1 Wednesday, 4 February 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.11 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in the courtroom. This is case number IT-06-90-T, The
9 Prosecutor versus Ante Gotovina, et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 The Chamber, more specifically I, apologise for the late start.
12 Partly due to the consequences of frost.
13 Before an opportunity will be given to the Prosecution to call
14 its next witness, we'd like first to give an opportunity, 11 minutes for
15 the Defence, to further -- make further oral submissions on scheduling
16 issues. Who's first? Mr. Cayley.
17 MR. CAYLEY: Yes. May it please the Court. Thank you.
18 Your Honour I will have to some submissions to make, and I think the
19 colleagues, the other two teams, will also have some very brief
20 submissions to make.
21 The submissions obviously concern the period of time that the
22 Defence would like between the end of the Prosecution case and the
23 commencement of the oral submissions under Rule 98 bis. And secondly the
24 period of time between the end of the oral submissions under Rule 98 bis
25 and the commencement of the first Defence case.
1 In respect of the first matter, that is the time between end of
2 Prosecution case and the beginning of the Rule 98 bis submissions, we
3 would request a period of 15 working days.
4 For the second period, the period between the end of the
5 Rule 98 bis submissions and the commencement of the first Defence case,
6 we would request 30 working days.
7 Your Honours, I would like to bring to your attention six
8 separate matters very briefly in respect of this application for time.
9 The first matter is unique to the case of Ivan Cermak. You will recall
10 that Mr. Kay was not appointed on this case until September of 2007. I
11 was appointed in November of 2007 and Ms. Higgins in March of 2008. That
12 is not Mr. Cermak's fault. You will recall that his old Defence team was
13 removed by the Appeals Chamber in the summer of 2007. They had worked on
14 the case for many years. Mr. Kay did ask for more time before the
15 commencement of this trial. You will remember that he asked until
16 October of 2008 before the case commenced. That time was not granted; we
17 don't complain about that, but I think Your Honours will agree that we
18 have kept pace with this case and now we need some time to prepare both
19 for the Rule 98 bis and for the Defence case.
20 The second matter, Your Honours, that I would like to bring to
21 your attention is to remind you respectfully that this is a case of
22 significant proportions. At the last count, I think before the witness
23 that we just heard, there were 3475 exhibits, both Prosecution and
24 Defence, and 88 Prosecution witnesses had been heard. This is a case of
25 significant proportions, and I think it's fair to say that it falls into
1 those categories of cases which are the larger and more complex cases.
2 And if you look at the analysis that I sent to the Chamber and the
3 Prosecution last Friday, I think you will find that what I've said is
5 Thirdly, the case has expanded throughout the Prosecution case.
6 By that specifically I mean that there has been an increase in the number
7 of exhibits, an increase in the number of documents and items on the
8 Rule 65 ter list. The Defence teams have got to consider all of these
9 matters, specifically within the Rule 98 bis submissions, and
10 furthermore, in preparation for their Defence.
11 The fourth matter that I would like to remind you of,
12 Your Honours, and we don't take credit for this, but time has been used
13 very efficiently in this case. If you look at the statistics that I have
14 put together, you will find that in this case, we have sat five days a
15 week for 57 percent of the time. Can you see in other cases, in other
16 Chambers cases have not sat on that basis. Again, the Defence don't take
17 credit for that. Perhaps the Judges and the Prosecution and the Defence
18 together can take credit for that. But this is it true. We have used
19 time very efficiently. And we would like to be given credit for that in
20 terms of the time that we are granted for the Rule 98 bis submissions and
21 our Defence case.
22 The sixth matter that I'd like to raise is in respect of the
23 Rule 98 bis application itself. And these -- these are words -- that's
24 actually the fifth matter, not the sixth matter. But these were
25 Mr. Kay's parting words to me as he left for the airport last night. He
1 believes that we have a meritorious 98 bis application on behalf of our
2 client Ivan Cermak, and we would respectively like to ask you for
3 adequate time to prepare and -- those submissions to do our client
4 justice and to do the best job that we can for him.
5 The last matter, Your Honour, and I won't go through it, because
6 I think it's fairly clear, the documents that I filed last Friday, we
7 would like to draw your attention to the analysis that is being done and
8 to the number of days granted in other cases in support of our
10 Thank you very much, Your Honours. I don't have any further
11 comments, and I think Mr. Misetic has comments to make.
12 JUDGE ORIE: Mr. Cayley, thank you very much for being succinct
13 and very clear.
14 Mr. Misetic.
15 MR. MISETIC: Thank you, Mr. President. We joint with the
16 Cermak Defence in terms of the amount of time requested. I would only
17 add two points. One is we ask that the Chamber keep in mind the
18 rule change that was enacted in February of 2008 pursuant to Rule 67(a)
19 which now requires that the Defence make available to the Prosecutor the
20 documents -- essentially the documents that the Defence will be
21 introducing at trial. This is going to place a burden on us, whereas
22 prior to that rule, we could have put documents together as the witnesses
23 were coming up and disclosing them to the Prosecution. We are now
24 required to essentially put our Defence case, in terms of documents,
25 together before the commencement of the Defence case in chief. We
1 obviously are going to endeavour to that so that our colleagues across
2 the isle can have that material before the Defence case starts. However,
3 that may impact in terms of comparing this case to other cases and when
4 they start, the fact that we now have an additional burden that we will
5 have to put all those documents together.
6 The second practical issue for us is in terms of instructing
7 experts and getting expert reports together. As the Chamber is aware,
8 and there has been much litigation on this point, we have received
9 addenda from the Prosecution well after the commencement of the trial, as
10 recently as, I believe, November of 2008, which have, of course,
11 prevented us from being able to instruct an expert to prepare a report
12 given that theoretically speaking there may be even more witnesses coming
13 up this month on the issue of shelling, for example. It hinders our
14 ability to get experts to prepare their reports in time or to have
15 complete reports, I should say. Given that additional factor of addenda
16 to expert reports, we would ask that the Chamber also keep in mind that
17 it is going to take us a little bit of extra time to get our expert
18 reports together.
19 Mr. Kehoe also would like to address one issue concerning the
20 murder counts.
21 MR. KEHOE: Yes, Mr. President, Your Honours. We have addressed
22 this to some degree before, but as a result of the appellate decision, we
23 are back before the Chamber on the 189 deaths that the Prosecution has
24 included as a schedule -- a clarification schedule in November of 2008.
25 There are two issues. Number one, the Prosecution has to show
1 that -- that obviously when they got this information and the prejudice
2 that is involved, then the Chamber has to make a decision whether or not
3 those items are in and out. That particular issue comes into play with
4 the next witness. But based on Your Honours' decisions back in November,
5 if Your Honours conclude that those killings are in, then we are going to
6 need additional time to actually investigate those matters and go into
8 I can tell Your Honour just from a brief bit of investigation on
9 the matters that -- of those 189 killings while preparing for some of
10 these forensic pathologists, there is any number of issues - I don't
11 hasten to say problems - but issues with the Prosecution's submission to
12 the Chamber and that clarification schedule.
13 So it's going to take a significant amount of time to investigate
14 those matters as well, if the Chamber maintains that -- or concludes that
15 the Prosecution has gotten over the prejudice issue and those items
16 should be included.
17 That's -- I understand my colleagues have talked a bit about
18 time-frames, but that particular time-frame makes the end of the
19 Prosecution case quite difficult to assess.
20 JUDGE ORIE: Thank you, Mr. Kehoe.
21 MR. KUZMANOVIC: Excuse me, Your Honour.
22 JUDGE ORIE: Yes, Mr. Kuzmanovic.
23 MR. KUZMANOVIC: I just wanted to add we fully agree with the
24 presentation of both counsel, or all three counsel on the issue of
25 timing, and the only other thing I would like to add is that the Chamber
1 keep in mind the Easter holiday which for many of us is a traditional
2 time for spending an at least a little bit of time with our family during
3 the course of the break, so that's the only, sort of, personal thing that
4 I have. But other than that, I agree completely with my counsel on their
6 Thank you, Your Honour.
7 JUDGE ORIE: Yes. I wouldn't consider it perfectly personal,
8 Mr. Kuzmanovic. I think we have all have the same experience, and we are
9 also looking back at when this family time was not always available.
10 Then, thank you for strictly keeping the time-limits.
11 Any need to respond?
12 MR. MARGETTS: No, Mr. President.
13 JUDGE ORIE: Then next item. A motion is pending for a
14 videolink. I think we have not heard from all Defence yet what their
15 response is. Could I just make a short round.
16 Mr. Misetic.
17 MR. MISETIC: We completely oppose the motion. I don't know if
18 we should do there in private session but ...
19 JUDGE ORIE: If we go into details, we certainly would have to do
21 We move into private session.
22 [Private session]
20 [Open session]
21 THE REGISTRAR: Your Honours, we're back in open session.
22 JUDGE ORIE: Thank you, Mr. Registrar.
23 In view of the next witness, we have objections against the use
24 of exhibits in more general terms, and also very specific ones filed, I
25 think, yesterday; a list of some 30 approximately. I have some questions
1 in that respect, first to the Prosecution.
2 Part of the submission says that the victim does not appear in
3 the indictment; does not appear in the clarification schedule, whatever
4 the fate of that schedule may be; and the cause of death is unknown.
5 Now, Mr. Margetts, what is the probative value of a person of who
6 we do not know why he died and who does not appear in the indictment nor
7 in the clarification schedule?
8 MR. MARGETTS: Mr. President, the first thing I understood that
9 the objection of the Defence was that the victims didn't appear in the
10 schedule to the indictment or the first clarification that was filed in
11 March of 2007.
12 MR. KEHOE: That's correct counsel.
13 MR. MARGETTS: Yes. Thank you, Mr. Kehoe.
14 The victims do appear in the further clarification schedule which
15 is now, once again, before the Trial Chamber for consideration. So
16 that's the relevance that they have in terms of the schedule of killings.
17 They're in that further clarification schedule that was filed by
18 Prosecution on the 16th July 2008.
19 JUDGE ORIE: We have this list of A to DD. That's what I'm
20 referring to.
21 MR. MARGETTS: Yes, Mr. President.
22 JUDGE ORIE: And to say the victims do appear in the -- often it
23 is claimed that they do not appear. That's one. And I was -- I think
24 referring to one specific example, but I read it from my computer
25 yesterday evening, so I'm trying to -- I thought there was one among them
1 not appearing in the indictment, not appearing in the clarification
2 schedule, and the cause of death unknown.
3 MR. KEHOE: I don't think so, Judge. I think that Mr. Margetts
4 is correct. Our objection is that these aren't in the indictment nor the
5 first clarification schedule. But these are objections that are in the
6 amended clarification schedule, the second clarification schedule that
7 the Prosecution filed in July that was the subject of the November 2008
8 decision of the Chamber. And our objection, of course, was preceding on
9 items which, at this juncture, are not before the Chamber.
10 There is, of course, another larger objection with many, many of
11 these that we have put in there that, geographically speaking, they
12 simply were not in the Split Military District which -- and many of them
13 were in the Gospic Military District. So if you look where the body was
14 actually found.
15 JUDGE ORIE: Well, we find a variety of reasons. Sometimes being
16 it was not where the Split Military District was, sometimes there were no
17 Croatian soldiers, sometimes it is -- was where the special police was
18 and not where the Split Military District was. So we find a variety.
19 Sometimes it said who was in the area; sometimes it just says it's not
20 the area of responsibility of the Split Military District. So to deal
21 that with in one sentence, I find it a bit difficult.
22 MR. KEHOE: I agree, Judge, that's why I tried to delineate all
23 of the issues with each of these exhibits. I -- just with regard to in a
24 particular area. The Prosecution in their amended schedule says that in
25 P 1685 that an individual was killed in Donji Lapac on 8/5/1995. Excuse
1 me, on the 5th of August, 1995.
2 Now, the evidence before this Chamber, and I'm sure the
3 Prosecution will agree, is there was simply no HV forces in Donji Lapac
4 on the 5th of August of 1995. But nevertheless, that's what they have
5 put forth in their clarification schedule. Have I any number of those.
6 I just point that one out. We have other ones where, as I pointed out in
7 there, there -- where the cause of death is natural causes. Yet, is in
8 this schedule. There are several of those. I believe, I think, I have
9 ten of unknown causes of death, where clearly some of them are natural
11 So we have a multitude of issues.
12 JUDGE ORIE: Could you guide me to natural causes, instead of no
13 cause of death, in your submission.
14 MR. KEHOE: Yes. I actually -- frankly, I just put no cause of
15 death, but can I tell you it is -- specifically it is --
16 JUDGE ORIE: I'm asking you for the following reason, Mr. Kehoe.
17 If you say no cause of death has been established, that means that
18 through this report we may find some information about the body, although
19 not a final answer to the question, why this person died. That can come
20 from other evidence. We do not know yet. That would not automatically
21 make it irrelevant. If there is an clear establishment that there was a
22 natural cause of death then, of course, the body disqualifies for
23 purposes of killing.
24 So, therefore, it makes a difference if you put in your
25 submissions it has no relevance because no cause of death has been
1 established, that's different than cause of death was natural cause of
2 death. That's makes a difference for looking at your submission and
3 looking at the relevance.
4 MR. KEHOE: I think, Mr. President, if we can harken back to my
5 cross-examination of Dr. Clark where Your Honour cautioned me with regard
6 to unknown causes and when we get into the unknown causes, and I asked
7 the question does that -- it's equally plausible with the unknown cause
8 that this person could have died from natural causes. Your Honour
9 interjected and said, Well, of course, the Chamber knows that.
10 JUDGE ORIE: Yes, perfectly. Could, could [Overlapping speakers]
11 ... that's exactly -- you apparently have not understood my
13 MR. KEHOE: Well, I [Overlapping speakers] ...
14 JUDGE ORIE: [Overlapping speakers] ... I'm not saying that if
15 there is an unknown cause of death that it means that the expert could
16 not establish what the cause of death was. That, of course, leaves open
17 at that moment in time not looking at any other evidence, that it could
18 have been a natural cause as well. We'll have to see whether any other
19 evidence comes up.
20 Now, if, however an expert says this person died of a natural
21 cause of death then, unless there is clearly contradicting evidence
22 saying, no, he is wrong because I find five bullets in that body, then I
23 would say that evidence is not probative in any way for killing.
24 MR. KEHOE: And my response to that, Judge, is based on --
25 Mr. President, your comments is one of relevance. And there is no
1 question that because this is skeletonized remains and has very little
2 flesh, some saponified flesh, but virtually no flesh, it's very difficult
3 to tell organ damage, et cetera, as Dr. Clark said and I'm Dr. Baccard
4 will as well. So they're not going to be able to say, Look at
5 skeletonized remains what this person died from. However, they're not
6 going to say, Looking at the skeletal remains, we don't have any idea how
7 this person died.
8 So we are in a position where the Prosecution has listed every
9 body they have found, thrown them on a list, and then we're in the
10 position of saying -- or they are saying, Oh, these are killings, and
11 we're in a position to try to meet those.
