1 Tuesday, 12 April 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.03 a.m.

5 JUDGE ROBINSON: Mr. Nice.

6 MR. NICE: I've asked for the witness to be kept out for a couple

7 of minutes. The Court will remember that last week the present witness

8 gave evidence of an entirely expert character for a portion of his

9 evidence, touching on matters that had been dealt with by Court witness

10 Helena Ranta. I sought and obtained the Court's leave to contact

11 Dr. Ranta, and she very helpfully attended yesterday and is here today.

12 Although a Court witness, we first of all asked her, she having

13 been provided with a transcript, for any comments she had on the evidence

14 that had been given and then sought her assistance a little more

15 generally. I would ask that she be allowed to sit in court for the

16 remainder of this part of the witness's evidence, fulfilling so far as is

17 possible and appropriate, the functions of an expert able to advise

18 Mr. Saxon, who will be asking questions of the witness, of any matters

19 that she may regard as appropriate to be raised or that she may be able to

20 assist him with.

21 It's very good of her to have made her time available at such

22 short notice to help the Court, and in light of the way things have

23 developed, this would, in our respectful submission, be a useful and

24 efficient way to proceed.

25 [Trial Chamber confers]

1 JUDGE ROBINSON: Mr. Kay.

2 MR. KAY: Professor Ranta was -- Dr. Ranta was, of course, a Court

3 witness rather than a Prosecution witness. The Court will remember it was

4 an order of this Court which she fulfilled and gave evidence. So she is

5 not allied to either party in this case, and we think it would be

6 inappropriate that she adopted a position with the Prosecutor. She could,

7 of course, be available for consultation by either party with the leave of

8 the Court, but in our view it would be inappropriate for her to be sitting

9 with the Prosecutor and acting, so to speak, as an instrument for him. If

10 she is to fulfil such a function, she should be available for both sets of

11 parties and not be in a position which allies her with one particular

12 party.

13 JUDGE ROBINSON: Thank you. Mr. Milosevic.

14 THE ACCUSED: [Interpretation] Mrs. Ranta.

15 JUDGE ROBINSON: Yes.

16 THE ACCUSED: [Interpretation] As far as I'm concerned, you can do

17 however you decide. I don't mind one way or another.

18 I would like to ask a question of a procedural nature before the

19 witness comes in, please, so please bear that in mind.

20 MR. NICE: I'd simply -- in answer to Mr. Kay's point, if she's

21 not able really to contact us and speak to us directly, it's going to

22 become artificial and extremely slow. I sought your permission that we

23 should speak to her over the weekend and in reality she has cooperated

24 with us as an ordinary expert would, although as I explained to begin

25 with, we asked her simply for her comments on the evidence. It's far

1 easier --

2 JUDGE BONOMY: I don't think that's Mr. Kay's point, Mr. Nice. I

3 think Mr. Kay's point is one of perception and availability in general.

4 Whispering exchanges with Mr. Saxon in court, I don't think on the face of

5 it is the right way to deal with a witness who is a Court witness. She

6 should, on the face of it, be available to everyone for consultation, and

7 I would be inclined to separate the issue of whether she should be present

8 during the evidence of another witness from the one of where she should

9 sit and be present, and that's how I intend to address it.

10 MR. NICE: Your Honour, I'm sure she would be prepared to speak to

11 other parties in court, and if the Court insists that the consultation

12 shall be a separate exercise from the giving of evidence, it will simply

13 extend the process, but it's up to the Court.

14 [Trial Chamber confers]

15 JUDGE ROBINSON: Mrs. Ranta should sit in the public gallery, and

16 she will be available to either party if they so wish.

17 THE ACCUSED: [Interpretation] Mr. Robinson.

18 JUDGE ROBINSON: Mr. Milosevic.

19 THE ACCUSED: [Interpretation] With regard to what you said last

20 time, I wished to ask that after Witness Dobricanin we have Witness

21 Jasovic straight after him, and I'd just like to remind you, Mr. Robinson,

22 that you said, and I'm reading this from the transcript, turning to me,

23 "... if you wish to call [In English] that person as a witness, the

24 person will be called at the earliest opportunity."

25 [Interpretation] That's what you said, and this is the earliest

1 opportunity, and I did have an opportunity, in keeping with your

2 instructions, through the liaison officer to come into contact with the

3 witness and to talk to him, and he's ready to testify, and this is the

4 earliest opportunity after the ongoing witness. So I'd like you to give

5 permission for me to do that.

6 JUDGE ROBINSON: Mr. Nice.

7 MR. NICE: I object to the --

8 THE INTERPRETER: Microphone, Mr. Nice, please.

9 MR. NICE: I object to the addition of this witness to the list of

10 the accused's witnesses. That matter hasn't been dealt with. It's

11 convenient for me to explain something through the Court to the accused,

12 because he thought he made a point the last time we met about how it had

13 been the Prosecution's decision to have this witness called. The accused

14 often simply doesn't attend to procedural points or makes a point of not

15 doing so and it's absolutely essential that he understands that what

16 happened when he was notified of the presence of Jasovic in this building

17 was one of the many examples of the Prosecution doing things to help this

18 accused, a concern that he may not always, as a non-professional lawyer,

19 be acquainted with things with which he might better be acquainted. So we

20 simply told him about the presence here of that witness without in any

21 sense suggesting that the witness should be called or without conceding

22 that it would be right to call him.

23 It would be quite wrong to call this witness who would be being

24 called essentially - or this would have been the position - to produce

25 three witness statements of some importance to the case because they would

1 be witness statements going to suggest that people in Racak who died were

2 members of the KLA when the Prosecution's case and evidence is to the

3 contrary effect. There has still been no explanation given as to why

4 witnesses should be called -- should not be called and why their

5 statements should be given either hearsay or double hearsay. And it so

6 happened that I was, over the weekend, looking at some earlier evidence,

7 indeed the evidence of Mrs. Ranta -- or Dr. Ranta, and I happened upon an

8 application by the accused to have evidence of statements of either Dunjic

9 or Dobricanin read into the evidence in the course of that testimony, and

10 His Honour Judge May -- I'll just find the point. I made a note of it --

11 made the observation then that it wasn't the practice for witness

12 statements of individuals to be given when there was a procedure for

13 producing them either within the Rules of the Tribunal or, of course, by

14 calling the witness themselves.

15 Our position in relation to these statements has been clear

16 throughout from efforts -- despite efforts made to call them. It's our

17 submission that the witnesses should come themselves to give evidence.

18 There's no ground for calling such important evidence by hearsay, and

19 accordingly that this evidence is now technically inadmissible at the

20 hands of the man Jasovic.

21 Let me just see if I can find the reference that I had over the

22 weekend. Yes. It's on page 17762, where in answer to the accused Judge

23 May said: "Our usual rule and one which I would have thought applied here

24 is that we don't admit witness statement unless under particular Rules."

25 He said of that particular proposed witness statement: "If you want to

1 call these witnesses to give their evidence, you can do so, but

2 uncross-examined material is not usually admitted."

3 Further, I understand from a file I've been now provided with,

4 coming from the Defence, that through Jasovic they now want to produce no

5 less than something like 80 witness statements that I can show to you, all

6 of which are untranslated. If these witness statements go to material

7 matters in the Defence case, the witnesses should be called. If the

8 Chamber were to decide that it would be appropriate, notwithstanding our

9 argument to the contrary, to allow the material to be given in hearsay, it

10 would plainly all have to be investigated and it would all have to be

11 investigated before the witness comes to give his evidence.

12 So I have two objections: First, there is no grounds for adding

13 this witness's name to the Defence witness list; second, the evidence in

14 principle that he wishes to call is evidence that is inadmissible because

15 it's of an important nature and should come live from the witnesses

16 concerned; and third as part of number two, I'm simply not in any position

17 to deal with that material at this stage.

18 JUDGE ROBINSON: Mr. Nice, are you then saying that Rule 92 bis

19 and 89(F) are exhaustive as to the circumstances in which witness

20 statements can be admitted?

21 MR. NICE: I don't think I can say that despite the fact that it

22 was an observation from the Bench from your brother His Honour Judge Kwon

23 that that topic was raised. I don't think I can say they are exhaustive

24 because the provisions of general admissibility of hearsay are probably

25 broader, or in the terminology that we sometimes use, would trump any

1 restricting or implied restriction coming from 89(F) and 92 bis.

2 What I can say is that in practice this Court has required

3 important evidence from identifiable and living witnesses to be given live

4 - Jovic is an absolutely standard example - and would require the

5 necessary indicia of reliability to satisfy Rule 92 in the case of witness

6 ill, deponents or statement makers who are dead, and His Honour Judge

7 May's observation in the course of the Ranta evidence is one of a number

8 of exemplifications of that general practice.

9 Now, here this evidence is plainly potentially important, or it

10 may be very important to the Racak case or the Racak count and the Racak

11 part of the history, and there has been no inquiry made by the accused as

12 to whether these witnesses are available, it appears, no effort made to

13 call them, no effort made to see whether the statements allegedly given to

14 a police officer are statements they currently adopt, and so on.

15 This is material that should come live from the witnesses.

16 There's no grounds, under your practice or under the Rules specifically,

17 for it coming in the form of either the secondhand hearsay that it came in

18 through the last witness or in firsthand hearsay as proposed through this

19 witness.

20 JUDGE ROBINSON: Is the criterion that the evidence is important

21 or that it goes to the acts and conduct of the accused?

22 MR. NICE: I would have suggested that it's the former, not the

23 latter, because there have been plenty of other requirements that

24 witnesses come like Jovic. I mean, Jovic obviously goes in large part to

25 the acts and conduct of the accused but he also goes to a whole lot of

1 other matters as well and there was a general requirement that he should

2 come along and give his evidence.

3 JUDGE ROBINSON: The point really is that if you follow 92 bis, if

4 it goes to the acts and conduct of the accused, then the statement would

5 not be admissible, and if in any event it raises an issue between the

6 parties, then the witness should be available for cross-examination.

7 Under 89(F), the witness is to be available for cross-examination.

8 Mr. Kay.

9 MR. KAY: It's worth going back as to the reason why these

10 statements were produced. They were produced by the witness showing the

11 file that she had investigating the circumstances concerning the killings

12 at Racak. They were relative and probative to that issue, and they were

13 documents that she relied upon. Not to have produced such evidentiary

14 material would have made a nonsense for the reason that the witness was

15 giving evidence in the first place, and it was perfectly admissible,

16 probative and relevant and went to the issues of which she was speaking.

17 This matter now arises, in fact, because of cross-examination by

18 the Prosecution. The Trial Chamber will remember that Mr. Nice alleged to

19 the witness that the statements of three of the witnesses signed by the

20 man Jasovic had been taken in circumstances of oppression and bad faith

21 and conduct that was unacceptable. He went further and put allegations to

22 the witness herself that she was aware of such oppressive techniques being

23 used by police officers, was happy to condone it, and that was the whole

24 circumstance, as he saw it, the Prosecutor saw it, behind the

25 investigation of matters such as Racak and other important incidents of

1 killings.

2 Having put those allegations, Mr. Nice sought to adduce evidence

3 in various forms, video evidence of interviews in which those allegations

4 were made, and it so happened that Mr. Jasovic, who was the interviewing

5 officer of those three particular witnesses, was acting as a Prosecution

6 witness at the time.

7 It is plainly correct and proper for an accused to be able to meet

8 such serious allegations by calling that witness himself to deal with

9 properly with the matters that should be put to him as a way of Mr. Nice

10 being able to put his case and that witness being able to deal with the

11 case that is being made. There is --

12 JUDGE ROBINSON: What about the statements, the statements that

13 the accused is seeking to have admitted through Mr. Jasovic?

14 MR. KAY: Can I deal with that as a secondary issue, as the

15 primary issue concerns Mr. Jasovic as he arose in cross-examination and as

16 he arose in circumstances when none of us were aware of any significance

17 of that name until the morning that Mr. Nice raised it and we spotted his

18 name in the translations at the end of each statement.

19 He is a Prosecution witness. The Prosecution have taken

20 statements from him, called him as a witness in this building, are aware

21 of the materials that have been thus far produced through the witness

22 Marinkovic, and are perfectly able to deal with him if the accused chooses

23 to call him.

24 On the separate issue of the production of a further series of

25 statements through that witness, I don't have any instructions upon that

1 so I can't assist the Court any further. It's not something that has been

2 brought to my attention. We are aware that in the Rule 68 material,

3 because we researched it and provided it, that there are other statements

4 that have been recorded by this witness Jasovic and that they're within

5 the system. How it's to be used we don't know as of yet.

6 JUDGE BONOMY: I don't know if Judge Robinson intended this or

7 not, but I thought the question extended to the three statements as well.

8 And are you accepting that their relevance and probative value is confined

9 to demonstrating what was in the possession, or the information in the

10 possession of Judge Marinkovic at the time of the investigation and

11 therefore the material in the possession of the authorities of the

12 government in the most general sense?

13 MR. KAY: Yes. This is a two-stage matter, as I've viewed it, and

14 I haven't been made privy to any information to the contrary that we're

15 dealing with the matter concerning the allegations against Judge

16 Marinkovic, which as I say perfectly proper for that witness to be used by

17 the Defence. And the other issue would need further disclosure and

18 perhaps an application to add the witness to the witness list if he's to

19 deal with a far wider ambit of material so that there is disclosure

20 between the parties of the relevant exhibits, there are translations and

21 the matter can be considered for what it's worth. But at this stage, I'm

22 not in a position to address that.

23 JUDGE ROBINSON: All right. Thank you, Mr. Kay.

24 Mr. Milosevic, anything in reply?

25 THE ACCUSED: [Interpretation] Mr. Robinson, Mr. Jasovic is

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1 testifying. I talked to him. I saw all the documents that he has with

2 him at present, and he will testify about the statements that he took over

3 a long period of time - relative, of course, relatively long - in 1998 and

4 1999. And all those statements were taken in keeping with the laws

5 governing the Ministry of the Interior and him as an inspector, an

6 investigator, and another inspector as well. They were signed by them,

7 they were signed by the people giving the statements, so you can see how

8 he went about the business of taking statements.

9 Second, I think it is very useful, and I didn't know this because

10 I had no idea that the witness existed, it's a very good idea to see that

11 in these statements there is a lot of information which indicates, or at

12 least partially indicates some things and information that the organs of

13 the interior had about the activities of terrorists in the area of the

14 village of Racak, Petrovo, Mala Poljce [phoen], Rana [phoen], it's all a

15 very small area, in fact, and how all this took place. And among other

16 things, in a large number of the statements that he gathered, that he

17 collected in 1998 and 1999 before the event ever took place, before the

18 police intervened in Racak at all, which shows us that there were

19 different names in many of the statements, different names of persons who

20 fell casualty in Racak.

