1 Monday, 2 September 2002
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.02 a.m.
5 JUDGE LIU: Call the case, please, Madam Registrar.
6 THE REGISTRAR: Case number IT-98-34-T, the Prosecutor versus
7 Mladen Naletilic and Vinko Martinovic.
8 JUDGE LIU: Thank you.
9 Witness, can you hear me?
10 THE WITNESS: [Interpretation] Yes, I can.
11 JUDGE LIU: Would you please stand up? Would you please make the
12 solemn declaration, please?
13 THE WITNESS: [Interpretation] I solemnly declare that I will speak
14 the truth, the whole truth, and nothing but the truth.
15 WITNESS: JOSIP SKAVIC
16 [Witness testified via videolink]
17 [Witness answered through interpreter]
18 JUDGE LIU: Thank you very much. You may sit down.
19 Yes, Mr. Par?
20 MR. PAR: [Interpretation] Good morning, Your Honours. Thank you.
21 Examined by Mr. Par:
22 Q. I would like to speak to Dr. Skavic. Good morning, can you hear
24 A. Yes, I can hear you.
25 Q. Now I can see you and I can hear you. We can start our today's
1 examination-in-chief. Let's make sure to speak slowly so that our
2 interpreters could follow us. Let's start with your full first name and
3 last name, the date and the place of birth, for the record.
4 A. My name is Josip Skavic. I was born on the 26th of April, 1943,
5 in Pakrac in the Republic of Croatia.
6 Q. Can you please inform us and tell us the most important date
7 relevant to your professional work and career?
8 A. I completed my education in Zagreb. After the school of medicine,
9 I started working there and I'm still employed there at the institute for
10 forensic medicine of the medical school in Zagreb. I've spent there 32
11 years. In the meantime, I have continued my education and I am now a
12 specialist of forensic medicine. I am now the full time professor and the
13 head of the department for forensic medicine.
14 Q. Thank you very much. Can you please tell us what are your
15 professional experiences relative to the identification of dead bodies, in
16 particular relative to the victims of war. Have you ever participated in
17 such identifications? When was that? Can you please tell us something
18 about that?
19 A. In order to be able to illustrate the answer to this question, I
20 would like to stress the following. In the Republic of Croatia, since
21 1995, there have been a lot of exhumations and so far, there have -- 135
22 mass graves have been excavated and a large number of individual graves.
23 3.553 victims have been exhumed and so far, the identity has been
24 established for 2.745 persons. The department for forensic medicine
25 accounts for two-thirds of these cases and since I have interruptedly been
1 involved with the work of the department, most of the identifications were
2 carried out with my participation.
3 Q. Professor Skavic, in October 2000, the Defence addressed you with
4 a request for expert testimony. Can you tell the Chamber what kind of a
5 request that was and what was the task of the expert? What did we ask you
6 to do?
7 A. You requested my opinion on the reliability of the identification
8 of the dead body of Nenad Harmandzic.
9 Q. What was submitted with the request? What documents were the
10 object of your expert testimony and opinion?
11 A. Enclosed with the request, I received the statements of eyewitness
12 AH, the statement of the spouse of the dead person, his son, and
13 the opinion of Mr. Ilijas Dobraca; another expert witness.
14 Q. So you carried out the expertise, you submitted your findings on
15 the 9th of November, 2000; is that correct?
16 A. Yes. That is correct. And this is the finding.
17 Q. Professor Skavic, do you know that during the hearing of Dr.
18 Hamzija Zujo on cross-examination your findings were used and that
19 Dr. Zujo issued a statement with regard to your findings? Do you know
21 A. Yes, I know that. I am aware of his -- of Dr. Zujo's findings.
22 Q. So you had the opportunity to read Dr. Zujo's testimony regarding
23 your findings?
24 A. Yes, that's correct.
25 Q. Okay. Now, let's go back to your findings dating 9th of November,
1 2000. Your task was to say whether the identification of Nenad Harmandzic
2 was reliable. It was carried out by Dr. Zujo. Our first question to
3 you was whether the correct method was applied when these experts
4 identified the body, i.e. what was your expert opinion on the method that
5 they had applied?
6 A. As far as the method was concerned, it was a customary, an usual
7 method, and I did not have anything to say about the identification
9 Q. So that is the method that you apply in your everyday practically
10 in the same way?
11 A. That is correct.
12 Q. The second question was what was the degree of reliability of an
13 identification carried out in such a way, carried out by Dr. Dobraca and
14 Dr. Zujo? What was the reliability of the identification carried out by
16 A. I already said that the way the identification was carried out is
17 exactly the way we would do it. It is a different thing to talk about the
18 results of such an identification. In my written findings and in my
19 written opinion, I stressed that the results were not such as to be
20 considered reliable.
21 Q. Tell me, please, did you notice some omissions and failures in the
22 procedure aimed at identifying the body and in that in particular I mean
23 the height of the body.
24 A. In order to be able to answer this question, I must stress several
25 elements with which I do not agree, and they are relative to the
1 calculation of the body's height. I must also stress that in the
2 literature, in the forensic literature, that is, there are a number of
3 tables with factors which were used by Dr. Zujo and Dobraca. However,
4 these tables and these factors represent the population studies carried
5 out in some other environment, among some other peoples. Before we
6 started identifying bodies from mass graves, we used to use similar tables
7 authored by a French author, Rollet [phoen], because they were the closest
8 to our population. However, they were still not sufficiently correct to
9 represent our population. Because of that problem, when we started
10 identifying bodies from our mass graves, we were forced to carry out a
11 population study, which means we had to determine new factors that will be
12 used as multiplicates -- multiplicators to measure some bones in the body
13 so as to be able to come up with the closest approximate height of the
14 person while the person was alive. Due to that reason, there was the
15 difference in the factor, the factor used by Dr. Dobraca and the factor it
16 used by me in my opinion, because the factor for the tibial bone of 3.7646
17 much better corresponds to our population and gives a much better result.
18 In addition to that, I had to stress that I cannot agree with the opinion
19 provided by Dr. Zujo according to which the difference of 10 centimetres
20 with regard to the real height of the person while the person was alive,
21 and the given -- and the obtained result by their calculation can be
22 relevant. It is inadmissible to obtain the calculated, assumed height of
23 185 centimetres or approximately and that it is accepted as an
24 identification element for the person who actually was 196 centimetres
25 tall during his life.
1 Q. So what you're saying is that the calculated height excludes the
2 possibility that the body could correspond to a body whose height was 185
3 centimetres during their life?
4 A. The conclusion that it could be that person, based on that
5 calculation, is extremely unreliable. I would like to use the opportunity
6 and corroborate my opinion by saying that in Bosnia recently, due to this
7 particular problem, a population study has been carried out by
8 Dr. Sarajlic. I do not know the results of that work but I'm sure that
9 there was a need to carry this study out for the aforementioned reason.
10 Q. Let's be more precise. Dr. Skavic, based on the data that you had
11 from the findings obtained by Dr. Zujo and -- did you come up the same
12 conclusions and them? If not what are the differences? What do they
13 consist of?
14 A. My conclusion, after I carried out some calculation was as
15 follows: The assumed height of the person, while the person was alive,
16 would have been around 185 to 186 centimetres, and since this differs by
17 ten centimetres from the height of the late Harmandzic, this calculation
18 cannot be used in a positive sense in order for the facts to be accepted.
19 Q. Professor Skavic, did you see in Dr. Zujo's statement given before
20 this Tribunal, did you see that he stated that you, in your calculation,
21 failed to take into account the diameter of the skull and that that had a
22 bearing on your calculation? Can you comment upon Dr. Zujo's answer?
23 A. Yes, I can. And I must say that this is yet another element which
24 unfortunately does not corroborate and is not in favour of Dr. Zujo's
25 opinion. Dr. Zujo said that they took into account that parameter in the
1 following way. They express it in millimetres and then they transform it
2 into the same value of the height in centimetres. Since that parameter
3 was 180 millimetres, he concluded that in centimetres, it would correspond
4 to the height of the person while the person was alive, and I don't think
5 that one needs to provide a forensic comment to say that the height
6 obtained in such a way would be 16 centimetres less than the height of the
7 late Harmandzic.
8 Q. So we may say that even after this comment provided by Dr. Zujo,
9 you continued to adhere to your findings that this has nothing to do with
10 your findings?
11 A. This does not have any bearing on the conclusions provided in my
13 Q. Let's finish with the height. What is the reliability of the
14 identification carried out in this particular case?
15 A. I must say that this was extremely unreliable.
16 Q. Can you tell us what, in your opinion, is the reliability of the
17 identification using clothes? One of the pathologists who testified here,
18 testified about the identification based on clothes. What is the
19 reliability of that identification using clothes?
20 A. When a body is being identified everywhere, the identification
21 using clothes is extremely important. However, based on the experience
22 we've had during our exhumations, I can say that in a number of cases, we
23 had situations in which, before the person died, especially if that person
24 had been taken away together with a large number of people, items of
25 clothing would have been exchanged, swapped, so that very often the person
1 would be identified wearing the clothes of another person. For that
2 reason, identification using clothes is just one link in a chain of
3 identification, and it can be used to help us come to the final
4 identification result, but it does not represent an absolute
6 Q. What is the reliability of identification using the missile, the
7 bullet, that was one of the elements used and testified to by one of the
8 expert witnesses.
9 A. Elements such as the missile found on the body are very
10 important. However, if the findings of the missile are correct, if we
11 know exactly where the missile was found during the life of the deceased
12 person and so on and so forth. However, I must stress that in this
13 concrete case, Dr. Dobraca, in his findings, stresses the following, and I
14 quote, "The bullet itself was found on the body of the deceased person but
15 it was found with the body but I do not know where near the body." So in
16 this case, we do not have the reliable data on where the bullet was found
17 or where it was during the life of the deceased person. As a result of
18 this, this could be just another important element in the identification,
19 but not enough on its own.
20 Q. So in this specific case, is the identification based on objective
21 scientific indicators or on subjective evaluation and statements of the
22 family members? What in this case was the foundation for this
23 identification, the objective, scientific findings or subjective factors
24 and relative statements?
25 A. In this specific case, I already said that all of these elements
1 had to be understood only as additional means, during the identification.
2 However, in this specific case, the identification was not carried out
3 properly. It is insufficient.
4 Q. And what in this specific case would mean a reliable scientific
5 identification? What method would have to be used for us to be able to
6 say that the identification was done with a high degree of reliability?
7 A. At this moment, I'm going to give you some general elements. I
8 allow that every team that carries out identifications has its own way and
9 style of identification. It is for that very reason, and for the fact
10 that we have huge experience in identification, I would like to give you
11 the way that we carry out identifications.
12 I've already said that I completely agree with the following way,
13 the dead body to be examined, then all the bodies should be examined in
14 order to be -- establish whether there were any anomalies or injuries
15 during the life of the deceased person. Then the clothes should be
16 examined by being washed, dried and examined, that all the elements which
17 are found on the body, that is the bullet, the belt buckle and so on and
18 so forth, but today, we are bound to take the material for DNA analysis.
19 With regard to the modern degree of development of forensic medicine, it
20 would be an omission on the part of the profession not to take a part of
21 the tooth or a part of the bone for possible additional identification.