12 Now, this, of course, dove-tails with a larger problem in the
13 investigation. But I have attempted to investigate many, many of the
14 items that are set forth in this exhibit list from this witness we are to
15 see. And there is into evidence in the record, nor in the 65 ter
16 documents that the Prosecution has uploaded, on virtually none of them.
17 Several of them there has been, and I can tell you exactly which ones
18 there. Virtually the rest of them, there is none.
19 MR. MARGETTS: Mr. President, if I can add another element to
21 In addition to considering the forensic pathologist's evidence in
22 context with the other evidence that has been brought before the
23 Trial Chamber in relation to these deaths, the other factor that's --
24 that is indicative of the relevance of these autopsy reports is that the
25 remains of the victims that have been the subject of these forensic
1 examinations, and these persons are referred to in large part in Croatian
2 official documents, and so another factor comes to bear; and that is the
3 extent to which the deaths of these persons, be they unascertained, be
4 they deaths by gun-shot injury, were within the notice of the accused.
5 The accused knew of these deaths at the time, or alternatively, other
6 members of the JCE or the subordinates knew of the deaths at the time.
7 So it brings to bear another element of the case, that element
8 being the notice case and the failure to investigate, the failure to
9 ensure that the climate of fear generated by this large number of
10 killings continued. So they failed to ensure that the Serbs felt safe on
11 the territory.
12 So in our submission there is another element here that's
13 important in terms of addressing the evidence we have, in relation to
14 these victims. The Prosecution has not at all listed all of the killings
15 that they are aware of. They have listed the killings that are relevant
16 to elements that are in the indictment, and one of those elements is
17 knowledge and the failure to respond and protect the Serb population.
18 MR. KEHOE: Mr. President, I am needless to say, shocked by that
19 submission. I mean, the Prosecution knows full well that deaths in a
20 cemetery or in an area mean nothing. They have not presented one iota of
21 evidence that General Gotovina had any knowledge of any murder or
22 criminal activity, zero. None. They have nothing before the Chamber.
23 What this is, what this is, is an attempt to put fort a litany of bodies
24 to essentially shock the Chamber, so the Chamber concludes that something
25 untoward happened, i.e., murder, that the accused must have had knowledge
1 of, and there is no evidence to support that. And I offer to -- to
2 Mr. Margetts to present some evidence that the accused knew of these
3 particular items, that they knew that people were murdered.
4 The Prosecution can't even say when these people were buried. It
5 is it -- they have yet addressed one of the larger issues here,
6 Mr. President, is that the - I don't want say the vast majority - that
7 almost 50 percent of these bodies were found in a different
8 Military District. They were not in the Split Military District.
9 MR. KUZMANOVIC: Your Honour, may I add something to that.
10 JUDGE ORIE: Yes, Mr. Kuzmanovic.
11 MR. KUZMANOVIC: What is happening here is essentially the burden
12 of proof is being reversed. These people were killed, and you have to
13 proof that you had nothing do with it. That's not the way it should be.
14 JUDGE ORIE: I'm not aware that the Prosecution is in a position
15 to reverse the burden of proof.
16 MR. KUZMANOVIC: That's factually what they're trying to attempt
17 to do here, Your Honour. By putting these people on this list and giving
18 us either -- you know, you can see on the annex, for example. It filed
19 in July, and I can just give you an example. Number 53 on the annex
20 which is P1553 says that this particular person was killed on 5th August,
21 and then P1553, it says it was the 10th of August.
22 How am I suppose to cross-examine a pathologist who knows nothing
23 about that on that particular issue? Whose burden is that? Is that my
24 burden? Or is that the Prosecution's burden? What's happening here
25 essentially, and one of the reasons I sent an e-mail to Mr. Margetts last
1 night with respect to the Appeals Chamber's decision remanding the
2 further clarification to the Trial Chamber was, how can you present
3 evidence that the Appeals Chamber said isn't necessarily in play because
4 the Trial Chamber hasn't decided the issue of the remand yet on the two
5 issues that the Appeals Chamber said the Trial Chamber must decide.
6 Now obviously, it was a week and two days ago that the
7 Trial Chamber got this, and no one expects the Trial Chamber to make a
8 decision so quickly given all things that have been going on. But how
9 can evidence be presented and exhibits be presented on issues that still
10 are still not decided with this particular witness. And then how are we
11 to cross-examine on that?
12 For this particular witness to testify on issues related -- on
13 issued related to the clarification that was filed in July, given the
14 fact that there has been no decision from the Trial Chamber on this, I
15 think it is premature for this particular witness to testify now on those
17 MR. KEHOE: This witness --
18 JUDGE ORIE: Mr. Kehoe, it is not a debating club here, but it is
19 a court of law.
20 Mr. Margetts, would you like to respond?
21 MR. MARGETTS: Yes, Mr. President.
22 The first issue --
23 JUDGE ORIE: Briefly please.
24 MR. MARGETTS: [Previous translation continues] ... I 'all deal
25 with is that Mr. Kehoe referred to the fact that he asserts that these
1 killings took place outside the Split Military District. We would say
2 the relevant area that he should be referring to is the area described in
3 the indictment, which is not defined by the Military District but is
4 defined by the municipality.
5 The second issue is that Mr. Kehoe claims there has been no
6 evidence in relation to the knowledge of the accused of these killings.
7 We differ on that. We say that contemporaneous documents demonstrate
8 abundantly that the accused and other members of JCE were informed in
9 writing about the killings of these civilians, and they were informed
10 also you've heard witness testimony to the fact that these matters were
11 discussed in meetings with the accused.
12 The third issue I'd deal with is the issue of this matter being
13 referred back, an issue raised by Mr. Kuzmanovic. The clarification, the
14 further clarification of July 2008 that sets out -- lists all of these
15 victims, it was challenged on the 24th of July, by the Gotovina Defence.
16 The Trial Chamber made a decision. The Appeals Chamber has now requested
17 that that decision count -- well, has ordered that that decision come
18 back to the Trial Chamber.
19 We're in no different position today than we were on the 24th of
20 July. And we have carried on this trial since the 24th of July, when the
21 Defence objections to the further clarification were on the record
22 within. And it was within the hands of the Trial Chamber as to whether
23 the further clarification of the Prosecution would be allowed. Again,
24 this is an interlocutory matter before the Trial Chamber, and there's no
25 merit we say whatsoever, in the current application that the Defence have
1 belatedly put before you, and the reasons being that, effectively, it is
2 just an interlocutory application for the Trial Chamber to consider.
3 It's not a ground for adjournment of the proceeding which is effectively
4 what they seek. Because following witnesses will be talking about
5 killings that fall within the further clarification.
6 So we say this is a wholly meritorious application and should be
7 dismissed. And I go back to the other issue, and it's not just the
8 further clarification that the evidence of Dr. Baccard is relevant to.
9 It's relevant to the general elements of widespread and systematic, the
10 proof of how many people, how many civilians were killed. It's also
11 relevant to the issue that I raised before, for instance, I can quote the
12 paragraphs of the indictment, paragraph 17(D) to (E) that deal with the
13 failure of the accused to act, the failure of the accused having notice
14 that all of these people were being killed, the failure of the accused to
15 stop those killings.
16 JUDGE ORIE: I asked you to be brief, Mr. Margetts.
17 MR. KEHOE: One brief comment, just very briefly, Mr. President.
18 JUDGE ORIE: Yes. But I would also like you to respond
19 specifically on the issue raised by Mr. Margetts as to the geographical
20 scope of the indictment as the determining factor, rather than the area
21 of responsibility of the Split Military District.
22 MR. KEHOE: The response --
23 JUDGE ORIE: If you would include that in your answer within the
24 next two minutes.
25 MR. KEHOE: My response to that is twofold. They have put a
1 broad reach in the indictment and covered areas that were in the Gospic
2 Military District that have no application to our client with no
3 responsibility whatsoever. Those -- to the extent that the Prosecution
4 is arguing that HV troops committed crimes in a different sector, that
5 cannot be lead at the feet of General Gotovina. The more serious problem
6 with the argument of Mr. Margetts is not one of deaths. It's not one of
7 people dying because people die in a war. The question here is murder,
8 and knowledge of murder. They are put forth no evidence whatsoever,
9 zero, that General Gotovina had knowledge of murders. And that is the
10 issue here. They have nothing in that regard. Now to compound the
11 problem, they are saying, We're going to put before this Chamber issues
12 of killings where there has been no evidence of -- that it is in fact a
13 murder and -- it takes place in an entirely Military District. Killing
14 itself, people dying, is not a crime. What is a crime is murder. And
15 the Prosecution has put forth no evidence with regard to General Gotovina
16 of knowledge of any of these murders. None. And they have simply tried
17 to compound this problem by adding to people's deaths in areas that are
18 not even under his command and control. It is extremely prejudicial.
19 MR. KUZMANOVIC: Your Honour, may I add to that the specific
20 issue regarding --
21 JUDGE ORIE: Yes, May I -- before I give you an opportunity to do
22 so, Mr. Kehoe, you said well, not even in the Split Military District,
23 Gospic, but often I do not find a positive determination of in whose area
24 of responsibility the incident may have happened. Sometimes it is
25 specifically said it was in the area of responsibility of the special
1 police and not of the Split
2 Gospic. And I can imagine that Mr. Kuzmanovic would like to perhaps also
3 comment on that part of the submissions made by the Gotovina Defence.
4 Mr. Kuzmanovic.
5 MR. KUZMANOVIC: Your Honour, I think there was a corrigendum
6 filed by Gotovina Defence on the issue of area of responsibility
7 specifically related to the special police so --
8 JUDGE ORIE: Could I just have a look. When was that?
9 MR. KUZMANOVIC: I think the corrigendum was filed last night,
10 Your Honour. Our courtesy copy was sent last night.
11 JUDGE ORIE: I'll check then whether it reached [Overlapping
12 speakers] ...
13 MR. KUZMANOVIC: [Overlapping speakers] ... I can address that
14 issue anyway, Your Honour.
15 JUDGE ORIE: Yes, please do so.
16 MR. KUZMANOVIC: Two things. First, I want to relate back to the
17 issue of area of responsibility. We can all agree that Korenica is not
18 in any area of responsibility relating to this indictment, yet one of the
19 exhumations that takes place is from the cemetery in Korenica. And we
20 have to deal with that in our list of additional scheduled killings,
21 among other things, and in Dr. Baccard's report. My question would be,
22 How is that applicable to us in this case? An exhumation in a cemetery
23 that is nowhere near where our clients were operating. That's number
25 Number two, as another example, one of the exhibits, P1554
1 discusses the death of someone who was in uniform which is a soldier, and
2 the cause of death is it most likely an explosive injury to the head,
3 trunk, and limbs. How is that a murder? How is that a murder? That's
4 out of the additional list of scheduled of killings. There are 189
5 additional scheduled killings. And for us to have to deal with this
6 particular witness on 189 additional scheduled killings going through
7 these one by one under the circumstances in which that further
8 clarification still hasn't been effectively decided is a very difficult
9 thing to do in cross-examination.
10 Now, the issue of area of responsibility. The Chamber will
11 recall that in this particular area, for example, in Gracac, the special
12 police did not have effective control of territory. They had an axis of
13 attack. And they were under the command of the Main Staff of the
14 Croatian military. Now if you look, for example, at the date of the
15 finding of the body of this particular person in P1554, on the road
16 between Gracac and Otric, the date of the finding of the body was
17 August 10th. The special police was not there on August 10th. The war
18 diary of the special police, which has been submitted as an exhibit, and
19 our response, specifically says when and where special police were
20 operating. They were not in this area on August 10th of 1995.
21 Those are the kinds of things that, unfortunately, we're going to
22 have to go through in cross-examination of this particular witness to
23 show that we, either, for example, the special police was not present
24 with respect to this particular exhibit P1554, or there are some other
25 circumstance. That's what we're going to have to do, given the
1 description in every single autopsy report.
2 JUDGE ORIE: Yes. Unless the witness would state in a more
3 general way that he has not any knowledge, Mr. Kehoe would say, none,
4 zero, about - I usually leave it to not any knowledge - to the
5 whereabouts of whatever units or whatever troops, and that the only thing
6 he did, is that this is information he can't confirm nor deny.
7 MR. KUZMANOVIC: I definitely understand that, but the whole
8 proposition of use of this witness and these exhibits is an attempt to
9 establish responsibility on our three individual clients.
10 JUDGE ORIE: Or to establish some factual -- some facts that were
11 observed by -- by the expert.
12 Now, that might keep you even more divided. Mr. Kehoe said that
13 he was shocked, and he, a few lines later, said that the Prosecution was
14 aiming at shocking the Chamber. I don't know whether there's any
15 relationship between perhaps easily being shocked and expectations that
16 others will be shocked. I'm not saying that Mr. Kehoe was easily
17 shocked, but at least he was shocked. We have to look at the -- what has
18 been submitted to the Chamber. Where is the line between being
19 convinced, being surprised, being shocked, there is a wide variety of
20 effects. And I do understand that where Mr. Margetts claims that he has
21 honest intentions to assist the Chamber rather than to mislead the
22 Chamber, that that is not a shared view -- that that view is not shared
23 by the Defence. That is perfectly clear to the Chamber.
24 MR. KUZMANOVIC: I'm not questioning anybody's honesty, Your
25 Honour. My position is that when the Appeals Chamber makes a decision
1 remanding whether or not 189 additional killings can be the subject of
2 the amended schedule, and the Trial Chamber has not yet decided that
3 issue, and the Prosecution wants to go ahead and put evidence in there
4 through this witness anyway, I think there is some issue there that I
5 have with that, from an officer of the court standpoint.
6 JUDGE ORIE: Mr. Margetts.
7 MR. MARGETTS: Mr. President, if I could be very brief.
8 JUDGE ORIE: Yes, of course, you may be very brief. You would
9 like to say something?
10 MR. MARGETTS: Yes, I would like to respond to a number of those
11 matters. The first thing is that what we have done, is we have redacted
12 from Dr. Baccard's report all references to the Korenica victims, the
13 reason being that none of them appear in any of the clarifications or
14 schedules we have filed.
15 The second thing is, I think, Mr. President, you have dealt with
16 it entirely. It seems to me that Mr. Kuzmanovic is arguing about merits
17 of the case and ultimate submissions as to the linkage to his accused,
18 rather than the relevance of this specific evidence relating to the
19 limits of what this specific witness can testify about. He was in a
20 mortuary in 2002; he made observations about the remains. That is what
21 his evidence is about, and it doesn't extend further.
22 In terms of this being new to the Defence, that there are 189
23 killings, the Prosecution never, never limited the number of killings.
24 There was a schedule to the indictment; there was a clarification in
25 March 2007; there was a further clarification in March of 2008. These
1 killings were always the subject of this proceeding, and they were
2 expressly identified by the Prosecution to aid the parties, and the
3 parties should have been addressing these killings well before July 2008.