21 So by putting together all these pieces of information, you can

22 paint a very clear picture about what actually happened and I think it is

23 very useful for this witness to testify. And I realised that when you

24 told me that I could talk to him and that you informed me that he could

25 appear at the earliest opportunity, the person will be called at the

1 earliest opportunity, as you said, I went ahead and I really did do my

2 best to have it done at the earliest opportunity. And since the witness

3 is testifying about his own work, what he did and the statements he

4 himself took, so they're only statements taken by him personally, not the

5 statements of some third party but him and his colleague, and indeed they

6 signed the statements as investigators, you will find a great deal of

7 information which is highly beneficial for understanding everything that

8 took place.

9 So I do appeal to you to give the go-ahead for him to testify

10 after Witness Dobricanin. You will gain a clear picture. Judge

11 Marinkovic testified. Jasovic will be testifying. Dobricanin has

12 testified and is testifying, and you'll be given a very comprehensive,

13 clear picture.

14 [Trial Chamber confers]

15 JUDGE ROBINSON: Mr. Milosevic, we'll give our decision -- we'll

16 give our decision on this first thing tomorrow morning. We'll give our

17 decision on your application tomorrow morning.

18 The witness should, of course, in the meantime remain in The

19 Hague.

20 Let Dr. Dobricanin be called.

21 [The witness entered court]

22 WITNESS: SLAVISA DOBRICANIN [Resumed]

23 [Witness answered through interpreter]

24 JUDGE ROBINSON: Yes, Mr. Milosevic.

25 Examined by Mr. Milosevic: [Continued]

1 Q. Professor Dobricanin, we finished with your explanations regarding

2 the paraffin glove. Now I would just like to put a few more questions to

3 you that have to do with your observations, of course, if any.

4 You noticed that on one of the pictures from the mosque that was

5 made while the bodies were still there women can be seen wearing black

6 clothes, in mourning. You had been in Kosovo for a long time. You are

7 aware of the customs and habits there. Is there anything that seems

8 strange to you in that photograph?

9 A. Yes. I saw that photograph before as I was surfing the Internet.

10 I found it there, and I found it a bit strange due to two reasons.

11 First of all, women, Muslim women do not enter mosques. Secondly,

12 black -- the colour black is not the colour of mourning in the case of

13 Muslims, and that surprised me a bit, and I have no explanation for that.

14 Q. All right, Professor. Since we went through many aspects of

15 everything that you looked into, in terms of what you saw on site and in

16 terms of your own professional work in respect of all the dead, I would

17 like to ask you now, bearing in mind all these questions, to go through

18 some of the elements of 66(A), which says, inter alia: "After the

19 shelling, the forces of the FRY and Serbia entered the village later in

20 the morning and began conducting house-to-house searches. Villagers who

21 attempted to flee from the forces of the FRY and Serbia..." All of that

22 is in 66(a). And then there is this group of 25 men who attempted to hide

23 in a building but were discovered by the forces of the FRY and the police.

24 This is yet another allegation contained therein. Then it says that they

25 were beaten and then were removed to a nearby hill where they were shot

1 and killed, and so on and so forth.

2 Professor, you said here that you were in Racak and that there

3 were no signs of shelling there. Had there been any shelling, could it be

4 assumed that you would have seen some traces of it?

5 A. I saw no traces or signs of shelling.

6 Q. All right, Professor. Had there been any shelling, let's look at

7 it from yet another aspect, and then first shelling, as they say here, and

8 then entering the village. Could it be assumed that the villagers would

9 seek shelter from shelling? They would not wait there for the, as it says

10 here, forces of the FRY and Serbia to enter the village. Is that a

11 logical assumption?

12 A. In my opinion, that's a normal reaction on the part of people who

13 were attacked by any armed formation. They would probably flee from the

14 village and seek shelter somewhere in order to be safe.

15 Q. Professor, had there been any shelling, can it be assumed that

16 somebody would have been killed from a shell?

17 A. Absolutely. Out of the 40 bodies from Racak, we did not find any

18 traces on any of them --

19 JUDGE ROBINSON: That's not helpful. It's not helpful to ask him

20 whether it can be assumed that somebody would have been killed from a

21 shell. It doesn't advance the matter one way or the other.

22 THE ACCUSED: [Interpretation] Very well, Mr. Robinson. My

23 question to him would have been whether there were any traces of wounds

24 from shelling, and Professor Dobricanin said that the answer was negative.

25 MR. MILOSEVIC: [Interpretation]

1 Q. And then it says in paragraph 66 that villagers were shot

2 throughout the village as they were fleeing. So they were being targeted.

3 So if they were targeted, it can be assumed that somebody would have been

4 hit in the lower part of the body.

5 A. I think so.

6 JUDGE ROBINSON: Mr. Milosevic, again that's leading. "Can it be

7 assumed..." Once you start in that way, you're leading. Get the evidence

8 which this witness can give. You have been over this ground already with

9 the witness. You're repeating yourself. Move on to other new areas.

10 THE ACCUSED: [Interpretation] All right. All right, Mr. Robinson.

11 I just wanted to establish this.

12 MR. MILOSEVIC: [Interpretation]

13 Q. So there were no wounds in the lower part of the body. Everything

14 was in the upper part of the body. And we have already established that

15 you saw trenches, and that is probably due to the fact that they had been

16 in the trenches.

17 JUDGE ROBINSON: Mr. Milosevic, I have the very distinct

18 impression that you are searching now for questions, and you're trying to

19 finish with a flourish. I think you are going to run into trouble. If

20 you don't have new questions to ask, we'll bring the examination-in-chief

21 to an end.

22 THE ACCUSED: [Interpretation] Very well, Mr. Robinson. Then I am

23 not going to put any other questions to Professor Dobricanin about Racak.

24 I hope that he gave a comprehensive picture of everything.

25 In that case, I shall just deal with a few more matters.

1 MR. MILOSEVIC: [Interpretation]

2 Q. Professor Dobricanin, here in tab -- I mean, in order to save

3 time, I am going to refer to all three tabs, in tabs 13, 14, and 15.

4 Please take a look at tab 13.

5 This is a paper of yours that was written after the bombing of a

6 bus on a bridge when the bus was hit by a bomb. What is discussed here is

7 the casualties from that incident or, rather, the bodies of those who

8 could have been identified.

9 A. Yes. This happened on the 1st of May, 1999, in the village of

10 Luzane on a bridge. This happened at 1300 hours.

11 Q. From this information that you provide here, from what you

12 established here, you carried out a forensic examination of 36 casualties

13 out of the total of 40 persons who were killed, because four were

14 soldiers, and they could be identified, and they could be handed over to

15 their families. So you tried to identify 36 of the victims. And I see

16 that among the identified persons there were 18 ethnic Albanians and eight

17 ethnic Serbs.

18 A. Yes, that is correct.

19 Q. You did not manage to complete all of this, because later on you

20 had no more time to make it possible to have everything done.

21 A. Yes. I can just say that after us, my Albanian colleagues who

22 worked with me and who remained in the institute managed to establish the

23 identity of the remaining persons as well.

24 Q. How many persons were killed by this one single bomb that came

25 from an aircraft? You say that an old man was seriously injured but that

1 he succumbed to his wounds within a month.

2 A. Yes.

3 Q. So it's 40 victims altogether, all passengers on the bus.

4 A. All the passengers on that bus got killed.

5 Q. You could not carry out a detailed identification because the

6 temperature of that bomb was over 2000 degrees Centigrade.

7 A. Yes. Most of the bodies were charred. There was not a single

8 body that had not been charred totally or partially.

9 JUDGE BONOMY: Mr. Milosevic, can you assist me by identifying the

10 issue in the case that this relates to?

11 THE ACCUSED: [Interpretation] You mean these questions,

12 Mr. Bonomy?

13 JUDGE BONOMY: Yes, this particular tab.

14 THE ACCUSED: [Interpretation] This has to do with the proceedings

15 instituted by the authorities and the professional organs, how they worked

16 in cases when violent death was established. This is work that was

17 invariably carried out on the orders of the investigating judge in the

18 interests of the investigation, whenever violent death would be

19 established. So this was regular procedure as far as the state

20 authorities were concerned, as well as the professional organs that

21 assisted the state authorities. That is what is contained in tabs 13, 14,

22 and 15.

23 JUDGE BONOMY: And which paragraph of the indictment was this

24 investigation in relation to?

25 THE ACCUSED: [Interpretation] There is no specific paragraph of

1 the indictment that this refers to, but throughout the indictment there is

2 reference to discrimination against Albanians, the killing of Albanians by

3 Serb forces, and so on and so forth, whereas here in very concrete action

4 taken by the authorities, that is to say the judiciary, the professional

5 organs that worked there, it is obvious that there is no discrimination in

6 any way in terms of the ethnic background of victims. Whenever there is

7 violent death, the legally prescribed procedure is applied. This is,

8 therefore, aimed to refute another false thesis, namely that the

9 authorities did not work to the benefit of all or were, rather, working

10 against a particular ethnic group. And that can be seen quite clearly,

11 because in tab 14, you have general conclusions about a large number of

12 cases, and in tab 15 -- I mean in tab 14 the investigating judge from Pec

13 gave orders to act, whereas in tab 15 the investigating judge in Pristina.

14 THE INTERPRETER: In Prizren, interpreter's correction.

15 THE ACCUSED: [Interpretation] So you can see that all cases were

16 treated equally whenever violent death was established, in terms of

17 carrying out the investigation, that is.

18 MR. MILOSEVIC: [Interpretation]

19 Q. My question, Professor, is whether this was the regular way the

20 authorities worked or, rather, the investigation organs that investigated

21 the violent death of citizens.

22 A. Yes. This was regular procedure, well established, that was

23 applied in the war conflict in a single way. We would get orders from

24 investigating judges, and we would carry out post-mortems and give them

25 our findings regardless of whether it was Serbs or Albanians who were

1 killed, policemen, civilians, members of the KLA, whoever.

2 JUDGE ROBINSON: I want to consider the relevance of this, the

3 issue raised by Judge Bonomy.

4 Mr. Saxon.

5 MR. SAXON: Your Honour, in fairness to the accused, the

6 Prosecution concedes that there may be some margin of relevance to this

7 material related to the -- the accused's criminal responsibility under

8 Article 7(3), the allegations of failure to prevent or failure to

9 discipline persons that were responsible for these actions, and part of

10 those charges would be whether proper procedures were carried out to

11 investigate matters in --

12 JUDGE ROBINSON: I see. He's showing that there was a system in

13 place, a system that worked.

14 MR. SAXON: Your Honour, I think a rational argument could be

15 made. I'm not conceding that it's powerful evidence, I'm simply conceding

16 that the argument could be made.

17 JUDGE BONOMY: Obviously it must go on, but is there any

18 allegation, any suggestion that the pathology services or the forensic

19 sciences services of the country were not operating properly?

20 MR. SAXON: Certainly not in the indictment, Your Honour.

21 MR. KAY: I thought that that was an issue being advanced in

22 relation to Racak, the investigating judge, and the tenor of the

23 cross-examination there was a criticism of the system that was said to

24 stretch up from the accused -- or stretch down from the accused through

25 the system repeatedly made by Mr. Nice concerning the court services and

1 obviously the investigative judge who closely works with the forensic

2 science services. That would be allied to that.

3 JUDGE ROBINSON: Okay. We'll hear the evidence, but let us move

4 through it as quickly as possible, Mr. Milosevic, these three tabs.

5 THE INTERPRETER: Microphone for the accused, please.

6 THE ACCUSED: [Interpretation] Mr. Robinson, this has to do not

7 only with the work of forensic science services but this goes to show that

8 they go into action upon the order of an investigative judge. And in all

9 these documents you can see that the forensic services addresses itself to

10 the investigative judge who had initially issued an order for certain

11 forensic action to be taken in order to clarify issues in the proceedings

12 before the judge.

13 MR. MILOSEVIC: [Interpretation]

14 Q. All right, Professor. Now, could you please reply and refer to

15 all of these three tabs. Tell us, was this a regular, routine procedure,

16 and did you take identical action in all of these three cases in terms of

17 the investigation that you were apart of?

18 A. You are absolutely right. Not once did we diverge from the rules

19 of our profession. Our school uses tradition of European forensic

20 science, German and French mostly, and we acted exclusively upon the

21 orders of an investigative judge, never outside of it.

22 Q. Very well.

23 THE ACCUSED: [Interpretation] Mr. Robinson, I have no further

24 questions for Professor Dobricanin on the issue of his testimony.

25 However, if you would allow me, there is something beyond that that I

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1 would like to raise.

2 Mr. Nice submitted here some dozen reports showing the signature

3 of Professor Dobricanin. Mr. Nice did that in cross-examination of Judge

4 Marinkovic, and it had to do with the cases when Professor Dobricanin,

5 together with some other colleagues, examined some prisoners, establishing

6 light bodily injuries in all cases.

7 Mr. Nice presented this, trying to establish that the prisoners in

8 those cases were tortured. Therefore, I wanted Professor Dobricanin to

9 cover these findings or to address these findings which had been sent to

10 the investigative judge, Danica Marinkovic, by a member of the commission,

11 Professor Dobricanin, Muharem Rama, and Tefik Gashi, all of them doctors,

12 showing that in all cases but one they established only light bodily

13 injuries. And I would like to ask a few questions of Professor

14 Dobricanin. Would you allow me?

15 [Trial Chamber confers]

16 JUDGE ROBINSON: Mr. Saxon.

17 MR. SAXON: Your Honour, the Prosecution does not object to

18 questioning on this matter, Your Honour.

19 JUDGE ROBINSON: Yes, you may put the matter to the witness.

20 THE ACCUSED: [Interpretation] All right. I would like the usher

21 to give these documents to Professor Dobricanin to take a look at them.

22 MR. MILOSEVIC: [Interpretation]

23 Q. You don't have, Professor, to read out the names or anything else.

24 Just please take a look at these documents. These are several findings

25 establishing in all cases light bodily injuries as you determined.

1 A. Your Honours, I remember vaguely these cases. However, I have

2 these documents before me dating to December of 1994 when several persons

3 were brought to us who allegedly, at least that's what we were told, had

4 been beaten while in detention.

5 In any case -- in every case where a death of an Albanian person

6 occurred in the course of an investigation, I would always establish a

7 multi-ethnic commission comprising both Serbs and Albanians, because I

8 wanted to ensure that it would be objective.

9 In this case as well we had two Albanian assistant professors.

10 That was back in 1994. The two of them, together with me, examined each

11 of these persons, asking them how they had been injured, how they had

12 sustained injuries. We described these injuries in our findings, in our

13 reports in a detailed manner, describing how these injuries could have

14 been inflicted and we gave our opinion and qualification of these

15 injuries.

16 In all of these cases, and some of these persons I knew

17 personally --

18 JUDGE ROBINSON: Let me just clarify this. What you have put

19 before the witness are documents tendered by the Prosecution?

20 THE ACCUSED: [Interpretation] Yes. These are the findings of the

21 medical commission which were introduced into evidence by Mr. Nice,

22 showing that some seven or eight prisoners had light bodily injuries,

23 established by -- at least, that was established by this commission.

24 JUDGE ROBINSON: Oh, I see. We haven't yet decided on their

25 admissibility.

1 We are at a disadvantage in that we don't have the documents in

2 front us.