22 In a case like this, we would certainly carry out all of these
23 actions that I have just mentioned, and that my colleagues Dobraca and
24 Zujo actually did carry out. But in addition to that, we would also take
25 a sample for DNA analysis and when it would be proven that some of the
1 elements of the identification did not correspond, and in this case it is
2 the calculation of the height, then the DNA analysis would either confirm
3 it or rule it out.
4 Q. Professor, can you tell me, is it done in mass exhumations and
5 identifications? Is it always done? Is this method expensive to carry
6 out when mass identifications are carried out? Is that maybe the reason
7 why it wasn't done in this case, because it was expensive?
8 A. DNA analysis is not done in every identification case. However, I
9 have to emphasise that taking a sample for a possible DNA analysis, a
10 sample of a tooth or a sample of a bone, does not cost anything, and the
11 analysis itself is certainly much cheaper than possible speculations
12 whether the person has been properly identified. So this method is not
13 expensive within that context.
14 Q. You have mentioned the family. Do you have experience which says
15 that unreliable identifications in the eyes of the family are perceived as
16 subjective, that these families want to find the body in order to start
17 properly grieving? Do you have any such experiences with the families of
18 the deceased?
19 A. In the course of our identifications, we have indeed come across a
20 number of cases, both positive and negative reaction of relatives. We've
21 had families who could barely wait to get rid of the pressures of a member
22 of the family requesting identification, so that whenever they would have
23 the slightest hint that it could be a person, immediately accepted the
24 identification. On the other hand, there were other people who rejected
25 the identification in spite of a number of reliable indications that it
1 was indeed a member of their family.
2 Q. And one more question, Dr. Skavic, to conclude it. During his
3 testimony here, Dr. Zujo when asked whether he was sure that the body had
4 been identified as Nenad Harmandzic's body and whether it was indeed Nenad
5 Harmandzic's body, he first said that he could not answer that question
6 and then when additionally asked, he said that on the basis of all the
7 details that he has received from the family, and all the indications that
8 he has found, that he thought that the body was indeed Nenad Harmandzic's
9 body. My question to you: Would that be a common response of an expert
10 witness or would it relate only to this specific case? That is what is
11 the expert called upon to do? Does he need to be very accurate or can he
12 do it in that manner?
13 A. When I read Dr. Zujo's report, I indeed found his opinion about
14 the reliability of Harmandzic's identification. In his report he says in
15 one place that he is sure, in another place that he is not sure. I cannot
16 comment on the opinions of other experts. All I can say is that neither I
17 nor any colleague who performed -- who performed such an identification in
18 our institution would say that the identification was complete. However,
19 there was something else which surprised me in Dr. Zujo's report, because
20 when I read it, I came across an answer we shall now quote, and which says
22 THE INTERPRETER: Unfortunately the interpreters do not have the
23 text of the report.
24 A. "Yesterday I said that a medical expert witness completes his task
25 at the moment of the beginning of identification so that today, there was
1 no need to take DNA analysis for the sample."
2 And in this respect, I can only think of two possibilities:
3 Either Dr. Zujo was confused or somebody misinterpreted his response,
4 because the medical expert's witness is not over until the completion of
5 identification and I do not know whether he truly thinks that the work of
6 the forensic pathologist stops, because I don't know who else then
7 conducts the whole procedure, the whole identification process.
8 MR. PAR: [Interpretation] Dr. Skavic, thank you very much. Those
9 are my questions to you and now you'll be asked some questions by my
10 learned friends.
11 JUDGE LIU: Cross-examination.
12 MR. STRINGER: Thank you, Mr. President.
13 Cross-examined by Mr. Stringer:
14 Q. Dr. Skavic, my name is Douglas Stringer. I'm an attorney for the
15 Prosecution. Can you hear me?
16 A. I can hear you very well.
17 Q. Dr. Skavic, it's my understanding this is not the first time
18 you've given evidence in proceedings here at the Tribunal. Is that
20 A. Yes, you're quite right.
21 Q. You testified, sir, as an expert witness in the same field on
22 behalf of the Defence some years ago in the Kupreskic case; is that
24 A. Yes, correct.
25 Q. And in fact, your testimony in that case was led by my learned
1 friend, Mr. Par, who is a member of the Defence bench in this case. Is
2 that also correct?
3 A. Yes. That is correct too.
4 Q. Did you travel to the Hague to give your testimony in that case,
5 the Kupreskic case?
6 A. That's right. I travelled to The Hague and I testified there.
7 Q. Dr. Skavic, do you speak English or understand English?
8 A. I do not speak it but I can understand it up to a point.
9 Q. Now, just a few preliminary questions about your opinion letter,
10 the one that's dated from November of 2001. Dr. Skavic, your opinions,
11 your conclusions that is you've given in this case, I understand, sir,
12 that those are based on materials that were provided you -- to you by
13 Defence counsel, such as witness statements of various persons whom you've
14 referred to in your direct examination. Is that correct?
15 A. Yes, indeed.
16 MR. STRINGER: Mr. President, may I have just one moment, please?
17 JUDGE LIU: Yes, please.
18 MR. STRINGER:
19 Q. And in addition to those materials that were provided to you by
20 counsel for Mr. Martinovic, sir, then you I guess more recently reviewed
21 the testimony of Dr. Zujo from this trial?
22 A. Yes. I familiarised myself with the opinion of Dr. Zujo.
23 Q. Have you reviewed the testimony of any other person who is
24 appeared as witnesses in this trial here in The Hague, prior to today?
25 A. No. The information, the facts that I had at my disposal are
1 quoted in my answer to the introductory question by Mr. Par, and that is
2 an eye -- in the statements of the eyewitness and the wife of the victim
3 and the opinion of the expert witness, Dobraca and the testimony of
4 Dr. Zujo. As for other witnesses, I never heard them, nor do I know what
5 they testified about.
6 Q. Would you agree with me, sir, that there may well be data before
7 the Trial Chamber in this case concerning the identification of
8 Mr. Harmandzic that you're not aware of?
9 A. Of course. I have pointed out that I did my analysis only on the
10 basis of the facts that I quoted.
11 Q. And that therefore, sir, your conclusions could well be affected
12 by the presence of additional data that you're not aware of. Is that also
14 A. It is.
15 Q. So that, sir, would you agree with me that ultimately it's for the
16 Trial Chamber to decide the weight or the credibility that it will assign
17 to the identification based on all the evidence before it in this trial?
18 A. I couldn't agree more.
19 Q. I'm going to ask the witness be shown Exhibit P113.2. Dr. Skavic
20 a moment ago I asked you if you spoke or understood English. It's because
21 I have a letter here that's been published -- excuse me, an article that's
22 been published by you and others, some of your fellow colleagues in 1992.
23 I have an English-language version of it. We do not have the
24 Croatian-language version. Has that article been placed in front of you,
1 A. Yes. I can see it.
2 Q. This is an article from the Croatian medical journal entitled
3 "identification of the dead in war. The case of the 20 killed Croatian
4 soldiers found near Pakrac."
5 My question, sir, is: Did you co-author this article together
6 with other colleagues at the department of forensic medicine in Zagreb?
7 A. That is right.
8 Q. Okay. Now, with the assistance of the interpreters, Dr. Skavic,
9 I'd just like to ask you very few questions about some of the things that
10 are contained in this article pertaining to the general methods used in
11 identifying victims of war. First of all, sir, this is an article that
12 contained your findings, your expertise, based on examinations of 20
13 Croatian soldiers who had been captured, tortured and killed, by Serb
14 forces during the early stages of the war in Croatia; is that correct?
15 A. Yes, it is.
16 Q. And turning to the second page of this article, what you've done
17 is to provide or identify two protocols that you formulated in the process
18 of identifying the remains of such persons, and I can just continue on.
19 Protocol A, as you indicated, would refer to data that's would collected
20 by members or relatives of the deceased person. It's a generalisation but
21 is that a correct statement?
22 A. It is.
23 Q. And then Protocol B would have included the data gained during the
24 autopsy examination itself. Is that also correct?
25 A. That is correct too.
1 Q. And among the criteria obtained or the data obtained from family
2 members, we include a number of the same factors which have been discussed
3 in this particular case, including age, height, belts, shoes, et cetera.
4 Are those among the criteria that you would consider, the data considered
5 in determining or trying to determine the identity of a given cadaver?
6 A. That's right.
7 Q. And then there is also in both Protocols A and B a heading for
8 miscellaneous data. Would we be correct perhaps in this case to put the
9 presence of the 6.35 millimetre bullet that was found, could we put that
10 in the miscellaneous category?
11 A. Yes. We could do that, but once again, emphasise the importance
12 of that particular element.
13 Q. Dr. Skavic, in your direct, you already answered my first question
14 on this point, which was to simply put to you that in fact the methodology
15 used by doctors Dobraca and Zujo in this particular case seem to be very
16 similar, if not identical to the methods or the methodology that you
17 employ as indicated in your article here; is that correct?
18 A. I have pointed out already, yes, that the approach was identical.
19 Q. My second question, sir, is that it appears to me that in these
20 two protocols, no single factor is given particular weight. They are not
21 graded or weighted, which would suggest to me that simply the
22 identification, if it can be made, is based upon consideration of all the
23 factors collectively. Would you agree with me on that point?
24 A. Fully.
25 Q. And in fact, and I'm looking at the second column on this same
1 page, about two-thirds of the way down, you indicated that in respect of
2 these 20 Croatian soldiers, well, in fact, you and your team were able to
3 identify 19 out of those 20 soldiers. Do you recall whether that's
5 A. I don't remember exactly but it transpires from the text.
6 Q. And the text on one point of the text I'm interested in reads:
7 "Ten cadavers were identified on the basis of two or more positive
8 findings, and nine on the basis of only one positive finding. Considering
9 the extensive post-mortal changes of the cadavers, the high number of
10 identifications on the basis of two or more findings is surprising."
11 A. I must say that I do not understand why is it surprising.
12 Q. My question, sir, is the fact that you were able to identify nine
13 of these soldiers on the basis of only one positive finding. Does that
14 indicate that a -- one of the factors or one of the protocols indicated
15 could itself give rise to a positive identification?
16 A. As it transpires from the text, it is indisputable and of course
17 I'd like to refresh my memory. Of course going through each and every of
18 these protocols to see which was the particular element which led to the
19 identification of a particular person.
20 Q. Ultimately, Dr. Skavic, it's a matter of judgement based on
21 consideration of all the factors. Would you agree with me on that?
22 A. Fully.
23 Q. Now, Dr. Skavic, I'd like to turn now from your article and
24 discussion of the general methodology used, to a discussion of some of the
25 factors that are present here in respect of the body of Mr. Harmandzic and
1 the identification of that body. And again, continuing on with your
2 method or the protocol that you've identified, would you agree with me,
3 sir, that we do have good, solid match between family information and
4 autopsy information in respect of a number of factors?
5 A. Yes, quite, information from -- received from the family is
6 fundamental important, and in this particular case, relatively precise.
7 On the other hand, I have already pointed out that one of the chief
8 elements, and that is the height, was -- had not been confirmed by the --
9 during the identification. Quite to the contrary. It is highly dubious.