4 In July 2008 assistance was given to the parties and the Trial Chamber
5 with this further identification. The proceeding continued from
6 July 2008, while the Trial Chamber's decision -- were awaiting the
7 decision. There is no reason today for this proceeding to be effectively
8 adjourned and the evidence of this witness on these matters not to be
9 heard. There is no prejudice whatsoever to the Defence, should this
10 witness, in addition to the 11 killings that he will refer to in the
11 schedule and the clarification, if he also refers to killings that are in
12 the further clarification. There is no prejudice. We're in no different
13 position to the position we were in, in July 2008.
14 JUDGE ORIE: Yes. It took me a while to find the example I
15 referred to earlier. That is, not in the indictment, not in the
16 clarification schedule, and the cause of death unknown. Because that is
17 one of the examples I said I thought I would have found one.
18 Mr. Margetts, under M we find 65 ter 6050, cause of death
19 unknown. Not in the indictment, not in the clarification schedule, and
20 it was added not occurring in the area of the Split Military District.
21 So apart from to what extent that is the determining geographical factor,
22 but what is the probative value of this case?
23 MR. MARGETTS: Yes, Mr. President. We emphasise the -- the
24 extent to which this witness can testify about circumstances of death.
25 This witness can testify about cause of death, well, insofar as he can
1 ascertain it and be certain of it from the remains. Where the cause of
2 death is unknown, it doesn't mean that there aren't features that are
3 observed by this witness about the body that would alert those that
4 disposed of the body, and we have heard a lot of the evidence about the
5 systematic disposal of the bodies, that there should have been an inquiry
6 into it.
7 Now if that inquiry eventually came up with the same conclusion
8 that Dr. Baccard came -- or that Strinovic or the Croatian examiners
9 arrived at after a proper examination, taking into the account
10 circumstances, the criminal investigation, and all those things, that is
11 one issue.
12 What we have here is a forensic pathologist who can say that, In
13 2002, I couldn't ascertain the cause of death. Now if in 1995 proper
14 steps had been taken, that is it not dispositive of whether or not the
15 accused and those subordinate to them, if they had done what they're
16 obliged to do, would have been able to determine that cause of death.
17 So the findings of this witness are variously strong as to cause
18 of death. Finding that there's none ascertained cause of death, does not
19 exclude his evidence as being evidence of value.
20 JUDGE ORIE: The procedural order would that we have heard the
21 objections; we have heard the response; we have heard this in two or
22 three rounds.
23 The Chamber will consider the matter.
24 [Trial Chamber confers]
25 JUDGE ORIE: The Chamber would prefer to consider the matter
1 during the break. We would then have a rather early break. This allows
2 also to look at any addenda or corrections that have been filed and which
3 are not known to the Chamber yet.
4 So, therefore, if the parties would ensure, together with the
5 legal officer, that the Chamber has received everything the parties
6 wanted to submit, we'll look at it at the break. And then after the
7 break, Mr. Margetts, you'll have the opportunity to call your next
9 MR. MARGETTS: Thank you, Mr. President.
10 JUDGE ORIE: Mr. Kuzmanovic, anything?
11 MR. KUZMANOVIC: One thing, Your Honour. With respect to the
12 Appeals Chamber decision, I would just encourage the Court, if it has the
13 time to look at paragraphs 19 through -- basically through 21 again.
14 Specifically --
15 JUDGE ORIE: It's always under my -- [overlapping speakers] ...
16 MR. KUZMANOVIC: Specifically related to the argument that the
17 Prosecution had no obligation to notify of this -- the additional further
18 clarification. And that's dealt with in the Appeals Chamber's decision.
19 JUDGE ORIE: Yes, of course, that's the core of the decision.
20 Mr. Kehoe, anything.
21 MR. KEHOE: Yes, Mr. President. Just on that score, I believe
22 that approximately 30 of the 53 autopsies that counsel is attempting to
23 put in, I do believe are -- bear on the appellant decision and the
24 obligation of the Prosecution to notify the Defence as soon as possible
25 which is something they have yet to do. So it is virtually -- well in
1 excess of half of them are going to come into play specifically on
2 paragraph 20 of the appellant decision says, The obligation resting upon
3 the Prosecution to name the alleged victims to the extent possible,
4 logically implies that it should do so as soon as practical after
5 obtaining the information in order to facilitate the preparation of an
6 effective Defence.
7 That simply is response to the comments made by --
8 JUDGE ORIE: Yes, Mr. Kuzmanovic has already invited us to read
9 19 to 21. And 20, as far as I'm aware of, is just in the middle of that.
10 MR. MARGETTS: Mr. President, if I may, in terms of the pleading
11 of the Defence, I just looked at paragraph M and the final sentence that
12 you referred to me to regarding 65 ter 6050, the cause of death is also
13 unknown. I, in fact, differ with that --
14 JUDGE ORIE: I will check that. And you will understand that if
15 we get some 30 -- late at night if I open my mailbox at home and read
16 this, I have not the entire underlying documents available. But you draw
17 our attention to the fact that in M you consider that the report on the
18 cause of death is inaccurate.
19 Mr. Kehoe, there I would like to ...
20 MR. MARGETTS: If can I refer my learned friend. As I understand
21 it, 65 ter 6050, P1689 refers to autopsy report G04, 30B, which is
22 referred to in Dr. Baccard's report at page 75 and the autopsy report of
23 2nd November, 2002
24 was blunt force head trauma or explosive head injury.
25 MR. KEHOE: It is interesting because the charging document that
1 you have included where it sets forth the cause of death in virtually all
2 of them, expect those were unknown that the Prosecution left blank. So
3 when it is unknown, they leave it blank but -- and they have done so with
4 regard to this instance, so I take it from the Prosecution's position
5 that they have no idea why this person died.
6 JUDGE ORIE: So the way in which the Prosecution presents the
7 results is guiding you, rather than the original material.
8 MR. KEHOE: No, both. I will tell you, the original material,
9 because I'm not sure what other material they have. And I'll give a case
10 in point: They have charged in this document, in their -- in their
11 schedule that an individual was killed in Donji Lapac on the 5th, for
12 instance. Now if you look through the documents of the autopsies, it
13 doesn't say anything about the 5th. But I assume that the Prosecution
14 has done additional investigation to come to the conclusion that this
15 person was killed on the 5th.
16 JUDGE ORIE: Yes. In view of the example, I'm not dealing with
17 other matters that we have looked at already.
18 MR. KUZMANOVIC: Your Honours, that does go directly to the issue
19 of notice. Because if on the schedule, these things are all left blank,
20 and then in the autopsy report, it says unknown, I mean that -- and the
21 schedule which we received in July and the autopsy reports which we did
22 not receive, I believe, until October, I'm not sure exactly when we got
23 the reports, but when we got Dr. Baccard's original exhibit list and with
24 all the reports, I think that came some time in October, I mean, that
25 goes directly to the issue of notice.
1 MR. MARGETTS: Mr. President, all of this material was available
2 to the Defence from April 2007.
3 MR. KEHOE: [Microphone not activated] That is absolutely not the
4 case. All of this material was not available to the Defence since
5 April of 2007.
6 MR. MARGETTS: Mr. President, the situation is we've looked at
7 the disclosure, a CD that was intended to include all of the material and
8 did include 90 percent or more of the material was provided in
9 April 2007. Now, the second issue is that then on -- in e-court the
10 material was uploaded, and the references to that material was made very
11 clear, and all the Defence had to do was to call us to supplement that
12 disclosure. It was, in fact --
13 JUDGE ORIE: [Overlapping speakers] ...
14 MR. KEHOE: [Overlapping speakers] ... you've got to be kidding
16 JUDGE ORIE: Mr. Margetts, you say that all -- that means
17 90 percent was available and all would have been available if the Defence
18 would have called you to make it available.
19 MR. MARGETTS: Mr. President.
20 JUDGE ORIE: That is a puzzle which I think for to us consider
21 during the break.
22 MR. MARGETTS: Mr. President, in our submission, it was effective
23 disclosure, and it was understood by us from disclosure records we had
24 that all of the material was provided to the Defence. It has been in
25 their possession for over a year, all of it, and we say, effectively
1 disclosed to them for almost two years.
2 JUDGE ORIE: May I take it that you say to the extent it was to
3 be found somewhere that this is not effective disclosure.
4 MR. KEHOE: Your Honour, I think my daughter would call that an
5 egg-hunt, to try to decipher what the Prosecution was trying to present.
6 We will go through chapter and detail concerning the disclosures on these
7 autopsies and their deficiencies coming from the Office of the
8 Prosecutor. I will present those to them. It -- it is simply not
9 accurate what was just been said to this Court.
10 JUDGE ORIE: The difference of view is clear, and it's now also
11 clear why Mr. Kuzmanovic would like to spend the Easter weekend at home.
12 We will have a break, and we will resume in half an hour.
13 --- Recess taken at 10.09 a.m.
14 --- On resuming at 10.48 a.m.
15 JUDGE ORIE: Yesterday two motions were filed. One was motion to
16 exclude the evidence of Dr. Eric Baccard. That motion is denied, reasons
17 to follow. Although not exactly the same matter, different, perhaps not
18 totally unrelated, motion to reconsider filed yesterday, to reconsider
19 the 25th of November decision. That motion will be decided in due
21 The Chamber is working hard on decisions that will have to be
22 taken as a result of the decision of the Appeals Chamber. The Chamber
23 was pleased to hear that it was not expected that we do that in a hurry,
24 and it might even be necessary to come back to the parties for some
25 factual details before we finally decide on that matter, but we're
1 working hard on it, but we have not yet finished.
2 As far as the exhibits are concerned in relation to the next
3 witness to be called, it has been emphasised, it has been stressed that
4 there is a relation between these exhibits and the decision still to be
5 taken as a result of the Appeals Chamber decision. Final decision on
6 admissions will not be taken. Exhibits will be marked for
7 identification, apart, of course, for any exhibit that is already in
8 evidence. There, perhaps we would have to reconsider; we'll deal with
10 The Chamber expects and the Chamber intends to finally decide on
11 admission more or less simultaneously with the other decisions still to
12 be taken, and the parties should not expect that we give any final
13 decisions on admission prior to these other decisions. Whether we make
14 it deciding the matter simultaneously is still to be seen. But that is
15 at least what we're trying to do.
16 Mr. Margetts, if you let me finish first, and then if there's any
17 -- any questions, we'll hear from you.
18 Finally, the parties are invited to deal with any exhibits on the
19 basis of a proper understanding of what an expert can tell us and what he
20 can't tell us. We do not expect whatever is there on paper that an
21 expert, who, at a certain moment in time, is involved in exhumations or
22 post-mortems, that he would know any specifics about circumstances under
23 which the person died, which are not a result of his expertise in looking
24 at the bodily remains. So whether someone died at 3.00 or 4.00, apart
25 from where perhaps a watch has been shot at the same time, and then still
1 it's to be seen this is more forensic expertise than the expertise of
2 this witness. But there's no need it ask the expert, Is it true that you
3 have no knowledge of this? Is it true that you have knowledge of that?
4 And, Mr. Margetts, you're invited to positively establish what the expert
5 can't tell us, and that should not take too much time.
6 [Trial Chamber and registrar confer]
7 JUDGE ORIE: Mr. Margetts, you earlier were on your feet.
8 MR. MARGETTS: Yes, Mr. President. I note that in respect of the
9 reconsideration of the decision, you suggested that you may or may not
10 invite submissions from the parties. If --
11 JUDGE ORIE: Invite submissions from the parties on ...
12 MR. MARGETTS: Further factual bases that may be relevant to the
13 further consideration.
14 JUDGE ORIE: Yes.
15 MR. MARGETTS: In so far as a decision is rendered in regard to
16 the clarification, we may -- on the basis of that decision, we should
17 have put further submissions in relation to the relevance of the
18 documentation. And so at this stage, I just indicate it may be
19 preferable from the Prosecution's point of view if the issue of the
20 further clarification and the issue of the admission of the documentation
21 were not decisions that were rendered simultaneously, but if the further
22 clarification decision could be rendered and possibly an opportunity for
23 the parties to then put further submissions as to relevance of the
24 material, having had the opportunity to consider the further
25 clarification decision.
1 JUDGE ORIE: Yes. You're inviting to us to kind of a second
2 round on the relevance after we would have decided the clarification
3 issue and reconsideration.
4 MR. MARGETTS: Yes, Mr. President, I'm just minded to the fact
5 that the clarification, the relevance of the clarification is clear. If
6 the clarification is in any way changed, we may wish to put additional
8 JUDGE ORIE: Yes.
9 MR. KEHOE: Mr. President, just as an officer of the Court, the
10 submission that we made, I recognise that the motion has been denied, and
11 I'm not re-arguing that; however, we went back through, and I noticed a
12 couple of errors in the submission that we made. I know it has been
13 denied, but in the spirit of accuracy, I'll just file a corrigendum --
14 [Overlapping speakers] ...
15 JUDGE ORIE: Yes. If that would assist us, especially later when
16 we have to decide on admission, then, of course, it is welcomed if you --
17 if you would bring it to your attention.
18 MR. KEHOE: Yes, Your Honour.
19 JUDGE ORIE: Then, Mr. Margetts, are you ready to call your next
21 MR. MARGETTS: Yes, Mr. President, we're ready to call our next,
22 Dr. Eric Baccard.
23 JUDGE ORIE: Thank you.
24 I was informed that Mr. Baccard would not be available to
25 continue next week but only the week after that. Well, that being the
1 situation, of course, the parties are even more -- but I take it that
2 we'll not finish with the witness today. That's at least my expectation.
3 But there is no possibility then to hear his evidence early next week.
4 MR. MARGETTS: No, Mr. President. We made the inquiry also with
5 the witness, and he indicated that he wouldn't be available to continue
6 the testimony on Monday or Tuesday.
7 JUDGE ORIE: Yes.
8 [The witness entered court]
9 JUDGE ORIE: Good morning, Mr. Baccard.
10 THE WITNESS: Good morning, Your Honour.
11 JUDGE ORIE: Mr. Baccard, before you give evidence in this court,
12 the Rules of Procedure and Evidence require that you make a solemn
13 declaration that you speak the truth, whole truth, and nothing butt
15 May I invite you to make that solemn declaration.
16 THE WITNESS: [Interpretation] I solemnly declare that I will
17 speak the truth, the whole truth, and nothing but the truth.
18 JUDGE ORIE: Please be seated.
19 Mr. Baccard, you will first be examined by Mr. Margetts.
20 Mr. Margetts is counsel for the Prosecution, as you most likely aware of
22 Mr. Margetts, please proceed.
23 MR. MARGETTS: Thank you, Mr. President.
24 WITNESS: ERIC BACCARD
25 [Witness answered through interpreter]
1 Examination by Mr. Margetts:
2 Q. Good morning, Dr. Baccard.
3 Dr. Baccard, could you please state your full name for the
5 A. Yes, my name is Eric Baccard.
6 MR. MARGETTS: And, Mr. President, if we could bring up 65
7 ter 6032 onto the screen, please.
