you to give another probable cause of death,
10 although without certainty, different from the probable or likely cause
11 of death expressed by the other expert, because you find the indicators
12 more favouring your explanation than they do favour the explanation of
13 the expert who wrote the autopsy report.
14 Is that --
15 THE WITNESS: [Interpretation] Yes, absolutely. If I may, just --
16 can I make a small comment in relation to the case we had looked at, just
17 to give you an example of how we worked.
18 Right before the break, we were talking about a case where it was
19 the opposite situation. My colleague concluded that the death probably
20 came from an explosion or gun-shot; whereas I said that according to my
21 logic, it was impossible to ascertain the cause of death. Why is that?
22 Because I think the lesions there were on part of a limb, peripheral
23 limb, and no major blood vessel is in that limb. So we can both agree on
24 the fact that there was a wound to the wrist, but it is not because have
25 you been hit by a bullet with a wrist that you're go doing die of it.
1 Because you can survive if you just have a wrist injury.
2 Sow need to have very certain reasons on what caused the death,
3 but also when you look at all the injuries, you have to make sure that
4 maybe these injuries actually injured a vital organ.
5 So when you're an expert, you have to be very strict in your
6 reasoning, and this is why sometimes we come to different conclusions.
7 JUDGE ORIE: [Previous translation continues] ... just gave then,
8 therefore, at least if I understood you well, is that where apparently
9 your colleague found that indicators would justify an expression of
10 probability, you thought that these indicators would not justify to
11 express such a probable cause of death, and that, therefore, you had to
12 conclude that it was -- and that, therefore, you had to conclude that it
13 was an unknown cause of death.
14 Is that correctly understood?
15 THE WITNESS: [Interpretation] I apologise, but I -- there was an
16 interruption in the translation, and I heard you in English somewhat, but
17 I couldn't follow.
18 JUDGE ORIE: If you can read it on your screen, I think this --
19 what I started with is the example you just gave.
20 THE WITNESS: [Interpretation] Well, my answer is yes. Given the
21 probable location of the wound, because this wound was not on a vital
22 organ, and it was impossible to say that the cause of death was in
23 relation to this or that, because we had no element that would allow us
24 to affirm this, to be absolutely sure of this.
25 JUDGE ORIE: And not even strong enough to express a probable
1 cause of death.
2 THE WITNESS: [Interpretation] Well, it could be possible. But
3 when parts of the body is missing, which was the case here, or when you
4 have no more soft tissue, with soft tissue that were probably involved in
5 the trajectory of the projectile, when there is nothing left, it's very
6 difficult to be affirmative in one way or the other.
7 JUDGE ORIE: Please proceed, Mr. Kehoe.
8 MR. KEHOE: [Microphone not activated] ...
9 THE INTERPRETER: Microphone, please.
10 MR. KEHOE:
11 Q. I'm actually out of time, Doctor --
12 JUDGE ORIE: Of course the time I took, Mr. Kehoe, is not deduced
13 from your -- of course if you're done with your question that is fine,
14 but I try to be fair in this respect.
15 MR. KEHOE: I do appreciate that. I will try to wrap up within
16 the next minute or so. I appreciate that.
17 JUDGE ORIE: Yes.
18 MR. KEHOE:
19 Q. The bottom line with all of your conclusions where you offer
20 different opinions, different hypothesises, different ways of looking at
21 this evidence, you are doing just that, aren't you, Doctor? Offering the
22 Office of the Prosecutor a different way to look at this examination or
23 to look at this evidence while offering no certainty to the conclusions
24 or to the statement -- the scientific certainty to the conclusions you
25 put forth in your report.
1 Isn't that right?
2 A. I do not agree with you fully. There are some scientific
3 conclusions that were absolutely certain, and the majority of the reports
4 and upon examination of the bodies, we agreed with my -- I agreed with my
5 colleagues, my colleagues -- my Croat colleagues and myself were in
6 agreement for the most part.
7 Q. Doctor, thank you very much for your time, and I appreciate you
8 coming back.
9 MR. KEHOE: I have no further questions.
10 MR. MARGETTS: Mr. President, just one question.
11 JUDGE ORIE: Yes.
12 Re-examination by Mr. Margetts:
13 Q. Dr. Baccard, you dealt in the last few minutes with the issue of
14 certainty, probability, hypothesis, the various indicators that you take
15 into account to reach conclusions.
16 My question is: When there is a finding that the cause of death
17 is unknown, does that mean that there were no indicators of a cause of
18 death; or does that mean that you were unable to reach a sufficient level
19 of certainty to ascribe a cause of death?
20 A. No. The second part of your sentence is quite right, and it is
21 illustrated by the discrepancy in the opinion that I mentioned. It is
22 not because at some parts you can see lesions which show that there was a
23 gun-shot injury, in a peripheral limb for instance, that that will be or
24 that this will be reason to affirm that the person died from a gun-shot.
25 You must have a vital organ that's touched or that's injured by
1 this bullet or a gun-shot.
2 Q. Right. So it is -- there could be indicators of a cause of
3 death, but your finding could still be that the cause of death is
5 A. Yes, absolutely.
6 Q. Thank you, Dr. Baccard.
7 MR. MARGETTS: Thank you, Mr. President.
8 [Trial Chamber confers]
9 JUDGE ORIE: Since the Court has no questions, is there any need
10 for further questions to the witness based on what Mr. Margetts just
12 MR. KEHOE: No, Mr. President.
13 JUDGE ORIE: That's true for all three Defence teams.
14 Mr. Kehoe, since we have now concluded the testimony of the
15 witness, I don't know whether the comments you would like to make are of
16 a kind which still could have any impact on what happens at this moment
17 in court. If not, I would first like to excuse the witness.
18 MR. KEHOE: That's fine. My comments are directed to the
20 JUDGE ORIE: Yes.
21 This concludes your evidence, Dr. Baccard. [Interpretation]
22 Thank you very much for coming to testify not only once, but twice before
23 us, and I wish you a safe return even though if it is not too far.
24 THE WITNESS: [Interpretation] Thank you very much, Your Honour.
25 JUDGE ORIE: Thank you.
1 [The witness withdrew]
2 JUDGE ORIE: Mr. Kehoe, you have an opportunity. What I did
3 before the break, perhaps to make that clear, that unanimously the
4 Chamber was of the opinion that your questions were sometimes
5 repetitious, and sometimes the questions and the answers did not assist
6 the Chamber, and that's what I expressed. And when I say "your
7 questions," of course I mean to say, "many of your questions." That's
8 what I tried to express before the break.
9 Please have a short moment to comment, if there's any need to
10 comment, and may I remind that you this still a Court of law and not a
11 debating club. So I'm not seeking any debate, but we would not deprive
12 you from a possibility to put on the record what you think you need to
14 Please proceed.
15 MR. KEHOE: Yes, Your Honour. I take great umbrage at Your
16 Honour's comments. I also object strenuously to being restricted on a
17 time with a witness such as this. There has been 189 murders, killings,
18 not murders, killings added to this. The Office of the Prosecutor has
19 added heaven knows how many unknown uncertain matters there. I addressed
20 some of them today. And the question for the Defence is, without
21 guidance from this Chamber as to how the appellant decision is going to
22 be rendered, how is the Defence supposed to represent our respective
23 clients? The only way to do that is to systematically try to go through
24 these particular autopsies in topic area. I didn't go through 189; I
25 took selected areas of that.
1 Now we have to answer to that without some other information
2 coming from the Chamber. And we cannot stand idlely by and allow the
3 Prosecution to put forth unsubstantiated pieces of information to the
4 detriment of our client without making an attempt to go through them as
5 detailed a fashion as possible. That's number one.
6 The second issue, Your Honour, is that what happens in this
7 Chamber is not just for this Chamber. I appreciate Your Honours
8 attention and your intuitiveness in this regard, but hopefully not. But
9 it could very well that somebody else is going to have to -- going to
10 have to read this particular transcript.
11 The last thing is we are going to have to put together a trial
12 brief on this where we cite to particular items in the evidence, not just
13 what we consider to be Your Honours' conclusions in this regard, but the
14 facts that were actually brought out and substantiated, such as, I know
15 Your Honour didn't like the particular question, but there was method to
16 what I was doing. When there is an unknown cause of death, we need to
17 establish quite clearly and put it in the report that they cannot exclude
18 natural causes. If they cannot exclude natural causes, they have not
19 proven anything with regard to this death.
