Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5326

1 Monday, 11 September 2000,

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.32 a.m.

6 JUDGE MUMBA: Registrar, please call the case.

7 THE REGISTRAR: [Interpretation] Case number IT-96-23-T,

8 IT-96-23/1-T, the Prosecutor versus Dragoljub Kunarac, Radomir Kovac, and

9 Zoran Vukovic.

10 JUDGE MUMBA: Thank you.

11 Good morning. This morning we are continuing with witnesses for

12 the Defence, and I see that there is a witness already. Good morning,

13 witness. Please make the solemn declaration.

14 THE WITNESS: [Interpretation] I solemnly declare that I will

15 speak the truth, the whole truth, and nothing but the truth.


17 [Witness answered through interpreter]

18 JUDGE MUMBA: Thank you, please be seated.

19 Yes, the Defence, Mr. Jovanovic.

20 MR. JOVANOVIC: [Interpretation] Good morning, Your Honours. I

21 shall start the examination-in-chief of our witness this morning.

22 Examined by Mr. Jovanovic:

23 Q. [Interpretation] Good morning, Mr. Jovanovic.

24 A. Good morning.

25 Q. Could you please introduce yourself to the Court?

Page 5327

1 A. My name is Aleksandar Jovanovic. I'm a specialist in

2 neuropsychiatry and forensic psychiatry, and I teach at the University of

3 Belgrade Medical School.

4 Q. Tell me, how long have you been involved in this line of work?

5 A. Well, specifically, if you are referring to psychiatry, about 14

6 years; and what is noteworthy for this Court, I have been dealing with war

7 victims and victims of torture for about eight years now.

8 Q. Let us clarify this a bit. Bearing in mind the fact that these

9 developments started the end of 1990 and the beginning of 1991, when did

10 you start examining victims of war, torture, et cetera?

11 A. Well, I work at the Institute of Psychiatry of the Clinical Centre

12 in Belgrade. The first victims of war that raged on the territory of the

13 former Yugoslavia started coming in at the end of 1991 and the beginning

14 of 1992. Since then, I have been treating them.

15 At that time, I was still a doctor who was specialising. I

16 finished my specialisation studies in neuropsychiatry in 1992, and I

17 became head of the department for post-traumatic orders, and we dealt with

18 victims of war, victims of torture, disabled veterans, et cetera.

19 Parallel with my professional work, I dealt with the examination of the

20 tragical consequences of this war.

21 In terms of post-traumatic stress disorder, I did my doctoral

22 thesis on that subject in 1995, and in the meantime, I became the main

23 consultant for orthopaedic prosthetics in Belgrade where amputees were

24 being treated who were also victims of the war. I published a book about

25 this later when I received my doctorate.

Page 5328

1 Q. I shall have to stop you at this point. I would like to draw your

2 attention to the fact that we called you as a witness here because we

3 believe that your expert opinion and answers to some questions that we

4 will put to you will help us establish certain facts. Have we understood

5 each other?

6 A. Specifically from 1994 onwards, my focussed line of work and

7 academic interest have been victims of torture. I was invited to work for

8 the committee for the collection of information on crimes against man,

9 against humanity. So it's war crimes, really. I had the opportunity of

10 examining a large number of men and women who were subjected to torture,

11 so I've been dealing in that for the past five or six years.

12 Also, my subspecialisation thesis was based on that. That had to

13 do with forensic psychiatry, and it is entitled "Expert Findings on

14 Forensic Psychiatry In Terms of Victims of Torture." And I also worked as

15 a forensic specialist for various courts, so that is my experience.

16 Q. Tell me: How do you see the role of psychiatry in terms of

17 establishing relevant facts in cases of outrages upon personal dignity,

18 rape, and torture?

19 A. This is an extremely stressful experience. According to

20 information available in literature and according to information available

21 from various findings, this leaves a lasting impact. Thirty to sixty per

22 cent are affected on a lasting basis, whereas every normal, average person

23 has an acute stress reaction, as it is called in psychiatry, and this is

24 defined in psychiatry as such. Of course, from a legal and medical point

25 of view, it is called, in a nutshell -- it's important from the point of

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Page 5330

1 view of psychiatry -- it is a psychiatric affliction which has to be

2 determined by appropriate exploration.

3 Let me explain. If a person complains of certain ailments and

4 says that they are the result of a certain experience, the doctor always

5 has to put the meaning of these ailments in a certain context, and those

6 are primarily the circumstances under which the alleged experience, the

7 alleged traumatic experience, took place.

8 Also the personality of such a victim, the personality of this

9 person who suffered such an injury is a different experience and it has a

10 different meaning for different persons and these are expressed in

11 different ways. Of course, for that it is necessary to have a very

12 meticulous and scrupulous psychiatric examination.

13 Medicine today does have appropriate diagnostic instruments by

14 which these scars, as we call them in the profession, are called, but

15 there are scars in people's souls as well, people who undergo extremely

16 stressful experience in their lives. Torture ranks among the first,

17 definitely. Let us call this injury of the human design.

18 Q. I would like to ask you about something, because part of your

19 answer related to this. How do you form your opinion as a court expert?

20 A. On the basis of facts. On the basis of facts. Of course, an

21 expert opinion is also an assumption, but it cannot be based on

22 assumptions; it has to be based on facts that were established through the

23 contemporary doctrines of our profession and also through diagnostic

24 instruments that are recognised in the domain of our profession.

25 Q. Now that we've heard this, can you tell us whether, according to

Page 5331

1 the rules of your profession at this point in time: After several years,

2 can certain procedures be applied in order to establish whether there are

3 any effects in the case of witnesses who had undergone such traumatic

4 experiences or not?

5 A. Unfortunately, yes, by all means. I touched upon this a few

6 minutes ago, but I shall repeat it once again. And an extremely stressful

7 experience in one's life, such as torture, any kind of violence, affects

8 any person, any average person by causing a strong psychological reaction

9 which can be visible to a layman as well. However, according to my own

10 research as well as the research of other persons in the world who dealt

11 in victims of torture, can confirm that torture victims as opposed to

12 other victims, express -- have lasting effects. Thirty to sixty per cent

13 of such persons have lasting effects of this nature.

14 For example, as far as post-traumatic stress disorder is concerned

15 probably everyone is familiar with that. That is perhaps one of the best

16 known. For example, amongst the population of veterans who were not

17 torture victims, the percentage is 5 to 10 to 20 per cent at the most.

18 However, books and articles that deal in larger, relatively reliable

19 samples of torture victims state that there are lifetime effects and

20 consequences in 30 to 60 per cent of all cases, depending on the author

21 who is doing the research concerned. Of course, this is identified

22 through appropriate diagnostic procedures, that is to say, through direct

23 examinations of victims of torture.

24 Q. In order to clarify this a bit, can you tell us: What is the

25 experience that a rape victim goes through, from the point of view of your

Page 5332

1 profession, while the rape is actually taking place and also later, over a

2 longer period of time?

3 A. Boris Pasternak said that suffering is measured only by its own

4 pain. From the point of view of an onlooker, it is very difficult to

5 understand comprehensively everything that a victim of such an experience

6 undergoes. However, I shall try to restrict myself to psychiatric

7 phenomenology, that is to say, an onlooker and observer who has experience

8 of this kind professionally, a person who can observe and notice what we

9 know from the victims themselves, from what they told us.

10 First of all, we have to look at the preceding period that victims

11 often describe as far more difficult than the act itself. There is a

12 strong degree of anticipatory fear, a wish, a desire to avoid this act in

13 every possible way. So already then this person enters a state of stress,

14 as we call it in psychiatry.

15 The act itself is often accompanied by psychological and physical

16 pain of maximum intensity, a feeling of revulsion, pain. The pain defends

17 herself or himself in every possible way, and very often has not only

18 psychological but also physical trauma.

19 Briefly, this is a state that we psychologists call an acute

20 stress reaction. Diagnostic criteria in all recognised classified systems

21 today say that when faced with such a situation, almost every normal

22 average person shows a noticeable psychiatric disorder which we called an

23 acute stress reaction. It can last for several hours or several days, up

24 to a maximum of four weeks. That is what is called acute stress reaction.

25 Of course, the behaviour of such a victim after such an act is

Page 5333

1 noticeable even to laymen who are in the immediate environment, in the

2 immediate vicinity of such a person.

3 Q. After the four weeks that you described as a maximum period for

4 acute reaction, from your point of view, from the point of view of your

5 science, does then this person enter a different psychological stage, or

6 is that period of four weeks the end of all, of all psychological

7 relations between that person and what the person went through?

8 A. It is hard to speak in terms of patterns. I'm talking about my

9 own experience as well as that of my colleagues who wrote about this. It

10 would happen that after a few hours or after a few weeks things would calm

11 down, and this person would continue for a given period of time to live

12 like any normal person once all of this is over, if it is over.

13 However, that would happen after several months. And even it

14 would happen after several years, that once again there would be a very

15 pronounced recurrence of this kind of stress. Very often this reaction

16 would not go down, it would not abate. It would go on for months and

17 years.

18 After one month, we stop talking about acute stress reactions,

19 acute psychiatric disorders; then we start talking after one month about

20 PTSD, and it can become chronic and, then there can also be ups and downs,

21 better/worse psychological functioning. Sometimes there could be

22 improvements; on other occasions there can be recurrences of these

23 problems.

24 Of course, the symptoms of post-traumatic disorder is something

25 which has regrettably become well known, even to laymen, especially over

Page 5334

1 the past few years. I don't think there's any need for me to dwell on

2 that. We've been watching television, films. Unfortunately, I

3 professionally deal in this as well.

4 Q. Tell me, a person who went through experience of this nature, does

5 such a person require professional assistance in order to go back to

6 normal life, so to speak?

7 A. Well, you know, in medicine there is a traditional saying: medicus

8 curat natura sanat, that is to say, doctors treat and nature cures. As

9 professionals, we often learn from our victims how to help them, and these

10 are the most important things, perhaps, that we encounter in our

11 profession. We cannot resort to books only. In books, I did not find

12 answers for quite a few of my patients. I learned from them how to help

13 them.

14 However, in 30 to 60 per cent of all cases, as I mentioned, if you

15 take a sample of such victims -- speaking in this dry language of

16 statistics and methodology, unfortunately statistics often conceal the

17 most important and most interesting things -- however, in a group of such

18 victims, in 30 to 60 per cent of all cases, throughout their lives, at

19 least in certain periods, they will need professional medical psychiatric

20 assistance. That is quite well known, and you can find information of

21 this sort in literature and encyclopedias and papers that deal with

22 statistics, et cetera.

23 That's the way it is, unfortunately. I mean, if you compare

24 psychological injuries and other kinds caused by different things, you can

25 always have very hard psychological injuries, whatever kind of life you

Page 5335

1 live. Living is a dangerous business.

2 It is considered that psychological injuries caused by violence

3 are the most likely to leave life-long consequences which require

4 professional psychiatric help, and the statistics quote the percentage of

5 30 to 60 per cent likelihood. Of course, it depends on the person. There

6 are people who simply get over it and go on living, but in my experience,

7 those people are -- I meet them less frequently.

8 Of all the women that I have had the opportunity to examine, not

9 as a doctor at the clinic, of course people come to the clinic with their

10 problems, but whom I have had opportunity to examine as a forensic

11 expert -- in our country, forensic expertise and treating patients are

12 different things, and it's considered unethical to combine these two --

13 but if the Court appointed you as the forensic expert, as I have been,

14 about half of the women who required psychiatric examination and

15 professional help, that was the case in about 50 per cent of the cases.

16 But the majority of them were not willing to even admit to any mental

17 injury. They have found it very humiliating and very hard to confess, to

18 admit to.

19 Q. Have you had occasion to contact third persons who were in touch

20 with persons who had lived through such experiences?

21 A. Yes.

22 Q. Can you tell us briefly how those onlookers, so to speak, how they

23 described the person who went through such a trauma?

24 A. One of the first so-called third persons, as you called them, that

25 I met in my practice working with the victims brought a 16-year-old girl

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Page 5337

1 and described her as having changed to a great degree. She was very

2 upset. She cried, refused food. She attempted suicide. The third person

3 was the mother of the patient, and she said, "I don't know what's going

4 on. She doesn't want to discuss it."

5 Both were refugees from Bosnia, and when I talked to the girl, she

6 admitted that she had been raped. It was a very hard psychological injury

7 with the risk of suicide. I tried, I did my best to keep her at the

8 clinic. That day she didn't want to stay. She said she would come back

9 tomorrow. I asked her mother not to let her out of her sight for a

10 moment. I suggested that she be taken to another institution which has

11 inpatient treatment facilities, unlike the one where I worked; but

12 ultimately, I found out that girl committed suicide.

13 The point of my story is that even a person who is not a doctor

14 can see the effects of such an injury. They can be recognised by any

15 reasonable person. Of course, a layman cannot get to the cause of this

16 changed behaviour, nor can they understand always the meaning, the

17 importance of the suffering. They cannot make an expert diagnosis, but

18 they can see that the person is suffering, and you can try to help.

19 Q. I would like you to come back to one of your answers a moment ago

20 where you divided the act of torture, the traumatic experience, in this

21 case rape, into stages, the stage before the act itself, the act itself

22 and the -- what happens after the act. You described to us the

23 consequences of the whole experience. Do they occur even in persons who

24 before the event did not experience either violence or threats?

25 A. I'm afraid we cannot speak about rape here. By definition, as I

Page 5338

1 understand it, I'm not a lawyer, but rape is a violent act, so it cannot

2 be without violence. But if we come to the strictly medical psychiatric

3 diagnostics, it is the meaning of ailments that a person presents.

4 I will try to explain using a simplified example. Somebody can

5 come to you complaining of headaches. The headache can be caused by

6 various factors. The person can even say, "I have a headache, doctor,

7 because I think I have a brain tumour." If that person really believes she

8 has a brain tumour, she can suffer genuine fear, anxiety, and such persons

9 have been known to attempt suicide.

10 Your first reaction would not be to suggest surgery, of course.

11 Your first reaction would be to examine the person, her mindset, find out

12 about the circumstances which brought her there, find out about the

13 character of the person, because -- and then only you examine the physical

14 aspects. And regrettably, of course, sometimes the person is right; they

15 do have a physical problem.

