37718
Wednesday, 23 March 2005
[Open session]
[The accused entered court]
[The witness entered court]
--- Upon commencing at 9.03 a.m.
JUDGE ROBINSON: Mr. Milosevic, you may continue your examination-in-chief.
THE ACCUSED: [Interpretation] Thank you, Mr. Robinson.
WITNESS: DANICA MARINKOVIC [Resumed]
[Witness answered through interpreter] Examined by Mr. Milosevic: [Continued]
Q. [Interpretation] Mrs. Marinkovic, good morning.
A. Good morning.
Q. Yesterday we were discussing the question related to elections of judges, and we were dealing with paragraph 87 that had to do with the dismissal of Judges. I'm not going to ask you about all the rest, but I would like you to tell us more about this. Could you please tell us quite precisely whether you knew all the judges in the municipal district courts in Pristina.
A. Yes.
Q. Tell me, were any Albanian judges dismissed from their jobs at the district and municipal courts in Pristina where you worked?
A. No one was dismissed. But in relation to this, I would like to add an explanation to make things clear. A judge who's elected cannot be dismissed, simply cannot be dismissed or removed from his job. According 37719 to the law on judges, a judge's term may expire, or if he or she meets requests -- meets the requirements for retirement or if he or she asks for that himself or herself. Also, if a judge commits a crime that entails a six-month sentence at least, or if he does anything that makes him unfit to be a judge, or if proceedings are initiated because he does not carry out his duties as a judge conscientiously. So a judge cannot be removed from his job or dismissed any way.
Q. Thank you, Mrs. Marinkovic. Since you mentioned all the legal terms and conditions under which a judge can be removed, of course I'm not going to deal with retirement, when one meets the requirements for retirement, but what is written here is that many judges were removed. Was a single judge removed?
A. No. Not a single judge in this period that is mentioned in this paragraph, no. Neither before that nor after that.
Q. All right. Do you recall from that time, 1990, because paragraph 87 relates to 1990, do you remember all the judges who were on the district court, your colleagues? You said that from 1984, you were a judge on the district court in Pristina.
A. Yes. I remember all the judges, because at that time in 1984, when I was elected to the district court in Pristina as a judge, many judges had already been working there. As for the ethnic make-up at the time, it was diverse. At that time in 1984 when I became a judge, there were more Albanian judges than the rest of us. I can say by way of an example that on the criminal chamber, there was one Serb judge and three Albanian judges. 37720
Q. All right. Tell us, please, in the court in Pristina, as far as the district court is concerned, and the municipal court, after 1990 and 1991, say up to 1999, up to 2000, were there any Albanian judges?
A. There were.
Q. Did anybody have any problems in these courts because they were not a Serb? For example, you're a Macedonian.
A. Yes.
Q. Did you have any problem on account of the fact that you're a Macedonian, that you're not a Serb?
A. No. Neither I nor the Albanian judges. We had no problems whatsoever if we worked according to the law and if we were professional and conscientious in the discharge of our duties.
Q. Was anybody removed because they did not work according to the law or because they had some problems?
A. Not in that period.
Q. Were there any cases in which somebody would have to be removed in accordance with the law?
A. No.
Q. Not a single case?
A. Not a single case.
Q. Please bear in mind now that at the end of this paragraph some kind of abolition of a local court in Pristina is referred to. The only thing I can assume is that it was the Supreme Court of Kosovo that was abolished and that that is what was referred to, because no local courts were abolished. Or, rather, I'm going to ask you. Were any local courts 37721 in Pristina abolished?
A. No. But before I give this concrete answer, I should like to say that according to our law on the courts, there never was any such thing as a local court under that name. There were municipal courts, district courts, and the Supreme Court.
Q. Now, let us say very precisely what it was that was abolished. After the constitution of 1990 was passed, there was only one Supreme Court in Serbia.
A. Yes.
Q. Is that correct?
A. Yes.
Q. Tell me now, until then there was a Supreme Court of Kosovo and a Supreme Court of Vojvodina, and after the adoption of the constitution there is only one Supreme Court of Serbia. The district court and the municipal court in Pristina remained the same. Did the Supreme Court of Serbia have its own department in Pristina?
A. Yes. The Supreme Court of Serbia had its department in Pristina and another department of its own in Novi Sad.
Q. In charge of the respective areas of the provinces?
A. Yes.
Q. In this department of the Supreme Court in Pristina, were there any Albanians? As far as I can remember, there were three judges in that department of the Supreme Court in Pristina.
A. Yes. In that department of the Supreme Court that was in charge of Kosovo and Metohija, there was one Albanian judge. 37722
Q. Out of a total of three judges?
A. Yes, yes.
Q. And what was the total number in your district court?
A. In our district court there was a total of 19 judges, together with the president of the court.
Q. You knew all 19?
A. Yes.
Q. So none of them were removed?
A. None of them.
Q. Could you please give us an explanation now lest there be any misunderstanding: Were there any cases of persons leaving their jobs of their own free will in order to open law offices of their own or to do some other job?
A. Yes, there were such cases. Some colleagues asked for termination of their duties as judges by themselves, and then they became attorneys at law and they opened their own law offices.
Q. Tell me, since in 1992 there was a general re-election of judges, did Albanian judges apply again for the post of judges? For example, in your district court, did they?
A. In 1992 when there was general re-election of judges in the territory of all of Serbia, in our district judge [as interpreted] there were Albanians who also applied to the post of judges.
JUDGE ROBINSON: Mr. Milosevic, let me ask the judge this: After the constitution of 1990 was passed, was there any change in the court system, any change at all? 37723
THE WITNESS: [Interpretation] There were no changes.
JUDGE ROBINSON: The courts that were there before the passing of the constitution remained afterwards.
THE WITNESS: [Interpretation] Yes.
JUDGE ROBINSON: Thank you.
THE ACCUSED: [Interpretation] I assume that, Mr. Robinson, the witness bears in mind the fact that the constitution established only a single Supreme Court and that then the Supreme Courts of Kosovo and Vojvodina respectively became integral parts of the Supreme Court of Serbia and there were just departments in the two respective provinces dealing with the provinces themselves, but there were no other changes.
MR. MILOSEVIC: [Interpretation]
Q. Tell me, now, you said that in the department of the Supreme Court of Serbia there was an Albanian judge. Were there any Albanian judges in Belgrade?
A. After that, the Albanian judge who was on that chamber went to Belgrade to be a judge on the Supreme Court.
Q. And were there any Albanians who were judges in the Constitutional Court of Serbia?
A. Yes, there was an Albanian judge on the Constitutional Court of Belgrade -- of Serbia. I don't want to mention their names now.
Q. Their names are well known. That's no problem. It's a well-known fact who the judges of the Constitutional Court and the Supreme Court were.
A. Yes. I have personal knowledge of the fact that there were such 37724 judges.
Q. On the Supreme Court and on the Constitutional Court.
A. Yes.
Q. Mrs. Marinkovic, as an investigating judge, you conducted proceedings in several cases. Of course I'm not going to dwell on this entire period of your work, but you also conducted proceedings against terrorist groups in Kosovo and Metohija; is that correct?
A. Yes, that is correct. I would just like to acquaint the Trial Chamber with another thing; as for the status of an investigating judge. An investigating judge is not elected to that particular position. Annually, a schedule is made for the judges, and then one of the judges is appointed to be the investigating judge.
So in 1994, according to this annual schedule which is adopted by the president of the court, and he makes it public at a joint session, for a particular year there is a schedule as to which judge is going to do what; who is going to deal with criminal cases, who is going to deal with civil cases, and who is going to be the investigating judge. That's the way we function until the present day. So there is no special capacity of investigating judge.
Right now I work as a judge on the district court in Kragujevac and in the annual schedule for the year 2005, the president of the court appointed me to work on investigations.
Q. All right.
A. I hope that that is quite clear. Judges are elected without establishing previously who is going to do what, but then it is the 37725 president of the court who decides who is going to deal with criminal cases, who is going to deal with civil cases, who is going to be in charge of investigations, who is going to be in charge of litigations, et cetera.
Q. Thank you for this additional explanation.
A. As an investigating judge in the district court in Pristina, I worked on a great many cases.
Q. All right. I asked you about these proceedings against terrorist groups in Kosovo and Metohija now. Tell me, was it only you or did the other judges on the district court of Pristina work on such cases?
A. I and other investigating judges in that period all worked on such cases. As regards terrorism, that is.
Q. All right. Could you explain the principle according to which criminal cases - we're only talking about criminal cases now, irrespective of qualifications - how they were given to different investigating judges.
A. Criminal cases were dealt with by the court administration, and in accordance with the rules of procedure of the court, they were allocated to different judges according to a certain list, a certain order, irrespective of the person involved and irrespective of the parties involved and irrespective of the complexity of the legal matter involved.
Q. [No interpretation]
A. [No interpretation]
Q. According to those legal provisions qualifies the crime, the charges brought against an individual.
A. The qualifications of a crime is done by the authorised public prosecutor and it is pursuant to his request or order that an 37726 investigation is undertaken against an individual if there is a well-founded suspicion that he has committed a crime.
Q. When did you in your capacity of investigating judge receive your first case of that kind, that is a case involving terrorism in Kosovo and Metohija?
A. I received that first case at the end of 1994.
Q. It means the same year that you were appointed investigating judge.
A. Yes, that I was allocated and distributed as an investigating judge.
Q. Mrs. Marinkovic, would you take a look at tab 1 now, please. And in tab 1 you will find an overview of cases in which you conducted the investigation as the investigating judge pursuant to a request by the prosecutor in Pristina.
MR. NICE: Your Honours.
JUDGE ROBINSON: Yes.
MR. NICE: Before I sit down, can I tell you the history of all these documents. The majority arrived late on Friday afternoon, some with, many without translations. The first index was provided, I think, on Monday night or Tuesday morning. No index of the documents on Friday. Further documents were provided yesterday.
None of the documents, so far as we know, was listed on the 65 ter list, and thus far we haven't been able to connect these documents with any documents held in our own collection. It may be, as we saw with the last witness, that there can be an identity of documents with documents we 37727 held unknown to us. Thus this entire body of material comes to us in circumstances that we simply haven't been able to deal with it at all satisfactorily to date.
I'm not going to seek to keep all the material out because I suspect that will be unrealistic and unhelpful, but I draw to the Court's attention the serious difficulties we are facing. As to tab 1, if it hasn't got a translation, there's nothing I can say about it at the moment because, although I do have language speakers available to me, they, like all other staff, are in short supply at the moment and it hasn't been possible to review the documents with the assistance of a language speaker.
JUDGE ROBINSON: Thank you, Mr. Nice. Mr. Milosevic, there is a limit to the Court's tolerance and patience in relation to these many procedural irregularities. There's no translation for tab 1. How are we to proceed? It's a fairly long document. Normally we would place it on the ELMO if it were a short document, but it's fairly long. What is the explanation for these irregularities? Exhibits should have been mentioned long before and brought to the attention of the prosecutor and the Court.
THE ACCUSED: [Interpretation] Yes, I take that on board fully, Mr. Robinson, and I do my best to make available the exhibits as soon as they come in my possession. However, with regard to the time that we had at our disposal, I was able to see Mrs. Marinkovic only last week. In this particular case, we are talking about the files that she managed to save when she had to leave Kosovo and Metohija. So they are just court 37728 files. They are not - how shall I put this? - any newspapers or information given in that way. They are just court files which she has safeguarded. She worked on many cases, and this is something that remains in her possession, because the archives are -- she doesn't have access to archives of the court in Pristina, if an archive still exists, unless it has been destroyed on the part of those who are exercising power and authority over there now. And what she managed to save is contained in this tab and these exhibits.
What we provide in tab 1, the overview of cases, is for your assistance, to help you, because it says "Overview of cases in which Danica Marinkovic as the investigating judge conducted an investigation pursuant to a request from the public prosecutor --"
JUDGE ROBINSON: Mr. Milosevic, the --
THE ACCUSED: [Interpretation] -- "of Pristina."
JUDGE ROBINSON: The management of your case is your responsibility, and you should not have brought the witness if you knew that the exhibits were not ready and in a form that they could be understood and available for consideration by the Court. We will have to consider how to deal with these exhibits. We will have to consider, quite frankly, whether to allow you to rely on them, because this is not the first or the second or the third time that something like this has happened.
THE ACCUSED: [Interpretation] Please, Mr. Robinson, yes, I understand that fully, and that's quite in order, but I'll ask the witness this: 37729 BLANK PAGE 37730
MR. MILOSEVIC: [Interpretation]
Q. Do individual files from these criminal cases that are contained in tab 1, are they just enumerated -- that are just enumerated, are they to be found in the tabs to follow as individual exhibits?
A. Yes. They are to be found in the following tabs.
THE ACCUSED: [Interpretation] Now take a look, Mr. Robinson, at tab 2, for example. Tab 2 has been translated. Tab 2 is translated, so perhaps we could mark tab 1 for identification because the translation is ongoing in that case, and the idea was for us to use it as a document to help us out. But tab 2 is translated. It is an indictment which lists the perpetrators and how the proceedings were conducted. So you have that in translation. Most of the exhibits have been translated, and you do have them in your tabs.
JUDGE KWON: Mr. Milosevic, what we are talking about is not only the translation but also the disclosure to the Prosecution. So bear that in mind.
[Trial Chamber confers]
JUDGE ROBINSON: In any event, Mr. Milosevic, what is the purpose of tab 1, the chronology of cases in which the judge was involved, cases, what is it, in 1994? Why are you adducing that evidence?
THE ACCUSED: [Interpretation] I am adducing that evidence because I thought that that would be of assistance for you to be able to follow the documents to come, because it is an overview drafted and compiled by Judge Marinkovic on the basis of the documents which are described -- which describe these cases in detail. So the idea was that this should be 37731 of assistance, for a better understanding of the cases and the subject matter in hand.
JUDGE ROBINSON: I think what would be helpful to us is her evidence in relation to the matter that she has come to testify about, which is, I think, Racak, 1999, not what happened in 1994. We've had a lot of background evidence. We don't need more background evidence, Mr. Milosevic.
