³⁷⁹¹⁷

Wednesday, 6 April 2005

[Open session]

[The accused entered court]

--- Upon commencing at 9.04 a.m.

JUDGE ROBINSON: Mr. Nice, you are to cross-examine, but where is the witness?

MR. NICE: The witness is outside. I saw her outside the door.

[The witness entered court]

WITNESS: DANICA MARINKOVIC [Resumed]

[Witness answered through interpreter]

JUDGE ROBINSON: Mrs. Marinkovic, you remain subject to the declaration that you made.

THE WITNESS: [Interpretation] Yes. Cross-examined by Mr. Nice:

Q. Mrs. Marinkovic, your work has been contrasted with that of a mere investigator, Barney Kelly, whom you know because you gave a statement to him in April of 2002. Do you have any complaints about the conduct of the interview by Mr. Kelly with you?

A. Well, would you like to ask me specifically so I know what you mean, what you're interested in.

Q. Mrs. Marinkovic, I don't want to put anything to you specifically. I want to know if you have any complaints of any kind about Mr. Kelly's conduct of an interview with you.

A. No, not the manner in which he conducted the interview. I have nothing to say on that score. ³⁷⁹¹⁸

Q. Not only was the statement read over to you in English and B/C/S or Serbian, but you were provided with a copy of the statement yourself in your own language, were you not?

A. No. I never received a copy of that statement of mine, either in Serbian or in English.

Q. If you didn't receive it I must tell you that one's available, but you have, in any event, no complaints of his conduct. Next thing I want to know, because he's been involved in, for example, the Racak investigation, have you heard anything that you'd like to tell us about that is negative in respect of Mr. Barney Kelly? Feel free to say anything that you've heard that affects his reputation as an investigator.

A. That's not something I dealt with. It doesn't come within the remit of my work.

Q. I'm giving you a chance. Jonathan Sutch is an OTP investigator who spent several years working in and around Pristina and in Kosovo generally. You may have heard of him. Have you heard anything adverse about Investigator Sutch?

A. This is the first time I hear of the name. I have never heard the name before, nor do I know the man.

Q. Very well. You see, you as an investigative judge have been contrasted by the accused, at least, with mere investigators of whom you have nothing to complain. Mrs. Marinkovic, you, as we will discover, have been the subject of many complaints, haven't you, in the course of doing your work? ³⁷⁹¹⁹

A. That is not true.

Q. Isn't it? Let's turn to Natasa Kandic. Natasa Kandic is basically the conscience of some Serbs, isn't she?

A. I don't know what you mean. Please be more specific.

Q. [Previous translation continues] ... things that are true but that it is beyond the courage of others to publish; correct?

A. That is not something I dealt with. I'm not a journalist, I'm not a publicist, I'm not a representative of some governmental association. I am a judge, a professional, and I only did my job professionally as a judge, so I'm not really interested in comments made by the press; that just isn't part of my job. I'm a professional and I do my job professionally.

Q. The time of the bombing was a particularly dangerous time for many people, wasn't it, not just because of the bombs but because of what might happen to them at the hands of Serbs; correct?

A. I'm not following you. I don't understand the question.

Q. [Previous translation continues] ... Mr. Kelmendi, a famous human rights lawyer who regularly appeared in front of you, was killed, wasn't he, very shortly after the bombing started?

A. If you mean the lawyer Bajram Kelmendi, then yes.

Q. Yes. By whom was he killed? Please tell us.

A. During the time I was in Pristina, the investigation wasn't launched, but a criminal report was filed against perpetrators unknown. So far, we still haven't uncovered the perpetrator, or at least, during the time at least I was in Pristina the perpetrator had not yet been ³⁷⁹²⁰ uncovered.

Q. I will return to the Kelmendi death, if I have time in cross-examination, but it must be short. I would like you to consider, if you would just distribute this document before I turn to questions in a chronological order, the sort of things that have been complained about so far as you're concerned. I am afraid this is in English and I haven't obtained or been able to obtain a Serbian version, but you know that Mrs. Kandic heads the Humanitarian Law Centre in Belgrade, doesn't she?

A. I've heard about that, yes.

Q. She is herself a Serb.

A. I don't know.

Q. She made observations publicly about the murder of Kosovo Albanian politician Fehmi Agani, didn't she? Didn't she?

A. Could you repeat the question? I didn't hear you this time. What were you saying?

Q. [Previous translation continues] ... public observations about the murder of Kosovo Albanian politician Fehmi Agani.

A. Can you tell me what it was specifically that she said?

Q. Let's look at the article, then, for that. What's more important is the rest of what she was able to complain about. If this can be placed on the overhead projector, please. It's an article of the 8th of March of 2002, a publication of that date. And it says that you, formerly investigating judge of Pristina district court reacted to the Humanitarian Law Centre press release on the murder of Fehmi Agani and accused Natasa Kandic of lying. Did you accuse ³⁷⁹²¹ her of lying?

A. Let me tell you this: I'm surprised that you're using as a source of information complaints about my work and that for that you have used Natasa Kandic as a source. For me as an individual, well, I don't know her, she's not interesting as far as I'm concerned. I would like you to tell me specifically in concrete terms the complaints made against my work, whether the parties involved in the proceedings themselves, in the investigation itself, that complained about me, not this source.

Q. [Previous translation continues] ... as an overview, and the question to you was capable of an answer. Did you accuse Mrs. Kandic of lying when she pointed to two police officers as responsible for the death of Fehmi Agani?

A. Linked to your question, I have concrete proof that I can put before the Trial Chamber. Linked to the Fehmi Agani case, I have nothing to do with that case. I wasn't the investigating judge --

Q. Very well.

A. -- I didn't compile any on-site report or anything of that kind.

Q. [Previous translation continues] ... why did you accuse Mrs. Kandic of lying when she gave an account, a public account, of the killing of an Albanian politician by Serb police officers? Please tell us.

A. Because she presented untruths.

Q. But you --

JUDGE KWON: Mr. Nice, sorry to interrupt. I have difficulty following you when you start to speak when the translation continues. ³⁷⁹²²

MR. NICE: I'm so sorry.

Q. In which case, why did you accuse her of lying when you knew nothing about it?

A. Linked to Fehmi Agani what I know is this: I know a different truth, the truth that was established by the authorised Pristina SUP, and I have proof and evidence of that, and it is the criminal report that was filed by the SUP of Pristina.

Q. Uh-huh. You brought it with you, have you?

A. Yes, I have.

Q. Thank you. Tell us what it says.

A. In this criminal report it says the following: That a criminal report was filed with the district prosecutor Pristina against the perpetrator of a murder, unknown, pursuant to Article 47 of the Criminal Code of Serbia against Fehmi Agani of Pristina. And this criminal report also states the following: On the 6th of May, 1999, at around 1700 hours -- I apologise. I have to put my glasses on. At around 1700 hours in the Batusa district of Kosovo Polje municipality, perpetrators unknown perpetrated the crime of murder under Article 47 of the Criminal Code of Serbia, killing Fehmi Agani of Pristina, who, with three projectiles, was hit in the region of the head from the immediate vicinity. Pursuant to the authority of the investigating judge in Pristina, an on-site investigation was conducted by an employee of the SUP of Pristina on the spot scene of crime next to the main road running from Batusa to Lepjana Lipljan [phoen], and the body was found --

Q. [Previous translation continues] ... time is short. We may like ³⁷⁹²³ to have a look at that document. Is there any particular reason why you brought that document to court, not being involved in it yourself personally?

A. Because I assumed that the sole source of your information would unfortunately be Natasa Kandic. If I were in your place as a prosecutor, I would deal a little more with concrete proof and evidence and concrete facts. What she is doing is all hearsay, I-said-she-said. I would like to see what she provided as proof and evidence since she is your sole source of proof, as I see, what evidence she has brought to you about the crimes against Serbs in Kosovo and against other Albanians committed by the Albanian terrorists in Kosovo and Metohija, perhaps that is something that you --

Q. Tell us, please -- you may find you're wrong, but tell us, please, why you're saying that she is a sole source of proof. And actually, while you're about it, let us know how you had any indication in advance at all that I might even refer to Natasa Kandic. How did you know that?

A. Well, the press. The press writes about things. This trial is a public trial, and as far as I was able to read from the press, I wasn't able to follow the proceedings in court myself, the press -- it's a public trial, the press wrote about it, and I saw that you used Natasa Kandic as your sole source.

Q. Where do I use Natasa Kandic as my sole source? Let me make it quite plain: What I'm now going to ask you about is whether you have actually got some other source of information or intelligence. Where did you find that - it's quite incorrect - but that we used Natasa Kandic as a ³⁷⁹²⁴ sole source? Just help me.

A. You know what? This question is superfluous and I would like to appeal to the Trial Chamber to caution Mr. Nice, the Prosecutor, to ask me about my work specifically in concrete terms. I'm a witness here and I'm a judge first and foremost, and I don't want to carry on with this, tiring the Trial Chamber and all the other people here. It's just superfluous.

Q. I'm going to ask you two parts from this document and then we're going to go back and look at things chronologically, and Mrs. Marinkovic although you will have one further reference to Natasa Kandic, we will be looking at many other complaints about you from other sources, have no fear.

Could you just help us with these two comments from Natasa Kandic's analysis of your history. In the middle of the page that's on the overhead projector, she says that, "Judge Marinkovic sets herself up as a protector of Serb victims and the Serbian police but her attempts to manipulate public opinion are in vain and that it is known within the police force who killed Fehmi Agani."

Do you see yourself as a protector of Serb victims and the Serbian police?

A. I'm -- I just conducted my work professionally and with full conscience.

Q. Then let's look at the foot of this page --

JUDGE KWON: The ELMO is not just working.

MR. NICE: Very well.

THE ACCUSED: [Interpretation] Mr. Robinson. ³⁷⁹²⁵

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] Since the document wasn't provided to the witness in a language the witness understands, it would, I assume, be proper if it were to be read out, the English text, and placed on the ELMO, so that she knows what the text says. It's impossible to work in this way.

JUDGE ROBINSON: Yes, Mr. Nice. I agree.

MR. NICE: At the moment the ELMO apparently isn't working. While -- to save time, or not waste time, I shall read the bottom paragraph and we'll hope that it will come on display soon.

Q. This is what has been said by Mrs. Kandic about you: "More and more policemen --"

JUDGE ROBINSON: Mr. Nice, there is a technical problem with the ELMO, so proceed slowly. Read the passage slowly so the witness can hear it.

MR. NICE: Certainly.

Q. "More and more policemen are coming out with what really -- with what really happened in Kosovo. It was from them that I first heard about the murder of Fehmi Agani. I also heard from them that liquidation orders were not given only by police and military commanders. They told me that Danica Marinkovic personally ordered several men in the Ahmeti family to be shot on the 28th of February, 1998, in Likoshan village. Then an investigating judge, she came to conduct an on-site investigation together with Jovica Jovanovic, the deputy district prosecutor, and a team of investigators. There was a pile of bodies outside the Ahmeti house in ³⁷⁹²⁶ which some men were still giving signs of life. In the presence of about 30 members of the special anti-terrorist units, Danica Marinkovic allegedly said, 'I'm not taking them. Kill them.' The men were finished off with a Heckler weapon. There was no investigation, and on the 1st of March, 1998, 14 corpses were taken to the Pristina hospital morgue. The investigating judge did not order autopsies to be performed, and after they were identified, the bodies were claimed by relatives." Now, can you think of any reason why policemen should give such an account to Natasa Kandic, please?

A. Give me the names of those policemen. When did they tell her that?

Q. I'm asking you, can you think of any reason why policemen should give that account to her?

JUDGE BONOMY: I have to say, Mr. Nice, I think the witness's question's a perfectly fair one to you in the circumstances. This is a very grave allegation you're making against the witness here, and to make it on the basis of a press report alone at the moment, and I accept that may not be your only basis, seems a pretty thin one.

THE WITNESS: [Interpretation] That's correct.

MR. NICE: I quite understand that.

Q. Nevertheless, in light --

THE INTERPRETER: Microphone Mr. Nice, please.

MR. NICE:

Q. And in light of the breadth of this witness's evidence on topics germane to this Trial Chamber, I'm concerned with her reputation and I ³⁷⁹²⁷ want only an answer to the question can she think of any -- can she give us any reason why police officers should have said such things about her to Natasa Kandic?

A. You know what, I really can't answer that question until you give me the names of the policemen and when they made the statement and where. I'm interested in the names and the time. If it was in 1998, for example, why is that just being mentioned in 2002?

Q. Very well. If I can, I'll come back to that later this morning before I finish, because I want to go back now in time --

JUDGE ROBINSON: Mr. Nice, it is such a grave allegation to make against the judge. I would say that if you have the evidence to support it, you should bring it in rebuttal.

MR. NICE: If I'm able to --

JUDGE ROBINSON: It's a very grave allegation.

MR. NICE: If I'm able to, I will. At the moment I'm dealing with her reputation. I'm contrasting her reputation with those of others. I've given her every opportunity to make observations about others, and the Chamber will see more material coming, not from Natasa Kandic, about this witness.

With Your Honours' leave, may I go to the start of matters chronologically, and I'm only going to be able to deal with some of the topics that have been covered.

Q. Can you help me, please --

A. May I be allowed to --

JUDGE ROBINSON: Very briefly. ³⁷⁹²⁸

THE WITNESS: [Interpretation] -- to tell the Trial Chamber, if I might be allowed to do so. I don't know where the place is, nor was I ever there. I just would like the Trial Chamber to bear that in mind. As to the rest, I'll leave it up to Mr. Nice to give me the concrete facts; the names and the time. The names of the policemen who gave that statement, where, on what premises, and why they waited from 1998 until the year 2002. But I'd just like to apprise the Chamber of the fact that I was never there, in the place he mentioned.

MR. NICE:

Q. I want to go back no further than 1987, and then for one point only. Can you help us, please, with your husband's first name.

A. I don't know why that is important --

JUDGE ROBINSON: You have to answer --

THE WITNESS: [Interpretation] -- for my testimony here.

JUDGE ROBINSON: You have to answer the question. We will see the purpose of the question.

THE WITNESS: [Interpretation] Stevan.

MR. NICE:

Q. And he was a friend of and, for a time at least, an associate of the man Solevic, who was an activist in Kosovo. Am I not correct?

A. I really don't know. In 1987, that was a long time ago. I don't know who his friends were at the time. I wasn't interested.

Q. Following the accused's famous Kosovo Polje speech "You will not be beaten" where Solevic features on the evidence before this Tribunal, various demonstrations were organised, including, of course, the yoghurt ^{37929 BLANK PAGE 37930} revolution, which led to the downfall or the change in the autonomy of Vojvodina. Your husband was one of the group of men, including Solevic and others, who went around organising those revolution -- those activities. Am I not right?