16 Sometimes it suffices to give a person a few days' sick leave, but

17 I believe that as a doctor you first of all should believe your patient

18 and then check. If the person says, "I have a brain tumour," you should

19 first check whether or not she indeed has a brain tumour and then go on

20 examining her.

21 I used to see this as a student. I was sometimes invited to see

22 people who had surgery and didn't actually need it. Symptoms are signs,

23 and in order to understand them, we have to put them in the context of the

24 circumstances and the context of the person's mindset, her character. So

25 the headache can be caused by neurotic conflicts, may have roots in the

Page 5339

1 person's childhood, may be reactive, as a reaction to current conflicts in

2 the person's life. But in any case, we have to examine all this

3 carefully.

4 JUDGE MUMBA: Mr. Jovanovic, if I may remind you, we have the

5 expert's document already filed. We would like you to draw the witness to

6 what is relevant and come to the points, because we don't think that it's

7 relevant to go through the whole paper, because we have got it; we have

8 read it. So if you can just lead the witness to the important, salient

9 features of his expertise relevant to the case before the Trial Chamber,

10 please.

11 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. Thank you. I

12 have been trying so far to guide the witness, and I will continue to do so

13 in the direction you suggested.

14 Q. Mr. Jovanovic, bearing in mind that you have answered that you had

15 opportunity to observe men and women who have undergone torture, as an

16 expert, I'll ask you the following: Did you meet any women who claimed

17 they had been raped and still did not offer any resistance?

18 A. No, I personally have not met any such women. I'm speaking only

19 in my own name.

20 Q. I would like to know something else. I suppose that this

21 examination, your work with a patient, presupposes a collection of rules

22 of your doctrines, science, something that should lead you to a

23 conclusion.

24 A. I suppose it is the same in every profession.

25 Q. Within those procedures, are there any common points, actions,

Page 5340

1 that -- or thoughts or anything that most victims mention, or common

2 problems that victims seem to share after the experience, something that

3 is common to the majority of persons who went through such an experience?

4 A. Victims always mention pain. They also in the same breath mention

5 humiliation. And what hits them the hardest is that they cannot get it

6 out of their systems. They remain captives of their own past and they

7 keep looking at it day and night in their nightmares. Those pictures

8 remain carved into our brains, as if they had been taped by a video

9 camera, and the entire course of events, the entire course of psychiatric

10 phenomenology, could boil down to a desperate flight from an experience

11 which keeps persecuting you and keeps preventing you from rejoining normal

12 life.

13 Q. You have had occasion to read the statements of some of the

14 persons who have been heard by this Court.

15 A. Yes.

16 Q. But from what you have read, although those are legal statements

17 rather than medical documents, have you perhaps recognised some of the

18 things you are familiar with from your previous work with victims? I'll

19 clarify. Did you find there the description that you would get from other

20 victims that you have had the opportunity to meet and to treat?

21 A. I cannot remember the numbers of the victims, but there are

22 certainly victims whose statements echo my own practice, but there are

23 also cases which I find atypical. Of course, as a psychiatrist, I cannot

24 judge the psychiatric consequences of their experiences, not based on

25 hearsay. That's not how we do it in our trade.

Page 5341

1 MR. JOVANOVIC: [Interpretation] Your Honours, I would like to

2 consult my colleagues. I think I have exhausted the list of questions I

3 have.

4 JUDGE MUMBA: Yes. You may go ahead.

5 [Defence counsel confer]

6 MR. JOVANOVIC: [Interpretation] Your Honour, we have no more

7 questions for this witness.

8 JUDGE MUMBA: Before you leave him, can we have his C.V., which

9 was filed formally, produced, and his opinion, written opinion? Because

10 they were filed but not formally produced into evidence. That is, if you

11 wish to have them produced into evidence.

12 MR. JOVANOVIC: [Interpretation] Your Honour, we suggest that

13 Mr. Jovanovic's written expertise be tendered into evidence. But excuse

14 me, I did not understand the first part of the question you asked me.

15 JUDGE MUMBA: The written -- the biography. We have it filed.

16 JUDGE HUNT: It's at the end of the statement that you filed.

17 MR. JOVANOVIC: [Interpretation] Yes, Your Honours. I understand.

18 Yes, I would like to tender both into evidence.

19 JUDGE MUMBA: To clarify, this is a joint expert opinion with

20 Professor Dr. Dusan Dunjic. It's the same one.

21 MR. JOVANOVIC: [Interpretation] Yes, Your Honour.

22 JUDGE MUMBA: Any objection from the Prosecution to the two, the

23 C.V. and the expert opinion?

24 MS. KUO: No, Your Honour.

25 JUDGE MUMBA: Can we have the numbers, please, Madam Registrar? I

Page 5342

1 notice that the opinion does discuss some of the statements received in

2 closed session. Can we have it under seal, please.

3 THE REGISTRAR: [Interpretation] The C.V. will be marked D145,

4 tendered under seal; and the expert opinion will be marked D146, also

5 tendered under seal.

6 JUDGE MUMBA: Thank you.

7 Any cross-examination by the Prosecution?

8 MS. KUO: Thank you, Your Honour.

9 Cross-examined by Ms. Kuo:

10 Q. Good morning, Dr. Jovanovic.

11 A. Good morning.

12 Q. Dr. Jovanovic, in your experience as a doctor, you understand that

13 individual people have individual reactions to events; isn't that right?

14 A. Yes.

15 Q. And two people could have experienced the exact same event and

16 experience it in different ways, can't they, or have different reactions

17 to it?

18 A. Yes.

19 Q. You mentioned that from 30 to 60 per cent of victims of trauma,

20 specifically torture, will experience post-traumatic stress disorder; is

21 that correct?

22 A. No, I didn't say that. You must have not been listening very

23 carefully. Post-traumatic stress disorder is only one of the psychiatric

24 disorders which occurs as a lasting consequence of an extremely stressful

25 experience. It is possible that a person suffers from depression. He can

Page 5343

1 get a lasting change of personality. But it is a wide spectre, which in

2 our trade is defined as the spectre of combined consequences. It would be

3 of course easier for everyone if the post-traumatic stress disorder were

4 the only one of them, but in expert circles we agree that there is a whole

5 series of disorders. Persons take things individually, as you said

6 yourself, and in the same way the psychiatric consequences are very

7 different. And the estimate of those combined disorders is 30 to 60 per

8 cent of cases.

9 Q. So in fact that number includes people who do not suffer

10 post-traumatic stress disorder, but other symptoms like depression; am I

11 correct?

12 A. Yes.

13 Q. So the number of people included in that number who actually

14 suffer post-traumatic stress disorder is lower than 30 to 60 per cent;

15 wouldn't you agree?

16 A. Specifically, if you're interested in PTSD only, the percentage of

17 persons who have undergone torture and who present only post-traumatic

18 stress disorder is higher than in the rest of the population, for

19 instance, in war veterans, refugees, and it goes up to 30 per cent,

20 approximately. Specifically, in my sample, I found about 25 per cent. It

21 depends on the sample, on the methodology. Sometimes 25, 28 per cent, 30,

22 32. But when I said "up to 60 per cent," I had in mind psychiatric

23 disorders, things that are interesting to me as a psychiatrist, who has to

24 note what exactly comes out of that stressful, traumatic experience.

25 Q. Using those numbers which you've provided, that means that between

Page 5344

1 40 to 70 per cent of all individuals who experience torture do not have

2 these disorders, psychiatric disorders; isn't that right?

3 A. No, they have no post-traumatic stress disorders, but of course

4 there is a certain number of people who do not present that particular

5 disorder. I believe that the percentage of such persons is much higher,

6 especially in view of the fact that in among our people, you will find a

7 strong resistance to psychiatry, and a lot of people are never diagnosed.

8 The national mindset seems to dictate that people deal with their own

9 problems themselves rather than go and see a doctor.

10 Q. May I ask you to clarify when you say "among our people" whom you

11 mean?

12 A. I meant people in -- on the territory of Yugoslavia whom I have

13 had occasion to meet.

14 Q. Do you make any distinction among the different ethnic groups,

15 such as Serbs, Croats, Muslims?

16 A. I don't know what you're getting at, but in every book, in every

17 publication I've had dealing with victims of torture, I began with the

18 same sentence saying that all three parties that you mentioned have

19 suffered in this war, and all the three sides share the experiences of

20 torture, displacement, et cetera.

21 I wrote about the suffering that I have seen with my own eyes, and

22 I have seen while doing that that people are all the same. I am a

23 Christian, and I was brought up not to differentiate between people based

24 on their colour of skin and nationality or party affiliation or anything

25 like that. I have never been a party member.

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Page 5346

1 I don't know if that answers your question.

2 Q. It does, thank you very much. Dr. Jovanovic, one of the

3 diagnostic tools that you employ as a doctor is asking patients or victims

4 to describe how they felt and what they experienced, right?

5 A. The psychiatric interview is just the starting point, by no means

6 the only diagnostic tool. The most important thing is to talk to the

7 person first of all, and only science and diagnostics come second.

8 Q. And the other thing you would do as part of your diagnosis is to

9 observe the person, isn't that right, how he or she reacts and behaves?

10 A. By all means.

11 Q. But you also recognised through your quote by Boris Pasternak it

12 is almost impossible to convey precisely the suffering that an individual

13 experiences to another person, right? It's the difficulty of

14 communication. You recognise that, don't you?

15 A. You cannot take an entire sea in your two hands, but what you do

16 take is still the sea.

17 Q. So there -- wouldn't you agree then, doctor, that there is a great

18 amount of suffering that can exist short of what can be expressed?

19 A. Of course. But if a person breaks an arm, the fact that I cannot

20 understand his pain is not -- is no reason for me not to give him an x-ray

21 and try to see how to treat the fracture.

22 Q. Doctor, you mentioned acute stress reaction, and that is the same,

23 isn't it, as acute stress disorder, just so we don't -- so we understand

24 that we're talking about the same thing?

25 A. Yes. And I see the ten -- the international classification uses

Page 5347

1 one term and the American classification uses another one. But in terms

2 of the phenomenon itself, the differences are minimal, and I believe that

3 these two classifications will be unified eventually. So I think that

4 that may provide an answer to your question: The differences are

5 minimal.

6 Q. By definition, acute stress disorder lasts only up till four weeks

7 because after that, it becomes defined by different terms. Isn't that

8 right?

9 A. Yes. Of course, it need not last four weeks exactly. It may last

10 several hours, several days. About a month later, you reconsider your

11 diagnosis. It may -- the patient may never go back to a psychiatrist. He

12 or she may develop a depression. After two, let's say, a couple of years

13 of severe depression you can diagnose a permanent change of personality

14 due to catastrophic trauma and so on.

15 Q. Acute stress disorder or symptoms of it occur -- can occur while

16 the traumatic event is ongoing, isn't that right? For example, if torture

17 or trauma occurs --

18 A. Even before, even before such an occurrence.

19 Q. And among the symptoms of acute stress disorder are indifference,

20 passivity, disassociation, isn't that right?

21 A. Among others, yes. Patients can describe that much more

22 graphically, or not at all. They don't use these precise terms, but in

23 terms of professional terminology, yes, all that is included.

24 Q. But they might use terms like, "I didn't care what happened to

25 me," right?

Page 5348

1 A. Yes. You probably will not find it in the professional

2 literature, but you can assume that there an alienation has taken place or

3 a dissociation mechanism, but these are, again, professional terms. At

4 least, this is what we use to professionally describe such an experience

5 which is hard to be interpreted into our professional terms.

6 Q. A person might also say, "I felt bad, I felt ashamed, and I felt

7 scared," right? Those are all consistent with that reaction.

8 A. Yes, they can.

9 Q. Turning to post-traumatic stress disorder, you are not saying, are

10 you, doctor, that somebody who does suffer from this is any less reliable

11 a witness than any other person? That's not -- I mean, a person who

12 suffers from post-traumatic stress is still reliable, right?

13 A. Not at all.

14 Q. I'm sorry, I just want to clarify. A person with post-traumatic

15 stress is also reliable, as reliable as anyone else, isn't that right?

16 A. We must not generalise things. Once a diagnosis of the post

17 stress has been established, we have to keep asking again and again about

18 the reliability of our diagnosis. In general terms, post-traumatic stress

19 syndrome is not what we would call a psychotic disturbance, and the

20 persons are not mentally handicapped; but the effects, the consequences,

21 can lead to our questioning the reliability, depending on the, the

22 seriousness of the symptoms.

23 The post-traumatic stress syndrome has not been classified as a

24 psychotic condition, so a priori it cannot be an obstacle to the

25 reliability. However, the condition may worsen to the point where such a

Page 5349

1 person may not only become psychotic but become dangerous to him or

2 herself or to his or her environment. And in short, but in the majority

3 of cases, they are reliable.

4 Q. And just to clarify and be absolutely sure about this, if a person

5 does not have any symptoms of psychosis, there is no reason to question

6 the reliability of that person, is that right, above any normal person in

7 society?

8 A. Well, also any -- if you take any normal person, depending on the

9 case that you are examining, you have to also examine their reliability

10 because it may not be inherent to the post-traumatic stress symbol [sic],

11 no, they're not.

12 Q. So someone who has symptoms of post-traumatic stress is no more or

13 less reliable than somebody without those symptoms, quite simply, right?

14 A. Yes. In that sense, yes. But I did not say that it is 100 per

15 cent reliable because you cannot say that of anyone that you are treating,

16 so you cannot be overcautious in these matters.

17 Q. Doctor, you mentioned that a majority of people may not -- who

18 have been victimised by torture may not be willing to admit they had any

19 mental injury. The fact that they're not willing to admit to this injury

20 does not mean that this does not exist, right? The injury could still

21 exist.

22 A. Yes, it could still exist, but if it does exist, you can also

23 identify it by psychiatric and psychological examination. And for years,

24 there have been reliable instruments available for that; otherwise, we

25 would not have the statistics that we're operating with here.

Page 5350

1 Q. And the primary instrument still remains talking to the patient

2 and observing him or her, right? We're not talking about putting the

3 person through --

4 A. Yes. The word is a basic tool of any psychiatrist, like a scalpel

5 would be for a surgeon. In the beginning there was a word, and then

6 everything else.

7 Q. During your answer to one of your previous -- the questions that

8 was posed to you, you stated that rape is by definition a violent act. By

9 that, do you also mean that the violence could be psychological? There

10 can be violence that is psychological as well as physical, isn't that

11 right?