20 Now, there are any number of these that are in this indictment,
21 or in this clarification schedule. And what we are attempting to do is
22 to address this as quickly as possible. Now I took a very, very minor
23 period of time the other day, and I took less than a session the first
24 time before Your Honour grew impatient with my questioning. Nevertheless
25 as we move down the line, the questions that are given by not only
1 Dr. Baccard, but also Clark, are going to be significant for any final
2 trial brief when Your Honour has to consider exactly how to deal with
3 these clarifications, these additional 189 killings that are in there,
4 plus the ones that were in there from the first place.
5 So the restriction on time in doing that, and Your Honour I took
6 a very, very short period of time given amount of information, 53
7 autopsies that were presented by the Prosecution, that I objected to the
8 restriction of that time on that basis. To make a record and to answer
9 what the -- obviously the Prosecution has not answered itself, but it
10 seeming like in this evidence shifting situation that we find ourselves,
11 we have the Prosecution just dumping all this stuff out there on the
12 floor, that they then turn to the Prosecution to sort out. That's what
13 has happened here, and that's why it takes time, and it takes -- it is a
14 little bit labourious, Judge, I agree with you, to go through with it,
15 and maybe a little bit tedious, but it's necessary because there is no
16 other way to answer this particular item.
17 JUDGE ORIE: Mr. Kehoe, the reason why you were limited on time
18 was based exclusively on the basis of how you used your time before, and
19 in any later legal argument, you can rely on a report, which is, in many
20 respects, perfectly clear, often without additional questions.
21 We will ...
22 Ms. Frolich, is the Prosecution ready to call Mr. Puhovski for
23 being further examined?
24 MS. FROLICH: Yes, Mr. President.
25 [Trial Chamber confers]
1 MR. MARGETTS: Mr. President, if I may be excused.
2 JUDGE ORIE: Yes, you are.
3 [The witness entered court]
4 JUDGE ORIE: Good morning, Mr. Puhovski.
5 THE WITNESS: [Interpretation] Good morning.
6 JUDGE ORIE: I would like to remind you that the solemn
7 declaration you gave at the beginning of your testimony is still binding.
8 Mr. Misetic --
9 THE WITNESS: [Interpretation] I'm aware of that.
10 JUDGE ORIE: Mr. Misetic will now continue his cross-examination.
11 Please proceed, Mr. Misetic.
12 MR. MISETIC: Thank you, Mr. President.
13 WITNESS: ZARKO PUHOVSKI [Resumed]
14 [Witness answered through interpreter]
15 Cross-examination by Mr. Misetic: [Continued]
16 Q. Good morning again, Professor.
17 A. Good morning.
18 Q. We left off on Friday talking about the topic of your essay in
19 August 1995. I wanted to ask you, I'm sure you're familiar with the
20 subsequent situations in Eastern Slavonia, the peaceful transition of
21 eastern Slavonia
22 this case heard evidence that 25 percent of the ethnic Serb population
23 that lived in Eastern Slavonia prior to 1991 left between 1996 and 1998
24 rather than choosing to go stay to live in even Slavonia. As someone who
25 was familiar with the processes that were taking place throughout this
1 this time, do you have an understanding or an explanation as to why those
2 people - and I'm talking exclusively of the 25 percent of the ethnic
4 would have left Eastern Slavonia even as it was being peacefully
6 A. In my understanding they left Eastern Slavonia precisely due to
7 the reintegration, whatever its character be, even the peaceful one,
8 because they did not want to remain in the territory of the Republic of
10 territory that had not, for several years, been under the authority of
12 On several occasions, I went to the area with Mr. Klein and I
13 spoke to a number of these individuals. My estimation is, is that they
14 lived there with a mixture of fear that had to do with propaganda and
15 that to do with the information reaching the area once the columns
16 reached Serbia
17 TV to divulge reports about it being impossible to live together with
19 Q. Just for the record, Mr. Klein was the administrator of the UN
20 transitional authority in Eastern Slavonia. Correct?
21 A. Correct.
22 Q. Subsequent to the official turnover of authority in Eastern
24 killings, burnings, and other forms of physical violence toward the
25 ethnic Serb community in Eastern Slavonia after the transition?
1 A. To my knowledge, there weren't any, and I believe that I would be
2 aware of such a thing happening, had they happened.
3 Q. Just my last question on this topic area.
4 I'm sure you're familiar with the departure of ethnic Serbs from
5 Kosovo after NATO authority was established and their departure from the
7 Do you have any knowledge as to the reasons why those populations
8 would have left?
9 A. I have very little information and second-hand information at
10 that. As far as I know, in the case of Kosovo, the Serbs believe that
11 the NATO was an enemy administration which proved as such by having
12 bombed their country; whereas I cannot tell you anything specific about
14 Q. Okay. Turning to a different topic, I want to go through some of
15 these people that are identified in the report as having been killed
16 during and after military Operation Storm.
17 MR. MISETIC: If we can start off, this is ...
18 Yes, it doesn't have a P number yet. It is the HHO report, which
19 is 65 ter 4674, Mr. Registrar.
20 THE REGISTRAR: Can you say that number again.
21 MR. MISETIC: 65 ter 4674. And if we can go first to numbered
22 page 142.
23 Q. I'm taking you to killings in the Drnis area. This is in the
24 village of Cerovac, C-e-r-o-v-a-c. And you see the two entries at 55 and
25 56 which are two brothers. Let me wait for the B/C/S version.
1 A. I apologise, there are two different pages in the two versions
3 Q. There we go.
4 MR. MISETIC: At the bottom, please.
5 THE WITNESS: [Interpretation] I have found it. It's 135 in the
6 Croatian version.
7 MR. MISETIC:
8 Q. Now you see here there's a report that a Branislav Dokic, born in
9 1963, was a disabled person, did not serve the army. During the military
10 Operation Storm, the Croatian army took him outside the house and killed
12 Number 56 is Dusan Dokic, Branislav's brother. "He was ill. The
13 Croatian army took him too and promised to bring him back in two or three
15 But he is also identified as killed in the report.
16 MR. MISETIC: And Mr. Registrar if we could now have on the
17 screen, please --
18 Q. And I would ask you to in number 55 to -- in both entries to keep
19 in mind it says Ilinko as the father's name or mother's name, born in
20 1963, and then there's a brother Dusan, called Dusko, born in 1965.
21 MR. MISETIC: Mr. Registrar, if we could have 1D67-0365 on the
22 screen, please.
23 Q. Now you will see that Branislav who was listed in the HHO report
24 as having been killed during Operation Storm was in fact interviewed by
25 the Ministry of Interior.
1 MR. MISETIC: And if we turn the page, please.
2 Q. And he was interviewed on the 17th of August, 1995
3 And if you look, his personal identifying information, father's
4 name Ilija, and then he says he was born in 1963 which would match the
5 year of birth in your report. Under other information at the bottom he
6 says his mother is Ilinka, which is consistent with the name that
7 appeared in the HHO report as Ilinka. He also references that he has a
8 brother Dusan, born in 1965. And then if we were to read through this,
9 he would indeed say he was not a member of the ARSK.
10 But if we continue to see what happened to his brother ...
11 MR. MISETIC: And, Mr. President, I ask that the exhibit be
12 marked, and I tender this into evidence.
13 MS. FROLICH: No objections, Mr. President.
14 JUDGE ORIE: Mr. Registrar.
15 THE REGISTRAR: Your Honours, this becomes Exhibit D1311.
16 JUDGE ORIE: D1311 is admitted into evidence.
17 MR. MISETIC: Mr. Registrar, if I could have on the screen please
19 Q. Now this is the report of the interview of Dusan Dokic.
20 Again, if we turn the page, please, and you see this is taken on
21 the 17th of August, and the personal identifying information is he is the
22 son of Ilija; the date of birth is 1965; the remaining -- the other
23 information again the mother's name is Ilinka. He references that he has
24 a brother Branislav born in 1963. And then if you turn the page he talks
25 about his participation in the ARSK army.
1 MS. FROLICH: Mr. President, if just one comment, also notes that
2 the residence of these two individuals is Mrakovac.
3 JUDGE ORIE: Ms. Frolich, if there is anything you would like to
4 draw the witness to, you can do that in re-examination. There is no need
5 to complete perhaps a selective choice of what to draw attention to.