THE ACCUSED: [Interpretation] Well, this is the first judge who has case files and proof and evidence, and we can see, looking at those cases, a great deal about terrorist activity, on the one hand, and parallel to that, the way in which the state reacted on the other through its legal means and the resources it had; uncovering the perpetrators, bringing the perpetrators to justice, bringing them to court, undertaking legal proceedings. All that is contained in those documents. So it is very essential, because this is the first time we have a judge who worked on these matters. Racak is one case in point. It was one investigation that Mrs. Marinkovic was engaged in.
I selected a certain number of cases here which are -- illustrate how those cases were conducted during those years, during that period, because many things have been shown quite incorrectly here. So her testimony is essential to show what was done and what steps were taken in cases of that kind.
JUDGE ROBINSON: Evidence about terrorist activities per se by itself is not helpful. I mean, it will be helpful and relevant if it relates to one of the charges in the indictment. I have said this time 37732 and time again.
If she has evidence from her work about terrorist activities that pertain to something in the indictment, then, yes, it will be relevant. Otherwise, it's not relevant. We are not -- we are not an academic institution here. We are not writing a history about terrorist activities. We have a specific indictment with specific charges. If tab 1 is just evidence about terrorist activities, totally unrelated to the allegations in the indictment, I will not allow it.
THE ACCUSED: [Interpretation] Very well.
[Trial Chamber confers]
JUDGE ROBINSON: Mr. Kay, we notice that the tab has exhibits 1998, tab 14, which are closer to the events at hand. It would seem reasonable to allow the accused to concentrate on that period which is closer to the indictment period.
MR. KAY: Yes, Your Honour. First of all, there are nine outstanding translations from the 65 tabs. It so happens that this is a full tab, tab 1, the first one we're looking at, and it is a summary of the witness's involvement in various cases over a period of, say, seven or eight years.
There are earlier case reports which are within this bundle, but they demonstrate the issues that this witness as a judge was having to deal with in relation to activities within the province of Kosovo. In many respects, they go to show the course of her practice as a judge and that she was carrying out her duties in a particular way. From 1998, we, of course, get more proximate to issues within the 37733 indictment, but the earlier investigations demonstrate the kind of problems that she was dealing with as a judge in the region, and they're relevant for the issues that the accused has expounded as part of his defence concerning the issue of terrorism within Kosovo and the way that the state authorities were having to deal with it. In many respects, the accused will have anticipated that this witness will be under attack by the Prosecution because she was the judge who was involved in the investigation of the killings at Racak. So it's a legitimate exercise to say that he wishes to establish her bona fides, her professionalism, and do that by looking at her previous investigations. How much time is spent on that is another matter, and it would seem to me that there could be a rapid run-through setting up the witness in relation to those earlier investigations before getting to the more substantial investigations which are proximate to the indictment, which, as the Trial Chamber has observed, is from tab 14.
JUDGE ROBINSON: Thank you. Thank you, Mr. Kay. That's helpful. Mr. Nice, just on the question of the relevance.
MR. NICE: I don't know if I can help with a couple of observations. First of all it may be helpful to know how much of what Mr. Kay said is in fact adopted by the accused. Second, I don't know if you have the 65 ter summary to hand. If you haven't, can I read what it says? It says: "Judge in Pristina; Racak; all events in Kosovo and Metohija;" and then it goes on to say: "personal knowledge of the activities of the parties to the conflict during the war in Kosovo, personal knowledge of the parties to the conflict of Racak undertook the 37734 investigation of the Racak case."
So apart from the single phrase "all events in Kosovo and Metohija," which might be ambiguous, the 65 ter summary forecasts evidence strictly limited to Racak.
As to these files or any of them that relate to a period before Racak, there may be issues as to whether they're admissible at all, and if so, for what purpose, because I'm not sure whether the accused will be relying on them for the same limited purpose that Mr. Kay volunteered. If the accused wants them to be admitted for a wider purpose, for example, to show the truth of the underlying allegations made or found by the legal authorities concerned, that may create difficulties. It may create legal difficulties - we'll have to address those if and when the application to produce the documents is concerned - and it may create factual difficulties if I discover, on investigations that I'm able to make, that there are views that these trials were other than by due process and by fair process. So there are a number of problems. My initial position would be to invite the Chamber to restrict the witness to the material forecast in the 65 ter summary, which would be Racak and simply Racak.
JUDGE ROBINSON: Thank you. Yes, Mr. Milosevic.
THE ACCUSED: [Interpretation] Mr. Robinson, I will read to you the paragraph 93 - I'm not going to ask the witness about it - since you say that it has to be related to the indictment in order for me to ask questions, but I also believe it has to be related to previous testimony, et cetera. 37735 But look at paragraph 93: "While the wars were being conducted in Slovenia, Croatia, and Bosnia-Herzegovina, the situation in Kosovo, while tense, did not erupt into the violence and intense fighting seen in the other countries. In the mid-1990s, however, a faction of the Kosovo Albanians organised a group known as UCK, or known in English as the Kosovo Liberation Army. This group advocated a campaign of armed insurgency and violent resistance to the Serbian authorities. In mid-1996, the KLA began launching attacks, primarily targeting Serbian police forces. Thereafter, and throughout 1997, Serbian police forces responded with forceful operations against suspected KLA bases and supporters in Kosovo."
Thus I have read out to you the entire paragraph.
JUDGE ROBINSON: Okay, Mr. Milosevic. We'll allow you to --
JUDGE BONOMY: Mr. Nice -- Mr. Nice, you can see how that immediately raises a problem for the Bench, unless of course you were to withdraw that allegation because it may be thought by you to be irrelevant.
MR. NICE: Your Honours, yes. And that's a different issue, if I may say so, from whether this witness can give this evidence now. I'm -- I find myself in this rather difficult position with the accused taking us by surprise with the material that he presents us, because on the one hand I have no desire to stop his laying -- no desire at all to stop him presenting you with material that is helpful and relevant. On the other hand, I need to be able to deal with it in a satisfactory way, and there's the problem. 37736 Now, if this witness can help with the paragraph that the accused read out, and if the Court is minded to overlook its own requirements of compliance with Rule 65 ter, something that it referred to recently, saying that it was going, I think, to limit the accused to 65 ter, then the next process -- the next step in the dealings with this witness will be to assess when and how I'm in a position to cross-examine on whatever she says.
It happens -- and I don't say this to encourage any particular easing of its own restrictions, it happens that the witness's evidence is forecast to last nine hours, which would take us until the end of tomorrow, and that there is then a ten-day gap over which many people might be expecting to have holidays or otherwise to be away from the seat of the Tribunal. Nevertheless, there may be the possibility of using that time to some advantage, and it's my purpose here to do the best I can to assist the Chamber.
This, incidentally, is without prejudice to arguments that may have to be raised and I may raise almost immediately about the admissibility of the documents themselves, but that comes next.
JUDGE ROBINSON: Yes.
[Trial Chamber confers]
JUDGE ROBINSON: Mr. Milosevic, the Chamber is bending over to be fair to you and to be lenient. The Chamber, of course, also has to bear in mind the Rules under which the Tribunal operates. None of these exhibits has been listed in your exhibit list, so that technically you should not be allowed to rely on them at all. We are 37737 going to allow you, but you have to move very quickly. There is no need to spend a lot of time on these matters which pre-date 1998. We will allow you to refer to the exhibits. Those that are not translated we will mark for identification. But we are now going to warn you that the next time that this happens, we will not allow you to rely on exhibits that have not been placed on your exhibit list. This is happening all too frequently, and it makes the work of the Chamber that much more difficult.
But bear in mind you have to move quickly through these matters leading up to 1998. The principal purpose of this witness's testimony is to hear her evidence on Racak.
THE ACCUSED: [Interpretation] Well, that is your opinion, and I have nothing against your opinion, but it is the purpose of this witness to talk about other relevant things as well.
JUDGE ROBINSON: But you should have said that in your 65 ter. That's Mr. Nice's point. You're on very weak ground there, so don't press that.
THE ACCUSED: [Interpretation] Mr. Robinson. Mr. Robinson, what you are saying is true, and I have no quarrel with that. I didn't say that under 65 ter, indeed, but I had no time to say it because of the time you allowed me. I had no chance to contact this witness prior to this hearing to establish what evidence she is able to provide. And I have to remind you that in -- during the presentation of the Prosecution case, I received entire binders to review, and I was always told that I had enough time overnight to review the material. So it is 37738 not at all true that the other side complied with some strict rule of prior disclosure.
You remember well, Mr. Robinson, as does Mr. Kwon --
JUDGE ROBINSON: I remember very well, and that's one of the reasons why we are being fairly lenient, yes. So proceed on the basis that I have identified.
THE REGISTRAR: Your Honour, D290 will be given to these two binders of documents. Tab 1 will be marked for identification.
THE ACCUSED: [Interpretation] Very well.
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic, you participated as the investigating judge in a large number of cases. Was that the result of your -- of some privileged status of yours in the district court in Pristina or did you simply have a large number of cases?
A. We simply had a large number of cases, including criminal reports and requests for investigations, so that our experience with that affected the way we proceeded in those cases, not only in my case but it was the case of other judges as well, in Pristina as well as throughout Kosovo and Metohija.
Q. At the relevant time did the Criminal Code of Yugoslavia include the crime of terrorism?
A. Yes. In the Criminal Code of Yugoslavia, Article 125 stipulates the crime of terrorism.
Q. What was it like?
THE ACCUSED: [Interpretation] I wish to remind everyone that the 37739 Criminal Code of Yugoslavia is already in evidence, has been since the Prosecution case, which is why I did not provide it as a separate exhibit.
MR. MILOSEVIC: [Interpretation]
Q. How is it defined in Article 125, the crime of terrorism?
A. I shall read to you from Article 125 of the Criminal Code of Yugoslavia adopted and enacted in --
THE INTERPRETER: Could the witness please slow down.
THE WITNESS: [Interpretation] -- and it was applied throughout the territory of the former Yugoslavia.
JUDGE ROBINSON: Mrs. Marinkovic, you're being asked by the interpreters to speak more slowly.
THE INTERPRETER: Could we have it on the ELMO, please, interpreters request.
JUDGE ROBINSON: Yes, would the usher please place it on the ELMO.
THE WITNESS: [Interpretation] "Any person who causes an explosion or a fire or undertakes another action causing a general danger or an act of violence creating a feeling of unsafety among the citizenry in the intent of jeopardising the constitutional order and security of the SFRY shall be sentenced to at least three years."
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic, very well. What, to the best of your knowledge, was the purpose of the KLA and other similar organisations created in Kosovo at the time while you were investigating judge?
A. The principal purpose of the terrorist organisation which called itself the KLA was forcible secession from Yugoslavia, creation of a 37740 separate date or annexation to Albania.
Q. Let us be as brief as possible. Did the Criminal Code of Yugoslavia include a crime -- a stipulation whose purpose was to protect the territorial integrity?
A. Yes. That was Article 116. That regulated crimes against territorial units and integrity.
Q. We shall not read it. In this paragraph 93 that I quoted a moment ago, of the Kosovo indictment, it says: "... a faction of Kosovo Albanians organised a group ... which pursued a campaign of armed insurgence and violent resistance to Serbian authorities." Did the Yugoslav criminal law envisage a crime relating to such an organisation or association?
A. Yes. The Criminal Code envisaged the crime of jeopardising territorial integrity envisaged under Article 106.
Q. Association for hostile -- for the purpose of engaging in hostile activities, was that also envisaged?
A. Yes.
Q. You mentioned Article 116, which envisaged crimes against territorial integrity, and 106, association for purposes of engaging in hostile activities. You mentioned also the article relating to terrorism. Correction, 125.
You mentioned those three articles of the Criminal Code. Was association for purposes of hostile activities regulated in general terms?
A. Yes, it was. In the Criminal Code of Yugoslavia in chapter 15 there is a list of crimes against the constitutional order and security of 37741 BLANK PAGE 37742 Yugoslavia.
Q. Very well. Since you quoted or invoked several of these legal provisions pursuant to which you acted as investigating judge when conducting such cases, I shall ask you, did you in your experience as investigating judge in cases involving the KLA, did you apply all three of these provisions of the law? We are talking now about jeopardising of territorial integrity, terrorism, and association for the purpose of engaging in hostile activities.
A. Yes, I did.
Q. Were all those grounds taken into account in the cases you conducted?
A. Yes. In investigations where I acted as investigating judge pursuant to the request of the district prosecutor of Pristina, the accused were charged with all three crimes; the crime of association for the purpose of hostile activities, the crime of terrorism, and the crime of jeopardising territorial integrity.
Q. If I understand you correctly, there was association for the purpose of engaging in hostile activity and the aim of that activity was to jeopardise the territorial entity and the vehicle was terrorism.
A. Yes.
Q. Now, what about the organisation of Albanian separatists? I'm just talking about separatists now. Organisation into illegal para-statal organisations. Did you take part in any such proceedings?
A. No. This kind of illegal association was not investigated. I did not have such cases and I did not conduct such investigations. 37743
Q. Did our organs tolerate those forms of para-statal organisation that did not take an armed form? For example, parallel illegal schooling, health care, as they called it, parallel? Was any action taken against such activities?
A. No. The state did not bring any charges in respect of such activities. This was tolerated. The parallel schools and the parallel health institutions were operating.
Q. As a judge, do you know -- could you give me an unequivocal answer as to whether any criminal proceedings were conducted because of that.
A. No proceedings were conducted.
Q. What about the illegal organisation of some para-statal forms, if I can put it that way, that implied arming or espionage or similar activities was prosecuted?
A. Yes, there was criminal prosecution in such cases by the relevant state authorities.
Q. All right. Now I'm going to go back to paragraph 93. I'm not going to read all of it, as I didn't a minute ago, but I would just like to draw your attention to some parts. It says in the mid-1990s the KLA was established, and then it says: "In mid-1996, it began launching attacks primarily targeting Serbian police forces." And then "Thereafter, and throughout 1997, police forces, Serbian police forces responded with forceful operations..."
Do you have any particular knowledge about the inception and activities of the KLA and other terrorist organisations in Kosovo and Metohija and what it says here in the mid-1990s? Is that correct? 37744
A. As I worked as an investigating judge and when I dealt with the kind of criminal cases that I mentioned a few minutes ago, I became aware that a terrorist organisation that called itself the KLA was established in the beginning of 1992, and before that they started preparations and organisational activities to that end.
Q. Let's pause here for a moment. According to your knowledge, it was in 1992. So what it says here in the mid-1990s is not correct. On the basis of what are you saying this?