8 Q. Dr. Baccard, if you could look at the screen on the left there,
9 can you confirm that that is your curriculum vitae?
10 A. Yes, that's right.
11 Could you scroll it down and move it to the second page, please.
12 MR. MARGETTS: And, Mr. Registrar, if we could move to the next
14 JUDGE ORIE: Mr. Margetts, one small question for Dr. Baccard.
15 [Interpretation] Mr. Baccard, you're being shown a text in
16 English. Can you tell us that you have a sufficient master of the
17 English language in order to be in a position to answer questions on --
18 regarding an English document.
19 THE WITNESS: [Interpretation] Yes, absolutely. In the course of
20 the years, I have learned some English, and I have a good knowledge of
22 JUDGE ORIE: [Interpretation] Since you don't have any problems
23 with English text, and if you do, please let us know.
24 THE WITNESS: [Interpretation] Yes.
25 MR. MARGETTS: Thank you, Mr. President.
1 And, Mr. Registrar, if we could move to the third page of the
2 curriculum vitae, please.
3 Q. And, Dr. Baccard, having reviewed the three pages, are you able
4 to confirm that that is your curriculum vitae?
5 A. Yes, that's correct.
6 MR. MARGETTS: Now, Mr. President, if we could please have an
7 exhibit number and Dr. Baccard's CV could be admitted into evidence.
8 JUDGE ORIE: No objections.
9 Mr. Registrar.
10 THE REGISTRAR: Your Honours, that becomes Exhibit P2313.
11 JUDGE ORIE: And is admitted into evidence.
12 MR. MARGETTS:
13 Q. Dr. Baccard, I confirm on the basis of your CV that you're a
14 forensic pathologist of 27 years standing and that you're currently
15 engaged by the Office of the Prosecutor at the International Criminal
16 Court in the position of forensic coordinator for the Office of the
17 Prosecutor. Correct?
18 A. Yes. I work as a coordinator of the forensic and criminalistic
19 activities at the ICC, not the ICTY. So it the ICC, International
20 Criminal Court.
21 Q. Thank you, Dr. Baccard.
22 MR. MARGETTS: And, Mr. Registrar, if we could please go to the
23 second page of Dr. Baccard's curriculum vitae.
24 Q. Now, Dr. Baccard, I'd like to refer you to the middle of the
25 page. And there's a reference there in the middle or just below the
1 middle that refers to -- to the fact that you were president of the
2 French Wound Ballistic Society until 1999. And then under that there are
3 details in relation to various positions that you were engaged in acting
4 for and on behalf of the Office of the Prosecutor of the ICTY. And I'd
5 first like to refer to the reference to your activities in 1999.
6 Would you be able to explain to the Court the role that you
7 played as a forensic pathologist for the Office of the Prosecutor of the
8 ICTY in 1999.
9 A. Yes. I participated in the autopsies carried out in Bosnia
10 Visoko in July 1999 as a forensic pathologist and then in Croatia
11 mortuary of Zagreb
12 Q. Thank you, Dr. Baccard. And if we could go down a little bit
13 further, there's a reference to your engagement as the chief pathologist
14 of the Office of the Prosecutor between March 2000 to November 2000.
15 Are you able to explain to the Trial Chamber the tasks that you
16 undertook in that position and the various remains and the location that
17 those remains were exhumed from that you studied in that position.
18 A. The activity that I carried out in 2000 as chief forensic
19 pathologist of the Office of the Prosecutor for the ICTY was in the first
20 place to set up a morgue with two post-Mortem rooms and seven autopsy
21 tables and then was charged to supervise the operation of this morgue
22 where you had multi-cultural, multi-disciplinary teams with
23 anthropologists, forensic pathologists, dentists, radiologists, and we
24 had to work on the corpses that were exhumed in various sites in Kosovo
25 in the course of the year 2000.
1 Q. Are you able to indicate to the Trial Chamber, if you remember,
2 approximately grave sites in Kosovo the remains that you examined were
3 exhumed from and approximately how many victims you and your team
5 A. Well, I'm afraid I can't really come up with very precise
6 figures. But it's over 225 autopsies that were carried out in this
7 mortuary in Orahavac in the south of Kosovo.
8 THE INTERPRETER: 1500. Correction of the interpreter.
9 A. I also worked with the mortuary which was in the British sector
10 in Pristina.
11 MR. MARGETTS:
12 Q. Thank you, Dr. Baccard. And then further down from the we have a
13 reference your engagement as a forensic consultant from February 2001 to
14 October 2002, again for the Office of the Prosecutor of the ICTY. And
15 can you confirm that one of the assignments that you undertook in this
16 capacity was leading an ICTY, Office of the Prosecutor, ICTY monitoring
17 team of autopsies that were conducted by Croatian pathologists in Zagreb
18 A. That's correct. The monitoring team including myself, of course,
19 but there was also an investigator and a photographer, an officer who was
20 also a scene of crime officer.
21 Q. And the autopsies that you monitored in this role where -- of
22 remains that had been exhumed from three sites; Korenica, Rizvanusa, and
23 Gracac. And the autopsies were conducted between May and June 2002, and
24 then, later, during September and October of 2002. Is that correct?
25 A. Yes, that's correct.
1 Q. Now subsequently to the monitoring mission, you were asked by the
2 Office of the Prosecutor of the ICTY to prepare an expert report, and you
3 prepared an expert report in relation to the -- your monitoring of the
4 autopsies and reviewing the autopsy reports that were produced by the
5 Croatian team in June 2003. And that report related to the Korenica and
6 Gracac sites. Is that correct?
7 A. Yes, that's correct.
8 Q. And, Dr. Baccard, on Monday of this week, you met with
9 representatives of the Office of the Prosecutor, and you were shown a
10 copy of that report from June 2003 that had been redacted by
11 representatives of the Office of the Prosecutor. And you were given the
12 opportunity to compare that report, where parts have been redacted or
13 taken out of it, with your original report. Is that correct?
14 A. That's correct.
15 MR. MARGETTS: And, Mr. President, if I could please have 65 ter
16 7038 presented on the screen.
17 Q. Now, Dr. Baccard, this is a lengthy document of some 137 pages.
18 So I'll just show you the first page. And can you see there, is that the
19 page that you signed on Monday?
20 A. That's correct.
21 MR. MARGETTS: And, Mr. Registrar, if we could please go to the
22 last page of this document.
23 Q. And, again, Dr. Baccard, is that your signature and the date
24 reflecting Monday's date that appears on this, which is the final page of
25 that redacted report?
1 A. That's correct.
2 MR. MARGETTS: Mr. President, if we could please have an exhibit
3 number. This could be marked for identification.
4 JUDGE ORIE: Mr. Registrar.
5 THE REGISTRAR: Your Honours, marked for identification as
6 Exhibit P2314.
7 JUDGE ORIE: And keeps that status for the time being.
8 Please proceed.
9 MR. MARGETTS:
10 Q. Dr. Baccard, that report that I have just shown you, can you
11 confirm that that report that you saw, the redacted report that you saw
12 and signed on Monday, accurately reflects the findings that you came to,
13 having monitored the autopsies and having reviewed autopsy reports, in
14 relation to the various victims that are referenced in that report for
15 the Gracac exhumations?
16 A. Yes, with the exception of the cases that were redacted, yes,
17 this is indeed the very same report.
18 Q. Thank you, Dr. Baccard.
19 JUDGE ORIE: May I just ask one question in this request,
20 Mr. Margetts. You introduced in your question the word "victim."
21 Findings on bodily remains may sometimes or perhaps often not give a
22 possibility to identify whether they were victims. They were persons who
23 had died. When we're talking about "victims," can I take it,
24 Dr. Baccard, that we're talking about the bodily remains of the persons
25 who were the subject of the autopsies?
1 THE WITNESS: [Interpretation] Yeah, that's correct, Your Honour.
2 MR. MARGETTS: Thank you, Mr. President.
3 Mr. President, if we could please have 65 ter 7048 presented on
4 the screen.
5 Mr. President, it appears that we have a technical difficulty in
6 locating 65 ter 7048 in e-court. If I could just a moment while my
7 assistant attempts to remedy that.
8 MR. KEHOE: Excuse me, Counsel. It still hasn't been uploaded in
9 e-court. I think we can do it via Sanction; it might be more efficient.
10 MR. MARGETTS: Yes, Mr. President, it is not uploaded. I do have
11 a hard copy here.
12 MR. KEHOE: Counsel, I have it on Sanction. I can put it on
13 Sanction right now.
14 MR. MARGETTS: Thank you.
15 JUDGE ORIE: Thank you for assisting, Mr. Margetts.
16 Mr. Kehoe.
17 MR. MARGETTS:
18 Q. Yes, Dr. Baccard, can you see the document that's now presented
19 on the screen before you?
20 A. Yes, absolutely.
21 MR. MARGETTS: And, Mr. Registrar, are you able to scroll down
22 this document? No.
23 Mr. Kehoe or... Ms. Katalinic? Could you assist us just to
24 scroll down the first page, and then if we could move to the second page.
25 Thank you very much. And up to the top. And back down, if possible.
1 And then the third page.
2 Q. Dr. Baccard, can you confirm that that is a list that was
3 presented to you by representatives of the Office of the Prosecutor and
4 it references on -- in the right-hand column materials, documentation,
5 autopsy reports that were available to you when you were preparing the
6 report, your expert report.
7 A. Yes, that's correct.
8 MR. MARGETTS: Mr. President, if I could please have an exhibit
9 number for the list, and it could be entered into evidence.
10 JUDGE ORIE: Mr. Registrar.
11 THE REGISTRAR: Your Honours, this becomes Exhibit P2315.
12 JUDGE ORIE: Any objections against admission of this table?
13 MR. KEHOE: Just to the extent that there are redactions from it,
14 Judge. Based on Your Honours' decision, it may cause it to be changed.
15 I don't know if we want to MFI
16 JUDGE ORIE: Perhaps due to the relation with the other documents
17 that we MFI
18 MR. KUZMANOVIC: Your Honour, I wanted to put on the record that
19 I do agree with that MFI
20 JUDGE ORIE: Mr. Margetts.
21 MR. MARGETTS: We would say that this merely reflects that that
22 was the basis for his conclusions with and doesn't reflect on the
23 admissibility of the underlying material.
24 JUDGE ORIE: Yes. Wouldn't it be -- wouldn't the relevance be
25 totally dependent on.
1 MR. MARGETTS: Yes, Mr. President.
2 JUDGE ORIE: So to that extent, it will be marked for
4 MR. MARGETTS: Yes.
5 JUDGE ORIE: Please proceed.
6 MR. MARGETTS:
7 Q. Dr. Baccard, in your report at page 4 you list the members of the
8 monitoring team, and you list the members of the Croatian forensic
9 pathology team that were present at the mortuary in Zagreb. Would you be
10 able to just explain to the Trial Chamber the role that you played in
11 this monitoring mission and the extent to which you observed the various
12 steps that took place in the mortuary and the various procedures that the
13 Croatian pathologists undertook? If you could just describe that to the
14 Trial Chamber, in general terms.
15 A. The role of the monitoring team was to monitor the methods used
16 by the Croatian forensic experts in the course of the autopsies, and in
17 the very large sense of the term, so it include the geography of the
18 deceased and external examination and the post-mortem, so dissection
19 property speaking. And then the other steps where we carried out
20 anthropological examinations and the cleaning up and examination of
21 clothing with a few exceptions. We did not actually witness the
22 odontological examination which was carried out for identification
23 purposes only.
24 Q. Thank you, Dr. Baccard.
25 I would like to refer to you an exemplar of the autopsy reports
1 and other material that you had available to you when you were preparing
2 your report.
3 MR. MARGETTS: And, Mr. President, if I could please have
4 presented on the screen, 65 ter 6040 which is currently marked P1692.
5 Q. Now, Dr. Baccard, I'd just like to go through this exemplar
6 autopsy report in order that can you explain to the Trial Chamber
7 precisely the nature of each of the documents that in this collection
8 materials, who prepared those documents, at what time you reviewed those
9 documents, and the role that they played in the preparation of your
10 expert report.
11 And so the first page we see on the screen is the page that is
12 marked X0163310, and it's headed autopsy report, and that document
13 continues until page 3312.
14 So, Dr. Baccard, if could you just address first the autopsy
15 report and what is contained in the autopsy report and the role that
16 played in the preparation of your expert report.
17 A. Well, this document is a translation of a report drawn up by the
18 forensic doctor, Dr. Blazanovic. It's a document which obviously was not
19 handed out to me on the very day of the autopsy.
20 You have to realise that the presence of the Croatian forensic
21 expert was -- he was only there at the time of the autopsy. So during
22 the radiological examination of the body, this was done by a radiologist,
23 and we were present but the -- a Croatian forensic pathologist was not
25 After this initial step of the radiological examination, the
1 radiologist draws up a report for his colleague, the Croatian forensic
2 pathologist, and it is with that radiologist report that the Croatian
3 forensic pathologist carried out the autopsy.
4 Now obviously in the course of the autopsy, we were in
5 attendance, and we were discussing with -- back and forth with our
6 Croatian colleagues regarding their findings and their conclusions.
7 These were only provisional conclusions because we were still missing a
8 concern number of other data that were going to be available later, such
9 as the pathologic data and the cleaning up and examination of clothing
10 and the odontological examination. Now have you to realise that when you
11 deal with this one same body, all these expert examinations take a
12 certain time, and this time has been divided up.
13 Generally speaking the various operations were not carried out on
14 the same day. So first you have a certain number of bodily remains to be
15 X-rayed. And then maybe two or three days later, the autopsies are
16 carried out by the Croatian forensic pathologists and the autopsy
18 In the course of the autopsy, the corpses are undressed. The
19 pieces of clothing are taken by the autopsy assistant. And in the
20 afternoon or maybe the following day, the pieces of clothings [as
21 interpreted] are washed and the projectiles are collected along with
22 personal belongings. And everything is then exhibited in the autopsy
23 room, and that's when we were able to examine the pieces of clothing.
24 And generally speaking, when we were examining the clothing at the same
25 time we were carrying out anthropological examination. That means that
1 the bones that were collected in the course of the autopsy were cleaned
2 up by the autopsy assistants or technicians, and these bones were
3 displayed for the anthropologist, Dr. Mario Slaus. And then finally came
4 the time for the odontological examination. This is when a forensic
5 dentist who actually came maybe every five, six or, seven days, would
6 examine the mandibles and the teeth of the corpses. So it took place in
7 different steps, if you like. And what you find in the translation of
8 the autopsy report, which you have before you, is a document which was
9 established a posteriori by the forensic pathologist which -- and he
10 includes in his summary report the various reports established by his
11 colleagues, the radiographer, the anthropologist, and the findings made
12 after the examination of the clothing, and then the odontologist report.
13 Q. [Previous translation continues] ... and we have before us on the
14 screen a summary of the findings, including the cause of death.
