³⁸²³⁹

Tuesday, 12 April 2005

[Open session]

[The accused entered court]

--- Upon commencing at 9.03 a.m.

JUDGE ROBINSON: Mr. Nice.

MR. NICE: I've asked for the witness to be kept out for a couple of minutes. The Court will remember that last week the present witness gave evidence of an entirely expert character for a portion of his evidence, touching on matters that had been dealt with by Court witness Helena Ranta. I sought and obtained the Court's leave to contact Dr. Ranta, and she very helpfully attended yesterday and is here today. Although a Court witness, we first of all asked her, she having been provided with a transcript, for any comments she had on the evidence that had been given and then sought her assistance a little more generally. I would ask that she be allowed to sit in court for the remainder of this part of the witness's evidence, fulfilling so far as is possible and appropriate, the functions of an expert able to advise Mr. Saxon, who will be asking questions of the witness, of any matters that she may regard as appropriate to be raised or that she may be able to assist him with.

It's very good of her to have made her time available at such short notice to help the Court, and in light of the way things have developed, this would, in our respectful submission, be a useful and efficient way to proceed.

[Trial Chamber confers] ³⁸²⁴⁰

JUDGE ROBINSON: Mr. Kay.

MR. KAY: Professor Ranta was -- Dr. Ranta was, of course, a Court witness rather than a Prosecution witness. The Court will remember it was an order of this Court which she fulfilled and gave evidence. So she is not allied to either party in this case, and we think it would be inappropriate that she adopted a position with the Prosecutor. She could, of course, be available for consultation by either party with the leave of the Court, but in our view it would be inappropriate for her to be sitting with the Prosecutor and acting, so to speak, as an instrument for him. If she is to fulfil such a function, she should be available for both sets of parties and not be in a position which allies her with one particular party.

JUDGE ROBINSON: Thank you. Mr. Milosevic.

THE ACCUSED: [Interpretation] Mrs. Ranta.

JUDGE ROBINSON: Yes.

THE ACCUSED: [Interpretation] As far as I'm concerned, you can do however you decide. I don't mind one way or another. I would like to ask a question of a procedural nature before the witness comes in, please, so please bear that in mind.

MR. NICE: I'd simply -- in answer to Mr. Kay's point, if she's not able really to contact us and speak to us directly, it's going to become artificial and extremely slow. I sought your permission that we should speak to her over the weekend and in reality she has cooperated with us as an ordinary expert would, although as I explained to begin with, we asked her simply for her comments on the evidence. It's far ³⁸²⁴¹ easier --

JUDGE BONOMY: I don't think that's Mr. Kay's point, Mr. Nice. I think Mr. Kay's point is one of perception and availability in general. Whispering exchanges with Mr. Saxon in court, I don't think on the face of it is the right way to deal with a witness who is a Court witness. She should, on the face of it, be available to everyone for consultation, and I would be inclined to separate the issue of whether she should be present during the evidence of another witness from the one of where she should sit and be present, and that's how I intend to address it.

MR. NICE: Your Honour, I'm sure she would be prepared to speak to other parties in court, and if the Court insists that the consultation shall be a separate exercise from the giving of evidence, it will simply extend the process, but it's up to the Court.

[Trial Chamber confers]

JUDGE ROBINSON: Mrs. Ranta should sit in the public gallery, and she will be available to either party if they so wish.

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Mr. Milosevic.

THE ACCUSED: [Interpretation] With regard to what you said last time, I wished to ask that after Witness Dobricanin we have Witness Jasovic straight after him, and I'd just like to remind you, Mr. Robinson, that you said, and I'm reading this from the transcript, turning to me, "... if you wish to call [In English] that person as a witness, the person will be called at the earliest opportunity." [Interpretation] That's what you said, and this is the earliest ³⁸²⁴² opportunity, and I did have an opportunity, in keeping with your instructions, through the liaison officer to come into contact with the witness and to talk to him, and he's ready to testify, and this is the earliest opportunity after the ongoing witness. So I'd like you to give permission for me to do that.

JUDGE ROBINSON: Mr. Nice.

MR. NICE: I object to the --

THE INTERPRETER: Microphone, Mr. Nice, please.