10 Q. I understand that's your testimony, Dr. Skavic, and I'm going to
11 ask you about the height issue in a few moments. First I'd like to talk
12 about some of the non-height factors so that we can get those out of the
13 way. You have not challenged the finding of Dr. Zujo, that the age of
14 this body was approximately 45 years old. Is that a determination that
15 can be made fairly accurately and consistently by persons in your field?
16 A. The approximate age of an individual can be established on the
17 basis of a series of different elements and I'd like to seize this
18 opportunity to say that the team engaged in identification, and I points
19 out once again that in our view, needs, in addition to a forensic expert,
20 include a stomatologist and an anthropologist and the team because the
21 anthropologist is called upon or I should say perhaps he is the most
22 qualified person to establish the age of an individual.
23 Q. Are you in a position to challenge the finding that this was a
24 cadaver approximately 45 years of age, sir?
25 A. No.
1 Q. Are you aware, sir, that in fact, Mr. Harmandzic was born in 1947,
2 which would have put him at approximately 46 years of age in July of
4 A. I do not recall whether I knew that or not, but obviously, since
5 it was not important for my part of the report, I did not even -- I didn't
6 comment on it.
7 Q. And then passing on to some of the articles of clothing, you're
8 aware, sir, that there is information, or there is evidence that family
9 members identified a shoe or a moccasin found with the body of the cadaver
10 and that it matched approximately, quite closely, in fact, the known shoe
11 size of Mr. Harmandzic when he was living?
12 A. Yes, I'm aware of that, that the footwear was like the footwear
13 that the late person wore.
14 Q. And, sir, if there is testimony before the Trial Chamber in this
15 case concerning the clothing worn by Mr. Harmandzic shortly before he was
16 last seen in July of 1993, that is not something that you have considered
17 as part of your conclusions?
18 A. Yes. I did include it, of course, and I also emphasised that
19 this element, in itself, does not suffice for an identification.
20 THE INTERPRETER: The interpreters are sorry but they are
21 beginning to lose the witness.
22 JUDGE LIU: Yes, Mr. Par?
23 MR. PAR: [Interpretation] Your Honours, I object to this part of
24 the question, because the witness is being confronted with certain things
25 which I do not think are quite accurate, namely during the presentation of
1 our case, we had several testimonies, several witnesses, whom we asked
2 what had Harmandzic worn, and we received different answers, and I
3 therefore think that it would not be fair on this expert witness to
4 suggest that we allegedly have it established beyond any doubt what he
5 looked like and what he wore a day before that, because it is simply not
6 true. We have some different testimonies. Let me remind my learned
7 friend that one said that the last time he was seen, it was in white
8 shorts and so on and so forth, a pair of jeans was found. Therefore, I
9 object to this form of leading the witness, of insinuating to the witness
10 to certain things which are allegedly beyond question when, in point of
11 fact, they are under a serious question mark. Thank you.
12 JUDGE LIU: Well, I believe that all the factors concerning the
13 identification should be taken into consideration, and the Prosecutor is
14 entitled to ask some questions about some other facts other than the
15 height. Let us hear what the witness is going to tell us, because we lose
16 him, part of the testimony.
17 MR. STRINGER: Thank you, Mr. President. I think what I'll do
18 actually is to ask the question in a different way.
19 JUDGE LIU: Yes. Please.
20 MR. STRINGER:
21 Q. Dr. Skavic, it's my understanding that your main point in respect
22 of the clothing worn is that you found a number of cases in your own
23 experience where clothing had been changed or exchanged in these wartime
24 conditions so that that casts some doubt on the use of clothing as an
25 identification tool. Is that your position?
1 A. In answer to this question, I wish to point out that the clothes
2 per se do not suffice for identification, especially if we are dealing
3 with such an article of clothing which is -- which is worn by a large
4 number of people in a particular population. There is no need for me to
5 emphasise that a large number of people sport jeans, and that therefore
6 one could hardly identify a person by that particular article.
7 Q. Again, sir, it's just one of all of the factors to be considered,
9 A. Exactly.
10 Q. Several other items were found with this cadaver, Dr. Skavic, one
11 being an elongated cigarette lighter and also a belt buckle identified, as
12 you know, by the son. Aren't these two factors which are rather
13 persuasive, strongly suggesting that, in fact, the cadaver is that of
14 Mr. Harmandzic?
15 A. Certainly, and I emphasised the correctness of these elements. I
16 must add to that based on these elements, there is a doubt that the
17 body examined was the body of the late Mr. Harmandzic. Unfortunately, I
18 have to say something else. All of these elements are not enough for a
19 certain identification, due to the lack of elements for the establishment
20 of the height of the person while the person was living.
21 Q. Okay. And as I said we are going to come to height in a minute.
22 So at this point, Dr. Skavic, we've discussed age, of course there is no
23 dispute that this is the cadaver was a male and Mr. Harmandzic was a male.
24 Identification of shoe size. Shoe. Cigarette lighter, belt buckle, blue
25 jeans. At this point, sir, you're still not satisfied that a positive
1 identification could be made?
2 A. If we excluded the height that you said you wanted to talk about
3 later, all of these elements suggest that the cadaver belonged to the late
4 Mr. Harmandzic.
5 Q. And then now just a few questions about the 6.35 millimetre
6 bullet. In your opinion letter, Dr. Skavic, you said that -- and I'll
7 quote: "It would be an identification element of a really great
8 significance had that projectile been found in the soft tissues around the
9 femur." Do you recall writing that?
10 A. Yes. I was seized of the data that Harmandzic, during his life,
11 allegedly had a penetration wound in the upper leg, and that the
12 projectile remained in the tissue.
13 Q. Now, Dr. Skavic, are you aware that in respect of this particular
14 cadaver, because of the way it was buried and the length of time it spent,
15 it was in the ground, there was really no soft tissue? You've read
16 Dr. Zujo's testimony on that point, have you not?
17 A. That is correct. However, this does not change my opinion.
18 Q. Well, in fact, sir, it would have been impossible for the bullet
19 to be found in the soft tissues around the femur, as you say, because in
20 fact there were no soft tissues remaining, isn't that true?
21 A. That is absolutely true. However, as a forensic expert, cannot
22 claim that the projectile had ever been in the soft tissue because of the
23 fact that there was no soft tissue. I can only rely on Dr. Dobraca's
24 information who had found the projectile but he doesn't know where he
25 found it.
1 Q. Well, Dr. Skavic, is it your testimony, sir, that in cases such as
2 this, where there is no remaining soft tissue, the presence of a bullet,
3 with the cadaver, is of no consequence? Is that your testimony? Is means
4 nothing to you?
5 A. I already said that it is a very important element, but if a
6 bullet is found somewhere with the body, we cannot claim that it used to
7 be in somebody's upper leg.
8 Q. And in this particular case, sir, is it impossible to make that
10 A. We cannot claim that it was in the upper leg. With regard to the
11 circumstances of this case, we can assume that this is really the case,
12 that this bullet once was in the upper leg.
13 Q. Knowing, having learned from the family that in fact,
14 Mr. Harmandzic did suffer a self-inflicted wound while handling a handgun,
15 a wound to the leg, would you agree with me, sir, that the finding of this
16 bullet is significant but that it is not of -- it would have been of
17 greater significance had we known precisely where it was found?
18 A. I absolutely agree with that.
19 Q. So again just to -- I want to try to summarise where we are to
20 this point, Dr. Skavic. We now have the presence of this bullet. We know
21 that Mr. Harmandzic had shot himself in the leg some years earlier.
22 Together with all of the other factors, identification of the shoe by the
23 family, correct shoe size, belt buckle, cigarette lighter, clothing, age.
24 Are you still -- let me ask you the question this way, Dr. Skavic: Based
25 on all of those factors, disregarding height for now, based on all those
1 factors, do you exclude the possibility that the cadaver was in fact that
2 of Nenad Harmandzic?
3 A. I have already pointed out that these are elements that would
4 suggest that this was indeed the person in question.
5 Q. Dr. Skavic, you've testified about your extensive experience in
6 your own home country of Croatia, examining the remains of persons who
7 lost their lives during the conflict there. I'm going to ask the
8 Registrar to show you two exhibits, Exhibit 802.13 and 802.14.
9 JUDGE CLARK: Mr. Stringer, while the Registrar is doing that
10 shouldn't we point out to Dr. Skavic, and I take on board what he says as
11 an expert, that in fact the identification of the shoe goes further than
12 the shoe size but in fact [redacted]
15 MR. STRINGER:
16 Q. Dr. Skavic, what you just heard was a statement by our Judge
17 Clark, and I wanted to -- I should then ask you, are you aware that in
18 addition to the size of the shoe, this moccasin that in fact it was
19 positively identified as being one of Mr. Harmandzic's shoes, that it was
20 recognised by its colour and style, what have you? If a family member
21 were to make such a positive identification, would that also be a factor,
22 together with all the others, strongly suggesting the identification of
23 this person?
24 A. Correct.
25 Q. You were provided with the statement of [redacted]
6 A. Certainly.
7 Q. Now, do you have Exhibit P802.13 in front of you?
8 A. Yes, I do.
9 Q. What you have, sir, are three pages, the top page is an English
10 translation and under that is a two-page document which I believe bears
11 your signature. Does this in fact bear your signature?
12 A. Yes, it is.
13 Q. These are findings of an autopsy and identification procedure
14 which you conducted in October of 1995; is that correct?
15 A. Yes, it's correct.
16 Q. If you wish to take a moment to look it over, I'm going to direct
17 your attention to the last section, which is the opinion. Sir, these are
18 public proceedings. I'm not going to mention the name of the person who
19 is referred to in this record, but would you agree with me, sir, that a
20 positive identification was made and approved by you in this particular
21 case based on the finding of a pocket watch with a particular drawing or
22 inscription on it, consideration of the pre-death height, clothing,
23 folding knife and teeth and the fact that, in fact, the son had identified
24 the deceased person?
25 A. I would have to explain how this was done. This arises from the
1 elements stated in the opinion. In addition to the forensic part of the
2 examination of the cadaver and the clothing, the assumed pre-death height
3 matched the information obtained from the family. The condition of the
4 teeth is always examined by a dentist, who compares the denture of the
5 cadaver with the denture of the same person while the person was alive.
6 In addition to that, there were other elements, the pocket knife with the
7 locomotive and the knife, and after that, the son recognised his father.
8 So it was not the son who gave and recognised the identification elements,
9 but they were first established by pathological and forensic examination
10 and then subsequently confirmed by the son.
11 I can say that none of the elements were contrary to the elements
12 given by the son, because if there was no match, the identification would
13 have been dubious.
14 Q. And on the basis then of the information before you, it was -- you
15 felt sufficiently confident that the cadaver was in facts the body or the
16 remains of the person whose name appears on this record; is that correct?
17 A. Not based only on information but based on the confirmation
18 obtained by forensic examination, based on the dental status which was
19 established by a dentist and based on the information obtained from the
21 Q. Sir, now, this record doesn't make reference to any independent
22 dental findings. So I'm a bit curious as to how you're aware of
23 independent dental findings when they are not referred to in your
24 opinion. Can you shed some light on that?