15 MR. MARGETTS: And, Mr. Registrar, if we could please move to the
16 second page.
17 Q. Dr. Baccard, if you could just take us through these various
18 sections marked A through to E. I take it, Dr. Baccard, that in your
19 general description of the procedure and the various steps that were
20 undertaken that the results of those examinations of the remains, the
21 clothing, identifying features, bodies parts, and then injuries. And
22 then we see, at the bottom if we scroll down, findings on fluoroscopy and
23 reference to the radiographer. These matters were all collected into
24 this autopsy report. Correct?
25 A. Yes, that's correct.
1 MR. MARGETTS: Mr. Registrar, if we could move to the next page.
2 Q. And then you see that there is a final reference to samples that
3 were taken, including a DNA
4 Now, Dr. Baccard, there's one further matter I'd like to proceed
5 with looking at the documentation that you had available to you when you
6 were preparing your expert report, but just one further matter.
7 At the time that you were monitoring these autopsies, did you
8 take notes and set down your observations contemporaneously with your
9 monitoring of these examinations?
10 A. Yes, of course, yes. I was taking notes at the various steps of
11 the examination, be it at the X-ray examination or even at the time of
12 the autopsy or at the time of the anthropological examination and the
13 examination of the pieces of clothing.
14 Q. And, Dr. Baccard, in June 2003 when you prepared your expert
15 report, did you have those notes available to you for review?
16 A. Yes, absolutely.
17 Q. Do you still have those notes, or have you misplaced them?
18 A. I must have them. However, I was not able to find them following
19 your request. I moved twice in the meantime. And just before I moved to
20 The Hague
21 Q. Thank you, Dr. Baccard.
22 MR. MARGETTS: Mr. Registrar, if we could please move to the next
24 Q. Dr. Baccard, this is an exhumation and mortuary evidence sheet.
25 Could you explain to the Trial Chamber what information this records and
1 when it was compiled.
2 A. It is a document or a sheet that was established by the scene of
3 crime officer, Mr. Frydenlund. This sheet recaps in a general way
4 various examination procedures and mentions also who was present at the
6 Q. Thank you.
7 MR. MARGETTS: Mr. Registrar, if we could please move to the next
9 Q. Dr. Baccard, again, this page headed "clothing," could you
10 explain who prepares that.
11 A. It's the scene of crimes officer.
12 Q. And the nature of the observations that are set out in this
13 sheet, what type of observations are made?
14 A. Essentially these are clothing and their features. So everything
15 that can help us identify something.
16 MR. MARGETTS: And, Mr. Registrar, if we could please refer to
17 the next page, which is headed "personal artefacts."
18 Q. Dr. Baccard, who prepares this list of personal artefacts?
19 A. Once again, it is the scene of crime officer.
20 Q. And this document, is it prepared at the mortuary?
21 A. That's correct.
22 MR. MARGETTS: Mr. Registrar, if we could please move to the next
23 document, next page.
24 Q. Dr. Baccard, does this refer to the fact that a DNA sample was
25 taken from the right femur?
1 A. Yes, that's correct. A bone fragment of the diaphysis of the
2 right femur. And when I speak about the diaphysis, it is the long
3 cylindric bone of the femur. And this was -- a sample was taken in order
4 to identify it through DNA
5 Q. Thank you, Dr. Baccard.
6 MR. MARGETTS: And, Mr. Registrar, if we could move to the next
7 page, which is an artefact listing.
8 Q. Again, is it the scene of crime officer that prepares this is
10 A. Yes, that's correct. And in this case it was Mr. Frydenlund.
11 MR. MARGETTS: Mr. Registrar, if we could move through the next
12 series of pages which are a series of photographs. That's from page
13 3318, and then 3318 B and C.
14 Q. Dr. Baccard, are these the X-rays that were taken of the body?
15 A. Yes, indeed. To be more specific, these are body parts that had
16 a particular interest for us during the examination, and it was done
17 through an X-ray exam.
18 MR. MARGETTS: Mr. Registrar, if we could please move three pages
19 on, which will be to 3318 B. I may have gone one too far. If you can
20 just go back one. Mr. Registrar, about two. Thank you.
21 Q. Dr. Baccard, looking at that top X-ray what does that represent,
22 or what does that depict?
23 A. The top X-ray shows vertebrae -- ribs - correction. Some are
24 mixed, some are where they're supposed to be. And there's a long object,
25 metallic elongated object which seemed to be a jacket, a projectile
2 Q. Thank you, Dr. Baccard.
3 MR. MARGETTS: Mr. Registrar, if with he can move to page 3319,
4 which will be two pages on, I expect. Yes, correct.
5 Q. This is the radiology report. And does this radiology report
6 describe those X-rays that we have just seen?
7 A. I suppose so, but since I do not read Serbo-Croatian, I cannot
8 confirm it.
9 Q. When we referred to the translated autopsy report, we looked at
10 page, and at the bottom of page 2, there was a reference to fluoroscopy
11 findings. When you prepared your expert report, did you rely on the
12 description of fluoroscopy findings that were set out in that autopsy
13 report that had been translated?
14 A. No. I did not have with me those notes, but I was present every
15 time the radioscopy of the bodies was made, and it was myself taking
16 notes. Furthermore, the X-rays were available during the autopsy when
17 the autopsy was made, rather, but there was no report. The radiologist
18 report did not exist at the time, or was not made available.
19 Q. When you were preparing your expert report in June 2003, did you
20 have your notes? And did you have copies of the X-rays? And did you
21 have the translation of the autopsy report?
22 A. I had the translation of the autopsy report, not as such, rather,
23 but only the part that was put in the report of the pathologist. I also
24 had some X-rays. We're not really talking about real X-rays. Those are
25 rather pictures of X-rays and, of course, I had my own notes which I had
1 taken during the X-ray exam itself.
2 Q. Yes, Dr. Baccard. This confusion may be my own, but I'd just
3 like to return --
4 MR. MARGETTS: Mr. Registrar, to the first three pages that we
5 displayed with this exhibit, if I could, and just receive some
6 clarification in relation to those.
7 Q. So, Dr. Baccard, this -- this document headed "autopsy report" --
8 MR. MARGETTS: If we could scroll to the next two pages. And to
9 the next page.
10 Q. Sorry, this may just be my own confusion. But at the time -- in
11 June 2003 when you prepared the expert report, did you have these three
12 pages available to you for review?
13 A. Yes, absolutely. I did.
14 Q. Thank you very much, Dr. Baccard.
15 MR. MARGETTS: Mr. Registrar, if we could now please move to --
16 and we'll go through the final pages relatively quickly, to page 3320,
17 which should be ten pages on from -- it should be page 10 or possibly
18 page 11. Thank you.
19 Q. These notes are headed "exhumation site notes." Can you explain
20 to the Court when these were prepared?
21 A. These notes were prepared during the exhumation to which I did
22 not attend.
23 Q. [Previous translation continues] ... were these notes prepared at
24 the mortuary, or did you see them later when you were preparing your
25 expert report?
1 A. I believe that those notes were put -- were given to me later on
2 but not at the time of the autopsy at the morgue.
3 MR. MARGETTS: Mr. Registrar, if we could please proceed to the
4 next page.
5 Q. And, again, this is exhumation and mortuary operations, mortuary
7 Do you know who prepared this document?
8 A. This document was not prepared, apparently.
9 Q. Yes. Who would have -- what would have been the purpose of this
10 document, had been completed?
11 A. To complete the eventual discoveries that would have been made
12 during the autopsy and that were not taken into account at the time of
13 the exhumation, such as additional clothing that were not listed or
14 personal items that were not identified.
15 MR. MARGETTS: Mr. Registrar, if we could go to the next page.
16 Q. This page here, Dr. Baccard, when would have that been prepared?
17 A. It's a note sheet that is usually used during the exhumation.
18 MR. MARGETTS: Mr. Registrar, if we could move to the next page.
19 Q. Dr. Baccard, this is a photograph. Did you see these
20 photographs, which are taken more contemporaneously with the death, at
21 the time when you were in the mortuary, or did you receive them and
22 review them at some later time?
23 A. I most certainly did see all these photographs when I drafted my
24 report. In some cases, those photographs were available during the
1 MR. MARGETTS: And, Mr. Registrar, if we could please move to the
2 next page.
3 Q. Again, this document here, when did you first see documents of
4 this nature?
5 A. This document was annexed to the file that was given to me when I
6 drafted my report.
7 MR. MARGETTS: If we move, please, to the next page,
8 Mr. Registrar.
9 Q. Again, Dr. Baccard, who prepared this document?
10 A. This is a report that is prepared in the Croatian language by the
11 Croatian forensic expert.
12 MR. MARGETTS: And, Mr. Registrar, if we could please move to the
13 next page.
14 Q. Dr. Baccard, who prepares this document?
15 A. This is a report that shows the anthropological examination, and
16 it was drafted by the Croatian anthropologist, Dr. Slaus.
17 MR. MARGETTS: Mr. Registrar, if we could please move to the next
19 Q. Dr. Baccard, this is it an odontology report. Did you see this
20 when you were in the mortuary?
21 A. Exceptionally, we were able to take part in the exam that was
22 carried out by the dentist so we were present. But this exam was often
23 -- often took place at the same time as the anthropological exam. So
24 this is a report, a handwritten report which was carried out at the same
25 time as the rest.
1 Q. Thank you, Dr. Baccard.
2 MR. MARGETTS: Now, if we could move to the next page,
3 Mr. Registrar.
4 Q. Dr. Baccard, we have already dealt with this document in this
5 collection. It appears at 3319 as well as 3328. So we won't deal with
6 this one again.
7 MR. MARGETTS: And if we could move to the final document, which
8 is a lengthy one.
9 Q. Dr. Baccard, what's this document that you see here?
10 A. This is a report written in the Croatian language. It's a
11 summary report. It's an autopsy report in fact drafted by the forensic
12 expert and it takes into account everything, and it's his conclusion.
13 MR. MARGETTS: And if we could just scroll through the remaining
14 pages, which are 3329 through to 3337.
15 Q. And, Dr. Baccard, I --
16 MR. MARGETTS: If we could move forward. Move forward to the
17 next page. Scroll down and then move forward. And move forward again,
18 please, Mr. Registrar.
19 Q. And, Dr. Baccard, can you confirm that that set of pages marked
20 3329 through to 3337 comprise the autopsy report that is prepared by the
21 Croatian pathologist?
22 A. 3397? Is it 33 ...
23 Q. [Previous translation continues] ... misspoken. It's X0163337
24 which is the final page.
25 A. Yes, that's correct.
1 Q. Thank you very much, Dr. Baccard. Thank you for taking us
2 through all of those pages.
3 I just have one final matter I'd like to address. And that's
4 just for the benefit of the parties and the Trial Chamber. When you're
5 examining the remains and seeking to ascertain cause of death, can you
6 explain to the Trial Chamber precisely what the -- the range of findings
7 you can make are. In other words, are there any limits, in terms of the
8 extent to which you can describe circumstances or cause of death?
9 A. It's a very wide question, and I may give you a long answer.
10 As you know, when one carries out an autopsy, it is to determine
11 the cause and the circumstances of death. The cause of death can only be
12 confirmed after a whole series of examinations, and this is various
13 procedures which will look at the state of conservation of the body, and
14 this may create a limit to the autopsy. Then we have to see which
15 identification elements can be drawn up, whether -- to see whether it was
16 a male or female, if there any other characteristics such as scars,
17 tattoos, or other. And afterwards, there is an inventory that's made of
18 various injuries. And among those various injuries, we can find injuries
19 that are benign, and other injuries are more serious. And can you also
20 find injuries that can be considered as being potentially deadly. And
21 after establishing this inventory of wounds, one can come to a conclusion
22 as to the cause of death. One can, for instance, have a victim or a
23 person that's deceased who received -- who is injured at the hand, for
24 instance, and there's a another person -- or if the same person received
25 also a bullet at the heart, of course, the cause of death is not the
1 bullet found in the hand of the person but the bullet found in the heart
2 because there is a cardiac arrest. And so the determination, the cause
3 of death, is only concluded at the end of the autopsy. And then of
4 course one has to determine the circumstances of death. And the
5 circumstances of death can be only -- the conclusion can be only made
6 after examining various elements, whether it -- there's a whole slough of
7 elements that one can find, whether it is an entry wound behind the head,
8 or if you could see that a person was shot at point blank, whether there
9 is an multiple lesions or dramatic lesions. All this can eventually help
10 us conclude why the person died. So, of course, you're asking me whether
11 there are limits to this exam. Obviously, if the body is deteriorated --
12 the more the body is deteriorated, the more the conservation of the body
13 is bad, and the forensic pathologists will not have sufficient elements
14 to come to these conclusions. Of course, it is it much easier to find
15 the cause of death, but the circumstances of death are much more
17 Yes, Your Honour.
18 JUDGE ORIE: [Previous translation continues] ... may I please
19 ask you to slow down for the interpreters.
20 THE WITNESS: [Interpretation] Yes, of course.
21 I was saying the conclusions that one can draw as to the
22 circumstances of death are usually made after a more refined analysis,
23 and it is based on various indicia. It is much more difficult to find
24 out the circumstances of death than the cause of death. As to the other
25 limits, there are other limits, and they are linked to the fact that a
1 corpse may be whole or not. We can sometimes only find body parts and
2 that, of course, if -- if 80 percent of the body is missing, the forensic
3 pathologist will have a lot of trouble to determine the cause of death,
4 unless if, for instance, he has a skull in his hands, and there was a
5 projectile injury at the skull.
6 So to have the entire body is an important element. The
7 conservation of the body is also an important element, and this is why we
8 are very often called to use various sources of information, whether it
9 is photographs taken at the inhumation. But it is also the X-rays, the
10 X-ray photographs are very important. And this can show us small
11 elements that cannot be seen during the autopsy because of small
12 fragments that can be found there, and that are all inside the putrefied
13 parts. And so the radiography, the X-ray is very important because we
14 can see the small elements. Also the examination of clothing is very
15 important, and obviously one can make a difference or one can come to a
16 conclusion whether a person was injured by a projectile or because of an
17 explosive. If you have a burst of small shrapnels, and you can see that
18 at a leg, and you have only one only entry point in a pair of trousers,
19 this will help to us understand, of course, aside from the small shrapnel
20 fragments, but this will be able to show us that there was one projectile
21 that entered and then fragmented, for instance.
22 So all these elements are taken into account when the forensic
23 pathologist is analysing the causes of death and the circumstances of
25 Q. Thank you, Dr. Baccard.
1 In terms of the time of death and when the person died, what
2 observations can a forensic pathologist make that would assist them in
3 ascertaining time of death, if they are in fact able to ascertain time of
5 A. We are able to evaluate, of course, always approximately the time
6 of death when we intervene very rapidly after the death of the person.
