1 Monday, 3 September 2007

2 [Open session]

3 [The witness entered court]

4 [The accused entered court]

5 --- Upon commencing at 2.16 p.m.

6 JUDGE PARKER: Good afternoon.

7 Would you please read aloud the affirmation on the card that is

8 given to you now.

9 THE WITNESS: [Interpretation] I solemnly declare that I will speak

10 the truth, the whole truth, and nothing but the truth.

11 WITNESS: SIMON EICHNER

12 [Witness answered through interpreter]

13 JUDGE PARKER: Thank you. Please sit down.

14 [Trial Chamber confers]

15 [Trial Chamber and registrar confer]

16 JUDGE PARKER: Ms. Motoike.

17 MS. MOTOIKE: Thank you, Your Honour. For the record, the

18 Prosecution now calls Dr. Simon Eichner.

19 Examination by Ms. Motoike:

20 Q. Sir, is your name Simon Eichner?

21 A. Yes, that's correct.

22 Q. Can you please, for us, briefly describe your education

23 background?

24 A. Yes, of course.

25 I finished my school studies in Munich and then my university

1 studies in Munich in physics and graduated in 1967. Thereafter, I studied

2 at the University of Munich and finished my doctorate there. And in 1981,

3 from 1981 onwards, I worked for the Bavarian criminal police. And later I

4 headed the weapons section of the criminal police and I have remained in

5 this position up to the present day.

6 Q. So just for clarification, you are currently employed then with

7 the criminal police?

8 A. Yes, that is true.

9 Q. And where is that exactly?

10 A. That is the criminal police of Bavaria in Munich. It's

11 responsible for Bavaria.

12 Q. And on 17 March 2006 did you have an opportunity to prepare a

13 report which contained your expert opinion on the possible causal origins

14 for nitrite and/or nitrate deposits on an individual's hands, the

15 scientific conclusions that can be drawn from the findings of nitrate

16 deposits on a person's hands and the use of nitrate or nitrate tests for

17 detecting gunshot residues in the forensic community?

18 Did you prepare a report regarding these issues?

19 A. Yes, I did.

20 MS. MOTOIKE: Could we please show the witness 65 ter 364, and

21 actually while that is coming up we have provided -- prepared hard copy

22 binders for the witness today. If we could, with the assistance of the

23 usher, distribute those. And for further clarification because of the

24 number of exhibits, we actually have these broken into two binders.

25 There's a separate soft cover binder that contains the copies of the

1 reports that I expect to tender with this witness.

2 And we could display 65 ter 364, please. And the hard copy of

3 this particular report is provided in the separate soft cover binder at

4 tab 2.

5 Q. And, Dr. Eichner, you have the hard copy of the report in front

6 much you but also on the computer screen there is displayed a copy of the

7 same report. Do you see that?

8 A. Yes, I can see it.

9 Q. Is this the report that you prepared on 17 March 2006?

10 A. Yes, that is the report which I prepared.

11 Q. Does this report also have two attachments to it as well?

12 MS. MOTOIKE: Actually, Doctor, can I show you on the screen.

13 If we could please show 65 ter 365, which is tab 3 of today's

14 hardcover binder.

15 A. Yes, I can see the annex, the annexes. They are here present in

16 the file. And this is the way I submitted the report.

17 Q. And I believe the first annex, as you termed it, is being

18 displayed on the screen presently. Do you see that?

19 A. Yes, that is true.

20 Q. And the hard copy shows that it is an excerpt from a publication

21 by a professor doctor out of the university of Bonn. Is that correct?

22 A. Yes, it is true.

23 MS. MOTOIKE: And if we could please also show 65 ter 366, which

24 is tab 4 of today's hardcover binder. Thank you.

25 Q. And, Doctor, this is now being displayed on the screen. Do you

1 recognise this as being the second attachment and/or annex to this report

2 dated 17 March 2006?

3 A. Yes, that is the first page of the second annex.

4 Q. And this particular article is entitled "Summary of the FBI

5 Laboratory's Gunshot Residue (GSR) Symposium" and it is dated May 31

6 through June 3, 2005. Is that correct?

7 A. Yes, that is true. That was a summary made during that symposium.

8 Q. And are both of these two articles, the two attachments that we've

9 just seen, are these referenced and relied upon in the report dated 17

10 March 2006?

11 A. The reference is made to the two articles in a paragraph about the

12 presence of nitrate and the importance of nitrate in the -- in scientific

13 circles in the international community.

14 MS. MOTOIKE: Your Honours, at this time I would ask to tender the

15 report which is 65 ter 364 as well as the two attachments located at 65

16 ter 365 and 65 ter 366.

17 JUDGE PARKER: They will be received.

18 THE REGISTRAR: 65 ter 364 will become exhibit P421. 65 ter 365

19 will become Exhibit P422. And 65 ter 366 will become Exhibit P423, Your

20 Honours.

21 MS. MOTOIKE:

22 Q. Dr. Eichner, as part of your occupation and training, do you keep

23 abreast of the scientific literature and studies related to the various

24 detection methods of gunshot residue?

25 A. Yes, I keep myself abreast of scientific literature. And there is

1 an international exchange of experience under way in which we participate,

2 and we also have a national exchange of experience and I'm one of the

3 figures in this exchange.

4 Q. And as part of that exchange and the education that you partake

5 in, are you familiar with the paraffin glove test?

6 A. I know this test from the literature, but we, for our part, do not

7 use this test, and I can explain the reasons why, if you wish.

8 Q. We can get to that in just a second. Could I first ask you, what

9 does this test, this paraffin glove test indicate the presence of?

10 A. The test described here in the annex of my report, and there

11 was -- referred to a report of the Macedonian police and it is to test the

12 presence of nitrate through dephenylamine and the reagents is able to

13 prove the presence of nitrate by turning it into a certain colour.

14 There's a chemical reaction and through the reaction one can determine

15 whether certain substances are present, among which nitrates in -- by

16 means of reagent.

17 Q. And you indicated that you yourself do not use this paraffin glove

18 test. Based on your training and experience, do forensic scientists

19 usually work with this kind of test to detect gunshot particles?

20 A. No. In Germany, I don't think anyone uses it. And as far as I

21 know internationally, there does not seem to be any use of it, because

22 there could be positive reactions which are not based on the presence of

23 nitrate through this test. There could be other substances which have

24 nitrate in them but are not gunpowder residue, so it's not specific enough

25 to determine gunshot residue itself.

1 Q. Okay. And, Doctor, keeping this paraffin glove test in mind, I'd

2 like to actually focus you now on specific topics or a couple of tops

3 relating to the test that you have discussed in your report that's dated

4 17 March 2006.

5 In pages 8 through 14 you discuss the scientific conclusions, if

6 any, that can be drawn from the paraffin glove tests that were performed

7 on 15 individuals from Ljuboten village. These tests were performed by

8 the Macedonian forensic technicians in August of 2001. And also, on pages

9 1 and 2 of your report, you indicate the documents from the Macedonian

10 authorities which relate to these paraffin glove tests that you reviewed.

11 Is that correct?

12 A. Yes, that is true.

13 Q. Drawing your attention to the documents relating to the results of

14 these 15 individuals that you reviewed.

15 MS. MOTOIKE: And for the Chamber's and the witness's convenience

16 and all parties, these have actually been provided in the hard binders at

17 tabs 9 through 23; however, since these are already admitted exhibits

18 actually under exhibit number P00050, and because they are already

19 delineated in Dr. Eichner's report, in order to save time I will not go

20 through each of these with the doctor at this time.

21 Q. But, doctor, you reviewed what was described by the Macedonian

22 authorities in each document as the results of the paraffin glove tests

23 for 15 individuals. Is that correct?

24 A. Yes, this is what I got out of the documents that I received.

25 Q. Okay. And can you please tell us whether it is discernible from

1 the documents that you reviewed as to how the tests, these paraffin glove

2 tests were performed as to each of these individuals?

3 A. As far as I know from the documents, imprints were made with wax

4 and I would imagine that this means that the hands were covered with wax

5 or a waxy substance, were moistened with such a substance and then the

6 glove created by the wax was taken off and the inner part was sprayed with

7 diphenylamine to cause certain chemical reactions.

8 Q. And in your opinion after reviewing the results of these tests

9 what scientific conclusions, if any, could you draw?

10 A. There's two different cases here. Nitrates are not only to be

11 found in gunpowder. They are also components of other substances in daily

12 life - Dr. Stein will speak about this later, about the substances which

13 contain nitrate, substances found in day-to-day life. I can only mention

14 things like fertilisers or food or pickled meats and cured meats and

15 different foods. But I think Dr. Stein will talk about this in greater

16 detail. Nitrates are found not only in gunpowder but they're also found

17 in other substances in day-to-life.

18 Let us assume for a moment that the proof of the presence of

19 carried out by the Macedonian police say that particles were present

20 through the diphenylamine test. If we assume that the particle did not

21 come from gunpowder, then it could equally cause a positive reaction.

22 Dr. Stein will discuss this in detail because he has carried out

23 experiments and I have seen some of his experiences to see which

24 substances of day-to-day life do cause a positive reaction.

25 On the other hand, if we assume that the particles which cause a

1 reaction do stem from gunpowder, if we assume that this is proven, then we

2 would see that the hands are covered with substances deriving from

3 gunpowder and what could be proven by that. Normally you would see

4 particles on a hand which has shot an arm, a gun. You would see burnt or

5 partially burnt particles of gunpowder, more or less burnt, with a very

6 high level of nitrate, and the particles would remain on the hand of the

7 person who used the rifle or the gun. So, a positive reaction would

8 correspond to the hand which has used a weapon.

9 However, our experience over the last 25 years has shown that

10 there are a lot of other explanations for residue, for gunpowder -- or for

11 residue to be on the hands of people without them having used a weapon.

12 These other possibilities can occur when someone has had contact with

13 another hand which has used a weapon. If you give -- if you shake

14 someone's hand who has used a weapon, then you will get nitrate particles

15 on your hand, and this could be another possible explanation. Or it could

16 happen that someone, with his hand, defends himself against a weapon being

17 directed at him and the -- a cloud of residue would be in the air and it

18 would get onto the hand of the person defending himself.

19 Q. Doctor --

20 A. So you would see the particles on the hand in this case too.

21 Q. Could I stop you there for a second. Could I actually focus you a

22 little bit on with respect to the findings that you made after your review

23 of the results, if I could just direct your attention to --

24 MS. MOTOIKE: If we could display also on e-court. It's P 00050,

25 65 ter 15.11. In e-court it's pages 30 through 31 for the English and 106

1 through 107 for the Macedonian. It is located at tab 9 of today's

2 hardcover binders.

3 Q. Dr. Eichner, do you see the document that is being displayed in

4 front of you? The hard copy is also located at tab 9 of the binder. And

5 if I could just direct your attention to the top of the document. It says

6 Republic of Macedonia, Ministry of Interior, criminological techniques

7 department. It is dated 14 August 2001, Skopje. And its subject is

8 analysis of traces of fire-arms and it goes on to speak of findings with

9 respect to a person by the name Ali Riza, which is referred to the first

10 paragraph. And it indicates that an analysis of the submitted foils has

11 been conducted. The reaction used was positive for the right hand foil,

12 i.e., presence of nitrate particles on the hand was determined.

13 Do you see that, doctor?

14 A. Yes, I can see it here.

15 Q. And is this one of the results that you referred to and you

16 reviewed actually in your report?

17 A. Just a moment, please.

18 Yes, I did have this report.

19 Q. And if we could please display, I believe the third -- second page

20 in English and the second page in Macedonian of this particular document.

21 And on the left of the screen, Doctor, there's what appears to be

22 sketches of two hands. And there's an asterisk actually noted that is

23 visible in the right hand on the right side of the page. Do you see that?

24 A. Yes, I can.

25 Q. And was this also a part of this particular test result that you

1 reviewed in formulating your opinions with respect to your report?

2 A. I did have the document with this number, yes.

3 Q. Okay. If we could show one more, please. It's P 00050 as well,

4 65 ter 15.12 located at tab 10 of today's hardcover binders. In English

5 in e-court it is pages 32 through 33; in Macedonian, it's pages 108 to

6 109.

7 And, Doctor, similarly with this document that's now being

8 displayed, again it is from the Republic of Macedonia, Ministry of

9 Interior, criminalistic police, dated 14 August 2001. And do you see

10 again it says, subject, analysis of traces of nitrate particles. This

11 report indicates a name of K-j-a-m-u-r-a-n Rexhepi, and it indicates that

12 an analysis of the submitted foils has been conducted. The reaction used

13 was positive for the foil of the right hand of the aforementioned person;

14 that is, presence of nitrate particles on the hand was determined.

