Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7277

1 Tuesday, 21 August 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.31 p.m.

5 JUDGE ORIE: Good afternoon to everybody. 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.

10 While we are waiting for the witness to be brought into the

11 courtroom, I'd like to first of all inform the parties that the next

12 witness, who is waiting, will for sure not start his testimony today. So

13 he is -- he doesn't have to wait and find out at 7.00 that he's not

14 needed. So therefore, he can come back tomorrow.

15 Then I'd like to deliver two decisions. The first one is a

16 decision on whether to call Witness 23 for cross-examination and on the

17 Prosecution's motion for protective measures for that same witness.

18 On the 11th of July 2007 the Trial Chamber offered to admit into

19 evidence pursuant to Rule 92 bis the statement of Witness 23 dated the

20 18th of January 2003. The Prosecution, in its Rule 92 bis application

21 filed on the 19th of February of 2007, had indicated that the witness

22 would be available for cross-examination. The Defence had presumably

23 relied on this assumption in its responses to the Prosecution's

24 application. Before finally deciding to admit the witness's statement,

25 the Trial Chamber therefore requested to the Defence to make submissions

Page 7278

1 on whether cross-examination should be granted.

2 On the 23rd of July, the Defence for Lahi Brahimaj and Idriz Balaj

3 filed a request that witness 23 should be made available for

4 cross-examination. The Trial Chamber agrees with the Defence that the

5 evidence of Witness 23 does relate to a critical element of the

6 Prosecution's case, as it concerns the circumstances of the arrest and

7 detention of Witness 6. This is sufficient reason to grant the request

8 for cross-examination of Witness 23.

9 Given the limited scope of her testimony, the Trial Chamber urges

10 the Defence to confine itself to a relatively short amount of time for

11 cross-examination.

12 I now turn to the protective measures requested.

13 On the 30th of July 2007, with a corrigendum filed on the 16th of

14 August 2007, the Prosecution applied for protective measures for this

15 witness. The Prosecution requested that the Trial Chamber allow the

16 witness to retain her pseudonym and to testify with face and voice

17 distortion and that no identifying information of the witness be disclosed

18 to the public.

19 The Defence has not opposed this application.

20 The Trial Chamber has set out the standard to be met for granting

21 protective measures in several decisions and there is no need to repeat it

22 here. Witness 23 has expressed fear for her safety and that of her

23 family, should it become publicly known that she has given evidence for

24 the Prosecution. The witness lives in a small village in Kosovo together

25 with her family. Given the nature of the witness's testimony, the Trial

Page 7279

1 Chamber is satisfied that it may antagonise persons who reside in her

2 community. Therefore, as the Trial Chamber is satisfied that the

3 requirements for granting protective measures are met, it grants the

4 Prosecution's requested measures. In conclusion, Witness 23's statement

5 of the 18th of January 2003 will be admitted into evidence under seal,

6 conditional upon the witness appearing for cross-examination. The

7 redacted witness statement attached to the Prosecution's motion for

8 protective measures will be admitted into evidence under the same exhibit

9 number as the public document at the same time and on the same condition.

10 This concludes the Trial Chamber's decision regarding Witness 23.

11 I add to this decision the following. So what I now say is not

12 part of the decision itself. In the light of the report by a Prosecution

13 investigator, which was annexed to Prosecution's motion of the 30th of

14 July 2007, the Trial Chamber wonders whether a testimony via videolink

15 might not be recommendable for Witness 23. The Trial Chamber would be

16 inclined to grant a corresponding application by the Prosecution, but

17 would like to invite the parties to make submissions before the Chamber

18 will -- would decide on such an application.

19 There is another decision to be delivered but I'll do that at a

20 later stage today.

21 [The witness entered court]

22 JUDGE ORIE: Professor Dunjic, it's not very polite to ask someone

23 to enter the courtroom and then deal with other matters, but I took the

24 opportunity, since it took a while for you to enter the courtroom, I took

25 the opportunity to deliver a decision which has got nothing to do with

Page 7280

1 you.

2 Then Professor Dunjic, before I give an opportunity to

3 Mr. Emmerson to continue his cross-examination. I'd like to ask you

4 whether you were able to do the homework we asked you to do and whether

5 you identified any in the blue binder, any of the sets relating to a body

6 as potential candidates for being identified as either the two bodies

7 shown on the picture as floating in the concrete part of the canal or the

8 third body of which a photograph was shown to you. Before you answer, I'd

9 like to remind you that you're still bound by the solemn declaration you

10 gave at the very beginning of your testimony before the recess.

11 Could you answer my question as far as the homework is concerned?


13 [Witness answered through interpreter]

14 THE WITNESS: [Interpretation] Yes, Your Honour. In the short time

15 available to me last night and this morning, I was able to analyse these

16 documents and I came to certain conclusions. So if I may, I would like

17 briefly to elaborate on them.

18 JUDGE ORIE: Perhaps it goes further than just, "I identified

19 candidates" or "I did not identify candidates." Perhaps then I'll give an

20 opportunity to Mr. Emmerson to elicit these conclusions from you.

21 Mr. Emmerson, you may proceed.


23 Cross-examination by Mr. Emmerson: [Continued]

24 Q. You were about to start summarising the results of the analysis

25 that you've done overnight. Can I ask you, please, just to take it in

Page 7281

1 stages with me? Looking at the photograph behind tab 2 in the blue file,

2 that is D43, can I ask you simply yes or no, did you identify any of the

3 remains beginning with R-18 and concluding with R-35, which could be

4 consistent with the body that we see in light-coloured trousers in

5 photograph D43? Did you identify any remains which you say are consistent

6 with that body from amongst the remains labelled R-18 to R-35?

7 A. Yes.

8 Q. Could you please tell us first of all which bodies you say are

9 consistent with the appearance of the body in D43? Give us the list of

10 bodies you say are consistent.

11 A. Thank you. I in fact wanted to start with this photograph. I

12 first analysed the photograph in order to be able to establish which

13 bodies are consistent with it. The photograph that you mentioned, we see

14 that the body is that of an adult, most probably a male, in light-coloured

15 trousers. But the quality of the photograph submitted here is of a lesser

16 quality so that it is not possible to distinguish any particular details.

17 However, we can see that they are male trousers with a belt and that the

18 right-hand trouser leg appears to be more submerged in water so that it

19 has turned a darker grey, whereas on top, there is something that looks

20 like red clothing and pieces of clothing that seem to be pulled over the

21 head and on both arms. The body is turned so that the legs are going

22 downstream.

23 On the photograph, we cannot see the degree of putrefaction so it

24 is not possible to compare with reliability with what we found upon the

25 post mortem of bodies. However, if this photograph is looked at more

Page 7282

1 closely - and could it be shown, please - in the waist area between the

2 top part and the lower part of the body, there seems to be a kind of split

3 in the left-hand side of the body, as if the top is separated from the

4 bottom partially. Having analysed the bodies in the canal, there are two

5 persons that could possibly correspond to the body shown on the

6 photograph. And those are R-21 and R-24, where we can see a separation of

7 the body and R-29.

8 Now, why am I saying that there are two possibilities? One

9 possibility is the person marked -- labelled R-29, and when I looked

10 closely at the description of the clothing, I saw that it was a male

11 between 23 and 27 years of age, and about 174 centimetres in height, which

12 would correspond to this body in the canal and what is most important is

13 that this person had a red shirt taken off the body. As for persons 21

14 and 24, they would be consistent in terms of the position of the body.

15 The lower part of the body, wearing trousers, which on the attached

16 photograph in the blue binder, it is R-24. When you look at this

17 photograph you will see that the trousers are light in colour. I won't

18 say white but light in colour. And when those-- when that body was

19 brought for the post mortem, for the autopsy, and when the clothing was

20 washed, we found that these were not white trousers but darker-coloured

21 trousers.

22 Why am I emphasising this? Because the photographs made here, as

23 photocopies of the original photographs that I supplied, differ amongst

24 themselves, and this white colour doesn't mean that the material was

25 white. During the drying of dirty clothing, it appears to be whitish but,

Page 7283

1 in fact, it is a layer of mud or whatever which dries in the sun and gives

2 this impression. So to conclude, on the basis of my analysis, this first

3 body that you mention seen in the canal, could correspond to the bodies

4 marked R-29 or R-24 or 21 and 24, the top and bottom part of the corpse.

5 Q. Thank you. I wonder if I can look at that with you just briefly.

6 R-21 and R-24, just to be clear, they are respectively the lower and upper

7 part of the same human body; is that correct?

8 A. Yes, yes.

9 Q. And if we look behind tab 21(D), we can see at the bottom

10 photograph the state of the clothing that was found; is that right, on the

11 upper part?

12 A. Yes.

13 Q. And your suggestion is that those items of clothing that we see

14 there are consistent potentially with the appearance of the body that we

15 see in photograph behind tab 2, that is to say photograph D43? Is that

16 right?

17 A. No. The photograph showing the clothing taken off the upper part

18 of the body is very poor and very dark, so that one cannot see properly.

19 It is possible that a part of the clothing, for instance this blouse,

20 could have been over the head and over the arms, as it appears on the

21 photograph. But this dark red T-shirt was not identified. I just said

22 that this was a possibility because the body was cut in half. The other

23 possibility, which in my view is more probable, is R-24, which does have

24 this -- I'm sorry, R-29, which does wear this dark red T-shirt.

25 Q. We will come to R-29 in a minute, Mr. Dunjic. You've offered us

Page 7284

1 two possibilities and I'm wanting to explore the first one you've offered

2 us which is R-21 and R-24. Now, just to be absolutely clear and you have

3 the post mortem report there for the upper part of the body, R-21, which

4 in the B/C/S is tab (G) there, behind 21, and at paragraph 7, you have

5 recorded, not that the clothing was found nearby or separated from the

6 body but that the bones of the body were found inside a dark blue woolen

7 suit jacket with pockets on the outside, with tiny stripes and a black

8 silky lining, without any size label with blue buttons and a long-sleeved

9 brown shirt with white buttons. Do you see that?

10 A. Yes.

11 Q. And just to be clear in the last sentence of paragraph 1 of the

12 post mortem report on R-21, it's perfectly clear that the upper part of

13 the body was found inside those clothes, is it not?

14 A. Yes.

15 Q. And do you still say that it's a possibility that R-21 and R-24 is

16 the body shown in the photograph D43?

17 A. I have to point out once again that I analysed both the upper and

18 lower part of the body. In the lower part of the body, and judging by the

19 colour of the trousers, this could be consistent with that body, in terms

20 of the body, build, the length, the age also, but the clothing found on

21 the upper part of the body could have included a shirt and the jacket

22 could have been thrown over the head and the arms. When we put the body

23 on the table, we described what we found on the body. But not the

24 position of each piece of clothing, which is rarely done unless the

25 clothing is removed. So in a sense, the body, R-21 and R-24, judging by

Page 7285

1 certain elements and the clothing, could be consistent but I can't be

2 explicit about that. I can't be absolutely sure of that.

3 Q. Yes. And if we look behind tab (J) there, you'll find the post

4 mortem report for the bottom half of the body, again just so that we are

5 clear, the reference there is to the fact that the bones of the body were

6 found inside dark blue woolen trousers with diagonal pockets on the side

7 and a small pocket below the belt on the right side.

8 JUDGE ORIE: Mr. Emmerson, to avoid whatever confusion for the

9 witness, I think it's (H) for him.

10 MR. EMMERSON: Sorry in the B/C/S version, yes, Your Honour is

11 quite right.

12 JUDGE ORIE: Please proceed.


14 Q. So, the outer clothing on the bottom half of the body was dark

15 blue woolen trousers; is that right?

16 A. Yes. But I would like to ask you to look again at the photographs

17 of those clothes under (F). And you will see that those trousers, which

18 are described as being dark coloured, for the purpose of identification,

19 which we tried to do using the clothing, we can see that it is partly dark

20 and partly light in colour, and if you see that and compare it with the

21 photograph we are talking about, the photograph of the canal, you will see

22 that it is very similar. I'm sure you will agree with me.

23 Q. Well, it's not for me to agree or disagree with you, Mr. Dunjic.

24 Looking back at D43, the photograph of the body floating in the canal you

25 can see very clearly a dark belt, can't you, in contrast to the colour of

Page 7286

1 the trousers?

2 JUDGE ORIE: Mr. Dunjic said already that he identified -- he said

3 already that there was a belt.

4 MR. EMMERSON: I'm sorry. The point I was seeking to draw

5 attention to was the contrast.

6 Q. If you look at the photograph D43, Mr. Dunjic, to your left there?

7 A. Yes.

8 Q. The photograph. Yes. It's very easy to discern the difference in

9 colour, would you agree, between the black belt and the light-coloured

10 trousers, right?

11 A. Yes.

12 Q. And can you help us with this? The state of decomposition of R-21

13 and R-24 was, I think you've recorded it as being advanced putrefaction,

14 decomposition and skeletalisation, most of it without soft tissue; is that

15 a correct summary in relation to R-21?

16 A. We are talking about the upper part of the body. R-21 is the

17 upper part of the body.

18 Q. I understand that and in respect of both the upper and lower part

19 of the body have you recorded advanced putrefaction, decomposition and

20 skeletalisation?

21 A. Yes.

22 Q. And that most of the remains were without soft tissue?

23 A. Yes.

24 Q. Thank you. If we could just turn then to R-29 for a moment,

25 please? Again we have the photograph of R-29 in situ behind tab 29(A).

Page 7287

1 Do you see that?

2 A. Yes.

3 Q. And I think at the bottom right-hand corner of the photograph, we

4 can see part of the exposed bone as it appeared in situ; is that right?

5 A. Yes.

6 Q. And is it your testimony that that state of decomposition that we

7 see in the photograph at 29(A), with the bare bone exposed, is consistent

8 with the photograph at D43?

9 A. It could be consistent because, on photograph D43, we cannot see

10 the condition of the legs beneath the trousers, whether there is any soft

11 tissue or not and to what extent it has been decomposed.

12 Q. And if you just like to, with D43 in mind, if you'd just like to

13 turn over to the photographs at 29(B) where we can see the body laid out,

14 if you could just look at the middle photograph there, is that a

15 photograph -- just so that we are clear, the bones that we can see in the

16 centre of that photograph, is that the bones of a hand?

17 A. The photograph in the middle?

18 Q. Yes. What are we looking at there, with the central portion of

19 bone there?

