Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8549

1 Tuesday, 18 September 2007.

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.18 p.m.

6 JUDGE ORIE: Good afternoon to everyone. Mr. Repic, I'd like to

7 remind you that you're still -- first, Mr. Registrar, would you please

8 call the case.

9 THE REGISTRAR: Good afternoon, Your Honours, good afternoon to

10 everyone in the courtroom. This is case number IT-04-84-T, the Prosecutor

11 versus Ramush Haradinaj et al.

12 JUDGE ORIE: Thank you, Mr. Registrar.

13 Yes, Mr. Repic, I first -- I'd forgotten to have the case called.

14 I would like to remind you that you are still bound by the solemn

15 declaration that you gave at the beginning of your testimony.

16 Mr. Emmerson will now continue his cross-examination. Mr. Emmerson,

17 please proceed.


19 [Witness answered through interpreter]

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

21 Q. Mr. Repic, I was asking you some questions yesterday afternoon

22 about your knowledge or otherwise of the involvement of PJP forces in the

23 incident on the 5th of March at the Decane compound in Prekaz and on the

24 28th of February and the 1st of March on the villages of Likoshan and

25 Qirez. Can I ask you please again in relation to the 5th of March

Page 8550

1 operation on Prekaz, having had an opportunity to reflect on it overnight,

2 were PJP officers involved in that operation?

3 A. I will have to reply in the negative again. In the -- I did not

4 take part in the operation or in its preparations. My duty was to take

5 over duty at the factory for hunting ammunition, to take over from my

6 colleagues. Now, as to whether they had participated in that operation, I

7 don't know that.

8 Q. This is the thing I want to probe with you, Mr. Repic, which

9 surely arriving in that area where the PJP forces had been stationed, 10

10 days after the incident at Prekaz, you would have discussed that incident

11 with the colleagues that you were replacing or relieving, would you not?

12 A. I do not remember those discussions. I can just briefly convey to

13 you the official information that was given to us when we took over.

14 Q. Well, if it answers the question I'm asking you, then please do.

15 A. As I have told you yesterday in my evidence, we had to prepare our

16 unit for deployment before we arrived in the area of Kosovska Mitrovica,

17 so we received official information that we were to relieve the unit in

18 the area of Srbica, in the hunting ammunition factory, which had held

19 those positions, securing the factory, and some other positions around

20 Srbica itself. We were also told that in the Jashari Mahala, there had

21 been an armed clash after Adem Jashari and other male members of his

22 family resisted arrest that was attempted by police. Now, as to who

23 participated in that operation, I truly don't know that.

24 Q. I see. And so far as Likoshan and were concerned, the operations

25 that had taken place a week before, what was the position there? Did you

Page 8551

1 know whether PJP forces had been involved in those operations?

2 A. No, I'm not aware of that.

3 Q. I'm going to put to you a passage from a judgement of another

4 Trial Chamber of this Tribunal in respect of those incidents and invite

5 you to comment on your knowledge of what is there recorded. I'll read it

6 to you slowly so it can be translated. This is paragraph 49 from the

7 Limaj judgement.

8 "On the 28th of February and the 1st of March 1998, Serbian police

9 forces launched an attack on the villages of Qirez and Likoshan located

10 two kilometres apart in the Drenica area. Helicopters, armoured military

11 vehicles, mortars and machine-guns were used in the attack. In both

12 cases, the Serbian Special Police forces attacked without a warning and

13 fired indiscriminately at civilians.

14 "On or about the 5th of March, Serbian security forces attacked

15 the family compound of the leader of the KLA Adem Jashari in Prekazi i

16 Poshtem, a village located not far from Likoshan and Qirez also in the

17 area of Drenica. The fighting in which armoured vehicles were used

18 continued for about 36 hours. The evidence is that during the

19 February-March 1998 attacks in the area of Drenica, 83 Kosovar Albanians

20 were killed. Among the dead victims were elderly people as well as at

21 least 24 women and children.

22 During the attack on Qirez a pregnant woman was shot in the face

23 and a baby was killed in Prekazi i Poshtem. Many of the victims were shot

24 at very close range. Reports indicated men were summarily executed in

25 front of their homes and that some of the victims were shot dead while in

Page 8552

1 police custody. During the attack on Prekaz, the entire Jashari family

2 except for an 11-year-old girl was killed."

3 What I want to ask you is was there an investigation taking place

4 into the legality and propriety of the police actions on those dates when

5 you arrived?

6 A. I'm not aware of that.

7 Q. And as far as you know, was any effort made to identify and

8 isolate the Special Police forces that had taken part in those operations?

9 A. I have to emphasise again that I commanded a company. What you

10 are asking me goes beyond my scope of work or knowledge. Perhaps this

11 looks odd to you, but concerning these things that you're asking me about,

12 whether there were investigations, whether participants were identified

13 and so on, I truly don't know about these things.

14 Q. You presumably then don't know whether any disciplinary action was

15 taken against any of the Special Police forces involved?

16 A. No.

17 Q. Let me move on, then, please, to your transfer to Junik in

18 mid-May. Just before I do, just give me one moment. You told us that

19 there were other PJP units stationed in the area to the west of the main

20 Pec-to-Gjakove road; is that correct?

21 A. I don't remember saying that. I don't know what is the context

22 that you took it out.

23 Q. Let me put the question to you again in case I've misunderstood

24 your testimony. When you arrived in mid-May in Junik --

25 JUDGE ORIE: Mr. Emmerson, could you please refer to the page

Page 8553

1 number?

2 MR. EMMERSON: Can I find the reference and provide it to Your

3 Honours later on.



6 Q. Let me put the question to you again. When you arrived in Junik

7 in mid-May you were relieving an existing PJP contingent that was there;

8 is that correct?

9 A. Yes, yes.

10 Q. And were there other PJP contingents stationed on the west of the

11 main Pec-to-Gjakove road, for example in the area around Penosvac, at the

12 time that you arrived?

13 A. Now you caught me by surprise a bit. It's difficult for me to

14 create a picture in my head about the location, but let me give you an

15 explanation to the extent that I can. There were other forces in that

16 area stationed in that area around Decane, in Pec, in Djakovica. There

17 were units there.

18 Q. Thank you. Could you turn to tab 9 in the red file for a moment,

19 please?

20 And whilst that's being done, the reference that Your Honour asked

21 for, I believe, is 8489, line 15. It may be that it's to some extent

22 overtaken by the witness's answers more recently.

23 The document that you are looking at, Mr. Repic, is a situation

24 report filed by the office of the British military attache to Belgrade

25 following a visit to Penosvac, which as you will recall is south of Junik

Page 8554

1 on the west side of the road on the 11th and 12th of May and it begins by

2 recording that "The situation in Penosvac area is very tense, the area of

3 Penosvac, Djakovica, Pec and Decane are patrolled by elements of the JSO

4 and the PJP in a very heavy-handed way. Villagers have fled north to

5 Junik."

6 That's the summary, and then in paragraph 2 under the heading

7 detail, it reads, "Penosvac, roads south to Penosvac carpeted in empty

8 cases including 40-millimetre grenades, villages south of Penosvac

9 deserted, live-stock slaughtered in fields, houses sprayed with gunfire,

10 Penosvac empty, except for JSO/PJP who are carrying out patrols from

11 Decane using APCs," that's armoured personnel carriers, "including TABC 79

12 and IPR similar to M-60. Most villagers now concentrated in Junik, about

13 300 with enough food and water but no telephone."

14 And then finally under the heading assessment in paragraph 7 on

15 the following page, the reporter records, "Heavy-handed terror action in

16 Penosvac area indicates that the tactical thought process has not

17 changed." That is a reference to the tactical thought process of the

18 Serbian forces deployed there, Mr. Repic.

19 Now, you arrived, I think you said, in the second half of May.

20 Were you aware that there had been an operation to the south of Junik in

21 which JSO and PJP forces had slaughtered live-stock, sprayed houses with

22 gunfire and caused the civilian population to flee northwards towards

23 Junik?

24 A. As for there being operations in the area that you mentioned, yes,

25 we were informed about that. But we were not told about all of the

Page 8555

1 details, exact descriptions, consequences and the description that you

2 gave us. We were not told about that.

3 MR. RE: Before he goes on can I just simply ask that the record

4 reflect that the exhibit was I think D110 which the witness is being

5 shown?

6 MR. EMMERSON: I'm sorry, thank you.



9 Q. I asked you yesterday as to whether you were aware of Serbian

10 Special Police forces shooting live-stock, burning haystacks, making areas

11 uninhabitable. When you arrived, was any of the detailed information

12 about the operation that had been taking place south of Junik conveyed to

13 you?

14 A. No.

15 Q. I'm just trying to understand, in both of these instances, both

16 when you arrived in Prekaz or while, I'm sorry, in Srbica 10 days after

17 Prekaz -- the Prekaz incident and when you arrive in Junik 10 days after

18 the operation that's here described, in each instance, you told us there

19 is a process of you relieving forces that are there in a handover but in

20 neither instance are you given any detailed briefing of what's been taking

21 place in the fortnight before you arrived; is that correct?

22 A. I have to clarify that the handover of duty between the two units

23 does not include a detailed discussion and briefing at the level of

24 company commanders about the activities that had been completed.

25 Q. Well, may I then turn to the operation that you described as

Page 8556

1 having begun on the 25th of May following first of all the disappearance

2 of Mr. Popadic and Mr. Jovanovic and then the attack involving Milutin

3 Novakovic? In your witness statement in this case, you indicate that on

4 the 24th of March -- I'm sorry, I apologise, "On the 25th of May, 1998,

5 PJP units, I believe from Djakovica, started searching for our missing

6 colleagues in the villages in the area, specifically in the area along the

7 villages Babaloc and Junik towards Prilep." And you described that

8 yesterday in your testimony as an operation comprising special measures to

9 sweep the terrain. I wonder, can you just help us in a little bit more

10 detail about that operation?

11 JUDGE ORIE: Mr. Emmerson, would it not be appropriate to have the

12 statement introduced? Because it's not in evidence, that the witness gave

13 the statement. I take it that you're referring to the 15th of December

14 2006 statement. Is that --

15 MR. EMMERSON: Your Honour is correct.

16 JUDGE ORIE: Yes. Perhaps you first ask the witness whether he

17 has given such a statement because I don't think it has been mentioned

18 before.


20 Q. You gave a statement in this matter to the Office of the

21 Prosecutor; is that correct?

22 A. Yes.

23 Q. And in that statement, you mentioned the 25th of May operation

24 that you told us about in your testimony yesterday?

25 A. Correct.

Page 8557

1 Q. And was your company involved in that sweep?

2 A. No.

3 Q. But other PJP companies were involved?

4 A. Yes.

5 Q. I want to ask you if I may about two matters in connection with

6 events on or around the 25th of May. Human rights organisations have

7 reported that during the week of the 25th of May, many of the villages

8 from Pec to Gjakove were shelled whilst civilians were present. Can I ask

9 you, please, were you aware that shelling was taking place?

10 A. Your question is not quite clear to me. Which villages and what

11 do you mean by shelling? Artillery shelling or what?

12 Q. Well, perhaps you can help us. From your own recollection during

13 that operation that you described, was there artillery shelling on

14 villages in the area?

15 A. No.

16 Q. I see. Was there any other form of grenades used to attack

17 villages in the area on the week of the 25th of May as part of that sweep?

18 A. Once again you're asking me about something where I did not

19 participate myself. I do not exclude the possibility that hand-held

20 rocket launchers were used or perhaps hand-grenades. This was an

21 operation that included sweeping of the terrain, so that possibility is

22 there, yes.

23 Q. Just so that we understand, then, in that context, you recognise

24 that sweeping of the terrain is something that could include rocket

25 launchers and grenades. What is the object of sweeping? What does the

Page 8558

1 word "sweeping" mean in this context?

2 A. Sweeping of the terrain is the equivalent of the police

3 term "search of the terrain." The purpose of that operation was to locate

4 the two policemen who had gone missing as well as the motor vehicle in

5 which they had been travelling.

6 Q. Was there, as a result of this operation, a situation in which

7 many of the villagers left their villages because they were under attack

8 from Serbian forces?

9 A. I'm not aware of whether they had left their villages but one of

10 the consequences of such operations is definitely fear.

11 Q. Again, human rights organisations have recorded as part of the

12 activity in the week of the 25th of May that non-combatants fleeing their

13 villages were shot at by Serbian forces. Is that something that you have

14 any knowledge of?

15 A. No.

16 Q. And that after that operation, many villages were systematically

17 destroyed and live-stock shot to ensure that nobody could return in the

18 short run.

19 A. I'm not aware of that.

20 Q. Can I ask you now, please, to turn to tab 10 in the red bundle,

21 which, for the record, is Exhibit P6 at page 23 of the exhibit. This is

22 another incident that took place on the 25th of May in the village of

23 Ljubenic which is on the Pec-to-Decane stretch of the road and it records,

24 and I'll just read two short passages into the record so that it can be

25 translated for you. "On the basis of its research into the events at

Page 8559

1 Ljubenic village near Pec in Kosovo, the humanitarian law centre has

2 established that at least five ethnic Albanians were killed on the 25th of

3 May 1998. All the victims were men whose ages ranged from 23 to 68, all

4 were members of the Hamzaj family and were killed in their homes. The

5 bodies were found in the yard shared by the Hamzaj family dressed only in

6 underwear and with visible marks of torture. Two houses were destroyed

7 and four burned."

8 A little further down is a description of those involved in the

9 operation. "Around 1.30 p.m., the same day, a 250 to 300-strong police

10 unit arrived in Ljubenic from the direction of Stellc village in trucks,

11 buses, four-wheel drives and several armoured personnel carriers. The

12 police were equipped and armed for action in the field. They entered the

13 village after first subjecting it to heavy artillery and small-arms fire.

14 Some of the police were bearded, which indicates that they were not

15 regular members of the force. The artillery and small-arms fire which

16 lasted for over an hour was heard by an HLC researcher who was in the area

17 at the time."

18 Now, pausing there to let the translation catch up, before I ask

19 you further questions about this, I wonder if you could turn behind tab

20 11, which is an extract from a report by the OSCE, and if you look at the

21 second page of that report.

22 MR. RE: It's Exhibit D72, for the record.

23 JUDGE ORIE: Thank you, Mr. Re.


25 Q. If you look at the second page, it reads as follows: "Ljubenic

Page 8560

1 just off the main road to Decane, seven kilometres south of Pec is a mixed

2 village situated at the foot of steep cliffs rising high above the plain.

3 It was the site of a reported mass killing on the 25th of May 1998 in

4 which eight people were extrajudicially executed by the Serbian police.