15 Do you see that, Doctor?

16 A. Yes I can see that.

17 Q. And attached to that, if we could show page 2 in the Macedonian,

18 please, which is also page 2 of the English. And again, Doctor, like the

19 other document we just showed, there is a sketch of two hands, and on this

20 sketch they're indicated handwritten asterisks on the right hand. Do you

21 see that?

22 A. Yes, that is correct.

23 Q. And again, is this a document that you also reviewed as part of

24 your report?

25 A. Yes, I had this document too.

1 Q. And is it your understanding that the asterisks indicated on these

2 sketches that were provided to you indicate the -- where there was a

3 positive reaction for nitrate or nitrite?

4 A. Yes, that is how I understood it from the text of the written part

5 of the -- the report speaks of nitrate particles, so I assume it is a

6 question of these particles here.

7 Q. And out of the 15 -- let me ask you this first: You reviewed 15

8 documents that looked like this, that is, the first page indicated the

9 presence of nitrate/nitrite particles and then there was attached hand --

10 sketches of the hands with asterisks indicated on them. Is that correct?

11 A. Let me count them for a moment. There are 15 documents that I had

12 here.

13 Q. And I guess my question was, were they similar to these, that is,

14 that they had a cover page that indicated there was a positive presence

15 detected and then a sketch of the hands with the asterisks indicated on

16 them?

17 A. Yes. The texts were more or less the same in the reports.

18 Q. Okay. And in your review of these 15 results for these

19 individuals, can I ask you what's the most number of asterisks that you

20 had seen on the hands of these individuals, as a -- from these results?

21 A. The greatest number of asterisks was 3.

22 Q. Okay. And is that significant somehow in the scientific community

23 as far as a result for determining the presence of gunpowder residue?

24 A. No, I would not say so. Such a result does not lead to any

25 particular interpretation.

1 Q. Okay. Could I also show you an additional sketch that did you not

2 have as part of your report.

3 MS. MOTOIKE: Could we please display for the doctor 65 ter 995;

4 it also bears ERN N0063580-N0063580 and it is located at tab 24 of today's

5 hard binders.

6 Q. And, Dr. Eichner, actually could I just follow up on something

7 that you indicated earlier. You had said that the number of particle-- of

8 asterisks, being at 3 at the most, on these 15 persons was not -- could

9 not lead to any particular interpretation. What do you mean by that?

10 A. The three asterisks which show the presence of nitrate particles,

11 if they are that, could have got on to the hand by various means. There

12 are several possible explanations for such the small amount of particles

13 on the hands. It could be the firing of a weapon by the hand in question,

14 but it could also be other contacts and circumstances. There are many

15 possibilities, and as such, there is no definite explanation as to how the

16 particles got on to the hand. So there is nothing very specific one can

17 say about the origin of the presence of the particles.

18 Q. And, Doctor, assuming that these asterisks did indicate the

19 presence of nitrate or nitrite particles that came from gunshot residue,

20 what other things or factors would you look at to actually make a

21 conclusion, if you can, that these were gunshot particles coming from a

22 person who had actually fired a handgun or a weapon?

23 A. The first step would be to prove whether the particles here were

24 actually gun residue, gunpowder residue or whether they could derive from

25 other sources. This could be done analytically. There are chemical

1 processes to do this, chemical tests and there are apparatus. For

2 instance, there is the scanning electronic microscope to see whether we

3 are dealing here with gunpowder or not.

4 If this is proven positively in tests, one could then try to limit

5 the origins of the presence of the particles. One possibility would be to

6 look at the surface distribution of the particles to see if there are any

7 limitations or patterns, and this is what we -- this is how we would

8 proceed.

9 Q. And based on your review of the 15 results, could you make any

10 determinations on -- based on a surface distribution of the particles?

11 A. No, in none of the cases could I do this, because the surface

12 distribution was not specific enough to allow any explanation of how the

13 residues got on to the hands. In none of the cases was there an obvious

14 result or were we able to limit the explanation to find a specific

15 explanation.

16 Q. Okay. If we could then look at this additional sketch which was

17 not incorporated in your report. It is displayed on the screen now,

18 Doctor, and on the left side there are apparently the front -- the back

19 and the palm side -- the back side and the palm side of both the right and

20 the left human hands and there are some asterisks also indicated on this

21 particular diagram. And just for your knowledge, Doctor, we have in this

22 court already received testimony from a forensic medical doctor with

23 respect to him conducting a paraffin glove test on a person by the name of

24 Atulla Qaili. And this is on pages 2292 through 2293 of the Court

25 transcript.

1 And the Dr. Jakovski testified as to a particular document that

2 indicated the presence of nitrate/nitrite particles based on the paraffin

3 glove test performed on this particular individual.

4 MS. MOTOIKE: And for the record, that exhibit was P 00049, which

5 is also 65 ter 13.9.

6 And, Doctor, looking at this particular sketch and the asterisks

7 that are noted, and again assuming that these asterisks note the presence

8 or positive reaction for nitrite/nitrate particles on the hands, in your

9 opinion, what scientific conclusions can be drawn from this particular

10 sketch?

11 A. Here again, my evaluation is no different from that for the other

12 sketches we've seen. This distribution of particles here, there are a few

13 more particles here, but they are nonetheless too few to explain the

14 surface distribution. They could stem from the firing of a weapon or from

15 many other origins.

16 Q. Are there a sufficient -- I know that we discussed at most, three

17 particles being present in the other reports, not giving you a surface

18 area distribution or a sense of the surface area distribution. Looking at

19 this particular sketch are you able to make a determination, though, is

20 there a sufficient number of particles indicated for an assessment of the

21 surface area distribution, if you understand me?

22 A. With this distribution here, I would call this a discrete

23 distribution of particles, which means it is not possible to derive

24 conclusions from such a distribution. If we only have three particles as

25 we did on the other sketches, it is simply not sufficient to draw a

1 conclusion or to come to a more specific conclusion about the origin of

2 the particles.

3 Q. And, Doctor, you spoke earlier, right before I cut you off - and I

4 apologise for that - of the possibility of contamination in your report.

5 Can contamination occur with respect to tests like the paraffin glove

6 test?

7 A. If one assumes that during the conducting of the test one -- that

8 the test -- if one assumes that the tests are carried out carefully in a

9 laboratory, then contamination would be unlikely. But it depends how the

10 tests are carried out. In such a case I don't really see that much

11 contamination could have occurred during the testing here.

12 Q. Well, in -- let's just take it outside of this particular test

13 that is displayed on the screen. In your opinion, can the lack of

14 preservation of the hands of a person who is eventually tested for

15 nitrate/nitrite particles, could that lead to contamination?

16 A. Yes, that could bring about a contamination. If we take into

17 consideration what sort of influences hands are submitted to, the -- from

18 the original presence of the particles until the test, I can assure you

19 there are a whole range of possibilities of contamination. For instance,

20 we have seen in our lab tests that people who have been arrested and have

21 had shackles put on their hands have received particles from the person

22 arresting them, because most police vehicles-- most police vehicles, for

23 instance, transport weapons on the back seat of their vehicles. And if

24 the persons arrested sit on the benches where the weapons were, they will

25 be contaminated, too.

1 Q. Can I ask you also whether, speaking about this transfer aspect,

2 can I ask you whether or not you think it is possible that contamination

3 can occur if someone's hands that were eventually tested for

4 nitrite/nitrate particles were hit on by weapons that had recently been

5 fired?

6 A. That is indeed possible. That is a possible source of

7 contamination. It is very likely that when touching a weapon with

8 gunpowder residue on it that you would thus transfer that residue to

9 something else.

10 Q. Could I show you two documents which you also referenced in your

11 report. These are the opinions of the ministry -- actually from the

12 Ministry of Interior, forensic sector, in relation to the paraffin glove

13 tests that you received.

14 MS. MOTOIKE: Could we please show P 00050. It was previously

15 known as 65 ter 15.7. That is 25 of today's hardcover binders.

16 Q. And, Doctor, the English version on the left of the screen, if I

17 could just run through it with you. It says Republic of Macedonia,

18 Ministry of the Interior, criminalistic police, criminalistic technique

19 department. It's dated 27 August 2001. It's addressed to Basic Court

20 Skopje II.

21 And it mentions the names of particular individuals and then it

22 also speaks of the detection of traces of gunpowder particles in the third

23 paragraph. And then it goes on to state: "Seeing as there is a limited

24 number of sources in everyday life of a person where contamination with

25 nitrate particles can occur, their presence of the hands of a person is an

1 indication that that person has fired a fire-arm."

2 The next paragraph reads: "Based on their form, location and

3 positioning, it can be determined with a great probability that these

4 nitrate particles originate from gunpowder."

5 And, Doctor, if I could just ask you: Is this one of the reports

6 that had for review?

7 A. Yes, I did have such a document with that number for review.

8 MS. MOTOIKE: And if can we could please show an additional

9 document. It's P 00050, it's tab 26 of today's binders. Was previously

10 65 ter 15.8.

11 Q. And, Doctor, this particular document reads the same in the

12 left-hand corner. The date is 28 August 2001. Again, it's addressed to

13 Basic Court Skopje II. The subject is additional opinion. And this

14 document, like the other one, goes on to mention names of persons that

15 were tested, and then in the fourth paragraph down it says: "Seeing as

16 there is a limited number of sources in everyday life of a person where

17 contamination with nitrate particles can occur, their presence on the

18 hands of a person is an indication that that person has fired a fire-arm.

19 Based on their form, location and positioning, it can be

20 determined with a great probability that these nitrate particles originate

21 from gunpowder."

22 Do you see that, Doctor?

23 A. Yes.

24 Q. And is this also another report that you had for review in

25 formulating your report?

1 A. Yes, such -- such a document with that number was also reviewed by

2 me.

3 Q. And bearing in mind the last two paragraphs of each of these

4 documents that I just showed you - they read somewhat similarly - can you

5 tell us based on your training and experience, do you have an opinion as

6 to the finding made in these particular paragraphs in these two documents?

7 A. Referring to paragraph 4, I can say that the statement about the

8 presence of nitrate particles being an indication that a person fired a

9 fire-arm is not wrong. But the statement is not complete, because it

10 doesn't take into consideration that there is a number of possibilities

11 for particles to come to a person's hand, I mean gunshot residue

12 particles, without that person ever having fired a fire-arm. So it is not

13 a false statement but it isn't a complete one either.

14 About the last paragraph, which I'm reading here, based on their

15 form, location, positioning, et cetera, about this I can say that this

16 does not correspond to our experience; namely, that using a visual method

17 and a method for proving the presence of nitrate that this -- these

18 methods are suitable for proving gunshot residue. Of course it cannot be

19 ruled out that these particles might be gunshot residue, but if you want

20 to be more certain, you would have to apply analytical procedures of --

21 from chemistry or physics.

22 Q. Okay. And would some of those procedures be the testing that you

23 also indicated as additional testing that could be done, that is the

24 electron microscope, I believe you mentioned?

25 A. The Raster electron microscope is the usual tool of proving the

1 presence of particles of one micrometre, the size of one micrometre. That

2 is the method upon which most international experts rely. When -- and I

3 cannot see anyone or, rather, I don't know anyone who would rely on such a

4 method to prove the presence of gunshot residue. It would be best to use

5 chemical procedures such as a liquid chromotography, so would you dissolve

6 the particles in a liquid and then analyse the ingredients of that

7 liquid. Dr. Stein will be able to say more about that because that method

8 can be used to directly prove the substances present and the liquid

9 analysed.

10 Q. If I could just clarify one part of your last answer, doctor. You

11 said: "I don't know anybody who would rely on such a method to prove the

12 presence of gunshot residue." What method are you speaking of?

13 A. I'm referring to the method of exclusively relying on the presence

14 of nitrate particles without conducting additional analyses to prove

15 whether gunshot residue was present. I don't know any expert who would --

16 who would proceed in such a way.

17 Q. Okay. Doctor, if I can draw your attention now to 15 January

18 2007, did you prepare an additional report regarding your expert opinion

19 on three particular weapons that were received from the Macedonian

20 Ministry of Interior which were handed over to you by the Office of the

21 Prosecution?

22 A. Three weapons were sent to me, and I wrote an expert opinion about

23 those dated 15th of January, 2007.

24 MS. MOTOIKE: Could we please display 65 ter 1040. It is located

25 at tab 27 of today's soft binders.