20 A. The central portion are parts of ribs, part of the skull, and

21 these long bones are part of the upper and lower leg. In the case of this

22 photograph, I would kindly ask for the possibility to comment on it,

23 because I have noticed on other photographs as well that the bodies found

24 in the earthen part of the canal and generally next to the canal, are

25 bodies that were in various stages of putrefaction and decomposition, and

Page 7288

1 during the exhumation or, rather, the removal of those bones from the

2 location, we put them in those plastic black bags, in view of the lie of

3 the land, the steepness of the slope, et cetera, it was usually two or

4 three and even four men who would carry the remains in those plastic bags.

5 And we didn't use stretchers all the time for pulling out the

6 bodies from these rather inaccessible areas, and this resulted in these

7 bones being in a pile like they are on this photograph, and mixed

8 together, and I wish to draw your attention to this fact, and that it

9 should be understood in this way because the bones were partially

10 separated and partially linked by soft tissue and they couldn't be lined

11 up anatomically as we usually do. But the photographs were made to prove

12 that those were bones taken from that location and with that number. As

13 soon as the bag was opened, and in later stages of our work, we would

14 position the body anatomically, in the physiological position. So there

15 is a distinction. I want to make this clear so that no one should think

16 that these are two different bodies. The fact that the plastic bag was

17 carried containing a mixture of bones and tissue produced this kind of

18 photograph.

19 Q. No one is suggesting these are two different bodies. If you could

20 just bear with me for a moment. First of all, and I'm looking at post

21 mortem report, paragraph 1, now, which you will find behind tab 29(D) in

22 B/C/S and we have behind tab 29(E) in English, can you confirm that the

23 remains as you examined them were in a state of almost complete

24 skeletalisation with no soft tissue so that the bones were bare and

25 dislocated; is that correct?

Page 7289

1 A. For the most part, the soft tissue was missing. However, there

2 were parts of soft tissue that were preserved and they were mixed with mud

3 and dirt from the location.

4 Q. Yes. I understand. But again, just so that we are absolutely

5 clear because you've been asked to do this overnight, you say that

6 photograph D43 is consistent with a set of remains on which there was no

7 soft tissue so that the bones were bare, do you?

8 A. They were bare subsequently, but what was interesting for me on

9 this photograph, and on this person from the canal, was that the red, dark

10 red shirt was found. It was the only body with such a coloured shirt, and

11 it was a male corpse. This was the link we managed to establish in order

12 to tie these two things together, this body and the clothing.

13 Q. And again, just so that we are clear, the shoe that you see on the

14 foot in the body in photograph D43, if you could just look at the

15 photograph again.

16 A. Yes.

17 Q. The photograph?

18 A. Yes.

19 Q. Thank you. On the right foot there is a shoe; do you agree?

20 A. I cannot confirm that. There is some footwear there but as to

21 whether it was a shoe or a sneaker, I cannot tell by this photograph

22 alone.

23 Q. And found with R-29 was a black training shoe; is that correct,

24 and a blue blazer?

25 A. What was found were sneakers, Adidas sneakers.

Page 7290

1 Q. And they were black in colour, weren't they?

2 A. Black sneakers with three white stripes.

3 Q. Thank you. And a bluish tweed blazer?

4 A. Yes.

5 Q. Thank you. Can we now please have the comparisons that you

6 suggest could be made for the other two bodies we see in the photographs?

7 I won't go in the same level of detail in cross-examination with you about

8 those but perhaps you could just help us, please, first of all, as to

9 which body you say is consistent with the photograph we see behind tab 3,

10 that is photograph D44.

11 A. This is it.

12 Q. Correct.

13 A. With this photograph, well, what we have there are two, not three,

14 bodies. One is 43 and this one is 44 if I'm not mistaken. There are only

15 two corpses in the canal there.

16 Q. Yes. I'm going to ask you about another corpse in a moment.

17 A. I would like us yet again to go over what I was able to analyse by

18 looking at these photographs. We can see here a body which for the most

19 part is naked and in its upper half or rather the arms, the neck and the

20 head, there is some sort of cloth there which seems to be of light colour,

21 with some green, if I can see this clearly, but I do have to say that yet

22 again this is a poor quality photograph. It does not reflect the true

23 colour contained in the originals. In the lower part of the body, from

24 the lower part of the upper leg downwards, there is a piece of cloth as

25 well, but the rest of the body was naked. Judging by the size of the

Page 7291

1 bottom, it is very likely to be correct, I would say that this was a

2 female. When analysing all of the bodies found.

3 Q. Could you just pause there? Yesterday you told us that it was the

4 body of a male and indeed you said that to the Prosecution when they

5 interviewed you about this earlier in July. Have you revised your opinion

6 now?

7 A. If I am not mistaken, yesterday I said that it was possible that

8 this was a female body. I never stated absolutely that this was a male

9 body. I said that there was a possibility that this was a woman.

10 Q. We'll check your transcript from yesterday, Professor Dunjic.

11 Carry on then, please, if you will. Which body do you say this is

12 consistent with?

13 A. If I may, I'd like to continue. Upon analysing this in more

14 detail, I was able to establish another possibility judging on or by what

15 I saw here. There are several things here that prompted me to think that

16 this person in the canal, that the bodily remains there, may belong to

17 R-32. Since this was a stout person and I believe it was a lady who had--

18 just one moment, please. Who was between 18 and 22 years of age, around

19 170 centimetres tall, rather heavily built. And this is what I could

20 conclude concerning the corpse shown on the photograph. The part of the

21 skull bearing the mark 18/1 was found just below the natural waterfall,

22 next to the car there. This tallies or rather this corresponds to the

23 rest of the skull that was found with the rest of the body further

24 downstream toward Radonjic Lake.

25 In analysing all this, I concluded that this body must have fallen

Page 7292

1 in the area of the waterfall and that a part of the skull remained there

2 whereas the rest of the body floated downstream. This person for whom I

3 believe or suppose that may correspond to the person from the canal, wore

4 blue-green woolen pants -- sorry, sorry, that's another person. I

5 apologise. If I may have a moment.

6 Q. I think the body R-32 is naked.

7 A. No, no, she had no clothing. In the autopsy photographs, since I

8 studied those as well, one can see part of the body in the middle

9 photograph in annex C. Well, we can see here that we managed to establish

10 an entry-exit wound but there are also parts of tissue there that

11 according to the degree of putrefaction may correspond to the person in

12 the photograph, R-44, if I'm not mistaken. That is why, upon analysing

13 these photographs, I made that conclusion.

14 Q. And finally, are there any other bodies that you say could be

15 consistent with that photograph, R-44 [sic]? I'm sorry, may I just

16 correct the transcript, it's D44, not R-44.

17 A. Yes. I analysed the rest of the bodies too. The only body that

18 could fit the description, according to some of the characteristics, was

19 this one.

20 Q. I see. Finally, can I ask you, please, I'm going to, in a short

21 while, play a very short passage of video after the next break just to

22 invite you to comment on the position of the bodies in the video of the

23 canal section. But can I ask you finally in this section of questions to

24 tell us which bodies, if any, you say are consistent with the bodies shown

25 in the photographs behind tab 4(A) and (B) which at the moment do not have

Page 7293

1 an exhibit number but are respectively (A), document 1D53-0448 which is

2 also 65 ter number 871, page 31, and (B), document 1D53-0449. Looking at

3 the photographs behind tab 4(A) and (B), Mr. Dunjic, can you help us as to

4 that body and any bodies that you say are potentially consistent with

5 that?

6 A. These photographs were taken without having assigned numbers to

7 them. Therefore, I presume that this body was marked later and that it

8 had been photographed before that. Therefore, I cannot link any of these

9 photographs to any particular body number.

10 Q. No. I understand that you're not in a position to make a positive

11 identification but as with the other two bodies you've been invited

12 overnight to consider which of the bodies marked 4(A) and 4(B) are

13 consistent with.

14 A. Excuse me, I thought I needn't analyse these bodies as well, on

15 top of those found in the canal. I was told to check whether these -- or

16 which of the two bodies from the concrete part of the canal could

17 correspond to the bodies found in the earthen part of the canal. Another

18 thing I was supposed to do, in my understanding, was to see whether there

19 were any other bodies according to (redacted) testimony, was 80

20 degrees burned.

21 Q. Very well.

22 A. Therefore, the analysis of 4(A) and (B) was not conducted, since I

23 had no parameters for that. First of all, I don't know where they were

24 taken and when the body that was found was actually pulled out and marked.

25 I can say that outright. We can see here an upper part of the body

Page 7294

1 whereas in the other photographs we have lower parts of bodies which may

2 correspond to some other corpses that were subsequently found. I solely

3 analysed the two corpses that I was tasked with, the ones pertaining to

4 the concrete part of the canal.

5 Q. It may be that there was some misunderstanding in the questions

6 that you were asked to address your mind to overnight. You did understand

7 you were being asked as well to look at the remains that were recovered

8 from R-18 onwards and to assist us to identify, if you would, please,

9 whether there is any set of remains that is consistent with the passage

10 that I put to you from the statement of (redacted), this was paragraphs

11 24 and 5, and 32 and 33, where he describes an 80 per cent burnt male body

12 that was found two to three metres from the up-turned car and recovered

13 with the assistance of the fire brigade. Were you able to assist in that

14 regard?

15 A. Could we please look at photograph 18(A) and 18(B)? In these two

16 photographs, one can see the upturned vehicle. Behind the rear part of

17 the vehicle, it seems the trunk lid is open and we can see there some

18 bodily remains. Parts of the body. In photograph 18(B), one can see the

19 body shot from a different angle. It is charred along its entire back

20 side and it was the only body that was burned. If we take a look at his

21 statement, what I believe he remembers is this photograph, 18(B), where we

22 can see that the body had been burned.

23 Q. We are obviously not asking you to explain what (redacted) might

24 remember but he's recorded in his witness statement there being two

25 separate bodies, one male and one female, who were burned, the male being

Page 7295

1 80 per cent burned and being found two to three metres from the car, as

2 well as the female. And as I've understood your testimony, never mind

3 what you think he might be -- the reasons he might be mistaken, if I've

4 understood your testimony correctly, your evidence is that there was only

5 one such body and that was the body of a female?

6 A. Yes, you're correct.

7 Q. I'm going to turn now, if I may, please, to the point at which we

8 left off yesterday afternoon when I was asking you some questions about

9 the estimation of dates of death. And I asked you in particular about

10 bodies R-14 and R-15, and I just want to make sure I've understood your

11 evidence correctly in relation to R-14 and I'm referring here to

12 transcript 7271, lines 10 to 14, from yesterday. You said to us

13 yesterday, "My impression was that this person, R-14, the body was

14 decomposed to a greater degree and that is the reason that I gave this

15 time frame." You'll recall you gave a time frame of April or May. And

16 you went on to say, "I cannot be specific and claim this because this

17 could have occurred also in June or July." Now, I just want to

18 understand. When you've given these estimates, then, you accept that you

19 could be out by as much as two or three months; is that right?

20 A. Well, it is only an estimate when assessing such putrefied bodies.

21 That is why I allowed for such a possibility.

22 Q. I understand that, and in asking questions using the expression

23 "margin of error," I hope I don't cause any misunderstanding here, but

24 what I'm interested in exploring with you is the extent to which you

25 accept that your estimates may be wrong.

Page 7296

1 Now, I'm asking you these questions because I want specifically to

2 ask you about bodies that were allegedly recovered from the area around

3 the economic farm after you had left the scene. And you know the bodies

4 I'm referring to, the ones that were ultimately labelled Re-2 to Re-6.

5 Now, first of all, we have heard testimony from a police officer called

6 Radovan Zlatkovic who states that he was present when the bodies that were

7 labelled Re-2 and Re-3 were found. And if you could just look at the

8 brown file for a moment, tabs 37 and 38, where there are photographs that

9 the witness there referred to -- again, I may have given you the wrong

10 reference. It may be the yellow file. Just bear with me for one moment.

11 Yes, I'm sorry, it is 37 and 38.

12 Do you see those pictures?

13 A. Yes.

14 Q. And my first question is simply to invite you to confirm, please,

15 we have heard testimony from Mr. Zlatkovic that there was a member of the

16 Belgrade forensic team present at the site when those two bodies were in

17 situ and before they were removed. And I'd like to start if I may by

18 asking you to confirm that that is not correct, there was no member of the

19 Belgrade forensic team present at the time when any of the remains, Re-2

20 to Re-6 were in situ.

21 A. No, no. I can confirm that no one from our team was there. The

22 bodies had been transferred there and the next day when we came to the

23 scene we conducted an on-site investigation to see whether apart from the

24 bodies found there, there were any other traces, and we tried to see what

25 the context, what the circumstances, under which the bodies had been found

Page 7297

1 were, whether there was any water nearby, marshes or anything of the sort.

2 The next day upon our arrival, we found parts of tissue, which confirmed

3 to us that indeed there had been bodies lying there and that these bodies

4 were later moved to Pristina -- sorry, to Djakovica.

5 Q. Now, with each of these bodies, and for this purpose I'm including

6 Re-1, all the way through to Re-7, with each of these bodies, in your

7 statement, you have given an estimated time of death as July or August,

8 and just bear with me for a moment?

9 A. Yes.

10 Q. Having regard to the evidence that you've already given, I want to

11 put certain dates to you and to ask you whether the dates that I am

12 putting to you are consistent with what you observed. Now, as far as Re-1

13 is concerned, we have material before the Trial Chamber in the form of a

14 statement from the wife of the individual who was identified by DNA as

15 Re-1 indicating the 30th of August as the date that that individual was

16 last seen alive, and I imagine you in respect of that body would agree

17 that what you saw was consistent with that.

18 A. Yes.

19 Q. With Re-2 and -3, there is a similar date which has been provided

20 to the Prosecution by the son of the individuals who were identified as

21 Re-2 and -3, to the effects that they were last seen alive on the 6th of

22 September. Would you accept that the state of what you observed is

23 consistent with that?

24 A. Yes.

25 Q. Thank you. We have the benefit -- and I'm not sure whether you've

Page 7298

1 seen it yet -- but we have the benefit of the second opinion report that

2 the Prosecution have commissioned from a team of French pathologists led

3 by a lady called Professor Dominique Lecomte. Is that a report that's

4 ever been shown to you at any time? No?