MR. NICE: I object to the addition of this witness to the list of the accused's witnesses. That matter hasn't been dealt with. It's convenient for me to explain something through the Court to the accused, because he thought he made a point the last time we met about how it had been the Prosecution's decision to have this witness called. The accused often simply doesn't attend to procedural points or makes a point of not doing so and it's absolutely essential that he understands that what happened when he was notified of the presence of Jasovic in this building was one of the many examples of the Prosecution doing things to help this accused, a concern that he may not always, as a non-professional lawyer, be acquainted with things with which he might better be acquainted. So we simply told him about the presence here of that witness without in any sense suggesting that the witness should be called or without conceding that it would be right to call him.

It would be quite wrong to call this witness who would be being called essentially - or this would have been the position - to produce three witness statements of some importance to the case because they would ³⁸²⁴³ be witness statements going to suggest that people in Racak who died were members of the KLA when the Prosecution's case and evidence is to the contrary effect. There has still been no explanation given as to why witnesses should be called -- should not be called and why their statements should be given either hearsay or double hearsay. And it so happened that I was, over the weekend, looking at some earlier evidence, indeed the evidence of Mrs. Ranta -- or Dr. Ranta, and I happened upon an application by the accused to have evidence of statements of either Dunjic or Dobricanin read into the evidence in the course of that testimony, and His Honour Judge May -- I'll just find the point. I made a note of it -- made the observation then that it wasn't the practice for witness statements of individuals to be given when there was a procedure for producing them either within the Rules of the Tribunal or, of course, by calling the witness themselves.

Our position in relation to these statements has been clear throughout from efforts -- despite efforts made to call them. It's our submission that the witnesses should come themselves to give evidence. There's no ground for calling such important evidence by hearsay, and accordingly that this evidence is now technically inadmissible at the hands of the man Jasovic.

Let me just see if I can find the reference that I had over the weekend. Yes. It's on page 17762, where in answer to the accused Judge May said: "Our usual rule and one which I would have thought applied here is that we don't admit witness statement unless under particular Rules." He said of that particular proposed witness statement: "If you want to ³⁸²⁴⁴ call these witnesses to give their evidence, you can do so, but uncross-examined material is not usually admitted." Further, I understand from a file I've been now provided with, coming from the Defence, that through Jasovic they now want to produce no less than something like 80 witness statements that I can show to you, all of which are untranslated. If these witness statements go to material matters in the Defence case, the witnesses should be called. If the Chamber were to decide that it would be appropriate, notwithstanding our argument to the contrary, to allow the material to be given in hearsay, it would plainly all have to be investigated and it would all have to be investigated before the witness comes to give his evidence. So I have two objections: First, there is no grounds for adding this witness's name to the Defence witness list; second, the evidence in principle that he wishes to call is evidence that is inadmissible because it's of an important nature and should come live from the witnesses concerned; and third as part of number two, I'm simply not in any position to deal with that material at this stage.

JUDGE ROBINSON: Mr. Nice, are you then saying that Rule 92 bis and 89(F) are exhaustive as to the circumstances in which witness statements can be admitted?

MR. NICE: I don't think I can say that despite the fact that it was an observation from the Bench from your brother His Honour Judge Kwon that that topic was raised. I don't think I can say they are exhaustive because the provisions of general admissibility of hearsay are probably broader, or in the terminology that we sometimes use, would trump any ³⁸²⁴⁵ restricting or implied restriction coming from 89(F) and 92 bis. What I can say is that in practice this Court has required important evidence from identifiable and living witnesses to be given live - Jovic is an absolutely standard example - and would require the necessary indicia of reliability to satisfy Rule 92 in the case of witness ill, deponents or statement makers who are dead, and His Honour Judge May's observation in the course of the Ranta evidence is one of a number of exemplifications of that general practice.

Now, here this evidence is plainly potentially important, or it may be very important to the Racak case or the Racak count and the Racak part of the history, and there has been no inquiry made by the accused as to whether these witnesses are available, it appears, no effort made to call them, no effort made to see whether the statements allegedly given to a police officer are statements they currently adopt, and so on. This is material that should come live from the witnesses. There's no grounds, under your practice or under the Rules specifically, for it coming in the form of either the secondhand hearsay that it came in through the last witness or in firsthand hearsay as proposed through this witness.