1 Q. Doctor, the report I believe you're referencing is displayed on

2 the screen here. Do you see that?

3 A. Yes.

4 Q. And is this the report that you prepared?

5 A. That is the first page of the report that I wrote, yes.

6 Q. And did this particular report contain your opinion as to

7 comparisons that you made between these three weapons that were handed

8 over to you and weapons which were depicted in a video that was also

9 provided to you by the Office of the Prosecutor?

10 A. Correct. The exhibits were accompanied by a CD containing a

11 video-clip and in that video-clip for a few seconds three weapons could be

12 seen.

13 Q. If I could just turn your attention to your report for a second.

14 It appears to have three attachments to this report that contain

15 photographs of the three weapons. Is that correct?

16 A. That is correct. This report, too, did have -- did have

17 enclosures.

18 MS. MOTOIKE: Your Honours, could we please tender this particular

19 report with its attachments.

20 JUDGE PARKER: They will be received.

21 THE REGISTRAR: As Exhibit P424, Your Honours.

22 MS. MOTOIKE:

23 Q. Doctor, you mention a video that was provided to you as well. If

24 I could please show a video-clip to the doctor. Which is P00041.

25 MS. MOTOIKE: Thank you, Mr. Usher. The Time of the clip is 06

1 minutes, 8 seconds to 06 minutes, 21 seconds.

2 Q. Doctor, if I can draw your attention to the screen on your right.

3 There will be a video-clip paying in a second.

4 [Videotape played]

5 MS. MOTOIKE:

6 Q. Doctor, have you seen that this last clip showed three weapons.

7 Do you see that?

8 A. That is correct.

9 Q. And does this video-clip look similar to the one that you reviewed

10 and utilized in making your comparisons to formulate your opinions in the

11 report dated 15 January 2007?

12 A. Yes, I remember this video-clip clearly as shown to me now.

13 Q. Okay. And --

14 MS. MOTOIKE: Thank you very much.

15 Q. And, Doctor, there were three weapons depicted in that

16 video-clip. What kind of identification did you assign to the weapons

17 depicted in the video-clip for purposes of your evaluation?

18 A. We tried to -- to extract still images from that video-clip. We

19 used [indiscernible] that is usually used for such purposes, and these

20 still images then were compared to the picture that I had of the weapons,

21 and then I tried to find similarities.

22 At first I tried to establish whether the weapons were of the same

23 type, and they were. In this case we're speaking about two weapons

24 belonging to the Kalashnikov family of weapons and a submachine-gun

25 belonging to the Thompson family of weapons. So this was -- this was

1 indeed the case.

2 The investigation was continued to -- to focus on the individual

3 characteristics of these weapons, how much detail could be seen, and after

4 this second stage, we focussed on individual characteristics, and thus we

5 arrived at our results.

6 Q. And in your report you reference an upper weapon, a middle weapon

7 and a lower weapon. Is that referencing the weapons as they are displayed

8 in the video-clip that we just saw?

9 A. Yes, that is correct. According to my memory, the video-clip

10 first shows a weapon that is in the upper part of the image. Then it --

11 the camera is moved to the lower weapon, and in the centre there is a

12 Thompson submachine-gun, the barrel of which is more or less parallel to

13 the other two. There was also a weapon, the barrel of which is pointing

14 to the left but it cannot be seen in the -- in the video-clip in full.

15 You can only see the front part, but as far as I remember, the butt cannot

16 be seen in the video.

17 Q. Okay. If we can start with what you termed to be the lower

18 weapon, and you said that you had conducted analysis, a comparison between

19 the actual weapons that were provided to you and the lower weapon in the

20 video-clip.

21 Could you tell us what findings, if any, you were able to make

22 when you compared this lower weapon with one of the -- with the three

23 weapons that you received?

24 A. It can be seen that in the front part of this lower weapon the--

25 the front part of the stock, there -- you can see some things that

1 is -- that are not usually seen in Kalashnikov rifles manufactured in the

2 large series.

3 What I noticed is the fact that this lower part of the front stock

4 is fastened by pins. This is not usual. Then the barrel is -- is

5 manufactured in such a way that it has in steps. That is not usual for

6 Kalashnikov-type weapons. And there are also conic transitions. This is

7 it also not typical of Kalashnikov weapons in their original version.

8 These characteristics were -- could be observed in the weapon that

9 I was given to analyse, especially these steps in the barrel and the pins

10 used to fasten the front stock. It is unknown in other Kalashnikov-type

11 weapons. And this is a strong indication that the weapon I received for

12 examination, and I designated as exhibit 001, from this I draw the

13 conclusion that these two weapons could be identical, but the image -- the

14 image quality is too poor so I cannot say for sure that this -- it is the

15 self-same weapon but there is a strong indication of their identity.

16 Q. And with respect to the upper weapon, what findings, if any, were

17 you able to make with respect to that weapon and the actual weapons

18 provided to you?

19 A. What is conspicuous in the upper weapon is that it has no butt.

20 And furthermore, the upper part of the front end of the stock has a dark

21 line. Also, the rear part on the right side, we can see in the video that

22 there is a spot which is irregular.

23 In the particular weapon provided to me, I observed a clear

24 damaged spot, and it seems to be the imprint of a massive pair of tongs

25 such as used by plumbers. And so this is -- seems like the -- so this is

1 an indication that these weapons are -- could be the ones shown in the

2 video. But here too I must say due to the poor quality of the video I

3 cannot be positive about that. There are indications, however, that we

4 cannot rule out that this weapon, the weapon shown in the video is the one

5 that I examined.

6 Q. And as far as the middle weapon, did you make any findings with

7 respect to that?

8 A. Talking about the middle weapon, I noticed some things, especially

9 on the left part of the -- of the butt. Therefore, conspicuous artifacts

10 that can be seen in the video and they can also be found on the butt or

11 shaft of the weapon provided to me and -- at the same place. On the

12 receiver, on the -- above the -- above gliding parts of the receiver,

13 there is a similar series of lighter and darker lines as seen in the

14 video. It is possible that these are spots with a different reflexiveness

15 that could be the result of corrosive processes.

16 Corrosive processes are highly individual, highly particular, and

17 it is extremely unlikely that corrosion will be exactly the same in two

18 objects. So if these are -- so if these traces are indeed traces of

19 corrosion, then the patterns that will be created would be highly

20 individualised.

21 If we look at the spot on the weapon provided to me, we will see a

22 pattern of lighter and darker lines which corresponds to what can be seen

23 in the video-clip to that effect. So if that pattern was created by

24 corrosion, the pattern that can be seen in the video, then it strongly

25 corresponds to the pattern on the weapon provided to me. If I try to

1 evaluate all these indications, I would say that it is highly likely that

2 the weapon in the video-clip is the very weapon submitted to me.

3 However, there is a certain likelihood that there might be another

4 weapon with -- with such a pattern. I cannot be positive due to the poor

5 quality of the video, but the likelihood is small.

6 Q. Thank you. And, Doctor, were you also asked to examine bullets,

7 bullet cores and bullet fragments that were reported to you to have been

8 found near the bodies of certain deceased persons in Ljuboten?

9 A. That is correct. That was a third request for me to examine

10 bullets and fragments.

11 Q. And did you prepare a report dated 16 April 2007 with respect to

12 your findings?

13 A. Yes. My opinion is dated 16th of April, 2007.

14 MS. MOTOIKE: Could we please show 65 ter number 1041 which is tab

15 31 of today's soft cover binder.

16 Q. And, Doctor, is this report that is displayed on the screen, is

17 that the report that you speak of?

18 A. Yes, this is the letter accompanying the opinion that I sent.

19 Q. Okay. And beyond that letter, do you see the actual report in the

20 hard copy before you?

21 A. Yes, that is correct. The letter -- or, rather, a report was

22 attached to that letter. However, I cannot see it on the screen.

23 MS. MOTOIKE: Could we please display page 2 of this document.

24 Thank you.

25 Q. Dr. Eichner, is the cover page of your report now being displayed

1 on the screen?

2 A. Yes, I can see it now. This is the report that I wrote and it is

3 dated 16th of April, 2007.

4 MS. MOTOIKE: Your Honours, I would seek to tender this report.

5 JUDGE PARKER: It will be received.

6 THE REGISTRAR: As Exhibit P425, Your Honours.

7 MS. MOTOIKE:

8 Q. And, Dr. Eichner, in relation to this particular report, the

9 identification numbers, if we could scroll down a little bit on the

10 English version as well as the Macedonian, please. Actually, it would be

11 page 3 of the Macedonian -- I mean, 2, sorry.

12 Doctor, the report indicates package ERF number and then there is

13 a designation of BA-28, BA-29 on the report. Do you see that?

14 A. Yes, I can see it before me.

15 Q. And these identification numbers that you utilised in your report,

16 were these identification numbers the ones that were provided to you at

17 the time when you received these particular objects from the Office of the

18 Prosecutor?

19 A. I received the ammunition fragments in plastic bags and these were

20 the designations on the bags. The individual bullets were packed in -- in

21 their individual bags and I designated the -- these ERF numbers to them.

22 MS. MOTOIKE: Your Honours, to assist the Chamber, the

23 identification numbers, understanding Dr. Eichner' report, the

24 identification numbers assigned to each ammunition fragment or ammunition

25 is the ICTY reference number assigned by then Office of the Prosecutor

1 investigator Howard Tucker, who will testify pursuant to Rule 92 bis about

2 these particular fragments and pieces of evidence and the chain of custody

3 for such.

4 Q. Dr. Eichner, as part of this particular examination did you

5 conduct comparisons between the bullets -- bullet cores and bullet

6 fragments with the three weapons that you had already received and

7 referenced in your report dated 15 January 2007?

8 A. Yes, I did. I compared the ammunition fragments provided to me to

9 those individual parts of ammunition, and we obtained pieces of ammunition

10 from the three particular weapons and those pieces of ammunitions carried

11 the individual properties of those weapons, upon which we tried to

12 establish whether the ammunition fragments designated with ERF and BA

13 numbers, whether these had the same sorts of marks from which conclusions

14 could be drawn whether or not these fragments were actually fired from any

15 one of these weapons.

16 Q. And were you able to make any conclusive findings with respect to

17 these evaluations that you conducted?

18 A. We were able to draw conclusions from the evaluation, and these

19 conclusions are shown in my report on page 7 in the table, and we came to

20 the conclusion that the Thompson submachine-gun couldn't have been the one

21 from which those fragments were fired because that weapon has a different

22 calibre.

23 This submachine-gun was of calibre .45 ACP and it is impossible to

24 shoot 7.62-millimetre calibre ammunition from it. Neither was it possible

25 to fire 7.92-millimetre ammunition from that submachine-gun.

1 Talking about the Kalashnikov-type rifles, it would have been

2 possible due to the identity of calibre that these ammunition fragments

3 were shot from one of them except for the 7.92-metre bullet because it

4 differs in calibre.

5 As for the fragments of 7.62-millimetre calibre, what can be said

6 is that these weapons cannot be ruled out as the ones from which some of

7 the ammunition was fired, but we cannot be positive for any individual

8 case that they were the ones from which they were fired. Likewise, we can

9 be sure that in certain cases some fragments could not have been fired

10 from these weapons, because we found some class characteristics in these

11 ammunitions that make that impossible.

12 But due to the quality of the ammunition fragments received, we

13 cannot draw a certain conclusion that any one of these weapons was used to

14 actually fire the ammunitions received.

15 Q. Thank you, doctor.

16 MS. MOTOIKE: Thank you, Your Honours. I have nothing further.

17 THE WITNESS: [Interpretation] Thank you.

18 JUDGE PARKER: Thank you very much.

19 The questions arises - I'm not sure whether I'm looking at

20 Mr. Mettraux or Ms. Residovic; I see Mr. Mettraux - whether it would be

21 practical to spend the next seven or eight minutes or whether we should

22 have a break now and resume and commence.

23 What would you suggest, Mr. Mettraux?

24 MR. METTRAUX: Perhaps we'll ask for a break, Your Honour.

25 JUDGE PARKER: We will do that then and have the first break now.

1 We will resume at ten minutes past 4.00 for Mr. Mettraux's

2 cross-examination of Dr. Eichner.

3 Thank you.

4 --- Recess taken at 3.35 p.m.

5 --- On resuming at 4.13 p.m.