5 A. No.

6 Q. Very well. I'm not going to take you to the substance of it at

7 this point. But Professor Lecomte's estimation in respect of Re-2 and -3

8 is that they had been dead for a minimum of eight and a maximum of 15

9 days. Again, is that a margin of error that you're prepared to accept on

10 your own estimations of July and August?

11 A. My estimate is broader, and with all due respect for my

12 colleagues, I must say that the degree of putrefaction -- that such a

13 degree of putrefaction corresponds to a time of death being at the end of

14 August, and possibly beginning of September. So it can be accepted. But

15 what I must point out, on the basis of my enormous experience,

16 unfortunately, with this kind of work, this degree of putrefaction can be

17 seen very briefly under certain conditions that the body is found in after

18 death. I have seen similar changes even five days after death in an

19 apartment, and also two months after death. So because I provide such

20 estimations for the Court, I give a maximum time frame for this

21 estimation.

22 Now, if you now show me a document which explicitly establishes

23 that that person was seen alive for the last time on the 5th of September,

24 then I can say it is consistent with my finding, but if you tell me that

25 that person was seen on the 5th August, then again, under certain

Page 7299

1 circumstances, depending on the weather, whether it was hot or cold,

2 whether the body was under cover or not, this could also be consistent.

3 So that is what forensic medicine does.

4 Q. I understand.

5 A. So what I have established is consistent with the report you

6 mention.

7 Q. Well, I'll just be clear about that. I'm not sure that it is

8 consistent, Mr. Dunjic. Are you saying that when Professor Lecomte says

9 that the state of the remains is consistent with death having occurred

10 between eight and 15 days prior to recovery, which would put it at

11 somewhere between the 8th and the 15th of September, are you saying that

12 that is an opinion that you can or cannot accept as being correct?

13 JUDGE ORIE: Yes, Mr. Dutertre?

14 MR. DUTERTRE: [Interpretation] Your Honour, I remember very well

15 that during Mr. Dunjic's testimony as well as the other forensic expert,

16 the Defence in the name of Mr. Dixon, did not wish this report to be

17 provided to Mr. Dunjic so that he could make -- that he could comment it.

18 He is being shown a number of findings today, findings made by

19 Professor Le Compte, and I think if we needed detailed explanations on the

20 parts of Mr. Dunjic, I think he should be allowed to be able to read this

21 report and look into the details of it more specifically dates of death,

22 which are always complex issues.

23 JUDGE ORIE: Mr. Emmerson?

24 MR. EMMERSON: I have certainly no difficulty in Dr. Dunjic

25 looking at the report. It's in the green file behind tab 13. The reason

Page 7300

1 why I'm dealing with it in the way I am is essentially to save time.

2 JUDGE ORIE: I think perhaps the matter could be approached in the

3 following way. What, as far as I understand, you're trying to find out,

4 to what extent the findings of Dr. Dunjic are incompatible with the

5 findings of Professor Lecomte. Now, there are -- I think there are three

6 things that could be relatively easy to be explored. That is to whether

7 on the basis of the findings of Professor Dunjic, the minimum time

8 expressed by Professor Lecomte is criticised by him because on the basis

9 of what he found he would not agree with the minimum. Then as far as the

10 maximum time is concerned, it seems that Professor Dunjic gives a rather

11 broader time frame, whether he would criticise that, and if there would be

12 a difference of view on the matter, then of course the next question would

13 be what elements have been taken into consideration by Professor Dunjic

14 and what element have been taken into consideration by

15 Professor Le Compte, in order to find out whether they based their

16 conclusions on any different sets of data. I think that's the approach

17 which I recommend you to follow and to see whether the next step would

18 still be necessary if the previous step has been concluded.

19 MR. EMMERSON: Very happy to deal with it in that way,

20 Your Honour.

21 Q. Taking bodies Re-2 and Re-3, just to reminds you what the position

22 is, you've agreed I think with the suggestion that what you observed could

23 be consistent with the reported date of disappearance of the 6th of

24 September. Now, Professor Lecomte's estimate, based on what she observed,

25 is that those two bodies had been dead at the time of their recovery for

Page 7301

1 between 8 and 15 days which would put the earliest date of death at about

2 the 8th of September and the latest date of death at about the 15th of

3 September. Now, with that framework in mind, first of all, do you accept

4 that they could have been dead for as little as eight days? Is that a

5 possibility?

6 A. It is very difficult to give you a straight answer, Your Honour,

7 because again this is a time frame of two weeks. Changes can be of this

8 kind too but I would be more inclined to give the date between the 31st of

9 August and the 6th of September. So that -- in such a period of time, it

10 is possible to see such a degree of putrefaction. I have every respect

11 for what my learned colleague said, but on the basis of my experience,

12 because I have examined a large number of corpses, and I know that there

13 are different rates at which putrefaction occurs. For instance, in order

14 to clarify what I'm saying --

15 Q. Before you go into a full explanation, your opinion is, and in

16 respect of these two corpses, that you do not believe that they could have

17 been in the state of putrefaction that they appeared to be if they had

18 only been dead for eight days? Is that your testimony?

19 A. Yes.

20 Q. And so far as the outer limit that Professor Lecomte gives of 15

21 days, I presume from the evidence you have already given that you would

22 say that you disagree with that also because in your view they must have

23 been or could have been dead for considerably longer than 15 days, in your

24 view?

25 A. No. My answer is that this 15-day period is more acceptable on

Page 7302

1 the basis of my own experience, but I do allow for the possibility that it

2 could have been longer and that is why I said July and August, because

3 putrefaction has different degrees and rates. If I were to judge what my

4 colleague said, then it would be more acceptable to say that death

5 occurred 15 days prior to recovery.

6 Q. I'm entirely in Your Honour's hands whether at this point further

7 clarification of the answer is required. I would otherwise move to the

8 next body and do it reasonably briefly in the same formulation.

9 JUDGE ORIE: I think with a statement -- with the testimony saying

10 that it's very probable or there is a fair chance that the person died 15

11 days before it was examined, I take it, Professor Dunjic? 15 days before

12 the autopsy?

13 THE WITNESS: [Interpretation] Before it was discovered.

14 JUDGE ORIE: Did you see it when it was discovered? Because we

15 have a date of discovery and we had a date of autopsy.

16 THE WITNESS: [Interpretation] The date of autopsy is two days

17 later, if I'm not mistaken.

18 JUDGE ORIE: Yes. Now the 15 days, are you talking about 15 days

19 prior to the date of the autopsy or 15 days prior to the date of

20 discovery?

21 THE WITNESS: [Interpretation] As I have been shown the photograph

22 in situ of the body, so 15 days before the body was discovered.

23 JUDGE ORIE: That brings us to the 8th of September. And would

24 you like to bring, if you say 15 days is, as I understand, is what you

25 consider a fair possibility, could that be one or two days less, three

Page 7303

1 days less? Could it also be a couple of days or a week or two week more?

2 THE WITNESS: [Interpretation] I believe that the professor who

3 gave an estimation of seven to 15 days would also agree with this

4 possibility. It is not possible to determine the date of death with

5 precision to the day. We need some other relevant data such as the

6 statement when the victim was seen for the last time. So it doesn't mean

7 that the victim died on the 8th of September. That victim could have died

8 three days before and even 10 days before, and to have the same kind of

9 changes on the body. But it could also be on the 10th and the 11th of

10 September. So this is the time frame that we accept as forensic experts.

11 JUDGE ORIE: Yes. I think then the matter has been sufficiently

12 explored. Nevertheless, Professor Dunjic, if you allow me one

13 observation, your expertise, I think, is the examination of remains and

14 draw conclusions on the basis of that expertise of your specific skills

15 and your specific experience in that field. Now, to include into such

16 conclusions any statements perhaps given by someone when a person was seen

17 last, I think that's outside your expertise because it requires an

18 assessment of the reliability of such statements, and it brings the

19 matters into a broader context, which, where judges are perhaps not

20 experts in your field, of course, judges are experienced and are trained

21 for drawing conclusions from several sources.

22 So may I invite you that whenever you include in any of your

23 conclusions any element foreign to the core of your expertise, such as

24 information you may have received about people having been seen last or

25 reports on people going missing, to explicitly tell us that that is part

Page 7304

1 of what you considered when drawing conclusions? Please proceed,

2 Mr. Emmerson.

3 MR. EMMERSON: Yes. Can I indicate in the light of the way that

4 the questions and answers have progressed and the answers in particular

5 the witness has given, I wouldn't propose to repeat the exercise

6 unnecessarily with Re-4 and Re-6 where the reported dates of disappearance

7 are the 4th and 6th of September which appear to fall within the

8 parameters that the witness has already given.

9 JUDGE ORIE: Yes. We could perhaps put it very general question

10 in that respect on whether what he just told us about R-2 and R-3 whether

11 that would ask for any different consideration if Professor Lecomte would

12 have come to similar conclusions in respect of the others.


14 Q. Let me put it to you this way, Mr. Dunjic. In respect in

15 particular of R-4 and R-6?

16 JUDGE HOEPFEL: Isn't it Re?

17 MR. EMMERSON: Sorry, Re-4 and Re-6,.

18 JUDGE ORIE: I made that mistake first.


20 Q. We have reported dates of disappearance of the 4th and the 6th of

21 September respectively and as I understand the evidence that you've

22 already given in respect of Re-2 and -3, unless there is any different

23 factor at play, you would accept that the appearance of the remains that

24 you saw would be consistent with deaths occurring after the 4th of -- or

25 6th of September; is that correct?

Page 7305

1 JUDGE ORIE: Mr. Dutertre?

2 MR. DUTERTRE: [Interpretation] Just two things I'd like to

3 mention. I'd like to indicate that on page 28, lines 6, R-2 and R-3 are

4 mentioned. I think we should read Re-2 and Re-3. Second point, I would

5 like to recall that these bodies Re-4 and Re-6 are not included in the

6 indictment. This is why I wonder how relevant these questions are, given

7 that these are not charged in the indictment.

8 JUDGE ORIE: Mr. Emmerson, the first matter is clear, corrected.

9 MR. EMMERSON: I would hope I've made it sufficiently clear in the

10 way that the case has been presented from the outset that the Defence are

11 interested in the origin of those remains and why it is that the

12 Prosecution has removed them from the indictment.

13 JUDGE ORIE: Yes. Without giving any evaluation of the relevance

14 of that, it could not be considered not relevant. Please proceed.


16 Q. Can I just repeat the question to you and I'm taking it shortly

17 with you, Mr. Dunjic. In respect of Re-4, we have a last-seen-alive date

18 of the 4th of September, in the evidence and in respect of Re-6 we have a

19 last-seen-alive date of the 6th of September. I think you've already

20 accepted in respect of Re-3 and -4 that the observations that you made are

21 capable of being consistent with the disappearance on the 6th of

22 September. So do I assume in relation to Re-4 and Re-6 that they too

23 would be consistent with those individuals having met their deaths on or

24 after the 4th and 6th of September respectively?

25 A. My answer is the same as in the previous case, and as an expert I

Page 7306

1 would never stick firmly to such dates, 15 days, seven days and so on. I

2 always endeavour to provide a broader time frame.

3 Q. And similarly, would your answers be the same in respect of

4 Professor Lecomte's opinion relating to those two sets of remains that

5 they are between eight and 15 days old? Would your response be the same

6 in respect of that?

7 A. It would be the same, only one can see it is more than 15 days

8 from the day of discovery, so it's the 16th, 17th or 18th. One should not

9 stick firmly to 15 days and not a single day more.

10 Q. Obviously, that's an issue that Professor Lecomte will want to

11 explore. I want to come to one other aspect of her report with you very

12 briefly. You gave evidence when you were giving evidence-in-chief, and

13 this is transcript 6828, line 7, that in your opinion, the bodies had been

14 in situ for a long time, and I think in your statement you suggest that

15 the bodies that you saw by the side of the canal had been there for at

16 least one and a half months. What I want to do with you, please, is just

17 briefly explore the possibility with you that those bodies, R-1 to R-17,

18 that is to say the bodies by the side of the canal, had been moved into

19 the position in which you saw them shortly before you arrived, in other

20 words the possibility that they had died elsewhere and then been moved

21 post mortem a relatively short time before you arrived. Now, first of

22 ail, I think I'm right in saying that as far as body R-1 is concerned,

23 your view was that that body had indeed been moved into position post

24 mortem; is that right? You'll find that in paragraph 188 of your 92 ter

25 statement.

Page 7307

1 A. Yes. It is the person found in two sacks, and that led to this

2 opinion of mine.

3 Q. Yes. And when Professor Aleksandric gave evidence, he was asked

4 about that body and about the others, and this is transcript 6819, line

5 17, where he was asked whether in respect of bodies other than R-1, there

6 were any indications that they may have been put there post mortem, and

7 his response was, "I could say that definitely only for body number 1. As

8 for the other bodies I could only speculate." Can I ask you this? Would

9 you agree that as regards the other bodies, that is to say R-2 to R-17, it

10 is impossible to say with certainty whether they had been moved post

11 mortem or had died at the scene?

12 JUDGE ORIE: Yes, Mr. Dutertre?

13 MR. DUTERTRE: [Interpretation] Yes, Your Honour. In the French

14 version, I hear that the bodies have been removed after post mortem

15 examination. I think that might be a translation issue here.

16 JUDGE ORIE: If you read the English transcript and then of course

17 I do not know how it's translated for Professor Dunjic, could I ask you,

18 in order to avoid whatever confusion, Mr. Emmerson, to repeat your

19 question -- well, starting at page 31, line 1?


21 Q. Would you agree --

22 MR. DUTERTRE: [Interpretation] That said, the question is a very

23 general question, bodies R-2 and R-17 are mentioned. I would be very

24 grateful to Mr. Emmerson if he could specify and talk about each question

25 individually rather than addressing the issue in the form of a group of

Page 7308

1 bodies.

2 JUDGE ORIE: It's an accepted technique to start with the general

3 question. If the witness would say, for none of them, then we don't have

4 to go one by one. If the witness says, well, perhaps for three or four,

5 then I expect Mr. Emmerson to ask which three or four and then go into

6 further detail. That is more efficient. Please proceed, Mr. Emmerson.

7 MR. EMMERSON: I'm -- just to be absolutely clear, I am working

8 from the general statements in testimony and in the 92 ter statement at

9 paragraph 710 that I referred to which was an overall statement about the

10 remains collectively.