A. What does that have to do with me?

Q. Please answer the question. Am I not right?

A. You know what? In 1987 so many things happened that I cannot remember everything. I know that the Serbs from Kosovo and Metohija raised their voice because they were second-rate citizens in Kosovo and Metohija, so they asked for their rights to be respected; their human rights, their rights to work, to freedom of movement, and that is why they were involved in these manifestations. I don't know the details. I was never involved in politics. I was never a member of any party. I've been a professional judge since 1984, ever since I was first appointed judge. I'm a judge until the present day. I was never interested in these details.

Q. Nevertheless, I'll give you one last opportunity, please, answer the question: Was your husband one of those in 1988, possibly into 1989, I don't know, was politically very active in support of this accused and in the way I've suggested, going around to other places to be involved in demonstrations?

A. If you're so interested in his activity, you can call him and he can explain it to you in greater detail. I don't know. It is true that he is one of the Serbs out of all the Serbs in Kosovo and Metohija who were striving for their rights, because at that time they were second-rate ³⁷⁹³¹ citizens in Kosovo and Metohija.

JUDGE BONOMY: Mrs. Marinkovic, at the time referred to by Mr. Nice, were you living in an ordinary domestic relationship with your husband?

THE WITNESS: [Interpretation] Yes.

JUDGE BONOMY: You may be right when you say, What's the point of the questions? That's for us to judge in due course. But I have to say that your answers at the moment strike me on this subject as very evasive. You're a very experienced judge. Can we not just get straight to the issues that you ought to be aware of and deal with them and then we'll sort out in due course what weight to give to these answers.

THE WITNESS: [Interpretation] May I say the following: I do not understand at all why there is so much insistence on my husband's activities. I came here to testify as a judge about my work and about the cases that I worked on. As for my family life and my husband's life, that is not relevant to the Trial Chamber and to the subject of my testimony. I am not being evasive about what he has been doing. He did take part with the other Serbs in those demonstrations so that Serbs would get the status that they deserve in Kosovo and Metohija. That's no secret. Everybody knew that.

JUDGE ROBINSON: Thank you. Thank you, Mrs. Marinkovic.

JUDGE BONOMY: Can I say, the trouble is we don't know that. We have to get the information by answers to questions that are put.

MR. NICE:

Q. You see, so that it's quite clear now that you've given that last ³⁷⁹³² answer, Mrs. Marinkovic, I am going to suggest that from the end of the 1980s you were yourself political and a supporter of this accused and of Serbs as against non-Serbs, and I'm now going to explore why, but that's the suggestion and that's why I've asked you the question. Do you follow?

A. No, I do not follow. I do not understand this question.

Q. Can we turn to your exhibit, tab 4.

MR. NICE: The Court will recall that a large number of exhibits were produced as records of trials. I'm only going to deal, and briefly, with one of them because I want to focus my attention on Racak, of course, but I'm going to deal with things chronologically. I want us to look first of all at tab 4.

If the witness could have the volumes that are provided for the witness open at the B/C/S -- the Serbian version, if she would prefer it, of tab 4.

Q. Now, tab 24 is a trial -- sorry, tab 4 was a trial for which you were the investigating judge; correct? And it was known as the police trial.

THE WITNESS: [Interpretation] May I just put a question now? Can I now answer these questions since they were not part of my examination-in-chief by the Defence? In relation to this particular judgement, I did not give any answers to questions put by the Defence.

JUDGE ROBINSON: Yes, well the questions may nonetheless be put to you.

THE WITNESS: [Interpretation] Yes --

MR. NICE: ³⁷⁹³³

Q. Now --

A. -- I carried out the investigation against these persons against whom the indictment was brought in 1995.

Q. Before we look at the record and some other documents in relation to this trial, I want you to look at another exhibit.

MR. NICE: Your Honour, it's -- and if the Court would -- it's a document which comes in, at the moment, two parts. There's part -- let me explain it. It's easier. I'll ask the Court first to go to the Serbian version, the last page of the document, where it will see what looks like and indeed is a petition. If you turn to the Serbian version. We have had some trouble getting this and a translation of any part of it. And the Court -- if it's on the overhead projector, Mr. Prendergast, the Serbian version on. I gather we're still not having success with the overhead projector.

The Court will see an extract of a petition, and above it on the right it will see nine numbered points. This petition is extracted in this form from one newspaper which we do not have a translation because it's only been obtained recently. However, if the Chamber turns to the English version document, which comes from another newspaper, and goes to the second page, it will see the nine numbered points, and it's only the nine numbered points in which I'm interested.

Q. But if you, Mrs. Marinkovic, would be good enough, please, to look at the Serb version of the extract of the petition, was this a petition with which you were familiar?

A. First of all, I do not see the date here when this was published ³⁷⁹³⁴ and what newspaper actually carried this. At least, it's not here in the Serbian. I don't know what this petition has to do with my work on the case.

Q. What we have at the foot --

JUDGE KWON: Do you not see the right bottom of the page?

MR. NICE:

Q. It's the Nin newspaper for the 21st of October, Trafalgar Day, of 199--

A. Oh, it's down here, yes.

Q. Now, this petition, which has many names, to some degree being passed secretly from hand to hand to be signed, were you aware of it?

A. This is 1994. I cannot recall this petition.

Q. Do you recall whether you or whether, to your knowledge, your husband signed this petition?

A. [No interpretation]

Q. In which case I'll withdraw that because I can't ask the witness to produce it. But I'm going to suggest to you that towards the end of 1994, dissatisfaction of the state of political affairs under the accused's leadership at that time led to demands by Serbs for action and that your trial of the policemen, tab 4, was in part a response to Serb nationalist demands. That's what I'm suggesting.

A. Do you have a question in relation to my work on that case?

Q. That's the question. I'm suggesting to you that this case, this quite well-known policemen case, or police case, was in part a response to the dissatisfaction of Serbs with the political activity of this accused ³⁷⁹³⁵ at that time and the governments generally? Yes?

A. That's not correct. That assertion of yours is not correct. The petition has nothing to do with the case that I worked on. This group that is mentioned here in 1995, after my investigation, an indictment was issued, a first instance judgement was passed. The Supreme Court of Serbia confirmed the judgement, and I don't see what legal proceedings that came to a valid conclusion have -- how they can have something to do with a newspaper article and petition in 1994. Can you put specific questions to me about my work? I'm not interested in politics. I'm a professional judge. I was elected judge in 1984, at the time when Mr. Milosevic was not in power. And I worked, and I work today. I have been working until this very day when Mr. Milosevic is not in power, and I think it would only be fair to put questions to me as to a professional judge, not putting to me some kind of information from newspapers. I'm not interested in that. I stand by my cases and my work.

JUDGE ROBINSON: Thank you, Mrs. Marinkovic. I think you have answered the question.

MR. NICE:

Q. You see, tab 4, although you weren't asked any questions about it, it was in fact one of many exhibits introduced through you right at the end of the last session, and it's about that that I want to ask you a few questions.

You know, or you know of and remember, a lawyer called Fazli Balaj, who represented some six, I think, defendants in this case; correct? ³⁷⁹³⁶

A. I cannot remember. I carried out the investigation in 1994. I had 89 accused persons, 89 indictees. Every one of them had at least two or three lawyers. So now to remember from 1994 who defended who is something I cannot remember.

In the first instance judgement, which has also been tendered into evidence, there is an exact reference to who the indictees were and who the accused persons were and who the lawyers were. There were 89 indictees involved, and after the investigation was completed, when the prosecutor received these materials, the prosecutor decided not to prosecute 16 persons -- rather, 17 persons, because the ultimate number of indictees was 72, not 89.

JUDGE ROBINSON: Thank you, Mrs. Marinkovic. Proceed, Mr. Nice.

MR. NICE:

Q. You've given an account of how you're a responsible and professional judge, and we're just going to look at little bits of this one trial. You say you don't remember the particular lawyer. Is it right, so that we can understand how the system worked, that lawyers were not allowed contact with their clients in the early stages of their detentions?

A. That's not correct. Lawyers were given permission to see the detainees whenever they wanted to. I signed these permits, and these permits do exist in the district prison. These records are kept. Every lawyer had that right and was given the possibility to contact his clients.

Q. The second thing I'm going to suggest to you is that it was not ³⁷⁹³⁷ uncommon, it may have been very common, for accused persons to be beaten and even tortured in prison while they were detained at your order and therefore in your charge. Is that true?

A. In relation to that, tell me, what kind of evidence do you have? This is the first time I hear of this. I'm not aware of that. As for the cases that I investigated, this is the first time I hear of any such thing. Give me a specific name.

Q. [Previous translation continues] ... shall we? We'll just have a look at one, there may be several documents, but here is a document dated the 27th of February, 1995. Maybe this slipped your memory, because this, you see, is a complaint by the defending lawyer, Fazli Balaj, and he says it's his fifth complaint, and there's a summary. For want of time it hasn't been possible, but you've got the full original. He summarises earlier complaints and sets out how on the 24th of February he visited his defendants in the district gaol and how his defendant Isak Aliu "told me that he was taken out for interrogation on the 17th, 21st and 22nd of February, subject to physical torture, beaten on his arms and back and told he would examined on the 23rd of February." The complaint went on to say there are vivid injuries on his body, and he requests -- the lawyer requested that Isak Aliu be sent for medical examination, and he asked you to interfere with the organs of state to stop them torturing him, because he was under your competencies and not the under the competencies of the state security.

He explained to you that his client had been threatened that his family would be killed, and he said at the end, "As a defending lawyer, I ³⁷⁹³⁸ cannot understand why the accused get interrogated by the members of state security."

Do you not remember that complaint being made? Is this so routine that you don't remember it?

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Mr. Milosevic.

THE ACCUSED: [Interpretation] This is a highly improper question. Mr. Nice says does that happen that often that she can't remember these things? Although Mrs. Marinkovic said this is the first time that she heard of any time -- of any kind of torture of detainees?

JUDGE ROBINSON: I think the question was, "Is this so routine that you don't remember it?" Let the witness answer the question.

THE WITNESS: [Interpretation] This is beyond anything I can imagine. It defies belief. They are trying to make excuses for themselves, the Defence lawyers. I can just say that every detainee was subjected to a medical examination whenever Defence attorneys asked for that to be done. In prison, there was a prison doctor who examined the detainees, and this was in line with the Code of Conduct in prison. Whenever I had any such motion from any Defence counsel, I always issued instructions to have medical examinations carried out and to establish whether there were any injuries. If Mr. Nice got this, then he should have gotten all the documents; my instructions given to the prison administration and so on. So this doesn't mean anything to me if I cannot see the rest of the evidence.

MR. NICE: ³⁷⁹³⁹

Q. The same complaint was made by the lawyer. He pressed on. If we have a look at perhaps 26, he sent the complaint to the minister of interior. Did the minister of the interior contact you about this complaint? Coming up. Do you remember the complaint being processed through the minister?

A. No. This is the first time I see this. I don't know.

Q. In which case let's look at the next exhibit as well -- next document as well. Number 27, please.

The same lawyer --

JUDGE BONOMY: These -- well --

MR. NICE: Sorry.

JUDGE BONOMY: Mr. Nice, these two documents you've given us so far are the same date.

MR. NICE: Yes.

JUDGE BONOMY: So it does look as though the complaint was made to the minister the same day --

MR. NICE: Same day, yes.

JUDGE BONOMY: -- as it was addressed to the witness.

MR. NICE: And the next one comes the day after, in fact, and it's to the chairman of the local court, the examining magistrate, and others.

Q. Look at this document, please, which is sent to many people, apparently, and complains about you not having done anything. It so far says "have so far done anything."

MR. NICE: I expect that's a translation error, Your Honour, and that if we read from the original, it's only recently before me, it will ³⁷⁹⁴⁰ read as having done nothing because otherwise the context isn't realistic.

Q. See, I must suggest to you, Mrs. Marinkovic, the reality of the trials you've been describing to this Court is radically different from the sort of process with which this Court may itself be familiar, and that prisoners were maltreated. Is that not right?

A. That is what you say. That is not my view. Since you found all of these documents, you should have also come up with the documents that the court issued. This is only documents provided by the Defence counsel and that suits you, but you don't have any of the documents that the court issued, the minister, the judges, et cetera. This is one-sided. Provide the documents in their entirety and then let us discuss them.

JUDGE BONOMY: Mrs. Marinkovic, can you assist us by telling us your recollection of what happened when these communications were received?

THE WITNESS: [Interpretation] Specifically as regards these documents, I cannot say anything, but I can say how I worked on every case. Whenever I would receive such a submission, I would always act upon it.

JUDGE BONOMY: Can I -- can I interrupt you? That suggests -- you see, I know that Mr. Milosevic took exception to the question Mr. Nice asked about it being routine, but what you're saying at the moment suggests that you routinely got complaints about accused people being beaten up and having to be sent for medical attention. Now, is that what you're saying?

THE WITNESS: [Interpretation] No, no. ³⁷⁹⁴¹

JUDGE BONOMY: If you're not saying that, then surely you would remember this case.

THE WITNESS: [Interpretation] May I say the following: First of all, this is not correct. Detainees after I hear them and after I pass a decision on conducting investigation, they are sent to the district prison, and then no one can torture them nor did anyone ever torture anybody. I can tell you that often we had --

JUDGE BONOMY: Does it then follow that you're saying this is falsified?

THE WITNESS: [Interpretation] No, I'm not saying that, but I can tell you that lawyers wrote all sorts of things, whatever suited them.

JUDGE BONOMY: Well, that is what you're saying then, that it's falsified. No?

THE WITNESS: [Interpretation] Yes. Well, I don't know whether it's falsified. There is a seal attesting to the fact that it was received. However, Mr. Nice should have submitted the documents in their entirety, not only the submission made by the Defence counsel. May I say another thing. Often we had delegations from the International Red Cross coming to visit the institutions of our prisons. I gave them permission to do that, they came often, and the detainees and prisoners had the opportunity of talking to them, voicing their objections, if any. In my investigations, this kind of thing never happened --

THE INTERPRETER: Microphone for Mr. Nice, please.

MR. NICE: ^{37942 BLANK PAGE 37943}

Q. I'll conclude, at least for the time being but probably altogether with this topic, with two more issues. First, perhaps you'd be good enough to look at some documents that have an earlier date. 22nd and thereabouts of December, 1994.

MR. NICE: There is a collection, Your Honour, of I think three, four -- ten medical records.

Q. If you'd like to look at the first one, and we can all go through them rapidly together. If you'd be good enough to look, please, at the foot of the page, there's a stamp. Can you tell us what the stamp is? Please? The stamp of the Institute of Forensic Medicine in Pristina?