3 MR. SAXON: Your Honour, by a marvelous coincidence, I believe the

4 Prosecution might be able to provide you with some copies.

5 JUDGE ROBINSON: Thank you very much, Mr. Saxon.

6 This is one copy. Let it be placed on the ELMO.

7 THE ACCUSED: [Interpretation] May I continue?

8 JUDGE ROBINSON: Yes. What is the specific question that you have

9 now?

10 MR. MILOSEVIC: [Interpretation]

11 Q. The specific question is as follows: Did you establish at the

12 time that any of these persons had been tortured while in prison?

13 A. Undoubtedly they had certain injuries which qualified as light

14 bodily injuries which could have been sustained in many various ways but

15 could have been also inflicted by certain action while in prison. These

16 were haematomas of small size which could have been inflicted by pressure

17 applied, and I cannot exclude any circumstances under which this could

18 have been inflicted.

19 Q. All right, Professor. Did you have in your experience, did you

20 encounter cases of persons who had been abused while in prison and who

21 were forced to give certain statements by inflicting light bodily injuries

22 upon them?

23 A. No, not really, because I -- unless I was involved in

24 investigating and examining, I didn't know of any such cases.

25 Q. And were attorneys, were defence counsel called in to confirm any

1 of these allegations?

2 A. No. I was not contacted by anyone. It is possible that they

3 contacted my Albanian colleagues who signed this report as well.

4 JUDGE ROBINSON: Just let me clarify this. The doctor was himself

5 not involved personally in the examination of any of these persons.

6 THE WITNESS: [Interpretation] I was. I was. This was a

7 three-member commission. I did not go to court proceedings where perhaps

8 some of this was challenged and so on. Maybe my Albanian colleagues did;

9 however, I took part in all of the examinations and signed and am one of

10 the signatories to this document.

11 JUDGE ROBINSON: Okay. Yes. Yes.

12 JUDGE BONOMY: Do some of these not refer to the use of blunt

13 instruments against the individuals?

14 THE WITNESS: [Interpretation] Absolutely, Your Honour. Blunt

15 instruments and fist pressure.

16 JUDGE BONOMY: Is there any reference to fists where there is a

17 reference to the blunt instrument? It's not my recollection but

18 unfortunately I don't have the documents. They were for another witness,

19 and we weren't told to bring them today.

20 JUDGE KWON: Yes. On the ELMO it says "a heavy blow from a blunt

21 heavy mechanical implement."

22 JUDGE BONOMY: What is a "blunt heavy mechanical implement"? If

23 that's not a stupid question.

24 THE WITNESS: [Interpretation] No, it isn't, Your Honour.

25 THE INTERPRETER: Microphone for the witness, please.

1 THE WITNESS: [Interpretation] The bluntness of a mechanical

2 implement can suppose everything starting from an instrument itself, from

3 the pressure of fingers, police batons, any kind of a pole, anything that

4 can apply blunt force. And this is what we understand in forensic --

5 JUDGE BONOMY: You are actually trying to tell me that that

6 sentence includes pressure from fingers? Is that what you mean to include

7 by that reference? I find that astonishing.

8 THE WITNESS: [Interpretation] Absolutely. In accordance with our

9 classification as we see the application of force, that is right.

10 MR. MILOSEVIC: [Interpretation]

11 Q. Professor, does this mean that you make a distinction between

12 blunt and sharp objects? Everything that is not a sharp object, including

13 fists and feet, is considered a blunt instrument?

14 A. Yes, that's right, Mr. Milosevic. We in forensic sciences, not

15 only in Serbia but elsewhere in the world, make a distinction between

16 sharp objects, firearms, and blunt objects. So everything that is not

17 sharp and which is not considered a weapon is classified as a blunt

18 instrument, including the pressure of fists.

19 JUDGE ROBINSON: The word "mechanical," Doctor, how would a finger

20 fit into that category?

21 THE WITNESS: [Interpretation] It falls under that category, Your

22 Honour, because that's pressure. This is mechanical object. It's not a

23 weapon, and it's not a sharp object but, rather, applies blunt pressure,

24 force.

25 JUDGE ROBINSON: Yes, Mr. Milosevic.

1 MR. MILOSEVIC: [Interpretation]

2 Q. Thank you, Professor. I have no further questions.

3 JUDGE ROBINSON: Mr. Saxon.

4 MR. SAXON: Thank you, Your Honour. I'll just take a moment to

5 put my papers in order.

6 MR. KAY: While we're doing that, can we get the exhibits sorted

7 out at the end of this so they go on the record? Tabs 13, 14, 15, 16 by

8 my record haven't been officially entered into the trial proceedings.

9 JUDGE KWON: The one under 12 is the same one as D2?

10 MR. KAY: Yes.

11 JUDGE KWON: D2, which has been marked for identification.

12 MR. KAY: Yes. May 13 to 16 go in.

13 JUDGE KWON: And D2 should be admitted.

14 MR. KAY: Yes. Now it's been translated.

15 JUDGE ROBINSON: Yes, we'll admit D2, and then tabs 13, 14, 15,

16 and 16.

17 JUDGE ROBINSON: Yes, Mr. Saxon.

18 Cross-examined by Mr. Saxon:

19 Q. Professor Dobricanin, can you hear me?

20 A. Yes.

21 Q. I will try -- I will do my best to pronounce your name correctly.

22 I can't promise that I will do it always successfully, but I will try.

23 Professor, one of the things that you said towards the end of your

24 testimony on Friday of last week certainly resonated with me. You said,

25 "I don't want to separate the people, the Albanians and the Serbs, because

1 they both suffered a great deal in that war. It was a great misfortune."

2 And I just want to take a moment now to ask you some questions, because

3 it's my understanding that in your professional capacity since the events

4 of 1999, you have been working in your own way to alleviate some of that

5 misfortune, and what I mean by that is trying to exhume and identify

6 persons who died in Kosovo in 1999. Is that -- is that a correct

7 statement?

8 You need to say a verbal answer.

9 A. Fully accurate, yes. This is a fully correct statement.

10 Q. Would it be fair for us to assume here that because you and your

11 office moved to a more northern region of Serbia after the events in 1999,

12 that to continue with your medicolegal investigations in Kosovo you would

13 have required assistance and cooperation from officials of UNMIK?

14 A. Absolutely correct.

15 Q. And can you recall, for example, when you had your first contacts

16 and assistance from UNMIK officials in this respect, what year that was?

17 A. The first time I had contact with UNMIK and with their officials

18 was, I think, in 2001 when there was a terrorist attack on the bus

19 travelling between the administrative border in Merdari and Podujevo.

20 Eleven persons were killed in that incident, and together with my

21 colleagues I joined the UNMIK officials, who were of different ethnic

22 background, to conduct the autopsy of the victims, which was done in the

23 British hospital in Pristina.

24 Q. All right. So beginning in 2001 and subsequently, you began to

25 have contact and collaboration with UNMIK officials so that you could

1 carry out this kind of forensic work within the province of Kosovo. Is

2 that a fair statement?

3 A. Yes.

4 Q. Can you recall what part of 2001 it was; the beginning of the

5 year, end of the year, middle of the year?

6 A. I couldn't say exactly. That was in 2001, when via the commission

7 of the Federal Republic of Yugoslavia cooperation was established in this

8 field together with my colleagues from UNMIK who were from different

9 countries and my team consisting of my colleagues. We started working

10 together on several exhumations. First of all, we examines several bodies

11 which had already been examined -- exhumated. We did that in the

12 Institute for Forensic Medicine in Pristina which is where I used to

13 worked before. I'm sorry if my answer was too long.

14 This cooperation was exceptional and is continuing to this day and

15 continues to be very successful.

16 Q. Very well. And would the members of UNMIK also assist you if you

17 needed records or documents that had been left behind, for example, in the

18 Forensic Medical Institute in Pristina in 1999?

19 A. No. I never saw those documents again. They just gave us

20 documents which related to investigations into the killing of Serbs or

21 other non-Albanians or Albanians dating to 1999. And the autopsy findings

22 and reports that physicians had conducted that came in with core or

23 perhaps The Hague investigators, but nothing apart from that.

24 Q. Did -- well, when you requested assistance, let's say

25 documentation or assistance in obtaining documentation from members of

1 UNMIK, were you ever refused that assistance that you can recall?

2 A. No. I said a moment ago that there was a very high degree of

3 cooperation.

4 Q. I want to also reflect for a few minutes on something that you

5 said today, which I think is also quite clear from watching your

6 testimony. Mr. Milosevic asked you whether you were familiar with the

7 customs of the people of Kosovo. Do you recall that? That was just about

8 an hour ago, a little bit less.

9 A. Yes.

10 Q. Obviously, Professor, you were -- you were born in Kosovo, I

11 believe. You grew up there. You studied there. You've had a long career

12 there up until 1999. Well, your work continues there to this day, I

13 realise. So can we understand that you would also have made, during your

14 lifetime, many friends and colleagues of all ethnicities living in Kosovo?

15 A. Of course. I had neighbours and friends and colleagues who are

16 Albanians. I worked with them and had very good cooperation with them,

17 and I personally never had any problems.

18 Q. And you were familiar with their customs and traditions, the

19 customs, traditions, way of life of the Albanian population, or at least

20 those who were your friends?

21 A. When I spoke about the customs of the Albanian population in this

22 case it was the custom of Muslim Albanians, not Catholic Albanians,

23 Albanians who have different customs, perhaps. Yes, I was acquainted with

24 both of them, both types, because I lived together with them for 46 years.

25 Q. During those 46 years, did you ever have a situation where you

1 learned or you observed that one of your Albanian friends or colleagues

2 was known by more than one name?

3 A. I don't -- I'm not sure I'm following you. Could you answer the

4 question or reformulate it? I don't know what you mean actually. I

5 didn't understand what you mean.

6 Q. Okay. Let me try to give you a more concrete example. For

7 example, did you ever have a friend or colleague of Albanian ethnicity who

8 might have had a particular name on his identity documents but was known

9 by -- to you or to that person's friends by some other name, perhaps the

10 person's father's name? Did you ever encounter such situations?

11 A. I don't remember that. I don't think I ever encountered a

12 situation like that.

13 Q. Okay. I'm going to ask your assistance with something, and I'm

14 going to have to ask Mr. Prendergast's assistance as well. I'd like the

15 witness to be shown a copy of Exhibit D291.

16 For the benefit of the witness, this document was presented by

17 Judge Marinkovic in the Cyrillic alphabet, so that would probably be of

18 most use for Professor Dobricanin, but I believe we have some English

19 copies for the other parties present. And perhaps if an English copy

20 could be placed on the ELMO and turned to page -- and turned to page 2.

21 Professor Dobricanin, this is a list of names prepared by someone

22 you know, obviously, Danica Marinkovic. It's titled "List of identified

23 bodies found in the village of Racak." And if you could, please, could

24 you direct your attention on page 2 to names 32, 33, and 34, which are

25 towards the bottom of the page in the English version, a little bit higher

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1 up in the Serbian version.

2 Do you see those names? The first name we see is Sukri Jasari.

3 Number 33 is Raif Jasari, and number 34 is Jasar Jasari. Do you see those

4 names?

5 A. Yes.

6 Q. Now very briefly I'd like to show you an annex to the

7 Prosecution's indictment in this case, because the Prosecution in this

8 matter has also presented a list of names of persons who died at Racak.

9 And I can provide an extra copy for the witness and/or the ELMO, and I'd

10 ask that we turn to here page 43 of my copy. It's Schedule A to the Racak

11 indictment.

12 Do you have that list from the Prosecution next to you now,

13 Professor Dobricanin? Can you see it?

14 A. Yes, I can see it.

15 Q. Can you also see now, if we look about halfway down the page, we

16 see the same names that I just read from Judge Marinkovic's list, the

17 three Jashari relatives; Jasher Jashari, Raif Jashari, and Shukri Jashari.

18 Do you see those?

19 A. Yes, I can see that.

20 Q. So we can see that these three names are on both lists. Can we

21 agree on that?

22 A. Yes, that's right.

23 Q. I'd like you to look just a little bit further down that same

24 page, and further down that page there are two people with the name

25 Salihu, first name Jasher and first name Shukri. Do you see that?

1 A. Yes, I see that.

2 MR. SAXON: Now, if Mr. Prendergast could remove those lists for

3 the time the time being because I need to use another document.

4 I'd like to -- Ms. Dicklich, I'd like to show the statement of

5 Rizah Salihu, if we can.

6 And perhaps that statement could be placed on the ELMO as well

7 for the public.

8 Q. Professor Dobricanin, I don't know how fluent you are in the

9 English language but I'm going to read some parts of this out so you can

10 certainly hear the interpretation in your own language as well. But this

11 is a witness statement given to members of this Tribunal, the Office of

12 the Prosecutor, by a man named Rizah Salihu. And if we turn to the

13 statement itself, in paragraph 2 Mr. Salihu explains that he resides in

14 the village of Racak, he is the eldest of six brothers, and that three of

15 his brothers were killed in Racak on the 15th of January, 1999. And just

16 below that he provides the names of his deceased brothers; Jashar Salihu,

17 Raif Salihu, and Shukri Salihu.

18 And if you can recall, we've seen those first names, Jashar, Raif,

19 and Shukri already on both of the lists that I showed you a few minutes

20 ago, only with the surname Jashari.

21 And then in paragraph 3, Mr. Salihu explains that at birth his

22 brothers were given the family name of Salihu. But in paragraph 4, he

23 explains that he had an uncle named Jashar Salihu, and that sometimes

24 persons in the village of Racak refer to members of his family with the

25 last name Jashari. And he explains in paragraph 5 that when the bodies of

1 his brothers were found in January of 1999, that someone incorrectly

2 identified his three brothers with the surname Jashari. And if I can, he

3 also says in paragraph 7 that the markers on his brothers' graves bear the

4 family name of Salihu.

5 MR. SAXON: And if I can have the first batch of photographs,

6 please. If I may very quickly bother Mr. Prendergast again, and if these

7 three photographs could be placed on the ELMO.

8 Q. These are three photographs which I took in the cemetery at Racak

9 about ten days ago. The first one shows the name Jashar Salihu. The

10 second one shows the name Raif Salihu. And the third one shows the name

11 Shukri Salihu.

12 MR. SAXON: Thank you very much, Mr. Prendergast.

13 Q. And the brother in this statement also explains that he has

14 provided copies of the death certificates for his brothers with the

15 surname Salihu.

16 Now, I know you lived in Kosovo for many years, and you're

17 familiar now with the two different lists of names that I've showed you,

18 Professor Dobricanin, one created by Judge Marinkovic, another one created

19 by the Office of the Prosecutor. Can we agree right now that a mistake

20 was made in both lists, that where the names -- where the surname says

21 Jashari, Jashar, Raif, and Shukri, on both lists that is actually

22 incorrect, or at a minimum not the most accurate name? Do you agree with

23 me on that, what I've just shown you?

24 A. I agree.

25 THE WITNESS: [Interpretation] And, Your Honours, please, Judge

1 Robinson, might I be allowed to give an explanation by way of two or three

2 sentences with respect to that?