JUDGE ROBINSON: Is the criterion that the evidence is important or that it goes to the acts and conduct of the accused?

MR. NICE: I would have suggested that it's the former, not the latter, because there have been plenty of other requirements that witnesses come like Jovic. I mean, Jovic obviously goes in large part to the acts and conduct of the accused but he also goes to a whole lot of ³⁸²⁴⁶ other matters as well and there was a general requirement that he should come along and give his evidence.

JUDGE ROBINSON: The point really is that if you follow 92 bis, if it goes to the acts and conduct of the accused, then the statement would not be admissible, and if in any event it raises an issue between the parties, then the witness should be available for cross-examination. Under 89(F), the witness is to be available for cross-examination. Mr. Kay.

MR. KAY: It's worth going back as to the reason why these statements were produced. They were produced by the witness showing the file that she had investigating the circumstances concerning the killings at Racak. They were relative and probative to that issue, and they were documents that she relied upon. Not to have produced such evidentiary material would have made a nonsense for the reason that the witness was giving evidence in the first place, and it was perfectly admissible, probative and relevant and went to the issues of which she was speaking. This matter now arises, in fact, because of cross-examination by the Prosecution. The Trial Chamber will remember that Mr. Nice alleged to the witness that the statements of three of the witnesses signed by the man Jasovic had been taken in circumstances of oppression and bad faith and conduct that was unacceptable. He went further and put allegations to the witness herself that she was aware of such oppressive techniques being used by police officers, was happy to condone it, and that was the whole circumstance, as he saw it, the Prosecutor saw it, behind the investigation of matters such as Racak and other important incidents of ³⁸²⁴⁷ killings.

Having put those allegations, Mr. Nice sought to adduce evidence in various forms, video evidence of interviews in which those allegations were made, and it so happened that Mr. Jasovic, who was the interviewing officer of those three particular witnesses, was acting as a Prosecution witness at the time.

It is plainly correct and proper for an accused to be able to meet such serious allegations by calling that witness himself to deal with properly with the matters that should be put to him as a way of Mr. Nice being able to put his case and that witness being able to deal with the case that is being made. There is --

JUDGE ROBINSON: What about the statements, the statements that the accused is seeking to have admitted through Mr. Jasovic?

MR. KAY: Can I deal with that as a secondary issue, as the primary issue concerns Mr. Jasovic as he arose in cross-examination and as he arose in circumstances when none of us were aware of any significance of that name until the morning that Mr. Nice raised it and we spotted his name in the translations at the end of each statement. He is a Prosecution witness. The Prosecution have taken statements from him, called him as a witness in this building, are aware of the materials that have been thus far produced through the witness Marinkovic, and are perfectly able to deal with him if the accused chooses to call him.

On the separate issue of the production of a further series of statements through that witness, I don't have any instructions upon that ³⁸²⁴⁸ so I can't assist the Court any further. It's not something that has been brought to my attention. We are aware that in the Rule 68 material, because we researched it and provided it, that there are other statements that have been recorded by this witness Jasovic and that they're within the system. How it's to be used we don't know as of yet.

JUDGE BONOMY: I don't know if Judge Robinson intended this or not, but I thought the question extended to the three statements as well. And are you accepting that their relevance and probative value is confined to demonstrating what was in the possession, or the information in the possession of Judge Marinkovic at the time of the investigation and therefore the material in the possession of the authorities of the government in the most general sense?

MR. KAY: Yes. This is a two-stage matter, as I've viewed it, and I haven't been made privy to any information to the contrary that we're dealing with the matter concerning the allegations against Judge Marinkovic, which as I say perfectly proper for that witness to be used by the Defence. And the other issue would need further disclosure and perhaps an application to add the witness to the witness list if he's to deal with a far wider ambit of material so that there is disclosure between the parties of the relevant exhibits, there are translations and the matter can be considered for what it's worth. But at this stage, I'm not in a position to address that.