5 At that time, independent verifiers were unable to reach this area of

6 heavy fighting. During fighting which began a few days later, about 40

7 houses were destroyed or severely damaged, with most of the Kosovar

8 Albanian population moved out."

9 And you'll see, Mr. Repic, there is a footnote there, footnote 88,

10 to an Amnesty International report, and if you just flip through the

11 photographs published at the time in Koha Ditore newspaper of the

12 individuals who lost their lives in that incident are linked with the OSCE

13 footnote 88. Now, I want to ask you about this aspect of the sweep

14 operation. To your knowledge, what was the area covered by the sweep

15 operation that you described on the 25th of May?

16 A. If I remember correctly, that operation covered the area to the

17 north of Junik, to the left side of the road if you look in the direction

18 of Decane, and a part of the Rastavica village. I don't know how deep it

19 went to the right side of the road. I can't tell you, because I did not

20 participate in that action. But in the direction of Decane. As for the

21 depth, whether they really went all the way up to Decane, I can't really

22 tell you, but that would be the basic axis. As far as I can recall,

23 that's what I can confirm on the basis of my recollection.

24 Q. I just want to make sure we've understood your testimony about the

25 axis. Are you saying that the sweep operation entered the territory on

Page 8561

1 both sides of the main road, although you don't know how far it went on

2 either side?

3 A. I think it was on both sides of the road because the objective was

4 to locate our colleagues and vehicles, so if you look at -- in the

5 direction of Decane, it was on both sides of the road but I can't tell you

6 the depth, how deep they went from the road.

7 Q. You said earlier that given that it was a sweep operation, you

8 wouldn't exclude the use of hand-held rocket launchers. I wonder if you

9 could just explain to us how a hand-held rocket launcher might be used in

10 a search operation.

11 A. Hand-held rocket launchers are used in such actions to neutralise

12 resistance points, and the resistant point is a bunker, a fortified house,

13 a yard, a machine-gun emplacement, a place where their hand-held rocket

14 launchers are firing from, a resistance point.

15 Q. And do you know, then, where those resistance points were, that

16 this fighting took place during that operation?

17 A. No, I don't know.

18 Q. What about this incident in Ljubenic, were you aware of that?

19 A. The way that you put it to me, no, I didn't know about that. I

20 knew that there were actions in that area too, as you said, to the south

21 of Pec, but I was not aware of any events that were -- that developed in

22 the way that you just described.

23 Q. And those actions that you knew about that took place south of

24 Pec, were they part of the same sweep operation?

25 A. I'm not aware of that.

Page 8562

1 Q. Well, you've told us you were aware of the actions. Just help us,

2 if you can, were there two different operations going on on the 25th of

3 May or was it part of one coordinated action? It's the same date, as you

4 see, along the same road, albeit rather further north. You told us you

5 knew about those operations towards Pec. Were they part of the same sweep

6 operation?

7 A. I think you misunderstood me when I -- when you say that I knew

8 about the operation. I knew that units were active in that area, but as

9 to when it was and whether it was a synchronised action, I didn't know

10 that.

11 Q. Can I move on to a little later in time, just to have a sense of

12 your knowledge of some other events? You had tours of duty in Kosovo up

13 to and including the summer of 1999, I think you confirmed yesterday. Can

14 you help us as to when during 1999 you were deployed in Kosovo?

15 A. Let me just clarify, 1998 I was there just a couple of shifts, not

16 the entire time from March until the end of the year. So that may have

17 been a total of three or four months all together. As for 1999, we came

18 there on the eve of the day when the air strikes began.

19 Q. Can I ask you, please, again, bearing in mind that I'm asking you

20 about your knowledge as widely as possible of police operations in this

21 area at that time, about two events that took place in April of 1999, to

22 see if you can help us with those at all?

23 First of all, on the 1st and 2nd of April 1999, police action in

24 the Qerim, that is Q-e-r-i-m, district of Gjakove resulted in the death of

25 a significant number of women and children. In one instance, 25 people,

Page 8563

1 at 163 Milos Gilic [phoen] Street. The victims, all but one of them, were

2 female and included nine children under ten years of age. Were you aware

3 of the police action in Gjakove at the beginning of April?

4 MR. RE: I object to the question. Unless Mr. Emmerson is putting

5 it as a matter of credit to this witness, the Prosecution submits that it

6 is not relevant to the indictment of the matters before the Tribunal.

7 JUDGE ORIE: Yes. Mr. Emmerson, the Chamber noticed that you, in

8 let's say going in the direction of finding out whether the witness had

9 some knowledge, that you covered a lot of details, of course very cruel

10 details, of matters that happened. And then we would hear from the

11 witness that he wasn't aware of that, so therefore if we do it the other

12 way around, if you give a short description of the event and then first

13 find out whether the witness has any knowledge of it and go into any

14 further details if he has. If he has not, then of course there is another

15 matter, the relevance of what happened in 1999. I didn't stop you but of

16 course it's in time far away from the indictment. So therefore come to

17 your point quickly, or otherwise, we have to move on.

18 MR. EMMERSON: I take Your Honour's indication.

19 JUDGE ORIE: Yes, please proceed.


21 Q. Can you help us, Mr. Repic? Do you know of any police operations

22 in Gjakove during April, the first part of April 1999?

23 A. At that time, I was in Kosovska Mitrovica, and I did not know

24 about those actions.

25 Q. Can I ask you, then, please, towards the other end of the month,

Page 8564

1 were you -- or where were you stationed in the end -- at the end of April?

2 A. In April, in April, we spent most of our time in the Kosovska

3 Mitrovica area or rather Srbica. It is likely that I was in Srbica during

4 April too. I assume that I was there too.

5 Q. Very well. Let me just put one matter to you and if there is an

6 objection, please pause before you reply. On or about the 27th of April,

7 a large number of men were detained and killed by a joint police and army

8 operation in the village of Maja and their bodies were subsequently

9 discovered in an SAJ barracks in Batajnica, in Serbia, in 2001 and 2002.

10 Is that something that you were aware of?

11 MR. RE: I object to that. It's going way beyond any attack on

12 the witness's credibility. If Mr. Emmerson had the information necessary

13 to impeach the witness by suggesting that he participated in attacks on

14 civilians in April 1999, he would have put it to the witness by now. This

15 is going way beyond a fishing expedition.

16 JUDGE ORIE: The mere fact whether a witness was aware of that is

17 not something that would assist the Chamber. Of course, if there would--

18 if you want to suggest that there was any involvement of the witness, then

19 of course it would be different.

20 MR. EMMERSON: I'm, A, not in a position to and, B, not suggesting

21 that the witness was involved in either of those operations, nor am I

22 asking these questions as matters going to credit. I'm asking these

23 questions to determine whether the witness is in a position to shed any

24 light on events which involved tactical operations by the Serbian Special

25 Police forces and that is material which we would be eliciting with a view

Page 8565

1 to giving the Trial Chamber a picture.

2 JUDGE ORIE: So what you're seeking as a matter of fact is

3 whether -- not only whether the witness is aware of something of the kind

4 that may have happened, but also whether he had any insider knowledge and

5 anything more than just hearing about it.

6 MR. EMMERSON: Whether --

7 JUDGE ORIE: At the same time, Mr. Emmerson --

8 MR. EMMERSON: I'll be directed by the Chamber.

9 JUDGE ORIE: I'll allow that question and then we move on. Please

10 proceed, Mr. Emmerson.


12 Q. Is that something you were aware of, Mr. Repic, or are aware of

13 now?

14 A. I was not aware of that.

15 Q. Very well. Can I ask you, please, to confirm that Mr. Popadic and

16 Mr. Jovanovic were armed with automatic weapons at the time when they

17 disappeared?

18 A. Yes. They were armed with side-arms.

19 Q. Just to be absolutely clear, they were armed, were they not, with

20 an M-70 automatic rifle?

21 A. M-99 or TZ-99 pistol, and the automatic rifle, yes.

22 Q. Thank you. There's just one other area I want to explore with

23 you, please, and I wonder if for this purpose you could be handed a small

24 additional bundle and perhaps the Trial Chamber might have it as well, and

25 in order to deal with this, I need to give the Trial Chamber a very brief

Page 8566

1 explanation of what it is we are looking at here.

2 JUDGE ORIE: Yes. Would you like to do that when the witness --

3 MR. EMMERSON: I'm very happy for the witness to be here.

4 JUDGE ORIE: Okay. All right.

5 MR. EMMERSON: This follows on from the questions that Mr. Re

6 asked about the form of statements amongst documents that are retrieved

7 from 65 ter 1973, which he yesterday asked the witness to identify by

8 reference to their form. Can I indicate what it is that one sees in this

9 file?

10 Q. Mr. Repic, if you just bear with me for a moment, please. Item

11 number 2 is Exhibit P390, the statement purportedly made by Zenelj Alija

12 which we have seen before and which has been introduced into evidence in

13 another context. Item number 1 -- I'm sorry, I do apologise, item number

14 2 is a statement made by Bekim Kalamashi. Item number 1 is the same

15 statement as it an appears in the file that Mr. Re took the witness to

16 yesterday and one has the same pattern for three and four. Item number 4

17 is Exhibit P871 as previously exhibited. Item number 3 is the same

18 statement as it appears in the file, 65 ter number 1973.

19 And I just want you to help us, if you can, please, Mr. Repic,

20 because you've been asked some questions about the form of statements. If

21 you look at statement number 1, first of all, and statement number 2, you

22 can see, I think, from a very brief glance, that it is the same document.

23 Do you see that?

24 A. You're asking me if this statement tallies with the other

25 statement that I looked at yesterday?

Page 8567

1 Q. No, I'm not. I'm asking you whether the statement behind tab 1

2 and the statement behind tab 2 are obviously the same document? Let me

3 just help you a little, if I may. If you look at the statement behind tab

4 1, just below halfway down the statement, you can find a paragraph that

5 begins with the word, "Nedelju," N-e-d-e-l-j-u. If you look at the last

6 word in that statement, you can see that there has been overtyping. Do

7 you see that? Two letters in the last word of that paragraph have been

8 overtyped.

9 Mr. Repic, I'm interrupting you because I can see you're looking

10 at the wrong part of the statement. Just bear with me for a moment. If

11 you look at the first page of the statement behind tab 1, about halfway

12 down there is a paragraph that begins "Nedelju." Do you see that

13 paragraph, first of all?

14 A. Yes, I can see that.

15 Q. And if you look at the very last word of that paragraph, can you

16 see there is overtyping on it? Two letters that have been overtyped. Do

17 you see that? Just four our five lines down there is a line that begins

18 "Raspolzivi" and the last two letters on that line have been overtyped.

19 Do you see that?

20 A. Can you please help me, the available assets to the last drop of

21 our blood? Is that what you mean?

22 Q. I'm not asking you about content but purely about form. Can you

23 see the paragraph beginning "Nedelju"?

24 A. Yes.

25 Q. If you look five lines down, there is a line that begins

Page 8568

1 "Raspolzivi." Do you see that?

2 A. Yes.

3 Q. Now look to the end of that line. It reads "Krivi" and then there

4 is a word that has been overtyped, two letters. Can you see that?

5 A. Yes.

6 Q. Now, if you just look over the page, please, to page 2 of the

7 statement, you can see, if you would, please, just to look at the

8 second-to-last line of the text and the very last word there, you see that

9 that has also been overtyped with three Xs. Do you see that?

10 A. Yes, I can see that.

11 Q. If we just look to the statement behind tab 2, you can confirm,

12 please, for the record, that those two overtyping errors are also

13 replicated in the statement behind tab 2 in exactly the same positions.

14 Do you see that?

15 A. Yes, on page 1 and page 2.

16 Q. Thank you. Now, one difference between these two documents is

17 that the document behind tab 2 has a stamp on it. Do you see that?

18 Whereas the document behind tab 1 has no stamp on it.

19 A. Yes.

20 Q. And again, purely on the basis of form, was it the practice to put

21 stamps on a document after it was signed in that way?

22 A. Documents are verified by stamps, those documents that are sent

23 out. But those documents that are filed in the archives, they are not

24 stamped. That's -- that is the practice.

25 Q. I see. So one would go to the archive and one would be sent out

Page 8569

1 and that might explain why one is stamped and the other isn't? Is that

2 the position?

3 A. Yes, yes.

4 Q. Looking at the document behind tab 2, the one that was stamped,

5 can you see the date is the 3rd of September 1998? It's at the top of the

6 statement, Mr. Repic. Mr. Repic, it's at the very beginning of the

7 statement. Top of the first page you'll find the date. I think you're

8 looking at the second page.

9 JUDGE HOEPFEL: On the left side.


11 Q. Top left side. You see the date is the 3rd of September?

12 A. Yes. It says the 3rd of September in the heading.

13 Q. And the document behind tab 1, which in all other respects apart

14 from the stamp is identical, can you have a look for us at the date on

15 that?

16 A. Well, I can't really tell whether anything was altered here, the

17 13, 14, I really can't see it. It's very unclear.

18 JUDGE ORIE: Mr. Emmerson, yesterday some questions were put to

19 the witness in asking him about the format of documents, and of course the

20 format reflects the ordinary. So therefore the Chamber is wondering where

21 you're heading for. It may be clear that at least the Chamber understood

22 that it's the position of the Defence that these are results of

23 manipulation and et cetera, et cetera. And of course format questions and

24 format knowledge would not be of a kind to reveal.

25 MR. EMMERSON: I'm in Your Honour's hands. I don't want to pursue

Page 8570

1 it -- I've pursued it with this witness because it comes from the same

2 exhibit as the documents that Mr. Re elicited from the witness yesterday

3 but I'm happy to take --

4 JUDGE ORIE: But you understand that if you're heading for, if you

5 just want to look at the format, but from all your questions now it seems

6 that you are drawing the attention of the witness to differences and et

7 cetera, and if you just stay with the format, I'm fine but if you want

8 to -- if you're seeking any explanations on possible inconsistencies or

9 possible manipulations, then of course we would first have to know whether

10 the witness has any knowledge of the creation of these documents.

11 MR. EMMERSON: I think we've already established that the witness

12 does not know the contents of the file, so I won't proceed in that way.

13 But may I ask, please, that the documents behind tab 1 and tab 3 be marked

14 for identification. And may I simply invite the Trial Chamber, then, in

15 those circumstances, to note that there has plainly been in respect of

16 both sets of documents an alteration of the date by the insertion or

17 deletion of 10 days.

18 MR. RE: If Mr. Emmerson waits, we can very quickly - Ms.

19 Schweiger is trying to find the information now - inform the Trial Chamber

20 when we received the two documents and which sources they've come from. I

21 suspect they've come from two different requests for assistance from the

22 Serbian authorities and were pursued at the different times. I don't know

23 but we're checking. I can easily put that on the record.

24 JUDGE ORIE: At least some questions were put to the witness in

25 respect of that. Without expressing any view of the Chamber at this

Page 8571

1 moment as to the probative value and -- but marking for identification is

2 not a problem.

3 Mr. Registrar, would you then the first one being 65 ter number

4 1973 page 27.

5 THE REGISTRAR: Your Honours this will be marked for

6 identification as D163.