6 JUDGE PARKER: Mr. Mettraux.

7 Cross-examination by Mr. Mettraux:

8 MR. METTRAUX: Thank you, Your Honour, and good afternoon.

9 Q. Good afternoon, doctor. My name is Guenal Mettraux and together

10 with Ms. Edina Residovic, I'm representing Mr. Boskoski. Doctor, we've

11 received your reports and we've had time to consult those carefully, so I

12 just would like to put a number of propositions to you with a view to

13 limit the scope of our discussion. Do you understand?

14 A. I hope so.

15 Q. Very well. Is that correct, sir, that your evidence is that the

16 paraffin glove is a rather unreliable test to detect gunpowder residue and

17 that, in fact, it is reliable only insofar as it detects nitrite

18 particles. Is that your evidence?

19 A. Not even that. If you use the paraffin test with diphenylamine,

20 then there are other substances which could cause a positive reaction.

21 Q. Yes. And you've indicated also that the nitrite particles that

22 could be detected by the diphenylamine chemical reaction into not only

23 gunpowder but also other substances including I think you've indicated

24 some kinds of pickled food. Is that correct?

25 A. Yes, that is possible. Nitrates are found in substances which are

1 not related to gunshot residues.

2 Q. Is that correct, also, Doctor, that the chemical reaction with

3 diphenylamine is used generally in combination with a visual analysis or

4 visual identification of the particles that have been identified

5 chemically. Is that correct?

6 A. That's what I understood from the reports from Macedonia, that

7 they carried out not only the chemical analysis but also a visual

8 analysis, whatever they understand by that.

9 Q. And that visual analysis could be done, for instance, with an

10 optical microscope. Is that correct?

11 A. Yes, of course. But I do not know how the investigation was

12 carried out.

13 Q. But you will agree if that were indeed the method that had been

14 used, that is, an optical microscope their quality, so to say, of the

15 conclusion or analysis that would be drawn would be only as good as the

16 expert who's carried out this analysis. Is that correct? In other words,

17 it is dependant on the expertise or experience of the person carrying out

18 the test.

19 A. In all such analyses experience is one of the main factors to

20 maintain quality and give results.

21 Q. And do I also understand your evidence properly that you are not

22 suggesting that the results of the tests carried out by the Macedonian

23 authorities or the conclusion which they draw are wrong; what is your

24 evidence is, sir, is that you take issue with the reliability of these

25 results because of the method used. Is that correct?

1 A. The results of the method or the results in the report are that

2 gunpowder particles are present and this is correct to that extent, that

3 one is drawing a conclusion from a very small indication that it could be

4 that. It is a -- if it is a positive result, the result is very much

5 borderline.

6 Q. And you yourself, Doctor, are not suggesting either way; you are

7 not saying it was or it wasn't gunpowder residue. Is that correct?

8 A. It could be said that way, that a positive result from a

9 diphenylamine test does not necessarily prove the presence of gunpowder,

10 of gunpowder residue.

11 Q. Is that correct, sir, that you would not be in a position yourself

12 to make any conclusion as to the exact nature of the particles because you

13 did not have access to either the gloves or the particles themselves. Is

14 that correct?

15 A. That's not quite what I would say. The fact that I don't think

16 you could draw conclusions here does not stem from the type of test but,

17 rather, from the fact that if the particles were gunpowder particles, then

18 one could not draw any conclusions as to how these particles got on to the

19 hands. That has got nothing to do with the diphenylamine test.

20 Q. I apologise, doctor. I think my question was not very precise and

21 I will have comment on the issue that you just raise. But my question was

22 about your particular ability in this particular case to determine whether

23 or not the particles in question originated from gunpowder. And my

24 question, Doctor, was: Is that correct that you were not in a position to

25 make your own conclusion in this respect, because you had no access to

1 either the gloves or the particles themselves. Is that correct?

2 A. That is not true. The conclusion that no definitive decision can

3 be made about the origins of the particles does not depend on the type of

4 particles, whether they are nitrate particles or not. That is quite a

5 different issue.

6 Q. But would it be correct that the availability of the particles

7 would be one factor for you, in addition to others, to be able to make a

8 definite -- definitive judgement in relation to this matter. Would that

9 be correct? You would need the particles, in other words.

10 A. No. No, that's not true. The presence of the particles here,

11 which contained nitrate, well, the conclusion was drawn here that it was

12 probably gunpowder. This is one possible answer to the issue.

13 Another problem involved here is whether these particles found

14 here derive from the shooting of a weapon from a hand. This is quite a

15 different issue from the first, and this first issue, trying to determine

16 the origin of the particles, whether it is from a gun-shooting hand, is

17 not possible here because the particles were perhaps not sufficiently

18 analysed and it is not possible to draw such a conclusion because the

19 origin of the particles could be from a weapon or could be from some other

20 mechanism. They are two completely different things.

21 Q. Yes. And staying perhaps with the first of these two question,

22 Doctor, the question of the nature of the particle, is that correct that

23 you are not able to say more than it could have been gunpowder and it

24 could have been something else. Is that correct?

25 A. Because of the methods used, one could assume that it is not --

1 cannot be excluded that it is gunpowder residue. But one cannot say

2 anything more than that. This is not proof.

3 Q. Well, I'll come back to this in a minute, sir, but the second

4 question or the second part of the test which you underline, namely the

5 origin or the source of the residue in question, you made the point that

6 the manner in which the particles could have come on the hands of this

7 particular individual could have come from shooting a gun or from

8 otherwise using a gun or from other modes of contamination. Is that

9 correct?

10 A. Yes, that is correct.

11 Q. And in your report you've raised a number of, I should say

12 scientific hypotheses as to how the particles could have come on the hand

13 other than by the shooting of the gun. Is that correct?

14 A. Yes, that is correct. But I would like to add that these are

15 empirical date not scientific data, empirical data gathered over the last

16 few years.

17 Q. I'm grateful for the precision, doctor, because that was my next

18 question. You are not suggesting in your report, are you, that this

19 particular hypothesis would apply to any of the particular 16 tests that

20 were carried out. You are simply assuming that scientifically or

21 empirically, as you pointed out, they are possible explanations. Is that

22 correct?

23 A. There is -- we know of experience that certain distribution on a

24 firing hand could also be produced by other means, other than the shooting

25 of a weapon.

1 Q. And just to come back to my question, Doctor, you were not in any

2 way suggesting that any of the six or so hypotheses which you laid down in

3 your report would apply to any of the particular 15 tests that were

4 provided to you when you prepared your report. Is that correct? You did

5 not in any way suggest that one could be matched with the other. Is that

6 correct?

7 A. I don't know quite how I should say it. The conclusion from the

8 distribution of the particles, the conclusion that could be drawn and was

9 drawn by the Macedonian police, in my view, there is no positive proof of

10 how the -- of the origin of the particles, of how they got there.

11 Q. And my question following on this one would be that it's also true

12 of the other hypotheses which you put forward; you are not claiming that

13 any of those would be the correct explanation in relation to any of the 15

14 tests that were given to you. Those are simply empirical hypotheses. Is

15 that correct?

16 A. You speak constantly about hypotheses. These are empirical

17 experience. They're not hypotheses. Because of the distribution of the

18 particles we see that there are several possibilities to explain the

19 origin of the particles. And more cannot be said.

20 MR. METTRAUX: Your Honour, perhaps before we proceed, if the

21 second microphone of Dr. Eichner could be switched on?

22 There's another matter simply for the record, Your Honour. We

23 have counted 16 tests, 16 persons have been tested for the paraffin, and

24 as my colleague pointed out there are only 15 results available but there

25 have been 16 tests, according to other documents.

1 Q. Doctor, these empirical experiences, as you call them, have been

2 conducted in -- not in the context of this particular case but in the

3 context of other laboratory tests or in the context of other cases. Is

4 that correct?

5 A. Yes, that is true. This is experience from real cases over the

6 last 20 or 25 years.

7 Q. And, Doctor, before we turn to these various hypotheses, I would

8 like to ask you that, is it correct that in addition to the chemical

9 reaction, whether you are using diphenylamine or other chemical products,

10 can be -- the probability is, let's say, that the particular particles in

11 questions are ones of gunpowder origin can be narrowed down and they can

12 be narrowed down by all sort of techniques or mechanism. Is that correct?

13 A. There are technical means nowadays for hands covered with certain

14 types of particles, to draw probabilities about the origins, about their

15 origins as to whether they are gunpowder or not.

16 Q. Is that correct also that some of those methods are more reliable

17 than others. Is that correct?

18 A. It depends on the methods. Tell me the methods you are referring

19 to and I can give you my view.

20 Q. For example, you have indicated the electron scanning method.

21 That would be considered a reliable method. Is that correct?

22 A. The scanning electron microscope is used to investigate all sorts

23 of particles, not only nitrate particles, all sorts of particles to

24 analyse them. That is different from a pure nitrate analysis and is much

25 better than the other test.

1 Q. And you've indicated it doesn't only test the nitrate, it also

2 tests the primary particles. Is that correct?

3 A. The test is not carried out for nitrate on the SEM. The SEM

4 analyses particles as to their contents. We have seen from many gunpowder

5 residue particles that most of the cartridges have specific elements which

6 can be seen under a microscope and the main element in the residue are

7 lead, barium and antimon and there is a certain form to the particles

8 which is typical of residue, gunpowder residue, and this comes from a

9 liquification after a high temperature, a melting of the particles, and

10 there is a large possibility, probability here in such a case that the

11 particles are gunpowder residue if one carries out such an analysis.

12 Q. Am I correct to understand from your words, from the use of the

13 words large possibility and probability that even such a technique would

14 not give you absolute certainty as to the nature and origin of the

15 particles in question. Is that correct?

16 A. That would be correct to the extent that not all particles from

17 gunpowder residue have a high significancy. One has to look for particles

18 which have a high level of significancy and such as would be the case

19 here.

20 Q. So the answer to the question would be that it would not give you

21 an absolute certainty as to the nature of the particle, is that correct,

22 is that your answer?

23 A. There is no absolute certainty in science.

24 Q. Sir, do you know of a test called atomic absorption? Is that a

25 test or a technique you're familiar with?

1 A. Yes. The atomic absorption spectroscopy is another method which

2 is used.

3 Q. Is, it in your view, a reliable mechanism to distinguish between

4 different types of particles and whether in particular those particle

5 could be of gunpowder origin?

6 A. Atomic absorption microscopy has one disadvantage. It can only

7 prove the presence of certain elements. It does not make any conclusion

8 about the form of the particles so -- and the method is very sensitive,

9 but the disadvantage is that the form and shape of the particles is not

10 analysed or investigated at all.

11 Q. I'm grateful for that, Doctor, that was the next set of question.

12 You will agree that indeed the shape or the form of a particular particle

13 is relevant to determining the nature or the possible nature, in any case,

14 of that particle. Is that correct?

15 A. The form of a particle is one thing, but in itself it's only half

16 of what we need. The contents of the particles are also significant.

17 Particles, these particles which have liquified, which has melted can be a

18 result of many chemical processes, so there are two elements. One is the

19 form of the particle, and the other -- and the elements in the -- the

20 contents of the particle.

21 Q. I'm grateful, Doctor. And is that correct that the form of the

22 particle could be established even with a rather less sophisticated

23 mechanism such as an optical microscope. Is that correct?

24 A. It depends on the size of the particle. If we are only dealing

25 with the external form of the particle up to, say, 10 millimetres, then a

1 microscope -- 0.1 millimetres, then a microscope would suffice, but one to

2 ten micrometres, if that is being analysed, then I don't know such a

3 microscope would suffice for analysis. So you do need the right apparatus

4 for the right test.

5 Q. And should the particle in question be large enough to be

6 identifiable with the microscope, Doctor, it would also be able for the

7 expert to determine whether the particle was burnt in whole or in part.

8 Is that correct?

9 A. It is possible with a microscope or at least indications could

10 be -- could be gained. If we see the partially burned forms of the

11 particles, we could see that the particles have been carbonised in part,

12 charred, part of it has been turned into carbon dioxide. You can see that

13 on the surface of the particle, it's a bit darker. The particle looks

14 irregular or burnt in an irregular manner, at least on its surface one can

15 see that. And this can serve as an indication, for instance, that it was

16 a propellant residue because here we also have plastic residue. It

17 wouldn't be simply a propellant.

18 Q. Well, just taking the propellant for a minute, Doctor, if you were

19 to identify propellants that wasn't burned with a microscope, would you

20 then be able to compare such propellant with propellant from ammunition

21 which you would have in your possession, let's say to compare whether the

22 two would match. Is that technically feasible?

23 A. One can always compare things. And if one sees common features,

24 one has an indication that it is -- that it could be the same substance.