12 A. Yes, it can. In essence, the body is a temple of the soul, and

13 there is no physical injury which does not affect the soul of this person.

14 And sometimes psychological injuries can leave much deeper scars than any

15 bodily injury. Of course, it always depends on what the case is at hand.

16 I am a physician; I am not a legal expert to define the legal

17 context of torture. Of course, I read a number of things on the subject.

18 Some of them I never understood properly, but some of them helped me in my

19 practice, and some of my understanding is that it is deliberate infliction

20 of injury. For instance, my own dentist I could conceivably include in

21 such things. Sometimes I have a dentist, a colleague, who sometimes calls

22 me to deal with his patients who sometimes believe that they are being

23 deliberately tortured by him. You sometimes will find it difficult to

24 explain to a patient in a dental chair that they are not being tortured.

25 Sometimes the victims would tell me the physical pain is not what

Page 5351

1 is difficult. What is difficult is the humiliation. And you can see in

2 such a person what scars were left through an interview, you cannot only

3 observe, but you can verify it further by further tests and using

4 different scales. So it is not only bodily injuries, but the mental

5 injuries can be verified.

6 When I talk about this verification process, I primarily refer to

7 interviews. But let's say if I established a diagnosis, I would be first

8 asked what did you use? What test, what process did you use? And the

9 interview would be one of the first.

10 Q. And if an individual told you that she had been raped and

11 exhibited some of the symptoms of acute stress disorder or post-traumatic

12 stress and described to you what had happened, you would not force her to

13 undergo a physical examination to verify the rape, would you, before you

14 believed her?

15 A. I believe that it is a professional duty of every physician to

16 establish a full diagnosis. If you have such a patient and you only use

17 this observation or interview, you would be derelict in your duty, because

18 you have to establish whether there are any infections and other tests.

19 I am a physician primarily, and I treat any person as someone who

20 has both the body and mind. If you're going to treat the post-traumatic

21 stress syndrome, you have to also treat the gonorrhoea which may be

22 attendant to it, otherwise you can be liable for the dereliction of your

23 duty.

24 Q. You would be looking for treatment, not for verification of what

25 the patient told you; isn't that right?

Page 5352

1 A. It depends on whether I treat this patient as a physician or as a

2 forensic specialist. As to different processes, one is -- has to do with

3 confidentiality, the other is you're part of the legal process. It is

4 wrong if you treat someone, as a psychiatrist, and this person is dying of

5 some infection. Also if you only gave, let's say, a rape victim just an

6 antibiotic to suppress this infection and not treat her for the

7 psychological trauma that she sustained, that would also be wrong. But I

8 have encountered both cases, so this is what I'm referring to.

9 Q. In your role as forensic expert, however, you would not require a

10 medical examination before you believed the witness -- or the individual;

11 right? That is not a prerequisite for you in that role?

12 A. On the contrary; the Court is not interested in what I believe in

13 but what facts I established, whether my opinion is based on facts and

14 supported by them. A person may lose an arm and ask for damages, and I

15 say to the Court, "Well, this is nothing." You have to establish facts.

16 You have to use your professional knowledge. I don't know what the

17 practice is here. It is my first appearance here. I can talk about the

18 practice in the local courts where I live and work. But a lawyer of the

19 other side will question the facts, and if you have not established them,

20 then your case is out. If I give a finding that somebody is suffering

21 from a mental disorder, the first question that I will get from the other

22 side is, "How did you establish that?"

23 Q. You were asked a question, and I am afraid I did not understand

24 the question very well, so I did not understand your answer. The question

25 posed to you was, "Have you met any woman who claimed that she was raped

Page 5353












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13 and English transcripts.













Page 5354

1 and still did not offer any resistance?" And I would like to know what

2 you understood that to mean, "resistance." Do you remember the question?

3 A. I remember the question. I remember my own answer. Personally, I

4 have never encountered such a case. I don't preclude it, but I'm talking

5 about my own experience, which is not universal.

6 Q. Did you understand "resistance" to mean resistance at the time of

7 the rape or resistance to speaking to you about the rape? That was what I

8 did not understand.

9 A. Both resistance to talk to me about it, about the details, that

10 is, of the event. Every discussion of details is usually a reliving of

11 the experience, and this is what can happen in any interview, and that is

12 quite understandable. It is very difficult to even relate the first

13 sexual experience, even though they tend to be pleasurable. But I have

14 never encountered any person who is happy to talk about it, nor have I

15 ever heard from any of my colleagues that any of such persons couldn't

16 wait to tell such a story. I'm talking about the persons whom I have

17 examined, whose experiences I have come to know. It means that I have not

18 encountered women who have not offered resistance, and a lot of them have

19 also suffered serious bodily injuries. It's not a happy thing to have to

20 interview such patients and deal with and treat them, but this is what my

21 experience is. In other words, I have just referred to my own experience.

22 Q. So every woman whom you have talked to about her experience being

23 raped --

24 A. I have also spoken to some men, unfortunately.

25 Q. And every person whom you have discussed an experience of rape has

Page 5355

1 found it difficult, right, to talk about it?

2 A. Yes.

3 Q. And it's the reluctance to talk that is the resistance that you

4 described in the original question; is that right?

5 A. Yes, but I think -- I think that the question had two parts: One

6 was resistance to talk about things, and a separate matter all together is

7 the resistance during the act itself. Those are two very separate things,

8 and it's very difficult to correlate the two.

9 Q. Did you intend to answer the second part of that question as well

10 in your original answer?

11 A. Yes, I did answer that personally I did not meet a person who had

12 not resisted. And as I said, most of them actually had serious physical

13 injuries due to that.

14 Q. But the physical resistance is not a necessary part of the rape;

15 isn't that right? A person can be raped through psychological coercion,

16 through threats and things like that; isn't that right?

17 A. It's possible. It is possible.

18 Q. And a person could be coerced into being raped by fear and the

19 circumstance, correct, so that there wouldn't be any resistance at the

20 moment of the actual rape?

21 A. Theoretically, yes, it is possible. I read about it. But I told

22 you what I have experienced. It stands to reason that such possibility

23 also exists, if somebody put a gun to your head and is ready to shoot, of

24 course. But the persons whom I interviewed related to me these

25 experiences: that they desperately fought, they had their teeth knocked

Page 5356

1 out, walls of the vagina ripped, they were all black and blue, lacerated

2 lips. This is what I have come across.

3 Q. Doctor, you --

4 A. It's a terrible shame and it is very hard to talk about, but this

5 is what I have encountered and this is what I am relating to you now.

6 Q. Doctor, you mentioned that the experience of the torture or the

7 trauma would be carved into the brain like a picture. Isn't it true that

8 the essential elements or the important things would be carved into the

9 brain but that details like time sequencing or duration might not be so

10 deeply carved into your memory?

11 A. If you talk about the time of the incident, this is what is least

12 remembered. If you talk about memories, it is mostly two things: One is

13 the time frame. The essence -- if I may give you an example, the essence

14 of a flashback is that there is separation between the time frame of a

15 certain incident and the contents of this incident. When the contents are

16 perfectly clear, the person may not understand that this incident had

17 happened a long time ago. For this person it may be happening at the time

18 when they're talking about it. So that temporal element may be something

19 that has suffered the most, because a person may recall and remember the

20 sensations, the smells, the sounds, as if they are recurring again and

21 again, and as if they were happening now. It can be in their dreams or,

22 what is worse, in the course of the day. And I saw that in the hospital,

23 and that is very disturbing when you see that.

24 Q. But in the individual's verbal description of the event, there may

25 be certain things, like time, you said, that are not so clear, but some

Page 5357

1 other things, like the smell or particular details, may stand out very

2 strongly; right?

3 A. Yes.

4 Q. Now, Doctor, if a person were to say to you, "There are moments

5 when I feel so bad and all my fears come back to me. I feel

6 psychologically unwell. I would get very excited and very upset and this

7 fear would keep coming back to me," would that be consistent to you with

8 post-traumatic stress or having experienced a very traumatic event such as

9 torture or rape?

10 A. It may be so, but also need not be so.

11 Q. It's consistent, right; it's not inconsistent?

12 A. What are you referring to when you say "consistent"? Is that one

13 of the elements that make up a clinical finding or consistent in terms of

14 causality between a certain event and its consequences? Different causes

15 may produce the same clinical finding; that is, it is something that has

16 been proved by psychological traumas. Different events can lead to the

17 same condition and vice versa. And I have encountered this with some

18 patients.

19 For instance, I talked with some refugees who were never in the

20 camp, who were lucky enough to come out alive, but they were facing

21 terrible problems of poverty during that period. For instance, they

22 cannot forget the property that was taken away, the house that was burnt

23 down, the church that was destroyed, or a relative that disappeared. So

24 that would perhaps not qualify as post-traumatic stress symbols, but a

25 depression that is also within the ambit of those traumas.

Page 5358

1 So one has to be very clear about the causes and effects. You

2 have to be very cautious in that respect, because there are potential

3 conflicts there.

4 Q. I won't ask you to establish a cause, obviously, but as one of the

5 symptoms, I'm asking you to put this into the context. Would a statement

6 such as I have given you be a symptom of post-traumatic stress?

7 A. Yes, it can.

8 Q. And another symptom would be having bad dreams and still being

9 full of fear and shivering when something scares the person, correct?

10 A. It may be, but also it need not be. I have nightmares and

11 sometimes I feel bad, and the question is why; and are these just two

12 symptoms that I have manifested, or are there any further symptoms.

13 Again, it depends on the criteria. Criteria themselves are only certain

14 pigeon-holes into which we are trying to fit various consequences of

15 traumatic experiences in order to better understand each other as medical

16 experts or legal experts and so on.

17 Q. Doctor, let's look at the flip side of these questions. If a

18 person did not exhibit symptoms of post-traumatic stress, would you be

19 able to conclude that the traumatic experience did not occur? You can't

20 do that, can you?

21 A. Only -- I cannot conclude that only on the basis of the fact that

22 you tell me that the person is suffering from a post-traumatic stress

23 syndrome. I cannot make any conclusions about people. I mean, as a

24 psychiatrist, I can, I can say I tend to agree, but I cannot say with

25 certainty. If you tell me that this person is suffering from a

Page 5359

1 post-traumatic stress syndrome, I'm not going to tell you, "No, this

2 person has not been raped." That would be meaningless.

3 Q. I wonder if you did not misunderstand the question. If a person

4 seems to be functioning in society without nightmares, has good family

5 relations, you would not conclude from that, would you, that the person

6 did not experience a traumatic experience? The person could still have

7 been tortured and have overcome that to lead a normal life, isn't that

8 right? Or what appears to be a normal life.

9 A. Of course.

10 Q. And a final question. There is a type of post-traumatic stress

11 disorder which can occur several years after the traumatic event. In

12 other words, a person could function in what appears to be a normal way,

13 and many, many years later, 10 or 20 years later, suffer the consequences

14 of that trauma. Isn't that right?

15 A. Of approximately 100 post-traumatic stress syndrome, of those 100

16 post-traumatic stress disorder, only one was such that was a latent --

17 with a latent beginning, and that was one of the most difficult cases that

18 I had.

19 It is considered a very rare type of event, but it is possible.

20 But again, you can find it in the literature. I think that also you can

21 find it in the literature, films, but it is not something that is usual.

22 It's not something that is a rule. If you come across one, it is usually

23 a very difficult case.

24 MS. KUO: No further questions, Your Honour.

25 JUDGE MUMBA: Thank you.

Page 5360

1 Mr. Jovanovic, you have questions in re-examination?

2 MR. JOVANOVIC: [Interpretation] Yes, I have several questions, but

3 perhaps it would be better to take them up after the break.

4 JUDGE MUMBA: All right. We will have our usual break and

5 reconvene at 11.30 hours.

6 --- Recess taken at 11.02 a.m.

7 --- On resuming at 11.35 a.m.

8 JUDGE MUMBA: Re-examination of the witness by Mr. Jovanovic,

9 please.

10 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

11 Re-examined by Mr. Jovanovic:

12 Q. [Interpretation] Mr. Jovanovic, a few minutes ago in response to

13 my learned colleague's question you gave a definition of the way in which

14 one remembers things, if I understood you correctly. There seemed to be

15 two parallel streams. One is continuity in terms of time, and the other

16 one is continuity in terms of substance; is that correct?

17 A. Yes, more or less.

18 Q. You explained to us this continuity in terms of time, the time

19 sequence of events, is the one that is disturbed most often, far more

20 often than continuity in terms of substance.

21 A. Yes, yes. Ultimately -- well, yes, this is a very simplified

22 answer to that question, yes.

23 Q. Also there was the question of flashback that was raised,

24 flashbacks that persons have after a given amount of time.

25 A. That they may have after a given amount of time.

Page 5361

1 Q. Oh, I see, yes, that they may have after a given amount of time.

2 If we look at the situation, then, the person that makes a statement, if I

3 understand you correctly, perhaps the continuity of time would not be as

4 it should, but as far as substance is concerned, they remember that

5 properly, even up to the level of smell and other parameters that were

6 mentioned here.

7 A. Well, as far as my own experience is concerned with persons that I

8 treated, they had retained this substance portion of their memory,

9 although there is the possibility of not remembering at all. That

10 possibility has to be allowed for as well. But it is not a rule, it is

11 not something that happens invariably.

12 Such things, as a rule, are hardly ever forgotten. I, at least,

13 never encountered a person who forgot his or her rape. That is not to say

14 that such cases were not registered in practice, in literature, that is.

15 Q. You have partly answered my next question. In your work and in

16 your examination of persons who went through rape, did you encountered the

17 following possibility: The person concerned remembering only one detail

18 out of the entire context and having forgotten everything else. That is

19 to say, with regard to the entire act of rape, the person concerned

20 represents one single detail only, for example, how someone was dressed or

21 whether he had something in his hand or not, or features or whatever, and

22 all other details related to that cannot be remembered by the person

23 concerned.

24 A. In my personal documentation regarding all the cases that I've

25 dealt with as a doctor who treated patients or a doctor who served as an

Page 5362












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13 and English transcripts.













Page 5363

1 expert, I have registered statements that describe the event concerned in

2 more or less detail.