A. I am saying this on the basis of the investigations that I carried out in a large number of cases where the suspects were Albanians, and when they gave statements to me as an investigating judge, they talked about all of this. What they said was corroborated by a great deal of evidence. And on the basis of these comprehensive investigations, we established these facts that were relevant for the prosecution so that the prosecutor could continue such proceedings by bringing an indictment.
Q. All right. Are you talking about -- or, rather, now we are establishing the accuracy of what the indictment says from several different aspects. When you say that as investigating judge in Pristina you had investigations against several persons and that through these investigations you came to this information, do you bear in mind a court document which was provided in tab 2 here? It's --
THE ACCUSED: [Interpretation] Gentlemen, you have a translation of this.
MR. MILOSEVIC: [Interpretation]
Q. It says "Republic of Serbia, Autonomous Province of Kosovo and 37745 Metohija, District Public Prosecutor's Office," and then -- I hope that you have received a list of the tabs. I would like to draw your attention to this. Please take a look at it and then give us appropriate explanations.
On page 2 -- or, rather, on page 3, it says: "Because." That's the rationale: "From mid-1992 to early 1997, they formed an enemy terrorist association called the 'Kosovo Liberation Army,' which operated throughout the area ..." et cetera, et cetera. So I am going to skip part of this paragraph, and then towards the very end of this paragraph in the rationale --
JUDGE ROBINSON: Mr. Milosevic. Mr. Milosevic, you must ensure that everybody has found the passage to which you're referring before you move on.
MR. KAY: Page 4 in English.
JUDGE ROBINSON: Page 4.
THE ACCUSED: [Interpretation] You have page 4 in the English language. It says: "[In English] Because. From mid-1992 to early 1997, they formed an enemy terrorist association called 'Kosovo Liberation Army...'" et cetera. [Interpretation] I've already quoted that part. Then it says what they did.
All of it is in that same paragraph. And they obtained "a large quantity of weapons: Automatic rifles, sniper rifles, pistols, ammunition, hand grenades, various explosive devices, rifle grenades and other explosives; and they conducted dozens of attacks on Ministry of the Interior members and buildings, buildings where refugees were sheltered, 37746 and buildings for such persons that were still under construction, buildings where Serbs and Montenegrins gathered, and attacked a number of Serbian, Montenegrin, and Albanian citizens --" that is to say Serbs, Montenegrins, and Albanians "-- whereby they intentionally killed or attempted to kill a number of persons in various ways." And it also says that they issued 29 statements in which they claimed responsibility for these terrorist attacks.
JUDGE ROBINSON: What's the question now, Mr. Milosevic, having read that.
THE ACCUSED: [Interpretation] My question was when Mrs. Marinkovic gave an answer stating that they were established in 1992 and when it says here in mid-1990s, she said it was not correct, and I asked her on the basis of what you are claiming that, and then she said that she's claiming that on the basis of the fact that she conducted an investigation against several persons. Then I took this tab in order to read out whether these were some elementary assertions, whether the file itself shows that what you are saying is correct, the court file, the case file.
JUDGE ROBINSON: We proceed on basis of question and answer, Mr. Milosevic. You are not giving evidence.
Yes.
MR. NICE: Your Honour, before the witness answers, I delayed questioning the admissibility of this tab until I saw where the accused was taking us. And the fact that the conclusions drawn may - I simply don't know at the moment - may be conclusions that the Prosecution would accept because, of course, the Prosecution accepts the KLA was a 37747 developing body doing things in the 1990s, doesn't mean we should overlook any procedural problems that should properly be considered before this document is exhibited.
It appears that the accused wants the document to be admitted in some way for the truth of what it sets out. Here is the problem: There is, I think, no jurisprudence, at least, I haven't turned up any so far, though I've only just come to grips with what the accused wishes to prove through these tabs, there is no jurisprudence dealing specifically with how the records of another court should be dealt with in this court, and that might be quite a tricky problem given that allegations are made about the fairness and particular unfairness of proceedings in the various courts of the former Yugoslavia.
Second, to what degree is the work of a judge dealing with people speaking to her or making statements that she reads different from the proposed evidence of the investigator Barney Kelly covering Kosovo, which was rejected by the Trial Chamber, rejection that was confirmed as appropriate by the Appeals Chamber. I have the Appeals Chamber decision here. I'm sure you're familiar with. I can refer you to it, if necessary, but it will take time.
JUDGE ROBINSON: Mr. Nice, can Barney Kelly's statements be compared with a court record?
MR. NICE: Your Honour, I go back: There is no particular jurisprudence that says, as far as I'm aware, that gives a special status to the work of judges or courts in the courts of the former Yugoslavia or investigative judges and their findings. Their work is similar in format 37748 and category to that of an investigator who reviews an amount of material and draws conclusions.
And it was the conclusions in particular that were rejected, both by the Chamber and by the Appeals Chamber, and even by His Honour Judge Shahabuddeen, the Presiding Judge of the Chamber, who expressed a partially dissenting decision.
So here's the problem with this tab and this witness: One, had the material been served in advance and had it been possible for me to consider it in detail, it might be that I would have admitted it and proposed admission as a way of using the court process to save time, something the accused knows we are prepared to do but hasn't invited us to engage in.
Two, this particular exhibit would appear, on the jurisprudence of this Chamber and the Appeals Chamber, to be prima facie inadmissible if its adduction is not for the limited purpose that Mr. Kay identified earlier, namely what issues did the witness have to deal with but for the purpose of the truth of what it says.
Your Honours, those are my submissions in brief. I would respectfully remind you that part of the Appeals Chamber's decision in rejecting the summarising witness proposal of the Prosecution was that cross-examining the person who summarises the statement or who would draw conclusions that -- who summarises the statement doesn't overcome the absence of the opportunity to cross-examine the persons who made them. So that in a case like this were it to be the case, and I simply don't know, that I would wish to challenge the underlying evidence, the 37749 fact that I have an opportunity to cross-examine this witness doesn't save the document from being prima facie inadmissible.
JUDGE KWON: So, Mr. Nice, what you're saying is that the documents relating to Racak is not admissible either.
MR. NICE: We haven't reached that yet. If you mean the documents of this witness.
JUDGE KWON: Yes.
MR. NICE: Because, of course, I know and I'm sure the Court remembers, that she conducted an on-site investigation so that she will be giving, or to some degree she will be giving evidence of things that she saw and did herself. That's rather different. Here, as far as I can understand it, she's operating as, I think it's going to be an investigative judge, taking evidence in one form or another, summarising it, and expressing opinions on it, both of which were rejected by this Chamber and by the Appeals Chamber, and in broadly parallel circumstances. So if I may respectfully say so, Racak comes later, but looking at this material -- and I'm not taking a technical point unhelpfully because I've indicated if the material is something I'd admit, I'd admit it, but I haven't been given a chance to check it.
JUDGE KWON: Summarised contemporaneously at that time, not for the purpose of this trial.
MR. NICE: Does that make any difference in the circumstances? I respectfully suggest no. Just one -- Mr. Saxon helpfully reminds me that that issue was also specifically set aside as of relevance by the Appeals Chamber. 37750
JUDGE BONOMY: Your objection here, though, Mr. Nice, isn't to the document because you acknowledge that it does have certain probative value as characterised by Mr. Kay. Your objection is to the questions that are going to be asked, which is rather different, I think, although the argument's the same.
MR. NICE: Your Honour, yes. What --
JUDGE BONOMY: I can see no problem with the document itself.
MR. NICE: The document itself might be simply be unnecessary because if the witness simply says in the course of so many years I had to deal with certain issues of the following types, do you need a document to prove it unless it's challenged? These documents are plainly being introduced for the truth of conclusions drawn, conclusions that I'm not in a position to accept at the moment and therefore I have to invite the Chamber to deal carefully with an admission of a document that, admitted now in this form, might then operate as a precedent for admitting a document of the same category at a later stage when its contents would be completely challenged by the Prosecution.
As it is, and the Chamber will understand this, if we're going to have several of these documents to look at, this first one I think has something like 21 named defendants or accused, and the Chamber can well understand that there are very grave difficulties facing anybody who wishes to check the acceptability of the conclusions drawn in relation to that.
JUDGE BONOMY: Well, we don't get the conclusions here, do we?
MR. NICE: I think the passage that -- 37751
JUDGE BONOMY: They're recommendations.
MR. NICE: I'm not sure what the cause amounts to and that's why I waited to hear what it was that the accused was going to ask the witness before raising to discuss with you the admissibility of this as a document. It appears it's a document that comes from somebody else, if we look at page 26.
JUDGE BONOMY: That's the prosecutor.
MR. NICE: That's the prosecutor. Well, the whole document needs to be explained to us a little bit more. Your Honour, I've taken enough time to set out my position and I can't help any further unless you have any questions.
JUDGE ROBINSON: Mr. Kay.
MR. KAY: This is nothing like the Barney Kelly example at all. The Prosecution seems to be putting forward a series of arguments over the last few months and weeks to make out that they've been disadvantaged in some way and that the accused is getting a much fairer trial than they are. It's not actually them that's on trial, and that's certainly not the case. Barney Kelly was an investigator for the Prosecution who summarised a large number of witness statements after the events and that was put forward as evidence by the Prosecution and rejected by the Trial Chamber. These are contemporaneous documents. They're public records. They're in no way dissimilar to other documents put forward by the Prosecutor during its case when it put forward public documents as matters and containing information that were relevant to the time, and that's exactly what these documents do. 37752 Mr. Nice should be concentrating on his indictment rather than on the issues that he's raising concerning these documents and dealing with ways of putting his case as a means of proving his indictment rather than contesting these issues. It's the accused's Defence that he wants this information in to show the workings of this witness as a judge. As far as the indictment is concerned and the Prosecutor, that might not be relevant to them although it is relevant to the accused's Defence. In our submission, this is plainly admissible evidence. It is probative, it is relevant, and it doesn't in any way breach the jurisprudence of this Tribunal. This is not the first time that a matter like this has been discussed. These are public documents that are capable of being considered by this Court.
JUDGE ROBINSON: Mrs. Marinkovic, perhaps you could tell us how -- how you work. When you collect your statements, you interview witnesses, and do you then draw certain conclusions, and what happens to those conclusions?
THE WITNESS: [Interpretation] Let me just inform you. As an investigating judge, when I act upon the request of the authorised public prosecutor and get the go-ahead for conducting an investigation against individuals, as an investigating judge I collect proof and evidence and information that is vital so that at the end of the investigation the prosecutor can access -- assess whether he's going to raise an indictment or abandon the investigation further.
All the suspects are interviewed. I talk to them pursuant to the code on criminal -- Criminal Code. When I read him his rights, the right 37753 BLANK PAGE 37754 to his defence, the right to the use of language, when I read out to him what he is being charged, when I read out the indictment and the crime, the description of the crime, through an interview with him he tells me about the charges brought against him. That's what I do with all suspects.
After that, once I bring in a decision on going ahead with an investigation, I continue to collect proof and evidence during the investigative process which have been proposed by the public prosecutor. When I amass and combine all that information and those facts, then I send the matter back to the prosecutor who then -- if I find good cause, then I send the whole case back to the prosecutor and then he decides whether to raise an indictment or not. Once the indictment is raised, we go to trial and the main hearing is conducted.
JUDGE ROBINSON: Yes. Thank you. So you make a determination as to whether there is good cause, do you, on the basis of the information that you have gathered?
THE WITNESS: [Interpretation] Yes. After interviewing the suspects, I make -- bring in a decision to continue investigations, to uncover evidence and material. Before I reach that decision I cannot carry on with the legal proceedings and the investigation, and that is pursuant to the Criminal Code and Law on Criminal Procedure.
JUDGE ROBINSON: Mr. Nice, it has been said in some quarters that the Tribunal might benefit from the system of an investigating judge, but that's another matter.
MR. NICE: Your Honour, yes, but that would be an investigating 37755 judge of this court. And although I have not -- I'm not in a position yet to forecast - even to anticipate - what my line of cross-examination will be, it would be naive of us all not to recognise that there are allegations made one way and another in respect of the conduct of courts in the former Yugoslavia. And I come back to my earlier observation about there being no jurisprudence, no regulatory basis --
JUDGE ROBINSON: There is jurisprudence. It's Rule 89(C).
MR. NICE: Dealing specifically with the findings of another court. And I make that observation because in some systems there is, and when the earlier finding of another court of the same court that's dealing with the matter is allowed into evidence, it's usually allowed into evidence with procedural limitations, sometimes, and with limitations as to the basis upon which it's allowed in. And it's clear that what would happen if this evidence goes in is that this witness will be allowed to give expressions of her opinion based on her investigations and/or -- and/or, if I may conclude, that the prosecutor himself will be allowed his opinions will stand. So those are the issues I raise.
JUDGE ROBINSON: Thank you, Mr. Nice.
[Trial Chamber confers]
JUDGE ROBINSON: Mr. Milosevic, let's move on. We rule that it is admissible. Let us move on quickly.
THE INTERPRETER: Microphone, please. Microphone.
THE ACCUSED: [Interpretation] I would like to say one thing for the record. I think it is quite unacceptable what Mr. Nice is doing in comparing an investigator with an elected judge of a high court who is in 37756 court here to testify and who is bringing us official documents and not her impressions or anything like that.
JUDGE ROBINSON: Mr. Milosevic, we have already dealt with the matter. Let us move --
THE ACCUSED: [Interpretation] They are public records, in fact.
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic, this tab is in fact an indictment against these individuals. Did you conduct the investigation in this particular case?
A. Yes.
Q. Did you conduct the investigation with all these individuals?
A. Yes.
Q. On the basis your investigations, did the public prosecutor raise an indictment?
A. Correct.
Q. A moment ago when you explained to us how you conduct your investigation, how you interview the suspects, et cetera, do you talk to them alone, to the suspects alone?
A. No.
Q. Who else is present?
A. When I interview a suspect, we have the deputy public prosecutor present who tendered the request for the investigation, as well as his defence counsel and an interpreter, because in most cases --
Q. Very well. An interpreter is present when we're talking about somebody who is Albanian or Turkish or whatever; is that correct?
A. Yes. But it's not simultaneous interpretation. It's consecutive. 37757 The interpreter translates my questions and then the answers, so the process is a little slower, which required quite a lot of time. We had to work out of hours in the afternoon and on weekends as well.