6 That is up to Mr. Misetic to do it in his way.
7 MR. MISETIC: Yes.
8 And, Mr. President, I ask that this exhibit be marked, and I
9 tender it into evidence.
10 MS. FROLICH: No objection, Mr. President.
11 JUDGE ORIE: Mr. Registrar.
12 THE REGISTRAR: Exhibit D1312, Your Honours.
13 JUDGE ORIE: D1312 is admitted into evidence.
14 MR. MISETIC: Sorry, Mr. President.
15 Mr. Registrar, if I could now have Exhibit 1D67-0126 on the
16 screen, please.
17 Q. I'm now showing you a decision by the president of the Republic
18 of Croatia
19 amnesty to certain members of the ARSK.
20 MR. MISETIC: If we turn the page. I have not translated just
21 the relevant portion for this exercise.
22 Q. If you see right there in the middle of the screen, Dusan Dokic,
23 son of Ilija, born in 1965, against whom criminal proceedings are under
24 way before the military court in Zagreb
25 rebellion ... is freed from criminal prosecution.
1 So based on your review of this documentation unless there is
2 some incredible --
3 A. Split, not in Zagreb
4 Q. [Previous translation continues]... right. Now, there is a
5 mistake in the translation, and we will have to have that corrected.
6 You see that, unless there is some incredible coincidence, that
7 these two brothers in fact appear to have been alive, Branislav certainly
8 as of 17th August and Dusan on 30th of December 1995. Correct?
9 A. Unfortunately, the two reports are not contradictory. We have
10 received reports about people being taken away, which is true in this
11 case. Some of them were interviewed; others were subject of criminal
12 proceedings; and still others never returned home. As far as we know,
13 the two individuals did not return home until 1998. That's why their
14 neighbours listed them as persons who were missing, who had not returned.
15 And that's what was noted down here. We didn't know what happened to
16 them subsequently. I am glad to hear that they are alive. But I have no
17 information to that effect.
18 Q. Well, actually that leads me into one of the one more overall
19 points I wanted to talk to you about.
20 Part of the information is, of course, based on if somebody is
21 missing, you would rely on the stories that -- or the information that
22 people who had been left behind would tell you about what happened to
23 certain people. Correct?
24 A. And when it is it established that somebody returned two or three
25 or six month the later, we would know about it because we would receive
1 reports. The last time we went to check whether they returned was in
2 1997, and then we would check them against the list we had. If they
3 hadn't returned, we would note down that unless they were registered
4 elsewhere and we were able to receive the information from their friends,
5 neighbours, or people who knew them, we would again need confirmation
6 from two independent sources, we would conclude that they were dead.
7 Q. Okay.
8 MR. MISETIC: Mr. President, I ask that the exhibit on the screen
9 be marked and I tender it into evidence with the caveat that we will
10 correct the mistranslation.
11 MS. FROLICH: No objection, Mr. President.
12 JUDGE ORIE: Mr. Registrar.
13 THE REGISTRAR: Exhibit D1313, Your Honours.
14 JUDGE ORIE: D1313 is admitted into evidence.
15 MR. MISETIC: Thank you, Mr. President.
16 There's another entry in the HHO report, which again is 65 ter
17 4674. It is in the English page 145. That's 145, which is page 146 in
18 the B/C/S. It is --
19 THE WITNESS: [Interpretation] No, 138.
20 MR. MISETIC:
21 Q. 138. Thank you, Professor. It is entry -- person number 111.
22 MR. MISETIC: One more page forward in the B/C/S.
23 THE WITNESS: [Interpretation] 139, yes.
24 MR. MISETIC: Sorry, one more page. There we go.
25 Q. This is now -- number 111 is in Otric. It relates to an
1 individual named Ilija Veselinovic, born December 8, 1931, found dead in
2 the vicinity of the road Gracac-Otric.
3 MR. MISETIC: And, Mr. Registrar, if I could have 1D67-0001,
4 please. This would be at page 5 in the Croatian text.
5 Q. Now, this is -- what I'm going to show you, and we'll be
6 referring back to occasionally. This is a report of an investigation
7 done by the Croatian police, in part, that deals with part of -- of the
8 HHO report. In other words, somebody filed a criminal complaint on the
9 basis of the allegations made in the HHO report and the Croatian police,
10 in 2002, reported to the state attorney's office as to what information
11 the police had about some of the names that appear in the HHO report.
12 MR. MISETIC: So if we go to page 5, under entry number 1, it
13 deals with Nikola Dragicevic, but it says towards the middle -- actually
14 if you go down to the entry that says -- towards the middle of that
15 second paragraph under Nikola Dragicevic, it says it was established that
16 Ilija Veselinovic was a civilian. He was identified on the basis of the
17 identity card number found on him, issued by Obrovac Municipal
18 Secretariat of the Interior.
19 If you go to the next paragraph it says. On 6 February 2001, the
20 Obrovac police station issued personal identify card in the name of Ilija
21 Veselinovic, son of Johan, born 5 October 1931. Subsequent investigation
22 removed any doubt that this is one and the same person and that the date
23 of birth was changed on the basis of the date found in the register of
24 births. During an interview Ilija Veselinovic, he stated he lost his
25 wallet in the night on the Gracac-Otric road when he left the Republic of
2 contained his medical card and an identity card issued in his name.
3 Then the report goes on to talk about who in fact may have picked
4 up that identity card and who the person -- who the body might be.
5 Now, with respect to Ilija Veselinovic, some of -- at least with
6 respect to Ilija Veselinovic identified in the report, it turns out that
7 that person born in 1931 in fact appears to have been alive as of 2002,
8 and so some of the information in your report also can be mistaken on the
9 basis of mistakes such as this, in terms of how a body was identified
10 when it was found. Correct?
11 A. It cannot be contested that this was a mistake. A person whose
12 was found who was an elderly man who had grey hair and had an identity
13 card on him in the name of Ilija Veselinovic. It was under that name
14 that he was buried, and the information was conveyed to everyone
16 The new piece of information emerged in spring of 2001, and I got
17 to know about it only two years later. Unfortunately, or fortunately the
18 name was wrong, and as far as I know, to this day, the identity of the
19 dead body has not been established. Even though this report claims to
20 know the identity of the person, it was said that the person resided in
22 name that we wrote down and attributed to him was wrong.
23 Q. Just so -- you didn't get to see the second part of the report
24 there. But it says that this body was found along with the bodies of
25 eight other individuals, all of whom were members of the ARSK army.
1 So ...
2 MR. MISETIC: Mr. President, I ask that this exhibit be marked,
3 and I tender it into evidence.
4 THE WITNESS: [Interpretation] But the gentleman -- it was not
5 that gentleman, because, first, it was said that this was the name of the
6 gentleman, but then later on it was established that the person under
7 that name resides in Belgrade
8 let me say that there were more individuals found who were soldiers and
9 who were not identified in this report because, undoubtedly, they were
10 members of a military group.
11 MS. FROLICH: Objection, Mr. President.
12 MR. MISETIC: No, Ms. Frolich, sorry.
13 JUDGE ORIE: Mr. Registrar.
14 THE REGISTRAR: Exhibit D1314, Your Honours.
15 JUDGE ORIE: Is admitted into evidence.
16 MR. MISETIC: Thank you, Mr. President.
17 JUDGE ORIE: Mr. Misetic, we have this whole report. You gave
18 examples where there's a clear -- on the basis of the other documents you
19 have shown, at least there's a very strong support for the suggestion
20 that they're still alive. At least were still alive at a certain moment.
21 MR. MISETIC: Yes.
22 JUDGE ORIE: Could you tell us, and could you perhaps agree with
23 Ms. Frolich on how many are established to be still alive. I mean,
24 that's, of course, important information for the Chamber.
25 MR. MISETIC: I would be happy to do it outside of the presence
1 of the witness.
2 JUDGE ORIE: Okay. Then we'll hear later from you.
3 MR. MISETIC: Happy to discuss it, yeah.
4 If we could turn to the next page which is page 146 in the
5 English. It's entry number 120 in the report.
6 I'm sorry, I have the wrong exhibit on the screen.
7 65 ter 4674, which is page 140 in the B/C/S; e-court page 140 in
8 the B/C/S, yes.