25 However, if you know that other substances could have the same external

1 form, other types of particles, then you have to continue, go even further

2 with your analysis.

3 Q. So comparing the two could at least limit the range of possible

4 explanation for the nature of the particles in question. Is that a fair

5 proposition?

6 A. I didn't quite understand your question. Could you perhaps repeat

7 it.

8 Q. Certainly. If -- if the scientist or the expert who would be

9 extracting unburned particles of propellant, would he then be able or she

10 then be able to compare those particles with let's say particles taken

11 from a cartridge or a bullet that hasn't been used with a view to

12 determining whether they could have come from the same source, whether one

13 could be, if you want, from the same origin than the unburned propellant

14 particle?

15 A. Usually the form of partially burnt particles has changed compared

16 to the original form, so direct comparison would not bring about any

17 particular results. We do know from experience that indicators could be

18 one that -- or there would be an indication that if the particles are

19 investigated, we could find out under a microscope that it could be such a

20 partially burnt particle. But there are other plastic particles which

21 burn in the same manner, so, as I have said, if you want to be really

22 sure, you have to carry out further analysis.

23 Q. I'd like to go back for a second to your evidence of a moment ago

24 where you pointed out there were essentially two factors of importance in

25 such analysis - and correct me if I'm wrong in paraphrasing, but you said

1 it was the shape of the particle in question and the content of that

2 particular particle. Is that correct?

3 A. Yes, more or less.

4 Q. And I'll stay for a second with the question of the shape of that

5 particular particle. Is that correct that the determination that would be

6 made of the shape of the particle in question would allow the expert

7 whatever the means used to exclude possible source of nitrate as

8 explanation for the nitrate in question? Is that a fair proposition?

9 A. No, I don't think so. We're talking about two completely

10 different things here.

11 The classes of particles that are -- that are analysed under

12 the -- with the microscope or with a scan microscope are particles which

13 have melted completely and have a size of 1 to 50 micrometres; whereas the

14 particles you're referring to are particles of a 10th of a millimetre size

15 that have not been turned into ash as part of the residue, and here, if we

16 analyse the form, we can see that we cannot exclude an origin as a

17 propellant -- propellant as an origin. You have to analyse the contents

18 of the particles to do this.

19 Q. Sorry. My question, Doctor, perhaps it was not so good. If you

20 were to identify a particular particle and you would be able to look at

21 the shape of that particle in question through a microscope or otherwise,

22 is it correct that this visual inspection of the particle would allow you

23 to say, for instance, this is not a particle coming from salami, for

24 example, which is a sort of nitrate. Is it fair to say that the shape of

25 the particle would allow the expert to at least set aside a number of

1 possible source of nitrate? And I'm not talking specifically about the

2 gunpowder here.

3 A. If we stick to this comparison between gunshot residue and salami,

4 it would probably be possible to make a distinction unless the salami had

5 previously been destroyed by a very strong thermal processing, in that

6 case, yes, you would be right.

7 Q. And, Doctor, perhaps leaving the salami aside for a minute, would

8 you agree that an expert would have conducted that sort of test dozens and

9 perhaps hundreds of times could have developed, let's say, a particular

10 expertise in the ways of identifying particles. Is that a fair

11 proposition?

12 A. The identification or examination of the shape always presupposes

13 experience. You must always know how different types of gunpowder burn.

14 If we're speaking about partly burned power particles it is clear enough

15 that you need some experience because various types of gunpowder burn

16 differently.

17 So if you're experienced, you will, in any case be better able to

18 determine whether you are looking at an indication for the presence of a

19 certain propellant particle.

20 Q. And you have no reason to believe that the expert -- Macedonian

21 experts which carried out these tests were lacking in that sort of

22 experience. Is that correct? In other words, that they had that sort of

23 experience.

24 A. I do not know the Macedonian experts. But I have no reason to

25 suppose that they, during the examination of that gunshot residue, they

1 did not rely on a sufficient experience. I have no knowledge of that, and

2 I'm not trying to insinuate anything of that type.

3 Q. I'm grateful for that, Doctor.

4 MR. METTRAUX: Perhaps before I continue, Your Honour, we have a

5 number of binders or at least one binder for the Judges and for the

6 expert, but I should underline that our very efficient colleague of the

7 Prosecution has already provided you with almost all the documents which

8 are in the binder, but there are two which I believe are missing so we

9 will distribute the binder.

10 Q. Doctor, you will be given another binder.

11 Doctor, what I'm about to ask you to look at is the statement of

12 one of the expert, one of the Macedonian expert whose name you have seen

13 on the documents given to you and who carried out some of the test.

14 MR. METTRAUX: Your Honour, this would be under, and, Dr. Eichner,

15 this is under tab 7 of your binder. And This is Rule 65 ter 2D148. This

16 is the OTP statement of Sylvija Kunovska, 21st and 24th October of 2005.

17 And with the registry's assistance, I would kindly ask to go to

18 the third page of that document. That would be paragraph 6.

19 Q. Doctor, that is page 3 of the statement, the paragraph at the

20 top.

21 Doctor, I will simply read out to you a number of passages from

22 this statement. The First one which is the -- starts at the fourth line

23 on the top of page 3 and it says the following: "The test with

24 diphenylamine is only used as an indication of the possible presence of

25 gunpowder traces. It can confirm the presence of nitrates on a person's

1 hands. Nitrates are also found in fertilisers and other common

2 materials."

3 Doctor, you would agree that this is consistent with what you've

4 said earlier today; is that correct?

5 A. That is correct.

6 Q. And if you look at the next sentence, Dr. Kunovska has said the

7 following: "Therefore, a positive reaction can occur if the hands are

8 contaminated by one of the substance that contain nitrates."

9 And, again that's consistent with what you said. Do you agree?

10 A. Yes, that is correct.

11 Q. She goes on to explain the following: "However, the appearance

12 and form of nitrates in gunpowder is different from the appearance and

13 form of nitrates found in other substances, and the experienced forensic

14 expert can tell the difference. For example, between nitrate traces left

15 by gunpowder and nitrate traces left by some other material," and again in

16 view of what you said before, you have no reason to take issue with the

17 assertion of Dr. Kunovska. Is that correct?

18 A. I understand this to mean that Ms. Kunovska does not doubt this.

19 But let me read it in full before I answer your question.

20 Q. [Previous translation continues] ...

21 A. [In English] Thank you.

22 Q. Doctor, there are other passages in the statement which I would

23 like wish to show you at a later stage.

24 A. All right. Well, first, about this statement. Yes, I'm actually

25 quoting this document. It is the sentence that starts with: "I think that

1 the courts in Macedonia treat the tests, et cetera, [In English] with

2 diphenylamine only as an indication of the presence of gunpowder traces on

3 a person's hand, not as definite proof of the presence of gunpowder."

4 [Interpretation] I can support this statement. This is a correct

5 statement of -- what is described here is an indication indeed, although

6 not a very strong indication.

7 Then Ms. Kunovska continues to -- continues with the statement

8 about the form and shape of the particles. I would say that due to the

9 fact that many plastic materials can burn in the same manner, this can

10 also be an indication that you're looking at gunshot residue. However,

11 with such tests, you cannot arrive at certainty. But each consecutive

12 test will raise the level of certainty. But you will always remain in the

13 area of indications.

14 Q. But you would agree that at least Ms. Kunovska considered that her

15 visual abilities would allow her to raise the level of certainty as to the

16 nature of the particles she was asked to look at. Is that correct? On

17 the basis of the statement that have you in front of you?

18 A. Visual observation certainly can raise the level of certainty.

19 Every examination that does not result in contradictions to what has been

20 established before will contribute to the significance.

21 Now, the question is how high that significance is. Not very

22 high. But there is a certain possibility that you're indeed looking at

23 gunpowder residue.

24 Q. And you have no reason to challenge the statement of Ms. Kunovska

25 that she felt able to tell gunpowder residue from their appearance from

1 other sort of nitrates. You have no reason to challenge her view on that

2 point?

3 A. I would not claim that so strongly. Ms. Kunovska may hold that

4 view. Based on the fact that -- that there is an abundance of

5 nitrate-containing particles that can burn the same way as gunpowder

6 residue, I would be more careful. I think that Ms. Kunovska is offering

7 an indication here that by visual observation you will certainly not

8 decrease your certainty, and her statement that she would be able to

9 distinguish between these two types, but she does not say what

10 significance she would attribute to conclusions based on that, but the

11 diphenylamine test and the visual test certainly can provide indications

12 for the presence of propellant particles but not more than that.

13 Q. You would agree also perhaps with me, a person like Ms. Kunovska

14 who might have applied the test of the paraffin glove test followed by

15 visual inspection perhaps dozens or even hundreds of time might have

16 developed a particular expertise or particular ability in that regard.

17 You would agree with that?

18 A. I have no reason to doubt that Ms. Kunovska has great experience

19 in judging how gunpowder residue particles burn. Everybody who works in

20 this field has collected great experience during their years, so I'm sure

21 that is the case with her too. I have no reason to doubt it.

22 Q. And from the documents that you were given by the Prosecution and

23 that you reviewed for the purpose of preparing your report, you have had

24 an opportunity to see that the experts in Macedonia had taken the view

25 that the shape of the particles in any case were consistent at least with

1 gunpowder residue. Is that correct?

2 A. That is how I interpret this text. I don't doubt that they have

3 carry out these tests with all due carry and that they have adequate

4 experience.

5 Q. Thank you, Doctor, for that. And you have also indicated that

6 there would be other factors or other criteria, let's say, that would

7 allow you to perhaps eliminate possible explanations for the source or

8 nature or the particle in question and there's one which I think you have

9 mentioned would be the position of the particle on the hand or the body

10 part that has been tested, is that correct, that the position of the

11 particle, in other words, could be a factor of some relevance to

12 determining the possible nature of the particle?

13 A. I must correct something you said. You said one particle. One

14 single particle, in my view, tells you nothing about the way it came to

15 the hand where it was found. In rare cases, there are -- there is gunshot

16 residue released backward, which allows you to draw the conclusion that

17 the hand on which that residue was found was indeed the hand that fired a

18 weapon.

19 These traces that we call non-diffuse gunshot residue are very

20 rare, and they occur not even in one case of a thousand. So this gunshot

21 residue is analysed and you find mostly hundreds of particles, and they

22 have a certain shape and position. I have presented an example in my

23 report, and this can even result in hard evidence that we are indeed

24 looking at a hand that fired a weapon. In other cases, based on my

25 experience can you only have indications. That is in cases with diffuse

1 gunshot residue distribution, and that cannot used as hard evidence.

2 Q. Well, taking on board your point about the situation where only

3 one particle would be found on the hand, would it be a fair proposition to

4 say that in all 15 cases, in all 15 examples of hands or hand shapes which

5 you were shown by the Prosecution, in all cases, the position of the

6 particle would be either consistent with the use of a gun or, in any case,

7 not inconsistent with such use. Is that correct?

8 A. In the case of the single particles found and that I examined,

9 this is possible. And this is not as inconsistent with the assumption

10 that the hand in question fired a -- a weapon. But you cannot determine

11 with any degree of certainty how that residue arrived on that hand.

12 Q. I will come to that, Doctor, in a minute. But the point you just

13 made or the answer you just gave would also apply to the other -- the rest

14 of the 15 tests which were given to you. In other words, none of the

15 patterns, if you want to call them that, were inconsistent with someone

16 having shot a gun. Would that be fair?

17 A. The distributions as depicted on the 15 sketches submitted are

18 consistent with the assumption that these hands may have fired weapons.

19 Supposing, of course tacitly supposing that those particles indeed

20 originate from gunshots.

21 Q. [Previous translation continues] ... And you have also indicated,

22 Doctor -- I'm grateful for your answer. You have also indicated that

23 another factor which could be of some relevance - and I will come back to

24 this in a minute - would be of some assistance, in any case, would the

25 number of particles which would be identified on a particular hand. Is

1 that correct?

2 A. I established the number of particles. The maximum was three.

3 The number of particles actually isn't a criterion from which you could

4 draw conclusions. It is more the type of distribution that will let

5 you -- allow to you limit the causes of the application of the particles.

6 But when you have so few particles, a certain form cannot be construed.

7 We are talking about discrete particle distribution without form, and the

8 problem here is that given such a distribution with that form, you cannot

9 limit the possible or delimit the possible causes.

10 Q. So a rule of thumb, for what it's worth scientifically, would be

11 that the more particle, the easier in principle it would be for the expert

12 to determine the exact nature of the particle. Would that be correct?