Q. Mrs. Marinkovic, let's leave that aside for the moment whether you worked after hours and put in extra hours or not. Let's clarify one matter. In the cases you have here listed here, when you conducted an investigation, was the prosecutor present? You said that actually it was the deputy prosecutor. Mr. Nice is a deputy prosecutor, he's not the Prosecutor, but anyway prosecutor, let's say. So you have the prosecutor present, you have a lawyer present, the defence counsel for the suspect; is that right?
A. Yes.
Q. And the clerk taking the minutes, and an interpreter; right?
A. Yes.
Q. So all the interviews are conducted and all the statements are taken in the presence of those individuals; is that right?
A. Yes.
Q. Then the minutes are taken, and on the basis of those records you make your conclusions and send the case back to the public prosecutor.
A. I do not as an investigating judge myself make any conclusions of my own. I just collect the facts and the evidence, and then I send that material to the prosecutor and it is up to him to decide whether to go forward or not. In this particular case, according to this particular indictment, he did raise an indictment because he considered there was good cause and sufficient grounds to raise an indictment. And after that, 37758 we come to a ruling of the first instance court --
JUDGE BONOMY: Mrs. Marinkovic, just a point of clarification: Not all of the suspects in this indictment had been detained. Some were at large.
THE WITNESS: [Interpretation] Of the 21 persons, three were at large. When I conducted my investigation, we did not -- the law enforcement organs were not -- did not have access to them. They couldn't find them.
JUDGE BONOMY: Simple question: You obviously were not able to interview them. Nevertheless, was an indictment prepared by the prosecutor against them even though they had not been interviewed?
THE WITNESS: [Interpretation] Yes, because the other suspects whom I did interview mentioned those individuals and talked about their activities, and this was later confirmed on the basis of the evidence that was collected during the investigation. And of the proof and evidence we found a large number of weapons, for example, and the authorities, on the basis of my order, searched the flats of these individuals and all the weapons listed here was found during that search in their apartments, and there is also evidence of this -- these weapons having been confiscated for them. They were in unlawful possession of weapons and weapons that were supposedly used during the terrorist acts they committed.
JUDGE ROBINSON: Yes. Mr. Milosevic, we will have to take the break now. We will adjourn for 20 minutes.
--- Recess taken at 10.31 a.m.
--- On resuming at 10.56 a.m. 37759
JUDGE ROBINSON: Mr. Milosevic, please continue. Remember, we want to move quickly over these areas leading up to 1998.
THE INTERPRETER: Microphone, please.
THE ACCUSED: [Interpretation] For the record, I'd like to draw your attention to the fact that this is not provided just to show you what an investigating judge of the district court in Pristina, in this case Witness Danica Marinkovic did, but it illustrates the facts that were established and taken note of in public records which have been provided here as exhibits. So if it says in the indictment in the mid-1990s a faction set up by the KLA, and here in a public document, in public records we see that happened in 1992, as early as that, that means that is being challenged, just like many other facts. And I shall, of course, bear in mind your instructions and guidelines with respect to the documents, but I'd like to ask you to do the same and to understand that I was not given access to or did not have disposal of any archives. My associates only received the go-ahead 15 days ago to access certain documents from the Ministry of the Interior, for example, and their archives, and they had sought to be given that right for the past two or three years. I don't even have my own archive at my disposal, which is quite different from Mr. Nice's situation who has all the archives of this world at his disposal.
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic, let's take note of one fact. You explained it to us a moment ago, but I'd like to take note of it now. An investigating judge in the proceedings that you explained during the investigation 37760 process does not bring in a single conclusion himself but just amasses evidence and grounds to show good cause. Is that the subject of what -- is that the gist of what you were saying?
A. Yes.
Q. Very well. Thank you. On this document, and we're talking about tab 2, which has been translated, I'd like to draw your attention to, gentlemen, the Serbian text of the document where there are handwritten notes which are not translated in the English version. They weren't taken into account, the handwritten portions.
You can take a look at the Serbian text just to see what I mean. Figures and dates are written in in handwriting next to the names. Otherwise, the names as they are in the English text are written out, typed out in the Latin script.
Now, Mrs. Marinkovic, whose hand notes are those? Who introduced those handwritten notes into the document? I'm talking about tab 2.
A. The handwritten notes.
Q. It says, for example, 20 years, et cetera, the figures.
A. That was written by the district public prosecutor on his copy of the indictment, and I have to say in this regard that the indictment was raised by the district public prosecutor in Pristina, and the number is 25/97. It is the 25th of July, 1997 is the date. And it incorporates 21 individuals accused, three of which were at large, fugitives. However, there were two more individuals in this indictment. They were officers of the Albanian army who acted with this group and engaged in terrorist activities in Kosovo and Metohija but under pseudonyms. The pseudonym was 37761 Zoki and Zeni. Those two pseudonyms. Since their identity has not been established or was not established, they could not have been incorporated by this indictment.
After the indictment was raised, however, and the legal proceedings and trial went ahead by the district court in Pristina, there was a verdict. They were found -- they had a judgement, and it is numbered 68/97 of the 16th of December, 1997, and that judgement, that verdict I did not have at my disposal, but on the basis of the judgement, they were found guilty. The individuals stated and set out here in the indictment were found guilty of having committed crimes, the crime of terrorism, pursuant to Article 125 of the Criminal Code of Yugoslavia. And pursuant to Article 139, para 2 of that same law we have the crime of association for the purpose of engaging in hostile activities. And Article 136 of the -- paragraph 1 of the Criminal Code. Of these 21 individuals, two persons were freed and found not guilty because there wasn't sufficient proof and evidence to find them guilty of the charges against them. The other individuals received prison sentences. They were found guilty. And the prison sentences are written down in handwriting next to each name. For example, Nait Hasani, the first accused, got a prison sentence of 20 years. Agron Toljaj also received a prison term of 20 years. Arif Voksi, once again 20 years' imprisonment. Hasan Zenelji got 15 years' imprisonment; Cerim Keljmendi, 15 years' imprisonment; Adrijan Krasnici, he was not sentenced because during the trial, as it says here next to his name, it says that he died. Aljban Neziri was set free. Agim Makoli received an 11 years' prison sentence. 37762
Q. Thank you, madam. You don't have to go through all the sentences. The public prosecutor then wrote in the results of the trial and his indictment in his own hand, using the judgement and verdict of the court; is that right? Is that what you were saying?
A. Yes, that's it.
THE ACCUSED: [Interpretation] So, gentlemen, I am not showing here or proving that they perpetrated terrorist attacks, killings, and so on and so forth. That was established by the court itself. The court reached that verdict. But these court files I am tendering as an exhibit showing that it occurred and that it occurred as of 1992, according to this exhibit.
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic, apart from what we just established regarding year 1992, which says -- which is said in the indictment to be mid-1990s, in paragraph 93 it says that the KLA organised attacks primarily targeting Serbian police forces.
Would you please tell me, according to the number of victims of these attacks perpetrated by the KLA, did those attacks target primarily civilians or police forces?
A. The attacks of the KLA terrorist organisation targeted mainly civilians; Serbs, Albanians, and all the others living in Kosovo and Metohija, as well as members of the police force.
Q. So when it says "targeting primarily Serbian police forces --"
JUDGE BONOMY: Just to be clear about one thing, is it fair to say that every one of the specific allegations in the indictment relates to 37763 either late 1995 or to 1996 or 1997?
THE WITNESS: [Interpretation] Reference to the judgement, to the terrorist acts perpetrated by this group relates to 1996. However, before that time they worked to organise and create an association or, rather, a gang which later grew into the terrorist organisation known as the KLA. I can read out to you very briefly the part that regards the first accused. It says: "In 1992, ending with 1995, together with the other accused, after meetings and agreements by procuring, transporting, and concealing materiel and weapons --"
JUDGE BONOMY: My question was simply related to the specific acts that they were said to have committed, and you've confirmed what I thought was the position. Thank you.
THE WITNESS: [Interpretation] Yes. Prior to that time, they prepared, they organised themselves, procured unlawful weapons as well as funds from abroad. They also procured funds through crime activities, organised crime, and the perpetration of criminal offences, not only in Kosovo and Metohija but in all of Europe.
JUDGE ROBINSON: Yes, Mr. Milosevic.
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic, in paragraph 93, after this sentence which says: "... primarily targeting the police forces of Serbia," a matter which we clarified a moment ago, a sentence follows that reads: "Thereafter, and throughout 1997 --" which means beginning with mid-1996 and throughout 1997 -- "Serbian police forces responded with forceful operations against suspected KLA bases and supporters in Kosovo." 37764 I would like to ask you, in 1996 and until the end of 1997, were there any forceful police operations at all, or did the police just react to --
JUDGE ROBINSON: No, no, Mr. Milosevic.
MR. MILOSEVIC: [Interpretation]
Q. -- to actions by investigating crimes --
JUDGE ROBINSON: The latter part is leading. You have to ask her generally what was the reaction, if any, of the Serb police force.
THE ACCUSED: [Interpretation] I am asking the witness questions related to paragraph 93, which says that in mid-1997 and "throughout 1997, Serbian police forces responded with forceful operations." That is a quotation from the indictment.
MR. MILOSEVIC: [Interpretation]
Q. Tell me, please, is that correct or not?
JUDGE ROBINSON: [Previous translation continues] ... to ask her, if she can answer it, what was the reaction of the police force. But you're asking her, Were there any forceful police operations at all or did the police just react to? and then I stopped you because that was leading.
THE ACCUSED: [Interpretation] Very well.
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic, beginning with mid-1997 and throughout 1997, as it reads in the indictment, what was the reaction of the police force?
A. The police did not react forcefully. The police did not use any violent means against the KLA. They only worked to identify perpetrators of crimes. There were no clashes, conflicts between the police and the 37765 BLANK PAGE 37766 KLA.
JUDGE KWON: Mrs. Marinkovic, were you at -- were you in the position to answer that question at all?
THE WITNESS: [Interpretation] I am in a position, because I spent a lot of my time working on investigations against a large number of suspects involved in these crimes, and through this work I acquired a lot of knowledge related to that matter, and I am presenting to you all the work that I did through which I witnessed all of these things in Kosovo and Metohija. And I claim that in the period mentioned there were no forceful police operations against the KLA. And if you look through the cases I conducted, you will see that. We will come to that.
JUDGE BONOMY: I understand that you can say that you were not involved in any case in which there was evidence of that, but how can you go beyond that? I mean, I would never dream of making a claim that -- about the whole jurisdiction of all the judges of the whole of Kosovo, that they had never encountered any example of Serb aggression. How can you possibly do that?
THE WITNESS: [Interpretation] You know, I claim because I know. I was an eyewitness, and I conducted thousands of upon thousands of on-site investigations in the field.
JUDGE BONOMY: You can speak about the cases in which you were an eyewitness but you've given a much wider answer than that that covers every set of circumstances in Serbia -- not just Kosovo; in Serbia, as far as I can see.
THE WITNESS: [Interpretation] No, no. I am not saying anything of 37767 the kind. I'm talking only about the territory where I was authorised and competent to conduct investigations and on-site investigations. That is the area of Pristina, which is a smaller territorial unit, the district court of Pristina.
THE ACCUSED: [Interpretation] Please bear in mind one thing that can be proven with any number of witnesses and documents: The first police operation you could call a forceful operation happened in 1998 and it targeted the terrorist group of Adem Jashari. It was presented at the very beginning, when you were not here yet, but I see that it was omitted from the indictment because it turned out after all not to have been a crime and it turned out that it cannot be treated like a crime because the person involved was a murderer whom the police sought to arrest and who had previously been convicted to 20 years in prison, together with his group. So the first operation of that kind took place in 1998?
MR. MILOSEVIC: [Interpretation]
Q. Do you remember, Judge Marinkovic, when this incident in Prekaze happen?
A. With regard to this reference of Adem Jashari, he was part of the group against which I conducted an investigation. The suspects were charged with the crime of terrorism. He was one of the suspects. After that, he became one of the convicts because he was a fugitive at the time of the investigation and inaccessible to the state authorities during the proceedings, during the trial. He was tried in absentia and convicted on two charges of terrorism involving crimes that caused the death of two policemen and civilians in Glogovac in Serbia, and Prekaz and Srbica. He 37768 was sentenced to 20 years in prison and an all-points alert was issued against him. So the law enforcement authorities continued to search for him based on both the indictment, which was confirmed, and the final judgement.
Q. Are you familiar with the incident of -- in Prekaze when the group of Adem Jashari was liquidated?
A. Yes, I remember. That was in March 1998.
Q. Stop there. Before March 1998, were there any similar police operations involving the surrounding or liquidation of a terrorist group?
A. No, there had been no such action before.
Q. So in 1996 and 1997, there was nothing of the kind. Only in 1998 the group of Adem Jashari, who was already previously sentenced to 20 years in prison, was surrounded and killed by the police in Prekaze. Was that the first action?
JUDGE BONOMY: Does the witness confirm that that's what happened?
THE WITNESS: [Interpretation] Yes. Yes. That's the way it happened.
JUDGE BONOMY: You would describe that as forceful action by the Serb police to liquidate personnel suspected of being connected with a terrorist organisation. That's the way Mr. Milosevic characterises it. Do you agree with that?
THE ACCUSED: [Interpretation] Mr. Bonomy, no. I did not qualify that as a forceful action. I qualified it as the first action of the police force aimed at arresting Jashari. Jashari being a person who was asked to surrender when surrounded, upon which he and his group kept 37769 firing at the police throughout that time. He was given several hours to surrender.
JUDGE BONOMY: You yourself, if you look back at the transcript, described the conduct as liquidating the group that was with Jashari. Are you departing from that description?
THE ACCUSED: [Interpretation] I am saying that it was not an action aimed at liquidating the group. It was aimed at arresting Jashari; however, during the operation to arrest him, he was eventually liquidated, together with his group, because they had shot at the police all the time. The operation was originally intended to arrest them, just as all the others who were tried had been arrested by normal procedure. But unlike Jashari, they did not shoot at the police, and it was possible to arrest them. Jashari and the others were also meant to be arrested.
JUDGE BONOMY: What this demonstrates, may I suggest, Mr. Milosevic, is that it does not help to ask leading questions.
THE ACCUSED: [Interpretation] I thought it was not a leading question.