JUDGE ROBINSON: All right. Thank you, Mr. Kay. Mr. Milosevic, anything in reply?

THE ACCUSED: [Interpretation] Mr. Robinson, Mr. Jasovic is ^{38249 BLANK PAGE 38250} testifying. I talked to him. I saw all the documents that he has with him at present, and he will testify about the statements that he took over a long period of time - relative, of course, relatively long - in 1998 and 1999. And all those statements were taken in keeping with the laws governing the Ministry of the Interior and him as an inspector, an investigator, and another inspector as well. They were signed by them, they were signed by the people giving the statements, so you can see how he went about the business of taking statements. Second, I think it is very useful, and I didn't know this because I had no idea that the witness existed, it's a very good idea to see that in these statements there is a lot of information which indicates, or at least partially indicates some things and information that the organs of the interior had about the activities of terrorists in the area of the village of Racak, Petrovo, Mala Poljce [phoen], Rana [phoen], it's all a very small area, in fact, and how all this took place. And among other things, in a large number of the statements that he gathered, that he collected in 1998 and 1999 before the event ever took place, before the police intervened in Racak at all, which shows us that there were different names in many of the statements, different names of persons who fell casualty in Racak.

So by putting together all these pieces of information, you can paint a very clear picture about what actually happened and I think it is very useful for this witness to testify. And I realised that when you told me that I could talk to him and that you informed me that he could appear at the earliest opportunity, the person will be called at the ³⁸²⁵¹ earliest opportunity, as you said, I went ahead and I really did do my best to have it done at the earliest opportunity. And since the witness is testifying about his own work, what he did and the statements he himself took, so they're only statements taken by him personally, not the statements of some third party but him and his colleague, and indeed they signed the statements as investigators, you will find a great deal of information which is highly beneficial for understanding everything that took place.

So I do appeal to you to give the go-ahead for him to testify after Witness Dobricanin. You will gain a clear picture. Judge Marinkovic testified. Jasovic will be testifying. Dobricanin has testified and is testifying, and you'll be given a very comprehensive, clear picture.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Milosevic, we'll give our decision -- we'll give our decision on this first thing tomorrow morning. We'll give our decision on your application tomorrow morning.

The witness should, of course, in the meantime remain in The Hague.

Let Dr. Dobricanin be called.

[The witness entered court]

WITNESS: SLAVISA DOBRICANIN [Resumed]

[Witness answered through interpreter]

JUDGE ROBINSON: Yes, Mr. Milosevic. Examined by Mr. Milosevic: [Continued] ³⁸²⁵²

Q. Professor Dobricanin, we finished with your explanations regarding the paraffin glove. Now I would just like to put a few more questions to you that have to do with your observations, of course, if any. You noticed that on one of the pictures from the mosque that was made while the bodies were still there women can be seen wearing black clothes, in mourning. You had been in Kosovo for a long time. You are aware of the customs and habits there. Is there anything that seems strange to you in that photograph?

A. Yes. I saw that photograph before as I was surfing the Internet. I found it there, and I found it a bit strange due to two reasons. First of all, women, Muslim women do not enter mosques. Secondly, black -- the colour black is not the colour of mourning in the case of Muslims, and that surprised me a bit, and I have no explanation for that.

Q. All right, Professor. Since we went through many aspects of everything that you looked into, in terms of what you saw on site and in terms of your own professional work in respect of all the dead, I would like to ask you now, bearing in mind all these questions, to go through some of the elements of 66(A), which says, inter alia: "After the shelling, the forces of the FRY and Serbia entered the village later in the morning and began conducting house-to-house searches. Villagers who attempted to flee from the forces of the FRY and Serbia..." All of that is in 66(a). And then there is this group of 25 men who attempted to hide in a building but were discovered by the forces of the FRY and the police. This is yet another allegation contained therein. Then it says that they were beaten and then were removed to a nearby hill where they were shot ³⁸²⁵³ and killed, and so on and so forth.

Professor, you said here that you were in Racak and that there were no signs of shelling there. Had there been any shelling, could it be assumed that you would have seen some traces of it?