7 JUDGE ORIE: Thank you, Mr. Registrar. And then the other one is

8 65 ter same number, 1973, page 29 would be?

9 THE REGISTRAR: Marked for identification as D164, Your Honours.

10 JUDGE ORIE: Yes, thank you.

11 MR. RE: Isn't that already P390, according to the index the

12 Defence has supplied?


14 MR. RE: It's not? It's behind tab 2.

15 JUDGE ORIE: No. We are now talking about tab 1 and tab 3, where

16 390 is behind tab 2. That's at least what the Defence has indicated.

17 That's what I find in the index in the beginning of -- oh, no. I made a

18 mistake as a matter of fact.

19 MR. EMMERSON: I think Your Honour is quite right.

20 JUDGE ORIE: No. I think I'm right, yes. We find exhibit numbers

21 behind tab 2 introduced -- indicates which witness. Okay. Let's

22 proceed. If you want to revisit the matter, Mr. Re, please come back to

23 it.

24 Please proceed, Mr. Emmerson.

25 MR. EMMERSON: Those are my questions, Your Honour.

Page 8572

1 JUDGE ORIE: Thank you. Mr. Guy-Smith?

2 Mr. Repic, Mr. Guy-Smith is counsel, Defence counsel for Mr. Balaj

3 and he'll now cross-examine you. Please proceed, Mr. Guy-Smith.

4 Cross-examination by Mr. Guy-Smith:

5 Q. I have but a few questions, Mr. Repic. During the time that you

6 were in Kosovo in May, was there a check-point at Dolovo manned by Serbian

7 police?

8 A. I'm not familiar with Dolovo at all. I don't know whether there

9 was a check-point. I don't even know where that settlement is.

10 Q. As you sit here today, do you recall where the Serbian

11 check-points were on the road between where you were stationed at Junik

12 and Djakovica?

13 A. I only remember the check-point at the entrance into Djakovica,

14 the outskirts, and I don't remember others.

15 Q. As part of your responsibility as commander of the special unit

16 that you have told us about, were you in radio communication with those

17 check-points?

18 A. No. We had a local radios, and whenever needed we would contact

19 the seat of the Secretariat.

20 Q. As part of your responsibility as commander, did you file daily

21 reports concerning your activities and contacts with either the civilian

22 population or, as you have termed them, armed Albanians?

23 A. Yes. We reported -- the staff -- we reported to the staff,

24 briefed the staff every morning and the staff was located at the

25 Secretariat headquarters.

Page 8573

1 Q. And were the briefings that you engaged in every morning briefings

2 that were ultimately memorialised so that there is a record of those

3 briefings that you had a chance to review?

4 A. Actually not aware of whether anything was written down from our

5 reports and whether -- and if so, whether such documents were archived.

6 We conveyed our information either via radios or telephones.

7 Q. And specifically, as commander, when you conveyed information, who

8 did you convey information to? Was there a particular individual who you

9 were responsible to convey information to?

10 A. These daily reports were made by duty officers in units, and they

11 were conveyed to duty officers at the Secretariats. What I personally did

12 was make reports or briefings on weekly basis or so, and I informed the

13 head of the Secretariat and commander of the detachment.

14 Q. And if you could, the head of the Secretariat that you informed on

15 a weekly basis was who?

16 A. At that time, there was a person whose last name was Adamovic. I

17 don't know his first name.

18 Q. And the commander of the detachment that you made these weekly

19 reports to, who was that?

20 A. Colonel Branko Prljevic.

21 Q. Did you have occasion, in your capacity as commander, to double

22 check the daily reports that were sent out by the duty officer as to make

23 sure that the information that was being sent out was accurate?

24 A. Do you mean the information conveyed by my duty officer to the

25 duty officer at the Secretariat?

Page 8574

1 Q. That's correct.

2 A. The information conveyed by duty officer was the information that

3 we compiled based on the briefings every morning, and I explained that

4 yesterday.

5 Q. And the briefings every morning included whatever activities that

6 your unit engaged in during the previous day, correct?

7 A. Yes.

8 Q. During the time that your unit was stationed at Junik and at

9 Babaloc, were you wearing uniforms?

10 A. Yes.

11 Q. And those uniforms were what kind of uniforms?

12 A. Uniforms of the PJP were camouflage uniforms with grey colours in

13 different -- different shades of grey.

14 Q. Was it the responsibility of the people in your unit to maintain

15 their uniforms? And by that, I mean to be dressed in uniforms during the

16 time that they were on duty, while they were stationed at Junik and

17 Babaloc?

18 A. Yes. They did have duty to maintain their uniforms. We had

19 inspections every morning, inspections of our members, and they had to

20 maintain their uniforms, unless they were on a special task, such as the

21 case of Rade Popadic and Jovanovic who had been sent out to get food.

22 They were sent out in civilian clothes, and in a civilian vehicle, in

23 order to be as inconspicuous as possible.

24 Q. I understand what you've said in that regard, sir. When these two

25 gentlemen returned and were in the process of unloading which you've told

Page 8575

1 us about, were you present during that unloading of the food?

2 A. Unfortunately, they made it only as far as Babaloc. They didn't

3 make it back to Junik and I was not present.

4 Q. You told us yesterday that their colleagues assisted them in

5 unloading the food at Babaloc. Are the colleagues you're referring to

6 other members of the special unit?

7 A. I don't know what you mean when you say "other members of the

8 special unit." They were all members of my unit.

9 Q. Very well. And what I'm asking you is when their colleagues were

10 assisting them in unloading the food, those were members of your unit,

11 correct?

12 A. Yes.

13 Q. And those men were, as you've told us, in uniform, correct?

14 A. Yes.

15 MR. GUY-SMITH: Those are my questions.

16 JUDGE ORIE: Thank you.

17 MR. HARVEY: I have no questions for this witness.

18 JUDGE ORIE: No questions.

19 [Trial Chamber confers]

20 Questioned by the Court:

21 JUDGE ORIE: Mr. Repic, could you tell me, you told us that you

22 were a commander of a company. Did I understand well that this is

23 approximately 150 men, 100 of them located near Babaloc, 50 located near

24 Junik? Is that correctly understood?

25 A. A company has up to 150 people. I don't remember exactly what our

Page 8576

1 strength was during that particular shift. There were about 42 or 43 men

2 in Junik and the rest were in Babaloc.

3 JUDGE ORIE: Do you know what the strength of the PJP forces was

4 in the villages around or the, for example, in Gjakove or in Decan or --

5 do you have any idea on how many PJP --

6 A. No. I don't have that information.

7 JUDGE ORIE: Do you know anything about the villages nearby?

8 Could you tell us whether there were PJP units -- I do understand you came

9 to assist the local PJP units. What was the Junik PJP strength before you

10 arrived?

11 A. I truly don't know that.

12 JUDGE ORIE: Was it five or 15 or 70 or could you give us any

13 impression on the approximate strength of the local units?

14 A. Are you asking me about local forces? The ones that we came to

15 relieve -- or to assist, rather?

16 JUDGE ORIE: Yes, PJP forces, Special Police forces, not ordinary

17 police but Special Police forces.

18 A. As for the local police, there was a squad there, which means that

19 there were between five to eight men, local policemen. The unit we came

20 to relieve was approximately same size, numerically speaking, as we were.

21 I couldn't tell you how many men they had exactly.

22 JUDGE ORIE: Does that mean that the unit of the same size was not

23 a local unit but was also sent in from elsewhere?

24 A. Yes.

25 JUDGE ORIE: Did they then -- you said the unit you came to

Page 8577

1 relieve, did they stay so that you have the double strength at that

2 moment?

3 A. No, no. We relieved them in shifts. We rotated, one shift came

4 to relieve the other shift.

5 JUDGE ORIE: And then the ones who were there left for where?

6 A. I can only suppose where they went. Most likely they had gone

7 back to their original Secretariats from which they had originally come.

8 Now, as to they had any special tasks, I really don't know that. I'm

9 making these assumptions because I know that this was a rotation, so I

10 assume that they went back to their original Secretariats.

11 JUDGE ORIE: Yes. Now, I'm coming back to Gjakove. You had no

12 idea about the strength of the local units. Do you mean the original

13 units like the squad present in Junik or by any sent-in units, whether or

14 not rotating with others?

15 A. No. I have no information as to the strength of the

16 Secretariats -- rather local forces of the original Secretariat. Nor do I

17 know how many people of the PJP units were sent to the Djakovica area in

18 that particular period of time.

19 JUDGE ORIE: Yes. Was your area of responsibility geographically

20 limited or what would be -- and if so, what would be the area where you

21 would be responsible?

22 A. My task during that shift was somewhat specific. We came there

23 with our company to secure two refugee settlements. Our responsibilities

24 extended to the refugee settlement in Junik and the one in Babaloc. That

25 means that we were a stationary unit without any kind of tasks that would

Page 8578

1 involve manoeuvres or movement.

2 JUDGE ORIE: Yes. Does that also explain why, in the sweeping the

3 terrain operation, you were not involved? Because your task of your unit

4 was a stationary one rather than an operational one?

5 A. That's correct. We were a stationary unit and we only provided

6 logistical support to the units who had come to take part in actions.

7 When I say logistical support, that meant accommodation, ensuring that

8 they had a safe base from which they could go out into operation and

9 return to, where they could be provided with food and where they could

10 stay safely when not in action.

11 JUDGE ORIE: Yes. Do you remember how many refugees there were

12 there in -- well, let's start with the Babaloc refugee centre.

13 A. What I remember is that those were the settlements they had about

14 100 houses, houses being the size of a one or two-room apartment with a

15 bit of -- with a bit of land around it. Not all of the houses were

16 inhabited. Based on that, I'm assuming that there were maybe up to 200

17 refugees in Babaloc, and Junik also had about 100 houses of the same size,

18 with a bit of land attached to them and once again, not all of the houses

19 were inhabited.

20 JUDGE ORIE: You said most of the people of your company went to

21 Babaloc, and a lesser number to Junik. Is -- because you said that there

22 were over 40 to Junik, a complete company would be up until 150. Would my

23 calculation that there would be some 100 PJP people in Babaloc, would that

24 be a correct one?

25 A. Approximately, yes.

Page 8579

1 JUDGE ORIE: I'm asking myself, if you've got 100 houses with 200

2 refugees, is 100 PJP to secure the settlement, is that a normal size of--

3 for such a task?

4 A. If you consider the situation that existed in Babaloc, then you

5 may wonder why is it that two-thirds of the unit were stationed in Babaloc

6 and one-third in Junik. At that time, Junik was still a village that had

7 had no problems, no incidents. We went into Junik, we went on patrol duty

8 with local policemen in Junik. We contacted residents. We visited

9 Serbian houses on the outskirts of Junik.

10 As for the provocations against residents and policemen in Babaloc

11 were much more intense. They were much more intense. Because that

12 village, neighbours much more difficult territory where there were first

13 attempts to group, establish headquarters, and put civilians into

14 uniforms. So if you look at that settlement, which is some 100 to 200

15 metres long, if you have to provide security and you have to put security

16 detail that works in shifts, then that task requires approximately the

17 number of policemen that you mentioned, that is to say between 90 and 100

18 men.

19 JUDGE ORIE: Thank you for those answers. Mr. Re, any need to put

20 further questions to the witness?

21 MR. RE: No, there is no need.

22 JUDGE ORIE: No need. Then if the questions of the Bench have not

23 raised any need for further questions to Defence counsel, then, Mr. Repic,

24 this concludes your testimony in this Court. I'd like to thank you very

25 much for coming, it's quite a distance to come to The Hague, and for

Page 8580

1 having answered questions of both parties and of the Bench, and I'd like

2 to wish you a safe trip home again.

3 THE WITNESS: [Interpretation] Thank you.

4 JUDGE ORIE: Madam Usher.

5 [The witness withdrew]

6 JUDGE ORIE: Are there any exhibits either tendered already or to

7 be tendered and on which we would have to take a decision? Mr. Emmerson?

8 MR. EMMERSON: Tab 2, Your Honour, which is an order signed by

9 Colonel Zivanovic which I put to this witness. Your Honour will recall

10 it's the deep wedging of the documents dated the 8th of August and it is

11 65 ter number 1945.

12 JUDGE ORIE: And that was tab 2? Yes. Has that received a

13 number? Not yet. Mr. Registrar that would be?

14 THE REGISTRAR: D165, Your Honours.

15 JUDGE ORIE: Any objections against that?

16 MR. RE: No, Your Honour.

17 JUDGE ORIE: D165 is admitted into evidence. Mr. Emmerson,

18 anything else? Mr. Re?

19 MR. RE: The exhibits which I had marked for identification

20 yesterday, I'm not pressing at this moment. We will return to those at a

21 later stage.

22 JUDGE ORIE: I think as a matter of fact we said we would wait

23 until a later stage to see whether you would tender them. You did not

24 tender them yet.

25 MR. RE: It's just a timing matter. In terms of court time, I

Page 8581

1 prefer not to argue the task now because we have another witness waiting

2 but at some later pint we can return to it.

3 JUDGE ORIE: Yes. Then Mr. Guy-Smith?

4 MR. GUY-SMITH: Excuse me, it was my distinct understanding that

5 Mr. Re had intended on calling another witness with regard to those

6 documents and he was not planning on tendering them at all until another

7 witness had been called so I'm not quite sure that the representation made

8 at this point is accurate and I'm just trying to make sure that --

9 JUDGE ORIE: Mr. Guy-Smith, we'll wait and see when Mr. Re comes

10 back to the issue and then we'll check carefully on the transcripts what

11 he said when he said he would not tender them at this moment.

12 MR. GUY-SMITH: Thank you.

13 JUDGE ORIE: And also what the Chamber then responded to that.

14 That's on the record.

15 Then of course, there is the other documents, the two marked for

16 identification, Mr. Emmerson, do I understand you're not tendering them?

17 MR. EMMERSON: I'm not going to tender them at this stage.

18 JUDGE ORIE: At the same time, of course, you are asking the Court

19 to look at the differences which of course is -- which just marked for

20 identification might be a problem but perhaps you could agree.

21 MR. EMMERSON: Perhaps I could reserve my position in respect of

22 that.


24 MR. EMMERSON: Your Honour will recall that there has been

25 cross-examination in the past of witnesses who have given certain

Page 8582

1 explanations in respect of that batch of documents, and at the time of

2 that cross-examination took place we did not have available to us two

3 other versions with different dates. It may be, I don't know yet, that

4 there is yet a further witness to come who deals with that aspect of the

5 case. There is certainly an individual who is on the Prosecution's

6 witness list who deals with that aspect of the case, although I

7 understand--

8 JUDGE ORIE: So these are new versions of, again, documents that

9 look very similar. One of the things that came into my mind, not to be

10 resolved at this moment but perhaps for the parties to look at, is whether

11 carbon paper was used at the time, because sometimes differences on an

12 original, if you type out a mistake, then they sometimes remain on the

13 carbon. I'm not saying that this is an explanation but the Chamber of

14 course, looking only at photocopies is not in a position to identify

15 whether such a thing could have happened. I don't know, Mr. Re, to what

16 extent these documents arrived as photocopies or whether in originals. It

17 gives me the impression sometimes that carbon copies are used, which of

18 course may complicate matters. May also provide on the circumstances an

19 explanation.