25 A. Yes. I can tell you how we work at my department. Whenever an
1 identification is carried out, all the elements are stored, the complete
2 denture is taken out when the bones are cleaned, the denture is examined
3 by a dentist who compares it with the records of the person while the
4 person was alive. What you have in front of you are just the elements
5 based on which the identification was established, because that is the way
6 we were required to draft the findings. All the other elements are stored
7 in the department, and these elements are the dental status, the findings
8 of the dentist, pre-mortem data given by the family, the samples of the
9 clothing, and everything else that exists. This is all documented by
10 photos which are all filed. So what you have in front of you are just
11 some of the elements, those based on which the identification was carried
12 out, not the entire case.
13 MR. STRINGER: Mr. President, shall we take a break now?
14 JUDGE LIU: Yes. We will take a 30-minutes break. We will resume
15 at ten minutes to 11.00.
16 --- Recess taken at 10.18 a.m.
17 --- On resuming at 10.56 a.m.
18 JUDGE LIU: Yes, Mr. Stringer. Please continue your
20 MR. STRINGER:
21 Q. Dr. Skavic, can you hear me?
22 A. Yes.
23 Q. Perhaps if I put on my headphones, I can hear you. Dr. Skavic,
24 coming back to Exhibit 802.13, just one or two final questions to sum up
25 on your last comments. The opinion on the identification of this
1 particular person makes no reference to any dental examination or records;
2 is that correct?
3 A. In my last answer, I said that what you have in front of you is
4 just an opinion from which the identification elements stem, and I also
5 explained the procedures which this is based on, and I also said that in
6 addition to a forensic pathologist, if the important has a denture, then a
7 dentist has to participate in the examination. Everything else is
8 recorded by photos by the findings of experts, and this is just a group of
9 elements based on which we assume that this was the person in question and
10 in this particular case, the son recognised his father based on all these
11 elements. In here, you won't find anything else but these elements.
12 Everything else is archived in our department.
13 Q. Am I correct to assume, Dr. Skavic, that you don't have any
14 personal recollection of this particular autopsy? You don't have any
15 recollection whether, in fact, this person had any dental records?
16 A. It is impossible for me to remember. I am just talking about the
17 way this is done. And what I am saying is that you cannot expect to find
18 in this document anything else but the elements based on which the
19 positive identification was established.
20 Q. Passing, then, to the next exhibit, Dr. Skavic, 802.14, it bears
21 the same date, it appears that this one also bears your signature; is that
23 A. That is correct.
24 Q. And again without mentioning the name of the cadaver or the family
25 member making the identification, this report contains your opinion of a
1 positive identification based upon the data referred to in that opinion;
2 is that correct?
3 A. Correct.
4 Q. Dr. Skavic, based on these last two reports that we've looked at,
5 sir, I want to suggest to you that in fact you've been quite -- you
6 certainly seem confident enough in these two cases to make positive
7 identifications based upon significantly less data than we have in the
8 case of Mr. Harmandzic. Isn't that true?
9 A. No, it isn't. In order for me to explain this conclusion, I must
10 say that some identification elements bear more significance than others.
11 Let's not get embroiled in some theoretical considerations. Let me just
12 explain this on the example of the cadaver of Mr. Harmandzic. Here we
13 have two groups of elements. You will allow me at this moment to exclude
14 the bullet from the consideration, because the pathologist did not know
15 where the bullet was found. There are two groups of elements. One of
16 which contains the shoe, the buckle, the lighter and the blue jeans. We
17 will all agree that these are the elements which can be found on a person,
18 next to the person, or on some other person. In distinction to this first
19 group of elements, which do suggest that the body belonged to
20 Mr. Harmandzic, there is another group of elements which are based on what
21 is indivisible from the dead body and those are the bones. On the one
22 hand, we have the elements that suggest something, and on the other hand
23 we have an element which excludes something, and that second element is of
24 much more significance than the first elements, and to sum up, I would
25 like to say that that second element imposes another verification. So
1 these are the two groups of elements. When you compare the identification
2 which was carried out at the department of pathology with the
3 identification of Harmandzic, in Harmandzic's case, the dental status was
4 not established, and here we do have dental status. Here, the height was
5 measured and it corresponded to the living person in question.
6 Q. Dr. Skavic, it seems to me that really for you the decisive, the
7 critical point, in all of this is the calculation of height and whether
8 that reconciles or not to the estimation of height given by a family
9 member. Is that the crux of your conclusion in respect of this matter?
10 A. Yes, quite.
11 Q. Just one last question in respect of these other autopsy reports
12 that we just looked at, P802.14 and 13. No indication, sir, in any of
13 these or either of these of any DNA sampling. Is that because a positive
14 identification was made?
15 A. The DNA analysis are done only when other conventional methods of
16 identification are not fully reliable. In every other case, it is not
18 Q. In your judgement, sir, it was not necessary to do DNA it testing
19 in respect of these two other cadavers? Is that a correct understanding?
20 A. Yes, yes, it is.
21 Q. Okay. Dr. Skavic, we are going to now move on to the next -- the
22 final issue, actually, which is the discussion of the height calculation.
23 And just to, I guess summarise or review, it's my understanding, sir,
24 that your calculation, your conclusions on this, are arrived at in the
25 following way. Accepting that the length of the femur was 50 centimetres,
12 Blank pages inserted to ensure pagination corresponds between the French
13 and English transcripts. Pages 14898 to 14907.
1 you applied a multiplier of 3.76, giving rise to an estimated height of
2 living of 188 centimetres. Is that correct? I'll continue to the next
3 point, which is the humerus bone. But for the femur, is that what you
4 did? 50 centimetres times 3.76?
5 A. Correct.
6 Q. And then you also factored in the length of the humerus, which is
7 the upper arm bone which was 36 centimetres, multiplied by 5.06, giving
8 the product as 182.16 centimetres?
9 A. Correct.
10 Q. And then you took the average of those two numbers, arriving at a
11 final estimation of 185.08 centimetres as the assumed, living height of
12 the cadaver.
13 A. Correct.
14 Q. All right. Now, Dr. Zujo appears to have used a little bit of a
15 different method. It's my understanding, sir, and I've reviewed his
16 testimony, as have you, that he took the 50 centimetre length of the
17 femur, used a multiplier of 3.66, arriving at a figure of 182 to 183
18 centimetres, to which he then adds five centimetres to arrive at the
19 assumed living height of the cadaver, which would have put him at
20 approximately 187 to 188 centimetres.
21 A. As regards this part, that is so.
22 Q. And I understand your testimony, sir, that he used tables that
23 differed from those you would have employed, and that may account in some
24 respect for the difference in the initial figure of 182 that he arrived
25 at. I'm not going to ask you about which tables are the right ones to
1 use. My question is this: Whichever which one does the calculation, sir,
2 it appears to me that somehow you and Dr. Zujo arrived at essentially the
3 same conclusion. He's in the range of 187 to 188, you're in the range of
4 185. Dr. Zujo mentions a margin of error of plus or minus two
5 centimetres. It would seem to me, sir, that you and Dr. Zujo are not
6 significantly apart in your two calculations. Am I correct?
7 A. You are if you take only this particular factor into
9 Q. And maybe I'm anticipating what you're thinking. The problem that
10 you have, sir, is not so much with Dr. Zujo's conclusions, your problem is
11 with the estimation of height given by the family member, 196. Is that
12 for you the decisive element?
13 A. Now it is necessary to mention another aspect which I did not
14 cover in my report and which doctor Zujo held against me. According to
15 him, in view of the skull diameter, it turns out that that particular
16 skeleton, that is the one that the skull belonged to, was 180 centimetres
17 high. So Dr. Zujo has the elements to calculate the height, which vary
18 from 180 to 190 or perhaps a couple of centimetres more. This is not a
19 way to calculate somebody's weight -- height, excuse me. Regardless of
20 the range that is the variance from 16 to five or six centimetres, it
21 simply can not be accepted as the final identification element, and all it
22 comes down to is that I say that such identification should be subjected
23 to a reliable test.
24 Q. It I believe was your testimony on direct, Dr. Skavic that you
25 reject the use of the cranium diameter measurement as a way to determine
1 height; is that correct?
2 A. Yes, it is correct. I merely point out that Dr. Zujo accepts that
3 criterion and uses it to make his identification, and I cannot agree with
4 the final result that he obtained in this way.
5 Q. I'm trying to focus, then, on one of the criteria which both of
6 you used which is femur length and again just the final point on that,
7 sir, it appears to me that whatever methods were used, you and Dr. Zujo
8 arrive at essentially the same place when doing your calculation based on
9 femur length. Would you agree with me on that point?
10 A. About 185 centimetres.
11 Q. Well, now, actually, on femur length alone, you arrive at 188, and
12 then that number is reduced by the inclusion of the calculation based on
13 humerus; is that not correct?
14 A. It is.
15 THE INTERPRETER: We could not hear the end of the witness's
17 MR. STRINGER:
18 Q. Dr. Skavic could you repeat the last part of your answer, please?
19 We weren't able to get it in English.
20 A. Yes. I calculated the femur length and got 188 centimetres.
21 Humerus, 182.16, and as the mean value, 185.08 centimetres.
22 Q. And if I understand your testimony, sir, then, it's your position
23 that neither your figure nor the figure of Dr. Zujo can be reconciled to
24 the estimate of height given by the family member, correct?
25 A. Absolutely.
1 Q. The margin of error, sir, Dr. Zujo speaks of a margin of error of
2 plus or minus two centimetres. Do you recall that testimony? It's also
3 in his expert report.
4 A. You're right, if my memory serves me well.
5 Q. Dr. Zujo went on to testify that, in fact, others might use a
6 greater margin of error, up to perhaps as much as ten centimetres, plus or
7 minus. Did you read that testimony?
8 A. I did.
9 Q. Dr. Skavic, what margin of error do you employ in making your
10 calculations of height based on the length of long bones?
11 A. I have already answered a similar question, to -- and explained
12 that before we started the identification, and precisely because of the
13 problem involving factors and tables, applying to some other populations,
14 not to our population, and because of that, we conducted a population
15 study, which means that we took a large number of cadavers, and measured
16 the length of the bones to determine the average factor which holds for
17 our population in calculations of this kind. So when one measures the
18 length of a femur, multiplying by our multiplier, by our factor, that is
19 when we get, as a rule, always an approximately identical length of the
20 body in lifetime, but can be at variance for not more than two or three
22 Q. Two or three centimetres so in fact the margin of error that you
23 would accept is greater than that used by Dr. Zujo; is that correct?
24 JUDGE LIU: Yes, Mr. Par?
25 MR. PAR: [Interpretation] I'm sorry, it seems to me that
1 Mr. Stringer did not hear well what Mr. Skavic said. We heard one or two
2 centimetres. So could Mr. Skavic perhaps repeat his answer?
3 JUDGE LIU: Yes, let us make sure about that.
4 MR. STRINGER:
5 Q. Dr. Zujo, we may have had a problem with the interpretation or we
6 may have misunderstood what you say. What was the margin of error that
7 you just mentioned?
8 A. I mentioned one to two centimetres.
9 Q. Would you accept, sir, that qualified experts in your field would
10 utilise greater margins of error than one to two centimetres?