11 Q. And I'm asking you whether you would agree, Mr. Dunjic, leaving

12 R-1 aside that the other remains found by the side of the canal, as

13 regards those remains, it is impossible to say with certainty whether they

14 were moved there after death?

15 A. Yes. I could agree with such a statement, that it is not possible

16 to establish with certainty, but with a high degree of probability as a

17 possibility, I would agree that those bodies were there. Now, whether

18 they were brought there after death or were injured on the spot is

19 something I cannot ascertain, that is, the site of death.

20 JUDGE ORIE: Mr. Emmerson, I'm looking at the clock. Would it be

21 a suitable time for a break?

22 MR. EMMERSON: Yes, it would be.

23 JUDGE ORIE: Then we, Professor Dunjic, will have a break until 20

24 minutes past 4.00.

25 --- Recess taken at 3.56 p.m.

Page 7309

1 --- On resuming at 4.25 p.m.

2 JUDGE ORIE: Mr. Emmerson, you may proceed.

3 MR. EMMERSON: Mr. Dunjic --

4 MR. DUTERTRE: [Interpretation] We don't intend to call this week

5 this witness. We have decided to withdraw him from the list. I agreed

6 with Mr. Guy-Smith on this matter.

7 JUDGE ORIE: Let me just, is he withdrawn from the list or is he

8 postponed indefinitely?

9 MR. DUTERTRE: [Interpretation] Later. He's not withdrawn from the

10 list. It's just for this week.

11 JUDGE ORIE: Yes, and for those reasons, Mr. Guy-Smith, I take it

12 that you would agree that your motion should be kept on hold rather than

13 anything else at this moment.

14 MR. GUY-SMITH: Yes, Your Honour.

15 JUDGE ORIE: It's not on the microphone but I will repeat your

16 word.

17 MR. GUY-SMITH: Thank you.

18 JUDGE ORIE: Yes is the answer for Mr. Guy-Smith.

19 Please proceed, Mr. Emmerson.

20 JUDGE HOEPFEL: Actually, it's not on the transcript which witness

21 you were speaking of, Mr. Dutertre.

22 JUDGE ORIE: Just to cut matters short it's about Mr. Versonnen.

23 JUDGE HOEPFEL: Thank you.


25 Q. Mr. Dunjic, I think you can confirm, can you, that with the sets

Page 7310

1 of remains that were recovered in the area adjacent to the canal wall, in

2 quite a large number of instances, there were missing bones that were not

3 recovered from the location.

4 A. I can't tell you the exact details but the answer is yes.

5 Q. Yes, thank you. We can look at the exact details if we need to,

6 but in the case of quite a number of bodies, there were parts of the

7 skeleton that were missing and never recovered, and in other instances,

8 the body had become disarticulated and separated?

9 A. Yes.

10 Q. Is that pattern consistent with bodies having been moved post

11 mortem?

12 A. I couldn't give you a specific answer to that question because

13 bodies next to the concrete part of the canal were on the surface and also

14 those in the natural part of the canal were in the water or next to the

15 water but what I can assume is that the missing bones occurred in the case

16 of fractures and then certain fragments went missing, which correlated to

17 the data that we found traces of animal teeth indicates that the fact that

18 certain body parts were missing could have been removed by animals.

19 Q. Exactly. One possible explanation is scavenging but would you

20 agree that another possible explanation is that the body has been buried

21 elsewhere, dug up and moved?

22 A. I could not accept such a submission because certain bodies found

23 there next to the canal had injuries on them with firearms and blunt

24 objects. Where the injuries caused -- were the cause of death, it is

25 possible that the bodies were not immediately moved from the place where

Page 7311

1 the injuries were suffered to the place where they were found. This is

2 one fact. The other thing is that the bodies next to the canal were found

3 on the surface itself, partly covered by a thin layer of earth and

4 sometimes a thicker layer of earth. The bodies covered with a larger

5 quantity of earth were in the area where one could see on the walls of the

6 concrete canal the projectile effects, impacts. So this could indicate

7 that the executions were done there and this would also mean that they

8 were not buried somewhere else previously.

9 And in connection with this assumption of yours, I have to say

10 that the covering of clothing and bodies by earth was caused by the

11 location where the bodies were, that there was fresh earth, like mud after

12 rain, and that the bones which were put in a bag were put there together

13 with the mud that surrounded them. After that, this bag with the bones

14 was carried by hand to the truck and then again transported from the truck

15 to the place where we did the autopsies. So the fact that the bones had

16 earth on them was the result of the place where the bodies were found and

17 not from where they were previously buried. So I cannot accept this

18 assumption at all, especially on the basis of what we saw in situ, the

19 position of those bodies and their location.

20 JUDGE ORIE: Let's try to get to the point, focus on what really

21 is the issue. Of course, talking about possibilities, I mean perhaps

22 unlike a jury this Chamber is well aware that if a body is found somewhere

23 with some missing bones, that it could be that in transporting them, bones

24 got missing. I could find another ten or 15 explanations for that. If we

25 don't know what the explanation is. And then to ask whether it's

Page 7312

1 consistent or not, Mr. Emmerson, the question should be is it consistent

2 tore is it inconsistent with. And if you say it could be consistent, then

3 of course, it doesn't assist the Chamber that much. That there are

4 several explanations is clear, and in the answer you may have noticed that

5 what you present as one of the possible explanations is then interpreted

6 by the witness as an assumption. I didn't hear it to be put as an

7 assumption but just as a possibility and we are close to the area of

8 speculation. Please proceed.


10 Q. Can I, with that comment in mind, please, ask to you take the

11 green file and to turn to tab 13? I just want to ask you about two sets

12 of remains in particular, and behind tab 13 you will find

13 Professor Lecomte's report, Mr. Dutertre has invited me to take to you

14 specifics, so can I just take to you two specifics and then to the general

15 conclusion? If you find tab 13, you should have an English and a French

16 version of the report by Professor Lecomte. Now I'm working from the

17 English version which is behind 13(B). If you look at the second pink tab

18 there. And if you could start please at page 24, in respect of body R-13

19 and having viewed the photographic material and the reports, you can see

20 in the bold type the conclusion of the team of French pathologists that

21 that body had been dead for approximately two months but that the totality

22 of the factors viewed at the discovery site and the information noted at

23 post mortem led the French team to conclude that the body had been at the

24 site only for a very short time. Do you see that?

25 JUDGE ORIE: Mr. Dutertre?

Page 7313

1 MR. DUTERTRE: [Interpretation] Yes, Mr. President. I remember

2 that Mr. Dixon didn't wish for this report to be given to Professor Dunjic

3 so that he could comment upon it. Concerning the other witness, it was

4 agreed that the document would be transmitted to him. Sufficient time was

5 given to him so that he could make comments. Therefore, all this may be

6 done in possible conditions for the whole report. I can see today that

7 Professor Dunjic is being given just now this report which the Defence

8 didn't wish to be given to him, without him having heard the possibility

9 to actually read it, peruse it, this report, so I object to the use of

10 this report today with Professor Dunjic. It was the Defence itself who

11 hadn't wished -- I remember very well in the last day we had examined

12 these matters -- that this report be transmitted to him for him to comment

13 upon.

14 MR. EMMERSON: I'm happy, if Mr. Dutertre objects, to defer this

15 line of questioning until Professor Aleksandric returns with his report.

16 If objection is taken to it, I'm happy to defer.

17 MR. DUTERTRE: [Interpretation] No, what I mean to say is that

18 Defence had all possibilities to say that it wished to interrogate

19 Professor Dunjic on this matter, when this was tabled about a month ago.

20 And if it had wished to do so then the question was clearly asked by the

21 Chamber to know whether Prosecution as Defence wished this report to be

22 submitted to Professor Dunjic, and Defence said that it didn't wish so.

23 This is what I remember of this exchange. So if there had been anything

24 to be done before, it wouldn't have been needed to postpone these matters.

25 I simply wanted to say that if these matters had to be examined in depth

Page 7314

1 they should have been given beforehand to Professor Dunjic so that he

2 could have perused it.

3 JUDGE ORIE: Mr. Dutertre, your point is perfectly clear.

4 [Trial Chamber confers]

5 JUDGE ORIE: Mr. Emmerson, the Chamber considers that it does not

6 assist if Professor Dunjic will be taken more or less by surprise, without

7 having had an opportunity to read the general part and the specifics on a

8 certain -- on certain remains, but then as a whole and not just

9 conclusions.

10 MR. EMMERSON: I entirely take the point.

11 JUDGE ORIE: We have to then check whether the experts have taken

12 the same data as a starting point for their conclusions so therefore if

13 you would like to do this exercise with Professor Dunjic, then at least,

14 although I hesitate, Professor Dunjic, to say that more homework would be

15 there, but at least not do it now and that a proper opportunity should be

16 given to Professor Dunjic to read both general part and those portions of

17 the report you'd like to draw his attention to.

18 MR. EMMERSON: I take Your Honour's point and since primarily

19 Professor Aleksandric has been charged with the responsibility for

20 preparing a further report and commenting on it, then obviously the

21 opportunity exists for the matters to be explored with him. What I was

22 seeking to do is simply to give this witness an opportunity to respond

23 given the general comments that have been made in evidence-in-chief about

24 the length of time that bodies have been at the location but I don't --

25 JUDGE ORIE: Would it be a solution, Mr. Dutertre, I'm also

Page 7315

1 addressing you, that, Mr. Emmerson, you're not putting any further

2 questions, I take it, Professor Dunjic, that you have a certain

3 professional interest in getting acquainted with what other experts might

4 have said about the report and therefore if you'd be so curious to know

5 what's in there, if you want to read it, that you're not obstructed from

6 doing so. And I'm now looking both at Mr. Dutertre and at all Defence

7 counsel, whether they would oppose Mr. Dunjic, if he's interested, to read

8 the report and to answer any questions.

9 MR. GUY-SMITH: Absolutely not.

10 JUDGE ORIE: Mr. Harvey?

11 MR. HARVEY: Makes very good sense to me, certainly, Your Honour.

12 JUDGE ORIE: Mr. Dutertre?

13 MR. DUTERTRE: [Interpretation] No objection, Mr. President, no

14 objection. For that to be complete, I think perhaps one should also give

15 the last report, which there was a motion about it from the Prosecution on

16 this matter concerning the translation of a new report on Rule 94 by

17 Mr. Truel [phoen]. I see that this report actually is on the list of

18 documents which Mr. Guy-Smith communicated to me and on which he wants to

19 rely for his possible cross-examination. Therefore this would enable the

20 witness to have an a complete view of all the reports which have been

21 filed on this matter.

22 JUDGE ORIE: I'd rather delay any decision on that until the

23 Chamber has formed an opinion about the timing and the content and the

24 importance of that report. There are procedural aspects in relation to

25 that.

Page 7316

1 [Trial chamber and legal officer confer]

2 JUDGE ORIE: This raises another matter, Mr. Guy-Smith. There is

3 a motion, could I say a rather short motion, not giving a lot of

4 explanation, on the timing and the importance of this report. If you

5 intend, and of course this was not disclosed to the Chamber, if you intend

6 to use that report, may we interpret that as there is no objection against

7 the introduction of that report in evidence? So --

8 MR. GUY-SMITH: The manner in which the Chamber has framed the

9 question leaves me a moment of pause because I --

10 JUDGE ORIE: Could you perhaps -- could perhaps all three Defence

11 counsel briefly respond. Of course, I'm not preventing you from making

12 further submissions on it, but if there would be a clear and short answer,

13 the Chamber would like to hear it, if possible, after the next break.

14 MR. GUY-SMITH: Okay. I'll tell you right now it was my

15 inclination with regard to that motion to request that he be available for

16 cross-examination at a minimum.

17 JUDGE ORIE: So not opposed admission of the report itself but if

18 similar short answers could be obtained from other counsel then the

19 Chamber would appreciate to hear not later than today.

20 MR. EMMERSON: Before I move to --

21 JUDGE ORIE: Then perhaps I address briefly Professor Dunjic.

22 Professor Dunjic, there is a report that you've not seen. There

23 is an English translation of that report. You'll not be taken by

24 surprise, no questions will be put to you at this moment about it. If,

25 however, from professional interest you'd like to read it overnight and

Page 7317

1 perhaps tomorrow morning, and if would you have some comment on it, and of

2 course that would not be, then an opportunity will be given. So I'm not

3 saying this is your homework, but I'm saying if you want to spend your

4 night in reading this report, it will be provided to you. But I can

5 imagine that you would like to do other things. I don't know, but ...

6 THE WITNESS: [Interpretation] Your Honour, as far as I could see,

7 it is a voluminous report. Just by going through what was put before me

8 concerning R-13 requires a more detailed analysis. I'm afraid I wouldn't

9 be able to do that tonight in entirety, without referring to the original

10 photo file and without analysing the on-site records.

11 MR. GUY-SMITH: As regards any cross-examination that I have of

12 this gentleman, I do not intend to cross-examine him in an area where he

13 would be hampered or have incomplete information.

14 JUDGE ORIE: I would not even allow you to do so, Mr. Guy-Smith.

15 MR. GUY-SMITH: It would not be my intent.

16 JUDGE ORIE: Then the next question is that we do understand that

17 Professor Dunjic considers himself not to be able to master the content of

18 this report overnight and therefore we will not even try to convince him

19 to do that. Next question is: Would any party oppose of the report being

20 provided to Professor Dunjic so that if at any later stage he would like

21 to send a written comment on it or perhaps, together with

22 Professor Aleksandric, formulate further responses to that, that at least

23 he has the report available.

24 MR. EMMERSON: No objection.

25 JUDGE ORIE: I see no objections from Defence, no objection from

Page 7318

1 you Mr. Dutertre? Professor Dunjic, you'll be provided with a report,

2 with an English version, with no obligations attached to it but all

3 opportunities. Please proceed. Yes, Mr. Dutertre?

4 MR. DUTERTRE: [Interpretation] Just one point of clarification.

5 Must I understand from Mr. Emmerson's head nod after what Mr. Guy-Smith

6 said, that this would be a sign of approval and that this report should be

7 given to Mr. Dunjic? I'm not sure we have taken a decision on this,

8 unless I have got it wrong.

9 JUDGE ORIE: I am talking about the Lecomte report and we are

10 not-- I know Mr. Emmerson good enough by now to know that if I would have

11 misinterpreted his nodding he would have certainly brought it to my

12 attention. Please proceed.