20 MR. RE: I'll check it. I know we did receive some original

21 documents recently from Serbian security which I think they gave us by

22 accident instead of copies. Normally we just get copies.

23 JUDGE ORIE: Yes, but -- yes, of course, but the word "original"

24 gets a very special meaning because carbon copies would then be originals

25 to the extent that they are not photocopied again. This is just for the

Page 8583

1 parties to keep this in the back of their mind. Positions are reserved,

2 that's clear.

3 MR. EMMERSON: I'll just indicate obviously if Your Honour has

4 that thought in mind, the discrepancy between the two groups of documents

5 on its face is the same. In other words, 10 days' difference between the

6 two statements as regards both of the statements.

7 JUDGE ORIE: Yes. I was not seeking further comments on the

8 documents at this moment.

9 Then, Mr. Re, may I take it that after the break you're ready to

10 call your next witness?

11 MR. RE: He's here and ready to testify and I assume outside

12 waiting.

13 JUDGE ORIE: Yes. Well, we have a break first. We have a break

14 and we'll resume at quarter past 4.00.

15 --- Recess taken at 3.47 p.m.

16 [The witness entered court]

17 --- On resuming at 4.18 p.m.

18 JUDGE ORIE: [Interpretation] Good morning, Mr. Dourel. Welcome

19 in this hall of justice. If you will allow me, I will continue in

20 English.

21 [In English] Mr. Dourel, before you give evidence in this

22 courtroom, the Rules of Procedure and Evidence require to you make a

23 solemn declaration that you'll speak the truth, the whole truth and

24 nothing but the truth. The text will now be handed out to you, I take it

25 the French version, to you. May I invite you to make that solemn

Page 8584

1 declaration.

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

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


5 [Witness answered through interpreter]

6 JUDGE ORIE: [Interpretation] Please sit down.

7 [In English] Mr. Dutertre, is it you who is going to examine the

8 witness?

9 MR. DUTERTRE: [Interpretation] Yes, Mr. President.

10 Examination by Mr. Dutertre:

11 Q. [Interpretation] Mr. Dourel, could you please confirm your

12 identity? And first of all, I would like to ask a practical question.

13 Please wait and look at the screen, the monitor, to see that the

14 translation in English has stopped so that you can then answer.

15 Mr. Dourel, therefore, your name is Laurent Dourel and you are French

16 nationality?

17 A. Yes, indeed.

18 Q. Could you tell me where you were born?

19 A. I am born in Albi in the department of Tarn in France and I am

20 born on the 22 July 1972.

21 Q. Sir, I would like to see your curriculum vitae and I would ask for

22 Exhibit 1984 of list 65 ter.

23 JUDGE ORIE: That's part already of the -- is that part of the

24 report that has been submitted, Mr. Dutertre? I'm just asking because if

25 you're using 65 ter numbers, then I always have to ask myself whether it's

Page 8585

1 already marked for identification or not. If you are --

2 MR. DUTERTRE: [Interpretation] It's possible, Mr. President. It's

3 quite possible.

4 JUDGE ORIE: Let me just have a look.

5 MR. DUTERTRE: [Interpretation] I think it's the last two pages of

6 the document.

7 JUDGE ORIE: Yes. The -- no. I have a bibliography. I see the

8 English version, last two pages is professional experience, et cetera, et

9 cetera. But the French, I'm just wondering where to find that in the

10 French version.

11 MR. DUTERTRE: [Interpretation] I haven't found it in the French

12 version. Oh, yes. Number 1985 of list 65 ter.

13 JUDGE ORIE: Yes. Now, is it part of the submitted report? Then

14 please, because I see annex A to the Prosecution's submissions of expert

15 report of Laurent Dourel, annex A is the French version and that ends with

16 ERN number 169776. Previous page is the -- is a letter dated the 25th of

17 July, written by you, Mr. Dutertre, and addressed to Lieutenant Dourel and

18 then the previous annex is a bibliography and then I come to the

19 conclusion, whereas in the English version I found an annex -- oh, yes, I

20 see it's annex C but then French and English together at the very end.

21 Yes. Thank you. It's -- I take it that you wanted to put the curriculum

22 to the witness. Please proceed.

23 MR. DUTERTRE: [Interpretation] Yes, indeed, Mr. President. We

24 received several documents so that may explain the --

25 Q. Mr. Dourel, could you confirm that what you see on the screen is

Page 8586

1 indeed your curriculum vitae, your CV?

2 A. Yes, indeed.

3 Q. So this is your name. I would like to delve on certain points to

4 enlighten members of the Chamber. You are -- you are -- have a specialty,

5 professionally, which is rather uncommon. What is exactly your training

6 as an entomologist? I don't think it's -- it's probably the first time

7 this happens. Could you indicate what is your specialty as a forensic

8 entomologist?

9 A. Yes. I am deputy to the entomology department of the Institute of

10 Criminal Research of the National Gendarmerie in France. Our goal is to

11 do expertise work for magistrates or at the request of police in order to

12 give a date or an estimated date thanks to the help of the insects found

13 on corpses.

14 Q. Thank you. Could you specify whether your specialty is a recent

15 specialty or is it already something that has existed for some time?

16 A. It's an old discipline, matter, which exists since 12th century

17 but there is no university training in this specific subject.

18 Q. Thank you. I refer to your CV. You worked for one year at the

19 IRCGN in 1997-98, and then you again with this institute in 2002. Could

20 you tell us first of all when did the IRCGN was created and what is its

21 role in general, institute of criminal research?

22 A. The institute was created in 1987 and its present form in 1992,

23 the IRCGN has four divisions in charge of criminal matters, criminal

24 research, with 12 departments. Each of these departments, groups the

25 whole of the criminal questions which may interest justice. So this

Page 8587

1 institute has as a goal to do expertise work for the police and the

2 magistrates.

3 Q. Thank you. How many people does the entomology of the institute

4 count?

5 A. Five people in the department.

6 Q. Including yourself?

7 A. Yes, including myself.

8 Q. You said that magistrates ask the institute for expertise in

9 entomology matters. Could you specify whether the police has also a

10 department for entomology?

11 A. The police has no department in entomology. There is one person

12 in the laboratory of Marseille, police laboratory, which besides its

13 normal activities analysing vehicles and the soil has also part of that

14 activity.

15 Q. Following on your answer, would it be correct to say that this

16 institute in Rosny Sous Bois near Paris, I suppose there is no litigation

17 about that, is it the institute who receives all requests for expertise?

18 A. Certainly. National police sees us for about 20 per cent of our

19 dossiers, the rest is for the gendarmerie or the magistrates.

20 Q. Thank you. Understood. The institute -- that you are the French

21 specialists in your own field?

22 A. Yes.

23 Q. Are there other specialists in this -- on this subject, for

24 instance, in the university in France?

25 A. In France, no.

Page 8588

1 Q. And in Europe?

2 A. In Europe, yes, there are laboratories who tried to develop this

3 activity or who already deal with these matters, but they are not police

4 laboratories. They are either forensic institutes or universities.

5 Q. According to your department of entomology, is it one of the units

6 in Europe which works from morning until night, its your daily bread, if I

7 may say, for all requests for expertise in entomology matters?

8 A. Yes, indeed. We are the only department in Europe who has an

9 activity exclusively devoted to legal entomology or forensic entomology.

10 Q. Thank you. How many expertise did the department do since it was

11 created?

12 A. Today, 717, and we do about 70 to 80 every year since the last

13 three or four years.

14 Q. And on these 70 and 80 post mortems done by your department every

15 year, how many did you do yourself personally?

16 A. Depends on the years but it's between 12 and 15.

17 Q. So in total, how many post mortems did you do in this field?

18 A. Since 2003, about 30.

19 Q. Your institute in the entomology department, does it have research

20 activities for its experiments?

21 A. Yes, indeed. Every year we have research programmes, applied

22 research programmes to try to answer some problems which have been

23 submitted to us during the year or during the year -- the years before

24 that.

25 Q. Would it be possible for you to give us an idea of the sort of

Page 8589

1 research?

2 A. Yes. There is a lot of research on the biology of species with

3 interesting for dates and there is a series of experiments on buried

4 bodies.

5 Q. Buried bodies? I continue: Could you give us a little more

6 details? What do you mean? What have you done? What are your results?

7 A. We have buried in 2004, 21 sheep for a year. They stayed

8 underground at different depths, minus 10, minus 30 and minus 90

9 centimetres and then we exhumed them and each time we got the entomology

10 fauna and we analysed it.

11 Q. I can therefore infer that there was an entomology fauna on these

12 corpses?

13 A. Indeed, yes, certainly, after a year at 90 centimetres we did find

14 this fauna.

15 Q. I can see on your CV that you have written memorandum on post

16 mortem interventions. I see that you are a member of an association, the

17 European Association of Entomology, forensic entomology, which had a

18 congress in London in 2004. Could you say a few words on this association

19 and its goals?

20 A. It's an association created in 2002 on the initiative of our own

21 department, an association which groups all specialists of this matter --

22 in this field, whether police or university or forensic people, and it

23 is -- the goal is to share data on fauna, which -- of interest -- which is

24 of interest to us and we try to develop exchanges by the results between

25 laboratories.

Page 8590

1 Q. Thank you. I would now like to pass to substantive questions,

2 questions of substance, in general. Mr. Dourel, the Judges are

3 particularly interested by Mrs. Lecomte's report of 15 June 2007 and the

4 entomological aspects of this report. Mrs. Lecomte establishes a

5 connection between the presence or the absence of larvae and the duration

6 or presence of the bodies on the crime seat and possible interventions,

7 manipulations, and in this connection, it seems that the entomological

8 aspect is essential. You have --

9 MR. EMMERSON: Two things, if I may. It would be very helpful, I

10 think, for those of us following if the pace could slow a little. And

11 secondly, the comment that Mr. Dutertre made in the last line of the last

12 question is a matter which in our submission requires to be explored with

13 Professor Lecomte, in other words, the extent to which the entomological

14 factors were essential to her conclusions rather than with this witness.

15 JUDGE ORIE: Yes. Not to be excluded comments by this witness on

16 what within his expertise seems to be important and not important. So

17 it's not an area which could not be explored at all with this witness but

18 at the same time I do agree with you that, of course, what the weight of

19 certain elements is -- should -- could be commented by an outside observer

20 but, of course, should be put first of all to the author of the report.

21 [Interpretation] And Mr. Dutertre, could you please slow down

22 because you are so fast.

23 MR. DUTERTRE: [Interpretation] Yes, I've received also a request

24 on my right-hand side.

25 JUDGE ORIE: [Interpretation] Please continue, proceed.

Page 8591

1 MR. DUTERTRE: [Interpretation].

2 Q. Mr. Dourel, you were asked to comment on Mrs. Lecomte's report.

3 Your own report comports a general part and a specific part dedicated to

4 the conclusions which Mrs. Lecomte gave on entomological matters, to

5 summarise your own conclusions, as a specialist of this matter, you

6 indicate at the end of your report - one can read this on document number

7 1985, 65 ter, at page 11 of the English version, but I will ask to be

8 shown because this will be a bit faster - you indicate, and I will read

9 this passage, "For the elements we have in our possession, concerning the

10 elements we have in our possession, it appears that:" First

11 subparagraph, "Since there was no entomological [Previous translation

12 continued]... it was not possible to identify larvae belonging to the

13 species of diptera, it was not possible to identify the larvae referred to

14 as members of the diptera family.

15 Second subparagraph, "Given the absence of samples from the bodies

16 in their immediate environment and during autopsy operations and the

17 absence of data on the environmental conditions prior to the discovery of

18 the bodies, it is impossible, one, to establish a link between the

19 presence of larvae and the time a body has been present, and two, it is

20 impossible to establish a link between the presence or absence of larvae

21 and the handling of a body."

22 To be quite precise, I have added a little one and a little two to

23 be quite clear in what I was reading.

24 Now, this being said, Mr. Dourel, I would like to ask you a few

25 questions in general and more specifically on the conclusions. First of

Page 8592

1 all, principal questions, which have to do with entomology in general, the

2 identification of insects and the sampling of larvae and the development

3 of larvae.

4 You indicate, and this can be seen on document 1985 in English

5 page 5, and it can be found also -- you can see it on Sanction. It will

6 be faster. You indicate therefore that those are specific smells during

7 the different phases of alteration of the corpses. Those are the smells

8 during the different phases of the body which attracts necrophagic

9 species. I have two questions to ask on this to be quite sure I have

10 understood. And so I would like to enlighten everybody on this.

11 First question: If I do understand what you say there are several

12 kind of insects who come to colonise a body with passing of time and each

13 stage of the decomposition of a body corresponds one or several species of

14 specific insects. Is this correct?

15 A. Yes.

16 Q. My second question, is it therefore correct to say that from the

17 entomological point of view, the identification of specimens present on

18 the crime scene, at the crime scene, and also the determination of the

19 stage of the specimen in question are essential inasmuch as each species

20 reaches a given stage and has its own rhythm of evolution which enables to

21 give an idea of the date of death, in particular. Is this true?

22 A. Yes, very much so.

23 Q. Thank you. So the general mechanism of this matter being now

24 clarified, I would go to the question of the identification of insects

25 themselves. First question on this point is: Do you need a specific

Page 8593

1 experience to distinguish on macroscopic experience, the larvae of

2 different species?

3 A. Yes, indeed. In the department we have about a year of experience

4 on the identification of immature species.

5 Q. Thank you. Talking about diptera only, can you tell us how many

6 different species there are, sorts?

7 A. Diptera is a group, we don't know all of them, but on the

8 necrophagic fauna, necrophagous, there are about 20 to 25 species.

9 Q. Thank you very much. Is it fair to say that a practice has

10 developed in some cases according to which we have genetic analysis in

11 order to determine a specific larva belongs to a type depending on the

12 scene of crime?

13 A. Yes. There are species that belong to the same family and they

14 are very close to one -- to one another, and it's hard to identify them on

15 the sole basis of morphological differences so we have to resort to DNA

16 analysis.

17 Q. I see. In this context if you do not have a collection of larvae

18 that was collected on the spot and failing a detailed description of the

19 larvae in an autopsy report, is it possible to indicate with accuracy what

20 kind of larvae it is?

21 A. No.

22 Q. Let me now quote page 14 of Professor Lecomte's report. It is

23 page 14 in French but page 13 in English. This is 65 ter list Exhibit, if

24 I'm not mistaken, 1986. It's the second report. I'm sorry for not

25 mentioning it. Yes, it is, indeed, the second report. First I'm going to

Page 8594

1 quote the passage. This is body R-1, presence of dipterous larvae on the

2 clothing and in the cranial cavity.