7 But as time goes by it is more difficult to put a date to a death of a
8 person with certainty and this is, of course, linked to the non-specific
9 character of putrefaction, and also other factors that can influence
10 putrefaction. For instance, how big the body is, whether the body was
11 dressed or not, the nature of the earth where the body is inhumated,
12 whether there is water that is around that area where the person is
13 found, whether there was plastic bag around the body, whether there was a
14 coffin, so all this influences the putrefaction factor.
15 So during the examination we were not able to also carry out
16 entomological examinations such as the presence of various insects and
17 larvae on the body. If this examination was not carried out, it would
18 not -- it's -- it's completely incorrect to try to put a date as to the
19 death of bodies that were exhumed many years later.
20 Q. Thank you, Dr. Baccard. Thank you for answering my questions.
21 MR. MARGETTS: Thank you, Mr. President, that concludes the
23 JUDGE ORIE: Thank you, Mr. Margetts.
24 We could either have, again, an early break and then to continue
25 for approximately one hour and a half. But I do not know how much time
1 the parties would need. Who is going to start?
2 MR. KUZMANOVIC: Your Honour, I'm going to start, and I have
3 substantial amount of time. It's going to go more than today, so ...
4 JUDGE ORIE: Yes, more than today.
5 Then I take it that you'd prefer to have an uninterrupted first
7 MR. KUZMANOVIC: I would, Your Honour, and I don't know -- I
8 mean, obviously the witness is here, and he is ready to go. I prefer to
9 be able to start and finish him at one time, but that's not going to
11 JUDGE ORIE: No, but I see, but rather not to start for
12 20 minutes first and then have a break, but rather have a break
14 MR. KUZMANOVIC: Right, Your Honour.
15 JUDGE ORIE: Mr. Baccard, we will have a break. After the break,
16 we'll further discuss your availability, because we might not finish
17 today and, unfortunately, this Chamber is not sitting tomorrow and the
18 day after tomorrow, and we were informed that you are not available next
20 So we'll discuss that after the break. But we'll first now have
21 a break until 20 minutes past 12.00.
22 --- Recess taken at 12.00 p.m.
23 --- On resuming at 12.23 p.m.
24 JUDGE ORIE: [Interpretation] Dr. Baccard, it's Mr. Kuzmanovic
25 who will begin the cross-examination. He's the Defence counsel of
1 Mr. Markac.
2 Cross-examination by Mr. Kuzmanovic:
3 Q. Good afternoon, Doctor. I'd just like to take you back to the
4 end of your testimony in your direct examination, where you were
5 discussing putting a date of death on the bodies that you were involved
6 in reviewing.
7 And you said on page 55, line 14 and 15: "It's completely
8 incorrect to try to put a date as to the death of bodies that were
9 exhumed many years later."
10 My questions to you in this portion of my cross-examination
11 relate to that statement.
12 Is it fair to say, based on your testimony, that in this
13 particular case to conclude a time of death or a date of death would be
15 A. There is an translation error. I indicated the term illusory
16 that has been translated by incorrect. What I, in fact, meant to say was
17 that over and above a certain lapse of time, it is not scientific
18 possibly to establish with certainty a date of death, and it is even
19 truer for the time of death.
20 Q. Would you agree with me, Doctor, that in this particular
21 instance, meaning in the review of the exhumations and the -- in your
22 expertise as a forensic pathologist, it would be speculative to conclude
23 a date of death for any of the autopsies that were performed in this
25 A. Firstly, the expertise I performed no expertise or examination I
1 performed. I acted only as an autopsy performer. If by performing an
2 exhumation, what does not allow us, if we do not perform examinations in
3 terms of the presence of insects, that does not allow us to determine the
4 date of death. If the body has remained at all times in the same
5 environment before being buried, we can have a better estimate.
6 But the fact that of burying the body and then exhumating the
7 body does not allow to determine the date of death with certainty.
8 Q. Thank you. You, in this case, it's fair to state, had nothing to
9 do with where -- in what part of Croatia
11 A. I don't understand the question translated.
12 JUDGE ORIE: Will you rephrase your question.
13 MR. KUZMANOVIC: I will rephrase the question.
14 Q. Doctor, have you done no investigation, and you were not asked in
15 any form to provide information about the location of where these bodies
16 were found prior to their burial. Correct?
17 A. No. I just know -- I just knew the name of the site where they
18 were exhumated.
19 Q. The reason I ask that, Doctor, is there have been representations
20 made in this case with respect to specifically the bodies that are
21 referred to in these autopsy reports of generally a place where the body
22 was found and a date given as to approximately when the death occurred.
23 And I'm asking you, as a forensic pathologist, and I think you have
24 confirmed that you cannot tell us or you were not asked to tell us about
25 where the body was found, and you could not as a forensic pathologist
1 determine the date of death. Is that correct?
2 A. That is correct.
3 Q. Doctor, can you tell us when the last time you, yourself,
4 performed an autopsy?
5 A. Last Wednesday.
6 Q. And that's something that you do on a regular basis?
7 A. This is that I did on a regular basis, up until my arrival at the
8 International Criminal Court.
9 Q. Was the autopsy -- you don't have to get into any details
10 obviously. Was that performed in your role as a -- at the ICC?
11 A. Yes, that is correct.
12 Q. Before your work at the ICC and the autopsy that you performed
13 there, when was the last time you had performed an autopsy as a forensic
15 A. 2007.
16 Q. The year 2007?
17 A. Yes, that's correct.
18 Q. Now, you -- in your report which is P2314.
19 MR. KUZMANOVIC: And if I could have that on the screen, please.
20 Q. On page 4. And there was some discussion about this. Actually,
21 Judge Orie asked you a question about this and that I wanted to follow up
23 Section 3, background of the report. The first sentence in that
24 paragraph says: "The monitoring mission of the autopsies of the victims
25 exhumed ..."
1 And my question to you is, was it your presumption when
2 performing these -- this review -- and for purposes I'll say what you did
3 was a review, rather than you, yourself, did not commit -- conduct
4 autopsies. Correct?
5 A. Yes, that's correct. I was only there to observe the autopsies
6 that were performed by the Croatian pathologists.
7 Q. So when I'm referring to your work, Doctor, I'll just refer to it
8 as your review, just so we're clear.
9 During your review, Doctor, you had presumed that all the persons
10 that were exhumed from these particular sites were victims of some kind
11 of a crime?
12 A. What is the question?
13 JUDGE ORIE: The question mark, that happens now and then in
14 cross-examination. Something is put to you, and then in the translation
15 the question mark more or less disappears, but that's how --
16 MR. KUZMANOVIC: [Overlapping speakers] ...
17 JUDGE ORIE: [Previous translation continues] ... Mr. Kuzmanovic
18 spoke this sentence.
19 MR. KUZMANOVIC: I'll rephrase it, Your Honour.
20 Q. Dr. Baccard, did you presume when you conducted your review that
21 the people that -- upon whom the review were conducted were all victims
22 of a crime?
23 A. No, absolutely not. I observed autopsies conducted on exhumed
24 bodies in sites for which I was given the name, but like all experts, I
25 have no a priori as regards the particular situation of the body that i
1 have before me. It is only after the expert examination that the
2 circumstances of death appear or not.
3 Q. Doctor, you list the members of the Croatian forensic team on
4 page 4 of your report. Can you tell us -- were you at all critical of
5 any of their work in this process, other than what you've written in your
6 reports, in terms of disagreeing with certain analyses?
7 A. It's certain that I would perhaps not have conducted the
8 autopsies overall in the way in which they were conducted. Notably I
9 would not have fractionated the various times of the examination. I
10 would have no doubt have assembled on a single day the radiographic
11 examination, the forensic exam, the anthropological exam, the examination
12 of the clothing so as to be able to have at the same time all the
14 Q. [Previous translation continues] ... did not reflect upon the
15 seriousness with which they took their work. Correct?
16 A. I don't understand -- what is the question?
17 Q. [Previous translation continues] ...
18 You were critical of certain methodologies, but that did thank
19 did not reflect upon them in terms of the seriousness with which they
20 undertook their work; is that correct?
21 A. That is correct.
22 Q. On page 5 of your report, Doctor, at the top, you do state under
23 methodology that the methodology adopted by the Croatian forensic team
24 was generally -- the word says "conform;" but I would think it would be
25 in conformance with the international scientific standards. Correct?
1 A. Yes. Would it be possible to display page 5.
2 Q. Sure. You'll see at the very top under 4.1, Doctor.
3 A. In answer to your question, that is correct.
4 Q. Page 6 of the report --
5 MR. KUZMANOVIC: If we could go to page 6, please.
6 Q. You -- in the first full paragraph that starts: "The main
8 You discuss that there was a -- there were possible gaps in the
9 chain of custody, and you had explained that briefly in the answer to a
10 previous question. Would you agree with me, Doctor, that the possible
11 gaps in the chain of custody did not affect the report -- reports
12 written, autopsy reports written, and your analysis of those reports?
13 A. I believe, that is, that we asked the Croatian pathologists to
14 secure the rooms where the autopsies were being conducted, to secure the
15 rooms where the bodies were stored, and the room where the clothing was
16 washed and dried. And, therefore, I believe that, given the fact that
17 Professor Strinovic and myself each had a set of keys, that we could
18 consider that the place was secure.
19 Q. So the problem that you address on page 6 about possible gaps in
20 the chain of custody, as far as you're concerned, did not affect the
21 overall result here. Correct?
22 A. That is correct, yes.
23 Q. If we could go to page 7, Doctor. As it's coming up on the
24 screen, you describe the composition of -- and you term them victims
25 groups. And you note civilian or military status in that particular
1 section. "The status was affirmed only when several typical pieces of
2 uniform were present."
3 Now, can you -- can you expand on that and discuss that and give
4 us an indication of what -- what you felt was necessary to determine
5 whether someone was civilian or military.
6 A. Indeed, this is what is described in my observation report. The
7 items of uniform were generally the upper part and the lower part. The
8 forensic experts didn't just base themselves, for example, on the
9 presence of boots or rangers' boots but required a complete uniform.
10 Q. Now, if we could pull up P1692, please.
11 And while that's coming up, Doctor, would remnants of ammunition
12 be considered evidence of someone holding military status?
13 A. No, absolutely not.
14 Q. Let's take a look at the second page of this document, under
15 section E, there is an radiologist finding:
16 "In the projection of the head, we can see a head with three
17 entire bullets as well as the metal bullet frame."
18 And if we go further into the document. Unfortunately, mine are
19 page numbers, so you will have to bear with me for a moment.
20 If you go to page 8 which is the artefact listing, the first
21 artefact listed is a bullet in the thorax, and the second artefact listed
22 is three live rounds in the skull area.
23 And if we go to the next page, which are the smaller radiographs,
24 we have what looks like a clip of three bullets. Correct?
25 A. That is indeed what we see on the X-rays.
1 Q. Now, if those bullets were fired from a weapon, they would not
2 look like that in the skull of a -- someone who was exhumed from a grave,
3 would they not?
4 A. No. I believe here there's a confusion. These rounds are not in
5 the skull but are a projection in the area that was X-rayed at the same
6 time as the skull. That is why the presence of rounds or a clip -- live
7 rounds does not constitute as such an indication of belonging to a
8 civilian or military group. The identifying garment must belong
9 quote/unquote "to the body." During an exhumation the earth around the
10 body may contain just any object, and it's not because the persons who
11 performed the exhumation at the same time put items that are close to the
12 body that said items necessarily belong to the body. There is a
13 distinction to be made, and I repeat, that the criteria that were used by
14 Croatian experts to decide on belonging to the civilian or military group
15 were only based on the fact that said persons were clothed in uniforms.
16 In other words, these uniforms were around the bodies. They hadn't put
17 them on. Same as for the bullets.
18 Q. So, in essence, Doctor, you discounted the fact that there was a
19 live clip of ammunition near this person as bearing any factor on whether
20 or not there person was civilian or military.
21 A. Indeed, that did not come in as part of the criteria that were
22 used by the Croatian experts, and quite rightly, because we don't know
23 whether this clip was in the same position in the burial site or whether
24 it was picked up from underneath, or what its origin was.
25 Q. Doctor, back to your report, page 7. Just as a general question,
1 Doctor, concerning the issue of bullet entry wounds and bullet exit
2 wounds. Nowhere in any of the reports is it shown whether bullet entry
3 wounds were caused by a short-barrel weapon or a long-barrel weapon.
5 A. Yes.
6 Q. You understand, do you not, that the same calibre bullet could be
7 fired from a short-barrelled weapon as could be from a long-barrelled
8 weapon? Correct?
9 A. It depends on the projectiles, but yes.
10 Q. There are several places in various analyses of reports that you
11 have done that have concluded or hypothesised that there was a bullet
12 entry wound or a bullet wound that was a cause of death, but nothing more
13 specific than that. Correct? Meaning about the type of weapon or the
14 type of calibre bullet or something like that, unless an artefact was
16 A. It's also possible in lesional ballistics, wound ballistics to
17 have indications that are derived from the appearance of lesions caused
18 by high-speed bullets, different from those from medium- or low-speed
19 projectiles. We can distinguish between wounds caused by AK-47 rounds
20 and a 9 millimetre round. It is quite possible, and we have to look at
21 the wound profile, what we call the wound profile, the way in which the
22 projectile will interact with the tissue when we're fortunate in still
23 having soft tissue, or, if not, the way in which the projectile will
24 perforate the bounds.
25 Q. Is it fair to state that the kind of analysis that you just
1 described wasn't possible because of the state of the remains, correct,
3 A. Except when we obtained characteristic impact on -- bone surface.
4 But generally speaking, it was difficult to specify the wound profile
5 given the state of tissue degradation.
6 Q. Okay. If we could please go back to page 7 of your report, which
7 is P2314.
8 You state, Doctor, on page 7 under the forensic criteria
9 conservations status, the last sentence that that section: "This
10 criterion was important to know in order to determine the degree of
11 liability of the autopsy's findings."
12 What I'd like to ask you is, what do you mean by the degree of
13 liability? What does that refer to?
14 A. That is depending on the state of preservation of the body, we
15 will have more or less information available to us, in order to determine
16 the nature of the wound suffered. Here we have a body that is reduced to
17 skeleton state. Everything that is surrounding the -- for the missing
18 soft parts we will have to limit our examination to only one of the
19 constituents of the body. When we have greater tissue thickness, there
20 we have far more information stemming from the ballistics examination.
21 Q. I guess for my own benefit, when you say "degree of liability,"
22 would you mean degree of accuracy? Or am I wrong in that?
23 A. Yes, yes, it's the degree of completeness of the findings that I
24 have in mind.
25 Q. Thank you.
1 Now later on in this page, there's a discussion regarding point
2 of entry, and at the bottom of the page, there's a discussion about the
3 characteristics of the projectile have been noted when it was possible.
4 And then it goes on to the next page --
5 MR. KUZMANOVIC: Which I would ask the registrar to move to,
6 please, page 8.
7 Q. It says: "This information being generally absent on the reports
8 of the Croatian experts."