9 Okay. If we look at -- it's actually the one on the bottom, 120.
10 I don't know why we have ...
11 JUDGE ORIE: We have several entries, 120. I don't know whether
12 you want to refer to --
13 MR. MISETIC: Oh, I see. Yes.
14 JUDGE ORIE: -- Djuro Mandic or Djuro Cenic.
15 MR. MISETIC: That's what got me confused.
16 THE WITNESS: [Interpretation] Page 140 of the Croatian version.
17 MR. MISETIC: There seems to be a mis-numbering, Professor, which
18 through me off. It should be 120 in the English, Djuro Mandic. That's
19 the person I wanted to ask you about.
20 You see there that the allegation in the report that he was 81
21 years old, that he was slaughtered and massacred in his backyard around
22 August 20th. Firstly, he was buried in the backyard. Then his body was
23 moved to Gracac under the number 387 but without the name on it.
24 And at the time of this incident, the Croatian Helsinki Committee
25 actually filed a public report which I'd like to show you, which is
1 1D67-0055, which is an HHO statement number 29, dated on the 2nd of
2 November, 1999, put out by the president, Ivan Zvonimir Cicak.
3 You can see statement number 29, and if we go to page 2 in the
4 B/C/S, and page 3 in the English.
5 The incident with Djuro Mandic is the fourth paragraph from the
6 bottom in the Croatian version. And it's in the middle of the page there
7 in the English.
8 It says:
9 "Djuro Mandic was massacred in this courtyard on August 25, 1995.
10 At that time his head and both of his arms were cut off, and traces of
11 brutal torture were visible on his body. Close relatives buried him
12 there, but when they requested that he be buried in the local cemetery,
13 members of the MUP took the body and without their permission or presence
14 allegedly buried him in Gracac."
15 The last page has the -- states that it is issued by the
16 President, Ivan Zvonimir Cicak, and it's dated 2nd November 1995.
17 Mr. President, if I could ask that this exhibit be marked, and I
18 tender it into evidence.
19 MS. FROLICH: No objection, Mr. President.
20 JUDGE ORIE: Mr. Registrar.
21 THE REGISTRAR: Exhibit D1315, Your Honours.
22 JUDGE ORIE: Is admitted into evidence.
23 MR. MISETIC: Now, Mr. Registrar, if we could have 1D67. Again,
24 sorry, that was just admitted.
25 It's 1D67-0001; I'm just looking for the D number, as it was just
1 admitted. D1314, Mr. Registrar.
2 It's numbered page 21 in the Croatian, and numbered page 20 in
3 the English. It's at the top, yes.
4 Q. Now, it list what the allegation is. In the first sentence it
5 says, this is again that report by the Ministry of Interior in 2002. It
6 says Djuro Mandic 81, slaughtered and massacred. I think it should be
7 25 July -- 20 August, I'm sorry, again, there is a wrong date, and we
8 will have to correct that.
9 "... in his courtyard and buried in Gracac."
10 A. Correct. In Croatian it is correct.
11 Q. Yes.
12 Then the MUP reports on what information it has about this
13 incident. And it says:
14 "In 2002 the MUP reports Marija Mandic, daughter of Djuro, born
15 on such-and-such a date, went to the Gracac police station on 9
16 September 1995 to report that on 25 August 1995, she had found her father
17 Djuro Mandic death dead in the garden of their home. She buried her
18 father but now wants to move him to the Gracac town cemetery. The
19 remains of Djuro Mandic, whose real name is Georgije Mandic, were buried
20 at Gracac cemetery following the guidelines for the humane disposal of
22 And finally, let me show you a Prosecution document which is
23 P1355. This is the Croatian protocol, and this will show you a picture
24 of the body as buried. And I had ask you to remember to Mr. Cicak's
25 report that Mr. Mandic's head and arms were cut off.
1 Now, that's the picture that's been identified as
2 Georgije Mandic, but you can see that it appears that his head and arms
3 were in fact not cut off. And if we turn the page, you can see that this
4 is the autopsy -- or the identification for -- in fact Georgije Mandic.
5 Now can you explain how the HHO came into information that in
6 fact this person had been massacred and his head and arms had been cut
8 A. From his family. They shared that with our associates. By that
9 time, that piece of information had been published, and it wasn't put
10 into question. I don't know whether this is the picture of the very
11 corpse. What is important is that he was killed, buried in his yard, and
12 then moved elsewhere. Those were the facts we came forward with. They
13 are not in dispute. As for whether his arms and head were cut off,
14 that's something I can't tell you. We received that information, and we
15 published it. It was not denied until 2001, although we can see that the
16 police had had some reports prior to that, but for some reasons of their
17 own, they wouldn't share it. We were unable to get by those reports, and
18 we published what we had.
19 What I can tell you is that this was not denied by the time
20 Mr. Cicak's statement reached the public.
21 Q. Okay. My question to you is in terms of the -- your now review
22 of the investigation conducted by the HHO, do you agree that sometimes
23 information provided by relatives might not necessarily be accurate such
24 as if in fact the information came from the relative that the arms and
25 head were cut off, that sometimes that information it be exaggerated?
1 A. That is true, unfortunately. I only want to say that in the last
2 two days there were seven instances of misinformation that you and
3 Ms. Higgins operated with. You have had a lot of information at your
4 disposal, our reports, expert reports, and still you make mistakes. You
5 can only imagine what the situation was like for us in 1995 and 1996;
6 that's to say how our colleagues had to work in the field without any
7 prior or additional information whatsoever.
8 Q. Okay. Let me turn your attention to pages 25 and 26 of 65 ter
9 4674 which is the HHO report, and I'm referring again, unfortunately, to
10 the English pages.
11 A. I'll find it.
12 Q. There's an entry in the back at number 140 for Asija Delic, but
13 this is in the actual report itself. You give more detail about what
14 happened to her and her family. And I'd like to ask you a few questions
15 about this.
16 But this is the paragraph that begins: "126 residents lived ..."
17 And then towards the middle it says: "Only four persons remained
18 to live in the village. The Delic family, mother Saja" -- and this is
19 page, yes, 24.
20 A. 24.
21 Q. Yeah, page 24 in the Croatian version.
22 "The Delic family, mother Saja, born in 1904, her son Donaj, his
23 wife Bosilka, and the old women Saja Barac."
24 And then the next paragraph says:
25 "The soldiers belonging to the 5th Corps of the
1 Bosnia-Herzegovinian army entered the villages of Nebrusi [phoen] and
2 Kruge [phoen] without any fight at all. The Croatian army entered on
3 7 August. The soldiers of the Bosnian-Herzegovina army entered the
4 village of Nebrusi on August 3rd. The Delic family was literally
5 destroyed that day.
6 If we go down it says: "Mother Saja disappeared and Bosilijka
7 was found with serious bodily injures. She was transferred to Bosnia
8 with the help of some international humanitarian organizations.
9 We turn the page in English, and we can stay on this page in the
11 "The mother Saja Delic was hospitalised in Knin where she died
12 from the consequences of beating on December 21, 1995."
13 Now, from this story it would appear that in fact this woman and
14 some members of her family were beaten by members of the 5th Corps of the
15 ABiH which entered certain areas of Croatia first. Correct?
16 A. That is what we received by way of information.
17 Q. I'd like to show you a different report on this topic of the
18 ABiH, which is 1D67-0369, please.
19 This is a police interview from 2002 with a woman named
20 Danica Leka. She talks about what happened to her.
21 MS. FROLICH: Mr. President, I thought the procedure was to first
22 put the question to the witness from an interview, even if it is an
23 Official Note than show the actual note.
24 MR. MISETIC: It's not the practice that's been thus far,
25 Mr. President. It has been OTP statements and matters that have been
1 given to the OTP. Plus, the individuals I'm talking about are in his
2 report, so in effect, there is no difference between this and a police
4 JUDGE ORIE: Nevertheless, before showing a witness, it is always
5 good to see whether he has any spontaneous recollection of the matter.
6 MR. MISETIC: Without looking at the document, Professor, I'm
7 going take you through the exercise of the formality.
8 What happened to Nikola Babic, Rade Babic, Nikola Oric,
9 Oleg Pavolic? Do you have any idea?
10 A. No, not off the cuff.
11 Q. Let's go to the document then. This is a note of the police
12 interview of Danica Leka. And if we could put that up.
13 Now, if you go to the fourth paragraph, she says that her son,
14 Nedeljko, and this is Nedeljko Leka, who is entry number 354 in the HHO
15 report at page 161 in the English, "had gone missing 5 August 1995
16 According to her information, members of the 5th Corps Bosnian army had
17 breached that border area of the Republic of Croatia
18 immediately prior to his disappearance, and it goes on, according to her
19 information, her son was killed by members of the B and H army, as it is
20 known that they were in the area at that time and not members of the HV.
