1 Monday, 20 August 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.28 p.m.

5 JUDGE ORIE: Good afternoon to everyone. Madam Registrar, would

6 you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-04-84-T, the Prosecutor versus Ramush Haradinaj et al.

9 JUDGE ORIE: Thank you, Madam Registrar. For the parties, it's

10 been four weeks that we have not seen each other. We'll resume hearing

11 the case but before we invite the Prosecution to call for further,

12 although very short, examination-in-chief of the witness Dunjic, I have a

13 few matters that I would like to briefly raise with you and I'd first like

14 to go into private session for a second.

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24 [Open session]

25 THE REGISTRAR: Your Honours, we are back in open session.

1 JUDGE ORIE: Yes.

2 On the 13th of July 2007, a motion was filed to add a witness to

3 the Prosecution witness list under Rule 92 bis. The parties are hereby

4 informed that the Chamber has decided the matter although not fully put on

5 paper or fully developed the reasons or details but the parties are hereby

6 informed that the Chamber will grant the addition of this witness to the

7 Prosecution witness list, but under Rule 92 ter, not under Rule 92 bis.

8 Then there was a procedural issue in relation to the way in which

9 the Chamber would receive the testimony of Witnesses 48 and Witness 10. I

10 think the Defence has expressed its objection against hearing this

11 evidence through videolink, prior to a motion being filed asking for

12 videolink. For those reasons, and since the Chamber detected that at

13 least some new elements were in there, the Chamber invites the parties

14 to -- or at least invites the Defence to reply this afternoon, later this

15 afternoon, to the motion for videolink in relation to Witnesses 48 and 10,

16 but not to repeat anything that was already part of the submission made by

17 the Defence earlier. So therefore, mainly to respond on any new element

18 the Defence has identified in what is now a motion for videolink.

19 Is that clear?

20 I am aware that of course it's -- these matters are dealt with in

21 a rather rushed way but that's also a result of a recess. If there is any

22 problem with that, of course I would like to hear from the parties.

23 Then finally I wanted to invite the Prosecution to respond by

24 tomorrow to a motion filed by the Balaj Defence but that's about

25 Mr. Roel Versonnen as a witness, but I do understand meanwhile that a

1 motion has been -- a response has already been prepared and on the basis

2 of my information, I even wonder whether there is still any problem.

3 MR. RE: We have notified the Trial Chamber by letter, in e-mail,

4 and we filed a motion response to the same effect.

5 JUDGE ORIE: What you intended to do with that witness. I don't

6 know whether that fully therefore I said I wondered whether it had

7 resolved the matter because I could imagine that it did, but I'm not going

8 to assume anything unless the parties finally consider the matter to be

9 resolved.

10 MR. GUY-SMITH: I don't believe that it does resolve the matter.

11 I'll have a brief conversation with Mr. Re at the next break but I believe

12 in this instance, based on the courtesy copy of the motion that I received

13 from the Prosecution, that there is still an issue or two outstanding and

14 we may be requesting ability to file a reply which we will do obviously by

15 tomorrow.

16 JUDGE ORIE: Yes. Then of course the main concern of the Chamber

17 was that, since the urgency of the matter required quick action, to invite

18 the Prosecution to respond but it has done so already so. Now the same

19 request is now for you, if the matter appears not to be resolved.

20 MR. GUY-SMITH: Right.

21 JUDGE ORIE: Yes. Then these were the matters I had as urgent

22 matters on my agenda. Is there any other matter that urgently should be

23 raised before we continue to hear the evidence of Professor Dunjic?

24 MR. EMMERSON: Your Honour, simply in relation to timing as far as

25 this witness is concerned and bearing in mind the witnesses scheduled to

1 testify later in the week, as Your Honours will appreciate much of the

2 evidence of this witness has been produced in the form of 92 ter statement

3 and a very substantial volume of exhibits and I think we had indicated to

4 the Trial Chamber at the outset that he was one of those witnesses for

5 whom cross-examination was likely to be fairly extensive. My estimation

6 is that I'm likely to require today and tomorrow in respect of this

7 witness but obviously I will be guided by any indications that the Trial

8 Chamber gives in relation to time.

9 Since the witness who was originally planned to testify for

10 Thursday is no longer to testify for Thursday, I can't at the moment see

11 that, on the face of it, that would place pressure of time on the

12 witnesses who are to testify later this week.

13 JUDGE ORIE: Yes, although there are a lot of procedural matters

14 which the Chamber had in mind to deal with on Thursday as well but at

15 least some room seems to be there due to the rescheduling of the witness

16 originally scheduled for Thursday.

17 MR. GUY-SMITH: For the Chamber's information, the Defence has

18 discussed the matter of the cross-examination of Professor Dunjic and we

19 once again have attempted to coordinate it in such a fashion that it will

20 go as quickly as possible given the extensive amount of information that

21 exists. And we would not be repeating areas that other counsel covered

22 and may well be in a position that we've been oftentimes before.

23 JUDGE ORIE: Yes. Mr. Harvey I take it you are joining

24 Mr. Guy-Smith?

25 MR. HARVEY: I would do if I could.

1 JUDGE ORIE: If you had a microphone.

2 MR. HARVEY: Yes, I will now join with what Mr. Guy-Smith has

3 said. Thank you.

4 JUDGE ORIE: Yes, thank you.

5 Then, Mr. Dutertre, are you ready to continue the

6 examination-in-chief of Professor Dunjic? I do understand that you would

7 need 15 minutes. I encourage you -- it was announced 15 minutes. I

8 encourage you to keep it in these time limits in finalising the

9 examination-in-chief of Professor Dunjic.

10 [The witness entered court]

11 WITNESS: DUSAN DUNJIC [Resumed]

12 [Witness answered through interpreter]

13 JUDGE ORIE: Good afternoon, Professor Dunjic. Please be seated.

14 THE WITNESS: [Interpretation] Thank you.

15 JUDGE ORIE: Professor Dunjic, I quote from page 6823 of the

16 transcript. That is the transcript of the 5th of July of this year, that

17 you gave a solemn declaration, you said, "I solemnly declare that I will

18 speak the truth, the whole truth and nothing but the truth." You are

19 still bound when you continue your testimony by that solemn declaration

20 you gave at the 5th of July.

21 Mr. Dutertre will now continue. There will be a brief

22 continuation of the examination-in-chief and then you will be

23 cross-examined by counsel for the Defence. Mr. Dutertre, please proceed.

24 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

25 Examination by Mr. Dutertre: [Continued]

1 Q. [Interpretation] Good afternoon, Professor. I see that the

2 professor has some personal documents with him on the desk. I'm assuming

3 these are copies of the 92 ter statement, but I would prefer that he use

4 the 92 ter and the annexes to be found to the witness's right-hand side,

5 on the desk shared with Mr. Re. Perhaps we can bring them closer to the

6 witness.

7 MR. DUTERTRE: [Interpretation] Your Honour, you recall that I

8 wanted to show a video. It so happens that this video shows a witness for

9 which the Prosecution has filed a 92 bis motion. I don't believe there

10 has been a decision as of yet. However, if that person were to testify,

11 the problem -- the person has problems as regards his or her safety and

12 therefore, I would like to go into private session in order to view this

13 video, if you agree, regardless of any further decisions you may make in

14 the future.

15 JUDGE ORIE: Yes, Mr. Dutertre, private session would still show

16 the images. No it would not show the images. I hear no objections. Of

17 course, if at a later stage this material could be made public,

18 applications can be made for that. We turn to private session.

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12 (redacted) She was able

13 to describe it even before she saw the clothes that we showed her, as you

14 saw now on this video. We spoke to her first, asking her to identify

15 items of clothing that this victim might have worn and she gave us those

16 descriptions. We took them to this room that you just saw, to look at all

17 the clothes, and from all the clothes that was -- that were there, she was

18 able to pinpoint this skirt and this blouse that was up there, so she was

19 able to state quite with great certainty.

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19 Q. Yes. And the body where you had noted this pathology is the body

20 R-17; is that correct?

21 A. Yes, yes.

22 Q. Thank you. I would like to have P680, the 65 ter document 680.

23 JUDGE ORIE: Do you mean provisionally assigned P exhibits? Or a

24 680 seems to be in the range of the attachments to P618, but might not be

25 a 65 ter number.

1 MR. DUTERTRE: [Interpretation] Well, there was not a provisional

2 number. It was in an exhibit in the 65 ter list which was numbered 680.

3 It hasn't been admitted as of yet. It hasn't been used as of yet. Could

4 we perhaps view the picture right side up? Thank you.

5 Q. Professor, I'm not asking you to identify the individuals that can

6 be seen in this photograph but I would like to ask you if the pathology

7 you described, the spinal column of body R-17, would correspond to the

8 pathology of the woman standing to the left dressed in black, who has --

9 her two shoulders are at different levels?

10 A. Well, this is only partially visible here. I don't know either of

11 these two people. The person to the left on our screen dressed in black

12 is -- has a slight stoop, and her left shoulder is a bit lower than the

13 other one, but I have to note here that it's a degenerative disease of the

14 spine and it was actually visible from the side, if you have a

15 different -- if you had a different view you would be able to see that.

16 There was -- she had a hump and she had the vertebra that were all fused

17 together, from the pelvis to the cervical vertebra but you cannot really

18 see that all that well because the photograph -- on this photograph she is

19 facing the camera.

20 Q. Thank you. My last question deals with R-23.

21 JUDGE ORIE: Do we have to stay in private session at this moment?

22 Because it was mainly --

23 MR. DUTERTRE: [Interpretation] Yes. I apologise. Yes we can go

24 in open session. I forgot to mention that.

25 JUDGE ORIE: Yes, Madam Registrar. Would you please,

1 Mr. Dutertre, later indicate what portion could be made public so that we

2 can --

3 [Open session]

4 THE REGISTRAR: Your Honours, we are back in open session.

5 JUDGE ORIE: Thank you, Madam Registrar. If you would just turn a

6 little note to Madam Registrar then we'll decide after the break from what

7 moment on the session is public again. Please proceed.

8 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

9 Q. One last question on R 23: On page 93 to 95 of your 92 ter

10 statement you said that it's a man aged between 50 and 60, and that it's

11 the body of Isuf Hoxha and that the clothing was identified by

12 Vendim Hoxha. Could you tell the Court which pieces of clothing enabled

13 Vendim to identify his father's body?

14 A. Just a moment. Let me have a look. He was able to identify a

15 suit consisting of a jacket and trousers, and a sweater. He was also able

16 to identify a black plastic digital watch that was on the wrist of this

17 person. We had taken it off.

18 Q. Thank you. Were there any other elements that were recognised?

19 A. I said that we carried out identification not only on the basis of

20 clothing but also on the basis of anthropologic and forensic elements that

21 we could find on the body, which means the anthropologically estimated

22 age, gender, height and diseases, if any, so that on the basis of the

23 gender, the age, height and forensic characteristics, coupled with a

24 positive identification of the clothing, we were able to carry out his

25 identification.