9 And then you have the schematic of the body at various positions.
10 My question to you is: Who was the person or persons who
11 determined the path and trajectory, if it was not done by the Croatian
13 A. The path or trajectories that are in my report of autopsy
14 attendance are trajectories that I determined based on my notes.
15 Q. And the angles and the entries and the exits were all determined
16 from your notes that you did yourself?
17 A. As regards the angles, yes. As regards the point of entry and
18 point of exit, this information which can be found in the Croatian
19 forensic's experts, if my memory serves me well.
20 Q. You told us earlier that your notes that you had regarding this
21 particular analysis or investigation, you don't have or can't find
22 anymore. Correct?
23 A. Yes, you're right.
24 JUDGE ORIE: [Previous translation continues] ... 25 to
25 30 percent of your questions are either seeking, That's what you wrote,
1 is that what you wrote? Or trying to get the same answer two or three
2 times, apparently because you consider them important. Could you please
3 try to be as focussed as possible.
4 Please proceed.
5 MR. KUZMANOVIC: Sure. I will, Your Honour.
6 Q. In the next section you discuss cause of death. And it might
7 seem trivial, but you use the term "the cause of death was established,"
8 and it seems to me that there were potentially several causes of death
9 that were considered in many of these reports. What was it that led to
10 you conclude about "the" cause of death as opposed to "a" cause of death?
11 A. In actual fact, if you read the very last paragraph, I say that
12 the cause of death was established taking into account the potentially
13 lethal wounds. And in some cases, several possible cause of death were
14 identified, and putrefaction did make it possible to determine which was
15 the particular wound that led to the lethal fate of this person.
16 Q. [Previous translation continues] ... it's true that there is no
17 specific cause of death listed as homicide in any of the reports.
18 Correct? Or circumstance of death, I should say.
19 A. Well, I believe that this is a question to be addressed on a
20 case-by-case basis, based on the various autopsies.
21 Q. And doing as such on a case-by-case basis, at least you have not
22 come to any determination that any of these reports concluded that that
23 was a result -- the death was the result of a homicide?
24 JUDGE ORIE: Mr. Kuzmanovic, homicide, is that a legal term, or
25 is it anything else? Isn't homicide killing with intent another person
1 or not with intent, depending on what kind of homicide we're talking
3 Of course, if you want to ask this expert whether he came to any
4 conclusions in terms of intent or whether someone killed by a bullet; it
5 was an accident, that one of his children fired a weapon by mistake or --
6 is that the area? Because homicide is typically a legal term, isn't it?
7 MR. KUZMANOVIC: Well, it wasn't-- I didn't use it, Your Honour.
8 It's in his report. He is the one who put it in his report, and he is
9 the one who used it in his report, so that's why I'm asking, Your Honour.
10 JUDGE ORIE: Yes. Then you did not come to any determination
11 that any of these reports concluded that death was as a result of a
12 homicide. Yes. You couldn't, isn't it? But it's just our understanding
13 of what the expertise of this witness is.
14 MR. KUZMANOVIC: I think, Your Honour --
15 JUDGE ORIE: If you think that it's any -- it's a useful line of
16 questioning, then -- just -- I just want to draw your attention to the
17 fact that whoever uses whatever terminology that it seems to be very much
18 legal expressions, opposed to anything I consider this witness could tell
19 us about, not knowing anything about the circumstances, as he said
20 before. The only thing he knew is the site where the -- the name of the
21 site where the bodies were exhumed.
22 MR. KUZMANOVIC: Understood, Your Honour.
23 JUDGE ORIE: Please proceed.
24 MR. KUZMANOVIC: I guess my question related to his comment that
25 the manner or circumstances of death was noted when this determination
1 was possible. And one of the manners or circumstances he listed was
2 homicide. And my question to him was, were any of these reports listing
3 homicide as a manner or circumstance of death? And his answer was that
4 he didn't know.
5 JUDGE ORIE: Yes, he never concluded that, yes.
6 Please proceed.
7 MR. KUZMANOVIC: Thank you.
8 Q. If we could go to page 33 of your report, please.
9 THE INTERPRETER: Could we close some microphones, please. Thank
11 Q. At the top of page 33 of your report, Doctor, you disagreed with
12 a conclusion of a specific report, and you state in the second sentence:
13 "Indeed several arguments are supporting the hypothesis of gunshots."
14 Now two questions I have regarding this sentence. The first is
15 the subject of arguments. Do you mean facts, or are you being an
16 advocate here on the issue of disagreeing with Mr. Strinovic's report?
17 A. Well, I certainly do not claim to be an advocate of any sort. I
18 base myself on forensic and medical -- or facts in order to do exactly
19 what I was called upon to do, which was to monitor what the Croatian
20 forensic experts were doing and to give my opinion in this respect, and
21 my findings are based on what I monitor.
22 In this particular case, I was in disagreement with
23 Professor Strinovic. At the time of the autopsy, we discussed it
24 together. And at the later stages of the forensic examinations, i.e.,
25 the examination of pieces of clothing and the analysis of X-rays, all of
1 this support my opinion. I believe that this was not explosive injury
2 but an injury caused by the fragmentation of a projectile.
3 Q. And, Doctor, isn't it -- it's true, is it not, that based on your
4 disagreement with Professor Strinovic, that his view was also a
5 reasonable one as much as yours was based on the arguments that he made?
6 Two reasonable people can disagree. Correct.
7 A. Well, I believe that my colleague, Professor Strinovic, is a
8 perfectly reasonable person and is somebody who is respectable, somebody
9 who has very good forensic education. However, in this particular case,
10 we were in disagreement. I argued in favour of my findings. I presented
11 four forensic arguments, and I continued to believe that my assumption is
12 scientifically valid.
13 Q. Just as his is; correct?
14 A. Well, in my report, I said that his assumption was not
15 scientifically valid.
16 Q. The use of the word "hypothesis," and it's used in several places
17 in your report, Doctor. A hypothesis implies that there is insufficient
18 evidence to provide more than one tentative explanation. And it seems to
19 me that in many instances, especially in incidents where you hypothesised
20 there were execution killings, that there is insufficient evidence to
21 confirm there were or there were not those types of killings. Is that a
22 fair statement?
23 A. So what is your question exactly?
24 Q. My question is when you use the word hypothesis, that is not
25 something that can you conclude to a reasonable degree of certainty.
1 That's speculative. You are speculating that there was an
2 execution-style killing based on the evidence that you have before you.
3 Not that in fact occurred?
4 A. Well, I never spoke -- I didn't speak of execution. The point of
5 disagreement with Professor Strinovic regarded the causes of death. He
6 said that a death was due to explosive injury, and I said it was due to
7 gun-shot projectiles. This has nothing to do with the circumstances of
9 Q. [Previous translation continues] ... 54, Doctor, of your report.
10 If you look at the second paragraph of this part of your report,
11 you state with respect to this particular case: "The gun-shot was
12 directed from back to front, slightly downward. It was consistent with
13 the hypothesis of an 'execution-style' shot."
14 Now before I had asked you about the use of the word hypothesis.
15 And would you agree with me that a hypothesis is generally an assumption
16 or a concession made of an argument?
17 A. Yes, quite right.
18 Q. [Previous translation continues] ... that on the issue of your
19 use of the term hypothesis of an execution-style shot would be
21 A. It's one hypothesis. The autopsy is a piece of the puzzle that
22 the magistrate has at his or her disposal and that has to be assessed
23 with the other elements of the expertise. But we have to present all the
24 various assumptions or hypotheses that can be arrived at after our
25 examination of the corpse.
1 Q. But a hypothesis is not a conclusion of the manner of death;
3 A. Well, I said, I said so.
4 MR. KUZMANOVIC: If we could go to page 97 of your report,
6 Q. If we look at the lower part of the document, where you discuss
7 some disagreement with Professor Strinovic's report. You describe a --
8 this particular fracture as "consistent with a blunt-force trauma
9 possibly caused by a weapon's butt."
10 Now, the sole basis for you to make that conclusion was because
11 there was a ping-pong fracture?
12 A. The point of disagreement only concerned the precise location of
13 the trauma of the fracture. Professor Strinovic was mentioning the
14 temporal area which is much lower and on the side of the skull, while the
15 impact, as you can see on the picture, was located in the left parietal
16 bone. So the point of disagreement with Professor Strinovic was only
17 concerned with the location.
18 Now we're dealing here with a typical fracture of a trauma caused
19 by a blunt force. As to the semi-circular shape and the dimension as
20 well as the characteristics are compatible with the hypothesis of a
21 fracture caused by a weapon butt. I -- several times in Kosovo as well,
22 I was able to observe this type of trauma.
23 Q. Were you at any time, Doctor, when you were involved in reviewing
24 those autopsies -- I'll strike that question.
25 This kind of injury that you just described and that we just
1 referred to could also have been caused by someone falling from a
2 significant height. Correct?
3 A. The location of this fracture, which is located on the upper and
4 lateral part of the skull, and also due to the shape of the depression,
5 this is not really compatible with this hypothesis. Now, if there is a
6 priority to be given to the various options, I wouldn't give the fall of
7 a person as being the top priority that would come to mind, in view of
8 this particular fracture.
9 MR. KUZMANOVIC: Can we go to page 99, please.
10 If we go to the bottom of page 99, 5.2.119.
11 Q. There's a discussion here about an injury which you disagreed
12 with initially, and you described that "the injury was with pellets
13 likely fired by a shotgun."
14 Now, were you aware at any point in time that any military
15 personnel in Croatia
16 A. No, no, no. I didn't get this information.
17 Q. And you concluded that the injury was not related to a
18 hand-grenade but something fired by -- pellets fired by a shotgun.
19 Can you explain for me how you came to that conclusion, that it
20 was pellets from a shotgun?
21 A. Yes, absolutely. In this particular case, this is not a
22 hypothesis, but it is an absolute certainty. And if I could have the
23 photographs and the X-rays, I could demonstrate to the Court on what
24 basis I came to this finding.
25 MR. KUZMANOVIC: [Previous translation continues] ... exhibit
1 number handy, but I will take your word for it, Doctor.
2 THE WITNESS: [Interpretation] If you may, if I may, sorry. This
3 was absolutely characteristic. You can see the pellets that are in --
4 into the surface of the bone, so obviously we're not dealing with
5 fragments coming from a hand-grenade. We're dealing with spherical
6 pellets, lead pellets.
7 MR. KUZMANOVIC:
8 Q. [Previous translation continues] ...
9 A. Well, I would say that it was compatible with lead. There was a
10 greyish trace when you touched it. But, of course, there was no analysis
11 carried out, or if such analysis were made, they were not brought -- they
12 were not brought to my attention.
13 Q. [Previous translation continues] ... possibility that it might
14 have been gravel or some kind of pellets from rocks? You know where the
15 territory of these -- of this area of operation that occurred is very
16 rocky and very -- has a lot of areas where gravel are contained in the
17 roadways. Did you exclude that?
18 A. Yes. This possibility can be excluded definitely. The diagnosis
19 of such lead pellets fired by gun-shot are confirmed by the X-rays.
20 Everything that is made of metal is shown in a very dark colour on
21 X-rays. The colour contrast is very clear. Nothing to do with the
22 colour of gravel, for instance, and the shape of these pellets was
23 regular, spherical, all of the same dimension. And I'm sorry we can't be
24 shown the pictures taken in the course of the autopsies or the X-rays,
25 where I wouldn't need to make it any further comments.
1 Q. Doctor, with respect to --
2 MR. KUZMANOVIC: If we could go to page 136, please. Okay.
3 Sorry, that's been redacted.
4 If we could go to 137, please.
5 Q. During the course of your direct examination, you had -- in an
6 answer to a question, you had mentioned the term "scene of crimes
8 MR. KUZMANOVIC: Actually we don't need this page anymore,
9 Mr. Registrar. Thank you.
10 Q. Can you describe for me what you meant by that? That's how it
11 was interpreted anyway?
12 A. Well, in actual fact, these scene of crime officers were part of
13 our team, and they were there as forensic photographers. They were also
14 acting as an officer protecting evidence, recording evidence, describing
15 evidence. They were also describing the pieces of clothing. So this
16 officer had a dual role.
17 Q. [Previous translation continues] ... Was this a Croatian person?
18 Or was this an ICTY person? Who was this scene of crimes officer?
19 A. In our team we included a scene of crime officer, but essentially
20 we had two persons. I think that in the Croatian team, if my memory
21 serves me well, because I can't really remember precisely, but I think
22 they also had a police officer, but I can't be absolutely certain of that
24 Q. Doctor, how many of these -- did you personally see all of the
25 autopsies that were performed, observe them?
1 A. Yes, yes. At least all those that are listed in my monitoring
3 Q. And then what did you do after the autopsies were completed? Did
4 you then go back and write your own report? Did you wait for somebody
5 else to write a report? Can describe for me what you did.
6 A. Well, I was then writing my notes. I was comparing my point of
7 view with that of my Croatian colleagues, and then I was checking with
8 our photographer or scene of crime officer that the appropriate
9 photographs had been taken, and we would make an appointment with the
10 autopsy -- the Croatian autopsy assistants, in order to examine the
11 pieces of clothing.
12 Q. We had already discussed to some extent the fact this is an lot
13 of room for interpretation in these reports and that there's also a lot
14 of room for the reports not being definitive one way or the other on the
15 issue of cause of death.
16 For the most part, you agreed with the findings of the autopsy
17 reports of the Croatian pathologists. Correct?
18 A. Yes, yes. With the few exceptions that I have already mentioned
19 in my report.
20 Q. And then when you list a cause of death as unknown or, for
21 example, the Croatian pathologist lists a cause of death as unknown, at
22 least at that point in time, you had not -- or no one had sought any
23 additional information to try and fill in that gap to change it from
24 unknown to some gun-shot, or grenade, or anything like that. Correct?
25 A. Well, that's more or less true. The Croatian pathologists based
1 themselves on the autopsy findings, and I also took into consideration
2 the examination of the photographs and the pieces of clothing, realizing
3 the limitations of hypothesis one can draw from this.
4 MR. KUZMANOVIC: Your Honour, I will look over my notes. I'm
5 just about done.
6 There's a question I have, but it would be directed to
7 Attorney Margetts, so it really is -- I would want to ask him before i
8 ask the witness. It has to do with the redactions, Your Honour. The
9 reason I say this is we got the redacted report relatively recently. And
10 I, of course, had marked up the non-redacted report, and some questions I
11 had were involving areas where there were redactions. So I would like to
12 ask him about that before I conclude my questioning.
13 JUDGE ORIE: Yes. I take it that the questions you want to put
14 if the witness would hear them and would hear the answers, would that in
15 any way prejudicial to -- possible.
16 MR. KUZMANOVIC: I think would be better if the witness removed
17 his headphones, and I just went to chat with Mr. Margetts, just for a
18 moment, Your Honour.
19 JUDGE ORIE: Yes. Because if you stay at a distance, he would
20 understand everything, yes.