MR. MILOSEVIC: [Interpretation]
Q. Witness, do you know anything about the period immediately before the police attempt to arrest Adem Jashari in Donje Prekaze village? What was the situation in Donje Prekaze and the surrounding area?
A. Let me tell you, for many years before that the police had no access to Donje Prekaze because it held a large group of terrorists which kept walking about the place armed. So nobody dared access the village or come in. They also installed checkpoints and guards around the village so 37770 the police was unable for years to come into the village and go about their regular work, inspecting and patrolling the village.
MR. NICE: Your Honours, I don't know whether it's worth checking at this stage, whether this is in the area that the witness said was an area she could speak about or was outside it.
JUDGE ROBINSON: Mr. Milosevic, I'm allowing you to proceed, but you must move quickly over these areas.
JUDGE BONOMY: Can you deal with the question the Prosecutor raises. Is this within the area that you were responsible for?
THE WITNESS: [Interpretation] Yes, it was, because the next group which I investigated on charges of terrorism included all the members of the terrorist group which was active in Donje Prekaze village, including Adem Jashari.
JUDGE BONOMY: Was Donje Prekaz village within your area of investigation, the area that your court covered?
THE WITNESS: [Interpretation] I will tell you now: Donje Prekaze village is covered by the district court of Kosovska Mitrovica. However, since the group of terrorists that had been apprehended and suspected of having perpetrated a large number of crimes, including an attack on the police in Glogovac in 1993, therefore we as the district court were the first to instigate proceedings against the entire group, and for purposes of economy, all the incidents involving that group in the territory of Kosovo and Metohija were placed under the competence of the district court of Pristina for the entire group, pursuant to the Law on Criminal Procedure which stipulates precisely that way of proceeding. 37771
JUDGE BONOMY: Thank you very much.
THE WITNESS: [Interpretation] Whichever court starts a case finishes it.
MR. MILOSEVIC: [Interpretation]
Q. Judge Marinkovic, this paragraph 93 of the indictment, when it says, "Beginning with mid-1996 and throughout 1997 Serbian police forces responded with forceful operations," it is not accurate?
A. It isn't.
Q. The first police operation was in March 1998, involving the attempt to arrest Adem Jashari.
A. Yes.
Q. Thank you. Can you answer this question: How many attacks, according to the indictment under tab 2, targeted the police force, and what were the consequences of these attacks?
A. I will try to say, very briefly, looking at the overview that I submitted to the Trial Chamber to answer the question. The terrorist group that perpetrated attacks against police patrols committed -- mounted four attacks. In the night of the 31st of August, 1996, they attacked the police building in the Klincina village, firing a hand-held grenade from a launcher that caused a fire of the building and caused the death of policemen Borislav Kozic, Armus, Djuric, and another policeman. Page 5 of the indictment --
Q. That is the indictment that we have.
A. Second attack, the 3rd of August, 1996, when after midnight an attack was carried out against the police building in Orlane, involving 37772 the simultaneous firing of automatic rifles preceded by the throwing of a hand grenade. This terrorist act was committed simultaneously with attacks by other terrorist groups on the same day, targeting facilities and personnel of police force in Luzane, Krpimej, and others. The third attack was carried out also in August against the police section in Celopek village, the police building, by firing weapons at the building, by activating and throwing two hand grenades and thus jeopardising the lives of the policemen on duty Radojica Nikcevic, Radojko Arsenijevic, Sasa Radojcic, and Dejan Drljevic.
JUDGE ROBINSON: Mr. Milosevic, if the police did respond with forceful operations, as is stated in paragraph 93, there is nothing inappropriate about that response, in my view at any rate. They're entitled to respond. This part of the indictment is just setting the background to the later charges. So there is really no need to dwell on this particular paragraph.
THE ACCUSED: [Interpretation] Mr. Robinson, that's the point. There were no such police actions in mid-1996 and throughout 1997, as alleged in this paragraph. The first police action was in March 1998 when an attempt was made to arrest Adem Jashari's group. So when it says here in this paragraph "From mid-1996 and throughout 1997 the police forcefully reacted," that is simply not correct. It's not true. It is correct that that would have been legal, but they did not respond at all. There was no armed conflict between the police and the terrorists, no forceful actions whatever in 1996 and 1997. The first action was in March 1998 when an attempt was made to arrest Jashari. 37773
THE WITNESS: [Interpretation] May I explain?
JUDGE ROBINSON: No, no. I think this point was been ventilated sufficiently. Move on to -- move on to another area now.
THE ACCUSED: [Interpretation] All right.
MR. MILOSEVIC: [Interpretation]
Q. And in addition to members of the police, were civilians and their property the target of their attacks?
A. Yes. The facilities where refugee families lived, starting from 1995. They attacked the refugee settlement in Junik on the 7th of May, 1995. Then in Balaboc again on the 8th of May -- on the 8th of August, 1996. Then also another refugee centre on the 2nd of September, 1995. A hand grenade was thrown. I shall slow down, yes. On the 22nd of September, 1995, when a hand grenade was thrown at the teachers' school in Pristina where refugees had been put up, displaced persons. The 11th of September, 1996, in Decani, an explosive device was placed underneath the tractor of Ismet Maljokaj who cooperated with Srbija Suma, a public-owned company.
Q. He's an Albanian?
A. Correct. His tractor was destroyed and the facility involved too. Now, what else did I want to say which is important for the activity of these terrorist groups? That they operated from ambushes during the night. If up look at the overview of these attacks, they attacked during the night or in the early morning. They would throw hand grenades and run away, or they would shoot at members of the MUP and their facilities and then, again, they would run away. 37774 All these attacks were launched from ambushes, so the police could not have reacted even if they had wanted to.
That is what I have to say about the cases that I investigated, and this meant that many acts committed by terrorists gangs and groups were confirmed.
JUDGE ROBINSON: Mr. Milosevic, we have the point about that now. Move on to another area.
MR. MILOSEVIC: [Interpretation]
Q. On page 5, number 1, terrorist attacks from the 22nd of April, 1996, when several persons were killed and some were seriously wounded. You can also see that in this particular record. Judge Marinkovic, tell us, please, in addition to this information about the attacks committed and other crimes, did you get any other information during your investigation?
A. A terrorist attack was launched at Cakor in Decani, a catering facility. This was on the 22nd of April, 1996, sometime in the evening around 8.30 p.m., when fire was opened from automatic rifles at the windows of the building. It was activated -- hand grenades were activated and Blagoje Okuka and Djordje Dragic and Stane Radusinovic were killed.
JUDGE ROBINSON: I'm not hearing any more evidence about the -- no more evidence about these terrorist attacks. We have heard enough. Move on to Racak.
THE ACCUSED: [Interpretation] Well, previously I have to deal with some other questions before I move on to Racak.
JUDGE ROBINSON: What other questions? 37775
THE ACCUSED: [Interpretation] I wanted us to have a look at tab 3 in the first binder of exhibits. I would like to have a look at the indictment therein. KT201 of 1993 against several persons. That is in tab 3, that indictment.
Now, what is this all about?
JUDGE ROBINSON: What is the purpose of this?
THE ACCUSED: [Interpretation] The purpose is that you can see something here, for example, in relation to Judge -- to Mr. Bonomy's question to Judge Marinkovic about the crimes in tab 2 related to 1995 and 1996 and the other years. Then the next indictment dates back to 1993 in tab 3. And that also shows a series of crimes that had been committed. I wanted to ask Judge Marinkovic about the criminal charges brought here.
JUDGE ROBINSON: What is the purpose of showing that a series of crimes had been committed? Is that in dispute?
THE ACCUSED: [Interpretation] Well, you see, Mr. Robinson, I explained at the beginning: As opposed to what the indictment says about forceful police attacks starting from mid-1996 and throughout 1997, which is all incorrect, here you can see along parallel lines on the one hand how terrorist attacks were committed and how people were killed, Serbs, Albanians, others. And on the other hand, along parallel lines, how state organs reacted, how they investigated cases, how they caught the perpetrators, how investigations were carried out, as Judge Marinkovic explained, how they were tried before courts of law, and how they were ultimately convicted. So this was normal legal procedure in any state 37776 where there is rule of law.
This is a picture that you should have in your mind. All of this went on this way until foreign factors instigated the KLA to escalate into an organisation launching large-scale terrorist attacks when --
JUDGE ROBINSON: [Previous translation continues] ... the tab that we just looked at, tab 2.
THE ACCUSED: [Interpretation] Very well.
JUDGE ROBINSON: I'm not allowing it. You must move on to Racak. We've had enough of this.
THE INTERPRETER: Microphone, please. The interpreters cannot hear the speaker. Yes, now we can hear him.
THE ACCUSED: [Interpretation] What is contained in tabs 4, 5, and 6, may I ask the witness that? Because this includes the verdicts of the district court and the Supreme Court. It is claimed here that the Albanians put up passive resistance, so I wanted --
MR. NICE: 4 I don't have a translation for, 5 I don't have a translation for, 6 I think we do have a translation for, and can I trouble the Chamber to just help me to this extent in respect of the admission of tab 2, which I understand of course is going to be admitted, there was a discussion about the particular utility of tab 2. The accused, in dealing with it immediately on return this morning, explained his understanding of the position, which was, although expressed differently, I think to the effect that he was relying on the contents of the document for its truth, and my working assumption is that's the basis upon which it's being admitted, and I'd be simply grateful for clarification of that if I'm 37777 BLANK PAGE 37778 wrong.
Incidentally, I have -- in case the Chamber doesn't have the precise words that the accused used to explain his purpose in the document, he said immediately after the break that it illustrates that facts that were established and taken note of in a public record provided here as exhibits --
[Trial Chamber confers]
JUDGE ROBINSON: Mr. Nice, we'll come back to that issue.
MR. NICE: Thank you very much.
JUDGE ROBINSON: Let's move on with the evidence. Mr. Milosevic, these documents that are not translated, we will not be able to deal with them.
THE ACCUSED: [Interpretation] It was my understanding that tab 6 had been translated. Sixty -- out of 64 documents, nine have not been translated yet. They were all given for translation, but --
JUDGE KWON: Mr. Milosevic, the Presiding Judge said to you to move to Racak right now. You can come back to tab 6 and other matters after Racak. Please proceed.
THE ACCUSED: [Interpretation] Very well. Very well. If it suits you better for me to move on to Racak immediately, that is what I will do, with pleasure. Let me just move these tabs aside, because they're just bothering me here. I need to leave this aside so I can go back to it later.
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic -- Mrs. Marinkovic, we're going to deal with Racak 37779 now. In paragraph 66a, it says: "On the 15th of January, 1999, or around that date, in the early morning hours the forces of the FRY and Serbia attacked the village of Racak (the municipality of Stimlje). After shelling, the forces of the FRY and Serbia entered the village later in the morning and began conducting house-to-house searches. Villagers, who attempted to flee from the forces of the FRY and Serbia, were shot throughout the village. A group of approximately 25 men attempted to hide in a building, but --" I'm just reading out what it says here, what is written here, so I'm not responsible for the Serbian translation and for the case endings used here "-- but were discovered by the forces of the FRY and Serbia. They were beaten and then were removed to a nearby hill, where they were shot and killed. Altogether, the forces of the FRY and Serbia killed approximately 45 Kosovo Albanians in and around Racak." And then it says: "Those persons killed who are known by name are set forth in Schedule A, which is attached as an appendix to this indictment."
Before I put a question to you, I would like to draw your attention to something. I hope you have had a look at this indictment, and that's the part where I was accused of killing, the crime of killing, and under (A) it says Racak and everything that I quoted to you in relation to Racak. This is the killing that I committed. Now, Mrs. Marinkovic, since in your capacity as investigating judge already on the 15th of January you entered Racak and spent some time in the village itself, please give us an answer or, rather, what is correct from the paragraph that I read out to you? Is anything correct? 37780 Is all of it correct? Is it partly correct? I'm not putting a leading question. Just give an answer in relation to what I quoted from this paragraph of the indictment. What is correct?
A. It is not correct that there had been shelling. It is not correct that on the hill, as it says here, 25 persons were brought out and killed. Also, this other figure that is mentioned, 45 persons killed in Racak. It is not the way it is written in this indictment.
Q. All right. Is there anything that is correct in this paragraph of the indictment, because you've just mentioned all of this now. Could you read this paragraph out again. Is there anything that is correct here?
A. May I have a look at the indictment again? May I see it once again?
Q. By all means. In the Serbian translation, it is page 25.
JUDGE KWON: I don't think it's in the binder.
THE ACCUSED: [Interpretation] It's not in the binder.
JUDGE KWON: It's the indictment, Kosovo indictment. Prosecution --
THE ACCUSED: [Interpretation] You can take my copy. Go ahead, take my copy. You can take my copy.
MR. NICE: We don't, I'm afraid, have a spare B/C/S version of the indictment immediately to hand.
THE ACCUSED: [Interpretation] But could you please just give it back to me immediately afterwards.
MR. MILOSEVIC: [Interpretation]
Q. On the right-hand side, you will see this big heading. "Murder," 37781 it says, then and it says "Racak."
JUDGE ROBINSON: Mr. Milosevic, you're not approaching this the right way, in my view. Forget the indictment for the time being. She went to Racak. Ask her questions about what she saw there, and that way you adduce the evidence that you want, and that evidence will, if it is the evidence you want, contradict what is in the indictment. That is the way Mr. Kay would do it. That's the way it's done in my system. Don't bother about the indictment. Let her tell you what she saw at Racak. She will give evidence which will contradict the indictment about 45 Kosovo Albanians killed, and she will give her evidence which will contradict what is in paragraph 66. That's the way the evidence should be adduced.
THE ACCUSED: [Interpretation] Very well, Mr. Robinson.
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic --
A. May I be allowed to comment on para 98?
Q. It's not 98, it's 66.
JUDGE ROBINSON: A very brief comment.
THE WITNESS: [Interpretation] There's a paragraph numbered 98 as well.
JUDGE ROBINSON: A very brief comment, and then Mr. Milosevic will ask questions.
THE WITNESS: [Interpretation] 66(A), I see. It says that a group of about 25 males attempted to hide in a building but were discovered by the forces of the FRY and Serbia. They were beaten and then were removed to a nearby hill where they were shot and killed. Although the forces of 37782 the FRY and Serbia killed 45 approximately Kosovo Albanians in and around Racak.