13 MR. EMMERSON: No objection.

14 Q. Before I move to the next topic I said that I would play you a

15 short passage of videotape and I'm doing this for one specific reason,

16 Mr. Dunjic. When I asked you to compare the photographs of those two sets

17 of remains that we see in the blue file, in tabs 2 and 3, that is

18 photographs D43 and D44, you made the observation that they were poor

19 photographs from which it was difficult to see the degree of

20 decomposition. Just to remind you, you've suggested to us that the body

21 that's shown in photograph D43 could either be R-21 and R-24 or it could

22 be R-29, and as we established earlier on, in respect of both of those

23 sets of remains, the post mortem report established that the remains were

24 skeletonised, in the case of R-21 and R-24 mostly without soft tissue and

25 in the case of R-29 almost complete skeletonisation with no soft tissue

Page 7319

1 and similarly, as far as R-18-1 and R-32 are concerned, the woman whose

2 body was unidentified, R-18-1, I think you'll confirm, consisted of a bare

3 skull vault with no tissue on it at all that was found at the bottom of

4 the falls.

5 A. Yes.

6 Q. Now, with that introduction, I'd just like to play you a passage

7 of videotape which may show those two floating bodies in a little more

8 detail and ask to you help us as to whether your opinion is any different.

9 This is P72, the video P72, at 4.50, that is, four minutes, 50. And it

10 should be showing in e-court.

11 [Videotape played]

12 MR. EMMERSON: I think that's probably sufficient for the present

13 purposes. We can stop it there.

14 Q. Now, I don't know whether you'd like to see that passage of video

15 again, Mr. Dunjic, but the suggestion I make to you is that it's perfectly

16 clear in respect of both of those bodies that they are fleshed, indeed the

17 fingers are visible and in respect of the body with the white trousers,

18 hair is visible. Do you agree with those propositions?

19 A. Yes. All that is visible, although one can see the changes that

20 have occurred due to putrefaction.

21 Q. I accept that. Do you still say that the body with the

22 light-coloured trousers is consistent with either R-21 and 24 or R-29,

23 both of which were recorded as being skeletonised without soft tissue?

24 A. Yes. I went back to that part of the report referring to R-29.

25 Q. Yes?

Page 7320

1 A. One can see that for the most part, soft tissue is missing,

2 although from the photographs one can see that parts of soft tissue are

3 still there. However, the process of putrefaction can be speeded up if

4 the body is out in the open and if there is water around. It can also be

5 partially skeletonised. Therefore, if we go back to the photographs made

6 at autopsy, as regards the body marked with 29, one can see that parts of

7 soft tissue are preserved but that the skull and the legs are bare. These

8 are the photographs or rather this is 29(B). That's a photograph from the

9 autopsy. I took all of that into account, taking into account the time

10 period that elapsed between the footage and the autopsy and the taking of

11 the photographs. Therefore I allow for a possibility, as I've stated

12 already, and the possibility is that these bodies may be the bodies found

13 in the canal. This is not necessarily an assertion but a presumption.

14 Q. Just finally on that score, Mr. Dunjic, if you look at 29(A) where

15 we see again the photograph of body 29 in situ in the canal, with the bare

16 bones appearing as they do in that photograph, would you agree that on the

17 footage we've just seen that body had a foot which was clearly visible?

18 A. Yes, but it was not found. The bones were not found. Therefore,

19 animals and fish, shellfish and rodents that may have been nearby, they

20 first go for the parts of the body which are the most accessible, these

21 being the face, hands, the skull and the feet. Therefore, I had to take

22 that into account as well. And on top of that, there was a time during

23 which the corpse was exposed to water.

24 Q. Thank you. Can I turn now to the subject of identification very

25 briefly? And I want to focus on the 12 individuals who were positively

Page 7321

1 identified by your commission and in respect of whom death certificates

2 were issued. First of all, two of those remains we know were individuals

3 who were attributed with bones that had been provided to you from

4 Dasinovac, correct? And those individuals had been found in conjunction

5 with identification documents; is that right? Which, if one puts those to

6 one side, leaves us with ten sets of remains that were recovered either

7 from the area adjacent to the concrete section of the canal or from the

8 natural canyon that were the subject of identifications. I see you nod,

9 if you could just confirm as we are going through, please.

10 A. Yes.

11 Q. And I think that you are aware that of those ten individuals, the

12 remains of six of them were successfully exhumed and DNA comparisons

13 carried out in order to establish whether the methodology that you had

14 used at Hotel Pastrik had resulted in correct or incorrect identification.

15 Is that something that you're aware of in respect of those six

16 individuals? Is that correct?

17 A. Yes.

18 Q. And in three of those instances, the identifications that had been

19 conducted by your team at Hotel Pastrik were confirmed, but in three other

20 cases, it turned out that the identifications were in error and you were

21 aware of that, I think?

22 A. Yes.

23 Q. I just want to ask you one or two questions an in little more

24 detail about those three cases. First of all, R-3, I think it's right,

25 and you say this at paragraph 121 of your 92 ter statement, that you

Page 7322

1 personally took the history from a lady called Zoja Seferaj, with respect

2 to her missing husband, Hadzi or Adzija Seferaj; is that right?

3 A. Yes.

4 Q. And then you deal with the process of identification at paragraphs

5 221 to 226, where you explain the process through which you went comparing

6 medical histories, personal information, data about bodily

7 characteristics, and a positive clothing identification, and you explain

8 at paragraph 224 that by means of expert analysis and medical history

9 data, together with the clothing identification, your commission concluded

10 that the remains R-3 belonged to Hadzi Seferaj and a death certificate was

11 issued. You see that?

12 A. Yes.

13 Q. Can I just ask you with that introduction, please, to look at

14 paragraph 226 where you're then shown the DNA report that establishes that

15 that process of identification had resulted in a misidentification, and

16 you say this, you say:

17 "In this particular case, we would have to interview a member of

18 the victim's family and collect further information about when he went

19 missing, his physical description, his dental records, a description of

20 his clothing, and whether he was related to Adzija Seferaj."

21 Could you just explain what that sentence means, please?

22 A. The process of identification that we applied is classical in

23 forensic medicine. It consists of an analysis of the post mortem record,

24 anthropological and forensic parameters and identification, all objects

25 and things found on the body or on the clothing as well as the clothing

Page 7323

1 itself. Therefore, one of the important parameters in the case of such

2 putrefied corpses, when the identification is being done, is the

3 identification of the clothing. And if someone confirms -- I'm sorry,

4 that's one part of the process. Another step in the process of

5 identification is to previously have an interview with relatives of the

6 victim so the relatives can explain the details they can remember

7 regarding anthropological characteristics, clothing and everything else.

8 Once that is done, we looked at our report, to see whether in our reports

9 there is any such person with the anthropological characteristics conveyed

10 to us by the relatives.

11 Q. Just pause there, please.

12 A. Let me just finish, I'll come to the answer to your question in a

13 moment. Therefore, when we had this conversation, when this woman

14 appeared, and once we had spoken to her, she told us certain

15 anthropological characteristics for Hadzi Seferaj. Then we asked her

16 about the clothing and then when she told us what she did, then we showed

17 her all the clothing we had in that room and on the basis of her own

18 recollection, she identified the clothing that was with this body.

19 Q. Just pause there.

20 A. Which means that the two things converged.

21 Q. Just pause there, because I think you must have misunderstood my

22 question. I wasn't asking to you explain the process by which that

23 identification had taken place. You are being faced at paragraph 226 with

24 a DNA report that tells you that the identification process which you

25 obviously at the time considered to be a very thorough one had resulted in

Page 7324

1 a misidentification and you say in response, "In this particular case, we

2 would have to interview a member of the victim's family and collect

3 further information about when he went missing" and so forth. What I'm

4 asking you is what are you trying to convey there? Are you suggesting

5 that the DNA report may not be correct?

6 A. No, no, no, no. On the contrary, I have to accept it as an

7 expert. But for this kind of identification, we needed to have this

8 conversation and regarding this conversation with the closest relatives of

9 the victim, I had to do that in order to be able to confirm these things.

10 But far be it from me to question the DNA. In fact, we took samples for

11 the purpose of a DNA analysis.

12 Q. That's the clarification of that sentence that I was seeking and

13 you refer in the final sentence to identifications of members of the

14 Berisha family arising out of Batajnica 1 and 2 which is something I want

15 to come back and ask you a few questions about in a moments or two. Could

16 we turn now to paragraph 377 where you deal with the identification,

17 again, as it turns out, a misidentification, of body R-15? And I just

18 want to just clarify a couple of points with you if I could, please.

19 First of all, in that instance, the data was provided by a man called

20 Rade Vlahovic. Were you aware that he was a police officer when he

21 provided that information to you? No?

22 A. No.

23 Q. Thank you. And the information that he provided to you was that

24 his father had last been seen on the 19th of April?

25 A. Yes.

Page 7325

1 Q. Can I ask you this? From recollection do you recall anything

2 being said about Albanian acquaintances of the family being sent to check

3 on Mr. Vlahovic after that time?

4 A. No.

5 Q. Presumably it was important for you to ascertain when it was that

6 he had last been seen alive?

7 A. Yes.

8 Q. And in this instance, you were provided I think at 3 -- paragraph

9 379 with some specific injury data, so something more than just general

10 anthropological history but a very specific fracture to the right ribs

11 which had not been treated and which I think you linked, if we look at

12 paragraph 375, to injuries that you found on the remains, which suggested

13 an injury to the rib cage fracturing the 8th rib on the right side. That

14 was a specific connection that you were making with the medical history

15 data?

16 A. Yes.

17 Q. And similarly if we can take it more generally, with the third

18 erroneous identification and you deal with this at paragraph 525 but I

19 won't ask you to turn it up, presumably when the family identify clothing,

20 you would need to be pretty sure that they were certain of the correctness

21 of the identification before issuing a death certificate; is that right?

22 A. Yes.

23 Q. Now, admittedly, six, where it's been possible to make the

24 comparison, is a small sample, but the fact of the matter is that where it

25 has been possible to test the identifications that were made from the

Page 7326

1 remains taken from the Lake Radonjic canal area, there has been, it

2 appears, a misidentification rate of 50 per cent. What I want to ask you

3 is this, Mr. Dunjic: You yourself took fragments of the remains so that

4 they could later be the subject of DNA comparison; is that right? I'm not

5 asking you about a specific body now. Is that not a practice that you

6 adopted with all sets of remains, Mr. Dunjic? You took a sample for DNA

7 analysis?

8 A. Yes.

9 Q. And presumably you took those samples for DNA analysis so that

10 identifications that had been done using the traditional methods of

11 identification could be either confirmed or contradicted; is that right?

12 A. I didn't quite understand what you just said. Could you repeat

13 it, please?

14 JUDGE ORIE: Mr. Emmerson, whatever the answer to this question

15 will be, there could be only one.

16 MR. EMMERSON: I'm seeking to put a proposition to the witness.

17 JUDGE ORIE: Please do so.


19 Q. Would you accept, Mr. Dunjic, whilst you may have been doing the

20 best that you could do in the circumstances, would you accept that in the

21 absence of DNA analysis, and given the error rate that has occurred here,

22 that this method alone carries a significant risk of misidentification?

23 A. Yes. Because we are aware of all the shortcomings of traditional

24 identification, in order to be quite certain, we took bone samples for DNA

25 analysis. However, you mention a rate of 50 per cent. I see here three

Page 7327

1 errors and the rest were correctly identified.

2 Q. I don't want, if I may say so, want to enter into a detailed

3 analysis. There were six cases where it was possible to check whether

4 what had been certified by your commission was correct or incorrect and in

5 three cases out of the six it turned out to be right and in three cases

6 out of the six it turned out to be wrong. That's the reason why I put it

7 to you in that way. Two other topics if I may.

8 First of all, very briefly, the bodies R-21 to R-24, those bodies

9 were all found in close proximity to one another, about 650 metres

10 downstream, do you recall that?

11 A. Only from the record, and what my colleague Aleksandric and myself

12 discussed and from his notes, because I wasn't there at the canal at that

13 time.

14 Q. I have just got one question I want to put to you about that,

15 please. If you could look at paragraph 462 of your report where you're

16 describing the dislocation of the upper and lower parts of R-21 and R-24,

17 you say there that the dissociation of those body parts may have occurred

18 as a result of putrefaction or the influence of the torrent. Can we

19 assume from that remark that from the pathological findings, the state of

20 those remains, that is to say the collection of remains that were found in

21 close proximity to one another, R-21, R-22, R-23 and R-24, that the state

22 of those remains was consistent, with each of them having been washed by

23 the water into the position in which they were found?

24 A. In a sense, yes.

25 Q. Thank you. And the last topic I want to ask you some questions

Page 7328

1 about relates to your involvement in --

2 JUDGE ORIE: Mr. Dutertre?

3 MR. DUTERTRE: [Interpretation] Could Mr. Emmerson ask what means,

4 in a sense, yes? Would it be possible to give a profound meaning of this

5 expression?

6 JUDGE ORIE: Though the matter could have been dealt on

7 re-examination, I think it would be good to have it clarified.

8 MR. EMMERSON: I'm sorry, yes.

9 Q. Mr. Dutertre is asking you to --

10 JUDGE ORIE: Mr. Emmerson, I add to that that you often ask a

11 question about whether it's consistent with, which is not always clear.

12 Does that mean that the state of the body does not exclude for the

13 possibility, or -- I mean "consistent with" is -- could have various

14 meanings.

15 MR. EMMERSON: Certainly. When I'm using the expression what I'm

16 intending to convey is that it's not inconsistent.

17 JUDGE ORIE: Yes, but that's not the same as consistent. Well,

18 this is a linguistic discussion. If it's not inconsistent with then I

19 have at least no further doubts on the matter.


21 Q. Let me put it to you this way. There was nothing about the state

22 of those remains which excluded the possibility that they had been washed

23 into the position in which they were found. Is that a fair comment?

24 A. The answer I gave was because there were other possibilities to

25 explain the disassociation of the body. One is putrefaction, which speeds

Page 7329

1 up the disassociation. Secondly, the torrents, and a third factor that

2 could be considered is of a mechanical nature. As the body moved, it may

3 have come across a hard object which may have broken up the body in two.