3 JUDGE ROBINSON: Yes, please do.

4 THE WITNESS: [Interpretation] From the forensic team, we did not

5 take part in the final identification. That was done by the crime

6 technicians. And we know that with all 40 bodies in Racak, that all 40

7 bodies, 37 were identified of the 40 bodies, and I think that the mix-up

8 came with these three people, that they are in fact the same people. But

9 what is very important and what we kept saying, and we've been discussing

10 that, we didn't make a separate conclusion, three individuals that were

11 autopsied from the village of Racak were not circumcised. They were not

12 circumcised, which is the custom with all Muslims in the world, including

13 Albanian Muslims in Kosovo and Metohija. So I am afraid that those three

14 bodies were intentionally or unintentionally during this process of

15 identification, because they weren't all identified, they were identified

16 on the basis of ID identification documents and fingerprints or because

17 their relatives recognised them or not, that those three bodies were taken

18 away and buried in other place, where as the three brothers Jashari, who

19 of course would be buried in their village in their family graveyard, have

20 been buried under these three -- the three pictures.

21 It's just my statement that we found three persons, three corpses

22 who were not circumcised, which means that they were not Muslims, so that

23 might be an explanation, and I apologise for taking up more time.

24 JUDGE BONOMY: Then, Mr. Saxon, does it follow from that list that

25 you have got two bodies too many on your list?

1 MR. SAXON: There is more to go in this process, Your Honour --

2 JUDGE BONOMY: Oh, dear.

3 MR. SAXON: -- which I am trying to clarify. So with great

4 respect, I would prefer not to answer your question right at this moment.

5 Q. Professor Dobricanin, at no time did I mean to imply that you had

6 committed any error regarding identification. That was not my intention

7 at all. I was simply trying to clarify the names, that's all.

8 MR. SAXON: You will recall, Judge Bonomy, that Judge Marinkovic

9 referred to discrepancies in the different lists and I'm simply trying to

10 clarify these discrepancies, that's all.

11 Mr. Prendergast, if once more we could place on the ELMO the list

12 -- it's D291, the list provided by Judge Marinkovic. And if that could

13 be turned to page 3, please.

14 Q. And Professor Dobricanin, if you could simply direct your

15 attention to what's referred to as body number 37. Do you see that? And

16 the name --

17 A. Yes.

18 Q. -- Syla Sabri. It's surname Syla and then --

19 A. Syla, Syla.

20 Q. Thank you for correcting me. So the first name would be Sabri and

21 the surname would be Syla.

22 MR. SAXON: Now, Mr. Prendergast, if you could replace Judge

23 Marinkovic's list with Schedule A from the indictment.

24 Q. And, Professor Dobricanin, if you look down that list, you don't

25 see anybody with the name Sabri Syla, do you?

1 A. No. There's Syla Sheremet and Syla Shyqeri.

2 Q. But no Syla Sabri, correct?

3 A. No.

4 MR. SAXON: Your Honour, would this be an appropriate time to take

5 the morning break?

6 JUDGE ROBINSON: Yes, it is, thank you, Mr. Saxon. We'll take the

7 break for 20 minutes.

8 --- Recess taken at 10.30 a.m.

9 --- On resuming at 10.55 a.m.

10 JUDGE ROBINSON: Please continue, Mr. Saxon.

11 MR. SAXON: Thank you, Your Honour.

12 Q. Professor Dobricanin, just before we took the break -- can you

13 hear me?

14 A. Yes.

15 Q. Just before we took the break, we established that nowhere on

16 Schedule A to the Prosecution's indictment do we find the name Sabri Syla

17 or Sabri Sulja or Syla; correct?

18 A. Yes.

19 MR. SAXON: If I could have Mr. Prendergast's assistance again, if

20 we could distribute the statement of Milazim Syla. And if a copy could be

21 placed on the ELMO, please.

22 This is a statement given to the Office of the Prosecutor by

23 Mr. Milazim Syla or Sulja. He is also a resident of Racak. Paragraph 2

24 he tells us that in 1999, he was a member of the Kosovo Liberation Army,

25 but on the 15th of January, he was not in Racak.

1 Q. And then turning to paragraph 3, Professor Dobricanin, he says

2 that the following members of my family were killed in Racak on the 15th

3 of January: Sabri Syla or Sulja, who was the father of the declarant;

4 Haki Metushi, his uncle; Arif Metushi, another uncle; and Sahide Metushi,

5 his aunt.

6 And then in paragraph 5 Mr. Syla explains that at birth his father

7 and his brothers were given the surname Syla or Sulja but during the 1980s

8 his uncles decided to change their family name, their surname to that of

9 Metushi, following a tradition in their family.

10 In paragraph 6, however, it is explained that at that time the

11 father of the declarant, Sabri Syla, was working in Macedonia, and he was

12 unable to change his surname. And when he returned from Macedonia to

13 Kosovo, he also felt unable to change his surname formally from Syla to

14 Metushi.

15 In paragraph 7, it remarks that the father of this declarant is

16 buried with his brothers in a cemetery in Racak in a grave bearing the

17 name Sabri Metushi.

18 MR. SAXON: I would just like again to ask Mr. Prendergast's

19 assistance if we could put a photograph -- actually, three photographs on

20 the ELMO.

21 Q. We see the first photograph of brother Arif Metushi. Next

22 photograph, please. And then the photograph of Sabri Metushi, who was the

23 father of this declarant, also known as Sabri Syla. And Haki Metushi.

24 We also see in the last paragraph, paragraph 9, that attached to

25 the statement is a copy of the licna karta of Sabri Syla and hence that

1 name being found on the list of -- produced by Judge Marinkovic.

2 Could we look again, please, at Schedule A to the indictment. And

3 Professor Dobricanin, if you go down that list you'll see, sort of in the

4 lower half of that list, we see the two names Arif Metushi, Haki Metushi,

5 but nowhere do we see their brother Sabri Metushi, also known as Sabri

6 Syla. Do you agree with that?

7 A. It's probably as you say, but I'd like to draw your attention to

8 this: I have absolutely no knowledge about any of these names. While we

9 conducted the autopsies at the institute, we didn't receive the names of

10 those who had been killed nor were we interested in that because those

11 people had been transferred to the mortuary, the process of identification

12 had been carried out, and the documents were taken to the crime technology

13 department of the district SUP. All I can say is I came across these

14 names here and nowhere else so I really can't say. I don't know. I don't

15 know why you're asking me this in the first place when I know nothing

16 about this. I don't know the names. I don't know these -- well, these

17 queries as to whether it's one person or another, I really can't say

18 anything because I don't know, and this is the first time that I'm seeing

19 these names here and the documents. We conducted the autopsies, the

20 identification process took place in another premises, in different rooms,

21 so I don't know about that.

22 Later on, they might have sent me the -- something that I never

23 received -- a document for checking out the names, but I never received

24 that so I really have no idea about why you're asking me this.

25 Q. Professor --

1 JUDGE BONOMY: Mr. Saxon, is the name Sabri Syla on Judge

2 Marinkovic's list?

3 MR. SAXON: It is, Your Honour.

4 JUDGE BONOMY: Where would I find it?

5 MR. SAXON: You will find it, Your Honour, at number 37.

6 JUDGE BONOMY: 37, thank you.

7 MR. SAXON:

8 Q. I'm asking you this question, Professor Dobricanin, simply because

9 of your long-standing knowledge of Albanian culture. That's why I'm

10 asking you these questions, simply to help us clarify these points.

11 That's all.

12 A. May I be allowed to say something very briefly to assist you, if I

13 can, because I'm a little confused about all this. There are Albanian

14 families whose members have different surnames. Not only with Albanians.

15 There are parts of Kosovo where Serbs changed their surnames and then you

16 have the case where two brothers don't have the same surname. It's

17 probably a vestige of the age-old culture that developed alongside each

18 other over the centuries.

19 The next point is that when somebody, when an Albanian -- we had

20 occasion to see this -- comes to recognise somebody or identifies, he

21 might say, let's say, Miftar Banushi, whereas Banushi is not the surname,

22 it is Miftar and the father's name is Banushi. So perhaps this is what

23 this is all about; instead of us giving a surname, they say Salihu Jashari

24 or Jahsarit which means Sali of father Jashari. So maybe that's what's

25 caused this confusion, where the father's name is given rather than the

1 surname. So possibly that was the source of the confusion, I really can't

2 say.

3 Q. Thank you for that, Professor Dobricanin. I don't want to bore

4 you with this or the other members of the Court. I'm only going to

5 discuss with you one more name and then we'll move on to another topic.

6 JUDGE BONOMY: Is this -- is this something that the witness can

7 actually specifically deal with? I mean, he's said what he knows. Is

8 this not legal argument now or argument on the facts as they are contained

9 in the evidence?

10 MR. SAXON: Well, the Prosecution believes, Your Honour, that

11 because of this witness's knowledge of Albanian culture, and as he pointed

12 out, the local Serbian culture, and given his recent -- his -- the

13 response that he just gave, he can certainly confirm that this confusion

14 is, quite frankly, fairly common in the culture where he resided for so

15 many years, and we're simply trying to explain why there are discrepancies

16 on this list.

17 Your Honour, to save time, what I would like to produce for the

18 Chamber is an aide-memoire. And I'd ask that this be marked as an

19 exhibit, please. And if a copy of this could be placed on the ELMO.

20 Your Honours, this is simply a simple chart which the Prosecution

21 has created that describes -- that -- with a list in the far left column

22 of the names in Schedule A to the indictment, and in the remaining columns

23 evidence that the Prosecution has obtained regarding, for some of these

24 people, the use of other names and/or other surnames. And I would offer

25 this as an aide to the Trial Chamber, and of course we will -- we do

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1 intend to make a written submission in the near future regarding this

2 issue and offering for the Chamber a revised list of names to correspond

3 to the Racak part of the indictment.

4 With a represented accused or an accused who would have been more

5 cooperative, we would have tried to negotiate this, but we felt that that

6 was not appropriate in this case, in the circumstances of this case.

7 If you have no questions on this, then I will move on to another

8 topic.

9 JUDGE ROBINSON: Yes, please do.

10 MR. KAY: Perhaps it should be a filing to amend the indictment.

11 That's really what it comes down to, that the names within Schedule A have

12 been duplicated and names omitted, and perhaps the appropriate course is

13 to make a filing on that matter and give the explanation as to the history

14 of this matter as based upon the evidence.

15 [Trial Chamber confers]

16 JUDGE BONOMY: Mr. Saxon, are there examples of the Prosecution

17 actually writing to the accused seeking specific agreement on matters and

18 making no headway? Because if there aren't, then why don't you submit it

19 to him, refer to the discussion in court, and ask if it can be agreed?

20 MR. SAXON: Your Honour, I have been working on this case since

21 the accused was detained in the summer of 2001. I am not aware of any

22 indication by this accused since that time that he would be willing to

23 even communicate with members of the Office of the Prosecution. I may be

24 wrong, because a lot of time has passed, but that is my impression.

25 Perhaps Mr. Nice --

1 JUDGE BONOMY: But you're turning the matter on its head that way,

2 Mr. Saxon. I appreciate the problem, don't misunderstand that, but if you

3 have something that you want to specifically have agreed, then it may be

4 worth trying. You can't really lose anything by at least trying.

5 MR. SAXON: Point well taken, Your Honour, and we will follow the

6 appropriate channels.

7 JUDGE ROBINSON: Yes, next topic, Mr. Saxon.

8 MR. SAXON:

9 Q. Professor Dobricanin, I'd like to move on to some questions that I

10 have about your testimony from last week, and I guess first of all, since

11 several days have passed by, you may have had some time to think about

12 your comments here during two days last week. Is there anything that you

13 want to change, amend, or modify?

14 A. I would not have anything to add or to take away. Perhaps some of

15 the wording could have been clearer, but do I not recall having said

16 anything that was unclear. I don't wish to add anything, no.

17 MR. SAXON: If Mr. Prendergast could show to -- perhaps Professor

18 Dobricanin already has it with him.

19 Q. I'd like to ask you to turn your mind to tab 6 of your exhibits.

20 This was the general conclusions provided by the Yugoslav team of expert

21 forensic scientists on the 30th of January, 1999, to Judge Danica

22 Marinkovic.

23 Do you have it there in front of you, Professor?

24 A. Yes, I do.

25 Q. And if you could focus your attention on the very last paragraph,

1 paragraph 14, where in English it says: "It should be stressed that the

2 work of all forensic experts involved in this forensic effort was

3 performed at a high professional level and with full mutual respect and

4 confidence."

5 Do you see that?

6 A. Yes.

7 Q. So at least as of January the 30th, 1999, you had no problems or

8 criticisms to make about Dr. Helena Ranta, did you?

9 A. I certainly did not. I had an excellent cooperation with her.

10 Q. And if we turn now to tab 11, which were the comments made at a

11 press conference by Dr. Ranta on the 17th of March, 1999, and if we turn

12 to page 3.

13 MR. SAXON: Ah, yes. This was also Exhibit C1, Your Honours. I

14 apologise.

15 Q. Professor Dobricanin, we see in the last sentence of the first

16 paragraph, the sentence says: "There were no indications of the people

17 being other than unarmed civilians." Do you see that sentence?

18 A. I found that.

19 Q. And clearly you and your colleagues did not -- you and your

20 Yugoslav colleagues, I should say, did not agree with that sentence, did

21 you?

22 A. We did not agree with that sentence.

23 Q. And so the -- the problems, if I can use that term, regarding the

24 work of Dr. Ranta arose on the 17th of March, 1999, with that sentence in

25 this press conference; isn't that right?

1 A. Yes. I think that that was one of our objections to what our

2 colleague Dr. Helena Ranta had to say. With your permission, I could

3 explain why.

4 Q. I think we already understand why, Professor Dobricanin.

5 If you turn, please, to tab 3.1. Actually, I apologise, tab 3

6 first. You mentioned in your testimony last week that there were

7 disagreements between Dr. Ranta and the other members of the Finnish

8 forensic team regarding the results of the work done concerning the events

9 at Racak.

10 Tab 3 is an article published in Forensic Science International in

11 February of 2001. It's one of the articles that you presented. Is there

12 anything that you disagree with in this article?

13 A. There is absolutely nothing in here that I would disagree with.

14 This is an article about our joint work.

15 Q. All right. And do you see -- can you tell us where in this

16 article there is a mention of a disagreement with Helena Ranta?

17 A. I have the English version in front of me. I don't speak English

18 very well, but never mind.

19 I don't think that there is very pronounced disagreement, but I

20 believe that forensic scientists should not speak about the origins, about

21 what had happened there where the bodies had been found. I think that is

22 the only disagreement. I mean, whether it's disagreement or not is for

23 them to say.

24 Q. Are you suggesting, Dr. Dobricanin, that during your testimony

25 last week you were not speaking about what happened in Racak?

1 A. Please rephrase your question. I did not understand it. Could

2 you please ask me again.

3 Q. Well, you just told the Chamber -- you said, "I don't think there

4 is very pronounced disagreement." So we've clarified that. "But I

5 believe that forensic scientists should not speak about the origins, about

6 what had happened there where the bodies had been found."