13 A. That would certainly be conducive to that goal. If you have a

14 great number of particles, you can distinguish between diffuse and

15 non-diffuse distributions, but if you have a small number of particles, a

16 discrete distribution with great distance between the individual

17 particles, I must say that an identification is not possible.

18 Q. Is it also correct that in practice it would be possible to shoot

19 with a gun without any particles appearing on the hand of the shooter. Is

20 that correct?

21 A. In very rare cases that is possible. It always depends on the

22 threshold of a certain method. On every weapon, as a rule, you can find

23 certain residue particles, because residue is like dust. Dust is

24 everywhere you look. And the same applies to gunpowder residue on weapons

25 that have been fired at some time or another. It always depends on the

1 sensitivity of the method applied. And on one hand, the weapon may have

2 been cleaned well, then the method may not be all that sensitive or

3 possibly -- for other causes the result of an examination may be

4 negative. There, you -- I must admit you're right.

5 Q. So that would depend -- I mean, you've indicated, let's say, the

6 scientific side of things but looking at it from the other side, you would

7 agree that the presence or absence of particle or the number thereof would

8 also depend on the type of weapon that is being used and ammunition. Is

9 that correct?

10 A. Tendencies are discernible here, namely in various weapons

11 systems, the release of -- of gunshot residue can be greater or smaller.

12 In pistols, for example, if we compare those to other weapons where the

13 chamber does not open automatically after firing a cartridge, there, the

14 quantity of -- of gunshot residue released would be much smaller.

15 Q. You're giving a hard time to the interpreters.

16 Is that correct, sir, after a certain period of time the particle

17 that would have contaminated a particular part of body would naturally

18 fall off. Is that correct?

19 A. That is correct. Particles released by firing a cartridge or in

20 any other way connected to shooting or are applied to hands with a good

21 probability will fall off. Even the relevant times have been investigated

22 into. After a few hours, even without washing your hands, the particles

23 will fall off due to any other activity that do you with your hands.

24 Q. And one of the factor relevant to the length of time that it would

25 take for the particle to fall would be the velocity with which the

1 particle came to the hand. Is that correct?

2 A. I do not think there's a link there. The time-frame we are

3 discussing is the time after firing a shot. Let us suppose that a person

4 fires a weapon. On that person's hand, after a few hours, let's say six

5 hours, you would only find few particles, and after ten hours, it is well

6 known that you could not -- you could no longer find particles on that

7 person's hands, at least not using the current methods.

8 Q. There would be all sorts of intervening factors which could play a

9 role in the quicker elimination of the particles such as let's say the

10 rain or the person washing his or her hands. Is that correct?

11 A. Yes, of course. Anything which disturbs these particles which are

12 not stuck -- stuck hard on to the surface, anything could influence them.

13 So this is a latent indication that things will change.

14 Q. And is it possible also, Doctor, that the relatively limited

15 number of particles which were mentioned on the drawings which you were

16 shown is the result of the particular working methods used by your

17 colleagues from Macedonia?

18 A. I think that the use of wax has transferred the particles from the

19 skin with success and I think that the folio that we use or alcohol or

20 other tests that we use -- well, I think that the particles, the transfer

21 of the particles with wax is successful in removing most of the particles

22 from the surface of the skin.

23 Q. What about the later part of the process, sir, is that possible

24 that the local expert would exclude from their analysis or, rather from

25 their conclusions a number of particles which were indeed detached by the

1 chemical reaction but which they could not positively identify as

2 gunpowder? Could that be the reason for the limited numbers of particles

3 on the drawings?

4 A. It could be a reason, it could be. But it could also be a reason

5 that particles were hidden by the wax, but we can't know that. Normally

6 wax and other materials which have been solidified are satisfactory for

7 removing particles. Ninety percent of them can be -- of gunpowder residue

8 can be removed from pores by this method, so the detection of the

9 particles is usually okay. Whether this was perfect in this case, I don't

10 know, with the diphenylamine process.

11 Q. Well, perhaps to help us decide which one of the two explanation

12 are the perhaps more likely in this case, I'd like you again, Doctor, if

13 you could, to look at the same statement of Ms. Kunovska. And it is it on

14 the same page.

15 MR. METTRAUX: For the registry's benefit, it's still Rule 65 ter

16 2D148 at page 3.

17 Q. And, Doctor, I'll ask to you look at paragraph 7 of that statement

18 where Ms. Kunovska was asked to look at particular results of Mr. Farush

19 Mehmedi, which is, I understand, one of the results that was also given to

20 you.

21 A. Could I have a moment here so that I can read the passage in

22 question.

23 Q. [Previous translation continues] ...

24 Doctor, I will read for the transcript the relevant page of this

25 paragraph. It starts with the word however. Five line from the bottom of

1 that paragraph.

2 Dr. Kunovska says this: "However, if the expert performing the

3 analysis does not think that the nitrate particle came from gunpowder,

4 most probably he or she will not mark the particle on the sketch of the

5 hand or mention it in the result. That depends on the forensic expert.

6 My report from 17 August describe the positive reaction for nitrate."

7 So again, Doctor, if one relies upon the statement of Ms. Kunovska

8 for that purpose, you would agree that perhaps one of the factor which

9 played a role in the limited number of particle on the sketch is the fact

10 that some experts in Macedonia would only identify on the sketch those

11 particles which they have positively identified as gunpowder. Is that

12 correct?

13 A. I don't know.

14 Q. I'm grateful, and that was a fair enough answer.

15 Doctor, you would agree that, in practice, the test as applied by

16 the Macedonian experts came in two phases. The first one which you have

17 already explained was to review for each and every paraffin glove test the

18 nature of the material in question, and at a later stage the experts were

19 asked to draw certain conclusion on the basis of the entirety of the

20 record as to what this could be. Is that agreeable to you?

21 A. Yes, that's what I understood from the documents.

22 Q. And there's a particular document, Doctor, which I would like to

23 show you which is one of the documents that was given to you by the

24 Prosecutor.

25 MR. METTRAUX: It is, Your Honour, and, Doctor, under tab 8 of

1 your binder. This is Rule 65 ter 69 and it has an ERN N000-0021. The

2 Macedonian version would be N000-0017.

3 Q. Doctor, do you recall being given a copy of that document by the

4 Prosecution?

5 A. I don't remember such a document. At least not -- oh, sorry.

6 THE INTERPRETER: Interpreter's correction: I do remember such a

7 document.

8 MR. METTRAUX:

9 Q. I'm grateful. As can you see from this document, it registered

10 the names of the 33rd persons or villagers who were subjected to the

11 paraffin glove test. Is that correct?

12 A. I remember this document, yes.

13 Q. And is that correct, Doctor, that the 33 names which appear on the

14 first page of that document are the names of the people who were subjected

15 to the paraffin glove test by the Macedonian authorities?

16 A. I would have to check all the information to tell you, but I would

17 assume you are right here.

18 Q. And --

19 A. But I would need to check it.

20 Q. I'm grateful, Doctor, for your confidence.

21 MR. METTRAUX: Simply for Your Honour's assistance, the names

22 which are underlined in the list are those which have been tested positive

23 to the paraffin glove test, as is apparent from the following paragraph

24 and the next page.

25 I'd kindly ask the registry to turn to the second page of that

1 document, please. That would be further down the page in the Macedonian

2 version -- no, that's -- that would be N000-0022, please. Thank you.

3 And in the Macedonian version, that will still be the same

4 document, the same page.

5 Q. If I can draw your attention, Doctor, to the sentence which follow

6 the list of names. Can you see that in the paper copy or the electronic

7 copy which starts with the word: "The location of the found."

8 Can you see that?

9 A. Yes, I can see that.

10 Q. And he says -- it says: "The location of the found gunshot

11 residues is given in the pattern attached," and there follows a number.

12 Do you recall registering your disapproval of this finding?

13 A. Just a moment, I have to read this again.

14 I don't remember that I did not agree with these three

15 paragraphs. What is said here is simply that gunshot residue was found

16 and that on the enclosed pictures they were noted, the residues were

17 sketched on to the pictures.

18 Q. And in your --

19 A. And nothing else is said here.

20 Q. And in your report, Doctor, you pointed out that in fact the mere

21 subjection to the paraffin glove test would reveal not the presence of

22 gunshot residue per se but the presence of nitrite particles. Do you

23 recall saying that?

24 A. The reaction with diphenylamine is -- or shows the presence of

25 nitrates. But a reaction could occur with other non-nitrate substances.

1 Q. And if these documents had mention that on the location was found

2 nitrate particles instead of gunshot residues, you would have agreed with

3 the sentence. Is that correct?

4 A. If the wording had been "indications of nitrate deposits," then I

5 would agree. But it would have been helpful to say what substances aside

6 from nitrate could result, could cause a reaction here.

7 Q. Doctor, I don't mean to torture you with that document.

8 MR. METTRAUX: Your Honour, it is simply to bring to the attention

9 of the Chamber that the English translation is inaccurate and that the

10 Macedonian version refers to nitrate particles as the doctor agreed with

11 in a way in this sentence I have read to the doctor as well as in the

12 following sentence, and that the translation as gunshot residues in those

13 two sentence is inaccurate and that point was also made by Dr. Kunovska in

14 her own interview with the Office of the Prosecutor at paragraph 3. And

15 among the disclosure there is also a memorandum by the Prosecution

16 highlighting the fact that this translation is in fact wrong and could be

17 in fact be misleading, so we would simply suggest that the translation --

18 or that CLSS be asked to re-translate this document to reflect the

19 accurate content of the Macedonian version.

20 Q. Doctor, I have a question perhaps which is more in the field of

21 statistics than pure forensic science. But would you be able to say in a

22 random population how many people would test positive to nitrate

23 particles, if the paraffin glove test with diphenylamine chemical

24 reaction? Are you aware of any studies or any discussion of that matter?

25 A. This would be have to be tested, but I do not know if any such

1 tests having been carried out.

2 Q. Are you aware of any approximate figure in that regard, or is it

3 simply a matter that you don't know about?

4 A. I do not know of any such tests.

5 Q. And we've already discussed earlier, is it correct that after the

6 Macedonian experts had given their views about each and every one of the

7 particular tests, they were then asked by the Court to provide an overall

8 assessment as to what they believed to be the particles in question, what

9 they believed those particles were made of?

10 A. Could I read your question once more.

11 Q. Well, the question was too long and not particularly clear. I

12 will phrase it again.

13 MR. METTRAUX: Perhaps after the break, Your Honour.

14 JUDGE PARKER: If you think that will help restore you,

15 Mr. Mettraux.

16 MR. METTRAUX: It might.

17 JUDGE PARKER: It's poor Dr. Eichner who will need the break, I

18 suspect.

19 We will have the second break now and resume at five minutes past

20 6.00.

21 --- Recess taken at 5.31 p.m.

22 --- On resuming at 6.06 p.m.

23 JUDGE PARKER: Mr. Mettraux.

24 MR. METTRAUX: Thank you.

25 Q. Doctor, I'd like to turn your mind to the second part of the --

1 let's say the -- the second phase of the process followed by the

2 Macedonian authority and that's the time when having rendered their

3 initial report that there had been 16 positive reaction to nitrate

4 particles, they were then asked by the Court to state their view as to

5 whether these particles could or couldn't be considered as gunpowder

6 residue. Do you recall that?

7 A. I'm not sure now which report you're referring to. You mean

8 the -- the report where the Macedonian experts --

9 Q. I have lost the translation, but I was talking in general terms,

10 sir, about the process or the procedure which had been followed by the

11 Macedonian authorities in this matter. I wasn't specifically relating to

12 your report.

13 Do you recall that that's the course, in fact, that the Macedonian

14 authorities followed?

15 A. That is correct.

16 Q. And is that a correct understanding that to do so, the Macedonian

17 expert looked at, if you want, the ensemble or the group of reports which

18 they had prepared and considered the matter as a whole to give their

19 opinion to the Court? Is that the way you understand it as well?

20 A. I suppose that you mean this report here in front of me from your

21 binder. Is this the report you mean?

22 Q. Well, Doctor, I will direct you to one of those report, if you

23 wish. That would be report under tab 14.

24 MR. METTRAUX: Your Honour, this is part of Exhibit P47 and it has

25 an ERN of ET-0463-8982-01 and the Macedonian equivalent would be

1 0463-8891-092.

2 Q. Doctor, this is again one of the documents which was given to you

3 by the Prosecution to prepare your report.