MR. MILOSEVIC: [Interpretation]
Q. You can make your comments and I'll ask you the questions.
A. What is stated here is not correct because I didn't find this in Racak when I was there. Secondly, that it says that on the 15th of January, in an incident of that kind, 45 unarmed Kosovo Albanians were killed, as it says, in the village of Racak, Stimlje municipality. That is incorrect as well, because they weren't unarmed.
JUDGE ROBINSON: Mr. Milosevic, start from the beginning. She got some information. She went to Racak. Who was with her, what did she see there, and so on.
THE ACCUSED: [Interpretation] Very well.
MR. MILOSEVIC: [Interpretation]
Q. On the 15th of January, were you yourself in Racak?
A. Yes.
Q. To the best of your knowledge, on the 15th of January while you were in the village of Racak itself or on a later date when you tried to make an on-the-spot investigation on the 16th and 17th, did you experience the shelling of the village of Racak?
A. There was no shelling of Racak either on the 15th or a few days after that when I tried to go in, and the last day when I did manage to enter Racak.
Q. On the 15th of January, 1999 - we're always speaking about the events in Racak of 1999, I don't want to waste time repeating the year 37783 every time - did you on the 15th of January while you were in Racak notice on the houses or in the surroundings any destruction and damages that could indicate that there had been shelling or any artillery fire whatsoever?
A. I noticed nothing of that kind.
Q. In the paragraph I quoted from the indictment, the forces of the FRY and Serbia are mentioned. Now, what do you understand under those terms?
A. The forces of Serbia and the FRY is -- that was the army and the police. That's my understanding. That is what I mean when I see "FRY and Serbian forces."
Q. To the best of your knowledge, in and around the village of Racak were there any -- did any units of the Yugoslav army take part in actions there?
A. No. I didn't see any army, any soldiers anywhere.
Q. Did the army shoot at the village of Racak?
A. No, it did not.
Q. I asked you a moment ago about the traces of shelling and you said you saw no traces of shelling. While you were in the village on the 15th of January, on the houses and the surrounding facilities, did you notice any damages which would point to any use of firearms to any great extent within the village itself?
A. No. There were no damages on the houses and I went round the whole village of Racak.
Q. On that same day, the 15th of January, 1999, in Racak, did you 37784 happen to notice a single civilian woman or child?
A. No, I did not. The village was completely empty. There were no women, no children, or any civilians whatsoever. Nobody at all.
Q. What does that indicate? What does that show?
A. It shows that the village had previously been liberated, that the civilians had left the village beforehand, and that members of the terrorist gang or band had come in.
JUDGE KWON: Mrs. Marinkovic, how come you were in Racak on 15th of January? Why did you go there?
THE WITNESS: [Interpretation] Yes, I can explain that. In the morning in the office of the district court of Pristina where the duty investigating judge was there, and that was me, I was informed by the duty service of the SUP of Pristina, and this was common practice that the person on duty should inform the duty investigating judge of any event that took place and an on-spot, on-site investigation had been conducted. So as I say, the duty officer phoned me up and told me that in Racak there had been an incident, a conflict between individuals and terrorists that they assumed that there were casualties as a result and that I should decide whether to conduct an on-site investigation, and, if so, to inform them of that.
As soon as I had completed talking to the duty officer, the public prosecutor came into my office - his name was Ismet Sufta, he was a Turk by ethnicity - and he asked me straight away, he said, "Judge, have you received information about Racak?" I confirmed that I had, and I said that I had decided that an on-site investigation should be conducted. He 37785 accepted that and we agreed to go out together and investigate. I called up the duty service to tell them of our decision, saying the prosecutor and myself decided to conduct an on-site investigation and they should ensure a vehicle to take us from Pristina to Stimlje and then from Stimlje to Racak, and at the same time the duty service or person on duty should inform the authorised crime inspector and crime technician whom we needed in order to set up a team for an investigation, scene of crime investigation and carry on with our work.
At the same time, I told the duty officer that he should inform the representatives of the OSCE straight away so that they should become apprised of my decision to carry out a scene of crime investigation in Racak and that they could come and be observers if they so desired, which was in keeping with the agreement reached between the FRY government and the OSCE.
JUDGE KWON: What time was it that you received the call from SUP?
THE WITNESS: [Interpretation] It was in the morning. I think between 8.30 and 9.00 a.m.
JUDGE KWON: Thank you.
JUDGE ROBINSON: When did you reach Racak?
THE WITNESS: [Interpretation] Well, let me tell you, by the time we set out from Pristina to Stimlje, it takes you about half an hour to 45 minutes. In Stimlje, we had to wait for the authorities, the inspector and the crime technician to come, and then we set out, I think it was between half past one and 2.00 p.m. when we started out from Stimlje towards the village of Racak. 37786
JUDGE ROBINSON: So you would reach Racak at about what time?
THE WITNESS: [Interpretation] We reached Racak, as it says in my Official Note which I compiled linked to my investigation that day, we reached Racak at about 1400 hours.
JUDGE ROBINSON: And according to the reports that you received, the incident at Racak would have taken place when?
THE WITNESS: [Interpretation] Well, I learnt about the incident only when -- or the details about the incident I learnt at the police station in Stimlje when I got there, and I heard from them that it had been in the hours of the morning, early hours of the morning when the incident in Racak actually took place. After midnight, at 3.00 or 4.00 a.m., in actual fact. Around about that time, between midnight and 3.00 or 4.00 a.m.
THE ACCUSED: [Interpretation] May I be allowed to continue?
JUDGE ROBINSON: Yes, but that is what you should have done when I told you to start from the beginning, Mr. Milosevic; how she got the information and how they went there.
MR. MILOSEVIC: [Interpretation]
Q. According to your information, Mrs. Marinkovic, this operation, the action was it reported to the Verification Mission of the OSCE?
A. Yes, it was.
Q. And on what grounds do you say that?
A. I learnt about that on the basis of information I received at the police station in Stimlje, and I also saw on the nearby hill two orange vehicles parked on the hill. 37787
Q. You saw that on the 15th of January, which is the day that the incident in Racak occurred?
A. Yes.
Q. And when you yourself arrived in Racak, was there still any fighting going on?
A. When we arrived in Racak, you could hear firing and shooting coming from all sides. However, it didn't reach us. The firing and the shots didn't reach us. So we were able to approach the scene where the police had located all the weapons it had found on the surrounding hills and collected up in that particular spot. And the quantity of weapons in one spot which I myself personally saw, I and the prosecutor and the other members of the scene of crime team, the ammunition was sorted according to categories, the amounts, photographs were taken of all this, and I issued orders that all these weapons should be loaded up onto a vehicle and serve as proof, material evidence and be brought in to the SUP or the police station at Urosevac.
Q. All right. Thank you. Now, tell me what you toured first. You arrived at about 2.00 p.m., 2.00 in the afternoon. What did you go and visit first? Did anybody give you any suggestions as to what you should go and see first? You were the investigating judge, so what did you do first?
A. We entered the village of Racak. We passed by the mosque and reached the place where the police was or the police who was with me, and it was their duty to provide safety and security, to secure the spot. And they took me to the place where the weapons were located. 37788
Q. So that means the first thing you saw were the weapons. Did you see anything else in addition to the weapons that was found there, and was it all a mass collected up in one place?
A. Yes, one place. There was a large amount of weapons, different types of weapons. Then there were hand grenades. There were boxes with large quantities of ammunition, uniforms.
Q. Do you have any notes on the specifications for the type of weapons found, the quantity and so on, what was found on the spot?
A. Yes, I do. I made up an Official Note on the 15th of January 1999, and in that Official Note I list everything that was found, all the weapons found on -- in the area, and I have a picture, a photograph to back it out.
Q. Do we have that Official Note in our exhibits?
A. I don't know. Let me have a look in the tabs, what tab this is under.
Q. Let me just take a look at the binder as well.
A. It says Racak videotape CD.
Q. Well, I'll have a look. I can't find the tab now. But I'll take a look during the break and find it, not to waste time. But let's recapitulate: You first of all went to the spot where the weapons had been collected and the other equipment that you mentioned; is that right? Now, I'll find the document during the break and find the number of the tab relating to Racak and then we'll do it that way after the break.
JUDGE KWON: Tab 40. -- 45.4 says that it's a CD of bodies found 37789 BLANK PAGE 37790 in a mosque, KLA equipment, and documentation.
THE WITNESS: [Interpretation] But that was on the 18th of January.
THE ACCUSED: We'll come to that in due course, Mr. Kwon.
JUDGE KWON: Yes, tab -- .2, the KLA weaponry found in the village Racak, 15th of January.
THE ACCUSED: [Interpretation] We'll come to that.
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic, just wait a while. You don't have to look for the document now.
JUDGE ROBINSON: Put the question. Put the question, Mr. Milosevic.
MR. MILOSEVIC: [Interpretation]
Q. We established what you first saw and where you went first. What happened afterwards, after that?
A. After that, when we had made a list of everything we found and took photographs of the weapons and loaded up the weapons that we found in the area into the vehicle, the members of the police force who were with me on the scene, who were providing security, they suggested that we look around for any victims. While we were deciding what direction to take towards the hill, which is where they thought the victims were most likely to be, they opened fire on us from all sides. Shooting came at us from all sides. There was such a lot of shooting that you couldn't hear yourself think. The most important thing was to take refuge, to get into the vehicles and leave the scene in order to save our lives, all of us who were there, to go to safety. 37791 So we got into the vehicle, left the village, and managed to reach the Stimlje police station. We waited -- we were shot at all the time. We managed to reach the police station. We waited there for a while. The shooting continued. It began to grow dark, and I was advised by the police that it was very risky to try and enter the village again to continue our scene of crime investigations, so I decided to give it up for the day because it wasn't objectively possible to go back to the village and carry out an on-site investigation, so we decided to do that the next day.
Otherwise, I can also tell you, I omitted to say that a moment ago, once we entered the village we did not find any Racak inhabitants there nor any other police forces except the group of policemen who were with me there to secure the scene and to provide protection to the members of our team while conducting the scene of crime investigation.
Q. Very well. Now, let's take a look at tab 45. It is 45.1. It is a videotape -- it's a CD, in actual fact, and the date is the 15th of January, 1999. You can see the police entering the village. 45.1 is the reference number.
JUDGE ROBINSON: Are we going to have the video?
THE ACCUSED: [Interpretation] Yes.
JUDGE ROBINSON: Is there a problem locating the video, or is there a problem with the video itself? Is there some technical problem?
THE ACCUSED: [Interpretation] There shouldn't be. It's the first video segment under tab 45.1.
THE REGISTRAR: Your Honour, the AV director just received the 37792 tape a few minutes ago. Now they're working on that. A small technical problem there.
JUDGE ROBINSON: They just received it?
THE REGISTRAR: Yes.
JUDGE ROBINSON: I understand the tape was just received and they're working on it. There's a small technical problem. So, Mr. Milosevic, move on to something else and then we can come back to that.
THE ACCUSED: [Interpretation] All right.
MR. MILOSEVIC: [Interpretation]
Q. So we are not able for the moment to see any of the videotapes. We have three of them now. I'm really surprised to hear that they were provided only now. I was certain that the tape had been provided a long time in advance.
JUDGE ROBINSON: We can come back to the videos.
THE ACCUSED: [Interpretation] That shouldn't be a problem.
MR. MILOSEVIC: [Interpretation]
Q. So when we see the tapes, we will see what they show. On the 15th of January, while you were waiting in Stimlje for a while, hoping that the situation would calm down and you would be able to continue your on-site investigation, and then it grew dark and you decided to go back to Pristina for the day?
A. Correct.
Q. On the 16th of January, did you continue the on-site investigation? 37793
A. On the 16th of January, again accompanied by the on-site investigation team, I left Pristina, arrived at the Stimlje police station, and as agreed with the police who were to accompany me, we went to Racak.
Q. Did you eventually reach Racak?
A. No, we didn't.
Q. Why?
A. Because on the way, before we were halfway there, fire was opened at us from all directions from a variety of weapons so that the policemen who accompanied me and who were meant to secure the scene advised me it was very risky to continue our journey towards Racak because all of our lives were in danger. I took their advice and returned, so I did not manage to conduct the on-site investigation on the 16th of January either.
Q. So you were shot at on your way to Racak?
A. Yes.
Q. What time was it, approximately? Whenever I ask about the time, I want you to give me the approximate time. Do you know from your notes or do you remember when fire was opened at you on your way to Racak?
A. I think it was in the morning, around noon maybe, between noon and 1.00 p.m. I cannot remember the exact time.
Q. So you were shot at. Is it approximately the same time when William Walker was in Racak?
A. I learned later that the time when William Walker was in Racak coincided with the time when we were shot at.
Q. When did you find out that when -- while you were being -- while 37794 you were under fire William Walker was in Racak?
A. Well, because for security reasons it was impossible to conduct that on-site investigations, we all returned home after agreeing that we should return the next day and attempt again to carry out this investigation.
That evening, I heard on TV the statement given by Walker that allegedly a massacre took place in Racak.
Q. Since you were in Racak -- since you had been in Racak the previous day, did it sound likely to you? Did it sound probable, what he said in the statement?
A. I don't believe it, because I had been there on the 15th. I had seen nothing of the kind. On the 16th, I tried to go to the place again, and I was under fire, while Walker had visited the village accompanied by a crew of journalists. I saw on TV a number of armed personnel, security, who were with him.
Q. Did anything arouse suspicion in your mind, anything in that statement made by Walker?
A. I was suspicious immediately of the fact that Walker had entered the village with his escorts without prior agreement and notification to me and the competent authorities, because we should have, according to procedure, gone to the village again to try to find the victims and inspect the site.
Q. KVM members attended your on-site investigations on a number of occasions prior to that.
A. In a large number of cases, I conducted on-site investigations 37795 when OSCE representatives had already arrived at the scene in Kosovo and Metohija, and according to the agreement I mentioned earlier between the government of Yugoslavia and OSCE done in October 1998, OSCE representatives were always notified by the duty service of the SUP whenever an incident had occurred, and it was common practice that the team on duty should go out into the field. And in a number of cases, when I arrived at the scene they were already there, and they attended as observers, keeping their own notes.
Q. So as investigating judge, you were well-informed about the role of this Verification Mission. You maintained cooperation with them, they attended your on-site investigations.