11 A. In view of the fact presented by Dr. Zujo, to accept that the
12 identification, even if the difference is ten centimetres, I cannot agree
13 with that.
14 Q. Sir, I'll repeat the question. With respect, I don't think you
15 answered it. Would qualified experts -- could qualified experts in your
16 field use different margins of error, greater margins of error, than your
18 A. No, as far as I know.
19 Q. What margin of error do you assign to the estimate of height given
20 by the family member in this case? Do you give him any margin of error
22 A. The information supplied by the family cannot be commented on my
23 part because that is their impression. Something subjective, that I
24 cannot influence in any way whatsoever.
25 Q. Is it your experience that family members can be mistaken in
1 estimating the height of a particular family member, given that it is a
2 subjective -- can be a subjective estimation?
3 A. Yes, of course, that is a possibility.
4 Q. The next exhibit is Exhibit P956 -- yeah, P956. It's the last
5 exhibit. Dr. Skavic, this exhibit is an article that I found published in
6 the American Journal of Physical Anthropology, in the year 2000. I have
7 only two questions about it. I'm going to direct your attention to the
8 third page, which I will read just a few sentences to you. I want to ask
9 your opinion on something that's been stated in here.
10 The bottom, the last paragraph of page 3. "The results obtained
11 with the femur are better than the results obtained with the humerus, that
12 is the coefficients of regression and the standard deviations are better.
13 And consequently, the confidence intervals for the femur are lesser. In
14 this connection, when we have both bones to be measured, it is not
15 important to measure the humerus. Measures the femur will suffice and the
16 height can be calculated from this measurement because the results thus
17 obtained will be the best." Dr. Skavic, do you agree with that assertion
18 that femur length alone can give rise to a more accurate calculation of
19 height than if one were to do what you did, which is to also factor in
20 length of humerus?
21 A. I cannot comment on this paper right now because I haven't read
22 it. However, I can say that we also accord priority to the femur length,
23 and if there are two bones, then the length of the cadaver and the assumed
24 lifetime height are based on the femur and the tibia length, never on the
25 basis of the humerus.
1 THE INTERPRETER: Could the witness please come closer to the
2 microphones? Because we are beginning to lose the sound.
3 MR. STRINGER:
4 Q. Dr. Skavic we got your last answer. The interpreters are asking
5 to you move a little closer to the microphone so that they can hear you
6 better. Okay. And then just to review the mathematics here, Dr. Skavic,
7 relying on the femur length alone, then, that would give us a calculation
8 of approximately 188 centimetres if one uses the multiplier of 3.76 that
9 you used?
10 A. Correct.
11 Q. Okay. And the only other question I wanted to ask you about this
12 article is if you turn another one, two, three, four, five, turn another
13 five pages of this same document, P956, what we find are what are called
14 regression formula. This is on the page immediately following the page
15 with the photographs of the two femurs. Do you have that, Dr. Skavic, a
16 page containing --
17 A. Yes, I've got it.
18 Q. Now, just skipping down past the formulas for females to the
19 formulas for males, it appears to me, sir, that this author of this
20 article has in fact used margins of error, or what he calls "confidence
21 intervals," of nearly 7 centimetres, 6.90 or 6.96 depending on whether the
22 measurement of the femur is the physiological or the perpendicular
23 length. Sir, would you accept that qualified experts in your field may in
24 fact use margins much error or so-called "confidence intervals" of up to
25 seven centimetres?
1 A. As I have already stated, it is a paper that I'm not familiar
2 with, so I do not know what the authors did, what kind of material they
3 used, in which way they worked, and therefore, I cannot comment on this at
4 all. I have to go back to the identification method that we apply, and
5 emphasise factors and the expected margin of error. Therefore, in our
6 work, and in view of our factors, we never accept an error of plus-minus
7 seven centimetres. If we were faced with such an error, then that
8 identification could not be positive and we repeat once again, it needs to
9 be confirmed or again refuted by more reliable method, because if somebody
10 allows an error of plus-minus seven centimetres, that means a foot in
11 centimetre height, from the smallest to the -- to the biggest possible, as
12 resulting from such calculation. And this is not a way to consider an
13 identification as absolutely objectively proven.
14 Q. So, Dr. Skavic, you're not aware of any published literature in
15 which experts in your field have used margins of error of greater than one
16 or two centimetres? You'd reject any margin of error greater than two
17 centimetres? Is that your testimony?
18 A. I was talking about the methods we used for identification, and I
19 said that unfortunately, we do have experience with the number of
20 identifications, out of all the exhumed persons so far, in the territory
21 of the Republic of Croatia, we have come up with 81.9 per cent of positive
22 identifications, which is an extraordinary result. Therefore, as far as I
23 my work is concerned, our factors, that we used in order to obtain these
24 results, are the most competent ones. Whether somebody else does
25 differently, allows a different margin of error, and how much, for the
1 time being, for my estimates and for my identification methods, is not
3 Q. Let me put the question to you this way, sir. Would you agree
4 with me, sir, that a fully qualified expert in your field may in fact use
5 a margin of error of up to seven centimetres or six centimetres as opposed
6 to the smaller margins of error used by you and your staff? Could a
7 different expert, fully qualified, justifiably important a greater margin
8 of error?
9 A. In the specific case, Dr. Zujo, is an absolute expert. If he says
10 that he tolerates a larger errors, that is up to him. He is
11 responsibility for his work. I am responsible for my work, and I would
12 never say that this case is the case of a positive identification.
13 Q. And in addition to Dr. Zujo, sir, it would appear that the author
14 of this article that we have been referring to would also tolerate a
15 margin of error of up to nearly seven centimetres. Would you agree with
16 me on that point?
17 A. I must say that I don't know what the author or the authors of
18 this paper did, and if I am asked to answer this question, I would need
19 sometime to study this paper.
20 Q. Dr. Skavic, if you had performed a calculation the way that's
21 indicated, at least by the author of this article, relying on femur alone,
22 applying your multiplier of 3.76, and then utilising a margin of error of
23 plus or minus seven centimetres, isn't it true, sir, that you would
24 arrive squarely within the range or you could arrive at a conclusion that
25 is consistent and reconcilable with the estimate of height given by the
1 family member in this case, of 196 centimetres?
2 JUDGE LIU: Yes, Mr. Par?
3 MR. PAR: [Interpretation] I object. My learned friend is quoting
4 a paper and then speculates what would happen "if." Professor Skavic told
5 you clearly that he couldn't comment on this paper, because he hasn't read
6 it. There is no translation. He hasn't read it. And now he is being
7 asked to speculate what would happen if he did or if he used something
8 that he didn't use. If my learned friend insists, then I believe that
9 Professor Skavic should be enabled to read this paper so as to know what
10 he is supposed to talk about.
11 JUDGE LIU: Well, Mr. Stringer, I think your question is very
12 obvious, which is that every lay plan could do his own calculation
13 according to this formula. There is no need to put this question to
14 expert. You might put your question in another way.
15 MR. STRINGER: Mr. President, I think I questioned the witness
16 significantly enough on this issue and this point and that in fact brings
17 me to the end of the cross-examination.
18 JUDGE LIU: Thank you. Any re-examination, Mr. Par?
19 MR. PAR: [Interpretation] I do have some additional questions,
20 Your Honour.
21 Re-examined by Mr. Par:
22 Q. Professor Skavic, let's start with the experts, some other
23 authors, who could challenge your method and approach to your work. You
24 have mentioned a population study. Does this population study mean that
25 you, in a specific case, in the territory of Croatia and Bosnia, examined
1 this particular population and does that mean that you have arrived at
2 some exact factors which you estimated were the best factors in the
3 identification of the said population? Did I understand you correctly?
4 A. Yes. You did. This was a population study carried out in the
5 Republic of Croatia.
6 Q. Is there anybody more competent anywhere in the world? Is there a
7 better analysis that could be applied to this particular population? Is
8 there any formula better than the one that you have arrived at? Is this
9 the strongest and the best set of figures that could be established?
10 A. As I've already said, there are population studies for different
11 populations. This is the only one that matches our population.
12 Q. Another question with regard to this: If we now took into
13 consideration this expert mentioned by Mr. Stringer, if this expert came
14 with his table to our area, would all of his results be incorrect with
15 regard to the things that you have researched so far?
16 A. I would like to put it in a different way. If any expert,
17 including this one, came here and carried out a population study, he would
18 arrive at identical or similar data or factors that we have arrived at,
19 i.e. the factors would not differ significantly.
20 Q. Let's go back to some questions posed by my learned friend,
21 Mr. Stringer. I would like to simplify some things with you. Harmandzic's
22 body identification was based on several factors, some objects, clothes,
23 medical findings. If we look at one factor at a time, let's look at the
24 skeleton first. My learned friend Stringer put it to you that the
25 skeleton belonged to a male, the skeleton indicated the age of some 45
1 years or so, and some other elements could be seen from the skeleton. If
2 we had nothing but the skeleton and the information that it was a 45 year
3 old female [As interpreted] whose height was 186 centimetres, could we
4 eliminate Nenad Harmandzic?
5 A. Yes. The calculation would not match the living height of the
6 person, which was 196 centimetres.
7 Q. Now we introduce some other identification elements, a pair of
8 jeans, a lighter, a buckle, a belt buckle and so on and so forth. Is it
9 important for you, when you carry out your identification, is it the
10 family who tells you first what the deceased had on his or her body, or is
11 it important that you first showed them what has been found and then they
12 confirm that it belonged to their next of kin? So what comes first?
13 A. I'm not familiar with this segment of identification in Bosnia.
14 In Croatia, there are the so-called pre-mortem data. Every family, every
15 member of the family, independently fills out a form, mentioning all the
16 important elements, starting with height, weight, personal signs, dental
17 status, ending with the articles of clothing if they are familiar with
18 those. So these are the data which are the so-called pre-mortem data, and
19 they exist before we start the identification process.
20 Q. This is very important because Dr. Zujo couldn't tell us, he
21 didn't remember, whether he obtained the information from the son before
22 the post-mortem or later. Another question with regard to the objects
23 found on anybody's body. Is it the same or is there a significant
24 difference if that object, a shoe or an article of clothing, is found on
25 the body, or if that objects are found in the mass grave close to a
1 skeleton? Does it make any difference for you when you approach the
2 post-mortem, if an object was found on a body or if the objects are found
3 somewhere near the skeleton?
4 A. I emphasised that in my answers. When we are talking about this
5 group of elements, such as shoes, belts, buckles, lighters and so on and
6 so forth, if those objects are found next to the skeleton, next to the
7 cadaver, then their significance is much less than if the body was found
8 dressed and with those elements on the body. So the elements such as
9 lighters, if they were found in the trousers, in the pockets.
10 Q. Based upon your experience, my learned friend Stringer that is
11 shown us some of your findings in which you used the same method. So what
12 you take for granted is what the family tells you; is that correct? Do
13 you take that for granted?
14 A. All this is data that we compare with the data on exhumation. So
15 the data provided by the family before we did the exhumation, a long time
16 ago, sometimes, is compared with the findings of the post-mortem. So some
17 of these -- that information is provided even before we had the body. We
18 obtained the post-mortem information for every person that was found
19 missing in the territory of Croatia.