4 A. I remember this phrasing. I cannot see the number I received, but

5 I remember the phrasing from the other reports I received.

6 Q. And indeed there were two similar reports or two reports that look

7 similar. But the question is, Doctor, is that correct what the

8 authorities did in this case is to consider, if you want, to consolidate a

9 group of individual reports which they had made in relation to particular

10 individual and to give their opinion as to whether, as a group, those

11 could be considered to be consistent or whether or not those could be

12 regarded -- those particles, that is, could be regarded as gunpowder

13 residue?

14 A. These reports state that, as they put it in the last paragraph and

15 this also is the gist of all other reports -- let me now quote in English:

16 [In English] "Based on their shape" - it's here in English - "form,

17 location and dispersion, it can be confirmed with a large possibility that

18 the above-mentioned particles have gunpowder."

19 [Interpretation] This is a different phrasing with a similar

20 meaning as in the reports that I was provided. So it isn't a verbatim

21 match but the meaning is the same.

22 Q. That's correct, Doctor. We believe that one of the documents

23 refer to a large possibility whereas the one refers to a large probability

24 and it may indeed be only a translation mistake.

25 Is that correct, however, that this finding or this conclusion

1 which is drawn by the expert in this particular report refers to the

2 result as pertained to the eight individuals which are mentioned in the

3 first paragraph of that report?

4 A. I would check that -- I would have to check that in detail,

5 whether these are indeed the persons mentioned in the report that were

6 provided to me. But I suppose that you already checked that, because I

7 would have to check it now and I couldn't answer a question as I stand.

8 Q. Well, the question, Doctor, is more of a scientific technique or

9 scientific method I'm interested in. Is that correct that it is an

10 acceptable scientific method in general to evaluate let's say a number of

11 items together as a whole which you have studied, as you did, for

12 instance, in your own report about three guns.

13 Let me perhaps explain that further. If you have identified

14 different object, it would be scientifically acceptable to then consider

15 them as an ensemble, as a group, to see whether the probabilities of a

16 particular result are higher rather than lower. Is that correct?

17 A. Yes, of course. This approach is always legitimate.

18 Q. And what appears to be the case from this report is that, in fact,

19 the course that was followed by the Macedonian expert considered the

20 results of those eight individuals as a whole, is that correct, on the

21 face of this document?

22 A. That may depend on the circumstances, how and what relations those

23 persons were among themselves. If you select at random eight persons from

24 a larger group at different places and try to group them together, then

25 you will have fewer results than -- than when you have eight neighbouring

1 persons with the same pattern of movement and behaviour in the past. In

2 that case, such an approach would make sense, or could make sense, and

3 would be more significant.

4 Q. And would it be correct or a correct way to understand this

5 document, to see that the experts who were asked for their opinions took

6 those factors into consideration and using their own professional and

7 scientific expertise or experience came to the conclusion which you have

8 read out in the last paragraph. Is that what seems to have happened in

9 this particular case?

10 A. Which paragraph are you referring to, the last one? But where do

11 you see the approach that these findings were grouped? I haven't found

12 that.

13 Q. Well, that wasn't my original question, Doctor, and if you look at

14 the first paragraph of this document you will see that there is a list of

15 names that are mentioned and those are a part or a group of the people, of

16 the 16 people which were mentioned in the previous document that were

17 shown to him. And as appears to be the case in this document, this -- the

18 foils that were the result of the particle test were considered by this

19 expert, Mr. Uslinkovski and another expert as a group. Do you have any

20 reason to believe that it's not the case, Doctor?

21 A. No. I just -- I'm not yet familiar with this document, so please

22 allow me to search for this alleged conclusion by Ms. Kunovska, because I

23 haven't been able to find it yet.

24 Q. Well, Doctor, there is a very similar document, if you can turn to

25 the next page of your binder, that may assist you. This is a similar

1 document.

2 MR. METTRAUX: Your Honour, it is part of exhibit P50 and it has

3 an ERN ET-9002-0184-1. And the Macedonian would be N002-0084-101.

4 Q. If you look at the bottom left, Doctor, you will find the

5 signature or, in any case, the name of Ms. Kunovska.

6 A. That is correct.

7 Q. And is that correct that on the face of this document it would

8 appear that in fact the report, this particular report as opposed to the

9 individual report prepared together considered, if you want, the results

10 of the nitrite particle test, the diphenylamine test, as a group in

11 relation to the eight particular individuals which are mentioned in this

12 document. Is that correct?

13 A. I do not yet know such a document. But perhaps you can help me by

14 indicating the precise spot where Ms. Kunovska is -- is making such a

15 conclusion.

16 Q. Well, if the witness can be shown, once again, the document which

17 is Rule 65 ter 2D148. That is under tab 7, Dr. Eichner. This is in your

18 binder, tab 7.

19 MR. METTRAUX: And if the registry could go to page number 3 of

20 that document.

21 THE WITNESS: [Interpretation] Yes, I can see it now. And maybe

22 you can now show me the spot where Ms. Kunovska summarizes in this

23 fashion.

24 MR. METTRAUX:

25 Q. I will read the last two sentences of this paragraph for you. It

1 says: "We concluded that on the basis of the form, distribution and

2 location of these nitrite particles, it can be confirmed with great

3 probability that these nitrite particles originated from gunpowder. We

4 base our scientific opinion on the result of forensic analysis such as

5 that provided for Mehmedi Farush described above in our professional

6 experience."

7 A. That is correct.

8 Q. So would you agree with the proposition, sir, with what appears to

9 have happened in this particulars case is that indeed Ms. Kunovska and her

10 colleagues, once they had given individual views about individual results,

11 were then asked and gave their opinion as to two particular groups of

12 tests considered as a whole, is that correct, does that appear to be

13 consistent with the evidence or the information of Ms. Kunovska?

14 A. I think that this approach is something that can be considered,

15 but I cannot find it anywhere. Maybe you can point out that sentence to

16 me where Ms. Kunovska summarizes the results for several persons. I do

17 not know this document yet, but you certainly know it very well.

18 Q. Well, sir, we would have to go answer to tab 15, please.

19 MR. METTRAUX: And for the registry's benefit, this would be

20 Exhibit P50 with an ERN ET-N002-0184-1. And the Macedonian version would

21 be N002-0084-101.

22 Q. And, Doctor, the conclusion which I think you are seeking and

23 which you reprinted in your report is the last paragraph in that

24 particular document starting with the word: "Based on their form."

25 Can you see that?

1 A. Yes, that is correct. This sentence is -- can be considered a

2 conclusion from the reports that were provided to me. I -- but I

3 interpret it as applying to one particular person, but because the text

4 that I read so far does not allow for other conclusions, I think that,

5 however, that it may be justified to form groups in order to check the

6 significance or validity of a certain result.

7 As I said, this is a legitimate approach, but I cannot find this

8 approach in Ms. Kunovska's text. I understand this to mean that she's

9 referring to individual results pertaining to individual persons. She

10 never mentions, Ms. Kunovska never mentions summaries, so that's why I

11 don't understand the basis for this interpretation of yours. I repeat,

12 that I consider this approach to be legitimate, but I cannot find it here.

13 Q. But you would agree that based on the statement of Ms. Kunovska

14 and the fact that she use the plural in the last sentence of that

15 paragraph where she referred to the results, as opposed to the result,

16 it's at least upon to interpret the document which is now in front of you

17 and the finding which is in the last paragraph as a finding which pertains

18 to a group of individuals and a group of findings rather than to

19 individual findings. Do you agree that it's a reading that is open?

20 A. I suppose that can't be ruled out.

21 Q. And just before I turn to a number of other matters, sir, and to

22 wrap this in a sort of a summary form, would it be correct that what

23 appears to be the case from this document and from other parts of what was

24 read to you earlier, there's a number of indication, if you wish, that

25 have been taken into account by the authorities to come to the conclusion

1 that they have, that this was probably gunpowder residue. And I'm going

2 to put each and every one of them to you and you will tell me whether you

3 agree or not that this was indeed a factor of relevance.

4 The first factor which the authorities appear to have taken into

5 account to come to that conclusion was the fact that indeed there was a

6 positive result to diphenylamine which is an indication of the presence of

7 nitrate. Is that one of the factor which they appear to have taken into

8 account?

9 A. This conclusion was drawn from the reports, at least based on the

10 text that was provided to me. But Ms. Kunovska herself did not confirm

11 that, did not corroborate that. In her letter, under 7, she says that she

12 does not refer to gunshot residue but to nitrate particles.

13 Q. And my question was precisely this, sir: Although the presence of

14 nitrate particle would in no case be sufficient to conclude that this

15 indeed is it gunpowder, that would at least be one factor pointing in that

16 direction. Is that correct? Point in that possible direction, in any

17 case.

18 A. Certainly. The presence of nitrate is an indication of a small

19 value, but it is an indication for gunshot residue, just like other

20 nitrate particles, and other particles that test positively with

21 diphenylamine. But, yeah, it is an indication.

22 Q. And another indication which the authorities appear to have taken

23 into consideration is the form of the particle in question, and again you

24 will agree that this is an indication or a possible indication that the

25 particle in question was indeed gunpowder. Is that correct?

1 A. That is correct. It is an indication. However, you would have to

2 see that in the context of particles that burn similarly, such as TNT.

3 When TNT burns you get very similar structures and particles, particles of

4 a very similar shape, and it is extremely difficult to keep them apart.

5 Those are not particles that are gunshot residue.

6 Q. We're going to come to the TNT in a moment, Doctor. I'd just like

7 to go through these factors at first.

8 Another factor which the authorities mention as being relevant to

9 their assessment is the location on which the particle was found, and

10 again I think you have agreed that the location might indeed assist the

11 expert in determining whether the particle in question could be gunpowder

12 or not, although you have indicated that in some cases the value of this

13 could be quite limited. But, as a matter of principle it could be

14 relevant. Do you agree with that?

15 A. Yes, certainly. The presence of nitrate containing particles is

16 always an indication. But a mere indication; no more than that.

17 Q. And another indication which you've mention is the positioning or

18 dispersion, to use a more technical term, of the particles in question.

19 Is that correct?

20 A. That is correct.

21 Q. And another consideration which would be legitimate from a

22 scientific point of view would be to take into consideration the

23 consistency or similarities between various results of individual tests.

24 Is that correct?

25 A. It is certainly permissible to act in accordance with such an

1 approach and to draw conclusions from that. Yes. That is a legitimate

2 approach.

3 Q. And would the high percentage of positive result be also of

4 assistance to an expert who would wish to make determination or draw

5 conclusions about the nature of the contamination?

6 A. I'm afraid not much. There's always a certain amount of

7 uncertainty when you're faced with indications alone, because you could

8 draw the conclusion that all persons had the same substance on their

9 hands, but without a more detailed test, you cannot prove that, and you

10 must also allow for different conclusions, such as that those were

11 actually nitrate particles of a different type.

12 Q. I will come to your empirical hypothesis which I have called. I

13 think you have found a better term. But would it be correct to say or to

14 conclude that all of the factors which I have mention to you and which

15 appear to have been taken into consideration by the Macedonian authority

16 were all consistent with their findings or at least were not inconsistent

17 with the finding they've made. Is that correct?

18 A. One could say that the results of the Macedonian police are

19 consistent with all the hypotheses in my report.

20 Q. But would it be correct, Doctor, that all the factors, the

21 presence of nitrate, the shape, and all of the other factors which I have

22 mentioned to you, all of them were either consistent with the finding made

23 or, in any case, not inconsistent with the finding made by the Macedonian

24 authority. Is that a correct conclusion?

25 A. The results as to the presence of nitrate particles can be

1 evaluated as the presence of gunpowder particles, and then there was this

2 next level of interpretation, another level, but insofar, this

3 interpretation is permissible.

4 Q. And the next level which you are indicated was in effect exercised

5 by the expert in their own scientific and professional expertise and based

6 on the criteria which I have listed, they drew the conclusion that in

7 their view, in any case, there was a high probability of the material in

8 question being gunpowder residue. Is that what appears to have happened?

9 A. This conclusion can be seen in the text. That is true.

10 Q. And is that also correct that none of the factor which we have

11 listed, whether it be the positive result, whether it be the shape or the

12 structure or the position of the particle, none of those would have

13 militated against the finding made by the Macedonian authority. Is that

14 also correct?

15 A. You mean against the finding that it was gunpowder residue?

16 Q. Well, perhaps I will rephrase it in a better way, which you've

17 used earlier. Is that correct that each factor, whether individually or

18 in combination, increased the probability of the accuracy of the finding

19 made by the Macedonian authorities?

20 A. You are referring to the two levels of the use of diphenylamine

21 and the microscopic analysis, I suppose?