3 This being said, can we show Exhibit P802, the first page, in

4 English? This document is going to be on your screen in a few seconds.

5 Sorry, it was page 2. Please zoom in on the first paragraph. I'll read

6 it out to you: [In English] The body was dressed in clothes which were

7 completely soaked in putrefied matter, soiled with earth, and covered by a

8 mass of mobile cylindrical-shaped maggots about five to 20 centimetres

9 long.

10 [Interpretation] I guess there must be a mistake because apart

11 from the film "Men in Black," I never happened to see any maggots that

12 would be 20 centimetres long. But let us assume that we are dealing with

13 millimetres. Now, on the basis of this description, Mr. Dourel, can you

14 conclude that these are dipterous larvae, just as Mrs. Lecomte concluded?

15 A. It is difficult to give a definite conclusion as to the presence

16 of dipterous larvae. You must know that there are also other coleopterous

17 larvae on body. They are white in appearance. They have legs, but they

18 are very short and it's hard to see it with the naked eye. Therefore, it

19 is also difficult to say very definitively that we have to deal here with

20 dipterous larvae.

21 Q. Thank you, Mr. Dourel. Generally speaking, are you of the view

22 that if you see digital photos of a corpse, whole body, from head to toe,

23 and if you have non-digital photos that you cannot enlarge without losing

24 detail, it would be possible to identify the species of larvae that may

25 have been present, just looking at the photograph?

Page 8595

1 A. Not at all.

2 Q. Thank you. So this is a matter about the general way entomology

3 operates and now let's look at the consequences of the collection of

4 larvae.

5 You give an example, the example of diptera. This is the Exhibit

6 1985, page 6 in English, but we could display it on the Sanction system.

7 You give the example of diptera and you said that there was an egg that

8 was deposited on the body, it turns into a larva, and then it moults in

9 order to change into a -- to go through a metamorphosis in a pupal shell

10 or case. Here is my question. Can you indicate where the larvae is going

11 to migrate, move to?

12 A. Once there is an egg that is laid on a body, once it is incubated,

13 it will change into a larva which is going to feed on the body, and once

14 they have gathered enough energy, the larvae, in order to go through their

15 metamorphosis need the absence of light and they need to be sheltered from

16 possible predators, so in an open-air situation, the larva will migrate

17 out of the body to go and burrow down into the ground, down to five to ten

18 centimetres and in a radius of one to two metres around the body and under

19 the body.

20 Q. Let's be very clear, the insect is therefore not any longer in or

21 on the body but it is in the ground?

22 A. Yes, absolutely. It needs to be sheltered from the light and from

23 possible predators.

24 Q. Therefore, in order to carry out an expert analysis, and you need

25 either insect that have been collected on the body, if any, or that have

Page 8596

1 been collected in or around in the ground?

2 A. Yes.

3 Q. Can you tell us how specimens are collected in the ground?

4 A. It's rather simple. You just need to take samples five to ten

5 centimetres into the ground, within a radius of one or two metres under

6 the body and around the body. So these specimens are taken and sent to a

7 laboratory for -- to be sorted and for the insects to be bred.

8 Q. Thank you. And if no specimen was collected in the ground, is it

9 possible to rule out that a body was not colonized there where it was

10 found?

11 A. It cannot be ruled out definitively because necrophagous insect

12 may have gone through a body even if you don't have a specimen.

13 Q. Let us take a very specific example. Referring to body RR-3 body,

14 page 18 in Professor Lecomte's report, it is still 65 ter list Exhibit

15 1986. We are dealing with the second report by Professor Lecomte, page 18

16 in French and page 15 in English, it is stated that there is an absence of

17 flies and dipterous larvae described, no colonization of the body by grass

18 and no desiccation of clothing. The totality suggests a very short

19 presence at the location.

20 Entomologically and on the basis of what you said, is it possible

21 to use the criterion of the absence of flies and larvae described to reach

22 the conclusion that Professor Lecomte reaches regarding R-3?

23 A. Not at all. It cannot be concluded because there is no larvae

24 that the body has sojourned or stayed a brief period at the location.

25 Q. Why? Is that because there could be pupa in the ground?

Page 8597

1 A. Yes. There could be pupa in the ground, and also if you don't

2 know the weather conditions, for instance the temperature, you cannot

3 estimate it any way how much time the insect stayed on the body.

4 Q. This is what I'm going to deal with in a moment, that we are

5 talking about the development of larvae after the collection of them. So

6 that's the fourth point in this second major section. This is the

7 development of larvae. You said that roughly speaking there were 20 to

8 30, 25 types of diptera that you often come across.

9 First question: Are necrophagous insects the same whatever the

10 country?

11 A. No. The necrophagous insect we work on in France are exactly the

12 same as the ones we will find in continental Europe, so from France to

13 Russia.

14 Q. Very well. Depending on the ground or the soil, whether you are

15 dealing with a mountainous or a humid type of soil, you could have species

16 of insects that are more prevalent than in dry or non-mountainous area

17 that you would find in bodies?

18 A. It's not so much a question of condition. It's a -- of soil.

19 It's the weather. There is no difference depending on the type of soil.

20 It's a difference in the way the weather conditions will operate that you

21 will find more or less insects.

22 Q. Could you be a bit more specific as to the effect of climatic

23 conditions on the rate of development of insects?

24 A. Insects are cold-blooded animals. In other words, their

25 development is closely connected to the surrounding temperature. Also,

Page 8598

1 each species of insect has a heat threshold. It has a temperature beneath

2 which it is not going to develop, and this threshold temperature is

3 specific to each and every species. Some species have a three degree

4 threshold. Others have a ten degree threshold. And this means when the

5 surrounding environment is -- has a temperature above three degrees, the

6 first type will develop and the other will not.

7 Q. And this is the reason why it is important to really identify the

8 species that is present on a body?

9 A. Absolutely. This is the one condition that you need in order to

10 carry out an entomological analysis.

11 Q. Are there other factors beside temperature that can have an impact

12 on the speed of development and the conditions of development of a species

13 and therefore in the long run what you can say as to the date of death?

14 A. The other criteria, in terms of climatic condition that may come

15 into play for development and activity of insects are more connected to

16 the activity of adult insects and not immature insects, such as wind. If

17 the wind is too strong there is going to be less likelihood or it is going

18 to increase the lag in time for the insects to come. Also, when there are

19 precipitations, when you have rainfall, heavy rainfall, adults will not

20 fly so no flight activity.

21 Q. So this is going to have an impact on oviposition, on egg laying?

22 A. Yes, because the insect will always be able to detect the odours,

23 the smells coming out of the body so that therefore will be less attracted

24 to come and lay eggs on the body.

25 Q. Very good. Let's move to page 9 of your report in French. This

Page 8599

1 is Exhibit 65 ter 1985, page 10 in English. We can display it on the

2 Sanction system in English. Could you comment on this table which you

3 made?

4 A. Yes. It was carried out based on a publication mentioned in item

5 9. This is scientific work carried out on these two species. They are

6 very common species. This table shows that depending on the temperature,

7 the insect will develop quite differently. If you have a species such as

8 calliphora vomitoria, that's the most common blow-fly, if you have a

9 surrounding temperature of 12.5 degrees, it will take nearly 19 days in

10 order to go through the entire development cycle. So from the egg to the

11 adult stage. The egg, the three stages as a larvae, then the pupation,

12 that's the metamorphosis, and then the emergence as an adult. However, if

13 the surrounding temperature is 23 degrees, it will be a matter of eight

14 days.

15 Same pattern for the second species protophormia terranovae, very

16 common species. If you have 12.5 degrees, it will take 50 days to go

17 through the entire cycle. With a 23 degree temperature, it will be just

18 about five days. It all depends on the heat, the thermic threshold I

19 mentioned earlier on.

20 Q. When you mentioned the cycle, you mean that it goes right up to

21 the pupation, that is the time when the larva goes into the soil. Could

22 you be more specific?

23 A. No. It's the entire cycle from the oviposition when the egg is

24 laid until the emergence of the adult out of the pupa, so the egg, the

25 three larva stages, the pupa and the emergence as an adult.

Page 8600

1 Q. I understand. Another question: Assuming we know very -- with

2 100 per cent accuracy what kind of species is present on a body, and if we

3 do not have any temperature curve, if we do not know anything about

4 temperature, is it possible to reach any conclusion as to the time it took

5 for a larva to develop?

6 A. You can only have working hypothesis based on a constant

7 temperature. So you can deduce the time of development if you take a

8 constant temperature of say, 20, 16 or 24 degrees, and thereafter, you can

9 have quite a gap between each stage of development depending on the

10 temperature.

11 Q. So you have a basic hypothesis and extrapolations based on that?

12 A. Yes.

13 Q. I understand. Let's take R-4 in Professor Lecomte's report, 1986,

14 it is stated --

15 JUDGE ORIE: Which is the page?

16 MR. DUTERTRE: [Interpretation] I'll have to count. Page 20.

17 U016-696.

18 JUDGE ORIE: [Interpretation] Yes, R-4.

19 MR. DUTERTRE: [Interpretation] My pleasure.

20 Q. Taking into consideration the concept of the discovery and

21 environmental factors, presence of -- no colonization of the body by

22 clothing or grass, no desiccation, so clothing with dipterous larva, no

23 colonization of the body or clothing by grass, no desiccation of the body,

24 the totality indicates a very short presence at the location.

25 Q. Entomologically speaking, is it possible to take into

Page 8601

1 consideration the presence of larvae on the clothing without having any

2 additional information such as temperature as an element making it

3 possible to reach the said conclusion?

4 A. No. If you want to have a first estimate, you need identification

5 of the species and the temperature prevailing before the body was

6 discovered.

7 Q. Thank you. Let me move more specifically to the -- your comment

8 on the conclusions made by Professor Lecomte. First of all, let's look at

9 the bodies in the canal. This is 65 ter list Exhibit 1985, in English

10 pages 8 and 9. Your comment relates to the part of her report in which

11 she says regarding the bodies in the canal that one cannot eliminate the

12 possibility that the bodies which are significantly skeletonised, that the

13 bodies which have been deteriorated and are skeletonised and do not

14 present any dipterous larvae were brought into the canal subsequently.

15 Regarding these bodies, you make a distinction, generally speaking,

16 theoretical distinction between submerged and -- bodies and bodies that

17 are not submerged. Does this mean that entomologically or scientifically

18 speaking, one should make a difference first between the bodies that were

19 out of the water from the bodies that are in the water before coming to

20 any conclusion?

21 A. From our point of view of forensic entomology, absolutely, because

22 we deal with airborne insects, insects that will come to work only if the

23 substrate is also above water. When the body is in the water, the water

24 is an obstacle to the spreading of smells and also an obstacle to the

25 coming of insects on the bodies. Traditional forensic entomology only

Page 8602

1 makes it possible to date bodies out of water.

2 Q. Why is it different in the water? What can happen when the body

3 is outside the water?

4 A. When the body comes to surface, when it stays on the surface, it's

5 going to spread smells and they are going to attract insects, which will

6 be in a position to lay their eggs on the body. Of course, supposing that

7 the body doesn't go back down into the water. These insects are going to

8 develop on the body, at least for the larva state, for the immature

9 state. Thereafter when it comes to the metamorphosis which has to be

10 without light and predators, then there will be a migration of the larvae

11 out of the body to the surrounding area and the larvae, if they were to go

12 down would disappear into the liquid, into the water.

13 Q. So if you do not exactly where the bodies were in the water or

14 taken out of the water afterwards, given the absence of specific data, is

15 it possible to draw any kind of entomological conclusion?

16 A. No, not at all.

17 Q. I understand. As to bodies that are submerged, maybe this is not

18 within your scope but it is a related matter and I do not think that there

19 would be any challenge by or objections by the Defence, but do you know

20 whether, as to bodies that are in the water, submerged, there can be

21 colonization by aquatic species?

22 A. Yes, absolutely. In the water, you can have colonization of

23 species, of the body by species but they are not only insects, there are

24 also gasteropods, crustaceans. It's a whole water flora that do not feed

25 on the body but they feed on the sort of biological or vegetal film around

Page 8603

1 the body and these -- I'm saying insects, I shouldn't say insects, these

2 arthropods, generally speaking, are going to be collected, especially in

3 the clothing.

4 Q. You mention arthropods. I'm thinking of animals but are there any

5 vegetals, there could be algae that could develop on bodies that are

6 submerged?

7 A. I cannot answer you. This is beyond my field of knowledge.

8 Q. I understand. So if there is no sampling, there is no

9 documentation, would it be difficult to draw any conclusion for somebody

10 who is specialised in aquatic fauna?

11 A. Yes, absolutely.

12 Q. Therefore, if you have a submerged body, but if there has been no

13 specimen collected or information that would be for or against

14 colonization by a water species, is there any reason to believe that such

15 a submerged body was brought back later on?

16 A. Well, it seems to be difficult.

17 Q. Let us speak about the bodies that were outside the canal. In

18 your report, same exhibits, 1985, page 9 in English --

19 JUDGE ORIE: Mr. Dutertre, our English pages are not numbered.

20 Could you give us the -- perhaps the paragraph.

21 MR. DUTERTRE: [Interpretation] Absolutely. This is paragraph --

22 the paragraph that begins with these words, "Outside the canal," chapter

23 3, paragraph 3 -- C. There are two paragraphs starting in this way but

24 it's the top one that I'm now looking at with a quotation from

25 Mrs. Lecomte's report without dipterous larvae, although they were found

Page 8604

1 on the surface of the ground in open air.

2 JUDGE ORIE: Please proceed.

3 MR. GUY-SMITH: Excuse me, Your Honour, if I might. I'm unclear

4 about one thing. Is the last series of questions based on the

5 hypothetical of a fully submerged body? Because Mr. Dutertre was

6 suggesting he was dealing with bodies in the canal and the discussion he's

7 dealt with submerged bodies. I'm unclear as to whether it's fully

8 submerged bodies or partially submerged bodies or whether there is a

9 distinction. It might be of some assistance because I think there may be

10 an underlying assumption with regard to type of hypothetical that's been

11 placed deals with a fully submerged body as opposed to a partially

12 submerged body, although I may be mistaken. I just don't know.

13 JUDGE ORIE: Mr. Dutertre?

14 MR. DUTERTRE: [Interpretation] Yes, that was the point in these

15 questions, whether we should make a distinction between submerged and not

16 submerged bodies, both in order to meet Mr. Guy-Smith's concern when I

17 said submerged -- or when I said not submerged I meant a floating body,

18 part of which was exposed to air and I could ask the witness whether he

19 understood my questions in that same way but you want to react.