3 Q. Thank you. And my last question, my colleagues from the

4 Prosecution and I questioned you today here and you touched upon a

5 particular matter, but I would like to clarify it fully.

6 On the basis of what we said to you and on the basis of what you

7 had the right to read in accordance with the approval of the Trial

8 Chamber, can you draw a conclusion on the basis of the rules of your

9 profession that you would stand by, or do you require additional

10 questioning or additional measures, additional actions that would be

11 conducive to a diagnosis, to the establishment of the facts that you are

12 interested in?

13 A. Well, if you're asking me whether I understood what it said there,

14 even a layman would find that understandable. But if you're asking me as

15 an expert to make a diagnosis, never in my life did I make a diagnosis on

16 the basis of a statement that was conveyed to me through another person, a

17 second, third, or fourth person. I was never before a Court that would

18 accept that kind of expertise. The only acceptable expertise would be if

19 a psychiatrist had conducted immediate psychiatric exploration and an

20 interview of the person concerned.

21 I did have in my practice a case when an expert who had acted in

22 that way was then taken to court himself for having acted in bad

23 conscience.

24 MR. JOVANOVIC: [Interpretation] Your Honour, this was my last

25 question. The Defence has no further questions for Mr. Jovanovic, the

Page 5364

1 witness.

2 JUDGE MUMBA: Thank you. Thank you very much, Doctor, for giving

3 evidence to the Tribunal. You are now released. You may go.

4 THE WITNESS: [Interpretation] Thank you very much for your

5 confidence as well.

6 [The witness withdrew]

7 [The witness entered court]

8 JUDGE MUMBA: Good morning, Witness. Please make the solemn

9 declaration.

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

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


13 [Witness answered through interpreter]

14 JUDGE MUMBA: Thank you. Please be seated. Who is examining?

15 Mr. Prodanovic, please go ahead.

16 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour.

17 Examined by Mr. Prodanovic:

18 Q. Good morning, Professor. Could you please introduce yourself by

19 your full name and surname.

20 A. Good day. I am Professor Stanko Bejatovic from Belgrade,

21 Yugoslavia. I am a full professor at the law school of our university.

22 I'm a specialist in criminal law and sociology and I also deal in penology

23 and related matters.

24 Q. Could you please tell us what you've published?

25 A. Well, so far I've published about 80 papers, textbooks,

Page 5365

1 professional papers, monographs, et cetera; about 80.

2 Q. In addition to being a professor, are you a member of any other

3 institutions, either at home or abroad?

4 A. Yes. I am a member of all associations for criminal law and

5 penology in Yugoslavia. For the third year now I have been the

6 representative of the Yugoslav Association for Criminal Law and I'm also a

7 member of the international criminal law and also a board of directors for

8 this International Association of Criminal Law and I'm also a member of

9 the board of directors of this international association. Also, at the

10 same time, I work at the Institute for Criminological and Sociological

11 Research in Belgrade. I'm editor of one of the most eminent periodicals

12 in the territory of the former Yugoslavia, that is, the Yugoslav Review

13 for Penology and Criminal Law, and I was leader of a large number of

14 scientific research projects, both in the former Yugoslavia and the

15 present-day Yugoslavia, of course, having to do with criminal law.

16 Q. What about the problem of criminal sanctions law and its

17 application in practice? Has your interest focused on that too?

18 A. Oh, yes, indeed. It is criminal sanctions in the Yugoslav

19 criminal law that was the subject of my doctoral thesis. My doctoral

20 thesis had to do with suspended sentences and brief prison sentences.

21 JUDGE MUMBA: Counsel.

22 A. After that I have been working on a large number of scientific

23 research projects which are related to criminal sanctions precisely, both

24 in terms of their legislative aspect and the aspect of their practical

25 application. In addition to this, I would like to highlight yet another

Page 5366

1 fact, and that is that I'm a member of the Yugoslav Commission for the

2 Reform of Criminal Legislation, which means that I am in a small group of

3 experts that works on the reform of Yugoslav criminal legislation, and we

4 are about to end this project now.

5 MR. PRODANOVIC: [Interpretation]

6 Q. We do not want to establish before this Trial Chamber

7 incrimination of the act of rape according to the Yugoslav criminal

8 system; however, we would like to ask you to give us some information on

9 the incrimination of the criminal act of rape and its elements. So we are

10 referring to the territory of the former Yugoslavia.

11 A. With regard to the criminal act of rape in the territory of the

12 present-day Federal Republic of Yugoslavia, I would like to point out a

13 fact which I think is of particular significance at this point in time,

14 and that is that the criminal law protection of the act of rape, in the

15 way in which it was regulated in the present-day criminal law of the

16 Federal Republic of Yugoslavia, was regulated in the criminal legislation

17 of the former Socialist Federal Republic of Yugoslavia as well. Actually,

18 in the former Socialist Federal Republic of Yugoslavia, jurisdiction for

19 the regulation of individual criminal acts was vested in the republics.

20 That is to say that republics, within their own criminal laws, regulated

21 the criminal act of rape.

22 This mode of legal regulation of this particular criminal offence

23 has been retained in the present-day Federal Republic of Yugoslavia, which

24 means that the criminal offence of rape is regulated in the criminal laws

25 of the Republic of Serbia and the Republic of Montenegro as two separate

Page 5367

1 republics, both comprising the Federal Republic of Yugoslavia. However,

2 in spite of that, in spite of the fact that in the former Yugoslavia and

3 in the present-day Yugoslavia the criminal offence of rape was regulated

4 by special criminal laws, one can certainly say that it was regulated in

5 the same way, both in all the criminal laws of the former Yugoslavia and

6 in the criminal laws of the republics of the present-day Yugoslavia.

7 Truth to tell, there was only one difference, and that is the

8 following: In the criminal law of Slovenia, this crime could have -- and

9 as far as I know, it still can -- be carried out against one's own spouse,

10 which is not a possibility according to the other criminal legislations.

11 Furthermore, when speaking of the crime of rape, one must bear in

12 mind the following: As regards this particular matter, in the territory

13 of the Federal Republic of Yugoslavia, nothing has changed in relation to

14 the stipulations that existed in the former Socialist Federal Republic of

15 Yugoslavia. That is to say, all the characteristics of this particular

16 crime that I shall speak of briefly now are characteristics of this

17 particular crime in the criminal legislation of the present-day Yugoslavia

18 and of the former Yugoslavia respectively.

19 According to our criminal legislation, the crime of rape has been

20 placed in the group of crimes that constitute outrages against personal

21 dignity and morality. It consists in forced intercourse with a female

22 person with whom one does not live in matrimony. That is to say, carrying

23 out this criminal offence contains two parts, two inseparable parts, that

24 is, forced intercourse and the act of intercourse itself.

25 Forcing a person to have intercourse --

Page 5368

1 Q. I shall have to interrupt you, Professor. As regards the dignity

2 of citizens and the freedom to sexual intercourse, was it protected by the

3 former laws of the former Yugoslavia only through these particular

4 provisions?

5 A. No. As I said, the crime of rape was put into the group of crimes

6 that constitute outrages upon personal dignity and morality. However --

7 JUDGE MUMBA: Can you please lead the witness to what is relevant

8 to the Trial Chamber. We are not going to deal with definitions, how the

9 Yugoslav law views rape, because we have our own statute which we are

10 following here, and we would just like to be informed by the witness as to

11 perhaps sentencing tendencies, even that briefly, because we have got his

12 written dossier and all the laws that he has referred to and his CV, so

13 it's just briefly, really.

14 MR. PRODANOVIC: [Interpretation] Your Honour, that is quite clear

15 to me, but in our opinion, the witness cannot explain all the

16 circumstances that a court takes into account without knowing what the

17 characteristics of the crime of rape are. In our criminal legislation, if

18 an accused admits to having committed rape, according to Article 41, that

19 is considered to be a mitigating circumstance, only in a situation when

20 there is no other evidence that speak of his having done it. However, if

21 all the evidence shows that he did it -- well, we're just trying to

22 clarify certain situations, certain situations that the courts take into

23 account in sentencing. So we consider this relevant.

24 JUDGE HUNT: Surely, though, we do not need a ten-minute lecture

25 on what the law of rape is in Yugoslavia, and if you hadn't interrupted

Page 5369

1 the witness's evidence, I think you might have found somebody else would

2 have. Let's get on to what you say or what your witness says are the

3 relevant factors in sentencing.

4 MR. PRODANOVIC: [Interpretation] Very well, Your Honour.

5 Q. Tell us, Professor, please, are there several forms of the crime

6 of rape in the legislation of the former Yugoslavia?

7 A. Yes, the criminal legislation of the Federal Republic of

8 Yugoslavia recognises several forms. There is the basic form of this

9 crime, and there are also several special forms. These special forms are

10 related either to the ensuing consequence in terms of the execution of

11 this crime, or in view of the circumstances under which this particular

12 crime was committed.

13 In keeping with that, there are other graver forms of this

14 particular crime, first of all, if there was grave bodily injury due to

15 the rape. Another form is in the following case: If the rape was

16 committed by several persons. The following form would be if the rape is

17 carried out in a particularly cruel and humiliating way. Finally, a

18 special form exists in the following case: When the rape was committed

19 against a minor or if death occurred, if the minor died as a consequence

20 of the rape committed against the said person.

21 Depending on which special form of rape we are dealing with, the

22 legislation envisages various sentences, prison sentences, for this

23 particular crime.

24 Q. Professor, you said there were several forms of the crime of

25 rape. Can you tell us what penalties are envisaged for each of them?

Page 5370

1 A. Viewed from the aspect of legal sanctions envisaged, there is

2 naturally a differentiation among these forms of the crime and between the

3 crime of rape itself and its graver forms. For the basic form of the

4 crime of rape, the law envisages a prison sentence of one to ten years.

5 If it is in the first of the special forms of rape, the one

6 connected with grave bodily injury, the law envisages only a special

7 minimum prison sentence, and that is three years. That means that the

8 perpetrator can be given also the maximum general prison sentence, up to

9 15 years.

10 The same penalty was envisaged for the second and third serious

11 forms of rape, while for the case when rape was committed against a person

12 under 14 years of age, the special minimum sentence is higher, that is,

13 longer, that is five years.

14 Therefore, if we look at all the forms of this crime under the

15 Yugoslav criminal law, it is possible to pronounce a prison sentence from

16 one to 15 years.

17 Q. My next question, Professor, what guides the legislature in

18 applying the said envisaged penalties, the minimums and maximums?

19 A. The principal criterion of the legislature was the degree of

20 threat to society presented by such crimes. By this criterion, it is

21 perfectly natural that for the special forms of the crime of rape, the law

22 envisages a longer minimum prison sentence than for the basic form of

23 rape. However, in this connection, I would like to emphasise another

24 fact. The degree of threat to society presented by a particular crime is

25 the criterion which served as a basis for determining the framework of

Page 5371

1 penalties.

2 Bearing in mind the fact that in exceptional cases under the

3 Yugoslav criminal law, the gravest -- the most serious crimes which

4 present the greatest threat to society may entail a prison sentence beyond

5 the general maximum, which is 15 years, as well as the fact that precisely

6 for those most serious crimes -- and rape is not one of them -- we have in

7 our legislation the 20-year prison sentence. That means that under our

8 criminal law, the crime of rape, in terms of legal sanctions envisaged, is

9 not included in the category of the most serious, the gravest, the most

10 dangerous crimes, that is, those crimes for which, in exceptional cases,

11 the 20-year prison sentence can be pronounced.

12 Q. Please, could you tell us the percentage of rapes in the overall

13 number of crimes, both in the former Yugoslavia and the present-day

14 Yugoslavia.

15 A. I have this information. I said at the beginning that I worked on

16 several projects related to these issues, and it is precisely from those

17 projects that I derived my information. Let me say at the outset that in

18 terms of percentage of incidents of rape in the total number of all

19 crimes, there is little, if any, difference between the situation which

20 prevailed in the entire territory of the former Yugoslavia and the

21 situation in the present-day Yugoslavia, and this percentage varies

22 from .6 to .7 in the total incidents of crime, both from the viewpoint of

23 the accused, both in terms of the number of suspects and the number of

24 those convicted for this crime.

25 Let me give you just two examples from the former and the

Page 5372

1 present-day Yugoslavia. Thus, for instance, in Yugoslavia, in

2 1982 -- we are talking about a time when there was peace in the

3 country -- there was 158.722 persons accused of rape and 634 persons

4 convicted of rape, which is .6 per cent.

5 JUDGE MUMBA: Mr. Prodanovic, do we need -- the witness can only

6 describe a national incidence really, and the case of the Prosecution

7 before this Trial Chamber is, as seen, far removed from what the witness

8 is describing. Can you please lead him to what is relevant to the case

9 before the Trial Chamber.

10 MR. PRODANOVIC: [Interpretation] Your Honour, what you want from

11 me is perhaps contained in my next question. But my witness is trying to

12 show the social basis, because the legal sanction depended on the degree

13 of threat to society. But I will try to follow your instructions.

14 Q. Let us come back to the circumstances which served as a basis for

15 levying the sentence, Article 101 of the Rules of Procedure and Evidence.

16 Let us talk about the practice in the courts of the former Yugoslavia. Do

17 you have such data?

18 A. Yes, entirely. Bearing in mind the fact that we are talking about

19 a relatively small number of persons of age convicted for this crime, I

20 reviewed all judgements, all valid judgements which are related to this

21 crime. And having analysed those judgements, we come to the conclusion

22 that our courts, when pronouncing sentences for this particular crime,

23 took into account the following circumstances: First of all, the degree

24 of criminal responsibility, criminal liability, viewed as the degree of

25 competence, which is a very important factor for the legal characteristics

Page 5373












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13 and English transcripts.













Page 5374

1 of this crime; then, almost in all cases, the issue whether this crime was

2 premeditated or resulted from a combination of circumstances in which the

3 perpetrator and the victim found themselves, this issue was specially

4 analysed. Also our courts give special attention to the behaviour of the

5 victim, the woman, in the commission of this crime, which may manifest

6 itself in various ways and which is, in our opinion, particularly

7 interesting from the aspect of victimology. Similarly, special analysis

8 is made of the time and place where the crime was committed and the

9 motives underlying the crime.

10 JUDGE MUMBA: Mr. Prodanovic, this is not helping us at all. It's

11 not helpful to the case before the Trial Chamber at all.