22 Q. Yes, sir.

23 A. Here one could say that the use of diphenylamine with a positive

24 reaction would be a certain indication - not much but a certain

25 indication - for the presence of nitrate particles, or gunpowder residue,

1 the microscopic analysis would be a further indication that the first --

2 that would support the first result. To what extent is supports the first

3 result is an open question. But you are right. These two steps are

4 certainly -- certainly reinforce one another.

5 Q. And that is true of the other elements as well. If -- if the

6 evidence given by Ms. Kunovska or the information given by Ms. Kunovska to

7 the Prosecution, namely that she was able to identify gunpowder particles

8 from the shape thereof, this fact would also militate in favour of the

9 finding which is drawn by the Macedonian authority. You would agree?

10 A. I'm not sure whether it is acceptable to draw a conclusion from

11 the form to -- with certainty or to a large extent that they are gunpowder

12 residue. This is my criticism, because if you see how TNT, the explosive

13 TNT burns, and it is very similar to gunpowder residue, and when it burns,

14 you won't see much difference to other particles, and I'm speaking about

15 visual observation here.

16 Q. But you agree, Doctor -- you have no reason to believe that

17 Ms. Kunovska would not have been able to do that and on the face of her

18 statement she would seem to be able to make that discrimination between

19 gunpowder particle on the one hand and other particles; is that correct?

20 That's what her statement suggests.

21 A. That's the way one could understand it. But in her text, I see

22 that she talks simply about indications, and I assume that Ms. Kunovska is

23 aware that the appearance is not sufficient for full interpretation.

24 Q. Well, I will read perhaps to you once again the relevant

25 paragraph.

1 Ms. Kunovska says this: "The appearance and form of nitrates in

2 gunpowder is different from the appearance and form of nitrates found in

3 other substance."

4 And you would agree, Doctor, that -- and that's paragraph 6, top

5 of page 3, if you want to look at it, under tab 7, you would agree that

6 she doesn't seem to qualify in any way her ability to tell gunpowder

7 residue from any other sort of nitrate particles? It's tab 7, Doctor.

8 A. I would be interested here in knowing from her, from Ms. Kunovska,

9 how gunpowder residue can be distinguished from partially burned TNT

10 visually. If she could do that, then I would be very interested in

11 learning what she has to say about it.

12 Q. Thank you, Doctor. I would like to turn now to a number of

13 hypotheses. I'm sorry if the term is not adequate. I would adopt the one

14 which you propose. I think you've talked about empirical scenarios or

15 empirical proposal. And you've raised a number of hypotheticals, call

16 them that, which could possibly explain the presence of nitrate particles

17 or even gunpowder particles on the hands of the people who were tested,

18 and in your report you list a number of those, and I'd like to go with you

19 through each of those.

20 The first one or the first indication which you give of the first

21 scenario which you consider is the one which would concern the carrying or

22 the handling of a gun by a person who is being tested for nitrate particle

23 and what you state in your report is that the mere handling of a gun or

24 the carrying of a gun or the change of a magazine in a gun could in itself

25 be sufficient to result in nitrate particle being -- contaminating a hand

1 and therefore in a positive result in the paraffin test. Is that correct?

2 A. That's correct.

3 Q. And simply to clarify this matter with you, Doctor, you would

4 agree that the Macedonian expert, when they have drawn their conclusion,

5 have not said otherwise. In other words, they haven't suggested that the

6 persons who had tested positive had shot from a gun as opposed to merely

7 handled or carried a gun. Would you agree with that?

8 A. That is correct. Ms. Kunovska speaks of the presence of gunpowder

9 residue and of an indication that the particles were found on the hands.

10 Thus, there is an indication of the possibility of a shot being made by

11 the hand in question. This is correct. However, there's something

12 missing here in what she says: The fact that there are other

13 possibilities which would bring about this situation. But as to the

14 shooting of a weapon, as she says, as an indication, it is quite possible

15 and quite true.

16 Q. Well, Doctor, perhaps it's an issue of translation. I would ask

17 to you again to go to tab 15, please, of your binder. That would be

18 exhibit P50. It has an ERN ET N002-0184-1, in the English. And

19 N002-0084-101 for the Macedonian version.

20 Again, Doctor, this is the same document with the signature of

21 Ms. Kunovska at the ...

22 And if I may draw your attention again on the last paragraph which

23 contains their ultimate conclusion on the question that was asked of them.

24 Dr. Kunovska and Mr. Uslinkovski say that their conclusion is

25 that "Based on their form, location and position, it can be determined

1 with a great probability that these nitrate particles originate from

2 gunpowder."

3 My question is this. Perhaps it's a misunderstanding as to the

4 answer given, but would you agree that at least as far as the ultimate

5 conclusion is concerned, they do not seem to have taken a view that it was

6 either from a shot or from the handling of a gun that this gunpowder had

7 come on to the hands of the people?

8 MS. MOTOIKE: Your Honour.

9 JUDGE PARKER: Ms. Motoike.

10 MS. MOTOIKE: I apologise for the interruption. But -- sorry,

11 Dr. Eichner. But perhaps there is some confusion in the way that the

12 question was actually translated or the way it was stated, with respect

13 to "ultimate conclusion," because I believe that Dr. Eichner was

14 referring in his prior answer to one of the paragraphs which I think is

15 located in the third paragraph of this particular document, so there may

16 be a confusion accusation as to what the doctor considers to be the

17 ultimate conclusion as opposed to what counsel refers to.

18 MR. METTRAUX: I'm grateful, Your Honour. I will try to clarify

19 that, perhaps.

20 Q. Doctor, could you explain perhaps for the assistance of the Court

21 if and whether you understood Ms. Kunovska indeed to have made a finding

22 that the results were the result of having firing a weapon or whether you

23 understood that she did not make such a finding, and if she has or if you

24 understood her to have done so, on what particular part of the document

25 you understood that she made such a finding.

1 A. I can read her text in the following manner. Or I interpret it in

2 the following way. She sees a possibility that shoot -- firing a weapon

3 could be a possibility for these particles. This is in the second-last

4 paragraph.

5 In the last paragraph, she gives her view of the situation that

6 the nitrate particles found in her analysis could -- can be determined

7 with a great possibility to be from gunpowder. This is what she says.

8 Q. Well, Doctor, could it be read in another way. And I'm going to

9 show you another document to assist you in that respect. Could it be that

10 in fact the finding of Ms. Kunovska, the ultimate finding, to call it

11 that, was that the result or the finding which they made was the result --

12 the finding which was made was simply that the matter appeared to them to

13 be of gunpowder nature and not necessarily that it had resulted from the

14 use of a weapon. And I will draw your attention again to the statement of

15 Ms. Kunovska which is under your tab 7, Doctor, and with an ERN Rule 65

16 ter 2D148 and it is again at page 3.

17 And again, Doctor, I understand that did you not have the benefit

18 of Ms. Kunovska's statement at the time when you prepared your report, so

19 it's not a criticism of you. But I would like to draw your attention to

20 paragraph 8 of that statement, more particularly on the last sentence but

21 one of that paragraph, where Ms. Kunovska concludes this -- state

22 this: "We concluded that on the basis of the form, distribution and

23 location of these nitrate particles it can be confirmed with great

24 probability that this nitrate particles originated with -- from

25 gunpowder."

1 Can you see that, Doctor?

2 A. Yes, I can see the passage.

3 Q. So if that had been indeed or if it is indeed the ultimate

4 conclusion which was reached by the authorities, the Macedonian

5 authorities, you would agree that they would have at least considered some

6 of the hypotheses which you put forward; namely that the contamination

7 could have resulted not only from the shooting of a gun, but from the

8 carrying or the handling of a gun or magazine loaded with ammunition. Is

9 that correct?

10 A. This hypothesis of yours is possible, but I don't see how that

11 derives from Ms. Kunovska's texts here. So I can't really say anything

12 about that.

13 Q. As I mentioned, Doctor, I understand that you didn't have the

14 benefit of Ms. Kunovska's statement, and you agree that to the extent that

15 the document which you had was ambiguous, it is in any case possible to

16 read the finding of Ms. Kunovska to have been limited to the presence of

17 gunpowder as opposed to a finding that this was due to the shooting of a

18 gun.

19 A. I see in her writings that the stress is on residue, on residue

20 from a weapon. To what extent the person in question used a weapon, shot

21 a weapon, I would think are secondary here, in her words. She refers to

22 the possibility and -- but does not refer to other possibilities, but

23 primarily what she says is that there is a presence of nitrate particles,

24 which she interprets as gunpowder residue. That is the essence of her

25 report.

1 Q. Thank you, Doctor. I would like to turn to a second of the

2 scenarios or the hypotheses which is drawn in your report, and you've

3 indicated that another manner in which contamination with nitrate particle

4 could occur or with -- specifically with gunpowder in this case would be a

5 situation where someone would be shot at relatively close range and

6 deposit would attach to the T-shirt or the clothing of that person and

7 another person would then touch the clothing in question. Is that

8 correct? That's another way in which contamination could occur?

9 A. Yes, this is another possibility for contamination.

10 Q. Is that is correct, Doctor, that in order for the T-shirt to be

11 contaminated in the first place, this would mean that the shot was a

12 close-range shot within or under less than two metres distance. Is that

13 correct, approximately?

14 A. The probability of -- of contamination un -- under two metres is

15 possible but not more. And I would assume that the test -- that the

16 diphenylamine test is not sufficient to detect such microscopic particles

17 being transported through the air, because they're very small, and I don't

18 think that one could come to such a conclusion here. But one cannot

19 exclude the possibility of air transport of the particles.

20 Q. And perhaps to follow on your last comment. Did you have

21 information in the material that was provided to you by the Prosecution

22 that this particular type of transfer of particles could have occurred in

23 this particular case in any of the 15 case that you have reviewed? Do you

24 have any information or did you have any evidence that this could have

25 happened in any of those cases?

1 A. No.

2 Q. You've also indicated that another manner in which transfer of

3 nitrate particles could occur would be in a situation where an individual

4 would touch with his hand, for instance, an object that is itself

5 contaminated with nitrate particle or gunpowder, is that correct, is that

6 a mechanism of transfer?

7 A. This is another possible mechanism of transfer, yes.

8 Q. Is that correct that the particle in question would attach to that

9 part of body with which the person would touch the contaminated object.

10 Is that correct?

11 A. That is correct. The first contact would mean that the particles

12 were on the place of original contact.

13 Q. And if for instance an individual were to grab with his hand let's

14 say the piece of a shell or a piece of shrapnel, the residue, if you wish,

15 would attach to that part of the hand which has touched the shell or the

16 shrapnel in question. Is that correct?

17 A. The greatest density would be here, one would expect it here, of

18 contact, yes.

19 Q. And that would mean in the example given of someone touching a

20 piece of shrapnel with his hand, you would expect to find the residue on

21 the inside of the house -- on the inside of the hand. Is that correct?

22 A. We don't know how a person might have had contact with shrapnel

23 from a grenade. It could be with the hand, it could be another type of

24 contact. But you are right, where the first contact is, with the skin, is

25 where the greatest density of particles will be. That is true.

1 MR. METTRAUX: Your Honour, perhaps for the benefit of everyone,

2 I'm about to launch into a relatively lengthy, in any case a ten-minute

3 part of the cross-examination and I was wondering whether the Court would

4 be willing to break at this stage or whether you would like me to continue

5 and use the three or four minutes left.

6 JUDGE PARKER: We accept your indication and will adjourn for the

7 evening.

8 MR. METTRAUX: And perhaps before we do, Your Honour, a simple

9 matter that I have omitted to do at an earlier stage. I have shown to the

10 witness what was Rule 65 ter, that's the Prosecution list 69, which is

11 under tab 8 of the Defence binder, we would simply wish the document to be

12 marked for identification at this stage, until that time when we receive

13 the CLSS translation.

14 JUDGE PARKER: It will be marked.

15 THE REGISTRAR: As exhibit 1D146, marked for identification, Your

16 Honours.

17 MR. METTRAUX: Thank you. And perhaps to assist the Chamber, we

18 would definitely hope to be finish well within the next -- the first

19 session of tomorrow morning.

20 JUDGE PARKER: Thank you very much, Mr. Mettraux. I'm sure

21 Dr. Eichner will be pleased to hear that.

22 We adjourn now. We resume again tomorrow morning at 9.00.

23 --- Whereupon the hearing adjourned at 6.57 p.m.,

24 to be reconvened on Tuesday, the 4th day of

25 September, 2007, at 9.00 a.m.