20 Q. So you obtained the information from family and you match that
21 information with your other data. What if later on it appears that the
22 data provided by the member of the family is not correct because later on
23 a witness appears who says that he swapped clothes with the deceased?
24 Would that then change your findings, if you subsequently obtained
25 information contrary to the information obtained by the family? Would
1 that alter your findings?
2 A. Yes, in any case, if new information appears, then one has to
3 determine what the weight of the new information is. Whether the
4 identification was made on the subsequently based data or on some other
5 data, so the situation differs from one case to another, and your approach
6 differs from one case to another, when it comes to the subsequently
7 altered identification data.
8 JUDGE LIU: Well, Mr. Par, we still have another 90 minutes to go,
9 so there is no hurry, because the interpreters have some hard time to
10 catch up with you. Please make a pause after you hear the answer from
11 this witness.
12 MR. PAR: [Interpretation] Thank you for the warning. I apologise
13 to the interpreters.
14 Q. We have a situation here that we have information furnished by the
15 son, and at the same time, we have testimonies by witnesses who have
16 provided us with the description of the clothes that differ from the
17 clothes that were found on the -- during the identification. So if you --
18 if you had -- if an expert had different information about the clothes,
19 would the expert then be compelled to alter his findings or would he leave
20 it to somebody else to make an estimate?
21 A. In any case, one would need to find out who was it who last saw
22 the deceased, how much time elapsed between the moment the family saw the
23 member of their family alive until the moment when this other person saw
24 him. In a case like this, the post-mortem finding has to be reviewed if
25 it was based on the statement given by the family, as a result of a more
1 recent data which is more relevant for the identification of that body.
2 Q. Let's go back to the other identification factors you mentioned,
3 the teeth, you also said that a dentist is a part of your team. I would
4 really be interested in the teeth. You said that you compared the dental
5 status with the dental records. Where do you find the dental records?
6 A. When a body is prepared for identification, and we've done it for
7 years, then all the persons from the immediate family are asked to give
8 pre-mortem information. Then we obtain, through official channels, dental
9 records of all the missing persons. So that we even before we find the
10 body, we already have the records containing data on every person,
11 including dental records, for which we don't even know whether we will
12 need it, but we do have them. Likewise, from every family, we obtain
13 photos. Likewise from all the people who are looking for their next of
14 kin, we obtain blood samples or saliva samples for the DNA analysis so
15 that at this very moment, we have some 2500 processed genomes of the
16 members of the immediate families of all the missing persons, so if at any
17 given point in time, we have any doubts, then based on this available
18 information, we will complete our identification.
19 Q. The body of Nenad Harmandzic, who was formerly a member of the
20 MUP, would it be possible to find the dental records of such people in the
21 MUP? Because I believe that MUP has its own dental records for its
22 members. So would that be a customary procedure when you do the
23 identification of such persons, in order to establish who they are?
24 JUDGE LIU: Yes, Mr. Stringer?
25 MR. STRINGER: We object, Your Honour, on the grounds that this is
1 beyond the scope of the cross-examination.
2 JUDGE LIU: We believe so, that, Mr. Par, I think your question is
3 already beyond the scope of the cross-examination. You may rephrase your
4 question or put your question in another way.
5 MR. PAR: [Interpretation]
6 Q. Mr. Skavic, have you ever carried out identifications of MUP
8 A. Yes.
9 Q. And when you did such identifications, did you ask for the medical
10 records from the family or from the MUP?
11 JUDGE LIU: Well, Mr. Stringer?
12 MR. STRINGER: Mr. President, with respect to my learned colleague
13 I really think this is not only beyond the scope of the cross-examination
14 but this is now well beyond the scope of the original expert opinion that
15 Dr. Skavic submitted to the Court and we object on both of those grounds.
16 JUDGE LIU: Yes. We agree with you. Mr. Par, skip this
18 MR. PAR: [Interpretation] Mr. President, my learned friend
19 Stringer examined Professor Skavic about his findings. He asked him about
20 the dental status, which is not mentioned in his findings. He said that
21 his analysis was based on the dental status. Then my learned friend
22 Stringer asked him how come that it doesn't transpire from the findings
23 that there was a dentist here? I'm not clear why I am now beyond the
24 scope of the cross-examination if Mr. Stringer has mentioned that in ten
25 of his questions? I'm asking Mr. Skavic about the method in order to see
1 a simple thing, and that is whether there was an omission on the part of
2 Dr. Zujo and Dobraca that -- and that was that they didn't ask for the
3 medical records from the MUP when they were carrying out the
4 identification of a policeman. That is all that my questions are aimed
6 JUDGE LIU: Yes, Mr. Stringer?
7 MR. STRINGER: Your Honour, that proffer is beyond the scope of
8 the cross, it's beyond the scope of the original expert conclusions that
9 have been given. He's never said that before. And if he's allowed to
10 testify about that now, I would respectfully request an opportunity to
11 cross-examine again on what is a new point but it is a new point,
12 Mr. President, and we object.
13 JUDGE LIU: Mr. Par, we believe that it is a new point of the
14 argument, so I think it's out of the scope. You may skip this question.
15 MR. PAR: [Interpretation] Your Honours, I have to abide by your
16 ruling, so I will move on.
17 Q. Professor Skavic, at the beginning of the cross-examination, my
18 learned colleague Stringer faced you with some of your identification
19 findings, trying to prove that your findings based on the same method used
20 by Dr. Zujo and Dobraca, are to be considered reliable and that Dr. Zujo's
21 and Dobraca's findings based on the same method should not be considered
22 reliable. My question is as follows: When you say that Dobraca's and
23 Zujo's finding is unreliable, is it based on the facts that in their
24 identification factors, there is a discrepancy, where in your
25 identification findings there is no discrepancy? Is that the
1 reason why you say that their finding is unreliable?
2 A. I've already answered a similar question and I emphasise that in
3 the two cases, two documents presented to me in respect of the
4 identifications carried out at the department of pathology in Zagreb,
5 there were three elements in this it particular case, it was the height,
6 the dental status and the elements furnished by the family and confirmed
7 by the family. Therefore, all the elements are in favour of a positive
8 identification. If any of the important elements were at variance, then
9 the identification could not have been considered positive.
10 Q. And finally, Professor Skavic, how could this disputable
11 identification be made indisputable? What about this DNA analysis? Could
12 this method be applied today to the same cadaver? What procedure would
13 that be? What would it consist of?
14 A. Since Dr. Dobraca's findings say that the denture is partly
15 preserved and that the bones are preserved, a sample taken from the teeth
16 and from the bones would enable a DNA analysis in order to either confirm
17 or rule out the findings that the body belonged to Harmandzic. So in
18 addition to that, a sample would have to be taken from the blood or the
19 saliva or the next of kin.
20 MR. PAR: [Interpretation] Thank you very much, professor. I have
21 no further questions. Your Honours, I have completed my re-examination.
22 JUDGE LIU: Yes. It's time for a break. We'll resume at 12.30.
23 --- Recess taken at 12.00 p.m.
24 --- On resuming at 12.31 p.m.
25 JUDGE LIU: Yes, Judges questions? Judge Clark?
1 Questioned by the Court:
2 JUDGE CLARK: Doctor, I have a number of questions to ask you. I
3 find your evidence quite fascinating, especially when we contrast it with
4 the evidence that we've heard previously. Can I ask you, doctor, if you
5 have any comment or inference or conclusion to draw from the length and
6 size of the bones in relation to the possible body build of the person on
7 whom the autopsy was being carried out, pre-mortem?
8 A. Unfortunately, it is not possible to do on the basis of the
9 bones. The best illustration is why is it impossible to give an answer in
10 this way is that, for instance, in a family, you have an individual who is
11 the same height, in the 20s, or 30s, and perhaps weighing so many
12 kilograms less than when that same individual reaches the age of 40 or 50.
13 We cannot say -- we can establish on the basis of bones whether that
14 person had any muscular strength or not, but not much more than that.
15 JUDGE CLARK: Maybe that's what I was trying to ask you. Could
16 you draw any inference from the state of the bones as to whether this
17 person was a strongly built person or a finely built person?
18 A. Yes, as I said, people of athletic build will have in their
19 also -- system more pronounced places to which individual muscles are
20 connected. So that in a person, in a strongly built person, in an
21 athletically built person, you will see a small knots in places of contact
22 between muscle and bone and that is the only way one can establish whether
23 somebody was strongly built or something else but you cannot draw any
24 other explanation or say anything else about it.
25 JUDGE CLARK: Can I take it therefore doctor that you personally
1 can't comment because you didn't see the condition of this cadaver?
2 You're only reporting on reports?
3 A. That is right.
4 JUDGE CLARK: Doctor, during the break I looked up this word and I
5 couldn't find any meaning that approximated the use of the word in an
6 autopsy. What does dactylography mean? It's not a word that I'm
7 familiar with apart from the root having something to do with fingers.
9 A. It is an identification method, which is based on papillary
10 lines. So dactylography is possible only if you have a fresh cadaver when
11 the fingerprints preserved before are compared with the fingerprints taken
12 after death.
13 JUDGE CLARK: That sorts that out. It obviously didn't come into
14 play in this it particular case. I just noticed it from one of your
15 reports. Doctor, can I refer you to the report that was prepared by
16 Dr. -- The original doctor. It wasn't Dr. Zujo, it was Dr. Zujo and his
17 colleague, in relation to the autopsy of the alleged Harmandzic. And I
18 think it was on page 3, where he dealt with the condition of the skull and
19 the teeth.
20 A. Could you please tell me something more about it?
21 JUDGE CLARK: I'm trying to find it myself. Give me a moment.
22 It's Dr. Dobraca's report on the autopsy of the body that was subsequently
23 identified as Mr. Harmandzic's body, and it's in relation to -- I think
24 it's on page 3 of the report, in relation -- the number of the document?
25 JUDGE LIU: Yes, Mr. Par?
1 MR. PAR: [Interpretation] I don't think that the expert has
2 Dobraca's report with him, so I don't know.
3 JUDGE LIU: Yes, Mr. Stringer?
4 MR. STRINGER: He does have it, Mr. President. I can refer the
5 Registrar to one of the exhibits that I did not use during the cross,
6 which is marked as Exhibit number 877.1. That's the 94 bis statement of
7 Dr. Zujo, and then the actual report that I think Judge Clark is referring
8 to in the B/C/S language is Exhibit C to that report. So you have
9 Dr. Zujo's report is the first document, and then you have the Dobraca
10 record of expert witness interview in English as Exhibit A to it, and then
11 Exhibit B is the French version, and then Exhibit C is the one that I
12 think the witness would want to look at.
13 JUDGE LIU: Thank you.
14 JUDGE CLARK: I think the document is 00960 something, and does
15 the word "zubi" mean teeth? If it does, then that's the right one. It's
16 witness statement of Dr. Dobraca and it's on page 2. Have you found it,
18 A. I am looking.
19 JUDGE LIU: Yes, Mr. Stringer?
20 MR. STRINGER: Mr. President, I think actually we may be referring
21 to what's marked as Exhibit D to the 94 bis statement, which I know the
22 Registrar has in Zagreb, again Exhibit D to Exhibit 877.1. This is an OTP
23 witness statement of Dr. Dobraca with an interview date of 1 March, 2000.