20 MR. GUY-SMITH: Thank you. Now I understand where he's going.

21 JUDGE ORIE: Yes. Please proceed.

22 MR. DUTERTRE: [Interpretation] Thank you, Mr. President.

23 Q. So now we are looking at the bodies outside the canal. Professor

24 Lecomte, she says that there are no dipterous larvae although they were

25 found on the ground in open air. In your report, Mr. Dourel, you mention

Page 8605

1 the series of hypotheses that account for the possible presence of

2 dipterous larvae. We have already dealt with a few of the hypotheses,

3 such as the migration of the larva to the ground so I'm not going to go

4 back to that. However, the third explanation you provide has to do with

5 the fact that the body is not attractive, which could account for the

6 absence of dipterous larvae.

7 Could you tell us what you mean by a body that is no more

8 attractive? What does that mean? What does that imply?

9 A. When you're talking about a body that is not attractive any more

10 you're talking about a body that does not produce specific smells linked

11 to decomposition that will attract insects. If you have a skeleton

12 without any tissue, you're not going to attract any dipters. If you have

13 a mummified body, you're not going to attract any diptera you might have

14 coleoptera but no diptera on this body.

15 Q. Therefore if you have a skeletonised body it's not an attractive

16 body anymore? Or does it depend on other factors?

17 A. Once you don't have any more soft tissue on the body, insects do

18 not appear anymore because they feed on dead tissue.

19 Q. So in order to be very specific, when we are talking about a body

20 that is not attractive anymore, we are talking about a body that was

21 colonized previously?

22 A. Yes.

23 Q. So in that case, you need to collect samples in order to reach a

24 conclusion?

25 A. Yes, you do.

Page 8606

1 Q. Very well. There is another point you make --

2 JUDGE ORIE: Please slow down, Mr. Dutertre.

3 MR. DUTERTRE: [Interpretation]

4 Q. There is another point you make in -- to explain why larvae can be

5 absent or present on a body. You're referring to movement. But if I

6 understand correctly, and you'll tell me if that's not the case, if I

7 understand your report correctly, if larvae are found on a body, and if

8 that body is then transported, the same larvae are going to be

9 transported?

10 A. Supposing you have a body colonized by larvae, with a significant

11 amount of larvae on the body, if you have a punctual transportation or

12 movement of this body this was not -- will not result in the larvae

13 disappearing from the body.

14 Q. Thank you. If there aren't any larvae on a body, to find the

15 reason for that state of things, is there any reason to believe that it is

16 due to a -- the body having been moved or to the lack of attractivity?

17 A. No, not necessarily. When there aren't any insects on a body, you

18 can't determine whether the body has been handled or not. The only way to

19 conclude that the body has been handled is to recover -- on a buried body,

20 for example, is to recover pupa in the ground, once you've collected soil

21 samples around.

22 Q. Thank you. Considering what you stated at the beginning of your

23 testimony with respect to necrophagous fauna on buried bodies, in any

24 case, you stated that it was possible that necrophagous fauna develops in

25 these circumstances, considering that, entomologically speaking, are there

Page 8607

1 any specific reasons to establish a link between the absence of larvae and

2 the idea of a previous burial of the body?

3 A. The burial of a body does not in any way prevent insects from

4 arriving on the body. It depends on the way the body has been buried.

5 Has the body been wrapped? Has it been put in a sealed container? It

6 depends also on the depth of the burial. It will also depend on the

7 decomposition state of the body, but the mere fact of burying a body will

8 not prevent the arrival of the insects. It will delay it but it will not

9 prevent it. However, it's extremely -- it's rather difficult to determine

10 the duration of the delay.

11 Q. If there are larvae in or on a buried body, if that body is then

12 transported, should there be larvae on the body at the point of

13 destination?

14 A. It's difficult to say. Depends on the way the body was handled.

15 If the amount of larvae is significant, if the body was buried under

16 shallow ground, it's very likely that you will find larvae underneath the

17 clothes or in the clothes.

18 Q. Therefore, the link between the absence of larvae and the

19 possibility of a burial, is that accurate, not accurate, is -- false?

20 A. It's not accurate.

21 Q. I have a few more questions to put to you but I won't need very

22 much time. I would like to compare two cases, the case of body R-1 in the

23 second report of Ms. Lecomte at page 14, in French, and R-9, body R-9,

24 that is to be found at page 30 in the French version.

25 Let me quote, when it comes to R-1, it is stated here that, and I

Page 8608

1 quote, "Taking into consideration the context of the discovery and

2 environmental factors," first paragraph, "presence of dipterous larvae on

3 the clothing, presence of dipterous larvae on the clothing and in the

4 cranial cavity, absence of predator lesions"; second bullet point, "no

5 colonization of the body or the immediate environment by grass, no

6 colonization of the body or the immediate environment by grass, the

7 totality indicates a very short presence at the location."

8 I see that the sentence has been recorded twice on the

9 transcript. I had only repeated the sentence for clarity.

10 Let me move to R-9. "Taking into consideration the context of the

11 discovery and environmental factors, no larvae or flies, no invading or

12 colonising grass, the totality indicates a very short presence at the

13 location."

14 In both cases, in the case of R-1 and R-9, no grass has been

15 depicted, and the only difference is that for R-1, you have larvae,

16 dipterous larvae, but not for R-9. And now I'd like to come to my

17 question.

18 Entomologically speaking, sir, since apparently the difference

19 between these two bodies resides in the presence or the absence of

20 dipterous larvae, can you provide an explanation, entomologically

21 speaking, can you provide an explanation as to why the conclusion is the

22 same, i.e., the totality indicates a very short presence at the location?

23 JUDGE ORIE: Mr. Emmerson.

24 MR. EMMERSON: With respect, that is a question that needs to be

25 addressed to Professor Lecomte because one possible explanation may be

Page 8609

1 that she did not regard the entomology as the decisive criterion.

2 MR. DUTERTRE: [Interpretation] But she quotes the entomological

3 aspect saying that it's what she takes into account; therefore I believe

4 that my question is a relevant question that I may put to our witness.

5 JUDGE ORIE: I think we could ask this witness at the same time

6 that -- as I said before, first of all, it should be asked to Madam

7 Lecomte. Of course, there is a problem, and we would seek her explanation

8 for that, is that on the second question, she starts with a rather general

9 statement. And I read it in French, if I've got the right spot,

10 Mr. Dutertre. Please check that.

11 [Interpretation] Taking into consideration the context of the

12 discovery and environmental factors [In English] and then we get two

13 bullet points. Now, are the bullet points an explanation of the general

14 statement? Are these the issues on which you focused at that time or does

15 it add to the context she describes and the environment? We'll have to

16 ask her, but at the same time, we could ask this witness whether he has an

17 explanation. He might have one. Let's ask him. If he has one, then

18 we'll hear it. If he doesn't have one, then we'll hear that as well. But

19 this certainly could not replace any explanation to be given by Madam

20 Lecomte.

21 MR. DUTERTRE: [Interpretation] Of course we'll put the question to

22 Ms. Lecomte.

23 [Trial chamber and legal officer confer]

24 MR. GUY-SMITH: Excuse me.

25 JUDGE ORIE: Yes, Mr. Guy-Smith?

Page 8610

1 MR. GUY-SMITH: The question as posed constitutes another problem

2 which is that the hypothetical assumes that all other factors as between

3 the two bodies are the same, which is the basis upon which Mr. Dutertre

4 has asked the question. He says the only distinction is the entomological

5 one and, I think that he needs to figure out a better way of framing the

6 question because it takes into account -- does not take into account a

7 series of variables that this gentleman may or may not have taken a look

8 at.

9 JUDGE ORIE: Yes. I take it that Mr. Dourel has studied the

10 report and not just only the paragraphs dealing with -- it's a bit

11 difficult to read a report just by searching for the portions which are

12 giving entomological details. I think that merely on the basis of the

13 comments given, that Mr. Dourel is well aware that circumstances of the

14 bodies, whether they were the same or not, how to interpret the report of

15 Madam Lecomte might cause problems which he may have or may not have a

16 solution for.

17 Mr. Dutertre, it's perhaps good that you draw the attention of

18 Mr. Dourel to the fact that your question, although simply phrased, might

19 be a very complex one. Perhaps you repeat the question and let's see what

20 Mr. Dourel's answer is.

21 MR. DUTERTRE: [Interpretation] Yes. These are complex matters

22 indeed. And I'm going to try and rephrase my question, Your Honour.

23 Q. Mr. Dourel, we read two excerpts of the report dedicated to bodies

24 R-1 and R-9 and mention is made, subject to any explanation that

25 Ms. Lecomte might make, but it appears that one salient element is

Page 8611

1 mentioned, the absence or presence of diptera and the absence or -- and

2 the colonization or not by grass. In the cases of R-1 and R-9, the common

3 point is that there is no invading grass. We are left, therefore, with a

4 reference made to the absence or the presence of dipterous larvae on

5 bodies R-1 and R-9.

6 From an entomological point of view, can you provide an

7 explanation that could shed some light on this matter, i.e., that there is

8 only one difference between these two bodies, the absence or presence of

9 larvae, but still the same conclusion is reached? That is to say that the

10 bodies spent a very short presence at the location.

11 JUDGE ORIE: Mr. Dutertre, isn't it true that to make it possible

12 for the expert to answer the question, that you do not limit it just to a

13 difference or similarity on one point the different conclusions, where,

14 for example, R-9 is described as skeletonised, whereas R-1 is described in

15 a different way. I think it's fair that we put to the expert that other

16 circumstances are different and that it's -- and perhaps also ask him

17 whether he -- whether it's within his competence to compare all the

18 elements, also the ones which are not directly in his field of expertise,

19 in order to give a judgement on different conclusions where one element

20 seems to be the same.

21 Mr. Emmerson.

22 MR. EMMERSON: I don't know whether it's helpful. I think it may

23 be a linguistic issue as far as translation is concerned. I think if the

24 question that Mr. Dutertre is seeking an answer to is could you have two

25 bodies both of which had been moved recently into situ, one of which had

Page 8612

1 larva present and the other one of which did not, from an entomological

2 point of view is that a consistent conclusion, then given the testimony

3 that the witness has already given, it may be that he can answer that

4 question with relative simplicity. It may be -- I'm not sure that's

5 exactly what Mr. Dutertre is getting at but --

6 JUDGE ORIE: That's not clear to me either. So we'll let

7 Mr. Dutertre put the question and if you would like to formulate that

8 question in cross-examination, of course your fully entitled to do so.

9 Mr. Dutertre, let's try to formulate questions with full respect

10 for the complexity of the issue rather than to simplify. Please proceed.

11 MR. DUTERTRE: [Interpretation] Yes, Your Honour.

12 Q. Mr. Dourel, you read the report, a portion of the report related

13 to R-1 and to R-9, and I'm not sure if this -- if at least one of these

14 sections is displayed on the screen in front of you, but I know that you

15 have the hard copy of the report. R-1 and R-9 are different in a number

16 of ways. It's stated here that R-1 was discovered in the open air, that

17 part of the skeleton is visible, and there are the -- and clothing is

18 saturated with putrefaction liquid and dipterous larvae; and as for R-9,

19 it was found on the surface partially covered by earth in a state of

20 skeletonisations --

21 JUDGE ORIE: Mr. Dutertre, I am going to suggest a different

22 solution to this problem. Although I am hesitant to ask time from

23 Mr. Dourel during the break, what we could ask him is to compare the R-1

24 and the R-9 findings and then specifically keeping in mind his field of

25 expertise, whether he sees any inconsistency in reasoning in findings and

Page 8613

1 conclusions, and it could well be that -- of course, it is split up in

2 different questions so therefore it might be that one could focus on that

3 but at the same time some general data are given such as the autopsy

4 environment, and just ask Mr. Dourel whether he has any comment to make

5 there, and from your earlier question, it may be clear that your

6 suggestion was that there is inconsistency. Let's ask Mr. Dourel after

7 the break whether he joins you in that suggestion, yes or no.

8 Mr. Dourel -- yes?

9 MR. DUTERTRE: [Interpretation] Yes. I agree, Your Honour.

10 JUDGE ORIE: Do you have any other questions at this moment,

11 Mr. Dutertre? You said a few questions before, because he'll have to

12 decide whether --

13 MR. DUTERTRE: [Interpretation] I will have two additional

14 questions, Your Honour.

15 JUDGE ORIE: Yes, if you put them now and then we'll have a break.

16 MR. DUTERTRE: [Interpretation]

17 Q. Mr. Dourel, what is the impact of a decaying body on the

18 surrounding environment? Does it favour, does it impair the growth of

19 grass around it, for example, if that's something you're familiar with?

20 It's not exactly your area of expertise but you may have some idea of the

21 matter.

22 JUDGE ORIE: Mr. Emmerson, Mr. Guy-Smith?

23 MR. GUY-SMITH: I think we rise for the same objection.

24 MR. EMMERSON: So far, I see no evidence in the material that has

25 been produced so far as this witness is concerned to indicate this is

Page 8614

1 within his area of expertise.

2 JUDGE ORIE: We could ask the witness sometimes. Do you have any

3 expert knowledge on the growth of grass and the influence of

4 environmental -- decaying body as an environmental element which would

5 influence the growth of grass? And if you have any expert knowledge,

6 please explain to us how you obtained it.

7 THE WITNESS: [Interpretation] Your Honour, I find it difficult to

8 answer that question since this goes beyond my area of expertise.

9 JUDGE ORIE: Then, Mr. Dutertre, would you please put the second

10 question to Mr. Dourel?

11 MR. DUTERTRE: [Interpretation] Okay. I'll put my question in any

12 case.

13 Q. Mr. Dourel, would it have been a good idea, before taking in --

14 before adopting an entomological point of view to determine how long a

15 body has spent on a specific -- at a specific location, to reach

16 conclusions about possible handling of the body, would it have been a good

17 idea to conduct an in situ experiment with carrion, with dead animals

18 placed in the same conditions, at the same period of the year, in the same

19 environmental and weather conditions? Would it have been possible?

20 A. Publications exist related to the burial of bodies and the arrival

21 of necrophagous insects on the bodies. It's always possible to conduct

22 experiments to try and reproduce the situation, the initial situation, but

23 its weather conditions are never exactly the same. The conditions may be

24 different from what they were initially. Therefore, if you conduct that

25 type of experiment, it will give you some sort of idea but it will not

Page 8615

1 allow you to reach any definite conclusion.

2 Q. Thank you. And let me come to my conclusion. When you look at

3 these entomological elements in Dr. Lecomte's report, is it possible to

4 reach entomological conclusion in this case?

5 A. To do that, you need to have insects, you need to have collected

6 specimens. Without specimens, without having been collected, you can't

7 reach a conclusion. Therefore, you can't reach a conclusion based solely

8 on the absence or the presence of larvae diptera.

9 MR. DUTERTRE: [Interpretation] Thank you.

10 JUDGE ORIE: Thank you. Before we have the break I have one

11 additional question related to the semi-last question put to you by

12 Mr. Dutertre. In your experience have you ever considered or have you

13 even ever -- do you have any experience in setting up on the crime scene a

14 research project in order to better understand what you found at the crime

15 scene? And when I'm talking about research project, I'm thinking in terms

16 of research projects Mr. Dutertre described. Is it ever practised or have

17 you ever considered this?