4 Q. Just to be absolutely clear, what I'm putting to you, there was

5 nothing about the appearance of that collection of bodies which excludes

6 the possibility that they were washed into position by water.

7 A. Just a moment, please.

8 Your Honour, Mr. President, I have just read the report of

9 Professor Aleksandric on the discovery of the bodies in situ, that is

10 where this group of bodies were found, with one shoe, and the other shoe

11 was found three metres above in some overgrowth, in some shrubbery that

12 was there, which led him to consider the possibility that it is possible

13 that the body may have been thrown from this higher ground. So this

14 possibility was considered because this one shoe was found and nothing

15 more than that. I wouldn't make any further assumptions.

16 Q. I want finally to ask you briefly some questions about your

17 involvement in the discovery and exhumation of human remains at a series

18 of mass graves in the police training barracks in Batajnica in 2001. Can

19 I ask you, please, to confirm, in June 2001, you headed a team of forensic

20 experts conducting exhumations at the Maj 13 barracks which became known

21 as Batajnica 1?

22 A. Yes.

23 Q. And that was a training centre for the MUP Special Anti-terrorist

24 Unit, the SAJ, right?

25 A. Yes.

Page 7330

1 Q. And the first of those mass graves was found within that training

2 facility?

3 A. No. It was behind the area where the other graves were found,

4 behind a natural land elevation.

5 Q. Thank you.

6 A. Hillock. There are the exact -- there is the exact location.

7 Q. I want to put some propositions to you, some statistics, from I

8 think your own testimony in other cases. In Batajnica 1, I think you

9 found the remains of at least 36 people of both genders and all ages,

10 including nine victims who were under seven years of age. Does that

11 accord with your recollection?

12 JUDGE ORIE: Mr. Dutertre?

13 MR. DUTERTRE: [Interpretation] Mr. President, according to the

14 professional experience of Professor Dunjic, I can see the relevance for

15 Batajnica, but I don't see the -- I don't see it for the case we have at

16 hand today and I wish to object to these questions.

17 MR. EMMERSON: Your Honours will be aware that we have put in

18 cross-examination, based on the upcoming testimony of a witness whose

19 protected status has not yet been finally resolved, that there is a

20 significance to be attached to the presence at the crime scene of General

21 Colonel Vlastimir Djordjevic, who is accused of being the architect behind

22 the Batajnica mass grave sites which this witness was party to the

23 exhumation of. And what I'm seeking to do through the witness is to place

24 on the record the essential facts about the recovery of remains at

25 Batajnica which were in some instances sourced to an area very close to

Page 7331

1 the indictment area.

2 JUDGE ORIE: The objection is denied. Please proceed.


4 Q. If I can press on, Mr. Dunjic, we can deal with it reasonably

5 briefly, I'll obviously be corrected if I make errors in the figures that

6 I'm putting to you, either now or in due course, but the statistics that

7 I'm putting to you are taken from either your own testimony or from

8 Professor Aleksandric' testimony in the Milutinovic case or the statements

9 that you've made. So first of all, you led the investigation of Batajnica

10 1 and 2; is that correct?

11 A. Yes. I led the expert part of the team, not the investigation,

12 but the team of experts for the exhumations and the forensic part of the

13 team.

14 Q. And I put the statistics for you for Batajnica 1. Would you agree

15 with that, 36 individuals, both genders, all ages, nine of whom were under

16 seven years of age?

17 A. Yes.

18 Q. And later that same month, June 2001, a second mass grave was

19 discovered at the barracks which was found to contain at least 269 bodies;

20 is that correct?

21 A. Yes.

22 Q. And after that, a further six sites were examined at Batajnica,

23 that is to say, Batajnica 3 to Batajnica 8, at least two of which were

24 found to contain mass graves, Batajnica 3 and Batajnica 5; is that

25 correct?

Page 7332

1 A. Yes.

2 Q. And I think Professor Aleksandric was responsible for those

3 exhumations?

4 A. Yes.

5 Q. And in all, more than 900 sets of human remains were found in

6 those graves; is that right?

7 A. I don't know the exact figure, believe me.

8 Q. Does that figure sound right to you or wrong, 900?

9 A. As far as I can recollect, I think it was about 806 bodies but I'm

10 not certain of that number.

11 Q. Now, most of the bodies showed signs of burning; is that right?

12 A. I don't know about the other bodies. I know with respect to

13 Batajnica 1, that there were burnt remains. In Batajnica 2, there weren't

14 any signs of burning, as far as I can recollect just now because I wasn't

15 involved with that. As for the other locations, 3, 4, 5, 6, 7, I don't

16 know about them at all.

17 Q. Are you not aware from the involvement that you had in Batajnica

18 as a whole that there was found to be evidence of an attempt to dispose of

19 bodies through the burning of car tires at the Batajnica site itself?

20 MR. DUTERTRE: [Interpretation] We are discussing Batajnica 1, 2,

21 3, 4, 5, 6, 7. Batajnica, I even have number 8 mentioned earlier. When

22 we are talking about attempts to put bodies at Batajnica, I would like it

23 to be specified which part of Batajnica, which site are we talking about.

24 MR. EMMERSON: Very happy to do that but I'm sorry --

25 [Trial Chamber confers]

Page 7333

1 JUDGE ORIE: Mr. Emmerson, I'm also addressing you, Mr. Dutertre.

2 Batajnica is of course not in the core of this case. We are talking about

3 statistical data and we are trying to elicit them from a witness from

4 memory. The issue is relevant or not. From the mere fact that the

5 Chamber allowed you to put some questions to Professor Dunjic about the

6 matter means that the issue of relevance you raised is not considered to

7 be absent. I'm not saying it in any more positive way. If these are

8 statistical data, the parties should sit together and they should say, So

9 many bodies recovered and then to say we consider that age is relevant,

10 sex is relevant, gender is relevant perhaps for those identified, ethnical

11 data are relevant and then to provide that to the Chamber in a joint

12 effort, not in this way to try to get this information from this witness.

13 I mean, these are really facts on which I hardly can imagine that the

14 parties could not agree on what are established statistical data. And

15 that would save time in court.

16 MR. EMMERSON: Very well.

17 JUDGE ORIE: Until now, then we get to all kind of details, seven

18 or eight or not. Of course, the Chamber is a bit lost about it because it

19 all has to be presented to us in a way, where there are far more efficient

20 ways. For example my next question would be if it was not in Batajnica,

21 if it was not in the camp, it was just outside the camp, behind elevation,

22 what was the distance and what do we have to conclude from that? You

23 understand that this is not the way to present this evidence, not to say

24 that the Chamber is not interested at all in learning something about mass

25 graves found in proximity of a camp where a certain person who may have

Page 7334

1 attended investigations in the Radonjic Lake area at a later stage, where

2 such a person was in charge.

3 MR. EMMERSON: Yes. There is -- with those comments very much in

4 mind, there is one aspect that I would just like to conclude with. May I

5 indicate what it is? And I can deal with it by way of generality rather

6 than specifics at this stage. My understanding is that this witness was

7 involved in the process of identifying the remains and I wanted to put

8 certain questions to him about that process of identification and what it

9 led to.

10 JUDGE ORIE: May I take it that that is the same area as the 50

11 per cent area?

12 MR. EMMERSON: No, no, no, not at all.

13 JUDGE ORIE: Okay. Then please proceed and keep in mind what I

14 just said.


16 Q. I'm going to take this generally with you, Mr. Dunjic, and we will

17 put the material in agreed form for the detail. But you were involved,

18 were you not, in the process of identifying remains taken from Batajnica

19 by a combination of DNA and post mortem and ante mortem information?

20 A. Yes. As regards Batajnica 1.

21 Q. I see. Not Batajnica 2?

22 A. And a significant portion of Batajnica 2. I just wanted to add

23 something. All of the corpses exhumed at Batajnica, we took one bone

24 sample for DNA analysis from each, but at the time when we were working on

25 Batajnica 1, 2 and later on the rest, in Belgrade, we did not have a

Page 7335

1 forensic DNA laboratory. Therefore, I had to ask the county court

2 president, Mrs. Skero to allow me, with the approval of the investigative

3 Judge, Mr. Goran Cavlina and Mr. Rade Gojkovic who was in charge of the

4 investigation concerning Lake Radonjic, so that they would let me take the

5 bone samples from Radonjic Lake and Batajnica 1 to Madrid. Therefore, we

6 had to take them out of the country. Later on, we got a DNA laboratory

7 and together with other DNA laboratories in Sarajevo and Zagreb, analyses

8 were conducted there concerning bone samples of corpses found in Kosovo,

9 Bosnia and Croatia.

10 Q. Just to be clear and I'm asking to you answer this question at a

11 level of generality rather than specific statistics at this point, can you

12 confirm, please, that from Batajnica, the identification process led to

13 the conclusion that a very large number of individuals whose remains were

14 found there, were individuals who had been reported missing or killed in

15 Kosovo?

16 A. I can be specific by saying that as far as the part of analysis

17 conducted by ourselves and the data received from UNMIK in Kosovo, that

18 they collected from the relatives of the missing, and based on the

19 anthropological forensic analysis we carried out plus the DNA analysis

20 that was carried out elsewhere, all that confirmed that these people were

21 of Albanian origin.

22 Q. And finally this, Mr. Dunjic.

23 JUDGE ORIE: Mr. Emmerson, it's not an answer to the question.


25 JUDGE ORIE: You answered the question as what their ethnicity was

Page 7336

1 whereas Mr. Emmerson asked you whether the large majority of those bodies

2 identified were bodies of persons that were reported to be missing or

3 killed, that is not having died in a hospital or something like that but

4 missing or killed.

5 THE WITNESS: [Interpretation] I just tried to put it in a way that

6 you would understand that we received the data from UNMIK. We did not

7 carry out the interviews with the relatives of the missing people whom we

8 identified. I only conveyed that piece of information that such and such

9 person went missing on that day in Kosovo. As for what were the

10 circumstances and whether that person was killed or died of natural

11 causes, we had no such information.

12 JUDGE ORIE: But people were reported as being missed and/or

13 killed rather than to have died in a car accident or whatever other causes

14 of death you could imagine. Reported. This is not to say that this is

15 the truth but reported to UNMIK as being -- as missed or being killed, the

16 large majority.

17 THE WITNESS: [Interpretation] Yes.

18 JUDGE ORIE: Thank you. Please proceed.


20 Q. And you mention in your own witness statement in these proceedings

21 at paragraph 226, a large number of members of the Berisha family from

22 Suva Reka, whose remains were found in the mass graves in Batajnica 1 and

23 2 that you were involved with, yes? That's something you're aware of in

24 relation to that group of individuals?

25 A. All I know is that that last name was often mentioned, that it was

Page 7337

1 a large family, and in one of the documents concerning to Batajnica 1 or

2 rather in one set of IDs, we found that very last name, Berisha.

3 Q. Just to be clear, I want to be absolutely certain what the

4 position is in relation to this, those individuals were individuals who

5 had been reported to have been killed in a Serb forces attack on the

6 Berisha family compound in Suva Reka in 1999, were they not?

7 A. I don't know that.

8 Q. Similarly, again, and tell us if you don't know, but 289 of the

9 exhumed victims were men who were reported to have been separated from a

10 convoy of refugees in the area of Meja, close to Gjakove on the 27th of

11 April 1999 and killed?

12 A. I heard of that piece of information in the press, but I don't

13 know which those bodies are exactly and where they are.

14 Q. Thank you.

15 JUDGE ORIE: We'll have a break first. Could I have an estimate

16 of the time other counsel would need for cross-examination?

17 Mr. Guy-Smith?

18 MR. GUY-SMITH: I would assume about half an hour.

19 JUDGE ORIE: Mr. Harvey?

20 MR. HARVEY: If I have any questions at all they will be very

21 brief but not more than ten minutes.

22 JUDGE ORIE: Yes. So then cross-examination will certainly be

23 concluded today. We'll see, Mr. Dutertre, whether there is any time

24 remaining for re-examination. We'll have a break until 6.00.

25 --- Recess taken at 5.42 p.m.

Page 7338

1 --- On resuming at 6.04 p.m.

2 JUDGE ORIE: Mr. Guy-Smith, if the order is as usual, please

3 proceed.

4 MR. GUY-SMITH: Thank you.

5 Cross-examination by Mr. Guy-Smith:

6 Q. Mr. Dunjic, if I might, sir, I'd like to start off with getting

7 some definitions to some of the terms that you have been using with regard

8 to the bodies that you had an opportunity to examine.

9 And you've used the term "saponification", the term

10 "putrefaction", and the term "decomposition" at various times in your

11 testimony. I'd like you if you could, please, to give us initially a

12 general definition of each of those terms starting with saponification, if

13 you could?

14 A. All these terms come from the field of traumatology which is the

15 science of deaths and the changes in corpses that occur post mortem.

16 Saponification is a process occurring in very damp conditions, when the

17 organic material, starting with skin and muscles, turns into soap. That

18 is why the term is saponification. It may last differently depending on

19 the part of the body and depending on the conditions, whether the body was

20 submerged or not, whether it was exposed to humidity in general. That is

21 that concerning that term.

22 Q. With regard to the issue of saponification, when you have occasion

23 as an expert to examine a body, is one of the things that you do to try to

24 make a determination of the degree of saponification that has occurred

25 with any body that you may be examining?

Page 7339

1 A. Yes.

2 Q. When you were engaged in attempting to make that determination,

3 sir, apart from what I would call -- and please help me here if I'm using

4 the wrong language -- apart from what I would call gross observations and

5 by that I mean that which you see from the naked eye, is there an

6 objective scale that exists in your field whereby you can make a

7 determination of the degree of saponification that any body has undergone?

8 And I'm sure you appreciate what I mean by an objective scale, a

9 scientifically objective scale.

10 A. Objectively, if we want to use that term, we can determine that by

11 using microscopes to determine the degree of saponification in certain

12 individual organs. That is done if necessary. Saponification may vary,

13 as I mentioned, and it can occur on the surface or in depth of the soft

14 tissue. It also depends on the weather conditions, if we are talking

15 about corpses that are in the open as opposed to those that are in

16 enclosed spaces when saponification occurs. What is most important is

17 that each organ and each part of the body be examined carefully in order

18 to describe the degree of the saponification process in the given tissue.