12 MR. PRODANOVIC: [Interpretation] Your Honour, my question to the

13 expert referred to the circumstances relevant for sentencing in terms of

14 Article 101 of the Rules of Procedure and Evidence, and the witness is

15 saying -- is describing these circumstances. My next question is about

16 the policy of penalties, since our witness has reviewed many judgements

17 and many cases involving this particular crime.

18 Q. Since you have reviewed the judgements, please, can you tell us --

19 A. Before answering this question, I just want to say one thing which

20 is very important to me; namely, all that I have said and all this policy

21 of penalties which I am describing, and I am giving you official data, is

22 almost identical across the entire territory of the former Yugoslavia and

23 the present-day Yugoslavia. Viewed from the aspect of the policy of

24 penalties exercised by courts for this particular crime, the first thing

25 we can conclude is that, to a great degree, it diverges from the policy of

Page 5375

1 penalties of the legislator who envisaged legal sanctions for this crime.

2 More precisely, unlike the legislator, who, as we have seen, envisages the

3 possibility of pronouncing a prison sentence up to the general maximum,

4 the policy of courts is quite different. In 80 per cent of the cases, the

5 courts pronounced sentences up to three years.

6 For instance, if we take 1990, and the same data is valid for the

7 following period and the same data also applies to the former Yugoslavia,

8 then, for instance, out of the total number of 316 convicted persons for

9 this crime, in only two cases there was a prison sentence pronounced over

10 ten years.

11 In 18 cases, the prison sentence of five to ten years was

12 pronounced; and in 48 cases, perpetrators were punished with three to five

13 years in prison; and the highest percentage of perpetrators were sentenced

14 to six to 12 months in prison. That was in 75 per cent, in 75 per cent of

15 cases. The prison sentence was one to two years for 71 persons, and the

16 prison sentence of two to three years was pronounced to about 80 persons.

17 Three to six months in prison was the sentence in 59 cases, and in 11

18 cases there was a suspended sentence. I am talking about valid judgements

19 which took effect.

20 As I said, the policy of penalties which I have presented for 1990

21 with minimal divergencies, only by a couple of per cents, remains the

22 policy of penalties before and after this year. I have the records if you

23 are interested.

24 Q. Will you please tell us something about determining the degree of

25 guilt, of criminal responsibility, and the degree of guilt and competence.

Page 5376

1 A. According to the provisions of our criminal law, which is quite

2 natural, only a competent person can be criminally responsible, can be

3 prosecuted. In terms of guilt, this crime can be committed only with a

4 direct intention, and only in cases involving one of the graver forms of

5 this crime there may be lack of intent involved. However, in all

6 situations, in all cases, legislators devoted special attention to

7 determining premeditation in the commission of this crime.

8 THE INTERPRETER: Microphone, microphone.

9 MR. PRODANOVIC: [Interpretation] Sorry.

10 Q. Can you tell us how is it determined whether there was

11 premeditation or whether it was -- it happened by chance, so to speak, due

12 to the circumstances?

13 A. The latter case would have to be exceptional. In most cases, once

14 it has been determined that the commission of this crime was preplanned,

15 that was taken as an aggravating circumstance and considerably affected

16 the length of the prison sentence.

17 On the other hand, in all specific cases when it is determined

18 that the perpetration of the crime was not premeditated but, rather,

19 resulted from a combination of circumstances -- the time, place, alcohol

20 consumed -- then that was taken as a, mitigating circumstance; and thanks

21 to, under quotation marks, such an approach of the courts, the policy of

22 penalties exercised by courts resulted from such an analysis. Of course,

23 it is not the only factor which determined this policy, but it is

24 certainly one of the most important ones.

25 Q. What is the significance in determining this sentence, what

Page 5377

1 motivated the crime?

2 A. Our courts, and I have compared this practice to some other

3 practices, special attention is given to the motivation for committing

4 such an act. For instance, if the crime was committed, and this is the

5 case in most cases, due to biological reasons rather than some other

6 reasons, in such cases, this circumstance is taken into consideration.

7 In our legal practice, the highest percentage of perpetrators of

8 such crimes have committed such crimes because of the sexual drive which

9 occurred at a given time. This is supported by the fact that a majority

10 of perpetrators of these crimes are persons of the age -- ages between 20

11 and 30. However, there are cases, individual cases, when this type of

12 crime has been committed out of other motives, and in such cases, this is

13 considered as an aggravating circumstance, but there are very few such

14 cases.

15 Q. How did the courts of the former Yugoslavia and the present-day

16 Yugoslavia weigh in terms of the personal circumstances, and what is taken

17 into account as personal circumstances?

18 A. When speaking about our legislation, criminal legislation,

19 personal circumstances are always taken into consideration when

20 determining any crime, that is, in any sentencing.

21 In cases of this criminal act, our legislation takes into

22 consideration the following circumstances as mitigating ones: Family

23 circumstances, in other words, whether the defendant was married or not,

24 whether he had children or not, whether he is the sole provider for the

25 family; the health conditions in which he and his family live; his

Page 5378

1 employment or unemployment; his financial situation, education, social

2 status; and also his position in his employment. All these circumstances

3 are taken into account when determining this sentence for this particular

4 criminal act.

5 Q. To what extent do the courts take into account the previous

6 criminal record of the defendant?

7 A. The circumstances of his previous history, especially his previous

8 criminal record, is a circumstance that is always taken into consideration

9 in the case of every defendant when determining sentence. It is always

10 taken as an aggravating circumstance in the cases when such a person had a

11 previous criminal record, especially if the criminal record includes that

12 same criminal act. In such a case, in addition to the circumstance

13 itself, that is, his previous criminal record, and especially if he was

14 sentenced for the same criminal act or some other criminal act, that time

15 which had elapsed from the previous sentence or the sentence served for

16 that previous crime and the time in which the new criminal act, that is,

17 the new rape had occurred.

18 Q. On the basis of your research and the statistical data that you

19 have reviewed, can you give us your final finding on this criminal act?

20 A. I think that I have already in a way answered this question

21 previously. I had said that the penal policy or practice of our courts

22 differs from the policy of the legislator, and this is supported by the

23 fact that we have about 70 per cent of suspended sentences and sentences

24 of up to three years' imprisonment for this criminal act.

25 However, when analysing this issue, I believe we have to take into

Page 5379

1 account another fact, which is that those of us who are involved in

2 researching this issue have reached the conclusion that this sentencing

3 practice of our courts is adequate or commensurate to the circumstances of

4 commission of such crimes in most cases. And taking into account this

5 fact, a number of professionals in this field in Yugoslavia has suggested

6 that the special maximum sentences for this crime be lowered. And as I

7 mentioned, we have a reform of criminal law under way in Yugoslavia.

8 However, taking into account the significant social threat that

9 this criminal act contains, we have refrained from changing anything in

10 relation to that issue. And if you have further interest in this topic, I

11 can provide more details. We have a legal conference in September coming

12 up, and the proceedings of that have already been published.

13 Q. I have one more question for you. You said that there could be a

14 more moderate law introduced.

15 A. I think this is a wider question. It doesn't only concern the

16 current Yugoslavia. There is a general rule in all the legislations of

17 the former Yugoslavia and current Yugoslavia that the law which was in

18 force at the time of the commission of the crime should be the law that is

19 taken into consideration. However, if there are changes in -- if there

20 have been changes in the legislation, I think that the law should be

21 applied which gives lower sentences.

22 And with your permission, Your Honours, as a person who has been

23 involved in international criminal law and as a member of a number of

24 associations, I would like to say one thing, that as a person who is

25 involved in the criminal law, I cannot accept the fact that this Tribunal

Page 5380

1 has not set out provisions for this crime. I was in Germany for three

2 months recently, I talked to a number of experts in the field, and as a

3 group which is very concerned about international law, we find this

4 incomprehensible.

5 MR. PRODANOVIC: [Interpretation] Your Honours, we would like to

6 tender the expert opinion of this expert and also all the sentences which

7 the expert has reviewed and which form the basis for his opinion presented

8 here today. These sentences were marked as D128 and they were tendered as

9 a binder, and they were exhibited as D128.

10 [Trial Chamber confers]

11 JUDGE MUMBA: Can we just be clear: Were they admitted into

12 evidence or were they just marked for identification?

13 THE REGISTRAR: [Interpretation] No. So far these documents have

14 only been marked for identification purposes.

15 [Trial Chamber confers]

16 JUDGE MUMBA: Yes. That's all?

17 MR. PRODANOVIC: [Interpretation] Yes, Your Honour.

18 JUDGE MUMBA: The Prosecution.

19 MS. UERTZ-RETZLAFF: I would like to have one clarification. I

20 have no objections against this expertise coming into evidence; I only

21 would like to have a clarification in relation to the decisions. All

22 these decisions -- it's about some 20 -- were they actually reviewed by

23 the professor and chosen by the professor? That is what I was -- I have

24 my doubts.

25 MR. PRODANOVIC: [Interpretation] Your Honours, I have already

Page 5381

1 stated this, that the professor had access to all the sentences, including

2 some sentences from the Foca court, from which you can glean this

3 sentencing practice.

4 JUDGE HUNT: The point is not whether you said it, but whether the

5 witness says it. We have to have it in evidence that the witness has

6 actually selected those. You can't give the evidence for him.

7 MR. PRODANOVIC: [Interpretation] No, Your Honour. Our

8 investigator has collected all these sentences, and then they were

9 submitted to the professor, who reviewed them.

10 JUDGE HUNT: Well, has he given evidence that he reviewed these

11 particular sentences? My understanding of his evidence was he said he had

12 looked at a number of judgements. He didn't identify that they were

13 these. That's the only point that the Prosecution is taking. It's very

14 simple for you to sort that out with the witness.

15 MR. PRODANOVIC: [Interpretation] Please ask -- put this question

16 to the expert.

17 Q. Have you reviewed all the sentences?

18 A. I have already answered that question. I not only reviewed all

19 the sentences, but given the number of them, I analysed all of them, and

20 there are not that many. There are about 130 sentences a year. And based

21 on the full analysis of all these sentences, I did not select them, but I

22 reviewed them, and I also reviewed all the sentences going back to 1980,

23 all the sentences relating to this particular crime.

24 JUDGE MUMBA: Thank you for the clarification.

25 Can we have the numbers, please, from the registrar.

Page 5382

1 THE REGISTRAR: [Interpretation] These sentences will retain the

2 number D128, Defence Exhibit D128.

3 JUDGE MUMBA: And then the expert opinion itself?

4 THE REGISTRAR: [Interpretation] The expert opinion will be marked

5 D147, Defence Exhibit D147.

6 JUDGE MUMBA: Thank you.

7 MR. PRODANOVIC: [Interpretation] And finally, with your

8 permission, Your Honour, we received from our learned friends two

9 sentences: that is, one a judgement of a cantonal court in Sarajevo, which

10 was reconfirmed by the Supreme Court, referring to the crime of genocide;

11 and the second document is the sentencing practice of the former

12 Yugoslavia, which have been adopted by Bosnia and Herzegovina. As far as

13 the first document is concerned, we have learned that our learned friends

14 want to put this document to the witness, and I am just wondering whether

15 our expert needs some time to review the documents, perhaps to use the

16 break to review it.

17 JUDGE MUMBA: Yes. The Prosecution?

18 MS. UERTZ-RETZLAFF: Your Honour, just to explain: We received

19 only last week, we received a big submission from the cantonal Prosecutor

20 in Sarajevo explaining his view on sentencing and adding decisions to it

21 about rape cases, and we provided it only this morning to the Defence,

22 just to have the professor have a look at it, because I would like to

23 discuss a few matters from this letter of the Prosecutor with him. But he

24 would actually have to have, let's say, half an hour to look at it. The

25 problem, a special problem is the letter from the Prosecutor in Sarajevo

Page 5383

1 is in B/C/S language, so it's not a problem for him to view, but the

2 decision on a case that is included in this letter is in the English

3 language. We received it in a translated format and not the B/C/S

4 decision, so I hope that the professor can read the English document.

5 It's about a case that is from 1993.

6 JUDGE MUMBA: I think we -- you wanted to say something,

7 Mr. Prodanovic?

8 MR. PRODANOVIC: [Interpretation] Yes, Your Honour. So far as I'm

9 aware of this sentence on genocide, I don't know how relevant it is. This

10 can be verified, but I think that the high representatives in Bosnia has

11 nullified this sentence. I don't think that this sentence is in force.

12 After Dayton, the death penalty has been abolished, and so far as I can

13 see, a death sentence was passed in this sentence. But this is only based

14 on what Madam Lopicic was able to quickly translate for me, so I don't

15 know how relevant this document is.

16 JUDGE MUMBA: The case is a case of genocide?

17 MR. PRODANOVIC: [Interpretation] So far as I can see, but this is

18 through very quickly reviewing this. I think it's on genocide, isn't it?

19 MS. UERTZ-RETZLAFF: It's partly a genocide case, but partly also

20 crimes against humanity. According to the former Yugoslav law, there is a

21 provision in there, the Article 142, that I would like to discuss with the

22 professor, and that is the purpose for -- as shown here this particular

23 case. I'm quite sure that the professor knows this -- is aware of the

24 case because it is quite a famous case.

25 And in relation to the death penalty, what happened afterwards is

Page 5384

1 that, of course, the death penalty was abolished, and it was transferred

2 into 20 years' imprisonment. And then there was, of course, a kind of

3 legal exchange about could it be 20 years or could it be more than 20

4 years, what the Bosnia Prosecutor actually wanted at that time.

5 But this decision is valid, only that the death penalty was later

6 changed into 20 years. But I won't actually go into much details, I only

7 wanted to discuss the case as a possibility, as a possibility of

8 sentencing at that time.

9 JUDGE MUMBA: Any comments? You have understood what the

10 Prosecution have said?

11 MR. PRODANOVIC: [Interpretation] Your Honour, the Defence, the

12 Defence position is that at this point, this sentence has no relevance

13 because it cannot be applied to this case which we're dealing with today.

14 [Trial Chamber confers]

15 JUDGE MUMBA: The Trial Chamber is of the view that the different

16 standpoints of the Prosecution and the Defence as to whether or not that

17 decision is still standing or whether or not it is just the death penalty

18 that was quashed for 20 years and all that, that should be discussed

19 during lunch hour and verified if the Prosecution is going to

20 cross-examine the expert witness on it.