7 Now, don't you think last Thursday and Friday when you were

8 testifying before this Chamber you were doing exactly that? You were

9 giving your opinion - I should say opinions - about what happened in Racak

10 on the 15th of January, 1999.

11 A. Sir, I could not have presented such an opinion according to any

12 criteria. Had they allowed me into Racak on the 15th of January, you

13 would have a much more definitive answer in this regard today. I just

14 said once when one of Their Honours asked me why I emphasised this, I said

15 that -- I mean, when asked why this was not an execution, I gave some of

16 my own explanations. That is the only thing that I said in relation to

17 the events in Racak. I'd never say anything about what had happened in

18 Racak except for what I saw myself. Nothing would give me the right to do

19 so.

20 Q. All right. So I will move on. If we look in paragraph 4, we see

21 the following sentence: "Forensic pathologists can determine the cause

22 and manner of death --" this is on page 8 -- "and note other injuries,

23 pathological changes, and facts for identification. Determination of

24 reasons for events, their political and moral meanings or the connection

25 of victims to political or other organisations are questions which lie

1 beyond the scope of forensic science. This should be realised by the

2 authorities and also by the forensic scientists themselves."

3 Now, your comments last week about the connection of some of the

4 victims or all of the victims in Racak to certain organisations such as,

5 for example, so-called Village Guard, would fall into this category,

6 wouldn't it?

7 A. The question put to me was to explain why there were several

8 layers of clothing and what I saw then in Kosovo. I gave my opinion not

9 as a specialist in forensic medicine but as a person who is quite familiar

10 with the circumstances under which all of this happened, because I was on

11 the move all the time, I was travelling all the time because of different

12 autopsies in the area, and nothing more than that. What we did in the

13 Institute for Forensic Medicine in terms of autopsy led to all our other

14 conclusions.

15 Q. So just to clarify, Professor, when you say, "I gave my opinion

16 not as a specialist in forensic medicine," so can we understand, then,

17 today that the opinions that you gave last week about the possible

18 scenario of events in Racak on the 15th of January, 1999, were not based

19 on your expertise as a forensic scientist? It was simply your opinion?

20 A. At that moment when I saw the bodies in the mosque in Racak, and

21 after that when I saw the bodies in our institute, that is to say

22 everything I saw as a citizen who was going through the village and also

23 as a member of the investigation team that toured the trenches under fire,

24 I said as a member of the investigation team. Everything I said about the

25 bodies I said as a professor and a specialist in forensic medicine. Those

1 are two things that have to be distinguished between.

2 Q. All right. Well, thank you for that distinction.

3 By the way, at one point in your testimony last week, you

4 mentioned -- I know you said today, a little while ago, that there were no

5 strong or profound disagreements between Dr. Ranta and the other members

6 of the Finnish team, but last week you mentioned that the Finns had

7 published a report, that Dr. Ranta's colleagues had published a report

8 somewhere, and Judge Bonomy asked you, well, what report? Where was it

9 published? Can you tell us where we can find this report? And you

10 weren't able to provide a very specific response at that time. Have you

11 had any time to think about that?

12 A. Well, it's not that I said that they published it. I told you

13 that I heard about it somewhere or saw it somewhere. Now, where this was,

14 I don't know. Perhaps it was in a discussion that we had at the

15 institute. We discussed everything there as colleagues at the institute.

16 We were all thinking about this. We were all wondering how we could

17 explain the positions of all those wounds in the case of persons who had

18 multiple wounds. And then at that moment we said that this did not look

19 like execution, that it did not look like execution. We are not

20 eyewitnesses of these events. I'm not an eyewitness either.

21 A forensic doctor speaks with greater or lesser probability about

22 events than caused such-and-such wounds, and that is how you have to

23 understand this.

24 Q. Professor Dobricanin, you used the pronoun "we." You said, "We

25 discussed everything there as colleagues. We were all thinking about

1 this. We were all wondering. And then at that moment we said that this

2 did not look like execution." Now, are you including members of the

3 Finnish -- or I should say the European Union team when you used the

4 pronoun "we" here; and if so, could you please tell us which members of

5 the Finnish team?

6 A. First of all, I did not say that we said that it had not been an

7 execution but that it had not looked like an execution. All the members

8 of the team, the Serb, Finnish, Belorussian, we talked, we had

9 discussions, we had breaks, we chatted as friends and colleagues, and we

10 talked about all the possibilities, because not all of us -- or, rather,

11 until the present day I do not understand how we could explain each and

12 every one of these wounds. It's only natural. We say "in all

13 likelihood," "it is likely," or whatever, but we cannot establish that

14 with 100 per cent certainty.

15 Q. Professor Dobricanin, just one more question on this and then

16 hopefully I'll move on.

17 JUDGE BONOMY: Well, did you get the answer to that question?

18 MR. SAXON: Well, no. I'm following up on that, Your Honour.

19 Q. Can you name a specific member, an individual member of the

20 Finnish forensic team who specifically agreed with your conclusion that

21 what happened to the people in Racak did not look like an execution? Can

22 you name one member of that team?

23 A. No, I cannot give you any names of any member of the team, either

24 the Finnish team or our team. It's been many years. It was just a

25 discussion that we had, a chat, either within the autopsy room or outside

1 it. I really can't say anything to you at this stage.

2 Q. I see. It's been many years. Let's take a look, if we can,

3 Professor, at tab 12 of your exhibits.

4 Tab 12 is an article written by you, Professor Dobricanin, and

5 three of your colleagues. And I'd like to ask you to direct your

6 attention to what is page 13 in the English version. And a little ways

7 down the page, page 13, you and your colleagues begin to discuss Helena

8 Ranta, the Finnish forensic expert team leader, and I believe you're

9 making a reference to what is tab 11, the press conference from the 17th

10 of March, 1999, and this is what you say in the English translation:

11 "Using the political and not medical terminology, Dr. Ranta condemns Serbs

12 for massacre of the innocent, unarmed civilians ..." Then it goes on to

13 explaining that the diphenylamine is not sure, et cetera, et cetera.

14 Do you see that, Professor Dobricanin? Do you see that sentence?

15 A. I see it.

16 Q. Can we turn back, now, to the previous tab, tab 11. And this is

17 the text of Dr. Ranta's comments made at the press conference on the 17th

18 of March. And can you tell us, please, where in these comments Dr. Ranta

19 condemns Serbs?

20 A. Sir, there are direct and indirect indicators about the things

21 that were referred to in my professional article. If we say that this

22 document is, in terms of its title, a report of the forensic professional

23 team of the EU about the events in Racak, in the first paragraph it says

24 that the comments constitute a personal view of the authors. Then it is

25 obvious that these are not comments made by the EU team or the Finnish

1 team but simply comments made by Ms. Helena Ranta. That is what she is

2 saying, and that's the only thing I said. I made no other comment. She

3 says and concludes that -- yes, please?

4 Q. I'm sorry, I thought I asked a direct, simple question. The

5 question was simply this --

6 A. I'm looking for it.

7 Q. -- where in the comments of Dr. Ranta does Dr. Ranta condemn Serbs

8 for the events that occurred in Racak?

9 A. There is no such sentence. I did not find that sentence in her

10 comment, and I'm sure that that sentence would not belong in these

11 comments. But the indirect detrimental consequence of such an opinion was

12 the beginning of the bombing of Serbia and Montenegro at the time. The

13 very words that these were unarmed civilians, that means that this was a

14 brutal killing, and these victims were found in a gully, et cetera, et

15 cetera, and we cannot have any information about that, we were not

16 eyewitnesses, neither Mrs. Ranta nor I. That shows that there was

17 acceptance of an opinion that this was some kind of retaliation against

18 the Albanian population of the village of Racak.

19 I gave a detailed explanation as regards the text -- the test that

20 is called the paraffin test, and if there are any further clarifications

21 that are required, I'm prepared to give them.

22 Q. There are some, Professor Dobricanin. I think you just

23 acknowledged that in a professional article that you published under your

24 name, you said something untrue about another professional colleague. Do

25 you think that is responsible?

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1 A. I did not say anything that was untrue. I just commented on the

2 fact that forensic doctors are not supposed to give political comments

3 that could lead to a very serious reaction on the part of the

4 international public.

5 Q. Professor Dobricanin, can you turn back to tab 12, please.

6 Page 13 of the English version again. And if we look about halfway down

7 the page, following the sentence that I read to you previously, we see the

8 following sentence: "This kind of political and not thinking of the

9 forensic doctor ended with opinion that there is no reason to believe that

10 these individuals are the members of the terrorist organisation KLA."

11 Do you see that?

12 A. Yes, I see that.

13 Q. Now, if we turn back to tab 11, Dr. Ranta's comments, where at the

14 end of Dr. Ranta's comments do you find such an opinion?

15 A. I find it on page 4, paragraph 2 in the last sentence. "There

16 were no indications that these were persons who could be anything but

17 unarmed civilians."

18 She did not have the right to state that. She did not have any

19 proof for any such thing. And we, all together, her team and our team,

20 had indirect proof that these people had gunpowder particles on their

21 hands -- sorry, nitrate particles on their hands. That is what we can

22 talk about. But we did not have any additional documents, any findings

23 that they were unarmed civilians. This was not a forensic medical

24 qualification of something that happened there.

25 Q. Let's move on, Professor Dobricanin, to the events of Racak, and

1 I'm going --

2 JUDGE BONOMY: Could I be clear about one thing, Mr. Saxon? I

3 probably should know but I've forgotten. Did Dr. Ranta accept that the

4 paraffin glove test had produced the results which were claimed for it?

5 By that I mean the physical results. What conclusion you draw from it is

6 another matter, but that one of four possible causes existed for the

7 results that were there?

8 MR. SAXON: I believe the answer to that question, Your Honour, is

9 no, because it's my understanding that any such results were never

10 provided to the members of the Finnish team, that the -- whatever paraffin

11 or gunpowder residue tests were made were taken before the arrival of the

12 group of Finnish experts. Obviously Dr. Ranta could provide you with a

13 more specific response.

14 JUDGE BONOMY: Perhaps the witness knows the answer.

15 Professor Dobricanin, were the European Union forensic team given

16 the details of the results that were found by the technicians who carried

17 out the paraffin glove test?

18 THE WITNESS: [Interpretation] I don't think that they were given

19 that. I'm not sure, but I don't think that they received it, no.

20 JUDGE BONOMY: Thank you.

21 MR. SAXON:

22 Q. Professor Dobricanin, if I could just try to summarise some of the

23 evidence that you gave last week regarding the events in Racak.

24 You provided your opinion - I understand it's only now an opinion

25 as a citizen - that the victims in Racak were killed in some kind of

1 combat situation, and you based that opinion, if I understood your

2 testimony correctly, on four factors, and let me just explain my

3 understanding of them so that we can discuss it.

4 The first factor was the fact that the victims wore several layers

5 of clothing. The second factor was that many of the victims wore clothing

6 that was dark in colour. The third factor were the results of the

7 gunpowder residue tests. And the fourth factor were the fact that the

8 bodies exhibited different bullet paths. In other words, bullets that

9 impacted on the bodies but coming from different directions.

10 Is that a fair summary of your testimony on this issue?

11 A. I think that it would be.

12 Q. All right. For right now, I'd like to show a bit of video, if I

13 may.

14 And you also recall that you testified that you saw no damage to

15 any of the houses at Racak when you went there. Let's look at this video

16 first. I believe this is from the 17th of January, the first clip that

17 we're going to see. This video comes from the material that Judge Danica

18 Marinkovic presented during her testimony here.

19 [Videotape played]

20 MR. SAXON:

21 Q. Here we see a trench line in the woods. A shovel.

22 Can we stop it right there for a moment?

23 Professor Dobricanin, I believe that is you, isn't it, crouching

24 between those two cars? Is that you?

25 A. Yes. Yes, that is me.

1 Q. All right. Please correct me if I'm wrong. I think this was the

2 17th of January. Obviously it's wintertime. You're dressed warmly, are

3 you not?

4 A. Yes. I had only one jacket, though.

5 Q. I see. Were you naked underneath that jacket?

6 A. No, sir.

7 Q. What were you wearing on that day underneath your jacket?

8 A. I think that I wore a sweater and a winter shirt. I'm not sure.

9 I know that I always wore this jacket when going out to work in the field.

10 Q. All right. So you're wearing this jacket, you're wearing a

11 sweater, you're wearing a winter shirt. Any undershirt, perhaps?

12 A. Sir, you made a mistake. I said that I had a jacket, a sweater,

13 or a winter or a thick shirt, not both of them. I normally wear just

14 that.

15 Q. I see. My mistake if I misunderstood you. It might have been a

16 mistake in translation.

17 The point I'm simply trying to make is that you were wearing more

18 than one layer of clothing on that day, weren't you?

19 A. If you take the vest into account and a shirt, then certainly.

20 Q. All right. Now -- and can I assume that the person with you who

21 is wearing a nice blue winter parka also had some clothing on underneath

22 the parka?

23 A. Sir, I didn't examine that. I just saw a jacket.

24 Q. But you do have a lot of common sense. You're an intelligent man.

25 You know that most people in the wintertime, when they go outside they put

1 on their winter jacket, and they usually have something on underneath

2 their jacket; right?

3 A. Certainly. They certainly do have it. It is sure that they do

4 not put a jacket on a naked body.

5 Q. Now, should we draw particular conclusions from the fact that you

6 and your colleague or colleagues wore more than one layer of clothing in

7 January of 1999 in the Racak area besides the conclusion that it was cold?

8 A. Sir, if you have in mind multi-layered clothing of the people who

9 were killed in Racak, and if you plan to compare that with the clothing

10 that we wore, these are two completely different things. Those people

11 there had two jackets, several sweaters, several winter clothes, several

12 pairs of socks, of trousers, and very good boots. What we had on is the

13 clothes that we regularly wore; a jacket and perhaps a sweater or a shirt.

14 We did not plan on spending a lot of time outside in the cold in low

15 temperatures.

16 Q. I understand that, Professor Dobricanin. And I would like to

17 compare the clothing that you wore, briefly, with the clothing found on

18 the victims from Racak, because quite frankly, and I don't mean any

19 disrespect by this, but you and your colleagues were probably in a

20 different socio-economic place than the majority of the residents at

21 Racak. Isn't that true?

22 A. I did not understand your question. I was not a wealthy man. I

23 could not spend a lot of money on clothing or anything else. We lived on

24 our salaries. I lived on my salary. That was the system we had. Many

25 people in Albanian villages had other sources of income; agriculture,

1 trade, and so on. Many of their children, brothers, and so on worked in

2 foreign countries. Therefore, I don't think that you can compare the

3 standard of all of these people.

4 The first house that I had I acquired just ten months before being

5 forced to flee Pristina.

6 Q. And many of these people, many of these residents of the Racak

7 area have relatives who live in Switzerland because there is little or no

8 work in the Racak area except for subsistence farming. Isn't that true?

9 A. That does not apply only to Albanians, sir. We were going through

10 a very hard crisis. We lived under embargo. You know that sanctions had

11 been introduced. So that did not apply only to Albanians but to Serbs in

12 towns and villages. All of these people suffered a great deal because of

13 everything that was lacking. And I am very familiar with this because I

14 toured many Albanian villages as a physician.