19 Based on the overall analysis of that degree, starting with the soft

20 tissue becoming soft and all the way to the point where it turns into

21 soap, and later on calcification, all that requires certain conditions,

22 certain temperature, humidity and so on and so forth. For each body, the

23 standard is to describe it individually with certain parts of tissue and

24 types of tissue in order to make it as objective as possible.

25 Q. With regard to the bodies that you examined brought to you from

Page 7340

1 the canal, did you engage in a microscopic examination of any of the

2 tissues on any of the bodies that you examined?

3 A. No.

4 Q. You have mentioned a number of other factors that deal solely --

5 and I'm not sure that they do deal solely with the issue of

6 saponification, perhaps they also deal with issues of decomposition and

7 putrefaction, so if I made a general statement here, once again, please do

8 correct me if I'm wrong. But you've mentioned a number of other factors,

9 such as temperature and humidity and then you said, "and so on and so

10 forth". With regard to the issue of temperature, in the autopsies that

11 you performed on the bodies that were delivered to you, did you have an

12 objective scale, and by that I mean a history of the temperature that

13 existed in the area of the canal for the period of time that you estimated

14 these bodies could have been dead?

15 A. Such objective parameters in terms of temperature was lacking.

16 However, we were present in the field and when we were working there,

17 temperatures were very high. It was very sunny, as can be seen on the

18 photographs. However, after the 12th, there was a sudden drop in

19 temperature and heavy rain which also had impact on the varying degrees of

20 putrefaction. Generally speaking, concerning the process of putrefaction

21 and saponification, being one of the changes as well as the mummification,

22 which is another process, there is a rule of thumb which says that the

23 corpses out in the open rot away four times more quickly than those in the

24 water.

25 , and those in the water rot four times more quickly than those in

Page 7341

1 the ground. This is what we go by when making an assessment. When a

2 corpse is in some water and taken out of it, then it starts rotting four

3 times more quickly and we have the decomposition of tissue because there

4 are other factors contributing to it such as flies, larvae and various

5 animals.

6 Q. Let me get to flies, larvae and various animals. You've used the

7 term "started rotting". Is there, from the standpoint of a pathologist,

8 an objective point where the body, or the material that you're examining

9 starts to rot. Is there a chemical or a physiological indication that

10 once again can be objectively tested so that you can make a determination

11 of when the rotting process started or at what speed the rotting process

12 was occurring? And if I might, each time I say "objective" what I'm

13 trying to understand is a scientifically objective standard whereby there

14 is an understanding within your field of expertise that your colleagues

15 and you depend on, a chart, a test, a rule.

16 A. There are different tables concerning the speed and degree of

17 putrefaction, saponification and mummification. However, I need to stress

18 so as to make it clear to everyone, that the process of putrefaction is

19 very specific and many factors contribute to it. That is why there is

20 more empirical research involved in order to establish under what

21 condition and in what -- at what rate a certain body will become putrid,

22 concerning certain individual factors. Therefore, there are tables and

23 standards in existence which may be used for the sake of analysis.

24 However, to carry out such an analysis we need to have an insight into the

25 external factors impacting the body, meaning that we have to know the

Page 7342

1 temperature, the cause of death, the circumstances of death and so on and

2 so forth because the cause of death itself has to do with the rate of

3 putrefaction. For example, if there was an inflammation, ante mortem, the

4 post mortem process is speeded up.

5 Q. Absolutely. You've mentioned that that's why there is more

6 empirical research here and by empirical research I take it you're

7 acquainted with, for example, the body farm at the University of

8 Tennessee, where they actually deal with decomposition of bodies and have

9 been for a number of years, it's kind of a famous place, and that's what

10 you're talking about when you're referring to empirical research; correct?

11 A. Yes.

12 Q. Okay. I just wanted to make sure I understood what you meant by

13 the term.

14 A. But -- I apologise. I want to add something. In addition to the

15 rest, what is important is the experience of the person working on that,

16 the number of cases that person dealt with, that personal experience is

17 very important because of the various environmental factors.

18 Q. Absolutely.

19 A. I won't go into my personal experience but, for example, at the

20 institute where I work, we saw corpses only three days old which underwent

21 such a degree of putrefaction and it was so covered in larvae that we

22 asked ourselves whether it was possible that only three days passed, but

23 this can happen in very warm, enclosed conditions, and then we have to do

24 additional research in order to be able to prove that this was indeed so.

25 Therefore, there are always varying examples of the rate of putrefaction.

Page 7343

1 Q. And one of the things that you mentioned was that obviously the

2 method of injury that caused death can be contributing to the rate of

3 putrefaction because among other things, and I'm sure -- this I won't go

4 into with you -- the body chemistry obviously is directly dependent on the

5 kind of wounds it suffers, as well as what the existing body chemistry may

6 have been. But with that in mind since you mentioned the word

7 "putrefaction" we have yet to define putrefaction and if you could,

8 please, at this point, define for us what putrefaction means in your

9 field.

10 A. Putrefaction is a process by which organic material in certain

11 conditions of endogenic substances are being decomposed or is being

12 decomposed by, first occurring in the outer and inner layer of organs.

13 That causes the change of colour of skin, its composition, its

14 decomposition and the decomposition of soft tissue in general. Gases

15 produced during such a process, and the amount of individual organs

16 affected by it also affects the structure of such organs but not always in

17 the very same sequence. Therefore, with microscopic samples one can see

18 such different changes that occur when cells and tissue are being

19 disintegrated. This process begins once breathing has stopped, when there

20 are no more aerobic changes and when such changes begin occurring in

21 various organs with all of the characteristics that occur later on

22 starting with the colour of skin, loss of structure and so on and so

23 forth.

24 Q. Once again, and I apologise, I didn't ask you this question with

25 regard to all three states that we are talking about, that being

Page 7344

1 saponification, putrefaction and decomposition, but once again I take it

2 that your answer would be the same with regard to the issue of

3 putrefaction, you didn't use a microscope in any of these areas when you

4 were making what determinations you were making concerning the state of

5 decomposition, the state of putrefaction or the state of saponification.

6 Your analysis is what we would call, I guess, a macroanalysis as opposed

7 to a microanalysis meaning which you used a microscope. And that's the

8 only distinction I'm making for the moment, is you did not use the

9 microscope?

10 A. Yes.

11 Q. With regard to the issue of putrefaction, I noted that in a number

12 of your reports, you used different terms with regard to the issue of

13 putrefaction, by that I mean you say the body was -- for example the body

14 was in an advanced state of putrefaction or the body was a putrefied body

15 using that as an example. Can you give us an objective standard, because

16 you indicated there were some charts or other kinds of things that we

17 could look at, could you give us an objective standard, whereby we could

18 understand the distinction between an advanced state of putrefaction and a

19 state of putrefaction? And once again I'm asking with regard to that

20 which is done within the scientific community in which you operate.

21 Because the term "advanced state" is somewhat ambiguous in the absence of

22 some objective criteria, so I'm hoping you can help us in that regard.

23 A. When talking about advanced putrefaction, it is what can be seen

24 on the organs themselves and establishing whether this occurred on the

25 surface of the organ or inside the organ itself. This also has to do with

Page 7345

1 the amount of gases in the tissue itself, connecting it to the other

2 processes such as putrefaction and the loss of structure that can be

3 observed. What we can establish is that there is a change of skin colour,

4 later on that change has finished, going further into the organs and then

5 we try to establish whether it is a diffusive process, whether it

6 encompasses all of the organs. That is why we try to describe degree of

7 putrefaction observed. There is no precise standard in place which I

8 could quote. When I say an advanced stage of putrefaction, that precise

9 standard is what I can observe along the entire body or in its isolated

10 parts.

11 Q. Would it be fair to say, and help me once again and the Chamber

12 too then, that two experts looking at the same body, based on the fact

13 that there are no objective standards as you've just told us, could come

14 to different conclusions with regard to the state of putrefaction the body

15 has undergone?

16 A. It is a matter of experience really. There is such a possibility.

17 However, the number of organs and the amount of tissue encompassed in

18 this process and the degree and the stage of that process is what sets the

19 standard.

20 Q. Okay. But if I were to go out as a layperson and look for

21 something that is to show me an advanced state of putrefaction as opposed

22 to a state of putrefaction as opposed to slight putrefaction, there is no

23 book I can could go to or standards, objective standards that I could rely

24 upon, looking at it from a macroscopic standpoint. From a microscopic

25 standpoint I could do that because there would be cellular change, right?

Page 7346

1 A. Yes. But I wanted to say the following, and when one says an

2 advanced state of putrefaction, it also needs to include the fact that

3 certain parts of tissue had already decomposed as opposed to the initial

4 change of tone of skin. Therefore, there is grading in the process of

5 putrefaction itself and based on that we can see whether the process has

6 just begun or by that time whether certain parts of tissue and organs had

7 already been decomposed.

8 Q. So from a macro standpoint one of the ways that you can make a

9 determination of how to define the level of putrefaction is by skin tone

10 and that's a recognised standard within the industry, correct?

11 A. Yes, but not only the tone of skin but of other tissue as well.

12 Q. Understood. Is there a distinction between putrefaction and

13 decomposition? And if there is, could you please define for us what

14 decomposition is?

15 A. Decomposition -- well, the most advanced stage of putrefaction is

16 decomposition, when soft tissue separates from hard tissue and when there

17 is a separation of individual parts or limbs or bones from the rest of the

18 body, for example, as it occurs in ribs, when the rest of the soft tissue

19 keeping the bones together has almost completely gone.

20 Q. I see. Now, these three states, and by that I'm talking about

21 saponification, putrefaction and decomposition may or may not exist in any

22 given corpse that you are autopsying, correct? You could have a corpse,

23 without for example saponification, these conditions do not always exist

24 in every autopsy that you perform?

25 A. Yes.

Page 7347

1 Q. Just so I'm clear so I'm trying to understand the process of what

2 I would call decomposition but I think that's probably the wrong term,

3 could a body be fully skeletonised within a week? And if I'm using the

4 word skeletonised correctly that would mean no --

5 A. I understand.

6 Q. Okay.

7 A. It can happen that for the most part the soft tissue is gone but

8 before that, it had to rot away almost completely, but only in such

9 circumstances which would provide for skeletonisation to occur. It may

10 occur naturally or it can be due to the presence of animals or insects.

11 For your information, there is the possibility of skeletonisation within a

12 period of three or four days if we are talking about a small child. In

13 the case of the death of a small child, of a young child, then there are

14 cases of the body being totally skeletonised within three or four days.

15 Q. Would it be fair to say that the number of variables that exist

16 with regard to what I've once again called the decomposition of a body,

17 the body decomposing from its live state to a fully skeletonised state are

18 myriad in nature, there are many, many, many different factors that have

19 to be taken into account in order to understand the decomposition process

20 of any one individual body, correct?

21 A. Yes.

22 Q. And in order to have a better understanding of what happened and

23 the speed with which a particular body decomposed microscopic and chemical

24 analysis, analysis of the tissues of that body, are of assistance, if not

25 critical, in being able to make an accurate determination with regard to

Page 7348

1 the speed of decomposition?

2 A. I don't think that that is critical. What is critical is the

3 circumstances under which the body was discovered. The corpse Re-1 that

4 we found in the canal and I will give you a concrete example, found in the

5 canal at the farm, in the concrete part that was closed, Re-1, it was

6 covered with larvae, on the 11th when we saw it. We put the body in a

7 nylon bag and we closed it. When we opened the bag, and when we put the

8 body on the table, most of the soft tissue of the skull had been totally

9 destroyed so you see to what extent the worms had skeletonised just that

10 part of the body. I'm not talking about the rest of the body. And this

11 can be seen on the photograph. I'm just trying to tell you that the

12 circumstances created by transferring the body from the canal to the bag

13 speeded up the process of development of worms and skeletonisation.

14 Q. Well, there -- and I ask you, are you not speculating when you say

15 that the circumstances created by transferring the body from the canal to

16 the bag speeded up the process of development? It could have been any

17 number of a series of things that did that. Not just the mere putting the

18 body into a bag. You're not suggesting that, are you?

19 A. No, no. I'm just saying that when the body was first seen, it had

20 soft tissue on it and it was in the initial stage of putrefaction. When

21 we had transferred it two days later it was completely bare. I'm just

22 talking about the factors that can contribute to the process we are

23 discussing.

24 Q. Now, with regard to the bodies that you autopsied at

25 Hotel Pastrik, when you received those bodies, you did not receive any

Page 7349

1 chain of custody documents with those bodies, did you?

2 A. No.

3 Q. And when you released the bodies or when you were finished with

4 the bodies, there was no chain of custody documentation that went along

5 with those releases, was there?

6 A. No.

7 Q. During the period of time that you were engaged in the autopsy of

8 these bodies, and I'm talking about all the bodies together because I'm

9 trying to do this quickly, one of the things that you decided to do, which

10 I think makes good sense from what I understand about your discipline and

11 once again if I'm wrong, tell me, is that you harvested samples from which

12 DNA could be extracted and ultimately analysed, correct?

13 A. Yes.

14 Q. And that is something that you personally did, and I'm asking the

15 question because I don't know if that's the case or not.

16 A. Yes. All of us took part in this, all of us who were involved in

17 the autopsies.

18 Q. And the reason that you harvested samples for purposes of

19 subsequent DNA comparison was because you wished to make sure as an expert

20 that any identifications made were fully accurate, correct?

21 A. Yes.

22 Q. Without getting into some of the dilemmas that face the discipline

23 of DNA testing, it's generally accepted that DNA testing is certainly a

24 more, shall I say, pervasive manner of scientifically determining the

25 identity of any particular body, correct?

Page 7350

1 A. Yes. At present, that is how it is.

2 Q. Assuming for the purposes of discussion, obviously that the sample

3 has been taken properly, correct?

4 A. Yes.

5 Q. That there is no contamination within the sample, right?

6 A. Yes.

7 Q. That there is no, for example, putrification of the sample or the

8 samples are otherwise inappropriate for testing, right?

9 A. Yes. Precisely that is what happened.

10 Q. In this case you made a determination with regard to one body at

11 least, that's R-17, not to take a DNA sample, correct?

12 A. I have to check that.

13 Q. And I think if I can be of any assistance, with regard to that

14 particular body, you stated in your autopsy report, which is P706 marked

15 for identification, that no material was taken for DNA analysis since

16 positive identification was based on primary illness, right?