1 Q. Thank you, Professor.

2 MR. DUTERTRE: [Interpretation] I have no further questions, Your

3 Honour.

4 JUDGE ORIE: Thank you, Mr. Dutertre. Professor Dunjic, you'll

5 now be cross-examined by Defence counsel Mr. Emmerson, counsel for

6 Mr. Haradinaj will start. Please proceed.

7 MR. EMMERSON: Can I first of all make sure that the witness has

8 available to him a full set of the coloured binders which have been

9 prepared for the purposes of cross-examination? There should be a yellow

10 and a brown binder which have been used before. There should in addition

11 be a green binder of documents, a blue blinder containing photographs and

12 post mortem reports, and a grey binder which will be relevant a little

13 later on. Can I ask first of all please that Professor Dunjic be provided

14 with the brown binder?

15 Cross-examination by Mr. Emmerson:

16 Q. I want to start, if I may, by asking you some questions about two

17 fully fleshed sets of human remains that are shown in photographs taken on

18 the 8th of September, apparently snagged in the concrete section of the

19 canal. If you could start by looking behind tab 2 in the brown file, I

20 think you may have it there, you will see behind tab 2(A) an extract from

21 the transcript of evidence that you gave to this Tribunal in the

22 Milutinovic case and behind tab B, a black and white copy of the

23 photograph that was shown to you during the course of this testimony. And

24 if you could look back at the transcript with that photograph in mind, you

25 are asked, and this is page 5271 of the Milutinovic transcript at line 22,

1 you were asked to look at those photographs and you were told that they

2 should relate to the time that you were in that location and you were

3 asked, "Is that the canal that we see on the screen?"

4 And then at 5272, line 3, your answer is recorded as follows,

5 I'll just read it slowly into the transcript: "Yes, that's the canal.

6 Those two photographs were taken from the direction of Radonjic Lake and

7 the place where the canal narrows down faces Donji Ratiste and Glodjane.

8 That's the concrete part of the canal. And the second photograph is

9 something that I saw with my own eyes when I was on the location. We see

10 two bodies next to the right-hand edge, depending on where you're looking

11 from, two bodies that were floating and that were later found in the

12 earth-covered part of the canal, because this is the concrete part. Out

13 of the concrete part, there is a waterfall and then follows an earthen

14 part. There were heavy rainfalls at the time and these two bodies and a

15 larger one were found in April." Now, pause there for a moment.

16 MR. DUTERTRE: [Interpretation] Your Honour, a technical issue.

17 It's not a matter of substance. We now have more than 7.000 pages of

18 transcript so that when we refer to a binder, tab 2, several weeks later

19 when we read it we are a little bit lost, we are not absolutely certain

20 which document we are referring to. I have experience in particular with

21 Witness 21. In the end we don't know which document we are referring to.

22 Could we perhaps ask the Defence to give a more precise identification

23 number or give the exhibit number or perhaps give an exhibit number as we

24 go along, so that we all have an exhibit number that we can refer to when

25 we read back the transcript several weeks later, otherwise it gets very

1 complicated.

2 JUDGE ORIE: Mr. Emmerson has read the relevant portion of the

3 transcript and has mentioned the transcript pages and the case from which

4 it was taken and from what I see, this is a public session, which I think

5 would be sufficient to identify at a later stage what we are talking

6 about.

7 MR. DUTERTRE: [Interpretation] Yes, that's the case for this

8 particular document, but in other cases where it's a photograph or other

9 types of documents, it may be more difficult to identify the exact

10 exhibit, the exact document.

11 JUDGE ORIE: I take it that if Mr. Emmerson is referring to any

12 document which is already in evidence, and I think these photographs were

13 in evidence, that he would, to the extent possible, also for the

14 hyperlinks mention the exhibit number attached to these documents.

15 MR. EMMERSON: I'll certainly do that. The transcript is Exhibit

16 number D133 and the photographs which the witness was shown during the

17 course of his testimony are D134. I'll obviously endeavour to make that

18 clear with each document that I deal with.

19 JUDGE ORIE: I think for the hyperlink it's always good if you say

20 Exhibit D and then the number. Please proceed.

21 MR. EMMERSON: But for the sake of clarity the index to each of

22 these bundles has in the right-hand column recorded the exhibit number

23 where the document has already been exhibited and that is the position for

24 all of the five files that are to be used.

25 Q. Now, I want to return, please, with you, to that passage of the

1 evidence that you gave in the Milutinovic case and can I say first of all

2 I know that this passage has already been shown to you by the Prosecution

3 and you've been asked some questions about it, and I think one of the

4 points that you raised was that the reference to April must be a mistake.

5 Is that right?

6 A. Yes. I would like to explain. At the trial that you mention,

7 that is the trial against Milutinovic, I was asked questions and I was

8 shown these two photographs, and I explained what can be seen on those

9 photographs. However, either it was misinterpreted or mistranslated, but

10 at the time I wasn't engaged for that trial for that purpose, I just said

11 that those were events that are linked to April 1998, that these were

12 photographs of locations of events that occurred in April and we worked on

13 them in September. So I think that is quite clear. It was just an error.

14 These bodies, it says, were seen and photographed in April. No. These

15 were events that took place in April and May, around that canal.

16 Q. Well, I'm not going to press you on that explanation just at the

17 moment, Mr. Dunjic. I've understood you to be saying the reference to

18 April is a mistake. If you could just confine for the moment your answers

19 to that question, that is a mistake; is that correct?

20 A. Yes.

21 Q. What I want to ask you about for the moment is the sentence which

22 reads, "And the second photograph is something that I saw with my own eyes

23 when I was on the location." Now, I'm going to just ask you to reconsider

24 that answer. Did you see those two bodies floating in the concrete

25 section of the canal with your own eyes when you were on the location; yes

1 or no?

2 A. I saw that on the first day we arrived.

3 JUDGE ORIE: Mr. Dutertre?

4 MR. DUTERTRE: [Interpretation] Could we perhaps check that the

5 witness has the photograph in front of him? I don't have it myself.

6 MR. EMMERSON: He does have it in front of him. It's behind tab

7 2. I've given Mr. Dutertre the exhibit number, it's open in front of the

8 witness, and I think we will be able to move along more swiftly if

9 Mr. Dutertre follows the cross-examination in the bundle because the

10 photograph is there.

11 JUDGE ORIE: Let's proceed.

12 MR. EMMERSON:

13 Q. I want to just be clear about your answer. Your testimony is that

14 the day you arrived, you saw with your own eyes two bodies, fully fleshed

15 bodies, situated in the concrete section of the canal; is that correct?

16 A. Yes.

17 Q. And just so that there is absolutely no doubt about it, if you

18 would like to look behind tab 1 in the blue folder, there is a better

19 photograph in colour, which is Exhibit D31, and bears a reference number

20 U0094103. And so there is no doubt about it, your testimony is that you

21 saw those two bodies in that photograph; is that correct?

22 A. Yes. Just those two bodies. But upstream in that canal, a number

23 of animals were seen who had died, so about 100 metres further upstream.

24 Q. I'm not concerned about the animals. It's a very important

25 question that we need to try to clarify, whether those two bodies that you

1 say that you saw in the concrete section of the canal were, in fact, there

2 when you arrived in the canal area. And I want to make absolutely sure

3 that you've had every opportunity to reconsider your testimony on this and

4 that you're certain that you saw those two bodies in the concrete section

5 of the canal when you arrived.

6 A. Yes.

7 Q. And is it also your testimony that those two bodies were later on

8 removed from the natural section of the canyon?

9 A. When I say that they were removed, they were floating in the

10 water, and as the water went downstream, so did the bodies, and then they

11 dropped down the waterfall into the natural part of the canal. It is in

12 that sense that I use the word "removed." They moved. Later on, those

13 bodies were probably in the group that we identified from the natural part

14 of the canal.

15 Q. I want to pause and take that in stages, please. The specific

16 question I want to ask you to address with absolute clarity is whether

17 your testimony to this Tribunal is that those two bodies were later

18 removed by the police and the forensic teams from the canyon section and

19 examined?

20 A. Yes.

21 Q. You see, there were two aspects of this that I'm going to suggest

22 to you you are wrong about, and then we will look at it in a little more

23 detail. First of all, the photograph that you're looking at there, which

24 shows those two bodies in the canal, that photograph was taken on the 8th

25 of September but I'm going to suggest to you that by the time you arrived,

1 those two bodies had already gone and that there were no bodies in the

2 concrete section of the canal by the time you arrived. That's my first

3 suggestion. And the second suggestion is that neither of those two bodies

4 appear in any of the forensic reports, autopsies or post mortems that you

5 and your team conducted. That's the second part of the suggestion. Do

6 you see?

7 A. I understand. With respect to both parts of your suggestion, I

8 would say the following. I did note those bodies. I don't know when they

9 were photographed. And I don't know when those bodies reached the natural

10 part of the canal. It is a fact that we couldn't mark them, and it is a

11 fact that we couldn't link them to the bodies that we found in the canal.

12 But in view of the fact that in the canal, a large number of bodies were

13 found, it is realistic to assume that these two bodies were within the

14 group of those bodies found downstream.

15 Q. Well, we are going to look at that in a little bit more detail in

16 due course. The file that you have there, the blue file, contains the

17 photographs of all of the bodies that were found downstream, in situ, and

18 then again at Hotel Pastrik. It also contains the post mortem reports

19 that you and your colleagues recorded, which of course include a record of

20 the clothes that were found with each set of remains. And during the

21 course of your examination, and if necessary with the benefit of some time

22 overnight, I'm going to ask you to look at each of those photographs and

23 reports and to confirm for the Tribunal that none of the bodies in those

24 post mortem reports could possibly be either of the two bodies that we see

25 in that photograph at the front. So I'm going to invite you in due course

1 to make a comparison having regard to the sex, state of decomposition and

2 clothing of the bodies that you and your team examined to determine

3 whether it is even possible that any of -- either of those two bodies

4 could be amongst the ones that you examined. Do you understand?

5 A. Yes.

6 Q. Now, before we get to that point, I wonder if I may just to come

7 back to your testimony that you say you saw those two bodies in the canal.

8 Could you look at your 92 ter statement, please? At paragraph 34, first

9 of all. Now, that is in the files that you've got it is in the green

10 file. I'm sure it's in many other places but it is in the green file

11 behind tab 2 and if you could turn to paragraph 34, please? You there

12 describe your arrival at the canal. And I'll read it in the English:

13 "At first, we were shown by the police, the army and

14 Judge Gojkovic the area of the concrete canal next to which we could see

15 bodies. It was difficult to say the exact number of bodies as bodies and

16 body parts were heaped together and/or partially buried. We were also

17 informed that bodies had been seen floating in the canal. Different

18 sources told us of this and we were given different numbers. I don't

19 recall exactly who informed us of these bodies or the exact numbers."

20 Pausing there for a moment, having refreshed your memory from that

21 paragraph, Mr. Dunjic, is it still your evidence that you saw two bodies

22 in the concrete section of the canal with your own eyes or not?

23 A. Yes. I still claim that I did, but I must tell you that when we

24 arrived and when we reached the canal, and when they told us what I refer

25 to in this statement, the people who had come there a few days before

1 that, that is, the investigating policemen and judge, I assume, they

2 arrived there before we reached the canal on the 11th. They also saw

3 bodies floating which the water was carrying along the concrete canal

4 towards the natural part of the canal. And that is the information I'm

5 conveying to you.

6 Q. You see, in paragraph 34 of your witness statement, Mr. Dunjic,

7 you are clear that you say that you saw bodies next to the canal by which

8 you mean presumably bodies on the land; is that correct?