15 We had in the 1970s an epidemic of variolavera so I visited a lot

16 of villages.

17 Q. Dr. Dobricanin, I'm going to cut you off now. I think you've

18 tried to answer my question.

19 The point is this, though: If you're not a university professor,

20 if you don't have a reliable income, if you're poor, you can't afford to

21 buy the nice winter clothes that you and your colleague were wearing there

22 on the 17th of January, if you have to go out in the wintertime,

23 particularly early in the morning, you might put on a few layers of

24 clothing, wouldn't you?

25 A. Sir, I did not say that I was poor. As a university professor, my

1 standard of living was certainly higher than many of those villagers.

2 However, I was not rich to be able to spend money left and right.

3 This -- I apologise for speaking about this, but this jacket was

4 the jacket I wore when I went to work in the field because it was a warm

5 jacket, it had a lot of pockets that could used for my notebooks and so

6 on.

7 Yesterday, in The Hague, I saw people sunbathing in the sun,

8 whereas I wore a sweater and a jacket and didn't feel too warm.

9 Q. I see. So yesterday you were also wearing more than one layer of

10 clothing, but we shouldn't make any conclusions about your political

11 associations based on that, should we?

12 A. Yes, sir. I'm a man of a certain age. I like to wear warm

13 clothes. I never walk out in only one layer of clothing except when I'm

14 at the beach.

15 Q. All right. Professor Dobricanin, I want to move on to the subject

16 of the gunpowder residue test which we also referred to here as the

17 paraffin test. Perhaps you can clarify one thing -- and now I realise

18 that I have moved too quickly, so I have to interrupt my last thought.

19 Can we move to the next video, to the Dobricanin 3, please.

20 Dobricanin 2 and 3. Fine. We'll go to 3. That's fine.

21 [Videotape played]

22 MR. SAXON: Can we stop right there.

23 Q. Professor Dobricanin, this again is some video material submitted

24 by Danica Marinkovic. It shows the Racak area. And do you see this part

25 of a house here on the right-hand side? It appears to be a house that has

1 been burnt out. Do you see that?

2 A. Yes. Yes, I do.

3 Q. Do you know if you -- can you recall if you saw this house on the

4 17th of January when you visited the community?

5 A. I never saw this site or anything similar.

6 Q. I see.

7 MR. SAXON: Can we look at the remainder of this clip and then the

8 next clip, please.

9 [Videotape played]

10 MR. SAXON: Can we stop here.

11 Q. Professor Dobricanin, this is a house in Racak. I believe it's

12 the 17th of January. Might be the 18th, but no later than that. The

13 house is still shouldering. Can you see the smoke rising?

14 A. I can see it here on this picture, but I did not see it there at

15 the site. And I would have seen it because I climbed to the highest

16 elevation above Racak where the bunker was, and I never saw this.

17 Did you say it was on the 17th? Not on the 17th. I did not see

18 it. I was in Racak on the 18th, and I did not see it then either.

19 Q. Well, what do you suppose happened to this house?

20 A. This house was set on fire, is on fire. I couldn't tell you

21 anything more about it. I don't know whether this house is located in

22 Racak. But based on what we see, I cannot explain this. Perhaps this

23 house was on the outskirts of the village, because I would have remembered

24 had I seen this from the hill.

25 Q. All right. Well, it is possible, at least, that a house on the

1 outskirts of the village of Racak was damaged by some kind of fire on the

2 15th of January, some type of gunfire?

3 A. I think you're asking me something that I truly don't know. I

4 said even before that I am familiar with certain types of weapons, but I

5 cannot identify the damage on the road, on the houses and tell you what

6 weapon had caused it, I'm sorry.

7 Q. Very well, Professor. Let me move on now to the topic of

8 gunpowder residue tests that were done.

9 Can you -- can you clarify for us when the -- what day were these

10 tests carried out on the 40 bodies that were brought from Racak to the

11 morgue? Was it the 19th of January, the day the bodies were transported

12 to the morgue, or was it some other day, if you recall?

13 A. That was on the 19th when we started with autopsies. And we

14 worked with each body that was placed on the table. And there was a team

15 who also worked with bodies in the morgue.

16 These are analyses that are carried out in a very simple way, and

17 I think that in a short space of time the investigation or the analyses

18 was carried out on all the samples taken from hands.

19 Q. All right. Now, I also understand that fingerprint samples were

20 taken from the bodies to assist in the process of identification; is that

21 correct?

22 A. Absolutely correct.

23 Q. And --

24 A. The tips of the fingers.

25 Q. And were the fingerprint samples also taken on the 19th of

1 January?

2 A. The fingerprints were taken later, after the nitrate tests had

3 been carried out in order not to create a disturbance or to affect the

4 particles. That means that these tests were not carried out

5 simultaneously. The paraffin test was done first, and then the

6 fingerprints were taken in order to identify them.

7 Q. All right. I'm only asking were -- I realise that the two tests

8 were not done simultaneously, but I'm simply trying to clarify: Were the

9 two tests done on the same day or were the fingerprints taken a long time

10 after?

11 A. Quite a long time subsequently. When I say "quite a long time," I

12 mean five to six days after the paraffin test was performed on the hands

13 and the area below the elbow.

14 Q. All right. I'd like to show a little bit more of video, please.

15 [Videotape played]

16 MR. SAXON:

17 Q. This is some more video provided by Judge Marinkovic. And this

18 is, according to Judge Marinkovic, the weapons that were collected at

19 Racak on the 15th of January, 1999. Weapons and ammunition. We see hand

20 grenades. Then we start to see a number of automatic rifles. You see

21 there's quite a few rifles there.

22 I think that's enough.

23 Now, Professor Dobricanin, we've already discussed, or you have

24 already discussed that the so-called paraffin test is not a perfect test

25 for indications of the presence of gunpowder, and I just wanted to ask you

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1 that -- and of course the purpose of all your work is to try to provide as

2 much information as possible to the legal authorities as precisely as

3 possible so that they may be able to make their decisions about the events

4 in Racak; isn't that right?

5 A. Yes.

6 Q. Well, what I'm trying to understand, then, is you had the

7 fingerprints available, or someone had the fingerprints from these bodies.

8 Did anybody ever test these automatic rifles that were lined up so

9 carefully for the presence of the fingerprints of any of the victims from

10 Racak?

11 A. I'm not aware of that.

12 Q. Well, you see, if the purpose of this exercise was to get to the

13 truth, eventually find the truth as clearly, precisely, as objectively as

14 possible, wouldn't it have been an obvious and a relatively easy procedure

15 just to see if any of the fingerprints from the victims at Racak were also

16 present on any of these automatic rifles?

17 A. Sir, this is beyond my scope of work. I suppose that perhaps that

18 should have been done. Whether it was done I don't know, and I can't tell

19 you anything further. I saw the weapons later. Now, whether any

20 fingerprints were taken or not, I really don't know that. This is really

21 for the criminal investigation department and other organs; that is not my

22 job.

23 Q. Well, even if it is beyond the scope of your work, if we can just

24 continue this conversation in your role as a citizen. We know that there

25 are at least concerns about the reliability of the so-called paraffin

1 test. Wouldn't it have been a much more precise and final way of

2 determining whether the persons who died at Racak had fired any of those

3 weapons simply by comparing the fingerprints? Just as a citizen. Would

4 you agree with that?

5 A. That would be one of the pieces of information that could be used

6 for those purposes, yes.

7 Q. And if the authorities of the Federal Republic of Yugoslavia, or

8 the Republic of Serbia had really wanted to demonstrate the truth about

9 what had happened at Racak --

10 JUDGE ROBINSON: Mr. Saxon, I think you're becoming a little

11 argumentative there now.

12 MR. SAXON: Very well, Your Honour. I will move on.

13 Q. I'd like to move to the other two factors that you mentioned last

14 week, Professor Dobricanin; the dark coloured clothing as well as the

15 different bullet paths that were found on the victims, and to do that I'm

16 going to have to ask for the patience of everyone in this courtroom as I

17 fumble through a number of exhibits, but I'm going to try to do this as

18 efficiently and as quickly as I can.

19 If we --

20 MR. SAXON: I'd like the usher's assistance, perhaps, to place

21 part of Helena Ranta's report on the ELMO, which I have to find. If we

22 turn to appendix 2 of Dr. Ranta's report, and page 9 of appendix 2, we're

23 going to see three bodies. And perhaps page 9 could be placed on the

24 ELMO. You will see there are page numbers in the corner there, so if you

25 could place page 9 on the ELMO, please. Make it easier than using the ERN

1 number, so it should be quicker.

2 For some reason I'm not seeing this. Now it should work.

3 Q. Professor Dobricanin, if you could take a look at this, please.

4 These are the bodies of the three Metushi brothers who were found in

5 Racak.

6 MR. SAXON: And for the Trial Chamber's edification, this picture

7 is located in what is referred to normally as crime location 2, scene 2.

8 Q. And behind me, Professor Dobricanin, I have a large poster, and

9 I'd like to somehow make it visible at least to the Trial Chamber, and to

10 you as well, if we can - I'm going to take my earphones off now - so that

11 you are able to visualise the particular part of Racak where these

12 photographs were taken and where these bodies were found.

13 MR. SAXON: Your Honour, I don't know if you would prefer simply

14 to break right now so I don't waste any of the Court's time.

15 JUDGE ROBINSON: Yes, it's a convenient time. We'll break for 20

16 minutes.

17 --- Recess taken at 12.12 p.m.

18 --- On resuming at 12.40 p.m.

19 JUDGE ROBINSON: Mr. Kay.

20 MR. KAY: Before Mr. Saxon resumes, Your Honour, one matter to

21 raise. I've now been able to look at the issue concerning the further

22 Jasovic material that in fact relates to 57 witness statements. I've had

23 an opportunity to reflect on legal argument which I would like to bring to

24 the attention of Your Honours at an appropriate moment.

25 JUDGE ROBINSON: Thank you, Mr. Kay. We'll hear them later.

1 Continue, Mr. Saxon.

2 MR. SAXON:

3 Q. Professor Dobricanin, to your right there is a large poster there

4 on the stand, and just to help keep you and other people in the courtroom

5 oriented I want to go over a few things about it. This is simply an

6 aerial photograph of the Racak area with certain -- with certain locations

7 and landmarks marked on.

8 You will see, Professor Dobricanin, that there's a series of

9 numbers going from 1 to 13 at different points around the village of Racak

10 and in the hills, the hillsides above the village, and these numbers

11 simply refer to what we've been calling in this courtroom different crime

12 locations and different scenes within those locations simply because all

13 of the persons who died at Racak in 1999 did not die in a single place.

14 They died in roughly 13 separate areas in the environs of Racak, and so

15 that's what those numbers represent.

16 You also see some landmarks that you may recall from your visit to

17 the village. For example, there is a black square you'll see on the lower

18 left-hand corner of the poster, with an arrow pointing to a hillside, and

19 that marks the site of the so-called KLA bunker, which I believe you saw

20 when you were walking around Racak.

21 There is also a small flag closer below in the village itself

22 which marks the spot of the so-called headquarters of the KLA unit that

23 was based in Racak, and I believe you visited that house as well.

24 So those are there just to keep yourself and myself and everyone

25 else oriented as we discuss some of the victims of the 15th of January.

1 If you could, please, Professor Dobricanin, take a look at the

2 photograph that is on the projector right now, and you'll see it's a

3 photograph of three bodies. Before we begin, I need -- I should ask you,

4 have you seen such photographs previously? These are photographs of the

5 bodies as they were found in situ after the events of 15 January. Have

6 you seen such photographs before?

7 A. No, I haven't had an opportunity of seeing this.

8 Q. All right. We see in this photograph three bodies. They are the

9 -- they are the three Metushi brothers; Sabri Metushi, also known as Sabri

10 Syla, Arif Metushi, and Haki Metushi. And I would like to review some of

11 the findings of the Finnish forensic experts regarding the autopsies that

12 were done on these three men, if we may. Perhaps if this photograph could

13 be removed and we're first going to refer to the body in the middle is

14 referred to as RA37. That is Mr. Sabri Metushi. And I have another

15 photograph here, and perhaps just to save time I'll simply hand it to Mr.

16 Prendergast. You can use my copy. Place this on the ELMO for everyone to

17 see.

18 And you can see there, Professor Dobricanin, this was a photograph

19 taken during the autopsy of Mr. Sabri Syla, and what we see in the upper

20 photograph here, if you agree, we see the entrance -- we see two entrance

21 wounds for bullets, and then if we go down and look at the lower

22 photograph, we see what appears to be sort of a, if I can call it that,

23 sort of a joint exit wound from the top of the foot. Do you see that?

24 A. Yes.

25 Q. Am I describing it correctly?

1 A. More or less, yes.

2 Q. All right.

3 A. I think I remember this case, in fact. I think I remember it,

4 judging by some of the elements there.

5 Q. I realise that I'm very much of a layman.

6 If we can remove that photograph now, please.

7 And if we take a look, RA38 in the first photograph that I showed

8 you of the three bodies in situ was brother Arif Metushi. And I will show

9 another photograph from the Finnish team that is a sketch.

10 Now, we see that according to the results of the autopsy

11 performed, that this man was struck multiple times by gunshots and that

12 the gunshots came from behind him, behind Mr. Metushi, and below him. Is

13 that a fair representation, Professor?

14 A. Based on the sketch, yes. But there were lateral wounds, number

15 V, for instance, coming in laterally.

16 Q. And we can also see what appears -- I guess what you would call a

17 lateral wound, number IV, through the fingers. Is that also correct, a

18 bit more lateral?

19 A. Yes.

20 Q. All right. And if we could remove that photograph as well. That

21 sketch, I should say. And we'll look at a photograph of Haki Metushi, who

22 was RA39 in the autopsy protocols and is the brother lowest down in this

23 area. And I'd like to put this sketch, if I may, on the ELMO.

24 Again we see that Mr. Haki Metushi was hit by more than one

25 bullet. We see down below it looks like in Mr. Metushi's left leg, it

1 looks like he received a bullet wound just below the knee. Is that right?

2 A. It resembles an injury, and I have no reason to disbelieve it, but

3 maybe it was during the fighting, during fleeing, or any other operation,

4 but they were inflicted more or less at the same time.

5 Let me just intervene. This is nothing separate, special, if

6 that's what you meant. Here the directions of the channels are quite

7 different, or tracks are quite different, and I assumed you noticed that.

8 We have them coming in from the top, from the bottom, from right to left

9 under an angle, from left to right under an angle, then one again -- some

10 again from quite another direction. So this is a perfect illustration of

11 what I was saying the other day; that there are different directions,

12 different tracks, different bullet paths, and so on.

13 Q. I appreciate that, Professor, and that's what I want to ask you

14 about. Another thing you said the other day was that one of the reasons

15 why you believe that these persons were killed during some kind of combat

16 is because most of the wounds were found either in the upper body or in

17 the head, which would indicate that they were standing in trenches at the

18 time. And here, for example, we see in this sketch we see someone who was

19 shot in the left lower leg; right?