21 She disposes" -- and now there's a translation error here. If you look
22 at the original, it says:
23 "She disposes of information that members of the 5th Corps killed
24 some additional persons of Serb ethnic origin." And there is reference
25 to a Petar Babic in the original which was not translated into the
1 English. Petar Babic is in the HHO report at entry 346. And then it
2 goes on, such as Rada Babic, who is line 347 in the HHO report, born in
3 1936. She goes on -- I'll skip some of these individuals who are not in
4 the report.
5 Then Nikola Babic, called Niko, from Arapovdol [phoen] who was a
6 civilian, after he refused to give him his horse; and Nikola Orlic, who
7 is entry 349 in the HHO report at page 161, son of Dragan, born 1928, a
8 member of the army of the RSK who was armed while conducting guard duty
9 at the Abdic mountain in civilian clothing. According to her
10 information, members of the 5th corps of the ABiH army killed
11 Oleg Pavlovic. Oleg Pavlovic is entry 350 in the HHO report at page 161
12 in the English.
13 My question is, it is legitimate because your report doesn't
14 apparently distinguish between whether someone was killed by the Bosnian
15 army or the Croatian army. So in fact these people were killed, and it
16 is accurate to predict -- to portray that in the report.
17 My question to you, though, is in term it is of the persons
18 killed, some of these individuals, or the person doing the killing in
19 fact in quite a few of these incidents, were in fact from the Bosnian
20 army 5th Corps. Do you have any personal knowledge of that?
21 A. First of all, we had Petar and Rade as Bobics, not Babics.
22 Therefore, on our list the last name was Bobic. However, it seems that
23 this refers to the same situation.
24 Second of all, we didn't find it within our remit to accuse
25 anyone. We are an NGO. We did our best to establish who the victims
1 were and, if possible, if we knew, we stated which units were present in
2 the field at the time. As I said on Friday, we had some information
3 about the people who were killed by a RSK plane. We also have some
4 information based on the reports of the people killed by members of the
5 5th Corps, in some ten locations. We also have information on the
6 whereabouts of certain Croatian units, when some murders took place. All
7 that information was provided, and we received it through witness
8 reports. Our task was not to allocate responsibility.
9 MR. MISETIC: Mr. President, I ask that the exhibit be marked and
10 I tender it into evidence.
11 MS. FROLICH: No objection, Mr. President.
12 JUDGE ORIE: Mr. Registrar.
13 THE REGISTRAR: Exhibit D1316, Your Honours.
14 JUDGE ORIE: D1316 is admitted into evidence.
15 MR. MISETIC: Mr. President, I think we're close to a break, but
16 I was asked to put on the record that the Gotovina Defence has tendered a
17 bar table submission that were leftover documents from the
18 cross-examination of Witness Lausic, as well as from the summer witness
19 Roberts, and the Prosecution has indicated no objection.
20 JUDGE ORIE: Yes.
21 Mr. Registrar, have numbers already been assigned to them?
22 [Trial Chamber and registrar confer]
23 JUDGE ORIE: I do understand that these bar table exhibits were
24 presented in a format as the Chamber asked for, which is very much
1 Mr. Registrar, would you please prepare a list and provisionally
2 assign exhibit numbers so that the Chamber can decide on the admission.
3 Then we'll have a break. We will resume at ten minutes to 1.00.
4 --- Recess taken at 12.32 p.m.
5 --- On resuming at 12.53 p.m.
6 JUDGE ORIE: Mr. Misetic, before we continue, I'd like to very
7 briefly with a procedural matter.
8 We have received a new motion in relation to Witness 82. Same
9 request, grounds now different; videolink. The Chamber would like to
10 hear as soon as possible from the parties whether there are any
11 objections against this new motion.
12 MR. MISETIC: We will be objecting. If you wish, we'll file
13 something in writing, or if you wish to hear it orally.
14 JUDGE ORIE: Well, we could hear it orally, but perhaps we then
15 -- it's clear to us, and let's see whether we still find time. How much
16 time would it take?
17 MR. MISETIC: For me, 60 seconds, Mr. President.
18 JUDGE ORIE: Sixty seconds, yes.
19 Other Defence teams?
20 MR. MIKULICIC: Your Honour, we will object as well.
21 JUDGE ORIE: Ms. Higgins.
22 MS. HIGGINS: Your Honour, I would like to review the filing this
23 afternoon and inform the Court this afternoon.
24 JUDGE ORIE: Yes.
25 MS. HIGGINS: I'm grateful.
1 JUDGE ORIE: Please proceed, Mr. Misetic.
2 Ms. Frolich.
3 MS. FROLICH: Excuse me, Mr. President, I beg your pardon, but I
4 just wanted to briefly address the bar table for Witness Lausic. We
5 didn't have a chance to make our comments before the break.
6 We just briefly wanted to say there are no objections to all
7 documents aside from the video-clip that -- excuse me, that we have been
8 unable to view the video-clip until now. That is Document 1D66-0252, and
9 if possible we want it reserved until we have had the chance to view it,
10 which would probably be, maybe even during this session.
11 And another comment I wanted to make on document that was
12 submitted on tab 4 of the Defence chart which was 1D66-0001 examples of
13 the mobilised HV members against whom legal proceedings were taken. We
14 don't object to the documents themselves, but we wanted to put on the
15 record that that description does represent accurately what is contained
16 in these document, since not all service records show that indeed these
17 members against whom criminal reports are filed were demobilized at the
18 time that the crime was commit -- the crime in question was committed, or
19 at least it is unclear in some instances what these records show.
20 We can send a more detailed review to the Chamber if that would
21 be of assistance or ...
22 JUDGE ORIE: Of course what the Chamber would prefer that if
23 we're just talking about characterizing what the document is, that if the
24 parties could agree on that, that would be --
25 MR. MISETIC: That's fine, Mr. President. I can just tell the
1 Prosecution that it is either they were demobilized as a result of the
2 criminal activity, or in the MUP report, they are identified as members
3 of the HV when in fact they were demobilized well prior to that. So
4 either way, it was submitted for both purposes.
5 JUDGE ORIE: [Overlapping speakers] ... At least the report, it
6 is demobilised.
7 MR. MISETIC: Yes, Mr. President.
8 MS. FROLICH: If my description could be amended to show at which
9 point they demobilised at in relation to the crime -- [Overlapping
10 speakers] ...
11 JUDGE ORIE: Yes. Let's not spend too much time in Court on what
12 seems to be a matter of relatively small importance. And if the parties
13 need any assistance in uniting on the description, I make myself
14 available to assist.
15 Please proceed, Mr. Misetic.
16 MR. MISETIC: Thank you, Mr. President.
17 Q. I next wish to turn to the person identified as victim number 64
18 in the report, and this is on page 142 in the English, and her name is
19 Marija Puskar.
20 MR. MISETIC: And, Mr. Registrar, if I could cull up 1D67-0111,
22 Q. Now, the report at entry 64 identifies Marija Puskar as being a
23 Serb born in 1928. And if we look at -- I'll show you two documents.
24 First this is a report prepared on 10th of August, this is an official
25 police note on the discovery of the body, and can you see that a
1 Milan Mujan entered the premises on the 7th of August and found
2 Marija Puskar hanging in the house. It says he said that he was familiar
3 with the fact that the husband Nikola and sons Jovo, Mile, and Bosko,
4 were members of paramilitary units and extremists individuals, maltreated
5 the deceased in the manner that they physically abused her, beat her, and
6 it says that they cursed her Ustasha mother.
7 Before I get to the next note, Mr. President, if I ask that this
8 exhibit be marked and I tender it into evidence.
9 MS. FROLICH: No objection, Mr. President.
10 JUDGE ORIE: Mr. Registrar.
11 THE REGISTRAR: Exhibit D1317, Your Honours.
12 JUDGE ORIE: D1317 is admitted into evidence.
13 MR. MISETIC: And, Mr. Registrar, if we could now go to
14 1D67-0113, please.
15 Q. This is again on the 10th August, and I'm just interested here in
16 the first paragraph. It says it's compiled in the Drnis police station.