9 A. Yes.

10 Q. And you say that they were partially buried. You then go on to

11 say that you were informed that bodies had been seen by others floating in

12 the canal. Again, I'm asking you to reconsider whether, in fact, what you

13 told the Trial Chamber in Milutinovic and what you repeated to this Trial

14 Chamber when I started asking you questions is an observation which you

15 are claiming to have seen, when in fact you are reporting something that

16 somebody else has told you.

17 A. What I said here refers to the bodies next to the canal, which I

18 saw, and I participated in their examination. What I said in the other

19 case, the Milutinovic case, I said with reference to events that took

20 place in and around this canal. As for these two bodies, I saw them in

21 that canal. The bodies that can be seen on this photograph. So these are

22 three completely different things. One is what I saw; second is what was

23 next to the canal; and third is the statement I made in the Milutinovic

24 trial.

25 Q. Mr. Dunjic, with the greatest of respect, they are all asking the

1 same question which is did you see two bodies floating in the concrete

2 section of the canal? What is the answer? When you arrived did you see

3 two bodies floating in the concrete section of the canal? Yes or no?

4 A. Yes.

5 Q. Why don't you mention them in paragraph 34, then? And why is it

6 in paragraph 34 that you refer to other people telling you about them?

7 A. I can't explain that, why it isn't stated in that paragraph. I

8 was describing the whole event that I personally took part in. I can't

9 remember each and every detail. When one reads something just now, it

10 reminds me of many other details that I may not have mentioned or that I

11 may not mention at this precise moment. So I really have no other

12 explanation to give.

13 Q. These two bodies would have been very obvious to you, Mr. Dunjic,

14 if you'd seen them on your arrival, wouldn't they?

15 MR. DUTERTRE: [Interpretation] If he had seen these bodies, there

16 would be an explanation for the reason it's not expressed in this way, in

17 paragraph 34 of his 92 ter. This question has now been repeated for so

18 many times I haven't counted them but --

19 JUDGE ORIE: It seems that it has not been completely answered.

20 Professor Dunjic, you say, "I might have left out a lot of details." Now,

21 in paragraph 34 you seem to give a very specific detail about bodies

22 floating, that is, that you were informed that bodies had been seen

23 floating in the canal, which language suggests that others had seen that.

24 You said, "different sources told us of this." Now that very much

25 suggests that when you gave that statement, that you had a precise

1 recollection of your source of information about bodies floating in the

2 canal, which is at least at first appearance quite different from what you

3 told us today. That is that you had seen them yourself and not that you

4 were informed that bodies had been seen, which suggests not by yourself.

5 So that's what is bothering Mr. Emmerson.

6 THE WITNESS: [Interpretation] Your Honour, I have fully understood

7 after this discussion what the point is. This statement in paragraph 34

8 is given in general terms. A large number of people saw this and they

9 passed on this information to me. But these two bodies is something that

10 I saw myself. So I can't explain this in any other way.

11 JUDGE ORIE: Please proceed, Mr. Emmerson.

12 THE WITNESS: [Interpretation] Because in the canal itself, I beg

13 your pardon, in the natural part of the canal that leads to the lake, we

14 took out a large number of bodies which confirms the statements I had

15 heard from others that many bodies had floated along the canal and that is

16 what paragraph 34 refers to. As for these two bodies, I saw them. These

17 are clear in my mind, these photographs.

18 MR. EMMERSON:

19 Q. In that case, I wonder if you could look at paragraph 36 of your

20 witness statement?

21 MR. EMMERSON: And for this it would be helpful if the witness

22 could be given the green file, oh, he has the green file.

23 Q. If you have a look at paragraph 36, the photograph that you're

24 referring to there is behind tab 5 in the green file. So you'll need to

25 look -- it may be easiest, Mr. Dunjic, if you take out the photograph in

1 tab 5 and read it alongside your witness statement at paragraph 36,

2 because you put certain markings on that photograph to indicate what

3 happened and what you saw on your arrival.

4 A. Yes.

5 Q. Yes? You say on picture U0143054, I marked with a cross the

6 letter -- and the letter A the place where we arrived on that day and we

7 can see I think on annex 5 the letter A just to the right of the concrete

8 section of the canal with an asterisk beside it; is that correct?

9 A. Yes.

10 Q. You say, "I also marked with crosses and the letter B the places

11 where bodies were lying close to the wall and after the waterfall." Do

12 you see that? And there is a letter B on the photograph together with a

13 line of -- together with a line of crosses which is a little difficult to

14 see but if one looks closely one can see them on the colour copy, on the

15 land at the side of the wall, as well as a further cross down in the

16 canyon section in the water. Do you see that?

17 A. Yes.

18 Q. And then you say, "I marked with an arrow and a letter D the

19 direction where Dasinovac is located and I marked with an arrow and the

20 letter E the direction of the economic farm."

21 My question, Mr. Dunjic, is if you saw two bodies floating in the

22 concrete section of the canal when you arrived at the scene, why on earth

23 are there not crosses in the water there to indicate that that is where

24 you saw two bodies?

25 A. I didn't mark where the other bodies were found either on this

1 picture. But I can show you and mark where those two bodies were seen in

2 this canal, because I thought that these are only the locations where

3 groups of bodies were found and this one that was at the beginning of the

4 natural part of the canal. However, the other places where bodies were

5 found were not marked either, especially as this body that was seen, I

6 don't know which of these two bodies were found later on in the canal.

7 Q. In paragraph 36, Mr. Dunjic, you're describing the scene as it

8 appeared to you when you arrived, aren't you?

9 A. Well, I'm not describing the scene. I'm describing the site, the

10 location, where we worked.

11 Q. Well, let me move on, then, if I can, to the time of your arrival.

12 When you came to this area for the first time and stood at that point

13 marked A, were you with Mr. Aleksandric?

14 A. Yes.

15 Q. So we can take it then that he must have seen those two bodies

16 floating in the canal as well, in the concrete section of the canal?

17 A. I can assume so but I don't know whether he saw them, whether he

18 remembers that. I really don't know that.

19 Q. Did you not discuss those two bodies and the need to remove them?

20 A. Yes, yes, we did. We did discuss that. But he was not sure about

21 that.

22 Q. I see. Well, I just want to be clear, if I can, with you, please,

23 about when it was that you did first arrive at the canal, Mr. Dunjic.

24 Could you look at your witness statement at paragraphs 25 and 27, please?

25 In paragraph 25, you say, "I believe we arrived in Pec, Kosovo, on

1 September the 10th around noon. It was ten years ago. I am not really

2 sure." You see that?

3 A. Yes.

4 Q. And then at paragraph 27, you say, "I believe, again I am not sure

5 because it is a long time ago, that on the 10th of September, late in the

6 morning, the MUP from Decan took us by car from Decan to the site of the

7 canal near Lake Radonjic where the mortal remains, bodies and body parts,

8 had been found by the MUP." Do you see that?

9 A. Yes.

10 Q. Now, I just want to be clear about this. You didn't leave

11 Belgrade until the morning of the day you arrived; is that correct? You

12 went from Belgrade to this area, and then to the canal; is that right?

13 A. Yes. As far as I am able to recall regarding this detail.

14 Q. I think we may be able to help you by reference to some of the

15 documents, Mr. Dunjic. What would be the earliest time of day that you

16 might have arrived there?

17 A. Well, I really don't know. I can't remember it now exactly.

18 Q. If you look in this green file behind tab 3, you will find -- and

19 this is -- bear with me a moment. This is annex 3 to your 92 ter

20 statement. You will find the request that is recorded as having been sent

21 out by Judge Gojkovic on the 9th of September --

22 JUDGE ORIE: Mr. Emmerson, perhaps for the previous photograph we

23 looked at, that was 65 ter number 15 -- 1519, and the one you're now

24 looking at is -- yes, annex 3 to the Rule 92 ter statement but it seems

25 not to have or -- a 65 ter number, whereas the other annex which was annex

1 5 to it, did have a 65 ter number.

2 MR. EMMERSON: I think that it's been marked as 1D53-0207.

3 JUDGE ORIE: Yes. Then that's on the record. Please proceed.

4 MR. EMMERSON:

5 Q. This is the request that was sent out to your facility in Belgrade

6 on the 9th of September, Mr. Dunjic, and behind tab 4 is the response from

7 Professor Veljkovic on the 10th of September do you see that? And that

8 would be annex 4 to your statement, document 1D53/0209. Do you see those

9 two documents?

10 A. Yes.

11 Q. Now I want to suggest to that you it was not until the 11th that

12 you and your colleagues travelled to the canal.

13 A. I did see this.

14 Q. I'm sorry, I don't know if you heard my question correctly. I

15 want to suggest to you that it was not until the 11th of September that

16 you and your colleagues travelled to the canal.

17 A. Yes. On the 11th. That's why I said that I could not remember

18 the exact date, whether it was on the 10th or the 11th. There is the

19 record, and the minutes of our presence and of what we did, that is dated

20 the 11th of September. I said immediately that after all this time I'm

21 unable to tell you whether this was on the 10th or the 11th but on the

22 11th we were there on the scene.

23 Q. Yes. I'm sorry, there may still be some lack of clarity in the

24 answer that you have given. Do you accept now having looked at those

25 documents that it was not until the 11th that you and Mr. Aleksandric

1 first went to the canal?

2 A. Yes, yes. It was on the 11th.

3 Q. Thank you. And I think, if we look - just bear with me for one

4 moment - behind tab 7 in the green file, you'll find a statement that you

5 made in March and April 2006, and at paragraph 19 of that statement,

6 Mr. Dunjic, you say, in terms, that the 11th of September was the first

7 day of your arrival at the site. Do you see that?

8 A. Yes, yes.

9 Q. You see --

10 JUDGE ORIE: Mr. Emmerson, may I take it that you're not going to

11 tender that document?

12 MR. EMMERSON: The statement, no. I'm simply inviting the witness

13 to confirm now that his 92 ter statement is in error and that the date of

14 arrival was the 11th and not the 10th.

15 JUDGE ORIE: Yes. Then of course it would be -- it would have

16 been better always to first of all identify the document by number.

17 MR. EMMERSON: I'm sorry.

18 JUDGE ORIE: Then to read the portion of the statement you seek

19 confirmation of so that at least it's clear on the record.

20 MR. EMMERSON: Shall I do that now?

21 JUDGE ORIE: Yes, it was U0094903, paragraph 19 of this statement,

22 which reads, "On the 11th of September 1998, the first day of our arrival

23 at the site, we started our activities by ..."

24 MR. EMMERSON: Thank you.

25 JUDGE ORIE: Please proceed.

1 MR. EMMERSON: And it is in fact Defence document 1D07-0561 for

2 the record.

3 Q. Now, Mr. Dunjic, we've heard testimony from others who attended

4 the scene, and it is, I'm going to suggest to you, perfectly clear that by

5 the 11th there were no bodies in the concrete section of the canal. They

6 had gone. If you'd like just for a moment, please, to --

7 JUDGE ORIE: Mr. Emmerson, the witness lifted his shoulders, which

8 does not appear on the transcript. He seems to not agree with you.

9 MR. EMMERSON: Yes.

10 JUDGE ORIE: Yes. And he now confirms this by nodding.

11 THE WITNESS: [Interpretation] I beg your pardon, Your Honour. I

12 cannot comment on this comment. This was something that was stated by

13 some witnesses, if I understood it correctly.