17 A. Yes. This was this particular case because what we obtained about

18 earlier medical history was fully confirmed. This was the only person

19 with such a bone disease which is very specific, with a specific

20 development of the bone disease, and the previous information that we

21 received from her daughter confirmed this and she showed us this, so --

22 and she also confirmed and identified the clothing, so that we had no

23 dilemma and we didn't take any samples for DNA analysis for that reason.

24 Q. And just so we are clear, had you taken a DNA sample, then you

25 would have had another objective, scientific method upon which the

Page 7351

1 identification of that body could have been concluded, correct?

2 JUDGE ORIE: Mr. Guy-Smith, may I just interrupt you for a second?

3 At this moment, I mean, this question doesn't assist the Chamber in any

4 way, even the Chamber could answer that. Of course, if you have another

5 method of identification, questions like, if you take a sample you should

6 do it properly --

7 MR. GUY-SMITH: I appreciate that, Judge. If I might you'll see

8 exactly where I'm going.

9 JUDGE ORIE: Please go there.

10 MR. GUY-SMITH: One more question, I'm there.

11 JUDGE ORIE: Okay. Please proceed.


13 Q. So do you understand my last question, sir? Having taken -- had

14 you taken a DNA sample then you would have had an objective basis upon

15 making the determination of the identification of that body; correct?

16 A. Yes.

17 Q. Are you aware of what happened to the remains of R-17 after your

18 autopsy?

19 A. No. We handed it over to the relatives for burial. That is what

20 it says here.

21 Q. So you have no understanding that that particular body, R-17, has

22 never been found since you did your autopsy?

23 A. I really don't know.

24 Q. I said I was going to take half an hour. I'm clearly over that

25 time. I do have some other areas to go into.

Page 7352

1 JUDGE ORIE: But Mr. Guy-Smith, I didn't want to interrupt you

2 earlier, whether you need it, 15 questions to come to the point to -- I

3 mean, that DNA analysis gives an additional opportunity to confirm.

4 MR. GUY-SMITH: Excuse me, it was three and I'm moving quickly.

5 JUDGE ORIE: Questions like if you take an example you should do

6 it properly, isn't it.

7 MR. GUY-SMITH: As a matter of fact, Your Honour, there is an

8 issue with regard to contamination in this case.

9 JUDGE ORIE: Yes, of course, but --

10 MR. GUY-SMITH: Excuse me. And DNA contamination with regard to

11 certain bodies and the fact of the matter is you need to understand at

12 some point in time certain things, and if you will allow me I will tell

13 you exactly what's going on.

14 JUDGE ORIE: There is no problem but the question whether

15 contamination could be a problem, Mr. Guy-Smith, is something of knowledge

16 of this Bench. Taking samples on whatever issue and from DNA, it's well

17 known in the early history of DNA we have the mixed samples of DNA.

18 That's all perhaps for a jury to be led through.

19 MR. GUY-SMITH: As a matter of fact, Your Honour, the present

20 state of DNA is worse than it was then. There are more difficulties with

21 DNA, not fewer difficulties with them, as a result of -- as a result of

22 more comprehensive scientific analysis in the area and one of the things

23 that has happened which is the reason I raised the question about

24 contamination is there have in fact been a number of situations where

25 contamination is in fact recognised and allowed for purposes of trying to

Page 7353

1 make a DNA match, and in other situations depending on how the tests was

2 done it is not. You will see precisely --

3 JUDGE ORIE: No problem for that, but let's then go to the core of

4 those problems right away instead of having them introduced by a lengthy

5 series of questions. But I see Mr. Harvey is on his feet. I think it's

6 related to the time.

7 MR. HARVEY: Only to try and give everyone some margin of

8 comfort. I will not be asking this witness any questions.

9 JUDGE ORIE: Then Mr. Guy-Smith, we -- I need another five minutes

10 at the end of this session. Mr. Dutertre, I take it you need certainly

11 more than a couple of minutes for re-examination. You have another 11

12 minutes and then, Mr. Dutertre, tomorrow we'll start re-examination.

13 MR. GUY-SMITH: I may need more.

14 Q. When you took the samples to Madrid, sir, you gave them to

15 Dr. Antonio Alonso, who spoke with you about the fact that the samples

16 were contaminated, putrefied and some of them were completely rotten, did

17 he not?

18 A. Yes.

19 Q. Before we took the break, you discussed having seen some hair and

20 having made an analysis on that hair, from what I understand from the

21 testimony that you've given here, which would be a macroanalysis and not a

22 microanalysis, and by that I mean, you looked at it, you eye-balled it,

23 you didn't look at it under a microscope, correct?

24 A. Yes.

25 Q. With regard to the issue of microscopic analysis of hair, are you

Page 7354

1 aware of the number of factors that go into such an analysis? And by that

2 I mean such things as longitudinal comparisons, cross-section comparisons,

3 pigment density, subtypes of pigment density as they relate to both

4 longitudinal as well as cross-sectional comparisons but to name a few?

5 Are you aware of those?

6 A. Yes.

7 Q. Are you aware of the fact that with regard to the issue of hair

8 comparison, there is an open debate at present as to whether or not

9 results obtained from microscopic analysis of hair samples should not be

10 admitted into courts at this time because of the fact that there are too

11 many unexplained factors, and there is no objective criteria upon which to

12 base conclusions?

13 A. I am not aware of that, that it is -- cannot be used in court.

14 Q. I'm saying there is an open debate at a microscopic level, I'm not

15 dealing with macroscopic. But in a microscopic level where somebody under

16 a microscope, a scientist under a microscope, using objective standards

17 makes a determination that such evidence at this point -- there is an open

18 debate about whether or not it should be admitted at all into a court of

19 law. You said you're not aware of that. Would you agree, sir, that a

20 microscopic analysis of something like hair is more accurate than a

21 macroscopic analysis where you eye-ball it?

22 JUDGE ORIE: Mr. Guy-Smith, what analysis has the witness made on

23 hair today apart from what he said he has seen hair on a body?

24 MR. GUY-SMITH: He indicated that the hair was similar in two

25 different places, at page 6834, this is where you and I had an argument

Page 7355

1 about the issue concerning the word of "match" and the scientific meaning

2 of "matching".

3 JUDGE ORIE: Yes. Then I misunderstood you.


5 Q. Would you agree with the statement that in order for there to be

6 an accurate matching of hair, that what has to occur is a mitochondrial

7 DNA test in which the two hairs match?

8 A. Yes.

9 Q. That did not occur --

10 A. For reliable establishment with a very high degree of probability.

11 What I said and which has led you to ask these questions is that the hair

12 found on that body, and the wire in the form of a loop on which a larger

13 sample of hair was found, that that hair found on that body and found on

14 that wire in its macroscopic appearance, they match and nothing more than

15 that.

16 JUDGE ORIE: Mr. Guy-Smith, you made your point as far as lost

17 opportunities are concerned, microscopic investigations.

18 MR. GUY-SMITH: I trust I've also made my points with regard to

19 the issue of matching which is of more critical nature. If I've made that

20 point then I have no further questions in that regard.

21 JUDGE ORIE: That's perfectly clear. I just misunderstood you

22 when you said before we took the break that you meant to say before we had

23 a recess. That's where I was a bit confused.

24 MR. GUY-SMITH: I apologise.

25 JUDGE ORIE: Please proceed. And I urge you to see whether you

Page 7356

1 can finish in five minutes.

2 MR. GUY-SMITH: You have fine minutes, Your Honour.

3 JUDGE ORIE: Thank you, Mr. Guy-Smith. You're more generous than

4 I. Mr. Dunjic -- Mr. Harvey, I take it that you have not changed your

5 mind of last couple of minutes?

6 MR. HARVEY: No, despite Mr. Guy-Smith giving us all a little more

7 latitude.

8 JUDGE ORIE: Professor Dunjic, time is too short today to start

9 re-examination and finish it so therefore since we have a few other

10 procedural matters to deal with, which will take a couple of minutes, it

11 means that for today you are excused. Nevertheless I instruct you again

12 not to speak with anyone about the testimony already given or still to be

13 given tomorrow. Mr. Dutertre, could you give us and therefore also

14 Professor Dunjic any idea of what -- how much time you would need

15 tomorrow?

16 MR. DUTERTRE: [Interpretation] I will see the transcript of this

17 afternoon but no less than half an hour, whatever happens.

18 JUDGE ORIE: That is clear to us. Professor Dunjic, we would like

19 to see you back tomorrow, quarter past 2.00, and on the basis of the

20 information I've got until now, there is not a major chance that there

21 will be any other homework but that you might be able to travel home soon

22 after that. Then the only thing I would like to make sure is that you

23 receive a copy of the report we discussed today. Madam Registrar, could

24 you take care that Professor Dunjic is provided with a copy of the Lecomte

25 report without any further obligations.

Page 7357

1 Therefore we would like to see you back tomorrow. Madam Usher,

2 could you escort Professor Dunjic out of the courtroom?

3 [The witness stands down]

4 JUDGE ORIE: I'll deliver two decisions. The first is the

5 decision on the admission of D56, D57, D58 and D59, until now, items

6 marked for identification.

7 On the 1st of June 2007, the Defence for Ramush Haradinaj asked

8 for the admission into evidence of paragraphs 7 to 10 of D56 which is a

9 Prosecution statement of a person who is not a listed witness in this

10 case. Furthermore, the Defence asked for the admission of D58 and D59.

11 These are, respectively, a Prosecution statement and a statement to UNMIK

12 police made by a person who is also not a listed witness in this case.

13 D56, D58 and D59 were used during the cross-examination of the

14 witness Rrustem Tetaj. In its 1st of June motion the Defence clarified

15 that it does not seek admission of D56 and this exhibit number therefore

16 will be vacated.

17 On the 13th of July 2007, the Prosecution conceded in its response

18 that the statements in question are relevant to the case. It contended,

19 however, that the Defence had not shown how the witness statements could

20 be admitted outside the scope of the provisions of Rule 92 bis, ter or

21 quater. The Prosecution also contended that statements admitted into

22 evidence absent an attestation as to their veracity and absent the

23 opportunity of the opposing party to cross-examine, should be given little

24 weight.

25 According to the case-law of the Tribunal, witness statements

Page 7358

1 prepared for the legal proceedings are admissible only if they fulfil the

2 requirements of Rule 92 bis, 92 ter or 92 quater. D56 and D58 are

3 statements taken by the Prosecution for the purpose of the present legal

4 proceedings and therefore clearly fall within the scope of the mentioned

5 rules. The Chamber therefore decides that they cannot be admitted into

6 evidence in the manner sought by the Defence.

7 D59 is a statement given to UNMIK police in 2002 and therefore

8 falls outside the scope of Rule 92 bis, 92 ter or 92 quater. The Chamber

9 admits D59 into evidence.

10 The Chamber considers, however, that such a witness statement

11 might carry little weight, in particular because the opposing party has

12 not been given an opportunity to cross-examine the maker of the statement.

13 This concludes the Chamber's decision on the admission of

14 evidence.

15 I now move on to a decision to add a witness to the Prosecution's

16 witness list.

17 It is a decision on the Prosecution's application filed on the

18 13th of July 2007 to add a Rule 92 bis witness to its witness list. The

19 Prosecution has applied for the Chamber's leave to add a new Rule 92 bis

20 witness to its witness list. The proposed witness has indicated to the

21 Prosecution that he wishes to testify with protective measures.

22 Therefore, I will not mention his name in open session.

23 He has one witness statement from May 2006.

24 The Prosecution submits that the evidence and the proposed

25 witness's statement corroborates other evidence concerning the recovery of

Page 7359

1 bodies at the Lake Radonjic area. The Prosecution states that it does not

2 intend to examine the witness in chief. At the same time, the Prosecution

3 does not suggest that the witness should not appear for cross-examination.

4 The Prosecution does not give a reason why the person in question is

5 being proposed as a witness at this late stage. The Prosecution informs

6 us that it anticipates that because several scheduled witnesses may

7 ultimately not be called to testify, the addition of the proposed witness

8 will not unduly lengthen the Prosecution's case. Both Mr. Balaj and

9 Mr. Haradinaj responded to the application on the 29th and the 30th of

10 July respectively. Or 26th, yes. I misspoke. 26th and the 30th of July

11 respectively.

12 Mr. Haradinaj does not object to adding the proposed witness to

13 the list on the condition that the witness is made available for

14 cross-examination. The Chamber agrees with Mr. Haradinaj that he's

15 entitled to cross-examine this witness. The Chamber also agrees that

16 certain paragraphs in the proposed statement which have been identified by

17 Mr. Haradinaj in footnotes 10 and 11 of his response are of questionable

18 value. Two paragraphs in the statement in particular, namely paragraphs

19 17 and 104, are not suitable for admission and must be redacted.

20 [French interpretation on English channel].

21 JUDGE ORIE: I now receive French translation on channel 4. I

22 therefore repeat that two paragraphs in the statement, in particular,

23 namely paragraphs 17 and 104, are not suitable for admission and must be

24 redacted.

25 If the Prosecution wishes to examine the witness in order to

Page 7360

1 substantiate allegations in the other six paragraphs identified by

2 Mr. Haradinaj or for any other reason, the Prosecution must of course use

3 up some of its allocated time for examination-in-chief.

4 For his part, Mr. Balaj also does not oppose adding the proposed

5 witness to the witness list on the condition that Mr. Balaj is given an

6 opportunity to cross-examine the witness. Mr. Balaj's response is perhaps

7 ambiguous on this point but in any case this is how we understand it. I

8 hope it is accurate to say that while Mr. Balaj strenuously opposes the

9 addition of this witness pursuant to Rule 92 bis, he does not oppose the

10 addition pursuant to Rule 92 ter. Since the Defence does not object to

11 the addition of a witness at this late stage without an explanation by the

12 Prosecution, the Chamber does not find it necessary to address that

13 particular issue. However, in the future, the Prosecution should give

14 detailed reasons for any further amendments to its witness list.

15 To sum up, the Chamber grants leave to the Prosecution to call the

16 witness in question to testify pursuant to Rule 92 ter. This concludes

17 the Chamber's decision on the Prosecution's application for a new Rule 92

18 bis witness.

19 We adjourn until tomorrow, the 22nd of August, quarter past 2.00

20 in the afternoon, Courtroom III.

21 --- Whereupon the hearing adjourned at 7.03 p.m.,

22 to be reconvened on Wednesday, the 22nd day of

23 August, 2007, at 2.15 p.m.