21 As for the other documents, we have already admitted them into

22 evidence, and the Prosecution can go ahead. But we would like the parties

23 to discuss this so that the Trial Chamber is given correct information.

24 We shall adjourn and continue our proceedings this afternoon at

25 14.30 hours. The witness will continue this afternoon.

Page 5385

1 --- Luncheon recess taken at 1.00 p.m.

























Page 5386

1 --- On resuming at 2.35 p.m.

2 JUDGE MUMBA: I think we are ready for cross-examination by the

3 Prosecution.

4 MS. UERTZ-RETZLAFF: Thank you, Your Honour.

5 Cross-examined by Ms. Uertz-Retzlaff:

6 Q. Professor, you explained to us the rape provisions and the range

7 of sentencings and you also told us that the law was actually the same

8 throughout the former Yugoslavia.

9 A. Yes, but I said that this was relevant in the Federal Republic of

10 Yugoslavia, and nowadays the Republic of Montenegro and the Republic of

11 Serbia, because the subject matter of rape is regulated by two separate

12 criminal laws but in the same way. There is no difference whatsoever

13 between the laws of the Republic of Montenegro and the law of the Republic

14 of Serbia with regard to the crime of rape.

15 However, I also said that the way in which the crime of rape is

16 regulated in the territory of the present-day Federal Republic of

17 Yugoslavia was regulated in the same way, or rather in the territory of

18 the former Yugoslavia. The only exception is Slovenia. The passive

19 subject could have been the spouse, the wife, and all the rest is the

20 same. Actually, in the territory of Yugoslavia, the criminal law is the

21 same, as far as this particular stipulation is concerned, as in the former

22 Yugoslavia, with regard to the crime of rape, that is.

23 Q. Yes, Professor, but it's not necessary that you repeat everything

24 you said this morning. I only want to draw your attention to one

25 difference that I found when I compared chapter -- Article 88 of the

Page 5387

1 Criminal Code of the Socialist Federal Republic of Yugoslavia and when I

2 compared it with Article 221 of the Criminal Code of the Federal Republic

3 of Bosnia-Herzegovina. Comparing the two articles, they are basically the

4 same basic rape description. There is also the qualifications that you

5 have mentioned. But in paragraph 3 there is another qualification that

6 says: "Sentence from paragraph 2," that is, the qualified forms, "of this

7 article shall be pronounced to whoever commits the act described in

8 paragraph 1, the basic rape, of this article, because of differences in

9 national or ethnic origin, race, religion, sex, or language."

10 Does this qualified form exist in Yugoslavia nowadays or did it

11 exist in the other republics before the war?

12 A. No. In the present-day Criminal Code of Serbia and Montenegro,

13 there is no qualification of this kind. Perhaps in the 1980s there was an

14 attempt to give some thought about this graver qualification, but it was

15 not accepted, so the criminal legislation of Yugoslavia does not envisage

16 this as a circumstance of qualification.

17 Q. However, an ethically based motive would be considered an

18 aggravating factor, wouldn't it, when it comes to sentencing?

19 A. Certainly. If these motives were to be established, that is, for

20 these motives that the crime was committed, if this were to be proven,

21 that is, that those were the motives with which this was committed.

22 Q. Professor, besides the rape provisions you have explained to us,

23 rape could also be charged under Article 142 as a war crime, crimes

24 against civilian population; right?

25 A. No. I did not say that. I only said that within that crime,

Page 5388

1 there can be elements of rape as well, within that crime, that is, a war

2 crime against the civilian population. So part of this crime can be

3 elements of rape, but with a completely different motive, a completely

4 different motive. In the case of this crime, rape is carried out in order

5 to make extinct a group of the population, and that is the difference

6 between the two.

7 Q. But a rape can be charged under Article 142 when all these

8 additional elements are added to the situation; right?

9 A. If it were to be proven that these additional elements existed.

10 Q. And the range of punishment at that time wasn't less than five

11 years up to the death penalty; right?

12 A. What crime are you referring to? Genocide?

13 Q. Article 142, that is, war crimes against civilian population. It

14 says here, at least in my text, it says for not less than five years or by

15 the death penalty.

16 A. Yes, but later on it was changed, and the death penalty was

17 replaced by a 20-year sentence of imprisonment.

18 Q. Yes. And in this particular case we are dealing with here in this

19 courtroom, we are talking about war crimes. You are aware of this, aren't

20 you?

21 A. No. I was told that it was the crime of rape that is being

22 considered here. That is what I was told. Not war crimes. I have been

23 informed that this is a classical crime of rape, that that is what the

24 indictment says. And the crime of rape is something quite different from

25 Article 142 of the Criminal Code of Yugoslavia, although that crime may

Page 5389












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13 and English transcripts.













Page 5390

1 contain elements of rape, but the motives are quite different.

2 Q. So you --

3 A. That is why a 20-year prison sentence was envisaged at a maximum,

4 whereas for rape, the maximum is a 15-year sentence in prison.

5 Q. So you did not research the provision of 142 and also not the

6 sentencing practice in Yugoslavia regarding this provision, right?

7 A. There have been no such cases in the territory of Yugoslavia, so

8 we could not have explored that at all. I personally think that there are

9 no such cases.

10 Q. Professor, you have listed to us some mitigating or aggravating

11 factors that are usually put into consideration when determining the guilt

12 of an accused, and you have also given a list in your written expertise.

13 I think we can agree that the punishment should fit the offender

14 and the particular circumstances of a crime, right?

15 A. No doubt about that.

16 Q. And not every offence of a similar nature called for an identical

17 punishment without individualising the case, right?

18 A. You are quite right; however, that is why I mentioned cases when

19 different punishment was meted out. There are only two or three cases

20 where the maximum sentence was given. So our court practices corroborate

21 what you've been saying just now; however, at the same time it also shows

22 that in this total number of criminal offences, most of the crimes

23 involved, involved lower sentences regarding the circumstances under which

24 the mentioned crimes were committed.

25 Q. Beside the mitigating and aggravating factors you have already

Page 5391

1 listed and told us, would it be an aggravating factor if the crime was

2 committed against a particularly vulnerable person, for instance, detained

3 persons?

4 A. If that were to be established, that would certainly be an

5 aggravating circumstance.

6 Q. And would it be an aggravating circumstance if the crime was

7 committed against a very weak person, physically weak person?

8 A. Well, you see, that is estimated in each and every particular

9 case. If it were to be proven that the person concerned, because of his

10 or her physical capacities, was not in a position to offer any resistance

11 and did not offer any resistance, then that is taken into account.

12 However, in view of his or her physical constitution, if he or she was in

13 a position to offer resistance, then that would also be taken into

14 account.

15 At any rate, according to our criminal legislation and according

16 to our court practice, that is also taken into account, whether the victim

17 did offer resistance or whether he or she could offer resistance. If a

18 victim for physical reasons could not offer resistance for various

19 reasons, then it is different.

20 Q. You have pointed out to us that crime against a minor is

21 particularly sentenced with a specific sentencing range. What about a

22 crime, a rape -- a crime of rape committed against a very young person,

23 let's say 15- or 16-year-old person? Would that be an aggravating factor

24 to rape a girl which is not a child any more?

25 A. The rape of a girl of up to the age of 14 is a qualification which

Page 5392

1 does envisage punishment in terms of a prison sentence from five to 15

2 years. In a specific case, if the girl is younger, if she is ten years

3 old, then that is certainly a circumstance that would definitely be taken

4 into account as far as sentencing is concerned. However, rape of a girl

5 up to the age of 14 is a circumstance which in its own right involves a

6 higher sentence.

7 Q. Yes, that's understood. But what about raping a girl of 15, would

8 it be an aggravating factor that the girl is only 15?

9 A. No. Let me tell you, according to our criminal legislation, there

10 is a distinction between 14 and 18, and then above 18 and younger than

11 14. If one rapes a child as it is put in our legislation, up to the age

12 of 14, this is a special qualification, and there is a different minimum

13 imprisonment sentence. And if a young girl of 18 is raped, that is a

14 different circumstance, and then yet it is a completely different

15 situation if the rape is committed over a girl who is above the age of

16 18. So there is a distinction between these three different categories,

17 categories according to our law.

18 Q. But what would it -- what result would it have on sentencing if

19 the girl is 15, 16, 17 as compared to 18, 19?

20 A. Certainly that would be an aggravating circumstance.

21 Q. The behaviour of the offender after the crime, especially during

22 trial, during trial, would also be a point of consideration during

23 sentencing, right?

24 A. Yes.

25 Q. A confession would be mitigating?

Page 5393

1 A. Well, it depends on the conditions under which the confession was

2 made and when.

3 Q. And intimidating of a witness in the courtroom would be an

4 aggravating factor, wouldn't it?

5 A. Certainly.

6 Q. You explained to us the court practice of sentencing throughout

7 the entire former Yugoslavia, and you gave us also some interesting

8 statistical figures as regards to that. However, looking through the

9 decisions attached to your report that you, as you said, did not select

10 but you reviewed, I cannot see such representation, and especially I do

11 not see any representation of your statistical figures.

12 A. I said that I do have statistical figures here for a few years,

13 and I can give those to you. And these are official data, there's no

14 doubt about that. We can have that photocopied and tendered.

15 Q. But the some 20 decisions attached to your report, they basically

16 represent mostly single rape cases, often only attempted rape cases, with

17 very low sentences. Isn't that right?

18 A. Well, I said a few minutes ago if we were to look at the overall

19 figures for that particular form of crime, sentences are low. Over 70 per

20 cent of the sentences pronounced are less than three years.

21 Q. Professor, during the break you had possibility to read the letter

22 of the Cantonal prosecutor's office in Sarajevo.

23 MS. UERTZ-RETZLAFF: I would like to have this document marked for

24 identification because I want to address certain matters with the witness.

25 JUDGE MUMBA: Yes. Madam Registrar, can we have a number, please.

Page 5394

1 THE REGISTRAR: [Interpretation] This document will be marked

2 Prosecution Exhibit 238, two, three, eight.

3 JUDGE MUMBA: It's just marked for identification, it's not an

4 exhibit. Yes.


6 Q. Professor, did you have time to read the letter?

7 A. No, no. Only the three sentences were read to me, nothing else.

8 No, this was not given to me at all. I never had this in my hands.

9 Q. I'm sorry, because I gave it to the Defence counsel, and it's also

10 in B/C/S language, so I thought you have read it.

11 A. I did not receive it at all.

12 Q. But can we have the B/C/S version -- would you please have a look

13 at the B/C/S version. It's the last pages.

14 A. You know what? I can see the version now, but this is a rather

15 voluminous piece, and to read it in a few minutes only and to give my

16 comments on it, I'm not sure that this would exactly be expedient.

17 Q. First of all, you would not have to read the entire document

18 because it's a legal expertise, and I do not want to discuss the expertise

19 with you.

20 Would you please have a look at page 8 of the B/C/S text. Page 8

21 is simply a list of decisions that the prosecutor in Sarajevo listed, and

22 I would like to ask you, do you have this page?

23 A. Yes.

24 Q. We have here mentioned on this page decision by the District Court

25 in Sarajevo of 17th April 1979, sentencing Danijel Markovic to eight years

Page 5395

1 in prison for the crime of rape. Are you familiar with this decision?

2 A. Well, you know what? I cannot specifically remember this

3 decision. I had all the decisions in my hands, but I cannot specifically

4 remember this particular one.

5 Q. But there were decisions where a person was, was convicted for

6 rape and received a sentence of eight years, and when you look in the next

7 chapter, it's nine years and so on. You saw such decisions, didn't you?

8 A. Yes. I said that there were such decisions. There were also some

9 decisions with over ten years.

10 MS. UERTZ-RETZLAFF: I would like to enter this into evidence if

11 the Defence does not object to it. It's only the purpose to show in

12 addition to these decisions that the Defence handed over, just to show

13 some other decisions with high sentences.

14 JUDGE MUMBA: The Defence?

15 MR. PRODANOVIC: [Interpretation] Your Honour, we would not object

16 if we had the decisions concerned. The decisions are only marked here by

17 dates and numbers, but I don't know whether we have the decisions

18 themselves.

19 MS. UERTZ-RETZLAFF: Your Honour, this is also a problem that

20 arose because we received this document so late. We have the decisions.

21 The decisions were attached to the document, but they are not translated

22 yet, so maybe we could enter them into evidence on a later stage --


24 MS. UERTZ-RETZLAFF: -- when the translation is done.

25 [Trial Chamber confers]

Page 5396

1 JUDGE MUMBA: Yes, we are of the view that the B/C/S copies which

2 the Prosecution have, you can photocopy and give them to the Defence.


4 JUDGE MUMBA: And then we can have them translated into English

5 for our use later; otherwise, we can have this admitted into evidence.

6 I'm sorry?

7 MR. PRODANOVIC: [Interpretation] May it please the Court, in

8 Article 101 -- in Rule 101, rather, of the Rules of Procedure and

9 Evidence, it says that the sentencing practices in the courts of the

10 former Yugoslavia; however, here we say decisions from 1993, 1998, 1999.

11 I don't know whether this is included under Rule 101. That is not the

12 former Yugoslavia. That is the Federation of Bosnia-Herzegovina now. If

13 I interpret it correctly, I think that these decisions that were passed

14 after 1992, after the state of war started, cannot be included as

15 decisions that would be relevant to sentencing policies.

16 [Trial Chamber confers]

17 JUDGE MUMBA: Madam Prosecutor, here we have a list. It's a mixed

18 list, actually. Some decisions are before the war.

19 MS. UERTZ-RETZLAFF: Yes. The decisions I'm talking about, they

20 are actually before the war.

21 JUDGE MUMBA: Which ones in particular? Can you just list them?

22 MS. UERTZ-RETZLAFF: Decisions from 17th April 1979; then the next

23 decision, 15 May 1980; 30 January 1981; 22nd September 1980; 26th January

24 1979; and the 15th June 1979.

25 JUDGE MUMBA: So these are the only cases you are referring to.

Page 5397

1 There are about six.

2 MS. UERTZ-RETZLAFF: Yes. These are the cases I'm referring to,

3 and the only reason why I actually brought it up is because the professor

4 said that he reviewed actually all decisions and he would know them if he

5 sees them. So what I could do is I could show it to the professor now, if

6 it would help, but if the Defence would not object and we could do it.