14 MR. EMMERSON:

15 Q. If you just bear with me for a moment, if you could look -- I

16 wonder if the witness could just be shown the yellow binder. And I'd like

17 if you -- the witness to be shown tab 14, please, paragraphs 85 and 86.

18 JUDGE ORIE: Mr. Emmerson, that seems to be the 92 ter statement

19 of Zarko Bajcetic which has no P number yet. It has an exhibit -- so

20 therefore would you please try to find that and then later for the

21 record --

22 MR. EMMERSON: Yes, it's P377.

23 JUDGE ORIE: Thank you. Please proceed.

24 MR. EMMERSON:

25 Q. Paragraphs 85 and 86. Commenting on the video recordings which I

1 shall show you after our first break, Mr. Dunjic, reads as follows:

2 "With respect to the recordings made of the site at the canal and

3 the canyon, it has to be stressed that the two bodies which can be seen on

4 the video footage recorded on the 8th of September cannot be seen anymore

5 on the video footage made on the 9th and the 10th. One of the bodies is

6 wearing a red shirt and the second one is wearing a blue one.

7 "The reason why those two bodies cannot be seen anymore on these

8 dates because heavy rain on the 8th of September caused the water to sweep

9 both bodies downstream towards the lake. I know this based on what the

10 cameraman told me and because the recording was different than what we saw

11 on the 10th of September. Cameraman told me that the bodies were present

12 on the 8th but they were not present on the 10th."

13 You see that?

14 JUDGE ORIE: Mr. Emmerson, you were reading.

15 THE WITNESS: [Interpretation] Yes.

16 JUDGE ORIE: Let me just see whether everything has been -- please

17 proceed.

18 MR. EMMERSON:

19 Q. Yes. That witness has testified orally before the Tribunal that

20 from his own observations, he can be certain that by the time he arrived

21 at the canal scene at 11.00 on the 10th those two bodies were not there,

22 indeed there were no bodies in the concrete section of the canal,

23 Mr. Dunjic. So I'm going to ask you to reconsider. What is the

24 position? Do you think you may be wrong in the testimony you've given?

25 A. Your Honour, after, regarding those two bodies I am convinced that

1 I saw them, and that's all I can tell you. That's all I know. I can see

2 those photographs still in my mind's eye.

3 Q. I see.

4 A. I really don't know how to explain this in any other way. I have

5 the picture of those two bodies in my mind's eye. I can see them. After

6 this much time, after ten years, now you bring what I said into doubt and

7 you also make me doubt whether I actually saw them or not, but I remember

8 those photographs or rather not the photographs but the images that I saw.

9 Q. I think I've given you about four opportunities up until now,

10 Mr. Dunjic, to tell us if you're not sure about this and until this point,

11 up until now, you've told us on each occasion that you are sure. Is it

12 the position now that you are no longer sure that you saw them?

13 A. I really don't know how to answer your question.

14 Q. Very well.

15 A. I can allow that but I have this vivid image of what I saw. It is

16 possible that I linked it in temporal terms with the photographs but I

17 also saw the bodies. I really can't explain what happened here.

18 Q. I see. Well, I wonder whether that would be a convenient moment

19 to take a short break because I have to organise a short passage of video

20 to be played to the witness and it is difficult for me to do that, there

21 is a technical problem and I wonder if we might do that in the break?

22 JUDGE ORIE: Apart from that, Mr. Emmerson, I did not watch the

23 clock very carefully. We are already far beyond the time when we should

24 have had the break, with apologies to the interpreters and the

25 technicians. We will have a break until 25 minutes past 4.00.

1 --- Recess taken at 4.00 p.m.

2 --- On resuming at 4.33 p.m.

3 [The witness stands down]

4 JUDGE ORIE: Madam Registrar, the Chamber would like to turn into

5 private session.

6 [Private session]

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 [Open session]

3 THE REGISTRAR: Your Honours, we are back in open session.

4 JUDGE ORIE: Thank you. Madam Registrar. The witness can be

5 brought in again.

6 I do understand that counsel for Mr. Balaj has not reached any

7 agreement on the latest motion and therefore is expected to file -- if he

8 wants to further respond to the Prosecution's response, to do that by

9 tomorrow.

10 MR. GUY-SMITH: That's correct.

11 [The witness entered court]

12 JUDGE ORIE: Professor Dunjic, we had to urgently deal with a

13 procedural matter totally unrelated to your testimony. Therefore we had

14 to ask you to wait a couple of minutes outside. Thank you for your

15 understanding.

16 Mr. Emmerson, please proceed.

17 MR. EMMERSON:

18 Q. I'm going to play you now a short section of videotape that was

19 recorded as having been taken in -- of the concrete section of the canal

20 at 10.48 a.m. on the morning of the 10th of September. Don't be misled by

21 the time shown on the screen because the evidence is that that is 12 hours

22 ahead. So the time of this piece of footage is 10.48 a.m. on the 10th and

23 for the record it is video V000-7064, Exhibit P72, at 10.48. And on the

24 counter it should say 20:10, that is 20 minutes, ten seconds. It's a very

25 short piece of footage. Could we see that now, please?

1 [Videotape played]

2 MR. EMMERSON: Pausing there, thank you. Could we just run that

3 one more time, please? Sorry, we -- do you have it on the screen?

4 JUDGE ORIE: Professor Dunjic, do you see a video image on the

5 screen.

6 THE WITNESS: [Interpretation] No.

7 JUDGE ORIE: Madam Usher, could you please assist the witness? I

8 think maybe e-court would be better.

9 Can I ask whether all parties have the same difficulty on the

10 e-court?

11 JUDGE ORIE: As a matter of fact -- I think we have now the right

12 starting moment again. It earlier looked like as if we were in a disco.

13 Everyone is invited to look at the video channel. Madam Usher, therefore,

14 for the witness as well. I think we have on the video channel now the

15 starting image of what you would like to show. Is that correct,

16 Mr. Emmerson?

17 MR. EMMERSON:

18 Q. Do you have an image of the canal on your screen now, Mr. Dunjic?

19 A. Yes.

20 Q. It's a little dark in the video channel but I think if you look on

21 the right-hand side you can confirm that there is no sign of any remains

22 floating in the concrete section of the canal that is shown in that piece

23 of video. Do you see that? Perhaps we should just play it for you now

24 very briefly.

25 [Videotape played]

1 THE WITNESS: [Interpretation] In this clip, one cannot see the

2 bodies. But if you can wind it back to the beginning, please.

3 MR. EMMERSON:

4 Q. Yes.

5 A. Here at the beginning, just behind the date and the year, and in

6 front of the letters p.m., one gets the impression that there are bodies.

7 Q. Would you just take the photograph in the blue file, please,

8 behind tab 1, Mr. Dunjic? You can see the two objects that are floating

9 in the water. Whether they are debris or wood or other objects, we can

10 see them in the centre of the channel.

11 A. Yes. In the middle of the canal, of the fourth cascade. And the

12 two bodies are laterally on the photograph, close to the edge of the

13 concrete wall of the canal. This is on the photograph. But I don't see

14 them here.

15 Q. Thank you.

16 MR. EMMERSON: We are finished with the video for the time being.

17 JUDGE ORIE: Mr. Emmerson, I don't know whether if you're done

18 with that video but could we have the first image again on the screen?

19 MR. EMMERSON: It will just play from here.

20 JUDGE ORIE: Yes. The place where you locate the bodies on the

21 photograph, is that portion of the canal in view of the Defence visible on

22 the first image of this video footage? Because if I -- I look at it, then

23 I see a horizontal and I would like to know that I'm speaking therefore I

24 should -- I would like to have the image shown. I'll wait until it's

25 there. Yes, there we are again. We see a first horizontal part closest

1 to the natural part. Then we see a second level, horizontal further up.

2 Then we see the third level further up. As far as I understand, and

3 comparing the images also of the walls, as a matter of fact, that only a

4 very, very small portion, well, let's say the first one or two metres on

5 the right-hand side of the wall is visible of that level where, on the

6 photograph, the bodies are located.

7 MR. EMMERSON: I take Your Honour's point.

8 JUDGE ORIE: Yes. Thank you. Please proceed.

9 MR. EMMERSON:

10 Q. Can I ask you this, Mr. Dunjic? You have indicated in your

11 witness statement at paragraph 75 that the rain began a few days after you

12 arrived at the scene; is that correct?

13 A. Yes.

14 Q. So can we take it, then, that it was possible to recover remains

15 for the first few days following your arrival?

16 A. On the 11th and on the 12th, where we -- when we were at the

17 scene, it was very warm and it was possible to pull out the bodies. We

18 made a break. I think it was until the 15th of September, because of the

19 heavy rains. And then we resumed work later.

20 Q. So again so that we are clear, between the 13th and the 14th, you

21 say there was no recovery operation going on because the rain was so

22 heavy; is that right?

23 A. Yes.

24 Q. And then on the 15th, you say, in paragraph 76 in your statement,

25 that the recovery operation began again in the afternoon; is that right?

1 A. Yes.

2 Q. But most of the remains that you examined and your team examined

3 were recovered on the 11th and the 12th, were they not?

4 A. Yes.

5 Q. And the diver's team was there by the 12th; is that right?

6 A. I don't know exactly, but I think it was on the 12th. I mean, one

7 can find this in writing. There is a record of it somewhere.

8 Q. We'll look at that in a moment. If the position is that it was

9 perfectly possible to recover bodies on the 11th and the 12th, that the

10 weather was warm and that there was no obstruction, can you think of any

11 reason why, if those two bodies had been in the canal, in the concrete

12 section of the canal when you first arrived on the 11th, they wouldn't

13 have been recovered during those first two days?

14 A. Your Honour, Your Honours, I have been thinking during the break

15 about this issue that we have been discussing, and I really am in a great

16 dilemma as a witness. In my mind, I have living impressions of having

17 seen this and it is my impression that those pictures of those two bodies

18 in the canal, as I saw them, and having seen all these documents and

19 everything else, and the statement of the witness who made the video

20 recording, seem to indicate that on the 10th, the bodies already were not

21 in the canal. But those pictures remain in my mind and I am now in a

22 human dilemma as a physician: Is this something that I really saw or is

23 it the photographs that I saw? I am really in a dilemma. I do not wish

24 to cause any doubts as a witness. I'm expressing my human, personal

25 dilemma about this. However, in my mind is impressed the picture of those

1 corpses.

2 JUDGE ORIE: Mr. Dunjic, perhaps you can try to cut matters short.

3 The Chamber does understand that you have difficulties to reconcile a

4 vivid visual impression of these bodies which you linked to personally

5 having seen them, with a rational way of reconciling this impression with

6 other information that reached you by now that is testimony from other

7 witnesses, other information, et cetera. Is that correctly understood? I

8 think dilemmas, Mr. Emmerson, are characterised by not being immediately

9 resolved. I think we could proceed. Please proceed.

10 MR. EMMERSON:

11 Q. Could we now look, please, in the green file, behind tab number 1,

12 which contains, in English, a record of a meeting that you had with

13 Mr. Dutertre on the 3rd of July of this year when you were asked questions

14 about those two bodies shown in the photograph that I have taken you to in

15 the blue volume, that is to say photograph D31? Now, I'm not sure how

16 good your English is, Mr. Dunjic. You should be looking behind tab number

17 1. I think you're looking behind tab 2. You've got the right file but

18 previous tab, please.