18 THE WITNESS: [Interpretation] There are experiments aimed at

19 reproducing conditions found after discovering bodies but they are mere

20 hypotheses, they cannot be regarded as definite conclusions.

21 JUDGE ORIE: Thank you for that answer. Could I ask you to

22 compare R-1 and R-9 to see whether from the point of view of your

23 expertise, whether you find any inconsistencies or whether you would like

24 to make any specific comments, and I take it that it's clear to you that

25 Mr. Dutertre has specific elements in mind, if you please don't forget

Page 8616

1 them in your considerations.

2 Then we'll have a break until five minutes past 6.00.

3 --- Recess taken at 5.45 p.m.

4 --- On resuming at 6.11 p.m.

5 JUDGE ORIE: Mr. Dourel, may I invite you to address us on your

6 homework, and again apologies for not allowing you to have a break and

7 just relax.

8 THE WITNESS: [Interpretation] Mr. President, I will make two

9 remarks in the structure of my report, first of all linked to the

10 difference there is in the state of decomposition of the two bodies. R-1,

11 the body R-1 was in a state of decomposition and putrefaction but there

12 was still soft tissue left, while R-9 is already skeletonised with a

13 presence, or rather, scarce presence of soft tissue. So for R-1, the fact

14 that there may be larvae visible is perfectly normal. For body R-9, the

15 absence of larvae, visible larvae, is quite normal too.

16 Yet, as I said at the beginning, the insects come in successive

17 waves on a body owing to its state of decomposition, in particular when it

18 is a nutritional resource, and according to the state of decomposition of

19 the body, more -- the diptera are of smaller size, so the absence for R-9

20 of visible larvae doesn't mean there aren't any larvae of diptera. There

21 may be some of very small size which belong to the family of

22 calliphoridae, which is known as a family to actually infest bodies on the

23 last phase of decomposition. They are very, very small in size.

24 Second observation, assuming that both bodies would have been

25 submitted to the same climate conditions and same conditions of

Page 8617

1 environment, it is not possible to explain the difference which is noted

2 here between body R-1 and R-9 from the entomological point of view, which

3 would mean, indeed, that for bodies which have been placed exactly in the

4 same climatic and environmental conditions, and assuming that insects

5 would have arrived soon after death, these insects would have evoluted [as

6 interpreted] in different ways, and this is not possible since these

7 insects are connected to the temperature and the environment conditions.

8 So this is my answer, Mr. President.

9 JUDGE ORIE: Thank you for the observations. Could I ask you one

10 question in relation to that? You said sometimes you wouldn't see the

11 larvae anymore because -- let me just try to find the relevant portion.

12 In your report, you provide the following: The absence of larvae

13 on a decomposing body in an open air environment may have several causes.

14 The larval stage corresponds with the diptera active stage which exists in

15 a defined period. After this stage is complete, the larvae begin their

16 metamorphosis (pupation) outside of the nutritional substrate. The effect

17 of this is the presence of pupa mainly in the soil. The absence of

18 visible larvae does not rule out, therefore, a prior colonization of

19 necrophagous insects.

20 If the -- if these larvae have left the body and where we would

21 find the presence of pupa in the soil, could you tell us, you told us

22 about waves. Would there not come the next wave so that you would still

23 find larvae but then perhaps not of the same wave but from the next wave?

24 So I try to understand how this development could result in a

25 total absence of larvae, or at least visible larvae, on the body. Could

Page 8618

1 you explain that to me?

2 THE WITNESS: [Interpretation] The arrival of successive wave, a

3 first wave which would come just after death occurred, is possible. But

4 it depends on a question of organic matter factor, if there isn't enough

5 for them to feed on the body. But this successive phenomenon which has

6 been studied and there are many publications about it, is not very well

7 known. One doesn't know yet exactly whether the following wave will come

8 at the beginning of pupation or at the end of pupation. So does this wave

9 come while there still is a residual activity of the preceding wave,

10 entomologically speaking, or when the body is completely free of any

11 activity from the point of view of entomology.

12 JUDGE ORIE: Yes. That is clear to me. Another question would be

13 that if the larvae have left the body, do they leave any traces, any-- so

14 not being present anymore, whether there is any other way of discovering

15 that there once were larvae?

16 THE WITNESS: [Interpretation] The only element which would enable

17 us to say that there was an entomological activity before would be to find

18 in the fibres of clothing, for instance, larvae or pupa which would have

19 remained in the clothing, caught in the clothing. It's the only way to

20 say if there was an entomological activity before with a sampling of

21 clothing.

22 JUDGE ORIE: Once the larvae have left the bodily remains, they do

23 not leave any fingerprints or -- I'm using perhaps a silly expression, but

24 they do not leave any chemical traces or any other traces?

25 THE WITNESS: [Interpretation] No, not at all, none.

Page 8619

1 JUDGE ORIE: Do you say -- you say not at all. Does that mean

2 that it has been researched or is it just that you say we -- if we don't

3 see anything anymore, even not with a magnifying glass, then, was there

4 any study ever to chemical or otherwise remains of larvae that had left

5 the body?

6 THE WITNESS: [Interpretation] To my knowledge, there is no

7 publication in this sense. There are -- go the other way to saying if one

8 is capable to find some human traces in the larvae, is it possible to find

9 DNA, human DNA in the larvae?

10 JUDGE ORIE: Yes. That's a -- that's another question, quite

11 intriguing question, but it will not assist at this moment the Chamber in

12 any way.

13 Mr. Emmerson, are you ready to cross-examine Mr. Dourel?

14 Mr. Dourel, you'll now be cross-examined by Mr. Emmerson, who is

15 counsel for -- Defence counsel for Mr. Haradinaj.

16 Cross-examination by Mr. Emmerson:

17 Q. Mr. Dourel, I just want to start by coming back to the second of

18 the two observations that you made when we came back from the break so I'm

19 looking at the transcript page 67, line 20, for those that are following.

20 You said that assuming that both bodies, that is R-1 and R-9, would have

21 been submitted to the same climatic conditions and the same conditions of

22 environment, then it is not possible to explain the difference between

23 them in terms of the presence of larvae in one of the bodies and its

24 absence in another. Have I understood you correctly?

25 A. Yes, absolutely.

Page 8620

1 Q. So on its face, there are two possible explanations for the

2 difference that I want to explore with you. One possible explanation is

3 that the remains are in a different state of decay and died at different

4 times; is that right?

5 A. That's one hypothesis.

6 Q. And that would then explain the difference potentially; is that

7 correct?

8 A. Yes, it's a hypothesis.

9 Q. And another hypothesis is that they had been in different

10 locations in the past?

11 A. It is a hypothesis but only inasmuch as they were not submitted to

12 the same climate and environment conditions. They would be different

13 conditions.

14 Q. Precisely so. And I wonder if I can just go back to the beginning

15 of this exercise with you briefly before putting some further questions.

16 Can I ask you what documents you were given, what material you were given,

17 when you were asked to prepare your report?

18 A. I was given the terms of reference from Mr. Dutertre and I also

19 received Professor Lecomte's and Professor Vorhauer report. I think it

20 was on the 30th of July or August. I can't remember exactly.

21 Q. You can see obviously from the early pages of Professor Lecomte's

22 report that she had studied and had available to her CD-ROMs containing

23 evidence from the crime scenes, autopsy reports, photographs, videos

24 showing the findings of the body in situ and so forth. Was any of that

25 material provided to you?

Page 8621

1 A. I only received Professor Lecomte's report and this report also by

2 Professor Vorhauer.

3 Q. Yes. So none of the material on which they based their report was

4 given to you to review?

5 A. No, they weren't.

6 Q. And my second initial question is, I take it from the evidence

7 that you've given and from your curriculum vitae that you don't personally

8 have any training in forensic pathology as such; is that correct?

9 A. Yes, that's right.

10 Q. Now, you've obviously, as the judge indicated earlier on,

11 considered the whole of this report; is that right? You've looked at the

12 elements concerning entomology in their context?

13 A. Yes, you're correct.

14 Q. And as we can see in relation to the comparison between R-1 and

15 R-9, you agree, I think, that there is no necessary inconsistency arising

16 out of the fact that in one case there was larvae present and in other

17 case it was absent, that's correct?

18 A. It is correct. However, based on the hypothesis of a real absence

19 of larva on R-9 and not just of visible larva -- larvae that would be

20 visible on the photographs.

21 Q. Thank you. Now, from the consideration of Professor Lecomte's

22 report as a whole, and we can all see the text of it, it's plain that a

23 number of criteria have been identified as relevant to different bodies in

24 forming an opinion as to whether or not the body may have been moved at

25 some time after it originally met its death. So, for example, one of the

Page 8622

1 factors that Professor Lecomte identifies in respect of bodies that are

2 found lying on the surface is the presence of earth inside the clothing of

3 the body as a potential indicator of prior burial and disinterment, for

4 example.

5 JUDGE ORIE: Mr. Dutertre?

6 MR. DUTERTRE: [Interpretation] Could one be more specific because

7 there were bodies that had been buried so it's not illogical to have soil

8 on those bodies. So which bodies are you speaking about?

9 JUDGE ORIE: I think what Mr. Emmerson is doing is giving an

10 example of an element taken into consideration by Professor Lecomte

11 without challenging any specific --

12 MR. EMMERSON: Yes, I can give Mr. Dutertre the example, for

13 example with body R-4 it's recorded as lying on the surface in the open

14 air and appears to have been placed on the ground and it is found that the

15 clothing is nonetheless filled with soil, as an example.

16 Q. Now, similarly, she has drawn attention in portions of her report

17 to the fact that bones are missing and whether or not there is evidence of

18 predator lesions that might suggest scavenging. She has drawn attention

19 to the fact in some bodies that the body is separated and different parts

20 of it are found in different places, and as Mr. Dutertre identified with

21 you earlier on, with certain bodies she has drawn attention to the fact

22 that there is no evidence of grass or root colonization.

23 JUDGE ORIE: Mr. Dutertre .

24 MR. DUTERTRE: [Interpretation] Yes. On this matter of soil, I'll

25 come back to this, because page 119 of her report regarding the bodies

Page 8623

1 that were close to the wall, and R-4 is one of them, she says that the

2 bodies against the concrete wall have been deteriorated by rain. So if

3 you were to choose --

4 THE INTERPRETER: Sorry, the interpreter was trying to find the

5 right passage -- so were covered by soil and mud brought by rainfalls.

6 MR. DUTERTRE: [Interpretation] So if you find -- you look for an

7 example, you must find the right one.

8 JUDGE ORIE: Well, as a matter of fact, we are at this moment at a

9 different level. We are not focusing on specific numbers. We are talking

10 about methodology, whether other factors in general terms were taken into

11 account. Of course, the next step could be, I'm not saying will be, but

12 could be to go into details but at this moment we are discussing methods

13 rather than anything else, if I understood you correctly, Mr. Emmerson.

14 Let's leave it there for the time being and whether the example is right

15 or wrong is not for the methodology at this moment is not of vital

16 importance. Other elements were taken into consideration, isn't it,

17 Mr. Dutertre?

18 MR. DUTERTRE: [Interpretation] Yes, of course. But I mean general

19 elements are also important, right?

20 JUDGE ORIE: Please proceed.


22 Q. Forgive us for the discussion across the courtroom, Mr. Dourel.

23 You've seen the report. If I can draw those examples together, it's

24 plain, is it not, that Professor Lecomte and Mr. Vorhauer took account of

25 a range of factors in coming to the conclusion that the bodies that they

Page 8624

1 were looking at in the photographs and videos and post mortem reports that

2 they considered, may have been moved into the position in which they were

3 found?

4 A. Yes.

5 Q. And for example, the appearance of the body in situ when compared

6 with the apparent date of death, from a post mortem point of view, the

7 assessment of whether or not a body appears to have been in the same

8 position for the three months or so it appears to have been dead, that is

9 an area within which a forensic pathologist would have expertise rather

10 than an entomologist specifically, is that correct?

11 A. Well, in the absence of entomological specimens, it is.

12 Q. Summarising the evidence you've given to us, I hope I don't do it

13 any injustice but can I put it very, very simply, does it come to this,

14 that without knowledge of the species of infesting insect, and without

15 knowledge of the precise environmental conditions that have prevailed in

16 that locality since the body was first placed there, it is impossible to

17 positively be specific about how long the body has been dead or how long

18 it has been in situ purely on an entomological analysis?

19 A. Yes, absolutely, from purely the entomological analysis, it is not

20 possible to give this answer.

21 Q. But when other factors are considered, plainly a forensic

22 pathologist may be in the position to draw certain conclusions?

23 A. It is not within my area of expertise. I can't answer that.

24 Q. Now, the conclusions that Professor Lecomte draws in respect of

25 these remains, taking all of the factors into consideration, are -- if I

Page 8625

1 can summarise it this way -- that it is not possible to eliminate the

2 possibility that the bodies that were found at the site had been moved

3 there at some time shortly prior to their discovery. Now, correct me if

4 I'm wrong, but that is not a conclusion that you're in a position to

5 dispute, is it?

6 A. Since I do not have any entomological specimens, also do not know

7 what the soil was like, on the basis of forensic entomology, I cannot

8 provide this type of answer.

9 Q. You can't show entomologically that they were moved but you can't

10 show entomologically that they were not?

11 A. It is possible only if you have specimens.

12 MR. EMMERSON: Yes. Those are my questions.

13 JUDGE ORIE: Mr. Guy-Smith?

14 MR. GUY-SMITH: There will be no questions.

15 JUDGE ORIE: Mr. Harvey?

16 MR. HARVEY: Nor from me.

17 Questioned by the Court:

18 JUDGE ORIE: Mr. Dourel, I would have a question for you.

19 Mr. Emmerson skillfully summarised what your evidence was. That is, that

20 without sufficient data you can't draw any conclusions. Now, I'd like to

21 go a bit further and see to what extent you would agree or not agree with

22 the following. Whatever the other data may have been, in the report of

23 Professor Lecomte and Dr. Vorhauer, they include in their reasoning

24 entomological data.

25 Have I understood your testimony well or not well if you say that

Page 8626

1 some of the points illustrated in the examination-in-chief that where

2 entomological data are introduced as contributing to the conclusion, that

3 methodologically, this was not correct because in the absence of further

4 details, they could not have played any role in the reasoning leading to

5 the conclusions? Is that correctly understood or have I misunderstood

6 your testimony? And I immediately draw your attention to the fact that my

7 summary of your testimony is not the same as the summary Mr. Emmerson

8 gave. It adds to it.

9 A. In the absence of entomological samples, of environmental weather

10 conditions, including the temperature, it is not possible to provide any

11 answer or to formulate any hypothesis as to the absence or presence of

12 larvae because we don't know whether there are dipterous larvae or not.