7 JUDGE MUMBA: But the objection is noted down. Mr. Prodanovic,

8 she has specified which cases.

9 MR. PRODANOVIC: [Interpretation] No, Your Honour. Decisions

10 pertaining to the pre-war period, all right; we don't object to those.

11 However, there are some decisions here from 1993, 1999 in this list that

12 we received.

13 JUDGE MUMBA: Yes. You can disregard them. The

14 Prosecution -- they happen to be in one document, but the Prosecution has

15 specified which cases they are relying on.

16 MR. PRODANOVIC: [Interpretation] Very well.

17 [Trial Chamber confers]

18 JUDGE MUMBA: Fine. Can we have the number, please.

19 THE REGISTRAR: [Interpretation] This document is marked 238,

20 Prosecution Exhibit 238.


22 Q. Professor, you also received three decisions related to the

23 Borislav Herak and Sretko Damjanovic case, and they were in the English

24 language. Did you have time to read or have them translated to you?

25 A. I had a look at them very briefly, but there's just one more thing

Page 5398

1 I wish to add in relation to what you said to me. I have information

2 concerning the former Yugoslavia according to different republics, how

3 many sentences there were in the former Yugoslavia and different

4 republics. In Bosnia-Herzegovina, the number is much higher than the one

5 mentioned here. I don't think it's a good thing to take out cases only

6 with longer sentences that were imposed, because this gives a false

7 picture. All these other offences should be taken into account as well in

8 lower sentences. We can find these figures for that particular republic

9 as well as for the territory of all other republics. It is only on the

10 basis of such an analysis can one get the right picture, not only single

11 out a few decisions, regardless of whether they are from Serbia,

12 Montenegro, Bosnia-Herzegovina, any republic. I don't think that's right.

13 Q. Professor, you are right, but we received about 20-odd decisions

14 from the Defence with very, very low sentences, and it's just to show that

15 other sentences exist as well. I mean, that's the only purpose. We are

16 not discussing -- we are not disputing your statistics you gave us. We

17 are well aware that there are very rare cases where it's high sentences

18 and a huge amount of cases with low sentences. There's no doubt about

19 this.

20 A. Yes, but please, I did not draw a single conclusion only on the

21 basis of the decisions that were given to me by the Defence. I drew all

22 my conclusions on the basis of an analysis of all cases, and that is a

23 major difference.

24 Q. Professor, nevertheless, let's move to the next issue. I just

25 asked you if you -- I just started talking about the Borislav Herak and

Page 5399












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13 and English transcripts.













Page 5400

1 Sretko Damjanovic case and that you had time to screen these decisions

2 with an interpreter, did you?

3 A. Very briefly. Just the verbal.

4 Q. Are you aware of the case as such? Did you hear of it?

5 A. Of course, from the media.

6 Q. And can you tell us what it was about?

7 A. I think it would have been better if I could read it first, not

8 only make a judgement based on what the papers wrote and what I heard from

9 the television, because we lawyers cannot comment on cases based on news

10 reports.

11 MS. UERTZ-RETZLAFF: Your Honours, I would like to enter the three

12 judgements dealing with this particular case as another piece of evidence

13 dealing with sentences; however, it's a case which was decided in 1993.

14 JUDGE MUMBA: Where?

15 MS. UERTZ-RETZLAFF: In Sarajevo.

16 JUDGE MUMBA: Can we be clear? Is it one case or is it three

17 cases?

18 MS. UERTZ-RETZLAFF: It's one case. It's actually one case.

19 Q. Professor, you have seen the judgement of the district military

20 court in Sarajevo from the 12th March 1993?

21 A. Yes.

22 Q. And in this case --

23 A. Yes, briefly.

24 Q. In this case, both offenders, that is, Borislav Herak and Sretko

25 Damjanovic, and a third person, which we can just here for a moment let

Page 5401

1 aside, were sentenced to death for crimes of genocide, Article 141, and

2 war crimes against civilians, Article 143. And according to the decision,

3 these offenders, between May and November 1992, as members of the VRS, had

4 committed various crimes against Muslim civilians, among them, rapes of

5 several women in two different detention places; right?

6 A. I've read only those judgements. I had no time to read anything

7 else.

8 [Trial Chamber confers]

9 MS. UERTZ-RETZLAFF: Your Honour, this is actually the contents of

10 the case. These offenders were sentenced to a death penalty. This

11 judgement was then, in a later decision of the Supreme Court of Bosnia and

12 Herzegovina, upheld, and later on it was changed into an imprisonment

13 sentence. That is what the case is all about, and I would like to enter

14 this into evidence just as an additional case.

15 [Trial Chamber confers]

16 JUDGE MUMBA: Yes. Mr. Prodanovic, you wanted to say something?

17 MR. PRODANOVIC: [Interpretation] Your Honours, we object to

18 introducing this verdict as evidence. I know that on several occasions

19 the district court in Sarajevo presented documents to The Hague Tribunal

20 concerning war crimes, alleged war crimes. I know personally about one

21 case that the Tribunal in The Hague returned to the Court in Sarajevo the

22 document, giving a signal that it is not a war crime and that it is not

23 prepared to consider it as a war crime. The International Community

24 discussed this. I can tell you the name of the accused. I don't see what

25 relevance this verdict has for our case.

Page 5402

1 JUDGE HUNT: What is the basis of your objection, that this

2 particular case was not a war crime, or because in some other case this

3 Court decided it wasn't, there wasn't a war crime involved and returned

4 some papers, that these papers should be returned also? I'm not clear in

5 my own mind what is the basis of your objection.

6 MR. PRODANOVIC: [Interpretation] Your Honour, looking at the Rule

7 101, which says that in the course of sentencing, the Tribunal will take

8 into account sentencing practices in the former Yugoslavia. This verdict

9 is from 1993. I don't see the point of taking it into account.

10 JUDGE HUNT: Well, then why did you tell us all about this other

11 case that you said that we returned it, something saying it wasn't a war

12 crime? Your argument is that this is not something relating to a sentence

13 imposed in the former Yugoslavia because by the time it was imposed, the

14 former Yugoslavia had already disintegrated. Is that what you're saying?

15 That can be answered "yes" or "no," I think.

16 MR. PRODANOVIC: [Interpretation] Yes.

17 JUDGE HUNT: Yes. Thank you.

18 MS. UERTZ-RETZLAFF: Your Honour, let me also just add to this, I

19 mean what we received from Defence counsel also its decisions from 1993,

20 1992, and more recent ones, so you did it also.

21 JUDGE MUMBA: It will be rejected, madam Prosecutor. It doesn't

22 mean if the other party, you know, does something wrong, the Prosecutor or

23 the other party should --

24 JUDGE HUNT: You hadn't objected, you see. If you had objected,

25 we would have rejected it. And you can't get your stuff in because you've

Page 5403

1 allowed them to put in irrelevant material.

2 MS. UERTZ-RETZLAFF: Yes, but we have a different point of view on

3 this.

4 JUDGE MUMBA: In any case, the Trial Chamber will not give any

5 regard to anything that is not valid, actually, that goes contrary to the

6 Rules of Procedure and Evidence or even the Statute or even international

7 law. You know that.

8 MS. UERTZ-RETZLAFF: Yes, but we only read the Article 101

9 differently.

10 JUDGE HUNT: How do you interpret the words "former Yugoslavia,"

11 then?

12 MS. UERTZ-RETZLAFF: We thought the territory was meant, the

13 territory of the former Yugoslavia and not the government or the political

14 entity former Yugoslavia. We thought it's the territory.

15 JUDGE HUNT: Let's have a look at the Statute.

16 [Trial Chamber confers]

17 JUDGE HUNT: Can you tell me this: Do you have the statute with

18 you?

19 MS. UERTZ-RETZLAFF: Yes, Your Honour, we have it now.

20 JUDGE HUNT: In Article 24, paragraph 1, "Trial Chamber shall have

21 recourse to the general practice regarding prison sentences," and these

22 are the important words, "in the courts of the former Yugoslavia." Not of

23 courts in the territory of what is still the territory of the former

24 Yugoslavia, it has to be the courts of the former Yugoslavia.

25 Now, this 1993 case was imposed by a court which is not a court of

Page 5404

1 the former Yugoslavia. It's a court which operates in the territory of

2 the former Yugoslavia. Surely Article 24 is the guiding principle, not

3 what the rules says, which is at best, in your favour, equivocal.

4 MS. UERTZ-RETZLAFF: Yes, thank you, Your Honour.

5 JUDGE MUMBA: Therefore we shall not have this particular

6 judgement admitted into evidence. Please proceed.


8 Q. Professor, I just have two more questions related to general

9 aggravating or mitigating factors in regard of sentencing. Raping of

10 multiple victims, would that be considered an aggravating factor?

11 A. Certainly rape of multiple victims would be an aggravating

12 circumstance, but we would have to take into account another fact, and

13 that is that under the Yugoslav criminal law and under all other criminal

14 laws, we can never make decisions based on only one circumstance alone.

15 We have to take into account the complex of circumstances, both mitigating

16 and aggravating.

17 Looking at it in isolation, rape of multiple victims is certainly

18 aggravating, but it has to be viewed in combination with the entire

19 context.

20 Q. We agree on this, that's my point.

21 And the last question is, possession or the use of weapons like

22 rifles or pistols during the rape, would that be considered an aggravating

23 factor?

24 A. Certainly if it were to be proved. If it were proved that that

25 was one of the ways of pressuring the victim into submission, then it

Page 5405












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13 and English transcripts.













Page 5406

1 would be an aggravating circumstance if the rifle or the pistol were used

2 as instruments of threat of submission.

3 MS. UERTZ-RETZLAFF: I have no further questions.

4 JUDGE MUMBA: Any re-examination?

5 MR. PRODANOVIC: [Interpretation] Your Honour, if you allow me only

6 two more questions.

7 JUDGE MUMBA: Yes, please go ahead.

8 Re-examined by Mr. Prodanovic:

9 Q. [Interpretation] Please tell us from the viewpoint of criminal law

10 of the former Yugoslavia, comment on these two examples. The first, we

11 have a situation where the accused had intercourse with a victim for over

12 a period of time. The victim offers no resistance whatsoever. She almost

13 voluntarily accepts intercourse.

14 Can we take it that the accused understands her behaviour as tacit

15 consent, and how would that be interpreted, how would that be viewed by a

16 court in the former Yugoslavia?

17 So we have a sexual relationship over a period of time with the

18 victim offering no resistance, no apparent resistance. Would that, in the

19 eyes of the accused, be tantamount to tacit consent?

20 A. Yes, of course, because one of the characteristics of the crime of

21 rape under the Yugoslav criminal law is that this crime can be committed

22 only with premeditation. That means that the perpetrator of the crime

23 must be aware, must be convinced, that the victim does not consent to it,

24 even tacitly, to intercourse.

25 The case -- there is a case of rape only in the event that the

Page 5407

1 perpetrator sees no consent in the victim, and that the victim, within the

2 limits of her own physical and other abilities, resists intercourse. If

3 there is negligence involved, negligence on the part of the perpetrator,

4 then according to our criminal law, and this particular provision applied

5 throughout the former Yugoslavia, then there is no case for rape.

6 Q. My last question, the victim actively stimulates the accused and

7 states that without that, she isn't certain that intercourse would have

8 taken place, and the victim claims she did that because she was told --

9 convinced to do so by a third person. How would the Yugoslav criminal law

10 of the former Yugoslavia view this situation?

11 A. According to the court practices in the former Yugoslavia, in

12 order for the crime of rape to exist, in order for a case to exist, the

13 perpetrator, before committing the crime, must be aware that a third

14 person exerted such pressure on the victim, and that it is only because of

15 that pressure that the victim is having intercourse with the perpetrator.

16 If the perpetrator is not aware of such pressure from the outside, then

17 there is no case for rape.

18 Q. My colleagues advised me to add this question.

19 When we're talking about threat, does the threat have to be

20 established, or is it determined only on the basis of somebody's opinion?

21 For instance, if the victim claims that she was threatened, does that need

22 to be established?

23 A. Threat or coercion is an indispensable element of rape, of the

24 crime of rape, and in each individual case it must be proved.

25 Q. Thank you, Professor.

Page 5408

1 MR. PRODANOVIC: [Interpreted] I have no more questions.

2 JUDGE MUMBA: Thank you very much, Professor, for giving evidence

3 to the Tribunal. You are now free. You may leave the Court.

4 Oh, Mr. Jovanovic, you wanted to ask?

5 MR. JOVANOVIC: [Interpretation] Your Honours, I apologise for this

6 interjection. I was not in a position to consult my colleague

7 Mr. Prodanovic beforehand, but I would like to say something.

8 JUDGE MUMBA: I want to know --

9 MR. JOVANOVIC: [Interpretation] I have one short question.

10 JUDGE MUMBA: You want to ask questions of the witness?

11 MR. JOVANOVIC: [Interpretation] Yes, Your Honours. I'd like to

12 ask the witness one question.

13 JUDGE MUMBA: Okay. Go ahead.

14 Re-examined by Mr. Jovanovic:

15 Q. [Interpretation] Professor, you said that one of the aggravating

16 factors is -- has to do with what happened after the crime, threats after

17 the crime, and I'm picking up where Mr. Prodanovic left off. Do threats

18 pronounced after the crime have to be proved as well in order to be taken

19 as an aggravating circumstance?

20 A. All of us here are aware that everything in criminal proceedings

21 has to be proven. Without proof, nothing counts. I presume that we all

22 know this.

23 Q. So did I, but thank you anyway.

24 JUDGE MUMBA: Thank you. I hope that's the last for this

25 witness. Thank you very much.

Page 5409

1 THE WITNESS: Thank you, Your Honours.

2 [The witness withdrew]

3 [The witness entered court]

4 JUDGE MUMBA: Good afternoon, witness. Please make the solemn

5 declaration.

6 THE WITNESS: [Interpretation] I solemnly declare that I will

7 speak the truth, the whole truth, and nothing but the truth.


9 [Witness answered through interpreter]

10 JUDGE MUMBA: Please sit down. Yes, Mr. Kolesar.

11 MR. KOLESAR: [Interpretation] Your Honour, you already swore in

12 this witness, whereas I had meant to ask a question before that.