19 JUDGE ORIE: It's just one page, Professor Dunjic, tab 1.

20 MR. EMMERSON:

21 Q. Now, in that note -- can I be clear, do you read English?

22 A. Yes, a little.

23 Q. Well, let me just take you through it briefly, if I can. You were

24 shown by Mr. Dutertre the transcript of your evidence in the Milutinovic

25 case and the photograph that you've just looked at and you repeat there,

1 in the first two bullet points, that you thought at least that you'd seen

2 those two bodies at the time, and you say, in the second bullet point,

3 "Those bodies later turned up in the earthen part of the canal. This was

4 due to the heavy rain pushing bodies down the canal. We saw these two

5 floating bodies when we first arrived and started work."

6 And in the fourth bullet point, "The two floating bodies were

7 recovered later on. I guess these two bodies were the bodies later

8 recovered in the earthen part of the canal. These were the bodies of two

9 males. They could (emphasise could) be R20 or R21. In other words,

10 anyone from R20 onwards found in the natural part of the canal."

11 Do you see that? Yes? Now, again, I'm --

12 JUDGE ORIE: Please proceed, Mr. Emmerson.

13 MR. EMMERSON: Sorry, I don't think the transcript picked up the

14 witness's response.

15 Q. You've understood that passage, have you?

16 A. Yes, yes.

17 Q. And again I'm going to give you the opportunity to clarify whether

18 you're certain of your recollection, Mr. Dunjic. You said to the

19 Prosecution that those two bodies were recovered in the earthen part of

20 the canal. Is that your testimony to the Tribunal?

21 A. Yes.

22 Q. You have a recollection of that, do you?

23 A. Examining the bodies and the post mortem of R-20 and R-21, the

24 bodies that were found in the canal, and they were males, or, rather,

25 persons that could correspond to those on the photographs, that is what I

1 had in mind. That it is possible that those were the two persons from the

2 canal.

3 Q. Just to be clear, what you told us earlier on in your testimony

4 this afternoon and what you told Mr. Dutertre in the course of the meeting

5 that you had, and indeed the evidence that you gave in the Milutinovic

6 trial, was not that it was possible that those two bodies had been

7 recovered but that they had recovered and in this instance that it was

8 possible that they were R-20 and R-21. The question I'm asking you to be

9 absolutely clear is do you -- are you in a position to say to this

10 Tribunal that the two bodies you see in that photograph were in fact

11 recovered from the canyon or not? Whichever bodies which you say they

12 might have been, are you in a position to tell the Tribunal that those two

13 bodies were in fact recovered from the canyon at any point and examined by

14 your team?

15 A. I have to start from the following in my answer: And that is that

16 the team that had searched the natural part of the canal, the canyon,

17 leading towards the Radonjic lake, dragged out all the bodies that they

18 found and that according to certain anthropometric characteristics, which

19 we were able to note on this photograph, it is possible that they

20 correspond to R-20 and R-21. This is not absolutely certain. This is

21 just a possibility.

22 Q. Yes. Well, let's just test that with you.

23 JUDGE ORIE: Mr. Emmerson, page 22, line 7 of today's testimony

24 already makes it clear that we are talking about, where the witness

25 said, "But in view of the fact that in the canal, a large number of bodies

1 were found, it is realistic to assume that these two bodies were within

2 the group of those bodies found downstream." Which already makes clear

3 that it has not, at least in view of the expert's opinion, it has not been

4 solidly been established that they were. So whether it would then be, if

5 you would be able to positively identify R-20 or R-21 as the two bodies

6 floating in the canal on the picture, then of course we would not ever

7 have accepted -- ever have expected the witness to say this.

8 MR. EMMERSON: Yes.

9 JUDGE ORIE: So therefore, detailed information about the bodies

10 floating is missing. And therefore, I mean, you see a bit, but it's all

11 rather vague information, which I would say almost automatically

12 disenables an expert to compare the bodies found and the bodies shown on

13 the picture.

14 MR. EMMERSON: Would you want to bear with me for a moment because

15 it's going to be our submission that that is not the case, that it's

16 perfectly possible to make a comparison and I seek if I may through some

17 questions --

18 JUDGE ORIE: Then the comparison would be negative. Okay, please

19 proceed. But I didn't want to -- I think you were revisiting a matter

20 which to some extent already had been dealt with by the witness.

21 MR. EMMERSON: I think at page 44, line 11 the witness indicated,

22 and there is a word missing from the transcript, that it was possible to

23 compare certain anthropomorphic characteristics from the photograph to see

24 whether there was a correspondence. And I wanted Mr. Dunjic, just to ask

25 you about the question of comparing anthropomorphic characteristics on the

1 photograph. Just to take an example if you could turn, please, to tab 2

2 and to tab 3 in the bundle, you will see closer photographs of those two

3 sets of remains. Do you see those? If you turn to tabs 2 and 3, it might

4 be easier to manage the papers on your desk, Mr. Dunjic, if you just had

5 that blue file and only that blue file in front of you because I think

6 otherwise things are going to get a bit confusing. In the proofing note

7 that we just looked at, you say record that both of the bodies that you

8 can see in the canal are male. On what basis did you reach that

9 conclusion?

10 A. On the basis of these photographs, which are relatively clear, one

11 can see that these are adults. One person is wearing trousers and the

12 body structure would correspond to a male. The other person, though it is

13 hard to see this, according to its build, could also be a male. But I

14 must draw your attention that what looks like the colour red, that is more

15 likely part of the body than part of the clothing. This applies to both

16 bodies.

17 Q. Very well. If we can just focus, please, then, for a moment on

18 the photograph that is behind tab number 2, which, for the record, is

19 Exhibit D43, we can agree, I imagine, Mr. Dunjic, that the adult in that

20 photograph is wearing a pair of white trousers; is that correct?

21 A. That is what it looks like, though one trouser leg is darker in

22 colour.

23 Q. Yes. They are clearly light-coloured trousers, aren't they?

24 A. Yes.

25 Q. And the bodies appear fully fleshed, do they not?

1 A. I couldn't assert that.

2 Q. You can presumably make an observation in that regard about the

3 torso of the body behind tab 3. That is D44. Because we can see that

4 exposed, can we not?

5 A. Yes. He is naked. It seems that some of the clothes had been

6 pulled over the head and as for the rest of the clothing, the lower body

7 seems to be clothed up to the mid-thigh and we can see part of the body

8 here.

9 Q. And can you confirm for me, Mr. Dunjic, that we are looking there

10 at what appears to be the buttocks of a fully-fleshed torso?

11 A. Yes. With most of the tissue intact.

12 Q. Thank you. Now, I want, if I may, with you, please, to focus on

13 the body that's shown behind tab 2, that is to say photograph D43, and

14 with that body in mind, I want to look with you at the remaining sets of

15 remains that were recovered lower in the canal. And they are all in that

16 file for you. If you turn just beyond tab 4 you will see that there was a

17 gap in the numbering and they begin at 18. And that is so that you're in

18 a position to remind yourself of the numbers, because the numbers that run

19 from 18 through to 35 are the R numbers that were assigned to each set of

20 remains. If you look behind tab 18, as an example, you will see that

21 there are photographs, where they are available, of the remains in situ

22 then post mortem photographs followed by photographs of clothing where

23 they are available - they are not in this instance because there were no

24 clothes - followed by the post mortem report in Serbian, B/C/S, followed

25 by the English translation of that report. And we can take this at a

1 reasonable pace, Mr. Dunjic. We can exclude R-18, can't we, because that

2 was the partly burned body of a woman; is that right? So that the body

3 that we are looking for, the man wearing white trousers, cannot be R-18,

4 can it?

5 A. As far as I know, R-18 was a female body.

6 Q. Thank you. And would you agree that we can exclude R-18 from the

7 list of possible candidates?

8 A. Yes. We could exclude it.

9 Q. R-18-1 was a partial skull which was later found to belong to the

10 same body as R-32?

11 A. Yes.

12 Q. And that was also the body of a woman without clothes, was it not?

13 JUDGE ORIE: Mr. Emmerson, I'm sorry for interrupting. When we

14 earlier talked about comparisons, I was talking about positive

15 identification, and I said comparison wouldn't make sense if you are

16 missing quite a lot of details on the bodies which just appear in the

17 photograph. Now, comparing, that's at least how I understand it now,

18 you'd like to compare to see when differences, clear differences, are

19 found then you could come to a negative opinion.

20 MR. EMMERSON: Exactly, sir.

21 JUDGE ORIE: Before we go through all of these pictures, would it

22 not be better to invite the witness to look at those portions of the

23 material you provided to him, to ask him whether, if he looked at it this

24 evening, whether there is any of these data which would not show such

25 differences that it would allow for a negative identification and that we

1 would focus exclusively on those pictures, of those bodies found, and

2 those post mortems, where the witness considers that it could not be

3 excluded?

4 MR. EMMERSON: Yes.

5 JUDGE ORIE: Professor Dunjic, do you understand what I'm seeking

6 to do, in order to save time? You may have noticed that already, where

7 Mr. Emmerson took you to the body under number 18, that he said, well, on

8 the basis of photographs, post mortem, et cetera, et cetera, this is not a

9 male body, this is a female body, it's not fully fleshed, et cetera, so

10 therefore it could that the differences would not allow even for the

11 possibility that the bodies, the two bodies, shown floating in the

12 concrete part, could be identical to the one under number 18.

13 Now, what the Chamber would like you to do, and I already

14 apologise perhaps for spoiling your evening, to go in this blue binder

15 through all the numbered tabs and see whether there is any of these bodies

16 which -- for which you would find no such distinction between what you

17 established in relation to the two bodies on the photograph floating in

18 the river, that you would still consider it possible that these

19 photographs of these bodies found further down in the canal, could be the

20 bodies shown in the photographs. Then, Mr. Emmerson tomorrow would

21 perhaps take you to those bodies you considered possibly to be the same as

22 the two bodies floating in the canal in the photograph, and then he might

23 go into more detail as far as that is concerned. So therefore, you

24 exclude all the non-male -- well, or those where -- you understand what I

25 mean.

1 MR. EMMERSON: In order to assist that task, Mr. Dunjic --

2 JUDGE ORIE: If you give the details to specifically pay attention

3 to.

4 MR. EMMERSON: Can I ask to you have regard to the state of

5 decomposition of the remains.

6 JUDGE ORIE: Yes, I think as a matter of fact the witness should

7 be allowed now to write down what the specific points of reference are

8 that you would like him to look at. I take it gender?

9 MR. EMMERSON: Gender, state of decomposition.

10 JUDGE ORIE: If you could go slowly so Professor Dunjic could

11 write it down.

12 MR. EMMERSON: And clothing as recorded either in the photographs

13 of the clothing at Hotel Pastrik or in the post mortem reports which set

14 out the clothing in which the remains were found. And so, for example,

15 I'm going to suggest to that you there isn't a single body amongst the

16 bodies numbered R-18 to R-35, which could have been wearing -- have been a

17 male wearing white trousers, for example.

18 JUDGE ORIE: Or light-coloured trousers.

19 MR. EMMERSON: Or light-coloured trousers. And you have fairly

20 detailed records of clothing and of the degree of decomposition in the

21 remains. And so, for example, with R-20, which is one of the ones you

22 have mentioned, it may be helpful for you to know that Mr. Aleksandric has

23 testified that based on the state of saponification, the body R-20 must

24 have been lodged in the position in which it was found for several weeks.