17 In connection with the suicide by hanging of Marija Puskar, maiden name
18 Mujan where she was also residing. She was a housewife by occupation,
19 Croat by origin.
20 Now, how did the HHO -- my question is how did the HHO go about
21 identifying the ethnicity of some of the individuals who were identified
22 as being killed?
23 A. Like any other data, we received this information based on the
24 statement of her relatives, family, or neighbours, anyone who could
25 provide us with information on the victims.
1 Q. The next question is if someone committed suicide, would the HHO
2 have considered that person to have been killed, such that they would
3 then be included in the report?
4 A. In the report, I believe there are five or six references to
5 suicide. They are separated from the rest. We had information on those
6 few people as having killed themselves. We put them in a separate
7 category, stating that probably because of the situation at the time,
8 they decided to kill themselves. However, we did not have information on
9 this woman killing herself, and we did not have the information contained
10 in this report that she was an ethnic Croat.
11 MR. MISETIC: I ask that the exhibit be marked, and I tender it
12 into evidence.
13 MS. FROLICH: No objection.
14 JUDGE ORIE: Thank you. Mr. Registrar.
15 THE REGISTRAR: Exhibit D1318, Your Honours.
16 JUDGE ORIE: Is admitted into evidence.
17 MR. MISETIC: Staying on the topic of suicides, there is an entry
18 five lines above the Marija Puskar entry for Grozdana Sepelj at entry 59,
19 unknown nationality, the corpse was found on 6 August in Drnis. She was
20 buried in Sibenik. 1D67-0107, please, Mr. Registrar.
21 Yes, 1D67-0107.
22 THE WITNESS: [Interpretation] If I may caution to something. The
23 reference to her son and husband being killed during the liberation of
24 Zitnic, that is not correct. The son is still among the living. Hence,
25 there are mistakes on each page or -- by each of the parties.
1 MR. MISETIC:
2 Q. Okay. I think the report said that the sons and the father, the
3 earlier report we saw, fled towards Knin and left her in the house, but
4 we can check that.
5 A. [No interpretation]
6 Q. Okay.
7 A. It says deceased. And then there is no dispute.
8 Q. This is the record of external examination of Grozdana Sepelj
9 taken 7 August 1995
10 MR. MISETIC: If we could turn the page in both the English and
11 the Croatian.
12 Q. And I'm going to apologise, Professor, in the Croatian, the copy
13 we have is very bad due to the photocopying.
14 A. I can read it.
15 Q. The conclusion on the 7th of August is from the obtained
17 "And after conducting examination my conclusion is that this is a
18 suicide case by an explosive device, and that the above mentioned
19 amputations and injuries to the head region caused death."
20 How many -- when you were conducting your analysis, did you
21 include individuals who either, for example, died as a result of an
22 explosion of a device they, themselves, were carrying, or for example,
23 another possibility is people who were travelling off of main roads who
24 may have come across land-mines and things like that. Would those people
25 be people that would be included in your report as having been killed?
1 A. To repeat, we included in the report those whose murder was
2 confirmed by at least two people. I can only warn you of the following,
3 as any expert might. A suicide committed by a woman by using a
4 hand-grenade is something that simply does not exist in Croatia and such
5 environs. I don't believe that is reason enough to believe that she had
6 committed suicide.
7 Q. Well, sometimes people accidentally kill themselves, right? They
8 don't intend to die, but if they're handling explosive devices
9 improperly, they can wind up killing themselves. Correct?
10 My question to you is --
11 JUDGE ORIE: The witness --
12 THE WITNESS: [Interpretation] I'm merely reacting to what I see.
13 In my view, this conclusion is not founded on the material facts.
14 Perhaps it should have stated "accident."
15 There were explosives all over the place at the time, and
16 laypeople handled it. That is not in dispute. Perhaps they should have
17 said that she was toying around with the explosive or trying to do
18 something with it, thus killing herself. That I would find reasonable.
19 But this is a bit far-fetched.
20 MR. MISETIC:
21 Q. Well, to follow up on one of your answers, and it may be an issue
22 in the English terminology, but you said that you, I believe, consider
23 these to be murders. And the title of Annex 1 is civilians killed during
24 and after Operation Storm. And I you're not -- I don't have any
25 knowledge that you are a lawyer. You may have some legal training, but
1 if you do, please correct me.
2 But there is a distinction that you may know between someone
3 being killed and someone being murdered. And I guess if you can clarify
4 for us now this annex, is it an annex of people who were killed; or an
5 annex of people that the Croatian Helsinki Committee contends were
7 A. According to the information we had, and I stress again that we
8 received that information from the people who certainly did not possess
9 such expert knowledge, we received information on people being killed,
10 being outside the area of combat. I would say then perhaps that such
11 people were killed without participating in combat, and on the basis of
12 such information, we cited those persons in the report, following witness
13 statements in the field.
14 Q. Okay. And I'm sorry, if this is repetitive, but I just want to
15 clarify this.
16 If a person or a group of people travelling along come across and
17 trigger a land-mine, for example, and one or more of them are killed, is
18 that the type of individual or individuals who would be considered as --
19 who would be considered as inclusive in this report, or would you exclude
20 those people this report?
21 A. Only in one place are two persons mentioned as having been killed
22 by explosives. One of them was a victim of a booby-trap that was planned
23 in a house; and the other individual was killed by a shell in the yard.
24 This was part of the description of how they met their end, and this was
25 killing. It was not part of what we wanted to base our report on, based
1 on the accounts we heard in the field, about people being murdered.
2 MR. MISETIC: Mr. President, I ask that the exhibit on the screen
3 be marked, and I tender it into evidence.
4 MS. FROLICH: No objection.
5 JUDGE ORIE: Mr. Registrar.
6 THE REGISTRAR: That's Exhibit D1319, Your Honours.
7 JUDGE ORIE: And is admitted into evidence.
8 MR. MISETIC:
9 Q. The next person that we wish -- I wish to ask you about is at --
10 is at line 86, or is the person identified as 86, which is page 144 in
11 the English, page 139 in the B/C/S, and this is Marija Banjanin.
12 A. Page 138 in my version.
13 Q. Yes. I mean 139 in the e-court version of the B/C/S.
14 A. The electronic version.
15 MR. MISETIC: And Mr. -- sorry.
16 Q. I can just read it out. That's fine. You have it in front of
17 you, Professor, so it says at entry 86:
18 "She was found without a head." It says "he," it should be:
19 "She was last seen --" or "was seen last time on 6 August 1995 in front
20 of the police station in Gracac."
21 MR. MISETIC: And, Mr. Registrar, if we could call up 1D67-0115,
23 THE WITNESS: [Interpretation] I apologise. In my report it only
24 says a Serb lady, aged 89, found -- she was a bedridden, disabled person
25 found in her bed. There is nothing else that's mentioned in my report.
1 The book is here.
2 MR. MISETIC:
3 Q. I'm looking at the English translation, sir, so ...
4 A. I apologise. We were responsible for the English translation,
5 but this is what the original states, and in that case it's an error on
6 our part, since we're responsible for the translation.
7 Q. Okay. I'm actually more interested in the part that she was
8 found without a head, so I think we're consistent with the English and
9 the Croatian on that point. This is the --
10 A. Yes.
11 Q. This is the Official Note of the discovery of her body, and it
12 says that they -- the police in the second paragraph arrived at the site
13 of the incident. The daughter was there, Radmila Banjanin, and said that
14 inside the house she found her mother Marija Banjanin, born in 1905, no
15 other information, dead in the bedroom next to the bed. "After examining
16 the site of the incident, it was established that the body of the female
17 person, examination conducted in the presence of the physician on duty,
18 Ivan Perovic ... was approximately two weeks old." Talks about objects
19 were scattered across the room.
20 Next paragraph: "We secured the site of the incident until the
21 arrival of the investigation team ... when the investigating judge of the
22 county court of the Zadar-Knin country, Petric Milan, arrived at the site
23 ..." as well as operative officers, criminal technicians, et cetera.
24 MR. MISETIC: Mr. President, I ask that this exhibit be marked,
25 and I tender it into evidence.
1 MS. FROLICH: No objection, Mr. President.
2 JUDGE ORIE: Mr. Registrar.
3 THE REGISTRAR: Exhibit D1320, Your Honours.
4 JUDGE ORIE: Is admitted into evidence.
5 Mr. Misetic, if the English version differs from the original
6 one, then, of course, it's a matter on which the Chamber would like to be
7 informed, even if the witness accepts responsibility for an English
8 translation which is not accurate. Nevertheless, I do understand that
9 this is not because he accepts responsibility for the new text but for a
10 mistake being made in translating the original text.