A. The institute. Yes.

Q. And we can see that the signatures include that of the forthcoming witness, Dr. Dobricanin.

If we look at the body of this report, it says at the request of the court, the medical board carried out an examination of Alija Isak from Urosevac, and then it says, 2, the skin of the palm of the hand livid greenish; left palm area including the lower part of the forearm, the skin is livid greenish and yellowish in colour, sub-skin is suffused with blood. Left thigh purple, greenish, yellowish. Ankle peeled off, bare skin dry, brown-red in colour. Opinion: Haematomas inflicted by heavy blow from blunt heavy mechanical implement. Described as minor injury. Did you receive that report? Did you? As the judge caring for the security of these men? These are all defendants in the police case.

A. Well, this is proof that I acted pursuant to the law. I gave an order for examination so that with this individual it could be established ³⁷⁹⁴⁴ what happened. Now, as the lawyer set it out in his motion, it's not correctly set out. It says here that it was a -- not light bodily harm with a blow from a blunt instrument. Now, where he received that blow from, who inflicted the blow, and things like that were not established.

JUDGE BONOMY: The problem with that I think may be the date, because this report predates the complaint we've been looking at already. So it's not clear at the moment what the relationship is.

MR. NICE:

Q. But the point is, Mrs. Marinkovic, that if we look at all these, and we don't have time to go through them in detail -- well, let's ask the question: Did you receive reports of this kind? Yes or no.

A. The report is addressed to me, the investigating judge, so I'm sure that this document exists in the case files.

Q. And therefore - we can look at all of them but at the moment I'm not going to take the time to do that - you have received reports suggesting that prisoners in detention at your instruction were showing signs of being hit by a blunt object or objects. You then subsequently received complaints from the lawyers sent to ministers and others about really serious injury being committed to his clients. Does that trouble you?

A. Those are your observations and conclusions. I cannot comment. Give me a specific question and I'll be happy to answer it.

Q. I have given you a specific question. You've told us about your practices. You've confirmed that medical reports of this kind would be received by you. The complaints made by the lawyer were addressed to you ³⁷⁹⁴⁵ and to all other organs from which it is reasonable to suppose that you might have heard, I would suggest, and my very specific question to you, Mrs. Marinkovic, is: Did this worry, trouble you?

A. You know what? In -- that was 1994. We're 2[as interpreted] now. So much time has gone by that I can't comment on events that happened at that time.

Q. Well, you're going to comment on events that happened in 1999. Where is the cut-off point from your memory, please? 1999, yes; 1994, no? What is it?

A. Mr. Nice, I should like to remind you that I am a witness here, but I'm also a judge. So have a little respect towards my position.

Q. I'm sorry, I'm showing you appropriate respect. You have given wide-ranging evidence when you were last here on what did and did not happen without any reference, so far as I can immediately recall, to problems with recollection. You were asked to produce, and although you may not have understood the technicalities of it, you produced exhibits 4 through to 44, being records of your trials. I'm asking you questions about one of them and I'm providing you with contemporaneous documents. May we take it that even with contemporaneous documents, you have no recollection and cannot help us with events in 1994?

A. I handed over the court files from which you can see and read everything that went on. Now, as to the details of it all, I cannot recount them again here now, and it would be a better thing if you had the complete set of case files to study and to see what they contain, because I don't want to speak from my memory now and answer what suits you best. ³⁷⁹⁴⁶

JUDGE ROBINSON: Mr. Nice, I'm not sure that I understand your purpose in this line of cross-examination. The prisoners are in detention. You say that they are subject to her care. They're beaten. She has said that when she receives reports that they're beaten, she orders an examination of them. Are you also suggesting that she should have taken measures to prevent their being beaten?

MR. NICE: She should have taken measures to prevent them being beaten. She should have taken more measures to have them examined continuously, and all sorts of other things, yes. She didn't do those things is my suggestion to her.

JUDGE ROBINSON: And that's within her jurisdiction?

MR. NICE: Yes. And also fundamentally that the regime in which she was operating was one in which prisoners were beaten. Certainly in political cases of this kind.

JUDGE BONOMY: I would like just to make one comment about the last answer that the judge gave.

You're very critical of Mr. Nice for not presenting what you describe as all the case papers, but this question arises -- or these questions arise because you have produced what purport to be the case papers in relation to this particular case, and now you're not able to give answers to questions which are directed to the case.

THE WITNESS: [Interpretation] You know what? They're the details of the case. I can't remember all the details now, but within the frameworks of my competencies and authority, I did take steps. And these are not political cases, as Mr. Nice claims. Here we had a crime, and ³⁷⁹⁴⁷ they are being accused of association in order to commit hostile activity. That is a crime which comes under the Criminal Code of Yugoslavia and is one of the crimes stipulated there. And they weren't interrogated several times, as Mr. Nice claims. They came up before me as investigating judge once with their defence, and then we continued to collect evidence. We had nothing more to do with them. Everything else, the position of detainees is taken over by the prison authorities and it is they who are responsible after that.

JUDGE ROBINSON: Just let me follow that. I think that's the point I was getting at, Mr. Nice. If a prisoner is beaten and it's brought to the attention of the judge, the judge can take steps to see that the person is examined by a doctor.

MR. NICE: Yes.

JUDGE ROBINSON: But the actual prevention of the beating, I imagine the judge could also issue an order for the prison authorities to ensure that no beating -- no more beatings take place.

MR. NICE: The -- the --

JUDGE ROBINSON: But beyond that, it's not clear to me what the judge is to do.

MR. NICE: I should have made one point clear. I think the judge will be able to confirm this.

Q. The examination on the 22nd of December, 1994, was about a month after the arrest and the initial request, wasn't it, because apart from the written complaints here, the initial request of the lawyer had been about a month before, and you let a month pass so that the injuries would ³⁷⁹⁴⁸ fade. Isn't that right?

A. I don't know. You have the documents. But what I want to say is this: The person in question, before they were escorted to prison, was interviewed about me in the presence of their Defence counsel and an interpreter. And if they had any complaints, any remarks to make with respect to his position in the pre-trial stage, he could have told me that in person. Then I could have taken note of it by way of minutes and then taken steps to ensure a medical examination. But when I interviewed him, he never made any complaints as to his status and position. And always when I wrote down the minutes and took notes if I saw any visible signs of injury, particularly if the person in question complained to me that he had sustained injuries and if I can see with my own eyes visible injuries on his face such as bruises and so on, then this is taken note of. And the Defence counsel who is present during the interview asks that this be recorded in the minutes. All this is done in the presence of a prosecutor, the defence counsel, and the interpreter, as I said. So you can't hide things of that kind. Now where he sustained those injuries, I really don't know. I gave an order for a medical examination to be conducted and the forensic experts noted that there was bodily injury. That is where my authority ends. So there was no grievous bodily harm which required further medical treatment.

Now, how these injuries were inflicted, in what way, that's not up to me. It wasn't up to me to investigate that.

JUDGE KWON: Mrs. Marinkovic, I'm interested in the charges the accused were accused of. You said they were accused of association in ³⁷⁹⁴⁹ order to commit hostile activity. Can one be prosecuted only because of the association without doing -- committing actual crimes?

THE WITNESS: [Interpretation] This group mentioned in this case, they are being accused of the crime of association in order to commit hostile activity with the goal of violent secession of part of Serbia or Yugoslavia, the creation of an independent state, and possibly conjoining with Albania. Now, through this association they had planned and organised -- they first of all made an association, then they trained in Albania, and then illegally brought in weapons and then prepared and organised all these activities which were geared towards the forceful violent secession of part of Serbia and Yugoslavia and the creation of an independent state. Those are all elements which comprise and represent a crime pursuant to Article 136 of -- under the heading of association in order to engage in hostile activities. So this was a large group of people who had associated on the basis of a prior agreement, and their aim was forcibly to cut off -- to become separate from Serbia. This is what we call the illegal MUP, as it's referred to.

MR. NICE:

Q. Yes. This is the parallel institutions which had been in existence from 1991 and there came a time when it decided to prosecute; right?

A. No.

Q. Can we look at another document, which is a report of the Humanitarian Law Centre, a contemporaneous report of 1995. Again it's in English, and I'm only going to read two short passages and ask for your ³⁷⁹⁵⁰ comments on it before I move on.

MR. NICE: And if the Court would like to turn to -- seeing that it's a February 1995 report by Humanitarian Law Centre, director Natasa Kandic, and if would like to go to page 23. I am sorry, but it doesn't exist at present, in any event, in Serbian.

Q. But here's a summary that this non-governmental organisation provided of the trial, or comment on it in any event. Halfway down the left-hand side of the page. Little -- there you go. A bit further. By the -- thank you very much. "By the end of 1994, criminal proceedings had begun against officials and members of the union of former Kosovo policemen who were accused of belonging to a Kosovo-Albanian parapolice force.

"The courts have treated membership in any association of Kosovo Albanians, activism in support of specific political opinion, the distribution of leaflets or flyers, the setting up of committees attached to the LDK political party, the formation of professional and other civic organisations which neither use nor advocate violence, the collection of material on human rights violations, and even the making of lists of men between the ages of 16 and 90, all as preparatory for acts under 136 of the Yugoslav Criminal Code, punishable under Articles 116." Now, is this magazine's analysis of the criminal proceedings taken against expressly non-violent acts accurate? Mrs. Marinkovic, is it accurate that proceedings were taken against activities that were all themselves non-violent?

THE WITNESS: [Interpretation] As Mr. Nice is using a report dated ³⁷⁹⁵¹ 1995 and provided by Natasa Kandic, if the Trial Chamber allows me, I would like to quote individual passages of the judgement and indictment so that it can become clear to the Trial Chamber what was afoot, what this was all about, and then the Trial Chamber can rule whether the report by Natasa Kandic is correct and exact or whether it is arbitrary and not based on proof and evidence.

JUDGE ROBINSON: Before we do that, can you tell me what Article 136 of the Yugoslav Criminal Code says? These are the acts that were preparatory to Article 136 of the Yugoslav Criminal Code, so it's important to know what that provision says.

THE WITNESS: [Interpretation] I can read out to you the text of the Criminal Code, the law.

JUDGE ROBINSON: Well, just -- if you can just give us a summary of what it says. If it's very long, then just give us a summary.

THE WITNESS: [Interpretation] Anybody engaging in associations, bands, or other ganging up in order to perpetrate crimes pursuant to Article -- anybody engaging in conspiracy, gangs, bands, or groups in order to perform crimes under Article 114 to 119 and Articles 120 to 123 and Articles 125 to 127 and Article 132 of this Criminal Code will receive a prison term ranging between one to ten years.

Now, here in connection with this group we relate it to Article 136 and 170 -- 116 of the same Criminal Code, which says jeopardising the territorial integrity, anybody attempting by use of force or other counter-constitutional means to cut off any part of the SFRY territory or to conjoin it to another state will be punished by a prison term of no ³⁷⁹⁵² less than five years.

JUDGE ROBINSON: Mr. Nice, speaking for myself, I don't find this line of cross-examination very productive, very helpful.

MR. NICE: As Your Honour pleases.

JUDGE ROBINSON: You're trying to show that the judge is biased, that she was politically motivated, that she's partial to the accused. These are legal issues that you're dealing with, and there will always be an explanation as to why these people were charged under Article 136.

MR. NICE: Your Honour, that may be, but the environment in which this witness was operating and the facts of no doubt all the cases, if I had a chance to deal with -- time to deal with them all, might be of interest. I've focused on one, tab 4, out of whatever it is, 40 files, and I would seek leave -- not leave. I would seek to be able to -- certainly to have the witness answer my last question which comes from the Spotlight publication, and I was going to ask her to comment on some factual points that are made on the following page, page 24, and the Chamber can see the points on the right-hand column, because there is the clear suggestion that this is a woman and judge of utmost integrity. That is not something -- professional integrity. It's not something I can accept, and it's therefore my duty to lay the material to her to some degree for her to deal with.

My intention, having dealt with this and our position on the witness, is to move to Racak as soon as I can.

JUDGE BONOMY: I hope this isn't an unfair characterisation of what we've achieved in an hour and 20 minutes this morning, but have we ³⁷⁹⁵³ not simply established only that there was one accused person who may have made complaints about subsequent beating up which were not investigated, and that's hanging -- that's hanging in the air? And beyond that, what have we actually established this morning?

MR. NICE: Well, Your Honour, things do move slowly, and it's not entirely possible to move them any more swiftly, but if the Court would be good enough to go with me to page 24 of this document. No, Your Honour, I hope we are establishing rather more than that because it's necessary for us to have a -- it maybe desirable for us to have an understanding of the realities of the system that applied at the time. Now, if the witness is not going to accept my characterisation of it, and I put it to her in general terms at the beginning, the process of establishing it via contemporaneous and other material is never going to be quick, but I can only do my best.

Q. You see, if we look at page 24, dealing with the same investigation, on the left-hand column we have this, that "Between November the 17th and December the 5th more than 200 members of the Union of Former Kosovo Province Policemen were arrested." I think that's true, isn't it, Mrs. Marinkovic?

A. No, it is not true. Now, I don't know the probative value for the Trial Chamber, whether they have the court files, whether it is the court files and all the rest of it or is it what -- the writings of Natasa Kandic. Here we have a judgement of the Supreme Court of Serbia brought in 1999 which confirms the judgement of the first instance. And I think it is absolutely out of order for me to have to comment on Natasa Kandic's ³⁷⁹⁵⁴ writings. I don't think she is worthy of us spending so much time on her.

JUDGE ROBINSON: We'll determine that, Mrs. Marinkovic, if you don't mind.

MR. NICE:

Q. She, or at any event the magazine published by her organisation, reports the death in custody of somebody called Ismail Raka. I must suggest to you that he was badly treated and beaten before, as it was said here, jumping out of a window. Is that true?

A. I don't understand. I don't know who you're talking about. Who are you referring to? May I have the name? The name, the evidence and so on; when, where, what.

Q. The person Ismail Raka. He died in custody. Do you not remember that?

A. When?

Q. In December of 1994. You really don't remember the death in custody of one of your accused?

A. From this group, you say.

Q. Yes. That's what I'm asking you about.

A. What number is he in the indictment?

MR. NICE: Your Honour, I -- I think I'm just going to cut it and move on. Not because I --

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Yes, Mr. Milosevic.

MR. NICE: -- we don't have time.

THE ACCUSED: [Interpretation] Asking questions of this kind of ^{37955 BLANK PAGE 37956} this witness, a witness who doesn't know the language from which the quotes come, is completely improper. The whole passage or paragraph should be read out, at least. If the witness were able to read in this language she would be able to read it out. Regardless of whether what is stated is correct or is not correct, she would be able to read it. Now you're confronting court files with somebody's writings. It says very clearly here that one of the detainees died while he was in prison and that the Tanjug news agency published a statement made by the Pristina district court or the person representing it who proclaimed his death, and in keeping with that statement he says that Raka jumped from the fifth floor of the police station and that was how he died. That's what it says here.

Now, I don't know -- I have no way knowing whether that is correct or not, but it is elementary good behaviour to read it out to Mrs. Marinkovic, at least a portion of the text which is written in a language she doesn't understand. Then perhaps she would remember whether it happened or not.