25 That is transcript T6794. So if you could pay attention to those features

1 overnight and perhaps tomorrow tell us which of the bodies you say are

2 candidates for being either of those two bodies, and I'm sorry to add to

3 your burdens but there is a third body which appears to have gone missing

4 from the post mortem reports, and that is behind tabs 4A and B,

5 photographs taken on the 8th of September. There is a body shown floating

6 in the natural section of the canyon which also does not seem to

7 correspond with any of the post mortem reports. So could I ask you to

8 include that body, as far as you're able to, in the comparisons that

9 you're being invited to conduct?

10 JUDGE ORIE: Yes. Professor Dunjic, perhaps we provide you with

11 this portion of the transcript, since you read English. I take it that

12 you're mastering the English language sufficiently to have this for your

13 guidance for your homework this evening. And I again apologise but it's

14 raining anyhow so --

15 MR. EMMERSON: I'll come back then if I may to that aspect of your

16 evidence tomorrow.

17 Q. Could you now give the usher back the blue file and take the green

18 file again? And obviously, Professor Dunjic will need to have the blue

19 file to take away with him?

20 JUDGE ORIE: Yes, we will take care at the end of today's hearing

21 that the blue file would be provided to Professor Dunjic.

22 MR. EMMERSON:

23 Q. Could you turn to tab 8, please, in the green file? I just want

24 to ask you about some other apparent anomalies. This is a witness

25 statement of Goran Jovovic, who is recorded as a crime scene technician,

1 and this is Defence document 1D53-0211, and you have it both in English at

2 8A and in Serbian or B/C/S at 8B. I'm sorry, I apologise, the original is

3 in English and the translation is in Albanian so if we could work from the

4 English version, please, paragraph 11, I just want to go through two

5 paragraphs with you, it reads as follows and I'll read it slowly:

6 "We started working immediately. Together with the forensic

7 experts and some helpers from the local burial company, we started to

8 exhume the bodies there. My task was to fix and label all the evidence at

9 the scene. Besides the bodies also other evidence was found. One blanket

10 for a baby was discovered next to the bodies. When the blanket was

11 opened, bones of a very small human being were found. The bones were

12 covered by a small baby sweater with buttons on it, also a pacifier and

13 pampers were found in this blanket."

14 Then if you could pick it up please in paragraph 33 in this

15 statement, it reads as follows:

16 "I remember also that at the first day of my presence at the

17 Canal, the journalist, Miroslav Lazanski appeared at the crime scene.

18 When he was informed about the findings of the remains of a baby at the

19 spot, he requested me to give him the photographs of it. After getting

20 the authorisation from my superior" --

21 JUDGE ORIE: You're reading.

22 JUDGE HOEPFEL: Sorry, from which paragraph are you reading?

23 MR. EMMERSON: 33.

24 Q. "After getting the authorisation from my superiors I gave him a

25 few photographs about the remains of the baby."

1 Mr. Dunjic, it's not true, is it, that the bones of any baby or

2 infant were recovered and examined by your team?

3 A. You are right but I can explain. A pacifier was found at the

4 scene and that led us to believe that there was a baby or an infant there.

5 But none of the bodies, none of the bones found there at the canal, by

6 the canal, belonged to a baby or an infant. Now, the dilemma remained

7 where the pacifier had come from and now I have to testify and say that we

8 asked questions when people came to identify the remains, we asked whether

9 anyone had been there with a baby or an infant, be they male or female,

10 and we were told that two of the Albanian men who had been -- who had been

11 on their way to Prizren by bus and they had been arrested, that one of

12 them had gone there to get some stuff for a baby. He had been taken off

13 the bus. If I am not mistaken, Olga Gashi testified to that effect and he

14 had been taken off the bus because the previous day, when the bus had been

15 stopped, the bus that he had been on.

16 MR. EMMERSON: I'm going to, if I may, interrupt the witness at

17 this point because there have been certain rulings in respect of this

18 aspect of the testimony and in order to explore the answer that the

19 witness has given which is inconsistent with the record in his original

20 witness statement, it would be necessary to go behind that part of the

21 ruling and agreement which has been reached between the parties in that

22 respect.

23 Q. The question I was asking you, Mr. Dunjic is a relatively simple

24 one which is that where Mr. Jovovic has recorded the fact that the bones

25 of a very small human being were found, that isn't correct, is it?

1 A. That is not correct. I cannot agree to that because we, as

2 experts, did not determine that. And he is a layperson, after all.

3 Q. Would you turn to paragraph 18 of his witness statement, please?

4 I just want to ask you for some clarifications about this. He says at

5 paragraph 18, and I'll read it slowly, "At the beginning of the natural

6 part of the canal, one car was found in the water. In the trunk of this

7 car, an Opel Kadett, the body of a woman who later turned out to be

8 Ilira Frrokaj was found. I remember that it was the body which was

9 labelled number 18 during the course of the exhumation. The trunk was

10 opened by me and (redacted). After succeeding to open it we found a

11 completely naked woman therein. There were no clothes in the trunk

12 either." Do you see that passage?

13 A. Yes.

14 Q. Pausing there for a moment before I ask you questions about it,

15 would you turn behind tab 9 to the statement of (redacted), the man who

16 is there referred to? And this is Defence 1D07-0238, and would you turn

17 please to paragraph 24 in that statement?

18 A. I beg your pardon. Where is it? Where is his statement? Okay.

19 Q. Tab 9.

20 A. Okay.

21 Q. And you have it again in English first and then in Albanian. And

22 I'm looking at paragraph 24 in the English version, the last four lines of

23 the paragraph where this witness is recorded as having said, "In the

24 canyon, I saw a red Opel Kadett car on its roof. Close to the car there

25 were two bodies, a male and a female. The female and male were later

1 identified. They were a married Catholic Albanian couple who probably

2 were thrown into the canyon with the car."

3 And at paragraph 25 he continues, "After the bodies were

4 identified, the family was brought to the scene to view the red Opel

5 Kadett car. They identified the car as belonging to the couple. These

6 bodies were partly burned."

7 Do you see that passage? Do you see that?

8 A. Yes.

9 Q. If we could just move on please to paragraphs 32 and 33 of that

10 statement, he goes on to say that "The two bodies in the canyon where the

11 red Opel Kadett was located were recovered with the assistance of the fire

12 brigade who gave us a ladder to get down to the canyon and a rope to haul

13 the body bags with the body inside up to the ground level."

14 Paragraph 33: "The red Opel Kadett had a fire in the trunk which

15 made me think that the two bodies were killed, placed in the trunk of the

16 Opel Kadett and set on fire probably using petrol to set them on fire.

17 The car was then probably pushed into the canyon. A black T-shirt was

18 found in the trunk of the car and the bodies were two to three metres

19 away. The car was on its roof in the canyon when I found it. Later, when

20 the relatives were identifying the car, I think it was then put on its

21 wheels and that's how I later recognised that there had been a fire in the

22 trunk. I remember the family identified the female's ring and her sandals

23 but the male's body was almost 80 per cent burned."

24 Do you see that passage? Now, just bear with me for a moment, if

25 you will, Mr. Dunjic. First of all, as far as the woman's body, R-18, is

1 concerned, do you know whether it was found in the boot of the car, as

2 Mr. Jovovic seems to claim it was found by him and (redacted) in the

3 boot, or whether it was found two to three metres away from the car as

4 (redacted) himself seems to say in his witness statement?

5 A. I really cannot be specific about this because I was not a direct

6 participant, so I don't know where the bodies were actually found, whether

7 it was in the trunk or next to the vehicle, although on the photograph of

8 the vehicle that we just looked at, that's R-18, you can see one of the

9 bodies next to the vehicle. But I made this break in order to check

10 another thing, if I may.

11 I will read from an autopsy record regarding an injury found on

12 this woman's body. That's paragraph 8 of the autopsy record.

13 "In the interior part of the right lower leg that has been

14 preserved in the middle third, 26 centimetres above the soles, there is a

15 round hole on the skin about 7 centimetres in diameter, where there is

16 about 1 centimetre of a metal projectile protruding from this defect on

17 the skin. There is no casing on this projectile. When the projectile was

18 extracted and the tissue explored, it was ascertained that the bottom of

19 the defect reaches to the muscle layer through the subcutaneous layer."

20 The reason why I read this is to illustrate a point that this round or

21 projectile had to have been very slow because it did not go through the

22 soft tissue of the leg, which leads one to conclude that it had to have

23 gone through some kind of a solid obstacle on its way, and that the body

24 must have been inside, in an enclosed space, that prevented the round from

25 penetrating deeper into the body. On the basis of what I've just told you

1 a conclusion can be reached that it is highly possible that the body had

2 been in a trunk or inside a vehicle.

3 Q. I'm very sorry to interrupt you, Mr. Dunjic, but just pause and

4 think about if you would for a moment the evidence that you've just given.

5 What you seem to be saying to us is that for the bullet not to have

6 travelled through the leg and to have been lodged in the soft tissue, it

7 must have travelled through something else first. Is that correct?

8 A. Yes. It must have lost the initial momentum that it had, as all

9 the rounds have. In other words, it had to have been going slowly.

10 Q. Just pause for a moment. Two questions on that, if I may. First

11 of all, one of the reasons why a bullet can remain lodged in somebody's

12 soft tissue, and one of the reasons why it may be travelling slowly is

13 because it's been shot from further away, isn't it? The greater the

14 distance, the lesser the velocity of the projectile; correct?

15 A. Yes, yes, you're right.

16 Q. And secondly, Mr. Dunjic, that doesn't help us at all, does it, in

17 understanding whether the body which was burned was inside the boot of the

18 car as a way of concealing it, doesn't help us as to whether a dead body

19 was put into the boot of the car because presumably if your conclusions

20 are correct that the projectiles are associated with the cause of death,

21 then unless you're suggesting somebody was shooting at a dead body, it

22 doesn't help us at all to ascertain whether the dead body was in the boot

23 of the car, does it?

24 A. If we are talking about this specific case, in addition to this

25 element, this person had suffered multiple skull fractures. There were

1 also injuries to the cervical part of the spine, and also there were

2 fractures of the left shin bone and of the left upper arm bone. This was

3 not the only injury. In our expert conclusion, we stated, and this is a

4 view that is held by our field of expertise, forensic medicine, that it is

5 very difficult to establish the cause of death in people who are in an

6 advanced degree of decomposition.

7 Q. Did you -- I'm sorry to interrupt you. Did you see the body

8 yourself when you went to the canal on the 11th? So that you can help the

9 Tribunal as to where it was?

10 A. No, no.

11 Q. Could you just -- I'm sorry, you're hesitating. Did you or didn't

12 you?

13 A. No. I was at the canal. I just can't remember whether I actually

14 saw that body but I did see the car that was just below the waterfall, at

15 the very beginning, at the start, of the natural course of the canal,

16 towards Radonjic Lake. So the car was just beneath the waterfall. That

17 was where it was. And you can see that on the photograph.

18 Q. It's the body that I'm interested in, Mr. Dunjic. If you just

19 look at your witness statement at paragraph 412, can you help us -- could

20 you look at your witness statement at paragraph 412, please?

21 A. Let me just finish what I was going to say and then I'll look at

22 it. One body was seen next to the car.

23 Q. Did you -- let me put the question to you again. Did you yourself

24 see the body when you arrived at the canal on the 11th, having refreshed

25 your memory from that statement?