11 Is that how I understand your testimony?
12 That means that, of course, the Chamber would like to have the
13 original --
14 THE WITNESS: [Interpretation] That's correct.
15 JUDGE ORIE: Could you inform the Chamber where the differences
16 exactly are because you mentioned something about being found without a
17 head, and that is --
18 MR. MISETIC: That's in both the -- -
19 JUDGE ORIE: That's in both. Yes, of course, I'm not in a
20 position because the witness commented on the original version. So I do
21 understand that that's found in both versions.
22 MR. MISETIC: Yes. Yes, Mr. President.
23 JUDGE ORIE: That's clear. Thank you.
24 MR. MISETIC: Mr. Registrar, if we could now go back to D1314,
25 please. And this is page 12 of the English -- sorry, page 12 of the
1 Croatian and page 12 in the English.
2 Q. This is under Gracac. It says Marija Banjanin. This is, again,
3 that police report from 2002 which tried to investigated some of the
4 allegations in the report. It says:
5 Marija Banjanin, born in 1906, disabled, her head was cut off.
6 And then it talks again. It repeats some of the information we've seen,
7 that the body was found by the daughter. The investigating judge of
8 Zadar county court and officers of Zadar police administration went on
9 location. An autopsy was carried out on the body of Marija Banjanin by a
10 pathologist who established that she had died of natural causes. The
11 discovery -- they discovered that the corpse was about 20 days old. We
12 have sent you a special report concerning the above.
13 MR. MISETIC: I can tell you, Mr. President, we don't have a copy
14 of the special report.
15 Q. But, Professor, you would agree with me that if in fact she died
16 of natural causes, then -- and nothing in the report of the on-site
17 location indicates that the body -- or the head had been severed from the
18 body. Would this be another report that was based on information that
19 you had heard as opposed to information that would have been
20 independently verified by an examination of the body?
21 A. I repeat again: We weren't able to receive any sort of police
22 reports at the time, though we sought them. This information was made
23 public at a much later date. We published the information we had.
24 Let me just note that in the first report it stated that the body
25 was 14 days old; in the second report, it is stated that it was 20 days
1 old. Evidently, the job was not done that professionally. I'm sorry if
2 we received inaccurate information. I repeat, that was the only
3 information we had. We sought a response from all the different police
4 stations in relation to the information we had, and I repeat, if there
5 are inconsistencies or inaccuracies in the report, they stem from the
6 lack of information.
7 Q. Okay. Then let me turn your attention to two other -- two
8 entries in the report. One is at line 62, which is page 142 in the
9 English version.
10 MR. MISETIC: It's e-court 137 in the Croatian.
11 Q. It's an entry is a says Draginja Vukse, Serb, killed. The corpse
12 was found in the well.
13 And then if you turn to page 152, at the entry at number 218, it
15 "Dragica Vukse, Serb, old, between 90 and 95. She was found in a
16 well on November 13, 1995."
17 Now, my question to you is, are you familiar with the
18 possibilities of double-counting in your reports the same person because
19 the first name -- let me put it to you. Draginja and Dragica can be
20 variations of the same first name; correct?
21 A. Unfortunately, that is highly likely. I'm not certain of it, but
22 it is quite likely that this is indeed the case, yes.
23 Q. And let me just show you the police report of the discovery.
24 MR. MISETIC: Mr. Registrar, if I could have 1D67-0149, please.
25 Q. And This is the special report when the body was discovered. And
1 again, this is consistent with the entry in one of the entries which says
2 that the body was found on 13 -- sorry, 11 November 1995. It says an
3 investigative judge went out on the 13th of November; conducted a on-site
4 investigation. Members of UNCIVPOL were present. A crime technician
5 examined and photographed the site.
6 Now the paragraph below I wanted to ask you about because it
8 "Members of the UNCIVPOL stated that they received information
9 about the incident from members of the Dalmatian Solidarity Committee
10 from Split Mr. Ivica Vojko and Mrs. Olja Simic who discovered the body in
11 a well and found that it was the body of Draginja Vukse who they were
12 trying to locate for sometime, since 19 September 1995."
13 Now, this -- it says Olja Simic. Is that really Olga Simic, who
14 was also in the Croatian Helsinki Committee?
15 A. That's correct. This was her nickname.
16 Q. When members of the Croatian Helsinki Committee would find a
17 body, was it typical that they would first contact the international
18 monitors in the area without contacting the police, or how would they go
19 about contacting members of the police to investigate?
20 A. This is how it worked in practice. At first, we wanted some of
21 their relatives or neighbours to report that to the police, since our
22 experience and cooperation with the police on the ground was quite poor.
23 If that wasn't possible, then our activists would go to the police, and
24 if that didn't work either, then we would turn to some of the
25 international representatives present in the area.
1 This was the practice we agreed upon after our first field visit,
2 where it turned out that our contacts with the police did not work that
4 Q. Okay.
5 MR. MISETIC: If we could turn the page, please.
6 Q. Now, it says, remarking on the result of the physical
7 examination, it says that:
8 "Dr. Josip Dujella, a specialist pathologist, conducted the
9 external physical examination ... the examination was conducted during
10 the on-site investigation, at which point the specialist pathologist
11 established that there were no visible signs of violence on the body and
12 established the cause of death as drowning."
13 Beneath that, it says:
14 "There are no indications pointing towards a criminal offence."
15 Now, would -- first, did the Croatian Helsinki Committee know of
16 the results of the investigation by the investigating judge and the
17 special pathologist before it included the name of --
18 A. No. They always treated us as an organisation that was not
19 entitled to special information. That is why we tried to have family
20 members report such incidents because they would be entitled to further
21 information. As far as I know, we did not receive this or any other
22 police reports.
23 Q. Okay. Would you agree with me that with respect to many of the
24 entries in the report, in order to verify what actually happened in terms
25 of the results of an investigation, we would have to actually go to the
1 MUP records for each incident and see whether an examination was
2 conducted and whether there were results of any investigation?
3 A. Of course. I repeat, had we been able to gain access to them.
4 This is a NGO report, a report by a NGO, which is not engaged in any
5 activities related to criminology but in establishing victims. There is
6 one thing called the pathological examination of the site. This is
7 something that is not the typical practice in civilised countries,
8 although it proved necessary in the countries at war.
9 MR. MISETIC: Mr. President, I ask that the exhibit be marked,
10 and I tender it into evidence.
11 MS. FROLICH: No objection, Mr. President.
12 JUDGE ORIE: Mr. Registrar.
13 THE REGISTRAR: This is Exhibit D1321.
14 JUDGE ORIE: Exhibit D1321 is admitted into evidence.
15 MR. MISETIC: Mr. President, rather than go through a lot of
16 these, I think I'm satisfied with the answers of the professor, and I
17 will just bar table which respect to some of the other incidents, for
18 which I expect that there will be similar answer to the question.
19 MS. FROLICH: There is no objection to similar documents. Yeah,
20 no problem.
21 JUDGE ORIE: Yes. Then we can compare the content of these
22 documents with the report.
23 MR. MISETIC: Yes. Thank you, Mr. President.
24 JUDGE ORIE: Then the Chamber waits for bar table submissions in
25 relation to the other documents.
1 MR. MISETIC: Thank you, Mr. President.
2 Q. Turning your attention to an exhibit that the Prosecution
3 admitted into evidence.
4 MR. MISETIC: This is P2319, MFI, please, Mr. Registrar.
5 Q. This is the Feral Tribune article you gave some testimony on
6 under examination by Ms. Frolich about, and in your testimony, you
7 mentioned, if I'm not mistaken, that you were present when Mr. Mrkalj,
8 who is the subject of the interview, was speaking to the journalist;
10 A. No. I was present only at the point when he discussed the final
11 version and tried to prevent his interview from being shortened. I did
12 not attend the interview itself, only his -- I was only present when he
13 talked to the journalist who wanted to cut the interview short, whereas
14 Mr. Mrkalj wanted to have certain things that he believed were important
15 added to it.
16 Q. Did you gain -- come to understand or learn as to why the
17 journalist wanted to cut the information?