JUDGE ROBINSON: Thank you for reading it out, Mr. Milosevic.

MR. NICE:

Q. I want to move on, if I may, to Racak, Mrs. Marinkovic. We're going to have a look at what you saw and what you didn't see. First of all, I'd just like to confirm that included in the elements important to your conclusion that there had been no massacre but that there was a battle, included in the important elements was the fact that the victims all were wearing the same belts; is that right? Similar trousers and the ³⁷⁹⁵⁷ same belts. Do you remember telling us that?

A. First of all, if you were following my testimony over the previous days, I said that I as the investigating judge make no conclusions. I as an investigating judge just collect evidence. So that your conclusion as stated by you is incorrect. I don't make the conclusions. The conclusions are made by the prosecutor once I send in all the evidence that I have collected and amassed; on the spot, scene of crime, and subsequently. Now ask me a specific question without any conclusions, please.

JUDGE ROBINSON: You sent in as part of the evidence that you found that all the victims were wearing the same belts. Was that part of your report on the evidence that you found?

THE WITNESS: [Interpretation] Yes. They were wearing leather belts. Most of those victims. Whether each and every one I can't say for sure, but most of them were wearing the same leather belts.

MR. NICE:

Q. And did you think there was some significance in that?

A. Well, I took note of that and wrote it down, recorded it. Whether it was significant or not was up to the prosecutor to decide. So it was my duty to observe all these things, to record them, and within the framework of all the evidence found at the scene of crime, or on-site, it was up to the prosecutor to decide.

Q. Because apart from making observations of the bodies and the weaponry that was found, you made no inquiry of any local resident, did you? ³⁷⁹⁵⁸

A. No.

Q. You made no inquiry of the local military forces to deal with the suggestion that the military had been involved?

A. I didn't have the authority to interview or interrogate the army, because that didn't come under my remit. And I didn't see any military forces or military vehicles in the area. The army wasn't present from the 15th to the 18th when I tried to enter Racak. There were no soldiers round about, no military forces --

Q. You made no inquiry --

A. -- see any.

Q. [Previous translation continues] ... any survivor?

A. No, because I didn't know who was in the village, whether there were any survivors at all. I didn't know their names.

Q. And fundamentally, and perhaps the last question if the Court's about to adjourn, fundamentally in an incident which is being characterised, if not by you by the accused, as a conflict rather than a massacre, you made no inquiry of who is presumed to be the other party to the conflict, namely the police, did you?

A. That was not within my competence and authority, because I didn't know who had taken part in the conflict. I didn't know that.

Q. If the conflict, if it was a conflict between the police acting lawfully and the KLA acting unlawfully, we don't actually have an account in this investigation, unless I've missed it, of what the lawfully acting police say occurred, do we?

A. It came under the authority and competence of the prosecutor to ³⁷⁹⁵⁹ establish and decide if he deemed necessary. And I have his Official Note from Racak, for example. I can write -- I can read out what the prosecutor -- what steps he took after I had sent in my papers and records based on Racak.

JUDGE ROBINSON: Mr. Nice, let us take the break now.

MR. NICE: Certainly.

JUDGE ROBINSON: And when we return, perhaps the witness can tell us of whom did she make any inquiries in relation to her investigation.

JUDGE KWON: And --

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, I'm reminded to ask you to deal with the exhibits individually.

MR. NICE: Certainly, yes. Yes. I'll deal with them individually. I rather suspect their admissibility might in certain cases be judged one in relation to another, but I'll review it certainly.

JUDGE ROBINSON: We will adjourn for 20 minutes.

--- Recess taken at 10.34 a.m.

--- On resuming at 10.58 a.m.

JUDGE ROBINSON: Yes, Mr. Nice.

MR. NICE: Two things outstanding. One is whether the exhibits should be dealt with now or whether in the particular circumstances of this witness it might be better to deal with them all comprehensively at the end. I only say that because I realise that, for example, the documents coming from Natasa Kandic may require special consideration although they seem to me are documents published about this witness of ³⁷⁹⁶⁰ which she appears to be aware.

[Trial Chamber confers]

JUDGE ROBINSON: They can be dealt with at the end.

MR. NICE: Thank you very much. Then Your Honour's outstanding question of the witness was as to whom she did make inquiries of in relation to her investigation.

Q. Mrs. Marinkovic, of whom did you make inquiries in your investigation?

A. In relation to Racak, I carried out an on-site investigation. So that is one part of the investigation process. In relation to that on-site investigation, I took other investigative activities on the basis of which I could act and where I had authority to do so. In that stage, I could not interview any one of the witnesses because I needed a request for that from the authorised public prosecutor. On site I cannot interview anyone until I have a request submitted by the prosecutor. The only thing I can do is carry out an on-site investigation and record my immediate observations and include the evidence that I find on the spot. This is in accordance with the law on criminal procedure. This was very important for me.

After I carried out the investigation, after I found the bodies, the weapons, another investigative activity that I ordered was post-mortems of the bodies found in Racak so that cause of death could be established. Another investigative activity --

JUDGE ROBINSON: Mrs. Marinkovic, let me understand you clearly. You're saying that according to your procedure, you carry out an on-site ³⁷⁹⁶¹ investigation, and that is exclusively confined to your observations to what you saw. You report what you saw. You're not allowed to interview witnesses.

THE WITNESS: [Interpretation] Yes.

MR. NICE:

Q. You see, without interviewing witnesses, it's impossible to draw very satisfactory conclusions, isn't it?

A. In relation to the on-site investigation, I can establish only what I myself found on site. That is what I record, but no conclusions are made. It is premature to make any conclusions.

Q. Very well.

A. Walker's conclusions were premature. Tell me --

Q. We're not talking about Mr. Walker at the moment. You see, another Defence witness, Mr. Adam, when asked questions by Mr. Saxon about the type of comprehensive investigation that would be required for Racak agreed that talking to people like the police and armed units would be a sensible thing to do. Would you disagree with Mr. Adam on that, that it would be sensible to deal with the police, to talk with the police and the armed units?

A. Again, I repeat, according to the law on criminal procedure --

Q. We've heard that. We're concerned with inquiries or investigations that lead to conclusions, because I'm going to suggest that's exactly why you're here.

Another thing or another summarising part of Mr. Adam's evidence was that an investigation that made no attempt to speak to survivors or ³⁷⁹⁶² the -- or the involved other party, the police, would be deficient. He accepted that. Do you accept that an inquiry that made no investigation of survivors or the police would be deficient?

A. You see, investigation is part of criminal procedure. On-site investigation is just one investigation activity. After that particular investigative activity, the process continues. The prosecutor, if he deems necessary, can submit a request to the investigating judge, asking him or her to carry out at that stage -- could you please hear me out. Can I explain an answer. You don't know our law on criminal procedure sufficiently, after all, so please be patient and let me explain. That is why I am here as a witness, a judge who is a witness, in order to clarify these matters.

If the prosecutor believes that after the investigation of Racak is complete and on the basis of all the evidence that I gave him, if he wants me to carry out additional investigative activity, he then submits a request stating what witnesses I should hear and with regard to what situations.

In respect of Racak, everything I did in connection with the investigation I submitted to the prosecutor. The prosecutor compiled an Official Note.

Q. [Previous translation continues] ... we are getting --

JUDGE BONOMY: Could I -- I've been waiting to say something about this.

MR. NICE: Yes.

JUDGE BONOMY: Mrs. Marinkovic, I think Mr. Nice knows perfectly ³⁷⁹⁶³ well what your system is and that you do him a disservice by suggesting otherwise. He asked a question about -- which would require an opinion from a very experienced judge.

Now, are you saying that because you're not a prosecutor you're not prepared to give that question -- give an answer to that question, or are you simply avoiding answering the question?

THE WITNESS: [Interpretation] No. I am prepared to answer every specific question within my authority and knowledge as an investigative judge, but let the Prosecutor be specific. Let him put specific questions to me.

JUDGE BONOMY: Well, I have to say that it seems to me a very obvious question to ask a person experienced in investigation whether when investigating an incident that resulted in a significant number of deaths but there were survivors whether the investigation could possibly be regarded as complete without an attempt being made to speak to the survivors.

THE WITNESS: [Interpretation] Again, I am telling you in relation to Racak, no investigation was carried out. Only one particular investigative activity was carried out, namely the on-site investigation. Then the prosecutor, when receiving evidence related to the on-site investigation and the complete evidence gathered in Racak, then the prosecutor took further steps that he deemed necessary. In relation to Racak, he gave his own report as a prosecutor, and then written orders to the SUP in Pristina what action the SUP should take in relation to that. I was not in charge. I was not authorised to act in that section ³⁷⁹⁶⁴ without express -- without an express request from the prosecutor.

JUDGE ROBINSON: Are you aware of the instructions the prosecutor gave the SUP as to what action they should take?

THE WITNESS: [Interpretation] That is what I wish to say. I have the prosecutor's Official Note here. In it he describes in detail what happened in Racak, and he gives his opinion and report on it. I don't think I have to read it. I have it in Serbian, and I don't know whether you have it among your own exhibits. Would you like me to read it out slowly in Serbian?

MR. NICE: [Previous translation continues]... sorry. Sorry. The accused will be able to tell us if it is in the exhibits he's produced. If it's not, then it comes very late.

JUDGE ROBINSON: Mr. Milosevic, is it among your exhibits?

THE INTERPRETER: Microphone, please.

THE ACCUSED: [Interpretation] I don't know what you're asking me, really, because I was looking at the papers that Mr. Nice just had distributed now.

THE WITNESS: [Interpretation] Official Note of the public prosecutor dated the 9th of March, 1999. Is it an exhibit?

THE ACCUSED: [Interpretation] I don't know that just off-the-cuff. I haven't got all the binders here. I can't really say at this stage.

THE WITNESS: [Interpretation] Perhaps I can read just one sentence from the Official Note and then the other evidence read out by -- submitted by the prosecutor.

He described the event in Racak, and since he came to the ³⁷⁹⁶⁵ conclusion that members of the police did not break the law on internal affairs, on the interior, and that they did not overstep their authority in relation to the action they took in Racak in order to find the perpetrators of the act of terrorism, after the post-mortem, when it was established that 37 bodies of victims had nitrate particles on their bodies, which demonstrates that they fired from firearms and that all the injuries sustained by the said persons were sustained from different directions and different weapons, which leads to the conclusion that the victims took action. Also that the firing was from a distance. And the last sentence is: "For the above-mentioned reasons, I believe that there are no grounds to take procedure with regard to any criminal offence according to which action has to be taken in line with official duty."

Later on, the prosecutor submits a request to collect necessary information to the SUP in Urosevac, and that request has to do with the following: In relation to the mentioned crime, and the crime is --

MR. NICE: Your Honour, could I ask for cite of that document and have it looked at?

JUDGE ROBINSON: Yes. I was going to ask the witness. What are you reading from?

THE WITNESS: [Interpretation] I have it right here.

JUDGE ROBINSON: What is it?

THE WITNESS: [Interpretation] It's in my papers. I don't know whether it is in the Prosecution papers, but these are my personal documents. I myself have a set of documents in relation to Racak, and ³⁷⁹⁶⁶ this is among the court records of Racak.

JUDGE ROBINSON: What you just read out would have been an official instruction from the prosecutor to the SUP.

THE WITNESS: [Interpretation] Yes. Yes.

MR. NICE: Your Honour, could I have cite of that? We could copy it and then I could review it, if necessary. But obviously if we're going to have documents produced like this, it's going to be difficult with the timetable.

JUDGE ROBINSON: Yes. Let the document be --

MR. NICE:

Q. Mrs. Marinkovic, you said before the break that you weren't yourself expressing conclusions. That simply isn't true because you were brought here to express conclusions and you expressed several. I'm just going to tell you some of the conclusions that you gave. You said 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.

Now, what is that if it isn't a conclusion, Mrs. Marinkovic?

A. Those are facts, not conclusions. The facts that I observed directly.

Q. Very well. If you had spoken, as others have, to a lieutenant colonel who's named to the 243rd VJ brigade, the liaison officer, who confirmed that the VJ had supported the MUP operation in Racak, you would not have been able to say there had been no shelling, would you?

A. I don't know who this is. I don't know who this lieutenant ³⁷⁹⁶⁷ colonel is. I am not aware of that.

Q. [Previous translation continues] ... been referred to by a witness called Maisonneuve who did speak to him, and to Maisonneuve the lieutenant colonel made it quite plain that the VJ had supported the MUP operation in Racak with tank and Praga fire. If you had spoken to the same lieutenant colonel, you would not have been able to express as a conclusion that there had been no shelling, would you?

A. Give me a date. The name of the person that I talked to on that day as well.

Q. No, Mrs. Marinkovic. It's not for you to instruct me what to tell you. It's for you to answer questions, and my question to you is very clear: If or anybody in the investigation or judicial department had made inquiries of the army and had obtained information from Lieutenant Colonel Petkovic that he had -- Petrovic, I beg your pardon, that 243rd VJ Brigade had supported the MUP operation with tank and Praga fire, neither you nor your investigator would have been able to reach a conclusion that didn't allow for that; correct?

A. Mr. Nice, please don't be so upset and please don't raise your voice. I can hear you very well. I am telling you that I did not see any soldiers between the 15th and the 18th. I claim that with full responsibility that I did not see anyone from the army then. I'm not authorised to interview anyone from the army because the army is separate. They do not fall under the jurisdiction of the regular court.

Q. And I won't accept correction from you either. I will speak to you as I judge appropriate. Let me make it quite clear, Mrs. Marinkovic: ^{37968 BLANK PAGE 37969} You are being evasive and I'm going to suggest maybe worse, but I'll come to that later.

If you are not able to interview people as important as the army, would you accept that you're not able to express any conclusion on this topic?

A. I did not talk to the military, and I did not reach any conclusions.

Q. What, therefore, was your observation to the Trial Chamber supposed to be if it wasn't a conclusion when you said, in terms, the people killed were not unarmed? What was that if it wasn't a conclusion?

A. I am just presenting facts that I observed and established directly.

Q. What was the following if it wasn't a conclusion, and I'll read another short answer of yours from 37784. "It shows that the village --" this was to do with the emptiness of the village -- "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." What's that if it's not a conclusion from the evidence?

A. Again, these are facts that I observed directly on the spot.

Q. Let's just look at a video, please.

MR. NICE: Exhibit 95, Your Honours.

Q. Have you ever taken the trouble to look at the exhibit in this case of what was seen in the gully? Have you?

A. If you referring to the video imagery that was on television when Walker entered Racak, I saw that, but only on television. ³⁷⁹⁷⁰

Q. Well, it would have been open to you to have ask for and no doubt have been provided with a copy of the video produced years ago in this case to check whether there was anything on it that you wanted to bring to our attention. You've never done that. You see here the video taken of the people in the gully. I'm going to give you an opportunity through this and through some still photographs to add comments if you wish to.