Did OSCE representatives have the mandate to make conclusions about incidents and investigations in which no result was available immediately?
A. They were not authorised to make conclusions. It was contrary to the agreement. They had a certain mandate which authorised them to follow procedures and investigations, to monitor, to follow the movement of various units and make records if incidents occurred.
Q. In this particular case, you came under fire which made it impossible for you to enter Racak and conduct an on-site investigation. In your stead, Walker did an on-site investigation and informed the public about his findings. Had that happened ever before in your practice, that you were unable to conduct an on-site investigation, the Verification Mission did it in your stead?
A. This never happened before and that was an additional factor which 37796 made me suspicious that there was something wrong and that I as investigating judge was impeded from reaching the scene and doing the investigation myself. I thought I was being prevented from seeing something.
Q. In those many cases where KVM representatives attended your on-site investigations, did you personally invite them to attend?
A. No. That was common practice, and that was our agreement, that the duty service of the SUP of Urosevac or any other town should inform the investigating judge and the public prosecutor about whatever incident had occurred, and whenever the investigating judge decided to go out on to the scene, they immediately reported it to the OSCE representatives. Thus it was not unusual for them to arrive on the scene even before I did. However, in those cases the police was already there and they did not interfere. They waited for the official on-site investigation team to arrive and then we would proceed with our cooperation. We had informal conversations. They would ask me what had happened, and we normally communicated and cooperated.
JUDGE ROBINSON: It's time for the break. We'll adjourn for 20 minutes.
--- Recess taken at 12.15 p.m.
--- On resuming at 12.40 p.m.
JUDGE ROBINSON: Yes, Mr. Milosevic.
THE ACCUSED: [Interpretation] Thank you, Mr. Robinson. In the meantime, I have found this report related to the visit of Mrs. Marinkovic to the village of Racak on the 15th of January. It has already been 37797 exhibited. It was exhibited during the testimony of General Drewienkiewicz, and it is marked D3. I just wish to discuss it briefly. It's an Official Note that has been translated into English. It says on the 15th of January, 1999, and so on and so forth. We see in paragraph number 3 "When we arrived in Racak village, we stopped close to the mosque around 1400 hours.
MR. MILOSEVIC: [Interpretation]
Q. That is the time you mentioned, Witness. Please may I draw your attention to this passage since I had asked you a question about weapons. Is this the report you made, because you are testifying about it today: "At the spot where we arrived in Racak, I was informed by the police," and so on, "weapons, and military uniforms. I was informed by the police that they had collected it all."
What was photographed on that spot? On that day, the following weapons were found. Follows an enumeration: 12.7-millimetre Browning, 7.9-millimetre Brownings with reinforced charged --
JUDGE KWON: Do we have that document with us, Mr. Milosevic?
THE ACCUSED: [Interpretation] I hope you do. If not, I can give you this translation into English which I have with Exhibit D3. It has already been exhibited. I'm now using it to put my questions to the witness. You can take my copy. I would ask the usher to be so kind.
JUDGE KWON: Put it on the ELMO and indicate the part so we can follow.
THE ACCUSED: [Interpretation] It's the fifth paragraph, the fifth 37798 paragraph. Yes, one, two, three four, fifth passage in English. "The following weapons were found --
MR. KAY: It's page 2 in the English, the middle. Right in the middle of the page.
MR. MILOSEVIC: [Interpretation]
Q. "... two mounted 7.9-millimetre Brownings with charges, 36 7.62-millimetre automatic rifles, two sniper rifles, five Chinese-made hand-held grenade launchers, two [as interpreted] Hand grenades and charges for hand-held grenade launchers, 22 hand grenades, ammunition of various calibres in the amount of 7.282 pieces -- 7.282 pieces, three portable radio transmitters, medical supplies, and military uniforms with KLA insignia."
This -- these are the weapons found on the 15th. That is what you managed to establish on the 15th. The rest of the text refers to your later investigation when you continued it.
THE ACCUSED: [Interpretation] I will now ask the AV booth to play tab 45.1, the first video segment relating to the 15th of January. That is the clip showing the police entering the village.
[Videotape played]
THE ACCUSED: [Interpretation] There should be sound as well.
JUDGE ROBINSON: There is no sound at the moment, Mr. Milosevic.
THE ACCUSED: [Interpretation] I have no explanation. This footage does have sound.
JUDGE ROBINSON: If there were sound, what would we be hearing?
THE ACCUSED: [Interpretation] I don't know by heart, but there is 37799 the sound of the police entering the village. You see what's going on. You can see orange jeeps on the hill. This is not -- the visibility is not very good. I remember seeing very clearly the jeeps of the Verification Mission. We had this footage played during the testimony of General Drewienkiewicz, and the orange jeeps were clearly visible. Now we have tab 45.2 showing the weapons that were enumerated in the report of Mrs. Marinkovic.
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic, you had occasion to see this videotape showing the police entering the village?
A. Yes.
Q. Did you see in that videotape the orange jeeps of the Verification Mission?
A. Yes. I saw them on the hill from which spot they could observe unhampered the entry of the police into the village and what was going on in the village.
Q. Were you able to recognise Racak and the surroundings in this video footage? You watched this tape during preparation, during proofing.
A. You cannot see it very clearly at this moment, but you could see normally on the footage the panorama of the area of Racak, what I saw on the 15th and the 16th of January. I recognise Racak.
Q. Does this video segment show the entry of the police into the village and the presence of two orange jeeps of the Verification Mission on the hill overlooking the village?
A. Yes. 37800
Q. This second video segment that we saw, showing a cache of ammunition and military equipment that you reflected in your report, is that what you saw?
A. Yes, those are the same things that I saw on site. It's just like it happened yesterday, despite the many years that passed since.
Q. Was it around that time when you were already on the spot where the ammunition was that fire was opened upon you and you withdrew?
A. Yes. Just as we finished inventorying the weapons and ammunition, fire was opened at us from automatic weapons, incessant automatic fire.
Q. Is that what we can see in 45.3? It doesn't seem to be in good order now, but the contributions have been provided. We can see it now on the screen.
MR. NICE: Your Honour, these videos coming without soundtrack makes it very difficult to know very much about them; for example, who they were made by, for what purpose, or what they're purporting to show. I know we had a problem yesterday, or was it the day before, last week, with a video that had to be replayed when the soundtrack had been made available, and I would ask that before we lose sight or memory of this part of the evidence, that we have it played with sound, if it's available.
JUDGE ROBINSON: Yes. We'll take that into account.
THE ACCUSED: [Interpretation] Very well. I kindly ask the technical people to play all the video clips they have, because it seems that there is something wrong with the procedure of playing the tapes. I don't understand where the problem is, because I viewed this entire 37801 BLANK PAGE 37802 footage and it was fine then.
[Videotape played]
THE ACCUSED: [Interpretation] Can we move on. The next clip where Judge Marinkovic can be seen. The next one, number 3. All of this was number 2.
[Videotape played]
THE ACCUSED: [Interpretation] This is the next one. Now, we're going to look at this one later. This is you; is that right? Can you please stop here and then we'll continue from there on.
JUDGE ROBINSON: Before you continue, Mr. Milosevic, tell us who made these tapes. How were they made?
THE ACCUSED: [Interpretation] According to the information I have, the first clip that shows the entry of the police where the two orange vehicles of the Verification Mission can be seen and when the police are entering Racak on the 15th, that was made a Reuters journalist who was with the police at the time, and he was present when the police entered Racak.
The next one, the one with the weapons and the one after that were filmed by the journalists of Radio Television Pristina who were accompanying Judge Marinkovic while she was carrying out her investigation.
Could the witness please correct me if I made a mistake or if she knows more about this, but I think that that is the point as far as the origin of this video footage is concerned.
MR. MILOSEVIC: [Interpretation] 37803
Q. Do you have any more precise information about this, Mrs. Marinkovic?
A. When Professor Dobricanin and I, on the third day, the 17th, entered the village and when they shot at us and when we were hiding behind the vehicles, this was a TV crew from TV Pristina who was accompanying us. And later on, as we were touring Racak and as we entered the mosques, this official and there were so many foreign journalists present and everybody was filming this. And also there was a crime technician who was in charge of filming this.
Q. Mrs. Marinkovic, when you say "this," what are you referring to? Are you referring to the footage with the weapons?
A. Yes.
Q. Who did this?
A. The crime technician of Krusevac who was in charge of filming all of this on site.
And the second clip on the 18th of January, 1999, the little bit you saw from the trenches, this was also the crime technician, that is to say an official person, part of the official team, a member of the official team who was in charge of filming with camera everything that was going on during the investigation, the on-site investigation.
Q. All right. So on number 1, you have the entrance of the -- the entry of the verifiers; and number 2 the weapons, the seizing of the weapons; and number 3 is your presence in Racak when you were being shot at. And you said that you and Dr. Dobricanin were hiding behind the car and when you were squatting there as you were being shot at? 37804
A. Yes.
Q. We've just started viewing clip number 4, but before we move on, let us go back to your Official Note, the one that we had on the ELMO a few minutes ago. You explained that on the 16th you could not get into Racak because fire was opened at you. On the 16th Walker was there and he made those statements of his. And in the next paragraph of this Official Note, you say that on the 17th of January at 11.00 the investigation continued with the same team. And in the second paragraph all the persons present are enumerated.
THE INTERPRETER: Could the interpreters please have the document on the ELMO.
JUDGE ROBINSON: Let the document be placed on the ELMO.
THE ACCUSED: [Interpretation] It's the same document that we saw a few moments ago. You had it on the ELMO a few moments ago.
JUDGE ROBINSON: That's the Prosecution Exhibit? D3. D3.
THE ACCUSED: [Interpretation] It is D3.
MR. KAY: Page 2.
MR. MILOSEVIC: [Interpretation]
Q. On the 17th, "The investigation resumed at 11.00 the next day with the same people participating. On the 17th of January, 1999, before going out into the field and informing OSCE representatives, I talked to the deputy chief of the Kosovo Verification Mission, British General John Drewienkiewicz. He wanted me and Dr. Sasa Dobricanin, a forensic expert from the Institute for Forensic Medicine in Pristina, to go alone, saying that they would guard us while we were conducting the investigation." 37805 I don't have the first name of Dr. Dobricanin. It's barely legible.
You explained why you couldn't do anything on the 16th. Walker was in Racak, you were on the road, and on the 17th you continued your investigation.
A. Yes.
Q. It is mentioned here that Drewienkiewicz suggested to you that you go with them. What was that all about?
A. On the day when, as agreed, we met at the police station in Stimlje, Mr. Drewienkiewicz came with his co-workers. After the introductions, he spoke to me as if he were issuing an order to me and in a raised tone of voice, and he said what I mentioned the Official Note, that I should come with him and that Professor Dobricanin could come with me.
Q. And what was your answer to him?
A. First I was surprised that he was addressing me that way, as a woman and as a judge. And I tried to explain to him that according to the law, I am the only person authorised to conduct an investigation as investigating judge, and that he can come with us, he can attend as an observer, in view of the agreement, in terms of what the OSCE representatives could do. However, he did not accept my conditions, and again he continued in an angry tone of voice.
Q. I didn't understand you well. What were your conditions? What do you mean by "conditions"? What conditions? Did you put any conditions to him? 37806
A. No. It wasn't me. According to the law, I am the only person authorised as an investigating judge to carry out an on-site investigation together with the other members of the team. That is what I said to him. However, he did not accept that, and he wanted me to do what he had asked me to do.
When I told him that I would carry out the investigation, because according to the law I was authorised to do that, either in his presence or in his absence, and if security conditions allow we are going to go out on site together with the entire team, the investigation team, he threatened me then, and he said that he would complain to me about the -- to The Hague Tribunal. And I was really surprised that a diplomat could treat me that way.
Q. Just a moment --
JUDGE BONOMY: I'm not understanding what it was he said to you that was unacceptable.
THE WITNESS: [Interpretation] What was unacceptable was that he asked me to go alone with him to carry out the investigation, without the other members of the team and without the police who are in charge of providing security on site. Of course I did not accept that. First of all, because before that, two days before that we were shot at.
MR. MILOSEVIC: [Interpretation]
Q. When you say "team," in the second paragraph of this Official Note, which I did not quote but now that has become a topical issue as well through this question, you said the team for on-site investigations consisting of the following, the deputy municipal prosecutor Ismet Sufta, 37807 the inspector from the SUP Urosevac Dabic Dragan and Bozinic Sasa, along with a group of police from the police station at Stimlje. We set out to the site.
So with the same team, the same people, you intended to carry out the investigation. Is that the customary composition of such teams; the prosecutor, the SUP inspector, and the crime technician?
A. Yes, that is the way it is according to law and that is the customary practice, that members of the team are the persons mentioned here. Of course. Not by name and surname but in terms of their official capacity. However on the 17th I also asked an expert to come along, Professor Dr. Slavisa Dobricanin so that he, as a pathologist, as a forensic expert, be present as well in case we find victims in Racak.
Q. All right. Now, in relation to your conversation with General John Drewienkiewicz, in the last paragraph on page 1 of your statement, that is the first -- of your report, rather, and that is the first -- that is the first paragraph on page 3 in the English translation, so could you please find that.
"When I explained to him how an investigation is carried out and that "--
THE INTERPRETER: The interpreters cannot follow this. We're sorry. It's very fast and we don't have the text.
JUDGE KWON: How about page 2, last paragraph. Yes.
THE ACCUSED: [Interpretation] Very well. It has to do with what the witness explained a few minutes ago. "He said he wanted me to go alone accompanying him, together with a forensic expert, Dr. Sasa 37808 Dobricanin..." However, I already quoted that passage. Very well. It's at the end of the page in Serbian. "When I explained to him how and in which way investigations are carried out --" and so on and so forth. "He then wanted the police to go without uniforms and weapons as otherwise there might be a conflict in the village of Racak. He explained that the villagers had weapons and that they might open fire if they saw police in uniform. Since I did not accept this, saying that the investigation team were going out into the field and that they could come along to monitor our work, he openly threatened me, saying that he would do his best to have me brought before The Hague Tribunal and that he would appear as a witness because I was to blame for the 'bloodbath' which had happened and which would happen if I went to the site that day in the presence of the police."
JUDGE ROBINSON: What's the question, Mr. Milosevic?