1 A. Yes. I read that.

2 Q. And where was the body when you saw it?

3 A. The body that was later labelled as 18 was right next to the

4 canal, but I have to say something which I don't know whether I said in my

5 previous statement or maybe by any of the other witnesses. This car was

6 overturned.

7 Q. Yes. We understand that. Yes.

8 A. And that is how it stood. And this body could be seen.

9 Q. You could see one body --

10 A. I saw this scene.

11 Q. Now, I've just shown you a witness statement made by (redacted)

12 which states that a burned male body was also found two or three metres

13 away from the car. Can you help us with that? Was there a burnt male

14 body found two to three metres away from the car?

15 A. I can't remember now that particular detail.

16 Q. Again, when you're looking through the reports overnight, will you

17 see if you can identify for us any 80 per cent burnt male body as

18 described by (redacted)? Thank you.

19 JUDGE ORIE: Yes. Could this be printed out for the witness as

20 well, this request?

21 MR. EMMERSON:

22 Q. Now, at paragraph 421 in your statement, you indicate that the

23 autopsy on this body revealed not just traces of burning but defects from

24 animal teeth inflicted post mortem. Do you see that? Paragraph 421 of

25 your witness statement you indicate there were defects from animal teeth.

1 A. Yes, yes.

2 Q. And does that indicate scavenging?

3 A. Yes.

4 Q. Presumably if the body had been found inside the boot of the car,

5 by crime scene technicians, then it couldn't have been scavenged in that

6 way unless it had previously been in the open air for a period of time,

7 could it?

8 A. I really cannot comment on that statement or other statements. I

9 can only tell you what we established in our post mortems. Every injury

10 on the body on a corpse, a dead body, which is bleeding, attracts animals.

11 So I can only assume on the basis of traces of animals. Now, where

12 exactly that body was, was it in the boot and then dragged out of the boot

13 by an animal or was next to the car, what remains as an open issue is

14 caused by the fact that the vehicle overturned and in the course of that

15 overturning, it is quite possible for the body to have fallen out. And

16 then it was accessible to animals or maybe the boot opened up in the

17 course of the tumbling and again it was accessible to animals.

18 Q. I can entirely understand what you're saying, Mr. Dunjic. The

19 reason I'm asking you is because I've shown you the witness statement of

20 Mr. Jovovic who says that the body was found when he and (redacted)

21 opened the boot. In other words it was found inside a closed boot. If

22 it's got scavenging marks on it, and it was found inside a closed boot,

23 that would mean that it must have been in the open air for some time

24 before going into the boot, sufficient for it to be scavenged, would it

25 not?

1 A. That can be only one possible assumption.

2 Q. Could we move into private session for a moment, please?

3 [Private session]

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18 [Open session]

19 THE REGISTRAR: Your Honours, we are back in open session.

20 JUDGE ORIE: Thank you, Madam Registrar.

21 MR. EMMERSON:

22 Q. Mr. Dunjic, one of the people whose names you have recorded in

23 your witness statement has given evidence in these proceedings about being

24 present at Hotel Pastrik during that identification process and has told

25 the Trial Chamber that he has never heard that account that is recorded in

1 paragraph 426 of your witness statement, and that it was never said in his

2 presence by any of his relatives at Hotel Pastrik. Do you see the account

3 that is there recorded, the suggestion at paragraph 426 is that the

4 relatives related the following story about the victim's disappearance.

5 "Ilira was still breast-feeding a baby at the time of her

6 disappearance. KLA members came to Ilira and Tush's home in a hamlet

7 close to Djakovica. They went straight to the victim's home as if it was

8 planned. A relative went to the home and took the baby before Ilira and

9 Tush were taken away by the KLA. I don't recall if the relatives told me

10 that they had" -- sorry.

11 JUDGE ORIE: Please proceed.

12 MR. EMMERSON: I'm sorry, just to finish.

13 Q. "I do not recall if the relatives told me that they had witnessed

14 the kidnappings themselves or if they had heard them described by someone

15 else."

16 Just to repeat, Mr. Dunjic, when this passage of your witness

17 statement was put to the person concerned, he said that he'd never heard

18 any of his relatives suggest that the KLA had kidnapped this couple from

19 their home, that that was not true, and that no one who was present at

20 Hotel Pastrik had said it and that it must be a lie. This is transcript

21 pages 2846 and following.

22 Can you help us with that at all?

23 A. I can. During the process of identification, relatives appeared,

24 (redacted)

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4 [Open session]

5 THE WITNESS: [Interpretation] Just one moment, please, I

6 apologise.

7 THE REGISTRAR: Your Honours, we are in open session.

8 JUDGE ORIE: Yes. For the witness, we return into private session

9 for a second.

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1 [Open session]

2 THE REGISTRAR: Your Honours, we are back in open session.

3 JUDGE ORIE: Yes. We'll have a break. We'll resume at quarter

4 past 6.00 but return into private session immediately after that.

5 --- Recess taken at 5.55 p.m.

6 --- On resuming at 6.21 p.m.

7 [Private session]

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6 [Open session]

7 THE REGISTRAR: Your Honours, we are back in open session.

8 JUDGE ORIE: Thank you, Madam Registrar.

9 MR. EMMERSON:

10 Q. Could you turn to paragraph 354 in your witness statement, please?

11 You there make certain references to the physical circumstances in which

12 body R-14 was found. And I'll read into the record the two sentences I

13 want to refer to.

14 You say, "We found the body on September 12 directly next to the

15 concrete wall of the canal. A light layer of pebbles and dirt had covered

16 it by nature rather than man. It was our opinion that rain had caused the

17 earth from the embankment to slide down and cover the body." Do you see

18 that?

19 A. Yes.

20 Q. I just want to be clear, when you say "our opinion," it was

21 obviously the opinion of not just yourself but somebody else. Whose

22 opinion was it apart from yours? With whom did you share that opinion?

23 A. Well, all three of us, Professor Aleksandric and Dr. Jecmenica.

24 We discussed this. We talked about it. And we reached this conclusion.

25 Q. So Professor Aleksandric was party to the conclusion that the

1 layer of pebbles covering body R-14 was a layer of pebbles that had been

2 deposited there by nature rather than by man?

3 A. Yes.

4 Q. When he testified about this body, Professor Aleksandric told the

5 Trial Chamber that we found bodies 14 and 15 behind the pile of

6 gravel "which could not have ended up naturally there. It could not have

7 been washed up there by the water. It was quite evident that the pile was

8 man-made."

9 Now, I just want to you help us, if you can, please. You tell us

10 that there was a clear discussion between you to the conclusion -- that

11 reached the conclusion that that pile of gravel had arrived there by

12 nature rather than by man. Professor Aleksandric has testified to

13 precisely the reverse effect. Can you shed any light on that at all?

14 This is transcript 6774, line 13.

15 A. In that area, as you can see on the photographs, there is a

16 quantity of small rocks, and there are some larger rocks there too. What

17 I'm talking about, this thin layer of dirt, the thin layer of dirt and of

18 small gravel, was certainly washed down by the rain from areas further up

19 the slope. The larger rocks and larger gravel found in this area had to

20 have been brought there either up there at the upper levels above the

21 corpse. They were not naturally occurring there in the soil. I think

22 that's what he meant, that that had been brought there by someone. I

23 don't know how it came to be there. But this thin layer of dirt and the

24 small gravel that can be observed on the photographs, it is quite obvious

25 that rain washed down this soil and brought it all the way down to the

1 body.

2 Q. Can I ask you just to look now, please, on another topic at

3 paragraph 97 of your witness statement and I'm going to ask you some

4 questions now about dates of death, estimations that you've given, about

5 dates of death in respect of the remains that you examined or your team

6 examined. Now, paragraph 97, you say that you could not give an accurate

7 estimation of the time of death since the bodies were exposed to various

8 elements and the rate of decomposition is dependent on weather conditions

9 and then you give further explanations in relation to that. May I make it

10 clear to you that in the questions I am about to ask you I am simply

11 concentrating on the remains recorded as having been found at the canal

12 area, that is to say beside the wall or in the canyon, rather than, at

13 this stage, on the remains that are recorded as having been found in and

14 around the economic farm. So I'm asking you questions now about the

15 remains that run from R-1 through to R-35.

16 Without going through it paragraph by paragraph, Mr. Dunjic, you

17 essentially categorise or you and your team essentially categorised the

18 remains into seven categories by age group. You identified three sets of

19 remains as having died sometime in April or May, that's R-12, R-13 and

20 R-14. 11 sets of remains as having died between April and August, two

21 sets of remains as having died between April/May and August, 13 as having

22 died between May and August, one in July or August, one in August, and for

23 two, you provide no date. I want to ask you, against that background,

24 just some questions first of all to help us interpret what you are saying

25 about dates of death. When you say in your statement about any particular

1 body that the appearance of the remains at post mortem were consistent

2 with the death occurring between April and August, does this mean, just

3 for the sake of clarification, that the earliest date that death could

4 have occurred was at any time during the month of April and that the

5 latest date was at any time during the month of August? Is that

6 essentially the parameters that you're setting?

7 A. In decomposed bodies, a large number of factors affect the

8 appearance of the body and the degree of decomposition.

9 JUDGE ORIE: May I interrupt you for a moment? What Mr. Emmerson

10 is exploring, whether the two dates you gave are the extreme limits or

11 whether there is anything else. He didn't ask you on what basis you do

12 that but his question was, "Do I understand your statement to say that it

13 was not any earlier than April and not any later than August?" That's his

14 question. Would you please focus your answer on that. And then methods

15 might be another question.

16 THE WITNESS: [Interpretation] These are the two intervals, the

17 broadest possible intervals, April and May. But we cannot be specific

18 whether it was the 1st of April and the 31st of August or another period,

19 but at any rate, this is the period in which these people could have died,

20 could have undergone their fate. So this is the broadest possible

21 interval without being more specific than that.

22 MR. EMMERSON:

23 Q. And so does it follow from that, Mr. Dunjic, that where you say in

24 respect of any particular body that it may have died at any time between

25 April and August, it follows that it could have been an individual who met

1 their death, for example, in the middle of August?

2 A. Yes. Some of the bodies that did show signs of putrefaction could

3 have been killed or death could have been caused in the second half of

4 August too or in the first half of August. So it was -- we did not

5 specify the exact date.

6 Q. For example, we know from other evidence that Serbian forces

7 including paramilitary police, took control of Gllogjan and Rzniq on the

8 11th and 12th of August. And does it follow from what you told us that

9 where you give a date of April to August inclusive it would be consistent

10 with death having occurred around that time?

11 JUDGE ORIE: Yes, Mr. Dutertre?

12 MR. DUTERTRE: That was a very general question. If you're

13 talking about a particular body, I imagine the Professor can respond but

14 in such a general question, it's really very vague.

15 JUDGE ORIE: I would say it's not about vagueness. The question

16 includes the answer already. And reading the previous answers of the

17 witness, it's perfectly clear not later than -- not earlier than the 1st

18 of April and not later than the 31st of August includes the 11th or the

19 12th of August. Please proceed.

20 MR. EMMERSON:

21 Q. Can we now look, please, at two specific individuals in respect of

22 whom you've given estimations? If we start, please, with R-14, at

23 paragraph 361, you there suggest that in your estimation, based on post

24 mortem findings, that the degree of decomposition for R-14 was consistent

25 with death having occurred possibly in April or May. Do you see that?