20 A. Yes.

21 Q. And I showed you a few minutes ago the brother of this -- of the

22 person represented in this sketch, who was Sabri Metushi, who was shot

23 actually through the sole of his foot twice. So such wounds would not be

24 consistent with someone standing in a trench, would they?

25 A. What are you thinking? What's on your mind? I will be happy to

1 give you an explanation if His Honour Judge Robinson will allow me to try

2 and explain something with respect to this particular case.

3 An injury in the -- on the neck, under number I, was inflicted

4 from this direction, top to bottom. Can you assume that this man was in

5 some form of trench when he was shot from this position? The left lateral

6 wound is now from the opposite, reverse direction. The injury in the --

7 on the right thigh a little to the back and to the side, whereas on the

8 right-hand side they are all right to left under an angle.

9 Now, can you picture the following situation: I could give you a

10 concrete answer if we had been able to go into Racak and see the bodies in

11 situ. If he had tried to flee, there is an uphill slope, and that he was

12 hit, which shows us the injury on the left lower arm, the left thigh and

13 these other injuries. They are parallel channel directions or track

14 directions. And in this way we can explain it very simply. But I cannot

15 accept any kind of explanation outside what we did during the autopsies,

16 because once again we -- let me say we were not allowed, and the Judge and

17 I was a professional, to go in situ, to the site where the bodies were

18 actually found. These are post festum findings, four days later when we

19 came upon the bodies in Racak and we started conducting the autopsies.

20 Then we have this. I and my colleagues would know exactly whether the

21 bodies were found in the spot they were killed, whether they had been

22 moved, whether they had been dressed again, and so on and so forth. We

23 would know that exactly had we been allowed to enter onto the site.

24 I am sorry for being a little more lengthy in my answer but I had

25 to explain this.

1 JUDGE ROBINSON: Professor, you say the injuries to the lower part

2 of the body could be explained if they were fleeing up -- up a hill.

3 THE WITNESS: [Interpretation] Yes. Yes, yes. Yes, Your Honour.

4 If I might be allowed to add, Your Honour, another example with respect to

5 the first sketch. I wasn't given the chance of saying anything there.

6 On those bodies, on the bodies of the two men on an uphill slope,

7 you find the caps in the position in which I indicated on Friday and said

8 that it was impossible to find caps in that position, which means that the

9 body had been manipulated with. And I will tell you one more thing: If

10 you are hit on an uphill slope, there's absolutely no chance that you will

11 stay there. The body will topple and roll down the hill and find itself

12 ending up in a quite different location from where it was hit. And here

13 all the bodies were turned head upwards, head towards the hill.

14 MR. SAXON:

15 Q. Professor Dobricanin, is it likely that in an incident such as

16 what happened at Racak, that when people were killed survivors or whoever

17 happens to come by and sees the bodies, it's not uncommon, is it, that

18 they might turn over a body to see who this person is, whether or not they

19 are still alive? That's not uncommon, is it?

20 A. It is not uncommon if we're dealing with an individual killing.

21 But if we're dealing with a mass killing during combat, rare would be the

22 person after so much shooting who would dare run up to see what was going

23 on. You know, there is justified fear that there are still parties in the

24 conflict there and that you could lose your head very easily perhaps later

25 on.

1 Q. Professor Dobricanin, didn't you say about one minute ago that you

2 couldn't comment on matters outside of your autopsies? Because then how

3 do you explain your last response?

4 A. I hope that you asked me as a man who doesn't have to deal in

5 forensics. It's the explanation of an ordinary citizen. My behaviour,

6 how I would behave in a situation like that or anybody else outside

7 forensic medicine. Your question was outside the realm of forensic

8 medicine, wasn't it?

9 Q. So your comment of last week that the fact that bodies have wounds

10 on the upper part of the body indicates that the deceased persons were

11 fighting in trenches, that is also outside the realm of forensic medicine,

12 isn't it?

13 A. That falls only partially within the realm of forensic medicine.

14 I didn't say that none of them had injuries and wounds on the lower part

15 of the body. I said that they were mostly in the upper half of the body,

16 the upper torso, whereas wounds like this can be administered in trench

17 fighting and in other types of fighting depending on the configuration of

18 the terrain where all this happens. This is a hilly terrain so the bullet

19 path directions can take different courses. So that is altogether outside

20 the realm of what I know as forensic.

21 Q. Are you familiar with the report of a forensic pathologist named

22 Eric Baccard?

23 A. No. I've never heard of him. He didn't work with us.

24 Q. Just so you know, he presented a report in this case back in April

25 of 2002, and in his report he reported that 18 per cent of the injuries

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1 that were recorded during these autopsies of the Racak victims were found

2 on the lower limbs. So that's almost 1 in 5. That's almost 20 per cent.

3 A significant number of injuries found on the lower limbs of the victims.

4 Do you have any comment to make about that?

5 A. Yes. That means that four-fifths were found in the upper half of

6 the body. And that's what I said. I said that the majority of the

7 wounds, four-fifths are a considerable amount, more than one-fifth, were

8 in the upper half of the body; the thorax, et cetera.

9 Q. All right. I now would like to show a drawing from Dr. Helena

10 Ranta's report. And it's also from appendix 2, and it's also related to

11 the same particular crime scene from the Racak area, which was crime

12 location 2, scene 2, in the case of Metushi brothers.

13 MR. SAXON: If this could be placed on the -- on the ELMO, please.

14 Let me just read out the ERN number: K0202405.

15 Q. I want to ask you about this. Professor Dobricanin, this

16 photograph was made in March of 2000 when the Finnish forensic team had an

17 opportunity to return to the Racak site, and they went to several of the

18 crime locations, and with the help of a metal detector they searched for

19 bullet casings and bullets or the remains of bullets in relation to the

20 locations where were different bodies were found. And this particular

21 photograph shows the positions of what I have referred to as victim 37,

22 who would be here in this photograph 13; victim 10 who was RA39 from your

23 forensic autopsy reports; and the victim that was further up the hill, the

24 white marker that says 7014, was actually victim number 38 in the work

25 that you did.

1 But we see behind the markers were the bodies -- behind these

2 white markers we see a series of blue markers. Each blue marker

3 represents the spot where a bullet or bullet fragment was found in the

4 soil along that hillside.

5 And I can show you as well another photograph, but before I do,

6 would the presence of bullets in the soil so close behind a spot where

7 those three bodies were found indicate that those men were shot where they

8 were found?

9 A. You're asking me something to which I cannot give you an answer to

10 for the following reasons: How come and who knows that this was truly the

11 location if the investigation by the legal Yugoslav authorities was not

12 conducted on the day of the event? That's the first point.

13 Secondly, it is absolutely possible to feign this in any part of

14 Kosovo and Metohija, any village, and then say that you found projectiles

15 in the soil. A projectile, a bullet that has not been identified

16 ballistically and not treated ballistically and that has not been compared

17 with the weapon from which it was allegedly shot, there is absolutely no

18 possibility for that projectile to be any kind of proof or evidence

19 whatsoever. These very indistinct photographs that you're showing here, I

20 really cannot comment upon them. All I can tell you is what you ask me,

21 if you could find that anywhere at Kosovo, there was so much shooting in

22 Kosovo that you can find rounds, bullet casings or anything, as many as

23 you like anywhere. So if you don't have actual facts and figures where it

24 came from, there's no point in you asking me this.

25 Q. I'm going to try to give you a few more facts, Professor

1 Dobricanin. I simply asked your opinion. I'm not trying to be difficult.

2 If you could keep your answers short so we could move along a bit more

3 quickly. I think we've all heard you.

4 Let me show you my next photograph. This is also from Helena

5 Ranta's report. It's photograph number 14 in appendix 2, ERN K0202411.

6 I'm wondering if we could move that photograph a little bit more in the

7 other direction. Yes, yes. Back to the left now. Perfect. Thank you.

8 Again, Professor Dobricanin, in March of 2000 when the Finnish

9 forensic team went back to the site, not only do they find bullets or

10 bullet fragments in the hillside up on the left of this photograph but

11 they also found a number of cartridge cases in the debris and in the silt

12 and the dirt you see down in the lower right-hand corner there. And every

13 small white square, or rectangle, I should say, represents a spot where a

14 cartridge case was found.

15 Now, combining the fact that we have photographs of bodies in situ

16 up on the left side of the hillside, we have bullets found embedded in the

17 soil behind where those bodies were found, and we have cartridge cases

18 down below to the right, and some of those -- some of the wounds suffered

19 by the deceased in this scene were received from below and behind, in your

20 opinion, whether professional or as a citizen, do you think we can

21 conclude that perhaps the persons who did the firing were down in this

22 area in the right hand -- lower right-hand portion of the photograph,

23 firing up towards the left where the bodies were found? Can we possibly

24 conclude that?

25 A. For me to give an affirmative answer, then I would be a great

1 layman in terms of forensic medicine, because each site you can do

2 anything you like along this, feign this. We found a large number of

3 casings. Does that mean that the casings there are relevant whereas in

4 another place by the graveside they're irrelevant? This is a hill. You

5 can do what you like. You can show anything, that the shooting came from

6 any direction you like.

7 Q. Well, how can you do that scientifically, Professor Dobricanin?

8 How can you show that anything you like, that shootings came from any

9 particular direction? If you have an autopsy done of the body, if you

10 have a study done of the bullet paths, how can you possibly do whatever

11 you like?

12 For example, in this photograph we see a tree. You're not

13 suggesting that someone could have feigned these results so that

14 cartridges would have been found up on the top of that tree, do you?

15 A. Everything is possible, sir.

16 Q. I see. All right.

17 JUDGE KWON: Mr. Saxon, you're saying that this is part of

18 Dr. Helena Ranta's report?

19 MR. SAXON: Yes. This is found in appendix 2 to Dr. Ranta's

20 report, Your Honour.

21 JUDGE KWON: Do we have it in as an exhibit?

22 MR. SAXON: Yes, you do, Your Honour. It is Exhibit 156, tab 12.

23 I'm sorry if I didn't make that clear previously.

24 JUDGE KWON: Thank you.

25 JUDGE ROBINSON: Mr. Saxon, where is the evidence that the bullets

1 were found in soil near to where the bodies were?

2 MR. SAXON: From Dr. --

3 JUDGE ROBINSON: In the report as well?

4 MR. SAXON: In Dr. Ranta's report, Your Honour, yes.

5 Q. In the photographs that I've just shown you and discussed with

6 you, Professor Dobricanin, do you see any evidence there that the men who

7 died were firing back at the men who killed them?

8 A. I don't know who could say anything like this. On the basis of

9 this photograph you can't see anything.

10 Q. You can't see any cartridge cases marked up on the left-hand side

11 close to the bodies, do you?

12 A. It can be a mark for anything. I don't see cases. Possibly there

13 were, but I don't see them.

14 Q. Are you -- are you doubting the integrity of the final report of

15 the Finnish team? Is that what you're suggesting, that they had faked

16 this?

17 A. Sir, if our team was prohibited from entering the village on the

18 15th, 16th, and 17th, then in my opinion something must have happened

19 there. Why were we otherwise forbidden from entering? The only person

20 who on behalf of the state authorities was authorised to carry out

21 investigation was Judge Danica Marinkovic. Had we entered Racak on that

22 day, we would have found this or something else.

23 On the basis of something that was done a year later, you cannot

24 establish where the bodies were at the moment when they were killed and

25 where the casings were found. You probably know it is possible to doctor

1 a scene any way you want. I'm not saying that that's what our colleagues

2 did, but somebody else could have done it and then brought them to have a

3 look at that. Why didn't they call us when all of this was being done so

4 we could be together on the scene?

5 Q. You mentioned Judge Danica Marinkovic and her authority that she

6 had. Did Judge Marinkovic need to seek the authority of the district

7 prosecutor to carry out her investigation?

8 A. At the moment when I went there, it was the deputy public

9 prosecutor, district prosecutor who was there, and the deputy district

10 prosecutor has all possible powers in this respect.

11 Q. Did Judge Marinkovic have to seek the permission of the public

12 prosecutor to interview witnesses?

13 A. They did it together. They did everything on the request of the

14 public prosecutor's office in Pristina. That's what she did.

15 Q. I'm going to -- I just want to make one more point about this

16 particular photograph provided to us by the Finnish team, and that is

17 simply this: Also included in the report in appendix 2, we're told that

18 all of the cartridge cases that are represented by these rectangles in the

19 lower right-hand corner, they came from two weapons, and each of the --

20 the cartridge cases, the -- represented ammunition of only two different

21 brands. One was the Igman brand, and the other was a brand known as PPU.

22 These are brands of ammunition manufactured in Serbia, aren't they?

23 A. If it is Igman ammunition, then that's not in Serbia. That's in

24 Bosnia-Herzegovina. PPU means Prvi Partizan Uzice. This is a factory

25 from the town of Uzice that manufactures ammunition.

1 Q. And these two kinds of ammunition are used by police and military

2 forces of Yugoslavia and Serbia, aren't they?

3 A. Not only they but also everyone who took part in this war; the

4 Albanians, members of the KLA. Everybody used both. Actually, the

5 Albanians used this ammunition which was in the Territorial Defence arms

6 depots that had been looted, and they also used Chinese ammunition that

7 they brought from Albania. Of course, the military mostly used PPU and I

8 don't know what else, but manufactured in Serbia, I think. Or, rather, it

9 wasn't the military, it was the police. I am sorry, I made a mistake.

10 But I don't know what the army used.

11 Q. Give me your views as a citizen regarding this scene if not as a

12 forensic professional.

13 We have three men. They're older. They're lying dead on a

14 hillside. They're dressed in civilian clothes. Some of their wounds but

15 not all of them came from below and behind. According to one group of

16 forensic experts, there are bullets found in the soil close to where their

17 bodies were found, and there are cartridge casings found down below.

18 Is it possible -- or would it be possible to conclude, or would

19 one -- maybe better put, would one possibility be, based on this evidence,

20 that these three men were murdered? Is that possible?

21 A. Only if we had attended the investigation while the bodies were

22 still there where they fell could we come to a relevant conclusion. Such

23 conclusions can only be made once there is a complete reconstruction on

24 the basis of the initial investigation, with photographs of the scene and

25 bodies on the scene and with further examinations. Bullet path directions

1 are not only part of the work of forensic experts but also ballistics

2 experts. I do not understand why they did not allow us access immediately

3 or at least in 2000 when this mini reconstruction, if I can call it that,

4 was conducted. Why could we not take part in it when we did the autopsies

5 together on the bodies of the persons found in Racak?

6 Q. Professor Dobricanin, are you aware of any reports or records,

7 documentation that indicate whether weapons were found in the spots where

8 bodies were found at Racak such as these three bodies?

9 A. No. No. I have no such reports or was I interested in that kind

10 of thing.

11 Q. All right. I'm going to move to a different scene, different

12 crime location. And just to keep you oriented, Professor Dobricanin, and

13 everyone else, the scene I'm going to discuss now is crime location 4,

14 scene 9, which on that poster there is a bit higher up on the poster than

15 the crime scene location that we -- that we just discussed.