18 A. He was reassuring Mr. Mrkalj about the -- the fact that the space
19 that had been given to him in the Feral Tribune weekly was already
20 extensive and that they could not afford to give him any more space than
22 Q. Did you ever come to learn the circumstances around --
23 surrounding which how this interview came to be published?
24 A. I apologise. I don't understand the question.
25 Q. Did you have anything to do with the agreement between Mr. Mrkalj
1 and the journalist to conduct this interview?
2 A. No. I didn't have any contacts with the people from Feral
3 Tribune. It was Mr. Cicak who dealt with that. I said that by that
4 time, the texts by Mr. Cicak and Banac already been published, and then
5 Mr. Mrkalj's interview was published, and a week later I think it was my
8 Q. Do you know if Vjeran Grkovic is a journalist who would
9 accurately report Mr. Mrkalj's words?
10 A. I can't tell. I don't know much about Mr. Grkovic. When I read
11 the interview, it seemed to be consistent with the way in which
12 Mr. Mrkalj spoke, and I believe that Mr. Mrkalj was content with the
13 published interview, save for two details.
14 Q. You say you don't know much about Mr. Grkovic. Do you know
15 anything about him?
16 A. Nothing, expect for the fact that he was a Feral Tribune
17 journalist for a period of time and that two or three years subsequent to
18 this interview being published, he no longer emerged as one of the
19 contributors to that weekly. I don't know what his occupation is today.
20 Q. Okay.
21 MR. MISETIC: Mr. Registrar, if we could put on the screen --
22 actually, we'll put it up via Sanction, 1D67-0254, please. I'm sorry.
23 We can show it in e-court. I apologise. I'm sorry.
24 Q. Who is Drago Pilsel?
25 A. Drago Pilsel is a pretty well-known Croatian journalist who was a
1 member of the Croatian Helsinki Committee for a number of years and today
2 contributes mostly to the Novi List.
3 Q. And he was one of the HHO activists in the field in August 1995?
4 A. He was in the field on this one occasion, and he published a
5 report on this -- in Novi List.
6 MR. MISETIC: If we could go to page 4 of Mr. Pilsel's statement
7 to the OTP, please.
8 MS. FROLICH: Mr. President, I don't know what the question is
9 going to be --
10 JUDGE ORIE: Neither do I.
11 MR. MISETIC: I put it to him already, Mr. President.
12 JUDGE ORIE: Yes. That's, of course, we ...
13 Please proceed, then.
14 MR. MISETIC: If we could go to paragraph 24, please.
15 Q. Mr. Pilsel told the OTP:
16 "During this period, I also published under a shared pseudonym,
17 Vjeran Grkovic, in other newspapers. At the time, my paper was not
18 prepared to publish some of the articles that I was producing."
19 Now, Mr. Puhovski, did you know that the Feral Tribune article
20 that the Prosecution is tendering is in fact written by Dragan Pilsel
21 under the pseudonym Vjeran Grkovic?
22 A. No. This is the first time I hear of it or I read of it.
23 Q. Now, interestingly, in the Feral Tribune article Mr. Pilsel makes
24 reference to himself and meetings he had with Mr. Pasic. Of course, he's
25 writing about himself under a pseudonym.
1 A. [No interpretation]
2 Q. Yes. Now, obviously, I can see that this comes as a surprise to
4 A. [In English] Yes.
5 [Interpretation] I know that Mr. Pilsel had difficulties in the
6 Novi List; I'm aware of that. I also know of another pseudonym that he
7 used to publish texts. I was not aware of this one.
8 Q. Well, it would appear that this article was in fact written in
9 agreement within the Croatian Helsinki Committee. In other words,
10 Mr. Pilsel and Mr. Mrkalj within the HHO agreed to publish this in the
11 form of an interview. Do you know anything about the circumstances of
12 the agreement between these two individuals as to what was going to be
14 A. I'll repeat what I said on the first day of my testimony in
15 response to Ms. Frolich. It was an agreement between Mr. Cicak and the
16 editor-in-chief of the paper to have several articles published. That's
17 all I can tell you.
18 Q. I'll move on, and we'll come back to Mr. -- yes.
19 JUDGE ORIE: Mr. Misetic, not being a native-speaking -- not
20 native speaker, what is a shared pseudonym? Shared with whom? What?
21 MR. MISETIC: I've --
22 JUDGE ORIE: So it came to my mind, but perhaps -- apparently
23 this witness can tell us anything about a shared pseudonym. From what I
24 know from the English language, it might be an indication that several
25 persons used that same pseudonym. That's, at least, if you share
1 something with another person, that comes to my mind first. I can't
2 think of any other -- I don't know whether the original of this or
3 whether the tape is still there, so that we better understand what we
4 find in this statement.
5 MR. MISETIC: Mr. President, this is why I'd asked that the
6 exhibit be MFI
7 submission on this point because, in fact -- I don't know if I should do
8 this in private session or not, but -- I can tell you in 30 seconds,
9 Mr. President.
10 JUDGE ORIE: Yes. I think, as a matter of fact, there was
11 another matter for which you needed 60 seconds, so let's do it at the end
12 of this session. Then we have one and a half seconds. Please proceed.
13 MR. MISETIC: Thank you. If we could just go back so that when
14 we pick up on this tomorrow it's fresh in our minds and we don't have to
15 call this up again. If we can go back to the cover page of this, which
16 is the first page.
17 Q. Just -- I ask you to keep in mind the name he uses, which is also
18 Carlos Zvonimir, and that will be relevant to tomorrow when we pick up on
20 JUDGE ORIE: Mr. Misetic, if you are going to new area, then I
21 think the 90 seconds and a few matters might take altogether 45 minutes.
22 MR. MISETIC: That's fine.
23 JUDGE ORIE: Yes. One of the matters I would like to raise is,
24 how much time do you think you would still need?
25 MR. MISETIC: I'll be done -- I had asked for an hour, and I'll
1 try to keep it to 45 minutes or less.
2 JUDGE ORIE: Still to go, 45 minutes.
3 MR. MISETIC: Yes.
4 JUDGE ORIE: Yes. Then Mr. Mikulicic.
5 MR. MIKULICIC: I suppose you're aiming at me, Your Honour. I
6 wouldn't have more than two sessions, maybe less.
7 JUDGE ORIE: Yes, of course. I'm thinking on how much time
8 altogether. We cannot say that we made any promise, but at least we
9 would try to accommodate this witness.
10 MR. MISETIC: I think Mr. Mikulicic and I will talk, and I'll try
11 to make sure that we take care of our portion in time so that the witness
12 can leave tomorrow.
13 MS. FROLICH: Yes. I will endeavor to give him only a very short
14 redirect, Mr. President.
15 JUDGE ORIE: Yes. If the three of you could get together so that
16 we could take care that, that the expectations of the witness are met.
17 Do I understand well at the same time that the witness in line is
18 not expected to start testimony tomorrow?
19 MS. FROLICH: Yes, Mr. President, that's correct.
20 JUDGE ORIE: Yes. Then, Mr. Puhovski, we'd like to see you back
21 tomorrow, and you have heard from the parties that -- well, they never
22 used the word "promise," but there is a firm commitment to make sure that
23 you can travel home again tomorrow, if, at least, your travel
24 arrangements are adapted, and may I take it that this has been discussed
25 with VWS.
1 Then I again instruct you not to speak with anyone about the
2 testimony, the testimony either already given or still to be given
4 Madam Usher, could you please escort Mr. Puhovski out of the
6 [The witness stands down]
7 JUDGE ORIE: We turn into private session.
8 [Private session]
16 [Open session]
17 THE REGISTRAR: Your Honours, we're back in open session.
18 JUDGE ORIE: I do not know to what extent it's proper to deal
19 with the latest video-link motion in open session. Of course, it's of a
21 MR. WAESPI: Yes. Again, an abundance of caution, we should go
22 back into private session.
23 JUDGE ORIE: We turn into private session.
24 [Private session]
11 Pages 16099-16100 redacted. Private session.
3 [Open session]
4 JUDGE ORIE: Mr. Registrar.
5 THE REGISTRAR: Your Honours, we're back in open session.
6 JUDGE ORIE: Thank you, Mr. Registrar.
7 We adjourn for the day, and we'll resume tomorrow, Tuesday, 17th
8 of February, at 9.00 in the morning, Courtroom I.
9 --- Whereupon the hearing adjourned at 1.50 p.m.
10 to be reconvened on Tuesday, the 17th day of
11 February, 2009, at 9.00 a.m.