21 So perhaps he could better keep his earphones on, which is even
23 MR. KUZMANOVIC: Sure. That's fine.
24 JUDGE ORIE: If you were -- could consult with Mr. Margetts more
25 closely, then you're free to do so.
1 MR. KUZMANOVIC: Thank you, Your Honour. I'll be just a moment.
2 [Defence counsel confer]
3 MR. KUZMANOVIC: Your Honour, I had enough questions to take me
4 through the rest of the day based on the redactions, which are now
5 redacted, so I don't have further questions.
6 JUDGE ORIE: Thank you, Mr. Kuzmanovic. It also gives me an
7 opportunity to express that, in all fairness, I had overlooked the use of
8 the word "homicide," although it nowhere materialised any further on.
9 And that what I put as a question to you and perhaps with a -- in a tone
10 which might not have been the appropriate one, that perhaps it should
11 have been addressed to someone who used that word in this context where
12 it's unclear whether it could mean anything more than a legal concept. I
13 just want to put this on the record.
14 MR. KUZMANOVIC: Thank you, Your Honour. No offence taken.
15 JUDGE ORIE: Who is next in line for the --
16 MR. KEHOE: Mr. President, mine is next. I do believe, in
17 fairness to the witness, I mean, taking him back and forth without some
18 continuity, and that it's going to be difficult, and I don't think I am
19 going to finish in this period of time. I think it would be quicker if I
20 went from start to scratch as opposed to going through it and having some
21 five, six, seven days down the line just rehashing what we did before,
22 just to bring it back into context.
23 [Trial Chamber confers]
24 JUDGE ORIE: Mr. Margetts.
25 MR. MARGETTS: Mr. President, I feel obliged to observe that
1 Dr. Baccard is someone whose time, particularly at this moment in this
2 month is at an absolutely premium, and we have had some problems with
3 scheduling his evidence, and we obviously don't want any time that he is
4 attending these premises to be wasted, and so we would say given that
5 consideration, it would be far better from our point of view if this time
6 was used.
7 JUDGE ORIE: Yes. Could I inquire with the Cermak Defence team
8 whether they have any questions.
9 MR. CAYLEY: We don't have any questions for this witness. Thank
10 you, Your Honour.
11 JUDGE ORIE: Mr. Kehoe, the Chamber is not fully convinced yet
12 that it would save time so invites to you start your cross-examination.
13 [Interpretation] Mr. Baccard, the next counsel who will
14 cross-examine you is Mr. Kehoe, and he defends Mr. Gotovina.
15 Cross-examination by Mr. Kehoe
16 Q. Good afternoon, Doctor, it's a pleasure to meet you. Doctor, I
17 would like to ask you some general questions, and I think that you can
18 probably move through some of this quickly. And I think you did touch
19 upon it in response to some questions by Mr. Kuzmanovic. But I think you
20 would agree, Doctor, that the fact that these bodies were in the ground
21 for several years, that they were in an advanced state of decomposition
22 and many had skeletal remains, obviously made your analysis and the
23 analysis by the Croatian pathologists very difficult. You would agree
24 with that, do you not?
25 A. That's correct.
1 Q. And I do believe, I think you've touched on this just a bit with
2 Mr. Kuzmanovic when you were answering some questions generally about
3 being a forensic pathologist with the experience level that you have,
4 that generally when you're doing a forensic examination and coming to a
5 conclusion in an autopsy, you have tissue and organs, and based on an
6 analysis of damage to tissues and organs, you can make a more thorough
7 conclusion as to the cause of death. Isn't that right?
8 A. Yes. But the forensic pathologist has to often give conclusions
9 on bodies which are quite decomposed, yes. We -- we are used to working
10 with bodies that are often very much damaged.
11 Q. I understand that. But it makes your ability to render accurate
12 conclusions concerning the cause of death, for instance, more difficult
13 when you're faced with merely skeletonized remains or maybe skeletonized
14 remains with minor degrees of saponified flesh. It makes it more
15 difficult to make that conclusion.
16 A. That's correct.
17 Q. And just to wrap this up, that is also because you have
18 skeletonized remains, you can look at things such as bruising and wounds
19 in the flesh to make determinations concerning, say, bullet-holes or
20 maybe a knife wound or something of that nature. Is that accurate?
21 A. That's correct. When we examine remains that are skeletonized,
22 we can only see what is present at the bone level. Everything -- if
23 everything else has disappeared, we cannot conclude anything as to the
24 disappeared flesh.
25 Q. And, of course, if you just have skeletonized remains, you can't
1 make a determination whether or not an individual died from natural
2 causes, such as disease, heart attack, something of that nature?
3 A. That's correct. Unless the illness touches the skeleton itself.
4 Q. I understand. Let me -- I'd like to ask you a couple of
5 questions based --
6 JUDGE ORIE: Mr. Kehoe, may I take it that page 80, line 16, that
7 there's -- that you intended to say, You can't look at things as, because
8 the witness confirmed that it was correct, but in view of the question, I
9 think it needed some clarification, like in your next question.
10 Please proceed.
11 MR. KEHOE: Yes. Thank you, Mr. President.
12 Could we turn to P1251, which is the report of Dr. Clark. And if
13 I could turn to page 4 of this document, which is 235. Three pages up.
14 Q. And in the first paragraph in deciding -- this is Dr. Clark's
15 report, and he is deciding -- breaking it into various areas, and the
16 paragraph is dealing with decided whether a particular finding was
17 genuine or not, and he writes: "With discoloured and broken down tissues
18 assessments such as things as bruising, wounds, or bullet-holes in the
19 skin was extremely difficult, and in many cases impossible, as the
20 changes seen could have been part of the normal post-mortem process."
21 You agree with that, do you not, Doctor?
22 A. Yes.
23 Q. And staying with that concept of post-mortem and pre-mortem
24 processes, oftentimes it is very difficult to make a decision when you
25 are looking at skeletonized remains whether that particular injury that
1 you may see to a skeletal structure took place antemortem or post-mortem.
2 Isn't that right?
3 A. It is it more difficult, but it is not impossible, especially if
4 you are dealing with bleeding, which can happen at the level of the
5 factors, for instance, or the defect.
6 Q. Well, let's stay with that just a little bit. If we're talking
7 about hemorrhaging or some type of bruising, you wouldn't be able to
8 examine those types of things in skeletonized remains, you would have to
9 have some type of flesh to see that type of wound, would you not?
10 A. It is it not quite true because if you are talking about
11 hemorrhage or the ecchymosis, it leaves the traces on the -- on the skin,
12 on the flesh, and then you can see that there was a blood collection at
13 that level.
14 Q. Of course, Doctor, that is assuming you have skin. And most of
15 the bodies that you looked at didn't have skin, right?
16 A. No. But I'm talking about the colouration of the surface of the
17 bone. Let's talk about the skull. You can have a collection of blood
18 that can disappear after putrefaction, but you can have a colouration on
19 the bone which shows that previously there was a blood collection that is
20 it now gone because of the putrefaction. It is it all a matter of
21 case-by-case analysis. It is very difficult to draw conclusions or rules
22 when we talk about this.
23 JUDGE ORIE: A translation issue. I was listening to the French.
24 Could I invite to you look at your screen where the text appears, and
25 look at page 82, lines 7, 8, and 9.
1 Could it be that you said something different in French as to
2 where the traces were to be found?
3 THE WITNESS: [Interpretation] What I said is that in some cases
4 we can still see on the bone surface the print of a hemorrhage that took
5 place when the wound touched the bone.
6 JUDGE ORIE: [Previous translation continues] ... Mr. Kehoe,
7 please proceed.
8 MR. KEHOE:
9 Q. Doctor, let's just take this post-mortem and pre-mortem analysis
10 yet further. You were doing these exhumations in 2007 with bodies that
11 had been in the ground since approximately mid-1995, or the latter part
12 of 1995. And when you were examining these bodies with the Croatian
13 forensic pathologists, did you notice various damage, items of damage to
14 the skeletonized remains that you concluded were post-mortem type of
16 A. In many cases, the lesions were attributed to a post-mortem
17 traumatism whether it's during the exhumation, maybe a shovel hit or
18 something like. And also there are certainly also traces of various
20 Q. Tell us about the scavengers. I didn't see that in your report.
21 I mean, what kind of traces of scavengers did you see?
22 A. I was not referring to that type -- to this in my examination.
23 When you have post-mortem traumatisms, you can also -- you have to take
24 into account also scavenging, but I do not address those issues in my
1 Q. You're saying that, generally speaking, you have to take into
2 account scavengers when you're looking at post-mortgage damage, you
3 didn't necessarily conclude that there was scavengers in this particular
4 situation; is that accurate?
5 A. No, absolutely not. It was a general answer regarding possible
6 origins of various post-mortem lesions.
7 Q. I just wanted to clarify that. If we can go back to this report
8 by Dr. Clark on number 2, he is dealing with post-mortem damage. And he
9 notes in his examination, and this is a different scenario. This is a
10 different cemetery. He notes that dealing with the latter, post-mortgage
11 was certainly a consideration and something that could have occurred in a
12 number of ways. In the process of handling the bodies and putting them
13 into graves in the first place from the pressure of compacted soil or
14 other bodies over the years or from the final process in exhuming them.
15 I know that that's somewhat of a limited list. Would you agree
16 that those are all possibilities, that post-mortem damage could occur to
17 a corpse and/or to skeletonized remains?
18 A. Yes, that's correct.
19 Q. Taking this from Dr. Clark's experience and bringing it to yours,
20 I'm interested in the amount of post-mortem damage that you observed
21 going through these autopsies, because I read how that your report, and I
22 didn't see any indications of post-mortem damage. Do you recall during
23 your report -- maybe I missed it. And pardon me if I did, Doctor, with
24 all due respect, I may have missed it. But do you recall listing when
25 you were going through here what you considered to be post-mortem damage
1 when you're assessing the injuries either to the skeleton or to a corpse?
2 A. I believe that I must remind you that my report is a monitoring
3 report. It's a report of a monitor. I was present there in order to
4 give my opinion on the quality of work undertaken by my Croat colleagues,
5 and this is not an expertise report. This is a report drafted by an
6 expert on an expertise that I did not carry out myself. And to answer to
7 your question as to post-mortem or antemortem lesions, this is in the
8 report of the Croat forensic experts, some squares are checked,
9 post-mortem damage or antemortem damage is checked. So these are
10 elements taken into account, but I, myself, did not have to make any this
11 particular observation as to this. My report was rather an internal
12 report. It was made for the OTP, and I never thought, or I did not think
13 that it would be produced subsequently to the Chamber. And this is not
14 an expertise, a report, I draft expert reports that are completely
15 different. This is a technical report.
16 JUDGE ORIE: I am aware that we have to deal with some scheduling
17 issues as well. So I wonder whether this would be a suitable moment.
18 MR. KEHOE: It is, Mr. President.
19 JUDGE ORIE: The first part of the scheduling issues, I would
20 like to deal with in the presence of the witness.
21 Dr. Baccard, I was informed that you are not available, that you
22 have a lot of work to do next week.
23 Mr. Kehoe, could you tell us how much -- how much time you'd
24 still need?
25 MR. KEHOE: Mr. President, a few hours. I think a little bit
1 more than a session. Session an a little bit more than that.
2 JUDGE ORIE: So two hours.
3 MR. KEHOE: I think that's --
4 JUDGE ORIE: Two hours.
5 Now, I appreciate, and I fully respect if you have no two hours
6 available next week, Dr. Baccard. If, however that would be different,
7 if you say, Well, I'm not available for a whole day or for two days, that
8 is fully understood. Your unavailability would also be firm if we are
9 talking about half a morning --
10 THE WITNESS: [Interpretation] On what date?
11 JUDGE ORIE: That's a matter still to be -- still to be
12 considered then. If you would say, Certainly not on this day, but I
13 might find could or three hours on another day, then we might try to find
14 -- because we have -- we are not fully booked with witnesses next week to
15 say the at least and, of course, if we try to lose as little time as
16 possible. I would like to hear from you whether three hours would be ...
17 THE WITNESS: [Interpretation] Your Honour, it is going to be very
18 difficult. Because I have to answer an order by the ICC, and they are
19 ordering me to compile three expert reports by next Friday. And last
20 week, there was this mission to Africa
21 able to free myself for half a day next week.
22 However, I'm entirely at your disposal next week at any date, for
23 any date.
24 JUDGE ORIE: [Previous translation continues] ... from exploring
25 the possibility, but your answer is you couldn't find close to half a day
1 next week.
2 I'm -- I hardly dare to ask, but you say have you to deliver
3 those reports on Friday? Is that Friday close of business? Because ...
4 would there be any time remaining on Friday? [Microphone not activated]
5 [Previous translation continues] ... and, if not, of course, we're ...
6 May I take your silence as an expression of being perhaps a bit
7 unpleasantly surprised by this question? Is that a proper understanding?
8 THE WITNESS: [Interpretation] No, I understand very well.
9 However, I cannot tell you right now, knowing all the work that's
10 awaiting, that's ahead. But maybe next week at the beginning of the
11 week, I would be able to give you some answer depending on how much I'm
12 advanced --
13 JUDGE ORIE: [Previous translation continues] ... whether you
14 would have possibly another job to do next week as well. So we leave
15 that for the time being.
16 Mr. Margetts, was I correctly informed if you would like to ask
17 the witness to come back on the 16th of February?
18 MR. MARGETTS: Yes, Mr. President.
19 JUDGE ORIE: And that would be, I have to look at my court
20 schedule in the morning hours or... perhaps Mr. Registrar could help us
22 [Trial Chamber and registrar confer]
23 JUDGE ORIE: Would you be available on the 16th of February, in
24 the morning, that is, 9.00?
25 THE WITNESS: [Interpretation] Yes, Your Honour.
1 JUDGE ORIE: Thank you for being available on that date. You're
2 invited to then join us in the same courtroom on Monday, the 16th of
3 February, and from what I hear, it will not taking more than half a day.
4 I would further like to instruct you that you should not speak
5 with anyone about the testimony, either the testimony you have given
6 already today or still to be given on the 16th of February.
7 THE WITNESS: [Interpretation] Understood.
8 JUDGE ORIE: [Previous translation continues] ... Mr. Usher to
9 escort Dr. Baccard out of the courtroom.
10 [The witness stands down]
11 [Trial Chamber and registrar confer]
12 JUDGE ORIE: Mr. Margetts, I do understand that, due to health
13 issues, that you have not -- not your health, that no witnesses are
14 available until Thursday. Is that --
15 MR. MARGETTS: Yes, Mr. President. Unfortunately so.
16 JUDGE ORIE: Yes, it is very unfortunate. Because we are not
17 being able to use five days in court, which is -- which is to be
19 If there is no other procedural issue in relation to scheduling
20 at this moment, we adjourn, and we'll resume on Thursday, the 12th of
21 February, quarter past 2.00, in Courtroom I.
22 --- Whereupon the hearing adjourned at 1.47 p.m.
23 to be reconvened on Thursday, the 12th day of
24 February, 2009, at 2.15 p.m.