13 JUDGE ORIE: And does that also -- you earlier said you can't draw

14 any conclusions. Could you use these incomplete or these -- yes, these

15 incomplete data to include in forming an opinion on what happened or

16 should they have left out due to the lack of sufficient information?

17 A. Regarding forensic entomology, there is not sufficient information

18 for it to be taken into account.

19 JUDGE ORIE: Yes. So not only not to draw any conclusions but

20 also insufficient to take these data even into account in drawing

21 conclusions on the totality of the data available?

22 A. Absolutely.

23 JUDGE ORIE: Thank you. Mr. Emmerson? It seems that the question

24 of the Bench has raised --

25 MR. EMMERSON: If I might, just one matter.

Page 8627

1 Further cross-examination by Mr. Emmerson:

2 Q. Assume for a moment -- leave this particular report to one side.

3 Assume for a moment that the post mortem, anthropological and all of the

4 other data available in respect of a particular body pointed to one

5 conclusion as to the date of death and the length of time that the body

6 had been in one place, would you regard it as relevant, perhaps in order

7 to determine whether there was consistency or inconsistency, to record

8 whether there were larvae present or not?

9 A. No. The simple fact of recording it or not will not bring enough

10 data for an entomological analysis.

11 MR. EMMERSON: Thank you.

12 JUDGE ORIE: Mr. Dutertre, do you have any further questions?

13 Mr. Guy-Smith? Mr. Harvey? No further questions.

14 [Interpretation] Mr. Dourel, you've come to the end of your

15 testimony in this Court. I would like to thank you for having come here

16 to testify and answer all these questions, and I wish you a safe trip

17 home.

18 THE WITNESS: [Interpretation] Thank you.

19 JUDGE ORIE: You may have noticed that part of your testimony

20 consisted of considering and assessing the methodological aspects of the

21 work of other experts. It could well be that if these other experts will

22 testify, that some new questions may arise.

23 Could I ask you whether you would keep yourself available at a

24 later stage if such developments would be there? That is, that other

25 experts saying that you're totally wrong in your answers for this and this

Page 8628

1 reason, that we then perhaps or we might like to hear from you why you're

2 right instead of why you're wrong. That is a development which we -- it's

3 difficult to forecast, but would you be available in the future to further

4 testify if such a situation would arise?

5 THE WITNESS: [Interpretation] I don't have any translation in

6 French. As long as it's within my area of expertise there is no problem.

7 JUDGE ORIE: I advise you not to discuss your testimony with

8 others, not to speak with others about it so that no outside influences

9 could intrude in your mind. That would be -- usually I say it's my

10 instruction. Of course, the problem here is that we do not know whether

11 we would need you at any future stage, so therefore I would invite you for

12 the time being not to discuss with others the -- that would include

13 parties, that would include third persons, not to discuss your testimony.

14 Then, again, thank you very much. Madam Usher will escort you out

15 of the courtroom and we have 15 minutes remaining for procedural matters.

16 [The witness withdrew]

17 JUDGE ORIE: There are a few matters for which we have time now.

18 The first is the Chamber's decision on the Prosecution's request

19 that it reconsider its 92 ter summary ruling. On the 12th of September of

20 this year, the Trial Chamber urged the parties to agree on 92 ter

21 summaries so that they are ready to be read out before a witness

22 testifies, and we also decided not to invite the Prosecution to read out

23 in court 92 ter summaries for witnesses that had already testified.

24 Transcript pages 8375 and 76.

25 Later that same day, the Prosecution -- I think it was you, Mr.

Page 8629

1 Re -- asked the Trial Chamber to reconsider its rulings not to invite the

2 Prosecution to put on the transcript 92 ter summaries for witnesses that

3 have already testified. I leave alone whether it was a ruling or an

4 invitation, but -- and you gave two main arguments for this you gave were

5 first, it might distort the public's impression of the proceedings in a

6 way that might discourage future witnesses from testifying, and second,

7 that the public has easier access to what is said on the trial record and

8 reports by the media than to exhibits in this case.

9 The Trial Chamber has decided to allow the Prosecution to read out

10 a one-page 92 ter summary for each past 92 ter witnesses for whom no such

11 summary has been read out. The Prosecution is invited to consult with the

12 Defence beforehand. If there is any problem about the summary, and

13 everyone knows that the summary is not evidence but just to inform the

14 public, but if there is any problem, the parties are invited, as usual, at

15 my Chambers, 7.00 in the morning to resolve disputes.

16 I would now like to deliver a decision on the Prosecution's

17 application for a subpoena at testificandum for Witness 51. On the 7th of

18 September 2007 the Chamber declined to admit the witness statement of

19 Witness 51 under Rule 92 bis, granting cross-examination to the Defence.

20 On the 13th of December 2007, the Prosecution filed an application

21 for a subpoena directing Witness 51 to testify before the Chamber on or

22 about the 3rd of October 2007.

23 The Prosecution argues that the witness is expected to provide

24 material evidence for counts 7 and 8 of the indictment.

25 The anticipated content of that evidence is presented in

Page 8630

1 confidential annex A to the application.

2 The Chamber notes that much of the anticipated evidence of this

3 witness is referred to in the 92 ter witness statement of Professor Dusan

4 Dunjic which is already admitted into evidence as Exhibit P618. The

5 Chamber also notes that according to the Prosecution's third amended

6 witness list, filed on the 13th of September 2007, testimony on these

7 counts is expected from two other witnesses, Witness 1 and Witness 28. As

8 the parties are aware, Witness 1 is deceased.

9 Before issuing a subpoena, the Chamber must be satisfied that the

10 expected testimony of a witness is likely to provide information that will

11 materially assist the Prosecution's case. Considering that Witness 51's

12 evidence has already been foreshadowed in Professor Dunjic's report and

13 that important evidence relating to counts 7 and 8 may yet be received

14 from the aforementioned witnesses, the Chamber finds that it cannot make a

15 determination that Witness 51's evidence will be sufficiently material to

16 the Prosecution case to justify the issuance of a subpoena before it has

17 received the remaining anticipated evidence relating to counts 7 and 8.

18 The Chamber therefore declines at present to issue the requested

19 subpoena. It will revert to the matter upon receiving the remaining

20 anticipated evidence relating to counts 7 and 8 of the indictment.

21 This concludes the Chamber's decision on the Prosecution's 17th

22 application for a subpoena at testificandum.

23 The last issue I would address is that the reasons for granting

24 protective measures -- one second, please.

25 [Trial chamber and legal officer confer]

Page 8631

1 JUDGE ORIE: The reasons for granting protective measures in

2 respect of Witness 65 were given only in private session, and although the

3 rules only require to give the reasons in open session if the testimony

4 has been given in closed session, the rationale behind this rule made the

5 Chamber decide that also for these more limited protective measures, the

6 reasons should be given in open court.

7 The protective measures being pseudonym, face and voice distortion

8 were granted on the 10th of September. The standard is that there should

9 exist an objectively grounded risk to the security or welfare of the

10 witness or the witness's family should it become known that the witness

11 has given evidence before the Tribunal.

12 The standard can be satisfied by showing either that there was a

13 threat made against the witness or the witness's family. That was not

14 shown. But the other way of satisfying the standard, the other test is a

15 combination of three elements. The first is that the witness's testimony

16 may antagonise persons that live in a specific territory. That was the

17 case since the witness was an eyewitness to the counts 21 and 22,

18 paragraph 82 of the indictment. The witness or his or her family live or

19 work in that territory, have property in that territory or have concrete

20 plans to return to live in that territory. Since the sister of the

21 witness lives in Kosovo, this part of the test was met as well.

22 The third part is the unstable security situation in the territory

23 which is a test which is resolved by the agreement of the parties, as far

24 as Kosovo is concerned.

25 Are there any other procedural issues to be raised at this

Page 8632

1 moment? Mr. Re.

2 MR. RE: Yes, thank you. There are two matters. One is the

3 subject of witnesses for the remainder of this week. We have been unable

4 to secure any witnesses for tomorrow. There is a possibility that we

5 could have a witness for Thursday but this depends upon the witness

6 obtaining a visa and flying from Kosovo. I just won't know until

7 tomorrow. We've made all attempts we possibly can but we have a passport

8 so I'm entirely in the Chamber's hands. We'll probably know mid-morning

9 tomorrow.

10 JUDGE ORIE: It's more or less the other way around; the Chamber's

11 in your hands or at least the witness's hands.

12 [Trial Chamber confers]

13 JUDGE ORIE: Mr. Re, the Chamber would like to be informed as

14 early as possible about which witness you have in mind. Also for the

15 reason that one of the Judges will not be available this Thursday, which

16 means that the other judges would have to decide whether we would continue

17 sitting, and therefore, of course, the type of evidence we could expect

18 might be a relevant factor. So therefore could you inform us not

19 necessarily at this moment but as soon as possible about the witness you

20 are working on?

21 MR. RE: I will do. The other matter I wish to raise was in the

22 cross-examination of Mr. Repic by Mr. Emmerson. Some questions arose

23 about documents which were marked for identification D163 and 164. We've

24 been to the -- I've had some people go to the evidence vault and I have

25 the originals or the ones which were submitted to the evidence vault.

Page 8633

1 D164, it appears, was received by the Prosecution in April this year. And

2 D16 -- I'm sorry, the other way around. D163 was received on the 30th of

3 August 2007. It bears an original archive stamp and the other one

4 doesn't. They appear to be the same document, with an archive stamp on

5 it. If the Trial Chamber wishes to have a look at the originals as such,

6 I've shown them to Defence counsel, I'm happy to hand them up to you.

7 JUDGE ORIE: Any response?

8 MR. EMMERSON: I'm very happy if the Trial Chamber wishes to see

9 them. The issue, as Your Honours are aware, that I was seeking to draw

10 attention to I'm afraid is not resolved by that.

11 JUDGE ORIE: Yes. You mean the 3rd or the 13th?

12 MR. EMMERSON: And similarly, with the other pair of statements

13 the 4th and the 14th but --

14 JUDGE ORIE: Yes. Would it not be best to introduce this material

15 also in evidence so that we can properly look at it? I mean it is

16 material provided by you. It shows to the Chamber that there are various

17 versions of these statements and if there is no disagreement as to whether

18 they all come from, although perhaps not exactly the same source, but that

19 they most likely are contemporaneous documents, then we can consider the

20 full context of the problem. Mr. Re, would that cause I you any problem?

21 MR. RE: No. I have no difficulty submitting them, but if we want

22 to get to the bottom of it the easiest way is probably for us to probably

23 send a request for assistance to the Serbian authorities and just ask

24 where precisely the documents were located. They've clearly come from

25 different sources within the Serbian government at a different time.

Page 8634

1 We've sent requests, and they've gone to different archives at different

2 times to find. One seems to have come from a police station and the other

3 one from the state archives --

4 JUDGE ORIE: I think --

5 MR. RE: -- that that's fairly easy.

6 JUDGE ORIE: -- that if we would have additional information about

7 where they come from, that would only add to the completeness of the

8 material the Chamber can consider.

9 MR. EMMERSON: Yes. May we revert to the Trial Chamber once we've

10 had an opportunity to discuss this between us? Because I know there is

11 the possibility that a further witness will be coming to whom they might

12 be specifically put and through whom they may be specifically relevant.

13 If that is not the position, then it may be that they need to be formally

14 admitted into evidence so they can be tendered from the bar.

15 JUDGE ORIE: Yes. So the parties are invited to further discuss

16 the matter and to see that in what way the Chamber will be best informed

17 about all the aspects of this -- of these documents.


19 JUDGE ORIE: Mr. Guy-Smith?

20 MR. GUY-SMITH: Yes. I wanted to revert back to the issue of the

21 potential upcoming witness and only so we could get some kind of heads-up

22 as who we might be preparing for. Is this a witness who is on the

23 pre-existing witness list or is this a witness who is on the new witness

24 list for which there is yet to be a decision by the Chamber? Just some

25 idea what we are looking forward to.

Page 8635

1 MR. RE: I've told you, and I'll tell you again immediately as

2 soon as we stop. We had this discussion at the break.

3 JUDGE ORIE: So therefore there is no problem. Mr. Re is quite

4 willing to give you the guidance you say you need. Mr. Emmerson?

5 MR. EMMERSON: I see it's time. There is just one matter I want

6 to raise on the record, which is to ensure that arrangements will properly

7 be placed in hand to make sure that Professor Lecomte receives not just a

8 transcript or a recording of the testimony that was given this afternoon

9 but also the report which -- of Mr. Dourel which was -- which underlay it.

10 JUDGE ORIE: I take it that --

11 MR. RE: I've already set the process in train. We are going to

12 get the French transcript, which is preferable. If she wants the audio we

13 can get it for her.

14 MR. GUY-SMITH: We hate to be a stickler for procedure and once

15 again to correct the record, I don't know who is the witness is. I have

16 not had the conversation.

17 JUDGE ORIE: Okay, But you'll hear immediately now whether you

18 have missed the message or -- let's not --

19 MR. GUY-SMITH: To the extent this witness is somebody who is yet

20 to be placed on a witness list, it raises potential procedural issues that

21 may or may not need to be addressed.

22 JUDGE ORIE: Well, Mr. Re, is the witness you have in mind on a

23 witness list? And "a witness list" for the Chamber means the last witness

24 list.

25 MR. RE: Yes.

Page 8636

1 JUDGE ORIE: Okay. The answer is yes.

2 MR. RE: Mr. Dutertre reminds me that he hasn't got an exhibit

3 number for Mr. Dourel's report. Could that be done, please.

4 JUDGE ORIE: Yes. And I think we have similar -- no, the other

5 reports are -- yes, Mr. Registrar?

6 [Trial Chamber and registrar confer]

7 MR. DUTERTRE: [Interpretation] Yes. I did not formally seek to

8 tender the report into evidence. I'm doing so now.

9 JUDGE ORIE: I take it that that would be -- of course, it has --

10 the expert report has been submitted on the 16th of August, and I don't

11 think there was any objection to it. So therefore, a submission of an

12 expert report, if the witness then testifies, that would be sufficient,

13 and then Mr. Registrar, since there are a few annexes and it is not always

14 clear what is an annex to what, is it an annex to the submission or is it

15 an annex to the report, that Mr. Registrar will make a proposal and then

16 final decision will be taken.

17 MR. EMMERSON: Yes. I think I already indicated the position of

18 the Defence was premised on the proposition that Professor Lecomte would

19 be testifying and that remains the position.

20 JUDGE ORIE: Then --

21 [Trial chamber and legal officer confer].

22 JUDGE ORIE: Then we will adjourn at this moment sine die. Either

23 on Thursday, then it will be quarter past 2 in the afternoon; or Monday,

24 the 1st of October, because we are not sitting next week and that would be

25 also quarter past 2.00 in this same courtroom. We stand adjourned.

Page 8637

1 --- Whereupon the hearing adjourned at 7.04 p.m.,

2 to be reconvened on a date to be determined.