13 -- forensic expert Mr. Jovanovic, Mr. Dunjic, and Professor

14 Raskovic are medical experts, and they presented their findings together.

15 If we are going to proceed with hearing this witness, the Defence would

16 be -- would not have the opportunity to work with Dr. Raskovic. I suggest

17 that you make a decision on this now. I suggest that we continue tomorrow

18 morning with Dr. Dunjic and Dr. Raskovic because for tomorrow we have only

19 these two witnesses.

20 JUDGE HUNT: Who is this witness? Who is this witness?

21 MR. KOLESAR: [Interpretation] This witness is Professor Dusan

22 Dunjic, forensic medical expert, who gave his findings together with

23 Dr. Aleksandar Jovanovic.

24 JUDGE MUMBA: We are wondering what the problem is. That's up to

25 you, really. What is the problem to continue with him now?

Page 5410












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13 and English transcripts.













Page 5411

1 MR. KOLESAR: [Interpretation] Obviously, I wasn't clear enough.

2 If this witness were to proceed with presenting his testimony and his

3 findings, he is now under oath. I would like you to decide. Can we

4 complete our work with him today, and can we remain in touch with him,

5 because tomorrow we have to hear Dr. Raskovic. I do not insist on not

6 hearing Dr. Dunjic.

7 JUDGE HUNT: Have you not had the opportunity of having a

8 conference with him, is that the problem?

9 MR. KOLESAR: [Interpretation] We did, but not enough because we

10 arrived on last Saturday, and we had very little time; that is, we had

11 only yesterday to talk to him, to have a conference with him.

12 But let me make this clear, I'm not insisting on anything, it's

13 just a practical point.

14 JUDGE MUMBA: But this witness is an expert, his joint opinion

15 with the doctor we had this morning he's already filed, his CV is filed.

16 He can only explain maybe the highlights, unless you have something

17 outside the expert within which may be a subject of leave from the Trial

18 Chamber, otherwise --

19 JUDGE HUNT: Both of the Defence witnesses today have spent a lot

20 of time merely telling us what's in their reports which we've read. What

21 we would prefer you to do is to take the witnesses to anything in addition

22 to their reports that you want them to say.

23 JUDGE MUMBA: So please let's proceed. The witness has already

24 taken an oath. If there was any problem, we had quite a long wait before

25 the witness was brought into the courtroom. So please proceed.

Page 5412

1 Examined by Mr. Kolesar:

2 Q. Professor Dunjic, good afternoon. Before we start, Professor

3 Dunjic, I would just like to ask you to pause between your questions and

4 answers, because both questions and answers need to be interpreted, in

5 this way, we would enable the interpreters to smoothly render both my

6 questions and your answers into the working languages. Did we understand

7 each other?

8 A. Yes.

9 Q. Now, can you please state your full name and give us your

10 credentials, especially since the biographical data which you submitted

11 along with your report is really very short.

12 A. My name is Dusan Dunjic. I was born in Belgrade and I reside

13 there. I am a professor in the medical school of the Belgrade

14 university. I have a Ph.D. in medical science as well as a master's

15 degree in medical science, and I'm also a member of the forensic institute

16 in Belgrade.

17 Q. Thank you. Did you publish any professional works?

18 A. Yes. So far I have published at least 152 articles and other

19 texts from forensic medicine. I have co-authored five textbooks on

20 forensic science and a book on suicide studies, which was translated into

21 the Russian language. I am also an author of the so-called "White Book,"

22 which detailed the terrorist acts of Albanian extremists in Kosovo.

23 I'm a member of the Association of Forensic Scientists. I lecture

24 and am a member of the European Centre for Peace and Development. I have

25 specialised on the topic of torture. I had a number of opportunities to

Page 5413

1 examine camp inmates in Bosnia and Herzegovina and Croatia, and a number

2 of my articles are in that area recently. I was a member of the

3 commission which studied the crimes committed in Kosovo in 1998, in the

4 village of Glodjan, where there were mass graves of victims of Albanian

5 extremists, terrorists. I was also a member of the team which examined

6 the victims of the massacre in the village of Racak, alongside with a

7 Finnish team led by Ms. Helen Rata [phoen] and a team from Belorussia.

8 Q. You said that you had extensive experience with victims of torture

9 and camp inmates. Did that also include raped women who were raped during

10 the war operations?

11 A. Yes. In the period between 1993 and 1997, together with my

12 colleague, Dr. Jovanovic, who gave evidence this morning, I took several

13 trips into Bosnia and Herzegovina and we examined a number of persons who

14 had spent some time in the Muslim and Croatian camps. We also examined

15 the persons who had been imprisoned in smaller camps, including several

16 raped women. I need to add that this was a limited number of women whom

17 we examined, only those who agreed to be examined and be interviewed by

18 medical staff.

19 Q. Given your experience, did you, in your practice, encounter women

20 who had been raped and not resisted, regardless of whether that was in

21 peacetime or wartime?

22 A. In my forensic work, in peacetime circumstances, I should add, in

23 the forensic institute in Belgrade, and I have been involved there for

24 about 25 years, I conducted a number of such examinations, and in that

25 class of rape victims I did not have a single case of a woman who had been

Page 5414

1 raped without being injured, without some physical injury. In respect of

2 the persons whom I examined and who were rape victims in wartime

3 circumstances, they all had some injuries, to a greater or lesser degree.

4 I want to point out that I'm only referring to physical injuries, and

5 genital injuries especially, and not to the psychological injuries, which

6 I do not specialise in. So, so far in my experience I have not

7 encountered a single rape victim who also had not sustained some physical

8 injuries.

9 Q. What is the role of forensic medicine in cases of rape?

10 A. Are you trying to limit me as a professor or as an expert?

11 JUDGE HUNT: Mr. Kolesar, you are not complying with your own

12 admonition to the witness. You are not waiting for the interpretation to

13 finish before you ask your next question, which is causing terrible

14 problems for the interpreters at the moment.

15 MR. KOLESAR: [Interpretation] Thank you. I get carried away.

16 A. I would like to present the position of forensic medicine, and I

17 should -- and this is the position in general, not only in Yugoslavia.

18 Whenever there is a suspected rape, the victim of this act has to be

19 examined. It is generally agreed that both the suspect should -- that the

20 suspect of this crime should also be examined. There are several reasons

21 for this. I would like to underscore the word "suspected." This is a

22 practical science, and we can only interpret facts which we are able to

23 establish.

24 We first need to examine the victim, and it's a somatic

25 examination and psychological examination and psychiatric examination.

Page 5415

1 What we are looking for in a victim is the effects, on the basis of which

2 we can provide solid evidence to a court in terms of the alleged crime.

3 We first need to establish whether there are any functional changes or

4 anything that would prevent -- that would have prevented a sexual act.

5 Then we need to examine the victim and we need to establish their mental

6 condition at the time of the examination and then make a medical

7 evaluation on whether this person speaks the truth or is simulating

8 something or is overstating something.

9 We have a number of ways in which we can assist the Court in

10 evaluating the case. The somatic examination, that is, the bodily

11 examination, comprises the examination of -- an examination of the entire

12 body, the examination of the genitalia, of the development of the body,

13 presence of any disease which would make it impossible for a female victim

14 to have been raped. I also have to point out that our forensic medical

15 science is based on the Anglo-Saxon tradition and also the German forensic

16 medicine before World War I. Our forensic institute is one of the oldest

17 in the Balkans and we are very scrupulous about the doctrine on which our

18 research is based.

19 When we carried -- when we conducted our examinations in Bosnia,

20 we compiled certain questionnaires which were also provided by the World

21 Health Organisation, and these instruments are of a standard which can be

22 supported and defended anywhere in the world. So this is in short the

23 basis of my practice.

24 Q. In the modern doctrine on rape there are vaginal, oral, and anal

25 intercourse that comprise a rape. Can you tell us a little bit more about

Page 5416

1 the vaginal form.

2 A. The rape through vaginal intercourse, if we're talking about

3 female victims, is the most common form. It causes certain changes, but

4 any forcible way of intercourse is also accompanied by certain bodily

5 injuries due to the struggle between the victim and the perpetrator, and

6 here I'm only referring to the cases in which the female victim was

7 coerced to engage in the rape. And this is from the only medical aspect.

8 I'm leaving the legal aspects to you. So physical violence was involved,

9 and this physical violence leaves certain effects. These effects are

10 bodily injuries, and then there are early effects and later or delayed

11 effects.

12 In respect of the vaginal rape, provided there was no defloration

13 involved and that the defloration had taken place before, the forcible

14 intercourse -- or perhaps if -- I can rephrase this. From the initial

15 penetration, there is no lubrication of vagina and there are first

16 so-called erosions, which are shallow lacerations. And when there is a

17 very forceful penetration, it can cause a lot of hemorrhaging. And in

18 addition to the other bodily injuries that are external, these are the

19 initial proofs of forcible rape. Also, if there is a presence of semen,

20 that would further corroborate the intercourse. These are the early

21 effects or early consequences.

22 Among those consequences which can be identified later include

23 injuries which could have been sustained during that act. These are

24 injuries of the genitalia and other injuries. If there were deeper

25 injuries of the genitalia, wounds or certain changes at the cervix, these

Page 5417












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Page 5418

1 wounds would heal, and there would appear scar tissue. This scar tissue

2 can be identified, and they can be connected to the act of rape.

3 Also, other bodily injuries can also be brought in connection with

4 the rape such as wounds anywhere on the body. Such injuries can also be

5 identified regardless of the lapse of time.

6 Q. Can you tell me what is the situation with the anal intercourse?

7 A. As with the vaginal penetration, with anal penetration, especially

8 if it was forceful, such as can be found in rape cases, various injuries

9 can be sustained in the various places in the anus. It can be lacerations

10 of the sphincter as well as the other muscles involved. If there is, if

11 there is such an injury, examinations can identify scar tissue and

12 disruption of the normal function of the sphincter which would lead to the

13 problems with evacuation.

14 Perhaps I should give you an example, an experience that I have

15 had in recent years when working with victims in Bosnia and Herzegovina.

16 With persons who are very young, under the age of 17 and 18, and older

17 victims, older I here define as over 40, I -- we asked, we asked these

18 victims whether there was anal intercourse. They did not know what it

19 was, what it meant. For them, the anal intercourse to them meant that

20 they were approached by men from behind, and it simply has to do with the

21 level of education of some of these victims. So that we in the medical

22 field used the anal intercourse as the penetration of a male sexual organ

23 into the anus, but this is not what some of the interviewees reported.

24 These injuries are also those types of injuries that can be

25 determined and identified much later as well, much later than when they

Page 5419

1 first occurred.

2 Q. Are there any consequences flowing from the other -- the oral type

3 of rape?

4 A. As far as the oral rape is concerned, they are not as frequent and

5 they are much more transitory. Some of it has to do with the forcible way

6 of engaging in oral intercourse, such as forcible widening of the mouth

7 and injuries of the gums. But those are not as frequent cases, and these

8 can be identified more successfully early on when we examine such a person

9 and maybe we can identify semen there, if there is the presence of semen.

10 Q. You have now given us a number of types of rapes, but which one of

11 those can be determined even years after the act has occurred?

12 A. If we examine the genitalia and the inner walls of the anus or the

13 genitalia, can leave traces for a number of years, and this has become a

14 part of the doctrine, that all victims should be examined.

15 Now, these injuries can be very complex, and in addition to the

16 somatic injuries, both on the body and in or around the genital organs,

17 they can be accompanied also by mental effects such as sterility or

18 disruptions in the menstrual cycle, which again can be long-lasting or

19 shorter, but we cannot determine this unless we conduct these

20 examinations.

21 Q. Now, let me ask you this: If you take into account the

22 consequences of or the effects of the forcible sexual act, which effects

23 are likely to disappear the first?

24 A. This would be the effects that are early, effects that would also

25 be present in a regular social act, such as swelling or redness, a red

Page 5420

1 colouring, or some haemorrhaging. This would be regular, early effects.

2 They are not long-lasting, and they cannot be identified after a certain

3 period of time. But all the effects that are more comprehensive that are

4 deeper, such as lacerations or ruptures or injuries of the inner walls or

5 muscles, they will leave scar tissue, and such scar tissue can be

6 identified and determined much later.

7 Q. Is it the same case with the anal intercourse?

8 A. Yes. The early, the early effects, again, are the same: redness

9 or presence of semen. And perhaps I should add one more thing. Infection

10 can be present, and these injuries can be further complicated and

11 aggravated by infection which sometimes accompanies this act. This is why

12 it is desirable to conduct the examination as early as possible, and if an

13 infection was reported, we need to look for any traces of that.

14 MR. KOLESAR: [Interpretation] Your Honours, I have more questions,

15 but I see that we have reached the end of the session today. I would just

16 need one clarification. Given that the witness is under oath, does this

17 mean that the Defence counsel will not be able to communicate with the

18 witness? And I have given you the reasons why we need to talk to the

19 witness between now and the testimony of the next witness.

20 JUDGE HUNT: You said that you've had him here since Saturday,

21 Mr. Kolesar. I don't understand why you need more time.

22 I remind you that we have read his report, and we are only

23 interested in what he can add to that report. Why do you need more time

24 to talk to him? You've had two days.

25 MR. KOLESAR: [Interpretation] Your Honour, I said, and I will

Page 5421

1 repeat, I do not insist on it. We do not need contact with Mr. Dunjic for

2 further examination of his finding. We need him in connection with the

3 expert opinion of Dr. Raskovic, and so we only wanted to avoid any

4 misunderstanding in the future, but we will not insist on this.

5 I just do not wish to create an awkward situation either for

6 myself as Defence counsel or for the professor as the expert witness.

7 [Trial Chamber confers]

8 JUDGE MUMBA: Mr. Kolesar, since this witness is an expert, he's

9 just giving us his expert opinion also, we hope, you can go ahead and

10 discuss with him even before tomorrow or before the proceedings tomorrow

11 if you so wish.

12 We will adjourn now, and we will continue our proceedings tomorrow

13 morning at 09.30 hours.

14 MR. KOLESAR: [Interpretation] Thank you, Your Honours.

15 --- Whereupon the hearing adjourned at 4.02 p.m., to

16 be reconvened on Tuesday the 12th day of September,

17 2000, at 9.30 a.m.