[Videotape played]

MR. NICE:

Q. You say these men were not unarmed. You say that this was a battle. What do you want to tell us about this video? Anything you've seen so far? Because we can stop the video and you can tell us what's significant.

A. I saw this video clip on television, but the corpses, as far as I can see them now, on this footage in the mosque, among those 40, these were not the corpses that were there.

Q. [Previous translation continues] ...

A. I mean the clothing and the footwear in different colours, in bright colours, no.

Well, you should ask Walker. Why did he not call me? Why didn't he wait for me to have a look at the bodies together? I cannot make comments now on his video footage. I can only make comments as to what I found in Racak and what I saw there.

Q. And if the usher would be good enough, could we take perhaps the easel and the large plan or one of them.

How many sites were there where dead bodies were found, ³⁷⁹⁷¹ Mrs. Marinkovic? How many?

A. I've already said. The 40 corpses that we found in the mosque.

Q. How many sites were there where dead bodies were found? Do you know?

A. I don't know about sites. I did not find any dead bodies at any sites that I toured or anything that would indicate that there had been bodies there.

Q. Do you have any reason to challenge - and here's a map of Racak, it's an exhibit in a smaller form - and it shows 13 different locations for dead bodies being found, including the gully but including many others. Do you have any reason to doubt that dead bodies were found in all those different locations?

A. I cannot orient myself on this map. This doesn't mean anything to me. I toured Racak itself. I was on the spot. As for the locations, I don't know what all these locations were and I don't know how many bodies you found and where exactly. This is the first time I hear of this, that there were several locations and that more bodies were found than the ones I found in the mosque.

Q. That's really your position, is it, that coming to this Court after all this time you haven't even acquainted yourself, as a judge, with the material that exists going to show where bodies were found and the condition in which they were seen and photographed before they were moved? Is that right?

A. I don't understand.

Q. You've made -- ³⁷⁹⁷²

A. I don't understand the question.

Q. You have made no efforts and the accused has provided you with no material showing the condition of the bodies in which they were found?

A. Which bodies?

Q. The bodies at Racak.

MR. NICE: Should we look at the photographs of Ian Hendrie, or some of them, please. They are Exhibit 156, tab -- starting at tab 5. Just a selection, bearing in mind what the witness said about belts in particular.

Q. A series of photographs. If you look at these photographs --

MR. NICE: That's the gully. Well, let's move on from that. Next one, please. Next one, please. Next one, please. Don't need those. Next. Keep going. I think it's the tagged ones. It's the tagged ones there, please, Mr. Prendergast.

Q. There you are. It's not very clear but have a look at that. Look at it on the overhead projector. Look at the type of belt the young man is wearing. That was photographed in position.

MR. NICE: If we go to the next tagged one, Mr. Prendergast, please, we'll find another belt, this time a blue belt. Next tagged one, please. There's a blue belt.

We go to the next tagged one, please. I've tried to pick up all the photographs of people with belts, you see. See the belt there? Next photograph, please, Mr. Prendergast.

A. You know what? I have to ask you something. Where did these photographs come from? Who photographed the bodies? Who found the ³⁷⁹⁷³ bodies? I don't understand any of this that you're showing me.

Q. [Previous translation continues] ... on the 16th of January of 1999, by a man called Hendrie, and they were available for you to see in the course of your preparation to give evidence, no doubt, but you haven't been shown them. I'm sorry about that. It's not my fault. Look at the belt on the one that's on the picture at the moment, please.

A. Where is -- where are the victims? Where are these dead bodies?

Q. Yes. You don't know the location so I haven't been troubling you with it, but if you want to know, I can tell you. Do you wish to know where this one was found?

A. Yes.

Q. This is scene 5. If you look at location 5.

A. You know what? I cannot make any comments regarding bodies I did not find in Racak and that I did not see. The person who found them, who took all these photographs, why did he not come to me? Why did he not come to see me and to show me all of this on the 16th? I can just make comments on the bodies that I found on the 18th in the mosque in Racak. I cannot make any comments with regard to things that I have not seen myself.

Q. Next tagged one, scene 3. You see, all the belts -- you said that the belts were similar or identical. You attached significance to it. The photographs taken at the time - it's a tiny point - show that they're all different. Why do you say there was significance, because that's what you did say, in the belts being the same? Why do you say ³⁷⁹⁷⁴ that?

A. Well, you see, I have to draw your attention to something once again. I cannot make any comments regarding these bodies. I did not see them. I did not find them. No one informed me of their existence. I am making comments about the bodies that I found in the mosque on the 18th. In relation to this, I cannot give you any answer.

MR. NICE: Your Honour --

JUDGE BONOMY: It may be difficult to do, but are you not able to identify any of these bodies to see if they're the same as the witness saw?

THE WITNESS: [Interpretation] No.

MR. NICE: If we go to the end, and if the usher would go to, I think, the last three tags in the documents, he will find, I hope -- it's not in -- it may be in this section. Right at the end. The gully has actually been photographed, I'll make it available if Mr. Prendergast doesn't have it, to deal with His Honour's question. Mr. Prendergast, perhaps you'd like -- here they come. Go on these photographs towards the end, Mr. Prendergast, and it's right at the end of the collection. No. Just before that.

Q. Now, you see here photographs have been made with the names of the victims written over them. So here we have Hapik Imeri, Ahmet Jakupi -- or Iseki, Esref Jakupi.

MR. NICE: The previous photograph, please, Mr. Prendergast. The previous one to that, I think. No. I think they're slightly out of order. Let me hand in mine if you can't find it. It's got the number ³⁷⁹⁷⁵ 214999 at the top, right-hand corner.

A. I don't know when this photograph was taken. It was winter. Here I can see green leaves and trees, so it's spring. I don't know when this one was taken here.

Q. Very well. All taken at the same time. The bodies now, if you can see them, you see with all the names on them. The identifications have been drawn. All unarmed, some with belts, some with no belts, none with identical belts. These were the bodies that were found, Mrs. Marinkovic. And you've never considered the photographs.

A. The photographs or, rather, the person who compiled them could have brought me those in court and we could have looked at them together and dealt with them together. I can't comment on something that I haven't seen, didn't notice myself, didn't see. It's something new for me. So I did not take part in that. I did not see those bodies.

Q. Well, of course --

JUDGE BONOMY: These two points you make, with respect, are inconsistent. You say the person who took the photographs could have bought them to you and you could have looked at them. Well, you've now got them, so you can now look at them. They can't be improved upon. They're there. So what Mr. Nice wants to know is whether you have a comment to make about the wearing of belts in the light of what you've now seen.

THE WITNESS: [Interpretation] As far as the belts are concerned, that's just one detail. So among those 40 corpses we found in the mosque, among them -- I don't say all of them but among them-- there were those ³⁷⁹⁷⁶ who were wearing the same or similar leather belts. That's what I can state. That indicates the fact that, taken in conjunction with the other evidence, a belt in itself is not essential, but if you compare the winter boots that they were wearing, or winter shoes and trousers and the weapons and the traces of gunpowder found on their hands, all this indicates that the participants were KLA members. And their headquarters was found, too. We found the remnants of their headquarters.

JUDGE BONOMY: Now you're drawing conclusions, the thing you've told us repeatedly you're not permitted to do.

THE WITNESS: [Interpretation] I am not drawing conclusions. All I am doing is taking note of the facts, the facts that I saw on the spot, noticed and recorded. They are facts, not conclusions.

JUDGE BONOMY: To conclude, to conclude that any of these -- or to say that any of these people were KLA members requires you to draw a conclusion. It's so obvious, Mrs. Marinkovic, there's no point in disputing it, and you've done it repeatedly in your evidence.

THE WITNESS: [Interpretation] Everything that I found on the spot, on site, indicates the fact that they were members of the KLA. That's it.

MR. NICE:

Q. Can I show you three photographs that come from the same collection.

THE INTERPRETER: Microphone, please. Microphone for Mr. Nice, please.

MR. NICE:

Q. They're from tab 7 of Mr. Hendrie's exhibits. If you'd followed ³⁷⁹⁷⁷ the evidence in this case, Mrs. Marinkovic, you'd know that this young boy was injured, went to hospital, and came back to point out where events had happened.

MR. NICE: Next photograph, please, Mr. Prendergast. Next one.

Q. There he is again. First of all, there's no suggestion, is there, in the conflict in Kosovo that boys of this youth - I know it happens in other parts of the world sometimes, tragically - but there's no suggestion, is there, that boys of this youth were involved in violence, is there?

A. And who is the boy? When was this photograph taken? Is the boy one of the 40 corpses that I have on my list?

Q. Please listen to the question. I told you he was in hospital. He was wounded. He came back to point out where things had happened. My question to you was quite clear: Is there any suggestion that people of this youth were involved in violence on the part of the KLA?

A. I have a piece of information here according to which one boy was a casualty, but let me tell you the children -- children didn't take part, but they helped. They brought in food, water --

Q. I see.

A. -- carried information.

Q. But if he was a survivor, because he was only injured, and if he was in hospital, you could have talked to him or your prosecutor could have talked to him. Can you explain to the judges why -- don't just go to the system of your courts, we know about that. Can you just explain why it is that no one took the opportunity of speaking to an eyewitness like ³⁷⁹⁷⁸ this?

A. And why didn't the boy ask to be interviewed or why didn't the parents come in to report it? I don't know where the boy was from, but in Stimlje and in Racak --

Q. [Previous translation continues] ... answer and I'm going to move on. I'll give you another chance to think about that answer: Why did no one take the opportunity of speaking to an eyewitness in hospital, like this?

A. Nobody knew that the boy was an eyewitness.

Q. Now, let me ask you one more question before we move to your central evidence, as it may be, on membership of the KLA. I asked you before the break if this was a conflict between the KLA and the police, I want to know why the police account isn't available to us. Let me go back to your earlier years as a more junior judge. Did you ever deal in allegations of Mr. A hitting Mr. B, something as simple as that? Did you?

A. I had cases like that too.

Q. Very well. Thank you. In such cases, it would be necessary, wouldn't it, and obvious, to obtain both sides' evidence, if possible?

A. When there is a concrete individual who is the perpetrator of a crime, and if there is a specific and if we know who the party afflicted is, so we first interview the accused and then we interview the injured party. That's how an investigation is conducted. And then we amass other evidence.

Q. Thank you. ³⁷⁹⁷⁹

A. And pursuant to the prosecutor's request --

Q. [Previous translation continues] ... your inference, your guess, your hope was that this was a battle between the KLA as wrongdoers and the police was rightdoers, why has no one taken the account of the police? It's so obvious, Mrs. Marinkovic. What wasn't it done?

A. At that stage as conducted by me, the investigation, I wasn't authorised except to carry out an on-site scene of crime investigation to enter into any other proceedings without an order from the prosecutor.

Q. Can you help us with why the prosecutor, if this is the case - we haven't seen all the papers - didn't get an account from what would be the victim of the unlawful attack by the KLA? Can you help us, please?

A. I didn't understand your question. How do you mean "victim"?

Q. Very well. If you didn't understand the question, I won't press any further, and I'll ask you --

JUDGE BONOMY: Mrs. Marinkovic, could you remind me of one thing: How many casualties were there on the police side?

THE WITNESS: [Interpretation] If you just mean Racak and the surrounding parts, then I don't know the exact number, but certainly dozens of policemen were killed in the area during that time.

JUDGE BONOMY: No, I mean on the day of the incident. On the 15th of January, 1999, how many casualties were there on the police side in this confrontation that resulted, as you suggest, in the death of the large number of Kosovo Albanians?

THE WITNESS: [Interpretation] I think was it one policeman who was killed and three injured, or the other way around, I don't know. But ³⁷⁹⁸⁰ there is a report by SUP and a criminal report that was filed, and the wounded or injured policemen were interviewed with respect to the incident, and the papers exist in the SUP of Urosevac. I know for sure they have the files on that.

JUDGE BONOMY: Thank you.

MR. NICE:

Q. Do we have a narrative account somewhere from the police of what they did, where they went, when they went there, how it was that their members died? Do we have that anywhere?

A. I think that an official report about that exists, both with respect to the Urosevac SUP and with respect to the MUP of Serbia.

Q. But it's not here with you. It's not something upon which you rely for your opinion.

A. I'm not authorised for that, nor could I delve into it.

MR. NICE: Your Honours, just give me one minute.

Q. My suggestion to you, Mrs. Marinkovic, following on indeed from His Honour's query, is that if this had been in any sense a fight, there would have been more than just injuries effectively all on one side, or with a large number killed on one side, and I must suggest to you that when you went there, you went there on the instructions of the police to provide some kind of cover for the enormous number of dead bodies that would have to be processed in some way. Isn't that the truth?

A. That is why I insisted and wanted to conduct an on-site investigation, to determine and establish the facts and not to cover them up. And what I did find on site I took note of and recorded, and there is ^{37981 BLANK PAGE 37982} written trace of it all; my official notes and my official reports.

Q. Can we go, please, to your tab 52, which is in English and Serbian.

This was not a statement taken by you yourself, was it?

A. No.

Q. It was simply taken by -- who is Dragan Jasovic and Momcilo Sparavalo?

A. I haven't got the second page.

Q. Who are these people who took the statement?

A. They are officials working in the Urosevac SUP.

Q. Does that mean police or does it mean something else?

A. No. They were civilian people working in the Urosevac SUP. They weren't policemen, didn't wear uniforms. They were crime inspectors, if that explains it better.

MR. NICE: Your Honours, may we go into private session for just less than a minute.

JUDGE ROBINSON: Yes, private session.

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[Open session]

MR. NICE:

Q. Looking at tab 52, the statement taken by Jasovic and Sparavalo, there is no way that you can help us, is there, with the accuracy or otherwise of that statement? You can't express any opinion about it, can you?

A. This statement was taken by officials from the citizens that gave them, and I can just say that this statement was taken with compliance to the law and is a component part of the documentation I had for Racak and sent on to the prosecutor.

Q. You weren't present when the 16-year-old boy was interviewed, were you? ³⁷⁹⁸⁵

A. No.

Q. You would accept as a judge and investigator that an appropriate way of checking whether the statement is accurate is to go and ask the boy, or now the young man.

A. No, it's not up to me. It doesn't come within my authority to investigate and check out.

Q. [Previous translation continues] ... if we need to check the accuracy of the statement, the appropriate course to do is to go and ask him, isn't it?

A. Well, the individuals said what they wanted to say in the statement, what they had to say.

Q. [Previous translation continues] ... check the accuracy of three or four statements that associate victims with membership of the KLA, you as an investigative judge would accept that the appropriate course, as a judge or prosecutor or whatever, you would accept that the appropriate course is to speak to all three of them, because only three are now alive, and to deal with them separately in circumstances where they can't speak to each other between interviews. Would you accept that that's an appropriate and careful way to proceed?