1 A. Yes.

2 Q. And R-15 is the next one. In his case, you at paragraph 371

3 recorded the more general formulation of April or May to August. Do you

4 see that? This is paragraph 371. Although it does say 1995. Presumably

5 it meant 1998. Do you see that at 371?

6 A. Yes, that's a mistake.

7 Q. Yes. But just so that we are clear, R-15 was originally

8 identified using traditional means as somebody called Milovan Vlahovic.

9 This is 377. But on subsequent analysis, this turned out to be somebody

10 called Istref Krasniqi who is the husband of R-14. So R-14 and R-15 were

11 husband and wife. Do you see? And we've heard evidence that this couple

12 was last seen alive together by relatives in mid-July. I wanted to

13 explore with you briefly, if I could, how and why you felt able to say

14 that R-14 must have died as early as April or May whereas in respect of

15 R-15 you weren't able to give that estimation. I'm trying, if you

16 understand it, to explore the margin of error in your estimates. How were

17 you able to say in respect to R-14 that death must have occurred in April

18 or May?

19 A. On the basis of the degree of decomposition because they weren't

20 identical and if you give a broader time scale, it is possible by applying

21 other possible methods within the scope of investigations to be more

22 specific, so that at the point in time when we were doing this, and

23 observing the bodies, we didn't have a single detail to indicate who the

24 persons were, when they went missing, and under which circumstances. So

25 by giving the broadest possible range on the basis of the level of

1 decomposition, we are trying to assist the investigation, on the one hand,

2 and on the other, the conditions to which the bodies were exposed were

3 different, whether they were on the surface or not, whether they were

4 covered by earth or not, so that we could interpret only what we saw in

5 situ. And on that basis --

6 Q. I understand the general approach, Mr. Dunjic. What I'm having

7 difficulty with is in relation to R-14 you didn't give the broadest

8 possible framework. You narrowed it down to April or May. If the

9 position is in fact that that individual was still alive in the middle of

10 July, does that give us some indication of the margin of error in your

11 approach?

12 JUDGE ORIE: Mr. Emmerson, you're now mixing up quite a lot of

13 things. If the position is in fact that the individual was still alive in

14 the middle of July has got nothing to do with the margin of error, as a

15 matter of fact. The margin of error is determined only by the methods

16 used and is not influenced by whether a person was according to the

17 testimony still alive at a certain moment. I want you to focus on the

18 additional question because that was a relevant question.

19 Professor Dunjic, Mr. Emmerson was triggered, and let's forget

20 about what other evidence we've heard, that's not primarily for -- at

21 least not at this point in time for Professor Dunjic to consider --

22 Mr. Emmerson asks how you were able to determine that I think it was R-14,

23 that you could say it was April or May, whereas for R-15, you said it was

24 sometime between April or May and August. So for the period further back

25 in time, you were relatively more specific whereas for a longer period in

1 time, coming closer to the date of the investigation, you are less

2 specific. What made it possible for you to make this distinction in time

3 and period of time on which you said these persons must have died?

4 THE WITNESS: [Interpretation] Your Honours, I must point out that

5 this is a framework. It doesn't mean that the body or rather that that

6 person may not have met their death before April or after August. This

7 was the broadest possible frame. As for R-14 and R-15, comparing the two

8 bodies in respect of the degree of putrefaction, my impression was that

9 this person, R-14, the body was decomposed to a greater degree, and that

10 is the reason that I gave this time frame. I cannot be specific and claim

11 this, because this could have occurred also in June or July, but I have

12 endeavoured, on the basis of those changes on the body, to be as precise

13 as possible in setting this time frame, being April or May, which doesn't

14 mean that she could not have met her death later. These are not firm,

15 rigid frameworks, when I say April, May or August. These are not rigid

16 time periods in this case, the decomposition was more advanced so I

17 thought that the person died earlier on, which meant April or May, but I

18 do allow for the possibility as an expert that it could have occurred

19 later. But for the investigation and other examinations that I did not

20 engage in, I just provided a time frame, because for the purpose of

21 further investigative procedures, because we have to provide a time frame

22 for the time of death. And the decomposition found, if they are

23 flagrantly different at the level of skeletalisation, for instance, which

24 requires a longer period of time under certain conditions, then we will

25 say this body could not have met its death in April or May, but it must

1 have been five or six months before that.

2 JUDGE ORIE: Let me stop you there. For R-15, you give a time

3 range of two months. For R-15, you give a time range of-- yes, April,

4 May.

5 MR. EMMERSON: R-14, it's a time range of April or May.

6 JUDGE ORIE: Yes, I misspoke. For one of the bodies you give a

7 time range of two months whereas for the other, you give a time range of

8 five months. So what makes you -- what led you to choose a small time

9 range for R-14 and to take a five-month range for R-15? I think that's

10 the question.

11 THE WITNESS: [Interpretation] On the basis of the degree of

12 decomposition and a greater degree of skeletalisation.

13 JUDGE ORIE: I must admit that I have some difficulties in

14 understanding your answer because if you say the decomposition was further

15 in progress, then I would expect a five-month range, well, let's say from

16 January until May, but not a difference in time range on which you

17 estimate the time when the person died. I mean, you understand what my

18 problem is Mr. Dunjic or not? I do understand that if you say there's

19 further decomposition, then I say, okay, then time of death must have been

20 most likely been earlier. But what I do not understand is why you give a

21 two-month range for April, May, and where you said the person so therefore

22 the decomposition must have been further progressed, whereas at the same

23 time you give a time limit of five months, April and/or May until August

24 for the other body, that's not clear to me. Just in terms of logic and

25 methodology.

1 THE WITNESS: [Interpretation] The changes that are visible on the

2 body, I'm sorry that we can't see that photograph now of R-14, and the

3 absence of certain bones that are missing, indicate that the body was in

4 the open for a longer period of time. And provisionally, those changes

5 could correspond to persons who went missing in April. We had information

6 that they went missing in April. As for R-15, there was a broader range

7 because in addition to those, to the decomposition, we didn't come across

8 any other changes that could have indicated a longer exposure. So it's

9 possible April to the end of August. In the former case, the

10 decomposition was so pronounced that we thought that that person had died

11 most probably in April or May. That person went missing also. But it is

12 also possible that may have been before April or after May. There is no

13 exact indicator for this. No precise way of saying this person died in

14 April and this one in May. This is on the basis of my own personal

15 experience working on these cases, that these -- the level of

16 decomposition was such that death could have occurred three, four or five

17 months before exhumation or autopsy. For this body, I didn't have any

18 firm evidence, for R-15, but I do allow for the possibility that death may

19 have occurred in April but the tissue was relatively well-preserved so

20 that it is possible that death occurred in August. For an analysis of

21 this kind, in addition to all the indicators found, it is necessary to

22 engage in a comparative analysis of the other bodies found. So it is not

23 possible just to isolate one particular body.

24 JUDGE ORIE: Mr. Emmerson, unlike at earlier occasions I'm now

25 looking at the clock. We are five minutes to seven. I'd like to give one

1 statement from the Chamber, which is not related in any way to this

2 witness, which will take me two minutes. I would also like to verify

3 whether Professor Dunjic has been provided or will be provided with the

4 relevant portions of the transcript which allow him to do the homework he

5 accepted to do from the blue binder.

6 Madam Registrar, has the relevant portions been printed out?

7 That's two portions of the transcript.

8 Professor Dunjic, we are close to finishing for the day and at

9 this moment, you are excused. I'd like to instruct you not to speak with

10 anyone about the testimony you have already given or are still about to

11 give, and of course also not to consult anyone on your homework of this

12 evening. The Chamber highly appreciates that you're willing to do this.

13 Mr. Guy-Smith?

14 MR. GUY-SMITH: Yes, Your Honour, the last time Mr. Dunjic was

15 with us there was a question concerning issues around the analysis of hair

16 and I had requested that any notes or microscopic examinations that the

17 Professor had would be forwarded to the Defence. I spoke with

18 Mr. Dutertre earlier today. He has nothing in his file and I note that

19 Mr. Dunjic has a number of papers with him. I don't know if he's brought

20 any of that information with him.

21 JUDGE ORIE: We can ask him. Mr. Dunjic, the question is that

22 since analysis of hair was discussed earlier, whether there is anything

23 you could assist us with in that respect, that is, whether you have any

24 notes about that, notes either on observations, examinations or perhaps

25 microscopic examinations. Is there anything you have brought today in

1 that respect?

2 THE WITNESS: [Interpretation] Unfortunately, Your Honours, we did

3 not engage in any microscopic examinations of hair but only macroscopic

4 examinations during the post mortem and comparisons so that to establish

5 with precision whether the hair came from that particular body, with the

6 noose, I really have no reports about that.

7 JUDGE ORIE: I just want to know whatever you observed in that

8 respect is that concluded in the material which is already available or is

9 there any additional -- are there any additional notes, are there any

10 additional reports on the examination of hair, to your knowledge?

11 THE WITNESS: [Interpretation] No. I don't have anything else.

12 JUDGE ORIE: Mr. Guy-Smith. I think this answers your question.

13 MR. GUY-SMITH: Thank you.

14 JUDGE ORIE: Then, Professor Dunjic, we would like to see you back

15 tomorrow in the afternoon at quarter past 2.00 in another courtroom,

16 Courtroom III. So therefore when I'm talking about the homework of this

17 evening you even have the morning available which might not be -- okay.

18 So therefore, I'm now asking Madam Usher to escort you out of the

19 courtroom and we would like to see you back tomorrow. And you can take

20 the blue binder with you and the relevant portions of the transcript.

21 THE WITNESS: [Interpretation] Thank you.

22 [The witness stands down]

23 JUDGE ORIE: Then I would just like to give a statement. If

24 anything happens outside this courtroom which needs to be on the record it

25 will be formally read into the record. The Chamber would like to make a

1 short statement in order to put some of the events from before the recess

2 on the record. On the 10th of July, the Prosecution applied for a

3 videolink for the hearing of one of its witnesses. The statements of this

4 particular witness were subject to a Rule 92 bis application which was

5 pending before the Chamber. On the 11th of July, the Chamber decided to

6 admit the statements of the witness dated the 28th of October 2004 and the

7 19th of April 2007 as well as the Rule 92 bis attestation pursuant to Rule

8 92 bis. The Chamber found that there was no need for cross-examination of

9 the witness. The parties were informed about this oral decision through

10 an email from one of the Legal Officers of the Chamber on the 11th of

11 July. The Chamber will give the reasons in its decision on the third

12 batch of Rule 92 bis requests.

13 As a consequence of the Rule 92 bis decision, the Chamber rejected

14 the application for videolink. The parties were informed of this through

15 the same e-mail of the 11th of July 2007.

16 And this concludes the Chamber's statement.

17 Perhaps it needs to check your e-mail but at the same time if

18 decisions are taken, if they are communicated to the parties through

19 e-mails, which is of course not the usual way of communicating decisions,

20 then it should be formally on the record, and as said before, the reasons

21 will find their way in the third 92 bis batch decision.

22 We adjourn until tomorrow, quarter past 2.00, Courtroom III.

23 --- Whereupon the hearing adjourned at 7.03 p.m.,

24 to be reconvened on Tuesday, the 21st day of

25 August, 2007, at 2.15 p.m.