24 Is that -- Judge Clark, is that the -- because there is the OTP witness
25 statement of Dr. Dobraca and then there is, of course, the actual report
1 of Dr. Dobraca which goes back to 1998, at the time of the exhumation.
2 JUDGE CLARK: It's described as a witness statement but from
3 reading it appears to be one that wasn't prepared for the OTP.
4 THE REGISTRAR: [inaudible]
5 JUDGE CLARK: I'm wrong about that, it says, "I'm prepared to
6 come, willing to testify before the ICTY in The Hague should it become
7 necessary." That one. And it's dated -- where is the date? 1st of
8 March, 2000.
9 MR. STRINGER: Yes, that's it, Judge Clark. That's his OTP
10 witness statement, and for the Registrar, yeah, the ERN number on the top
11 right-hand corner of the first page would be 00922647.
12 THE REGISTRAR: What is the Exhibit number?
13 MR. STRINGER: This is Exhibit D attached to Exhibit -- which is a
14 part of Exhibit number 877.1.
15 JUDGE LIU: Yes, Mr. Seric?
16 MR. SERIC: [Interpretation] Mr. President, it is a procedural
17 matter, and I need to say it. I don't understand, after all this, who is
18 examining the witness? Is it -- is the OTP helping or confusing the
19 witness with these interventions? With regard to a very specific and
20 clear question asked by Judge Clark, the witness will know what this is
21 about and then he'll know the answer or he won't know it.
22 JUDGE LIU: Well, the Judge could ask any questions, he or she
23 could, and if there is a misunderstanding or refer to any documents, I
24 think both parties will help the Judges to find which document it is.
25 JUDGE CLARK: Perhaps I'm causing the confusion. If Madam
1 Registrar could assist the witness, and I apologise, Witness, if I'm
2 confusing you. There are two reports I'm referring to, one is called a
3 record of expert witness interview and it's Exhibit A of Exhibit P846.
4 And the other one is Exhibit D. That's in English, of the same exhibit, I
5 believe, and it's also -- obviously you'd want to find the reports in your
6 own language because I'm referring specifically to the dental findings.
7 A. If I can tell you what I have before me, this is information where
8 Dr. Zujo says that because of the state that the teeth in the upper jaw
9 are in, both on the right and the left-hand side, it was impossible to use
10 that as an identification method because of numerous fractures. But in
11 the lower jaw, -- but he says that it they were able to establish the
12 state of teeth in the lower jaw, both on the left side and on the right
13 side. And then, when asked, he says that they did not use the teeth for
14 their identification purposes because they would have the dental --
15 because they had nothing to compare the dental print with. This is the
16 only thing about teeth that I can locate now.
17 JUDGE CLARK: We are talking about the same thing, doctor, so if
18 we agree that the report from the autopsy would indicate that there were
19 no teeth in the upper jaw because of two possible -- two possibilities,
20 the bullet which had entered the cheek exited through the mouth,
21 destroying and removing the teeth, or that that had happened but that
22 anyway, the deceased may have worn a prosthesis. Do you accept that that
23 is what has been reported?
24 A. As for the upper jaw, yes, that is what the report says.
25 JUDGE CLARK: Would you therefore, doctor, be affected in any way
1 by the evidence which a family member gave that the late Nenad Harmandzic
2 had a partial prosthesis?
3 A. As we have already stated, yes, that is one of the possibilities.
4 JUDGE CLARK: Now, doctor, it appears to me that there have been a
5 series of possible identification pointers in this case, quite a number of
6 them. I don't have to enumerate them. But my understanding of your
7 evidence is that you exclude or ignore all those pointers, uniquely on
8 your thesis is that the length of the femur and the humerus do not
9 correspond with the formula for height as described by family members.
10 A. I have already spoken about the weight of individual
11 identification elements. From the information about the changes
12 established in the lower jaw, and Dr. Zujo says that in the lower jaw, the
13 right lower jaw, three molars, and on the left-hand side, teeth from the
14 third to the 8th were missing, this is an important identification
15 element. Yet there is no explanation whether they were missing because
16 they had been extracted or broken before, after death, or what. So if we
17 talk about the teeth, this important element of identification was not
18 covered at all. I have already pointed out how important the state of
19 teeth is important, and that is why I said that a dentist must be
20 incorporated in the team to analyse this element in a competent manner. I
21 also said that all the elements that favour the conclusion that the
22 cadaver indeed belongs to Nenad Harmandzic are there, but this particular
23 pointer, and I mean bones, is at variance with them, is dissonant and that
24 is why it requires to be verified by another accurate method.
25 JUDGE CLARK: Doctor, would you accept -- and I'm sure you
1 would -- that there are infinite varieties in the human form and that one
2 can say what one ought to find in general or in principle, in other words
3 a small person usually has small feet and a very tall person usually has
4 large feet but I am sure that you will have found the rare tall person
5 with small feet and vice versa. You wouldn't exclude the person from
6 being tall on the basis that his feet were extraordinarily small, would
8 A. As for the foot, yes.
9 JUDGE CLARK: I see. Can I ask you if the calculation of height
10 by long bones is a science or an art?
11 A. Well, it is a combination of population studies and calculations.
12 JUDGE CLARK: So, doctor, it's not an absolute, is it?
13 A. That's true.
14 JUDGE CLARK: From my calculations, doctor, in order for the femur
15 of this particular skeleton to accord with the description of the height
16 as given by family members, the femur would have to be 2.1 centimetres
17 taller or longer.
18 A. I didn't analyse that but if you have the height of 196 divided by
19 this factor, then we shall have a bone, the length of which would suit
20 such a particular person.
21 JUDGE CLARK: 52.12. So what I'm saying to you, doctor, is you
22 are prepared, as I understand it, to exclude a number of findings which in
23 themselves are probably not of great weight but cumulatively could be,
24 you're prepared to exclude all those on the basis of a femur that is 2.12
25 centimetres shorter than your formula; is that correct?
1 A. I'd like to repeat it once again. I do not exclude any one of
2 these elements. All I do is point out that one of them, which is very
3 important, is at great variance with the information about the height of
4 the late man in lifetime, and therefore calls for the verification by
5 another accurate, reliable method.
6 JUDGE CLARK: But I think you'd agree with me, doctor, that we are
7 talking in terms of 2.12 centimetres in a skeleton which is almost six
8 years old.
9 A. A skeleton almost six years old, that is its femur, did not change
10 over that time. It couldn't become shorter by 2 centimetres and 12
11 millimetres. If it was in one piece as the expert says then it would have
12 to be the same length as on the day of death rather than 2 and something
13 centimetres shorter.
14 JUDGE CLARK: Thank you, doctor, but if you were measuring a femur
15 at an autopsy and indeed I'm sure you've done it many, many times, do you
16 measure it straight up or in the form in which it lies in a live body?
17 What do scientists do? Do they measure it lying down straight and measure
18 it that way or do they bend it a little bit horizontally as in the
19 photograph of the report that we were shown by Mr. Stringer? He might be
20 kind enough to find it for me.
21 MR. STRINGER: Judge Clark, this is Exhibit 956 and the 7th page
22 of that has photographs that show two different ways to measure the
24 A. It has to do with the team who opts for a particular method of
25 measurement whether they will do with a bone horizontally or vertically,
1 but the length calculated must always be the same if it was done in the
2 proper way. What we do is that we have a channel, a conduit, with three
3 wooden sides, and one of them is fixed, a fixed wooden plate next to which
4 the bone is put. And the other end is sliding. That is it can be moved.
5 And with this moveable part, we press the bone length wise along the fixed
6 wall, and in that groove we have a fixed scale in millimetres and that is
7 how we measure the bone, always in the same way.
8 JUDGE CLARK: Thank you. I'm going to ask you to speculate, as my
9 last question, but before I ask that, and I think as you're an expert,
10 it's an educated speculation. Normally we wouldn't ask anybody to
11 speculate. It wouldn't be right. But I'm just going to ask you this one
12 thing, which is not speculation. Would you find normally, in an
13 extraordinary coincidence, that a bullet would be found among the skeletal
14 remains of a person who is described as having a bullet in his body when
15 alive? Would you find it an extraordinary coincidence if a bullet should
16 be there, in the absence of it being the actual bullet?
17 A. Although it is said that the projectile was next to the cadaver, I
18 would nevertheless consider it very important but not sufficient for
20 JUDGE CLARK: My final question, doctor, which is asking you for
21 your expert opinion, which, in the absence of your expertise would be
22 speculation but I don't believe it is when you're an expert, if the DNA on
23 somebody in this situation, and we are not talking about Mr. Harmandzic,
24 if the DNA results indicated that the body was the person described, how
25 would you, as a scientist, and as an expert, deal with the variance
1 between the femur length and the given, pre-mortem height?
2 A. Since there was some interference, I'm not quite sure if I heard
3 the question correctly. If I did, my answer would be as follows: The DNA
4 is a reliable method. The only reliable method. And if the result of the
5 DNA were either positive or negative, then no other identification method
6 could affect that result.
7 JUDGE CLARK: Can I put it this way? Suppose you were -- you had
8 a body, the 20th body of those 20 unfortunate Croatian soldiers who were
9 discovered and who were the subject of a report prepared by you and
10 referred to by the Prosecution. You described how 19 were positively
11 identified and one remained unidentified because the description didn't
12 accord to the findings. Just suppose for a moment that that person had a
13 number of indicators of identification, such as age, gender, injuries,
14 teeth -- no, teeth might be too positive, but clothing, clothing,
15 footwear, and suppose his femur was too short for the description given by
16 his family. Suppose the femur were well outside your formula but the DNA
17 came back positively. How would you react to that?
18 A. I've already said that none of these identification elements can
19 be confronted or -- with a positive DNA finding, so in this assumed case
20 that you have described, the positive DNA identification would confirm the
21 identity. Everything else is not to be confronted with the DNA analysis
22 and result.
23 JUDGE CLARK: And would you not also say, doctor, that that was
24 yet another example of the infinite variety of the human form?
25 A. I could absolutely comment on that, but for identification, it
1 would be absolutely irrelevant.
2 JUDGE CLARK: Thank you, doctor, for your assistance.
3 JUDGE LIU: Any questions out of Judges's questions? Yes,
4 Mr. Stringer?
5 MR. STRINGER: Just one, Mr. President.
6 Further cross-examination by Mr. Stringer:
7 Q. Dr. Skavic, this goes to the last couple of questions that Judge
8 Clark asked you, about situations where you may be confronted with very
9 conclusive DNA evidence which is not consistent with the examination of --
10 or the information of the cadaver that's in front of you. You said that
11 you read Dr. Zujo's testimony when he came and testified in this case. I
12 want to read you is just a short passage from that testimony and ask you
13 whether you've confronted the same situation in your experience. This is
14 what Dr. Zujo said. In fact it was in response to a question from Judge
15 Clark. This is what Dr. Zujo said: "I work on identification every day.
16 I have such cases that, where you have documents, you find complete
17 documentation on the body, so the parameters are 100 per cent accurate,
18 but that would be drastically different. For instance, I find some cases
19 where they had a metal plate in the femur and I can find that, and yet the
20 height does not agree with the height that I calculated, which means you
21 have a deviation." Now, my question, Dr. Skavic, is just that: Have you
22 encountered situations where you have a very strong identification based
23 on documentation or other information, and yet the height calculation that
24 you would have obtained, based upon measuring the length of the femur,
25 does simply not correspond to the height that you know the cadaver to have
1 been while alive? Have you ever encountered that in your practice?