A. The statement taken by officials from citizens, there's nothing to doubt, and there's no need to check it, because they were officials who take these statements from citizens in the manner prescribed by law. So there's no need for any subsequent checks to be made. Only if there is doubt, and in this case there was no doubt because a large number of citizens presented the same facts which coincide when you put the pieces ³⁷⁹⁸⁶ of the mosaic together to form a whole.

Q. Mrs. Marinkovic, we looked at, at an earlier stage in your judicial career, one complaint in detail in relation to the police case. There are several hours that I could have put to you in relation to that, and I must suggest to you that with the complaints of which you were aware about people being beaten, your last answer is simply unrealistic. There's always the chance that people are going to be persuaded to say things that are untrue. Do you not accept that?

A. I do not accept that, no.

Q. Every statement taken --

A. In this specific case -- would you just listen, hear me out. When an individual comes to me pursuant to a request from the prosecutor for me to conduct an investigation, that individual tells me what he considers is his defence. If he does not know Serbian, then he avails himself of the use of a interpreter, and the defence counsel is present too. So what that person considers he needs to tell me and before me as the investigating judge, he does so and I record it. Now, all the things that you mention, I didn't use any of that, and I say that with full responsibility. Now, you can check out wherever you like an accused that I interviewed. Nobody ever complained about my work. None of the parties involved. I continued to work normally in court. I continued to move around Pristina normally, to socialise with people, with colleagues, et cetera, so that these assertions of yours are completely unfounded. That's all I wish to say.

MR. NICE: Your Honours, the witnesses available, one being dead, ³⁷⁹⁸⁷ have been seen. In each case, interviews with them were videoed for two reasons. In addition to a video, a short written statement was taken. My intention, because a video would take too long to play, is to play a small clip from each of the three videos and then to present to the witness in the court the statements that summarise the position of the witness. With your leave, I will now play a short clip from the interview conducted since the court last sat of Afrim Mustafa.

JUDGE ROBINSON: Mr. Nice, let us -- we're going to consider that.

MR. NICE: Certainly.

[Trial Chamber confers]

JUDGE ROBINSON: Yes, you may have the video played.

MR. NICE: Thank you very much. [Videotape played]:

"Is it you say a room like that? And what happened in that room? "And they were saying that -- that I've been member of KLA, and then they asked me to touch the wires.

"They asked you to touch some wires? Were the wires connected to anything?

"I couldn't see anything like in the floor, because it was covered, but I could see a box where they put the switch, the button. "And just to be clear, I want to understand -- just to be clear on the language, were you asked to touch some wires or were you told to touch some wires?

"I was urged to touch the wires. "All right. And did you touch the wires? ³⁷⁹⁸⁸ "At first they -- they touched the wires themselves, but the button wasn't switched on.

"Uh-huh. "So they told me, 'You see? Nothing will happen if you touch.' And initially when I touched the wires, nothing happened. "Uh-huh.

"And then when I touched them again, they switched on the button. "Uh-huh.

"I felt a shock and I started to cry and scream. "Uh-huh.

"They started to shout at me. "What were they shouting?

"'You have been a member of the army of KLA.'"

MR. NICE: I would like to distribute a statement. Your Honours, of course the whole tape is available to the accused and the amicus, whatever its evidential status may be decided to be --

JUDGE KWON: What was the name of this witness?

MR. NICE: Afrim Mustafa.

JUDGE KWON: Tab 52.

MR. NICE: The same one, sorry, Your Honour, yes. And then the content of the interview, in order to be economic with time, the content was summarised in a short statement, and signed, and I'm going to go through a couple of the paragraphs with this witness and ask for her comments.

Q. Mrs. Marinkovic, this young man, who was 16, explained that on the ³⁷⁹⁸⁹ 16th of January - this is the second paragraph - he went to Stimlje and stopped by the police, hit on the legs and put in a police car, he being with an old man, asked for their names and where they were from, accused of being members of the KLA. The police said, "How can you be alive? We killed all the people there."

He goes on to say the police took him to the police station in Ferizaj, cursing mothers, as it were, and taking them for interrogation where he was interrogated by three men in a room who accused him of being a member of the KLA. He then goes on to deal with the box, the switch, the wires and the second time of touching of the wires when he screamed. He explains that they also hit him on his hands with sticks. He didn't give the men any information because he was unable to. One of the men was writing something on a computer, and eventually one of the men said, "Let him go, he's only a child."

Before we look to see what he says about membership of the KLA and about the statement, can you comment, please, on how this person, who apparently gave this voluntary statement, gives an account like this? Is it because perhaps it's true and that's the way your police officers or investigators behaved?

MR. KAY: She can't, and that's the whole point of this. I've been allowing it to develop because I didn't want anyone -- to be thought that we unnecessarily take objections or we're being obstructive, but it's useful sometimes to see how this material develops. There's no connection between the young man in the statement and this witness in any way. There's no crossover between her evidence and ³⁷⁹⁹⁰ his evidence on a direct basis, and in those circumstances she can't possibly comment on what was in his mind, why he acted in a particular way, and what his acts and conduct were. And having allowed this to develop so that the Court can see really the basis of our standing objection in relation to this line of cross-examination, this is a classic example that illustrates the point that we have made on a number of previous occasions as well as in our filings.

JUDGE ROBINSON: Thank you, Mr. Kay. The Chamber agrees with you. Mr. Nice, you may be able to put another question that the witness can answer.

MR. NICE: Yes. Can I therefore take the witness to the next passage of the interview -- of the record and come back to a question that I may wish to ask.

Q. You see, the statement goes on, Mrs. Marinkovic, to say that this young man was shown this tab 52 of your exhibits, and he explained that he didn't sign the statement and that the signature is not his. As to membership of the KLA or not, he sets out a number of people - and if we look at them, Your Honours, it's 1, 3, 4, 5, 6, 7, and 8 - who he says were not members of the KLA. Afet Bilalli, who is not listed in the indictment who he says was a member of the KLA, and number 5, Muhamet Mustafa, son of Hafiz, who he says he's not sure about. Now, this statement, you see, Mrs. Marinkovic, comes from, it would appear, the same young man as identified in tab 52 and gives an account that I've just summarised for you.

I come back to my first question. There is no way in the ³⁷⁹⁹¹ circumstances, rather as Mr. Kay implied when he was asking -- raising an objection, there's no way you can say what was in the mind of the young man --

MR. KAY: We're on the same territory, and --

JUDGE ROBINSON: Mr. Nice, I don't see the point in pursuing this line.

MR. NICE: Well, Your Honour, my position to the witness is that this witness -- he's not a witness; this young man was forced into signing this statement -- not forced into signing the statement, didn't sign the statement, and the document that you have produced is not his in any sense.

JUDGE BONOMY: Again, I find it difficult to see how she can answer that. And you have a brilliant way of establishing this, Mr. Nice, which will be to do some handwriting comparisons.

MR. NICE: In due course.

JUDGE BONOMY: Indeed. But we've taken again a little time on this. I know I'm demonstrating impatience this morning, but I do genuinely feel it, that there has been a period of time in the course of the cross-examination today which has been extremely productive, but there has been, I regret to say, a lot that doesn't strike me as productive. And this is an example, because what's happened here is you've presented material which you can't present at this stage when a simple question could have been asked of the witness without going through a video and then presenting a statement, which I think you must have known she wasn't really able to make -- wouldn't be able to make a serious comment about. ³⁷⁹⁹² Now, that may show certain deficiencies in her processes, for all I know, and that can be addressed in due course, but it's not a matter that's going to be expanded upon usefully in cross-examination.

MR. NICE: As Your Honour pleases, but my problem remains that I have to put our case. Until the witness gives evidence, we don't know what her evidence is going to be, and I can only put my case --

JUDGE BONOMY: But you're not obliged to put a case that she can't comment on. You're only obliged to put your case to people who can sensibly comment about the case you're actually putting.

MR. NICE: With very great respect, Your Honour, Your Honour's observation shows the severe limitations and difficulties with this witness being allowed to produce material of this potential significance in this form when the witnesses themselves would have been available to be called. Because if it's said that she's able to say, as she did, this is a reliable statement because it's taken in conformity with practices of the court, and it's what she does say both by implication and expressly, but I'm not able to say to her, but look -- and we did this, of course, with the most recent witness, his name I've temporarily forgotten, who produced a statement, if I'm not able to put to the witness the contrary statement or the contrary video, then the issues are not really joined and the Chamber isn't really being assisted.

And, Your Honour, I would wish to deal with the other two witnesses in broadly the similar way, showing the statements that have been taken from them, showing the short clips of video in each case of their interviews and drawing to your attention their expressions of ³⁷⁹⁹³ opinion as to membership of the KLA, because -- that's what I would wish to do.

JUDGE BONOMY: Let me try something with the witness just now. Mrs. Marinkovic, if you discovered that a witness who gave a statement that you were considering in the course of an investigation had been tortured, would you give any weight at all to that statement? Simple question.

THE WITNESS: [Interpretation] Yes. If a person had complained to me and said something like that, I certainly would have taken action.

JUDGE BONOMY: Just listen to the question. If you learned that a witness who had given a statement had been tortured in the course of giving that statement, would you give that statement any weight at all in your investigation?

THE WITNESS: [Interpretation] You see, if that is proven that the statement was given under such circumstances, it would certainly be taken into account that that statement could not constitute evidence.

JUDGE BONOMY: Thank you. My second question: If you learned that the witness's signature had been forged on the statement, would you take it into account? Would you take the statement into account in any way?

THE WITNESS: [Interpretation] Again, if the signature is proven to be forged, it cannot be reliable evidence. If that is proven, of course?

JUDGE BONOMY: Thank you very much.

MR. NICE: With Your Honours' leave, I would deal with the same ^{37994 BLANK PAGE 37995} short exercise, and I can deal with it shortly with the other two witnesses who are still alive so that the Trial Chamber can know what material exists. The next one would be --

MR. KAY: No. I think we need a review of all this because otherwise we're going down the same route. It's the introduction of material in this way that eventually gets discounted.

JUDGE BONOMY: I thought Mr. Nice was departing from that, but I have maybe misunderstood.

MR. NICE: I'm hoping to do the same exercise with the other two.

JUDGE BONOMY: Sorry.

MR. NICE: And Your Honours will have in mind that Lituchy, in Lituchy's case the contrary statement was put in. The history of this exercise has been we were presented at short witness with hearsay material of potential significance. We inquire into it. We present our findings fully. In relation to the first witness - it was Andric, was it not? - a video was played of a contrary interpretation of events by the person interviewed, the video was not produced as an exhibit, but I think we were told then that we were allowed to put this for the comment of the witness. With Lituchy, similar things happened, but in light of the Chamber's position on the video, we produced a statement, a contrary statement, as it were, a statement putting the contrary position of the person interviewed was admitted.

On this occasion, arguably the evidence much more significant than the earlier evidence because this goes to a central issue about Racak, we obviously have to investigate, and I said when I sought the Chamber's ³⁷⁹⁹⁶ leave to rise 15 minutes early, so I wasn't going to -- wish to be putting assertions to the witness without having done the investigations because it wouldn't have been a responsible course.

We've done the investigation. Because of the earlier practices, we've done both things: We've got a video recording and a short statement that sets out the position of the witness.

Now, I can either say, if I'm confined to this extent, I must suggest to you, Mrs. Marinkovic, that the statement isn't true, and the Chamber isn't assisted at all, or I can lay out in a couple of minutes what our position is and leave it for the Chamber to decide following discussion what evidential status that material can fill. And it would be my submission that, at the very least, the position with Lituchy should be followed.

[Trial Chamber confers]

JUDGE ROBINSON: Yes, you may put -- put it, Mr. Nice.

MR. NICE: Well, I'm very much obliged. May I take it that I can put a short passage from --

JUDGE ROBINSON: It's time to adjourn for the 20-minute break.

MR. NICE: I'll deal with it very quickly, if I can, afterwards, and in each case I'll put a short clip - I've prepared them - of the video interviews, and a summary of the statements. I can even make the statements available in advance, if you'd like to see them.

JUDGE ROBINSON: Yes. We'll adjourn for 20 minutes.

--- Recess taken at 12.15 p.m.

--- On resuming at 12.40 p.m. ³⁷⁹⁹⁷

JUDGE ROBINSON: Yes, Mr. Nice.

MR. NICE: We'll play a short extract from a video recorded interview with somebody called Muhadin Dzeljadini at tab 51 of the Defence exhibits.

[Videotape played]: "Let's go back a little bit to the 17th of January when you were in Ferizaj. So at some point on that day, on the 17th of January, you were asked to sign a statement; is that correct? "That's correct.

"All right. And that -- "I didn't want to sign it but I was urged to sign it. Because when I saw the blood on the -- at the basement, I was so afraid. So I -- I signed it.

"Okay. So -- so -- in other words, are you telling --"

JUDGE ROBINSON: Where did this interview by Investigator Saxon take place?

MR. NICE: The interview was conducted in Pristina.

JUDGE ROBINSON: Pristina.

MR. NICE: Yes, the field office. And the holiday was sacrificed in order that the interview be made.

JUDGE ROBINSON: Oh.

MR. NICE: And if we could look, please, at the statement briefly.

Q. You see, this statement taken over the last few days by an investigator and a lawyer, explains in the second paragraph how this man had indeed been told to leave the village by William Walker because he ³⁷⁹⁹⁸ said the Serbs are coming. How on the 17th of January he went to Stimlje, detained by the police who said that he'd been up in the mountains. He denies being a member of the KLA. He was taken to room number 51 in the police station. He told the men that on the previous day, the 16th, he had been in Racak and had helped move the bodies to the mosque, and indeed included in the bodies he'd dealt with was the decapitated body that we know about and have seen in photographs.

He was then beaten with a stick, asked why he was saying such things, was taken to a smaller room and asked about provisioning for the KLA, saying he didn't know, sent to the basement which had a room about six metres long, four men present who pressed him to accept what they said, in particular wanting him to say that a man called Mehmet Mustafa had a rocket launcher, whereas the person knew it only to be a gun, acknowledging that Mehmet Mustafa was indeed a member of the KLA. Pressed to make concessions about Sadik Mujota, his visit to the station ended when he was asked to sign a statement, which is our tab 51. He acknowledges that the signature is his, but he didn't want to sign it and he said that there was blood on the floor of the basement, that he was afraid. I'll come back to that in a second.

Paragraph 7 he says Mehmet Mustafa was a member of the KLA. He didn't know about Lutfi Bilalli, and as to Nijazi Zymberi, he was not a member of the KLA but he doesn't know about Bajram Mehmeti. Did you go to the basement where these people were interrogated, Mrs. Marinkovic?

A. I have no comment regarding this question, nor do I have an ³⁷⁹⁹⁹ answer.

Q. Following on from the question that His Honour Judge Bonomy asked you before the break, if you knew that a signature had been appended by someone to a statement, having been beaten, would you pay any attention to the contents of that statement?