MR. MILOSEVIC: [Interpretation]
Q. Well, what was your answer to him in response to that, Mrs. Marinkovic?
A. You know what? I was really surprised. First he said that there were unarmed villagers in the village. And after that, when he was in such a rage, he did not refer to unarmed villagers again when I said that the police were coming along with us in order to provide security. Then in this rage he said that the villagers were armed and that they would use the arms to shoot at the police. So I did not understand what this was all about. Were they armed or were they unarmed? And for two days already those villagers were shooting at us and were not permitting us to 37809 carry out the on-site investigation.
Q. Very well. Now, Mrs. Marinkovic, Richard Ciaglinski, on the 16th of April, 2002 here, when he testified, said, and I'm going to quote a portion of what he said, and this is what he said: He said that General DZ - Drewienkiewicz - on several occasions emphasised to Judge Marinkovic that if anything happened to our verifiers because of her unthought-out acts, that he would definitely report her name to The Hague Tribunal as an individual who had committed a war crime by unnecessarily bringing the lives of the verifiers into danger.
So he confirms what you said.
A. Yes.
Q. But what were the reasons he gave? Why were you threatening -- bringing the lives of the verifiers in danger if you conducted the investigation?
A. He never mentioned this. I hear this for the first time today, that in the village of Racak the verifiers were present. There was no discussion of that at all, nor did I know that there were any verifiers in the village of Racak.
Q. Very well. Then he said -- then he told you that the villagers were armed. Well, did you ask him how come they were armed if they were unarmed before that?
A. When I asked him that, he couldn't give me an answer because he contradicted himself. First of all he said they were unarmed and then he said they were armed and that they -- the villagers would open fire on the police force. So he didn't have an answer. 37810
Q. Did he try to intervene with the Yugoslav authorities, prevail there in respect of what was going on?
A. When I said that I would go to the on-site investigation with or without him, the important thing was that I had decided to conduct an investigation if the circumstances permitted. He asked who my boss was in Belgrade, for me to give him his name so that he could inform his boss, Walker, that that boss of mine in Belgrade should prevail upon me and prevent me from going to the scene of the crime. And I said that I have no boss, that I myself am my own boss when it comes to this investigation and the investigative process and that at that point in time I was head of the parade and that I would decide what steps would be taken in the investigation, and secondly, what was to be established on the scene of the crime in the village of Racak.
Q. All right. And pursuant to our provisions, can anybody issue orders to the investigating judge with respect to an investigation?
A. No. The investigating judge is independent and autonomous, and it is up to him to make the decision, to decide what steps he's going to take in the investigation if he considers the steps to be relevant and what steps he considers to be relevant.
Q. All right. John Drewienkiewicz on the 11th of April, 2002, claimed here that you personally had asked for larger police forces to enter Racak for your own safety and security. Is that true?
A. No, it's not true. The number -- we didn't discuss the police at all or the number of policemen. We discussed -- what we discussed was that Drewienkiewicz wanted to prevent me from carrying out the on-site 37811 investigation in the village of Racak and I wanted to proceed. So that was the only clash between the two of us.
Q. You said, though, there was no mention of police. Drewienkiewicz said that on that occasion he told you that a large presence of policemen in Racak would be more of a provocation than anything else; is that right?
A. I didn't mention the police. I didn't bring the police up at all. That was his opinion. I don't know on what assumptions he based his opinion, but we know that it is quite normal and natural and pursuant to the law that the police, together with the investigating team, goes out to the scene of the crime, and the police is there to secure the area so that the investigating judge can conduct his investigation unimpeded. Now, how many policemen isn't up to me. That is decided by the police force itself. The police force assesses the security situation and decides how many policemen it's going to send out.
Q. All right. Drewienkiewicz also said, and he was referring to the OSCE, that they were there to guarantee your security. Did he tell you that?
A. Well, he told me that but I asked him how could the verifiers provide security and guarantee our security and escort us when we know that the verifiers were unarmed? They did not carry weapons on them, as was provided for by the agreement between the federal government and the OSCE representatives. And so the OSCE representatives were provided security by our state organs, in actual fact.
Q. Did Drewienkiewicz in Racak have his men, as he claimed in his statement here on the 11th of April and that he needed time to withdraw 37812 those men?
A. He didn't mention that to me. I didn't know about that. He didn't bring that up again at all during the conversation we had. I didn't know about it nor did he tell me that he had his verifiers or associates in the village.
THE INTERPRETER: Could the speakers kindly slow down. Thank you.
JUDGE ROBINSON: Mr. Milosevic and Mrs. Marinkovic, the interpreters are asking you to speak more slowly. Please observe a pause between question and answer.
THE ACCUSED: [Interpretation] Very well.
MR. MILOSEVIC: [Interpretation]
Q. Now, Mrs. Marinkovic, Drewienkiewicz said here that when you entered the village with the investigating team, that there was an exchange of fire that took place. Is that true and correct?
A. No, it's not true. On the 17th of January, we attempted to enter the village of Racak but we were prevented from doing so once again because they opened fire on us once again, as you can see on the footage where I and Professor Dobricanin are seeking refuge. So we didn't manage to enter the village of Racak. We had to go back. Otherwise our lives would have been in jeopardy.
Q. Well, the point of my question was whether there was an exchange of gunfire, as he stated here, that when you entered there was an exchange of gunfire. We saw you hiding behind a car. Was there an exchange of gunfire?
A. No, there was no exchange of gunfire, no. 37813 BLANK PAGE 37814
Q. Well, we saw that there was -- they were shooting at you.
A. They were shooting at us from all sides, and the only vehicle to protect us at that point was that vehicle. We hid behind it.
Q. All right. Well, did our police respond to the gunfire? Did our police open fire and respond?
A. On that day it did not. There were not many policemen. They did their best to protect us and defend us. However, there was shooting coming from the surrounding hills from all sides. It was a burst of gunfire all around us and the police shot, but they didn't know which direction to shoot at and target because there was fire coming at us from all sides.
Q. Very well. Thank you. Now to speed up this process, on the next day, the 18th, did you manage to enter Racak and complete your investigation?
A. Yes. On the 18th of January, we did manage to enter the village of Racak.
Q. Very well. Thank you.
THE ACCUSED: [Interpretation] May we now see the rest of tab 45, that is to say the rest of tape 4 where we can see Mrs. Marinkovic and the mosque. And I think you can see Professor Dobricanin as well.
[Videotape played] "Over 90 minutes. I offered to help the judge [inaudible] "We couldn't hear you, sir. Can you say that again? "For other 90 minutes I offered to help the judge to move her party to Racak in order to carry out the investigation provided there were 37815 no armed policemen with the -- [inaudible]"
THE ACCUSED: [Interpretation] This should be tab -- they started playing the tab before, and it should be the continuation. We have it, the 18th of January.
[Videotape played]
THE ACCUSED: [Interpretation] Can we speed this up so we can see the trenches and all the other things that were filmed later on, the footage to come.
[Videotape played]
MR. MILOSEVIC: [Interpretation]
Q. Mrs. Marinkovic, this is the footage made by -- filmed by your crime technician?
A. Yes.
Q. The comments being made here refers to the files or lists. He's asking for translation on the spot.
A. These are the photographs that were found.
THE INTERPRETER: [Voiceover] "A list of KLA members should be given under numbers."
THE WITNESS: [Interpretation] Professor Dobricanin can be heard there speaking.
MR. MILOSEVIC: [Interpretation]
Q. Can we see -- or, rather, we can see the on-site investigation being conducted. Weapons again.
A. These weapons were found at the headquarters of the KLA in Racak. That's my voice that you can hear now. 37816
Q. What are the dates that you're talking about?
A. They are the list of duty officers, who was on duty according to the days; who was on duty when.
This is a bunker and sand sacks. We found them up on the hill. Sandbags.
JUDGE ROBINSON: Are they empty sandbags?
THE WITNESS: [Interpretation] No, full. Full of sand. This is a tripod for the machine-gun, for the machine-gun nest with ammunition below it.
MR. MILOSEVIC:
Q. [No interpretation]
A. This is the entrance to the trench or bunker, and it was the size of a room.
Q. You mentioned uniforms here. Now you mentioned the KLA headquarters in your running commentary. You mention also the roster with dates when different people were on duty.
A. Yes. We -- we found all this evidence, and we inventoried all of it.
The on-site investigation was attended by OSCE representatives, all of it, and you can hear my voice explaining what we found to them, and you can hear the interpreter. There was a large number of the press and the media, foreign as well as local.
This is our vehicle. When we came under fire, a bullet came through the windshield. You can see the hole.
Q. Is that you? 37817
A. Yes. I was there.
Q. That is it. Mrs. Marinkovic, we saw part of this film on your activities on the day of the 18th. In this connection, you wrote a report on on-site investigation, Exhibit D4, which follows immediately after D3 relating to 15th to 17th January. Exhibit D4, which is already in evidence as well, was exhibited also during the testimony of General Drewienkiewicz.
Mrs. Marinkovic, did you have occasion to follow the testimony of Witness Buja Sukra, or, rather, Shukri Buja? He was Mr. Nice's witness. He was a KLA commander from Racak.
A. I really have no time to follow everything except for rare occasions in the afternoon when I'm free.
Q. We can see in the transcript that he said that during the entry of the police, their duty officer, who was manning a machine-gun, opened fire at the police from a 12.7-millimetre machine-gun.
A. Yes, I heard that.
Q. In this report on the on-site investigation, which is very brief, two pages only, it says that those attending included Danica Marinkovic investigating judge, deputy public prosecutor Dragomir Zivic, SUP inspectors Dabic Dragan and Srecko Dogandzic, scene of crime officer Sasa Bozinic, commenced at 1400 hours. And then you write that OSCE representatives were there all the time, two American nationals, Gil Gilbertson and Ed Sullivan, as well as an Italian Giovanni Fantini, as well as an interpreter from English into Serbian, Arta Ramaj. Professor Sasa Dobricanin as forensic expert from the Institute of Forensic Medicine 37818 in Pristina was also present.
You then say that inside the mosque in the centre of the village 40 bodies were lined up, 39 male and one female. They were marked, photographed, filmed by video camera in the presence of the team members and OSCE observers. They were loaded on a truck with orders to transport them to the Institute of Forensic Medicine in Pristina for an autopsy. That's what you ordered to be done.
A. Yes.
Q. You then go on to say in the yard of an unknown house owned by an unknown person, a grenade for a hand-held launcher was found, a Chinese-made -- with a Chinese-made fuse. Camouflage uniforms were found, and so on and so forth. Chinese-made ammunition. I shall skip the specification of the supplies.
JUDGE ROBINSON: Mr. Milosevic, unless there is a specific point, it's already in evidence.
THE ACCUSED: [Interpretation] Very well.
MR. MILOSEVIC: [Interpretation]
Q. I wish the following to be established and commented on by Judge Marinkovic, because it hadn't been specified before: On the surrounding hills, trenches were found, and inside the trenches utensils for digging were found. All around the trenches there were empty cartridges for 7.62-millimetre Chinese weapons. Later on there is mention of bunkers, this anti-aircraft machine-gun, 12.7-millimetre Chinese-made bullet casings.
You toured all the trenches. What was their combined length? 37819
A. We went around all the hill, and we went alongside trenches all the way. They were so long that we were unable to measures their total length, there were so many of them. Those trenches as we went from the foot of the hill all the way led us to the top where we found a machine-gun nest and a bunker. Along the sides there were also other trenches coming from all directions.
Q. You said that you didn't tour the entire length of the trenches but you mention in your report that there were many bullet casings and cartridges for Chinese-made weapons, and we know well that there was a time when the Republic of Albania bought weapons and arms from China in the '70s. Did you have any more precise information about when those weapons were transported from Albania into Serbia, Kosovo more specifically?
A. Let me tell you, even before this incident in Racak we had knowledge, both I and the prosecutor, that Racak was a stronghold of terrorist gangs. For many days, six months prior to that, they continuously brought in weapons from Albania to Racak. Racak is located in a hilly area surrounded by villages Petrovo and Malopoljce from which terrorists came into Racak and concentrated there and put up resistance.
Q. Very well. We need not dwell on this report any longer. You can remove it from the ELMO.
In this film we saw your scene of crime team and OSCE representatives. Did anyone from outside, in addition to you, attend the on-site investigation? 37820
A. On the 18th, in addition to our team and OSCE representatives, there were many representatives of foreign and local media.
Q. You mentioned that already. Was there anyone else?
A. I don't know who you mean. I can't think of anyone at the moment.
Q. I don't mean anyone in particular. I'm just asking.
A. There were the officials of our investigating authorities.
Q. You mentioned already in your report who attended; OSCE representatives, your team, the press, et cetera.
A. Yes.
Q. Did you issue an order for an autopsy to be conducted on all the bodies?
A. Yes. I issued the order for post-mortems to be conducted, but before that I issued an order for a forensic expert team to be established to include the most eminent experts from our country; from Belgrade, Nis, Novi Sad, and Pristina. In my order, I specified their names. All of them were highly qualified experts, professors and doctors, very well known in their respective areas of expertise. In my order I specified all the steps to be taken, including those that need to be taken by forensic experts regarding post-mortems on the bodies found earlier.
Q. Did that expert team perform what was required by your order?
A. Yes. It was their duty and they complied with my order in every respect.
Q. Later on a team of Finnish pathologists came in and joined the effort.
A. Yes. However, before that our team was assisted by experts from 37821 Belorussia who had been there for a while. They were involved from the beginning. And later on, the Finnish experts came in.
Q. I'm not going to ask you anything about the forensic expert aspect of the investigation because you yourself are not a professional. Just tell me, what was the result of that international cooperation between our experts, Finnish, and Belorussian ones?
A. They worked together, performed post-mortems on all bodies with the proviso that the Finnish experts came in later. But for the part of the autopsies when the Finns had not arrived yet, those bodies were autopsied again, reviewed again in the presence of the Finnish experts and all the findings were agreed and approved by them. There were 40 bodies in total and it was established that they had been killed by gunfire --
JUDGE ROBINSON: Mr. Milosevic, we have to stop here --
THE WITNESS: [Interpretation] -- from a distance.
JUDGE ROBINSON: We have to stop here today. It's the end of today's session, and we will resume tomorrow morning at 9.00 a.m.
--- Whereupon the hearing adjourned at 1.45 p.m., to be reconvened on Thursday, the 24th day of
March, 2005, at 9.00 a.m.