2 A. I already said that in every case, we take samples for DNA
3 analysis, it to prevent such dubious identifications. If there are 100
4 per cent certain indicators of the identity, then that person can be
5 identified without a DNA analysis, but in this case, this is not the
6 case. This is the case of a number of parameters have not been taken into
7 account or they give a wrong picture. One is the dental status, which
8 hasn't been taken, and the second is the height, which is at variance. So
9 here, based on the existing data, we cannot talk about a positive
10 identification but about a doubt as to the identity of the person.
11 However, that doubt has to either be confirmed or ruled out by a method.
12 Q. Well, then, Dr. Skavic, again coming back to the testimony I just
13 read, if the family member, if a family told you that their missing
14 relative had a metal plate attached to his femur while he was alive --
15 JUDGE LIU: Yes, Mr. Par?
16 MR. PAR: [Interpretation] Your Honour, I object to this way of
17 posing questions. If the Trial Chamber is allowed to speculate, I do not
18 believe that the same right can be granted to the Prosecution. You cannot
19 proceed by asking Dr. Skavic what would happen if you had been here or
20 there? This Dr. Skavic is taking questions about this case, and this is
21 what he has done. How can the Prosecutor be allowed to enter into a zone
22 that the Judge Clark has just opened slightly? This goes beyond the scope
23 of this expert's testimony. I object to this speculative way of asking
25 JUDGE LIU: Yes, Mr. Stringer. We only heard the part of your
1 question but I believe that there is some speculations in that.
2 MR. STRINGER: Very well, Mr. President. I have no further
4 JUDGE LIU: Yes, Mr. Par?
5 JUDGE CLARK: Sorry for interrupting, it's just from my point of
6 view this is important evidence and these experts are obviously crucial to
7 the case. I thought that Mr. Stringer asked a question which elicited an
8 answer which was not responsive in total to the question, and then it led
9 Mr. Stringer down a line of questioning to which Mr. Par objected. The
10 problem is that it was an interesting question and I'd like to hear the
11 answer to it from Dr. Skavic because it doesn't involve speculation. I
12 don't know how to roll this back but I know that you asked a question of
13 Dr. Skavic in relation to previous findings. If you can find it and pose
14 it again and see if we could get the answer, I think it's important to
15 hear the answer.
16 MR. STRINGER:
17 Q. Dr. Skavic, again, the question is, and I'll try to rephrase it:
18 Aren't there situations where you are presented with conclusive evidence
19 establishing beyond doubt the identity of the cadaver such as, for
20 instance finding a metal plate holding a femur together which the family
21 told to you look for, or documentation found on the family -- on the
22 cadaver with other information, so that really the evidence is conclusive
23 in that respect. Would you still reject the identification even on those
24 grounds or on very solid grounds, simply because it did not fit into your
25 own formula? That's my question.
1 A. I understand your question. Many times we've had situations like
2 this, because that is a very important identification element, and in
3 every such case, either the family or the institution which had carried
4 out the procedure or there are x-rays from the checkup, then these x-rays
5 are compared with the x-ray of the bone found in exhumation. If these two
6 correspond, then the identification is positive.
7 Q. And I take it, sir, that in that situation, a calculation of the
8 height or an assumed height based and your own tables would be secondary
9 to the other information that is before you?
10 A. When I started talking about tables and factors, I also mentioned
11 population. These factors and the population studies are carried out on
12 healthy individuals. An deformations due to trauma or due to atypical
13 build are anomalies, deviations from the customary findings, so no
14 population study means anything in such a case.
15 MR. STRINGER: No further questions, Mr. President.
16 JUDGE LIU: Yes, Mr. Par?
17 Further examination by Mr. Par:
18 Q. Just briefly, Professor Skavic, when talking about the exhumations
19 of war victims, does it often happen that bullets are found by these
20 cadavers, that are being exhumed? Is that -- does that happen often or
22 A. With regard to the complete situation, with regard to the fact
23 that the biggest number of these people were murdered by fire weapons,
24 very often we come across projectiles, parts of projectiles, parts of
25 explosive devices and so on and so forth.
1 Q. Would it then be rare or common to find bullets which have nothing
2 to do with the death of a particular victim? Have there been cases like
4 A. There are projectiles which caused the death and there are also
5 projectiles which caused the wounding at the same moment or before that.
6 I can't say for a fact.
7 Q. Do you have the possibility in such cases to establish whether the
8 projectile has anything to do with that particular body or came to the
9 grave from another source? Do you have the possibility to establish that?
10 A. I don't have that possibility at all.
11 MR. PAR: [Interpretation] I have no further questions. Thank you
12 Professor Skavic.
13 THE WITNESS: [Interpretation] Thank you, sir.
14 JUDGE LIU: Well, professor, thank you very much for coming to
15 give your evidence. We learned a lot from your expert testimony. We all
16 wish you good luck in your future work. The usher may take you out of the
18 THE WITNESS: [Interpretation] Thank you very much.
19 JUDGE LIU: At this stage are there any documents to tender into
20 evidence? Yes, Mr. Par?
21 MR. PAR: [Interpretation] Your Honour, we would like to propose
22 that this testimony, as a Defence Exhibit, but this has already been
23 admitted as D425. At this moment I'm not aware of the status of this
24 document. On whether it has been admitted conditionally, because it was
25 used in the cross-examination of Dr. Zujo. If that exhibit has not been
1 admitted, I would like to tender that document for admission. Maybe under
2 the same number. And that is D2/25.
3 JUDGE LIU: Any objections?
4 MR. STRINGER: No objection to its admission, Mr. President. We
5 obviously dispute the findings that are contained in it but we don't
6 object to its being admitted into evidence.
7 JUDGE LIU: Thank you very much. It has been admitted into the
9 MR. STRINGER: And then, Mr. President, on behalf of the
10 Prosecution, there were four exhibits referred to during the cross,
11 Exhibit P113.2, 802.13, 802.14, and P956. And in addition to those four,
12 again just for the record, we would -- we are assuming that the expert
13 report of Dr. Zujo which was submitted under Rule 94 bis is already in
14 evidence but that's what we would tender in respect of Dr. Skavic.
15 JUDGE LIU: Thank you. We will check it. Any objections, Mr.
17 MR. PAR: [Interpretation] I do have an objection. We object to
18 the Exhibit P956. We do not object to any of the earlier exhibits, so the
19 findings by Dr. Skavic, P802.13, 802.14, and we do not object to the
20 excerpt from the Croatian medical journal, P113.2. However, we object
21 to the admission of the Exhibit P956, for a simple reason. This is a
22 document that was not suitable for the examination of Dr. Skavic, for the
23 cross-examination, because the document has not been translated.
24 Dr. Skavic could not say anything about the document. He asked for
25 some time in order to read the document, to be able to say something about
1 it. So we cannot accept the admission of a document on which the witness
2 couldn't say anything. The Defence has not received it in time in order
3 to be able to give it to this witness. So we don't find this document
5 JUDGE LIU: Well, as for the other three documents, that is
6 P113.2, P802.13, and P802.14, they are admitted into evidence. As for
7 document P956, this Trial Chamber would like to reserve its right to make
8 a decision at a later stage. After we go through all the transcripts.
9 Yes, it is so decided. Yes, Mr. Stringer?
10 MR. STRINGER: Mr. President, just before we break I had one
11 inquiry to make of the Trial Chamber in respect of the proceedings for
12 tomorrow. I know I asked this earlier but I think there was some
13 confusion whether the Prosecution should be prepared to hear evidence from
14 any of Mr. Martinovic's witnesses tomorrow if we finish with the first
15 witness before the end of the day? We weren't sure whether the Trial
16 Chamber intends to continue then tomorrow after the first witness is done
17 or whether the Trial Chamber intends to recess tomorrow after the first
18 witness and then begin with Mr. Martinovic's witnesses on Wednesday
20 JUDGE LIU: Well, Mr. Par, would you please inform us whether your
21 witness has arrived in The Hague or not? Yes, Mr. Seric?
22 MR. SERIC: [Interpretation] Mr. President, I remember well that on
23 the 28th of August, Mr. Stringer asked the same question and you,
24 President, said as follows. We can check with the transcript. Today we
25 will hear Professor Skavic. On the following day, we will hear the
1 witness for Mr. Naletilic, and then on Wednesday, we start with the first
2 witness for Mr. Martinovic. This is what we want to adhere to and this is
3 what we intend to do.
4 JUDGE LIU: You did not answer my question. My question is
5 whether you know or not whether your witness has arrived in The Hague or
6 not, or when are they expected to arrive here in The Hague.
7 MR. SERIC: [Interpretation] Mr. President, late yesterday evening,
8 three witnesses arrived in The Hague, and the first one of them will be
9 ready on Wednesday.
10 JUDGE LIU: Thank you. Thank you very much. Yes? Yes,
11 Mr. Krsnik?
12 MR. KRSNIK: [Interpretation] Your Honour, I would like to ask you
13 a question, maybe I have not understood well your orders for the further
14 developments in this trial. I've consulted Mr. Meek. I'm talking about
15 rebuttal and rebrief. You said that it was subject to changes. Have I
16 understood you well or not? If it is not subject to changes, as Mr. Meek
17 understands it, I would like to submit a motion. A complaint, because
18 the way the further course of the trial has been envisaged we cannot agree
19 with that. We have a number of motions that we would like to submit to
20 this Trial Chamber. If this is subject to changes, then, okay, if it is
21 not subject to changes, that will give me the opportunity to rethink what
22 I'm going to do next.
23 JUDGE LIU: Well, as for the order of the witnesses for this week,
24 tomorrow we will hear the witness in Mr. Naletilic's case and on Wednesday
25 morning, we will hear the witnesses in Mr. Martinovic's case. So is that
1 quite clear? Yes, Mr. Krsnik?
2 MR. KRSNIK: [Interpretation] I apologise. We may not have
3 understood each other. I'm not talking about this week. I'm talking
4 about the final brief and the rebuttal. I'm clear on the schedule for
5 this month but I'm not clear on the rebuttal and the final brief.
6 JUDGE LIU: Well, we have to deal with one thing after another
7 because Mr. Seric raised the order issue, we have to deal with the issue
8 first. And then as for the rebuttal and rejoinder procedures, I believe
9 that this Trial Chamber has made a decision on that. And if there are any
10 views, any difficulties that both parties might encounter they may let us
11 know through a motion. We will see what is to be done according to our
12 previous decision. And we have to remind both parties that this case
13 could only run until the end of October. You may find that in the
14 calendar there is no court schedule for this case in November. So having
15 said that, we'll resume tomorrow morning at 9.00 in the same courtroom.
16 --- Whereupon the hearing adjourned at
17 1.26 p.m., to be reconvened on Tuesday,
18 the 3rd day of July, 2002, at 9.00 a.m.