A. I've already given an answer to Judge Bonomy. If I understood you correctly, because I do not have a Serbian translation of this witness's statement, the citizen you interviewed after so many years did not deny it. He said that he did sign this signature, that it is his signature. It is for the Trial Chamber to decide now the statement that he gave in 1999 and the statement that you took from him now a few days ago which one is more reliable. That will be for the Trial Chamber to decide. I would like to say another thing. The witnesses you interviewed now, they are afraid for safety and security reasons to confirm what they said in 1999, so they are telling you what they said to you. The degree of truthfulness of this is a different matter.

Q. Mrs. Marinkovic, do you remember a short exchange between yourself and Judge Bonomy where he asked you questions about whether you were drawing conclusions? Is what you've just told us a conclusion?

JUDGE ROBINSON: Mr. Nice, that was in relation to a different matter, an entirely different matter.

MR. NICE: I want to know is what the witness telling us now -- is what she's telling us now about the witnesses being afraid a conclusion, Mrs. Marinkovic?

MR. KAY: Well, if you're putting material like this, you're going ³⁸⁰⁰⁰ to invite responses like that, and in a way, the Prosecution have brought this on themselves.

JUDGE ROBINSON: I don't see the point of the question, Mr. Nice.

MR. NICE: Very well.

Q. I'd like to press it with this: Mrs. Marinkovic, you're in no position to say, seeing two different statements and somebody saying it was taken -- no, I won't bother. I won't press it. It will only be argumentative.

Can we look at the third clip, please, which is tab 47.

JUDGE BONOMY: I take it that you are content that the answer you got to the question you asked was, depends on circumstances, that that sort of statement might well be given some weight. At least, that's what I draw from the answer, that the judge wouldn't reject that sort of statement out of hand.

MR. NICE: Your Honour, I'm quite, in a sense, happy with that as a conclusion because if the Chamber is going to be invited in due course to act at all on the conclusions, although she denies making them, of this witness, and the Chamber knows that she's somebody who would not rule out of hand statements obtained by force, then the Chamber may be confronting a different approach to the general standards of admissibility from those that it would apply itself. So I'm happy enough with her answer. It would be my submission, and indeed I can remember His Honour Judge Robinson dealing with this at an early stage and expressing an opinion on the matter, in my submission, that modern standards would make any statement obtained following coercion of no value to a Chamber. His ³⁸⁰⁰¹ Honour Judge Robinson dealt with that specifically.

JUDGE BONOMY: Well, it's surprising that wasn't the answer you were given.

MR. NICE: Your Honour, yes indeed.

Q. Can we just then look briefly at the third one which is, yes, tab 47, Shemsi Emini.

[Videotape played]: "There were two police on that side carrying baseball bats. "Uh-huh.

"... baseball bats. And they started to beat me everywhere apart from the face.

"Uh-huh. And how long were you beaten? "So they were beating me like for ten minutes, an hour, and they interrogated me again.

"All right. So as they were beating you and interrogating you, what kinds of things were they asking you?

"They asked me about some people of Racak village, whether do I know these people. They were saying names.

"Uh-huh."

MR. NICE: Thank you very much. If we can look at the statement taken from the same person. A little longer but I'll deal with it shortly.

Q. If we look at the second page, Mrs. Marinkovic, even if you don't speak English or don't speak it fluently, and I'm not sure of your level of English, you will see that in paragraph 6 he makes it clear that he's ³⁸⁰⁰² shown the statement, tab 47, which is the tab that you produced of this person, and you'll see that he acknowledges the signature as being his, and he says he didn't sign it voluntarily but was forced to do so. And then if we come back to pages 1 -- or page 1, he wanted to go to the funeral of those who died in Racak, was stopped by a policeman who alleged he was a terrorist. Paragraph 3, was interrogated on his own, explained his reason for wanting to go to Racak, was asked by policemen who killed somebody, his cousin Ajak Emini [phoen] or Brahimi, and he said that the Serb police killed him. The policemen replied that they didn't, that the KLA did, and he said that the KLA would not kill its own people. And then they used their baseball bats or similar to beat him. And they also asked about different people, at one stage mentioning Ragip Bajrami and asked if he was a member of the KLA, the man Shemsi Emini saying, "No, he's a civilian, like me," knowing that he, Ragip Bajrami was killed in Racak but not daring to mention his name. Now, do you have any comments to make about -- they then threatened him with prison and asked him about money, and he explained that he'd given money to a civilian in Racak.

Do you have any comment to make on this man who says that he was compelled to sign this statement?

A. Any comment would be superfluous. After so many years, what is true? But read every record, every statement that witnesses, citizens gave with the authorised officials. It says very nicely down here that he read the statement, recognised it as his own, and confirms that with his signature. And now you found him five years later and you're saying that ³⁸⁰⁰³ he gave the statement under duress. What kind of proof do you have that the statement that you obtained now is correct and authentic? Just like you are doubting the one he gave to me, I am doubting the one he gave you, especially in view of the fact that he gave me the statement in 1999, immediately after the said events, and you heard him so many years later.

Q. Gave you or gave your offices?

A. No, no, no. To the authorised officials, in the legally prescribed form.

MR. NICE: Your Honours, I'm --

THE WITNESS: [Interpretation] With all his details. He gave all his details and he gave a proper account. How could the officials know all these details if he did not provide them himself? He described in detail everything he knew.

Q. Mrs. --

A. And here in the statement that you obtained, they're only interested in saying what you are interested in hearing from them, that is whether they gave those statements under duress or when they were tortured.

MR. NICE: Your Honours, it will take a few minutes but I think it must be worthwhile. The document that the witness produced which hadn't been produced by the accused would appear to be the only extant, or at least the only presently existing, account by the local police of what happened. It's not in translation. It's about a half a page long, and with Your Honours' leave, may it go on the overhead projector, a copy go in front of the witness, and may we have it read in full rather than the ³⁸⁰⁰⁴ selective statements that she chose.

JUDGE KWON: Which is Official Note by the prosecutor.

MR. NICE: That's correct, yes. And then I have about two questions to ask her of it. But it seems to me better to get the document in while she's here in case it stimulates any questions by the Court and indeed in re-examination but since she's produced some sentences from it. If she could have it in front of her so she could read it and the interpreters could translate it.

Q. Mrs. Marinkovic, I'm going to ask you to read all of the paragraph -- perhaps we'll start from about six lines up on the first paragraph, "MUP RS Koja su," and then we go from there, 15/1/99. If you could read it, but please will you remember that the interpreters have to interpret and there is a temptation to read documents too rapidly. If you could just start and read out loud starting with "Koja su 15.1.1999."

A. So you mean to start from here.

Q. Yes, please.

A. "The RS MUP who on the 15th of January, 1999, undertook action to apprehend the perpetrators of the crime of terrorism which crime was committed against the now late Svetislav Przic and the abduction of a number of citizens of Albanian nationality or ethnicity loyal to the state of Serbia and the Federal Republic of Yugoslavia and that all the actions undertaken were geared towards refuting an armed attack by members of the terrorist band, the so-called KLA, and in conformity with the law on internal affairs." ³⁸⁰⁰⁵ Do you want me to read on?

Q. Yes.

A. "From the Official Note of the investigating judge of the district court in Pristina, the crime number was 14/99 and the date the 15th of January, 1999, the Official Notes of the deputy district public prosecutor and the chronological list of events by the SUP of Urosevac, along with photographic documentation number 15/99 of the 15th of January, 1999, and number 23/99 of the 18th of January, 1999, undoubtedly establish that on the 15th of January, 1999, in the early morning hours, in the area of the village of Racak, there was a mass -- there were mass armed attacks against members of the police force by members of the terrorist band, the so-called KLA, from a number of directions with weapons of different calibre and great destructive power and from a number of fortified positions as well as from apartment buildings in the settlement itself. On that occasion, a policeman Goran Vicentijevic received bodily injuries and a criminal report was filed because of that against perpetrators unknown, KU number 9/99, dated the 29th of January, 1999, and it was recorded in the prosecutor's office under the number of KTN 43/99. In refuting the attack, 40 members of the so-called KLA were killed who had taken part directly in the attack or undertaken action for its successful completion. This conclusion, without a doubt, emanates from a finding by the crime technicians of the SUP of Pristina, number 03234/1/66-99 of the 21st of January, 1999, from which it emerges that with 37 corpses, the presence of nitrate particles and nitrite particles were found which may have come from gunpowder (except for on the corpses numbered 11, 24, and ³⁸⁰⁰⁶ 28) and from the conclusions of the Institute for Forensic Medicine of the medical faculty in Pristina, UV number 75/99, that all the injuries on the corpses were inflicted during their lifetime (intra-vital ones) and they were sustained through firearms on different portions and parts of the body from different directions which indicates us to conclude that it was that the victims were in the -- engaged in some action and that they were inflicted from a distance except in the case of two bodies, bodies 24 and 34, where we have excluded immediate proximity, but in view of the number of injuries on these bodies, we cannot exclude a relative distance at the moment the injury was inflicted.

"For the reasons presented above, I consider that there is no grounds for taking proceedings further in -- for any crime where Prosecution is indicated pursuant to authority and competence."

Q. Two or three questions, Mrs. Marinkovic, and I'll be done with this document. When you spoke earlier of a death, the death was a death that had happened before the attack at Racak. It was the death of Svetislav Przic; is that right?

A. Yes. The cause for the operation in Racak.

Q. Because that was the immediate genesis of Racak. The KLA had, it appears, killed a policeman, and the police went in to attack Racak. And that's what this document reveals, although it tries in a way to obscure it. Is that the truth? A revenge attack for the death of a policeman?

A. No. No, that's not correct. The police went to find the perpetrators of the act and crime of terrorism. That was the pretext for the attack. That was why the attack came, and that's what it says in the ^{38007 BLANK PAGE 38008} note.

Q. Now let's look at something else that's -- you see -- let's look at something else that this statement or summary reveals, and perhaps you would be good enough to have in mind the map beside you and so that the Judges can be reminded, the figure 5 shows the gully where the 20-odd men were found. But if you look around at all the other scenes marked 1 to 13, including over there on Cesta hill, that's where all the other people who died made up the 40 altogether.

You understand, Mrs. Marinkovic, that photographs were taken of those bodies in situ on all those different 13 sites, and it's only by adding up all those different sites that you reach the figure of about 40. So do we take it that this -- would you understand this statement, assuming that the learned Judges here find that the bodies were found in the places where they were found, do you take it that this is an acknowledgement by the local police that they killed all those 40 people in all those different locations?

A. I don't know where the bodies were found. I came across them in the mosque, and there were 40 of them in all.

Q. Yes. You're the person with experience of the judicial system. This is a report from which you read a few sentences. I've now read all of it. Do you take it, assuming that 40 bodies were found in the 13 different locations - it's your system - may we take it that this is an acknowledgement by the police through this reporting mechanism that they killed all those 40 people?

Can you look at the photographs, please. ³⁸⁰⁰⁹

JUDGE BONOMY: Mr. Nice, why don't you just ask the question without the hypothesis. In other words, does the report amount to an acknowledgement that the police killed the 40 people, and then it's really for us to work out the rest, is it not?

MR. NICE: Okay.

JUDGE BONOMY: But it's more likely to produce an answer.

MR. NICE:

Q. Does it amount to an acknowledgement, His Honour's question, that the police killed 40 people? Does it?

A. The police do not acknowledge having killed 40 people, in this Official Note what it says is that it took part in an operation to uncover the perpetrators of a crime and that it was during that operation that there was crossfire and that there was a conflict between the two sides, two parties. There was a lot of shooting. One side shot and the other side shot and it was in that conflict that these people fell victim, the ones that we found. Now, whether the policemen killed them or not, I'm not authorised to comment. But it is undoubtable that --

Q. Mrs. Marinkovic, two points emerge. You're speaking of crossfire and earlier when you read selectively from this paragraph you led us to believe that a policeman had been killed. We now see that one policeman is actually recorded as injured. Can you just read again, please, that sentence that begins [B/C/S spoken] and then a reference to 40. Just read it for us once more, please.

A. It's only for me to read it. You know what happens during a conflict, a conflict between two sides. What do you want me to read, ³⁸⁰¹⁰ which sentence?

Q. The sentence that has the figure 40 in it.

JUDGE ROBINSON: Point her to the place where that is, Mr. Nice.

MR. NICE:

Q. Yes. It's halfway down the second paragraph. The sentence begins [B/C/S spoken].

A. Yes. "Repelling the attack, 40 members of the so-called KLA were killed, deprived of life, who had taken direct part in the attack or done actions to ensure its successful completion. This conclusion, without a doubt -- this conclusion, undoubtedly --"

Q. Last point on this document: There's reference to the nitrate test. You know as an experienced judge, prosecutor, what you will, that the nitrate test on its own is not sufficient for proving possession of firearms?

A. This test, it is true, does not in itself constitute evidence. However, the test itself is an indication that -- to the effect that a person had fired from a firearm. The gunpowder particles, once they were found and when they were found on the hand between the index finger and the second finger on the upper portion of the hand, indicates that the person did indeed hold a firearm and fire from the firearm. The presence of gunpowder particles. And as an investigative judge, I applied the test in numerous cases, taken, of course, together with all the other evidence which leads to an incontestable fact.

Q. If you're saying in respect of any of these dead men or the young woman that you found gunpowder particles between their fingers, you must ³⁸⁰¹¹ point us to where it's recorded, because I may have missed it.

A. The prosecutor refers here to the findings. I am not an expert in the field myself, but I engaged a forensic ballistics expert, and issued orders for him to do the paraffin glove test to establish the presence or otherwise of gunpowder particles. And we have the finding. The prosecutor in his report refers to the finding by the crime technician of the SUP of Pristina, and the number is 234/1/66 or, rather, -1-66/99. The date is the 21st of January, 1999, from which it emerges that in 37 of the bodies the presence of nitrate particles was established. Nitrate particles were found to be present on 37 bodies.

Q. [Previous translation continues] ... nitrate test.

A. Yes, but which can -- can have been derived from gunpowder is the continuation of that sentence.

Q. We move on from Racak, very briefly, to deal with a couple of other things. So far as Dubrava Prison is concerned, you interviewed no survivors other than those you say you saw who had been injured and moved to the location where you were, the town where you were. You interviewed no other survivors, did you?

A. No, yes, right.

Q. You --

A. Just let me say, and you didn't wait for me to complete my answer, since a large number of people who were wounded and injured from Dubrava were transferred to Lipljan, I did have the opportunity of seeing those people. However, I wasn't able to talk to them directly because they were under stress and they had been injured. So the essential thing to do ³⁸⁰¹² first was to provide them with the medical care and attention they needed. Later on, we did talk to those people but not -- I didn't. We agreed with the prison authorities to talk to the people in question so that they could tell them what had happened while they were in Dubrava in the prison there.