16 If you'll bear with me for one moment. I want to show you -- we

17 don't have an in situ photograph of the bodies for this crime location,

18 however, we do have some autopsy photographs, and I'd like to discuss one

19 or two of them with you, if I may.

20 MR. SAXON: If I could -- I'm sorry, Mr. Prendergast, I have to

21 call you over here again.

22 Q. I'd like to show you a photograph of one of the persons who died

23 at this scene. This is a boy named Halim Zeqiri, and he was 14 when he

24 died in Racak on the 15th of January, and he received one bullet wound.

25 It was from the back and exited through his neck. So that is the exit

1 wound we see there, isn't it, Professor Dobricanin?

2 A. That can be seen here, right here, this area.

3 Q. Yes. Okay.

4 A. It cannot be seen very well here --

5 Q. Very well.

6 A. -- on the screen.

7 Q. Let me -- just to help you and help everyone else, let me just

8 show you the entry wound.

9 A. It cannot be seen very well here, but it's marked, so I assume

10 that that's it.

11 Q. So again we have someone who was shot from behind and below. This

12 was -- can we see the other photograph, please?

13 Halim was 14 at the time. Professor Dobricanin, do you think it's

14 possible that this boy was simply an innocent civilian?

15 A. I don't know why you draw that conclusion. This is a 14-year-old

16 boy. Among the Albanians, boys of that age are mature. Many of them

17 carried weapons. And this positioning of the wound from the bottom

18 upwards shows that he was on a hillside too. That was the entire terrain.

19 It was on the slopes above the village. So it is possible to be killed in

20 any spot. This is a typical bullet path for a person who is climbing

21 uphill, or which would be very unlikely -- I have to explain this.

22 Perhaps --

23 Q. Professor, I'm sorry, perhaps my question was not clear. I will

24 rephrase it. I simply asked: Is it possible this boy was simply an

25 innocent civilian? Do you think it's possible?

1 A. I cannot answer that question. I have no grounds for answering

2 that question. If you're only referring to his age, that doesn't mean

3 anything.

4 Q. My question was simply whether it's possible. I wasn't asking you

5 to draw any final conclusions.

6 A. I think that I have answered that question.

7 Q. Well, let me go back to another point. You mentioned that this is

8 a typical bullet path for a person who was climbing uphill. Wouldn't it

9 also be a typical bullet path for someone who is fleeing uphill, running

10 away?

11 A. Well, I cannot say to you whether the person was running away or

12 moving slowly. There are no characteristics on the bodily wounds that

13 could indicate the speed at which a person moves at the moment when he or

14 she is hit by a bullet.

15 Q. Well, I think I'll leave that question for now, Professor.

16 This boy, Halim Zeqiri, his father was also killed on the 15th of

17 January, and his mother and his sister -- his sister were wounded and were

18 taken to the hospital for treatment. Did you ever speak with them?

19 A. No. No. I never came to Racak again after the 18th of January,

20 and I never encountered any resident of the village of Racak.

21 Q. Wouldn't it have been one way to clarify the events of that day

22 simply by speaking to wounded survivors who could tell you what they saw

23 and experienced on that day?

24 A. Sir, that is not within the scope of my work. If anybody was

25 supposed to speak to them, it was the investigating judge. And secondly,

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1 if they were transferred to the hospital in Pristina, perhaps the

2 investigating judge could have talked to them. However, as far as I know,

3 they had their local medical service where the wounded were treated. I

4 don't know exactly in which village, but it was somewhere in the immediate

5 vicinity of the village of Racak. They had their own doctors, and they

6 had their own medical support for their units.

7 Q. During the time you were working on the autopsies for this

8 medicolegal investigation, did you -- were you given access to any records

9 regarding the wounded, the wounded survivors?

10 JUDGE ROBINSON: Mr. Saxon, we'll stop in five minutes to hear the

11 legal submissions.

12 MR. SAXON:

13 Q. Can you answer my question, Professor? Were you given access to

14 any records regarding the wounded, the wounded survivors?

15 A. No, no documentation. I have not seen any documentation. I would

16 like to stress once again that these persons were not treated in the

17 Pristina hospital at all but at this other medical centre. There are no

18 records of them. I would have had to know because somebody from surgery

19 would have certainly called me to tell me someone was there. They usually

20 call us when there are severely wounded persons there so that we could

21 come and have a look. I don't think that any one of them was treated

22 there.

23 Q. Doctor, is it possible that the survivors were treated in the

24 hospital in Stimlje?

25 A. There is no hospital in Stimlje.

1 Q. Well, we had a nine-year-old boy who was shot in the leg on the

2 15th of January and received treatment in some kind of medical facility in

3 Stimlje. Efrem Salmi [phoen], I believe is his name.

4 A. I don't think so. I don't think this was in Stimlje. It is

5 certain that the wounded Albanians from Racak could not reach Stimlje.

6 This was quite a bit of police still there, but it's quite possible that

7 he was in the village clinic either in Racak or on the periphery of

8 Stimlje near Racak, Rance, Petrovo Selo and the other villages that were

9 there.

10 As far as I know, I heard from my colleagues, my Albanian

11 colleagues, that every one of these units had this kind of medical

12 support, and before the war every village had a clinic of its own to treat

13 the residents of the village. These persons, these doctors who were in

14 these villages were only Albanians because these were exclusively Albanian

15 villages.

16 It is possible that some kind of a hospital had been set up there,

17 but I really don't know.

18 Q. You referred to, and I know we're short of time, but you made a

19 reference to "every one of these units had this kind of medical support."

20 Which units are you referring to? Are you referring to KLA units?

21 A. Yes. Yes, the KLA units for sure. And if you're asking me about

22 our units, they also had their own medical corps. When I say "our," I'm

23 saying the police of Serbia. Don't think that I belong to these units.

24 In any kind of troops there is also a medical corps.

25 Q. Are you suggesting that this victim, Halim Beqiri, then, was a

1 member of the KLA?

2 A. No. I never said that.

3 MR. SAXON: Your Honour, this would be a good point for me to

4 stop.

5 JUDGE ROBINSON: Yes.

6 Professor, we are going to hear some legal arguments. I think it

7 would probably be more convenient for you to just stay for the five, ten

8 minutes.

9 Mr. Kay.

10 MR. KAY: Yes. The issue concerns the Jasovic statements which

11 were served on the Prosecution very recently. That's a file that consists

12 of 57 further witness statements sought to be produced through the witness

13 Jasovic. Those are witness statements deriving from the time period 1998

14 to 1999, and indicate activities of the KLA. Within those statements

15 there are further names as well as a repetition of the names already

16 mentioned within the tabs of tab 45, I think it is, to 53 of Exhibit 293,

17 which were the witness statements adduced through the witness Marinkovic,

18 which again indicate that a number of those deceased mentioned in Schedule

19 A of the indictment were connected with the KLA or have been referred to

20 as having connections with the KLA through sources who were interviewed by

21 the police in that period of 1998 to 1999.

22 It comes down to about 30 of those names in Schedule A fall into

23 that category. So they are identified in witness statements taken by the

24 witness Jasovic in the period 1998 to 1999 as having been involved with

25 the KLA.

1 This is very different from the Barney Kelly, Kevin Curtis

2 evidence sought to be relied on by the Prosecution, who were Prosecution

3 investigators who had summarised the contents of a series of witness

4 statements taken over a period of time from 1999 to later periods, and the

5 Prosecutor sought to include that evidence from those witnesses as

6 summarising witnesses, and as the Trial Chamber knows, the Appeals Chamber

7 found against that practice using the investigators to summarise the

8 contents of the witness statements. The Prosecutor didn't want to use the

9 full witness statements but wanted to use those investigators as

10 summarising witnesses.

11 JUDGE ROBINSON: Mr. Kay, if we were to admit the statements,

12 would you not agree that the declarants should be brought for

13 cross-examination, should be available for cross-examination?

14 MR. KAY: If I can assist the Court, this was material produced at

15 the time, contemporaneous material within the files of the law enforcement

16 agencies, prosecutor services, and was not material that was created or

17 produced for this litigation. So it stands apart from material that has

18 been made by one party for the purposes of the proceeding. It is material

19 that is part of what was happening at the time.

20 This case concerns the criminal responsibility of the accused and

21 goes to the issue of his state of mind. If there are official records at

22 the time that have not been created for the issue that we're concerned

23 with in this trial and that they are within the system of the law

24 enforcement agencies, it is right to say that the accused would be

25 entitled to rely upon the content of that information to prove matters

1 relevant to the issue concerning his state of mind.

2 The issue here is what the accused knew or ought to have known,

3 what he was led to believe, what were the facts at his disposal. That has

4 been a line that has been cross-examined upon by the Prosecution.

5 If this officer is someone who in the course of his duties was

6 able to prepare a number of original exhibits, original material on issues

7 unconnected with the accused at the time but for a completely different

8 reason that indicate the extent of the issue concerning the power, the

9 control, what was being done, the acts and conduct of the KLA, that is

10 material, in our submission, that this accused would be entitled to rely

11 upon in his Defence if it proves an issue in his favour. And it's very

12 different from the other material. These proceedings would not have been

13 designed for him to call 80 such witnesses if they were available and

14 willing to be called to give evidence about those matters, which is really

15 the way Mr. Nice put his submission this morning.

16 What is important here, what this goes to is what was known within

17 the system. What had been produced in the system that was nothing to do

18 with these proceedings, entirely independent, and part of the general

19 information involved at the time.

20 We have a parallel: The Prosecution relied on the statements

21 produced through Captain Dragan. The Court will remember he gave

22 evidence. His real name was Vasiljkovic. He produced -- the Prosecution

23 sought to rely upon about 10.000 pages of CD-ROM through him, which were

24 the records of soldiers who had been injured and had received support from

25 a foundation. Within those records there was a statement of where the

1 soldier originated from, from Serbia or elsewhere, who he had served with

2 as a soldier, and what his injuries were. This was objected to by the

3 accused and the amici curiae, but the evidence was admitted on the basis

4 that it was evidence that had become part of an official record that had

5 been produced, nothing to do with this litigation, but it gave information

6 that the Prosecution was seeking to rely upon not only for the fact of the

7 content but also the truth, and the purpose behind it was to prove that

8 there had been Serbian soldiers involved in the conflict within Croatia

9 and Bosnia-Herzegovina.

10 JUDGE ROBINSON: Suppose the accused had sought to produce the

11 witness statements through 92 bis. Would the Prosecution not be entitled

12 to seek to cross-examine the declarants?

13 MR. KAY: 92 bis is not the only -- only route. They're not being

14 called for what they would say now. They're being called -- this evidence

15 is being used for what they said then, and that's the importance of it.

16 What was said at the time, the contemporaneity. Just in the same way as

17 the Prosecutor relied on Exhibit 391, tabs 4 to 8, the Captain Dragan

18 materials, for what was said then to prove an issue that they needed in

19 relation to their case against the accused, this accused, in our

20 submission, would be entitled to use that original evidence. It's

21 original evidence. He's not relying upon it for the statement of the

22 witness. He is relying upon it for what was said and known at that time.

23 They're not coming here as witnesses. That content is being adduced

24 through the witness as exhibit material. And not exhibit material

25 prepared over the weekend, as the Prosecutor has sought to do and would no

1 doubt try to draw a parallel between these instances. That was exhibited

2 -- exhibit material that was prepared before any indictment, completely

3 unrelated to this case and, therefore, falls within that classic material

4 that is admissible in any trial of what original material was in existence

5 at the time, and it's highly relevant to this accused's Defence as to his

6 state of mind.

7 If there were a vast body of material within the archives of the

8 Kosovan MUP declaring the contrary to this kind of material, no doubt the

9 Prosecutor would have sought to rely upon it in prosecution of the

10 accused. And the way the Appeals Chamber dealt with these issues, and the

11 Trial Chamber, was not to close down the use of original material that may

12 have been taken in statement form. It wasn't being exclusive in the use

13 of Rule 92 bis as applying merely to statements. 92 bis applies to

14 statements taken for the proceedings, for Court statements taken through

15 an officer of the Court, and therein lies its restriction.

16 This is being relied upon as exhibit material to show what was out

17 there, what was in existence at the time that forms a bedrock to the

18 Defence of the accused. A very, very different set of circumstances to

19 the material that the Prosecutor has sought to rely on in his prosecution.

20 JUDGE ROBINSON: Thanks. Let me just hear Mr. Nice very quickly.

21 MR. NICE: Your Honour, to deal with this it may take a couple of

22 minutes, and I haven't --

23 JUDGE ROBINSON: We just -- I don't want to trespass on the time

24 of the other.

25 [Trial Chamber confers]

1 MR. NICE: Thank you, Your Honour. I also need to ask something

2 of you of an administrative nature before we close today, and it's this:

3 If Helena Ranta is available tomorrow - and I don't know whether she is -

4 might it be the case the Court would want to hear from her? She had

5 originally been called by the Court. If so, I will convey the request to

6 her. If the Court doesn't envisage that it might want to hear from her,

7 then -- and if she's otherwise free tomorrow, then we'll make our own

8 decision whether to inconvenience her further.

9 JUDGE ROBINSON: For my own part, no, I don't wish to hear from

10 her. We'll consider that.

11 MR. NICE: Very well. Obviously, we need to let her know this

12 afternoon because she's taken two days out of her schedule in order to

13 make herself available.

14 JUDGE ROBINSON: Mr. Nice, I think we'll have to continue this

15 tomorrow morning.

16 MR. NICE: Yes, Your Honour, I think so because I'm afraid that I

17 don't really quite understand my learned friend's submissions. What I

18 would be grateful to know, if the Court can ask the accused one question,

19 is if, as Mr. Kay says, and these are documents are all fresh to me and

20 without any translation, but if these documents suggest that names on

21 Schedule A are shown to be members of the KLA, whatever Mr. Kay's

22 argument, is the accused seeking to rely on this document to prove that

23 people killed in the Racak incident were members of the KLA? Because if

24 he is, then that's different from Mr. Kay's argument and I need to be able

25 to address that.

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1 I don't know if the Court will feel able to help me with that.

2 JUDGE ROBINSON: We'll continue this debate tomorrow morning.

3 It's almost time, and we don't wish to trespass on the --

4 JUDGE BONOMY: Mr. Nice, I'd be grateful if you would give some

5 thought to this: There are two trials in this court, and they both

6 involve the same witness or potential witness. The Prosecution position

7 in relation to that witness, I understand, is entirely different in the

8 other case from the position it appears to be taking in relation to the

9 witness in this case. I'll be interested to hear you further tomorrow

10 when we can continue this on whether that's an appropriate position for

11 the Prosecution to have.

12 MR. NICE: It's a matter I've already considered and I'll return

13 to it tomorrow.

14 JUDGE ROBINSON: Yes. We will adjourn until tomorrow morning at

15 9.00 a.m.

16 --- Whereupon the hearing adjourned at 1.44 p.m.,

17 to be reconvened on Wednesday, the 13th day of

18 April, 2005, at 9.00 a.m.

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