Q. You produced your colleagues' report which we've looked at on the last occasion we were here, a couple of weeks ago, and he didn't speak to any of the survivors who have given evidence in this court, either Musan Krasniqi, Milaim Ceki or Gani Bekaj, did he?

A. I don't know who these people are. I haven't heard of the names before.

Q. Another example of the way in your country, or at least at the time of your holding office in the period with which we are concerned, another indication of the way inquiries were conducted, Mrs. Marinkovic, is the Kelmendi inquiry.

Mr. and Mrs. Kelmendi were human rights lawyers, were they not, and they appeared often in your cases in defence of people charged with offences.

A. Yes. And cooperation was perfectly proper at the official level, defence counsel/judge, that relationship. Perfectly proper.

Q. [Previous translation continues] ... perhaps the most famous lawyer of his kind, was taken from his family with his two sons immediately after the bombing started and was eventually shot with his two sons, and you were the investigative judge, weren't you? Well, you've got a document out -- ³⁸⁰¹³

A. Just a moment, please. Bajram Kelmendi was an exceptional lawyer and a good criminal lawyer, and during the NATO bombing he wasn't shot as you say. Linked to that event, I as the investigating judge carried an on-site -- carried out an on-site investigation because the duty officer told me or informed me that three bodies had been found in that particular location. They didn't know who the bodies belonged to, and I went on site to establish the facts.

And I'll show you the minutes, the record. I have all my records and minutes with me. I can tell you the exact day --

Q. [Previous translation continues] ... me this: Did you ever go to Mrs. Kelmendi --

A. Just let me tell you, let me finish. Let me just tell you this --

Q. [Previous translation continues] ... because it's the question I wanted to ask. Did you go to Mrs. Kelmendi and ever take from her an account of how her husband and sons had been taken from them and by whom they'd been taken?

A. She came to see me in my office in the courtroom -- in court several times, and I talked to her, and she told me that that evening some unknown men turned up and took her husband off and her sons off, and when she -- when she came to see me, she said that we still didn't know where they were, whether they were dead or alive. So during the days that she came to see me in my office in the courthouse, we didn't know about their fate at all. It was only on the 26th of March, 1999, when I went on the spot to investigate and when three bodies were found by the roadside, and her brother was also present on that occasion when the on-site ³⁸⁰¹⁴ investigation took place, and I record this in my minutes and notes, he recognised them and said that the bodies were those of Bajram, Kastriot and Kushtrim Kelmendi. I compiled a report on my on-site investigation and sent it on to the Forensic Medical Institute for post-mortem to be conducted. I have it under the crime number. I have the number here of the case in question --

Q. [Previous translation continues] ...

A. -- Kri number.

Q. [Previous translation continues] ... taken her husband and her two sons. Has anybody ever been arrested for that crime?

A. You know what? Since the perpetrators were unknown, a criminal report was tabled by the SUP in Pristina and sent to the prosecutor in Pristina. On the 3rd of May 1999 there is a criminal report against perpetrators unknown for the crime of murder under Article 47, killing, against the Kelmendi family. Soon after that they were expelled from -- or we were expelled from Pristina and were no longer an authority there because the international forces an international community came in, so we as a court were no longer able to undertake any steps to uncover the perpetrators of that crime.

JUDGE BONOMY: Mr. Nice, was the question you asked there that Mrs. Kelmendi said it was Serbs that took her husband?

MR. NICE: It was, yes.

JUDGE BONOMY: It's just it's not recorded on the transcript.

MR. NICE:

Q. She had made it clear, didn't she, that it was Serbs that had ³⁸⁰¹⁵ taken her husband and sons?

A. But she had no concrete proof of that --

Q. I see.

A. -- name and surname.

Q. And --

A. So that at the time when she said that, we still didn't know whether they were alive or not and where they were, what had happened to them.

Q. Did you in your report put down anything that might indicate that it was the KLA that had killed the Kelmendis?

A. You know what? I couldn't introduce that into the minutes because I conduct the on-site investigation on the spot, take note of the situation I find on the ground. In my minutes and records I don't express my doubts or suspicions or observations and conclusions. I just describe what I find. I describe the location and the proof and evidence that I came upon in that location.

Q. Very well.

A. And that is all set out. I have the minutes or the record. I have it all, and the criminal report on that case and it is registered, so we as the court authorities took all the necessary steps to uncover the perpetrators of that crime. There is a criminal report. Along with a criminal report, we have the on-site investigation record, and so on.

Q. [Previous translation continues] ... and I asked you whether you put down anything that indicated that the KLA had killed the Kelmendis. Is your answer that you did not do that? ³⁸⁰¹⁶

A. Not in my minutes, no.

Q. Very well.

A. Because it is not up to me to write things like that down, observations of that nature.

Q. You raised issues last week or the week before, whenever it was, about the number of people killed and the names of people killed, your list being different in some particulars from the list in the indictment.

MR. NICE: Your Honours, the position is that following that evidence, we've been able to make some headway in resolving differences on the lists. I'm going to deal with it, or Mr. Saxon will deal with it with the next witness, Dobricanin, and I'm not going to duplicate the position. Therefore, I have one general question to ask of this witness that I hope will clarify matters, or perhaps two.

Q. Dealing with names, Mrs. Marinkovic, it is right that Kosovo Albanians often are known by more than one name? For example, somebody's last name may at some stage in his life change because he'll adopt the name of his grandfather.

A. I don't know that that was the official position, that they changed names officially. I don't know about that.

Q. You lived there for a long time. Is it right that individuals could be known by more than one name? We can actually, I think, see it in your own documents but I just want a general answer to that. Is it right that individuals could be known by more than one name quite regularly?

A. They have a name and a surname. Now, I don't know whether they add their grandfather's name or not. It's not something I thought about ³⁸⁰¹⁷ nor did it influence my work, the establishment of this. If anybody wanted to change their name, they would need to do so officially and go about it officially, stating the reasons for wishing to change their names, and this is then recorded in the records, the books of married, dead, and so on. Yes, I have lived in Kosovo for a long time but this is not something that I know about for a fact.

Q. Finally, or almost finally, just sweeping up matters of detail, I asked you at the beginning, or fairly early on, about your husband's first name and you having provided it. The Court will find him referred to in tab 5.1 of the Balevic exhibits. I'm not asking you to turn it up, but that's a reference. Because in fact your husband was sufficiently involved in local Serb politics that he was one of the speakers at the meeting attended by the accused at Kosovo Polje in '87, wasn't he, because we've got a transcript from a Defence exhibit of what he said. He spoke at that meeting, didn't he?

A. Well, he must have spoken, but he wasn't officially involved in politics as a politician. He's a mechanical engineer by profession. He worked as an engineer in a factory. And like all Serbs at the time who lived in Kosovo and Metohija, he -- or, rather, they sought their rights in Kosovo and Metohija because they were second-rate citizens at the time. At that time, the Albanians enjoyed much more rights --

Q. [Previous translation continues] ... thinking back, he was actually on the committee with the man Solevic and others that organised the demonstrations around the country, wasn't he? He was actually on the committee. ³⁸⁰¹⁸

A. I'm sorry, I didn't quite understand that. What kind of demonstrations? I didn't understand that.

Q. When Serbs went from Kosovo to Vojvodina to bring down the Vojvodina then government, it was a committee organising it and your husband was one of the committee.

A. What does that have to do with my testimony now? Secondly, they did not go out there to topple the Vojvodina government, to bring down the Vojvodina government. They wanted to portray how the Serbs in Kosovo and Metohija were endangered in so many ways. They didn't have the right to get jobs, because Albanians were given preference. They didn't have the right to get an apartment, and so on. The Serbs only raised their voice so that Serbia would hear that there were Serbs living in Kosovo and Metohija too and that they should have the same rights as Albanians. That was the aim of those demonstrations. It was aimed at that. But that has nothing to do with my work. I was a judge, I remain a judge, and I'm a judge even now after the new government came into place. I continue to work as a professional judge. What my husband did at the time by way of giving his contribution to improve the lot of Serbs in Kosovo and Metohija is something that really has nothing to do with my job. No one ever made any objections to the way I did my job, not from the side of the Prosecution or the Defence attorneys.

Q. [Previous translation continues] ... Defence attorneys. Now, we only looked at one example and it took too long, but in fact several complaints were made about your -- please listen to me. Several complaints were made about your allowing or encouraging people to be ³⁸⁰¹⁹ beaten when detained. More than one in the very police case that we looked at, tab 4. Is that correct?

A. That is not correct. That was not a complaint of my work. It is only natural that a Defence attorney on behalf of his client has to write some kind of submissions. He did not have any objections to my work. He asked for his client to be examined, I allowed that, and that was the end of that. But during investigation --

Q. Very well.

A. -- it defies all logic that I could force someone to give his signature and give an admission. I don't believe that a judge could work that way anywhere in the world because the work of judges and the courts of law is exposed to the public and to appraisals by the public. The trial was public after the indictment was issued. So he could have said the same thing in his appeal.

On the contrary. When you mentioned the illegal SUP --

Q. [Previous translation continues] ... is that, as we saw from the limited nature of the inquiry at Racak, I must suggest to you that over the period of time, which is why we've looked at a longer period of time and indeed your husband's interest in politics as well as your own behaviour, I must suggest to you that over a period of time you were putting the law in the service of political objectives. You see?

A. That is not correct. I have nothing to do with politics nor was I ever involved in politics. I have only worked professionally and in accordance with the law.

MR. NICE: Your Honours, exhibits now or later? In your hands. ³⁸⁰²⁰

JUDGE ROBINSON: I think later.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Milosevic, do you have any re-examination?

THE INTERPRETER: The interpreters did not hear the speaker.

JUDGE ROBINSON: The interpreters did not hear -- hear me or Mr. Milosevic?

THE INTERPRETER: Mr. Milosevic. The microphone wasn't on.

THE ACCUSED: [Interpretation] You asked me whether I had any additional questions, and my answer was yes.

JUDGE ROBINSON: Yes. Yes. Proceed. Proceed.

THE ACCUSED: [Interpretation] Thank you, Mr. Robinson. Re-examined by Mr. Milosevic:

Q. [Interpretation] Mrs. Marinkovic, at the beginning of the cross-examination, Mr. Nice put questions that had to do with your credibility, and he showed a text written by Natasa Kandic, which in all fairness had not been translated, but very serious accusations were levelled at you. Therefore, I shall put a few questions -- let me just find something here. A few questions that have to do with that text. At the bottom of the first page, I'm saying that for the benefit of you who can follow the text in English, the paragraph begins as follows: "[In English] More and more policemen are coming out with what really happened in Kosovo. It was from them that I first heard about the murder of Fehmi Agani. I also heard from them that liquidation orders --" [Interpretation] please pay attention to this, Mrs. Marinkovic: "[In English] were not given only by police and military commanders." ³⁸⁰²¹ [Interpretation] Let's dwell on this sentence first. Have you ever heard of any police or military commander giving orders for any kind of liquidation?

A. I've never heard of anything like that.

Q. Now the next sentence: "[In English] They told me Danica Marinkovic personally ordered several wounded men of the Ahmeti family to be shot on 28 February 1998 in Likosane village." [Interpretation] As you can see, Mrs. Marinkovic, Natasa Kandic accused you here that you ordered the killing of a few members of the Ahmeti family. Please, do you know anything about what it says here?

A. Nothing. I was never there nor do I know anything in relation to this event. This is a pure lie, and it is totally untrue in relation to me as an individual and as a professional.

Q. Is it conceivable at all that there would be a situation in which an investigating judge could issue any kind of action, especially something as serious as a killing?

A. That is inconceivable. No one can order that. That kind of thing could never happen.

Q. All right. Mrs. Marinkovic, are you saying that you've never been to the village of Likosane?

A. No, I've never been there. I don't even know if it fell under my jurisdiction.

Q. All right. Then it says here: "[In English] Then an investigating judge, she came to conduct an on-site investigation together with Jovica Jovanovic, the deputy district prosecutor, and a team of ³⁸⁰²² investigators. There was a pile of bodies outside the Ahmeti house in which some men were still giving signs of life. In the presence of about 30 members of the special anti-terrorist unit, Danica Marinkovic allegedly said, 'I'm not taking them. Kill them.'"

JUDGE ROBINSON: Mr. Milosevic, may I remind you that the witness has already contradicted this statement. She has already denied the allegations in that statement. So I mean, there is no profit really from just having her reiterate her denial.

THE ACCUSED: [Interpretation] Very well.

THE WITNESS: [Interpretation] May I add something? This is the first time I see this text. This is the first time I've heard of this. I never had the opportunity of reading this before. I mean, something like this being written is really something that is beyond any reason. I'm so surprised that anybody could write something like this and that any newspaper would carry it.

MR. MILOSEVIC: [Interpretation]

Q. Please take a look at the fourth paragraph starting from the bottom. I'm going to read it out to you. Again your name is mentioned there. "[In English] Judge Marinkovic sets herself up as a protector of Serb victims and the Serbian police but here attempts to manipulate public opinion and in vain. It is known within the police force who killed Fehmi Agani, who did what in Kosovo, who fired the guns, who removed the corpses, who looted by the truckload, who brought the orders from Belgrade and conveyed the president's commendation and expressions of support." [Interpretation] Please, could you be so kind as to give your ³⁸⁰²³ comment with regard to what I've just read out to you.

A. This is also a lie. It is something that is untrue. It is a sheer invention.

First of all, I carried out investigations regardless of whether who -- of who the victim was, whether it was a Serb, Albanian, or anybody else. When I go to an on-site investigation, I have no idea who the victim is. And I have such a lot of proof that I carried out all on-site investigations regardless of any kind of background. I mentioned a few minutes ago also as far as Fehmi Agani is concerned, I had nothing to do with him and I did not carry out the on-site investigation because this was a perpetrator unknown and also the body was first of an unknown person, so then I asked for a post-mortem to be carried out. A criminal report was filed against perpetrators unknown. That is to say that the state authorities, in accordance with their powers, did everything that could be done in relation to that event.

Q. All right. In this same passage, it says that it was known full well "who brought the orders from Belgrade [In English] and conveyed the president's commendations and expressions of support."

A. That has nothing to do with anything. We had no links with Belgrade. We did our jobs professionally and in accordance with the law. It's not that any kind of communications or commendations arrived to the court, either to me personally or my colleagues or to the office of the prosecutor.

JUDGE ROBINSON: Mr. Milosevic, we have another trial this afternoon, so in order to give them time to make the changeover, we're ³⁸⁰²⁴ going to stop a few minutes before a quarter to two. We will adjourn and resume tomorrow morning at 9.00 a.m.

THE ACCUSED: [Interpretation] Very well, Mr. Robinson.

--- Whereupon the hearing adjourned at 1.43 p.m. to be reconvened on Thursday, the 7th day of

April, 2005, at 9.00 a.m.