A. I saw no traces or signs of shelling.

Q. All right, Professor. Had there been any shelling, let's look at it from yet another aspect, and then first shelling, as they say here, and then entering the village. Could it be assumed that the villagers would seek shelter from shelling? They would not wait there for the, as it says here, forces of the FRY and Serbia to enter the village. Is that a logical assumption?

A. In my opinion, that's a normal reaction on the part of people who were attacked by any armed formation. They would probably flee from the village and seek shelter somewhere in order to be safe.

Q. Professor, had there been any shelling, can it be assumed that somebody would have been killed from a shell?

A. Absolutely. Out of the 40 bodies from Racak, we did not find any traces on any of them --

JUDGE ROBINSON: That's not helpful. It's not helpful to ask him whether it can be assumed that somebody would have been killed from a shell. It doesn't advance the matter one way or the other.

THE ACCUSED: [Interpretation] Very well, Mr. Robinson. My question to him would have been whether there were any traces of wounds from shelling, and Professor Dobricanin said that the answer was negative.

MR. MILOSEVIC: [Interpretation] ³⁸²⁵⁴

Q. And then it says in paragraph 66 that villagers were shot throughout the village as they were fleeing. So they were being targeted. So if they were targeted, it can be assumed that somebody would have been hit in the lower part of the body.

A. I think so.

JUDGE ROBINSON: Mr. Milosevic, again that's leading. "Can it be assumed..." Once you start in that way, you're leading. Get the evidence which this witness can give. You have been over this ground already with the witness. You're repeating yourself. Move on to other new areas.

THE ACCUSED: [Interpretation] All right. All right, Mr. Robinson. I just wanted to establish this.

MR. MILOSEVIC: [Interpretation]

Q. So there were no wounds in the lower part of the body. Everything was in the upper part of the body. And we have already established that you saw trenches, and that is probably due to the fact that they had been in the trenches.

JUDGE ROBINSON: Mr. Milosevic, I have the very distinct impression that you are searching now for questions, and you're trying to finish with a flourish. I think you are going to run into trouble. If you don't have new questions to ask, we'll bring the examination-in-chief to an end.

THE ACCUSED: [Interpretation] Very well, Mr. Robinson. Then I am not going to put any other questions to Professor Dobricanin about Racak. I hope that he gave a comprehensive picture of everything. In that case, I shall just deal with a few more matters. ³⁸²⁵⁵

MR. MILOSEVIC: [Interpretation]

Q. Professor Dobricanin, here in tab -- I mean, in order to save time, I am going to refer to all three tabs, in tabs 13, 14, and 15. Please take a look at tab 13.

This is a paper of yours that was written after the bombing of a bus on a bridge when the bus was hit by a bomb. What is discussed here is the casualties from that incident or, rather, the bodies of those who could have been identified.

A. Yes. This happened on the 1st of May, 1999, in the village of Luzane on a bridge. This happened at 1300 hours.

Q. From this information that you provide here, from what you established here, you carried out a forensic examination of 36 casualties out of the total of 40 persons who were killed, because four were soldiers, and they could be identified, and they could be handed over to their families. So you tried to identify 36 of the victims. And I see that among the identified persons there were 18 ethnic Albanians and eight ethnic Serbs.

A. Yes, that is correct.

Q. You did not manage to complete all of this, because later on you had no more time to make it possible to have everything done.

A. Yes. I can just say that after us, my Albanian colleagues who worked with me and who remained in the institute managed to establish the identity of the remaining persons as well.

Q. How many persons were killed by this one single bomb that came from an aircraft? You say that an old man was seriously injured but that ³⁸²⁵⁶ he succumbed to his wounds within a month.

A. Yes.

Q. So it's 40 victims altogether, all passengers on the bus.

A. All the passengers on that bus got killed.

Q. You could not carry out a detailed identification because the temperature of that bomb was over 2000 degrees Centigrade.

A. Yes. Most of the bodies were charred. There was not a single body that had not been charred totally or partially.

JUDGE BONOMY: Mr. Milosevic, can you assist me by identifying the issue in the case that this relates to?

THE ACCUSED: [Interpretation] You mean these questions, Mr. Bonomy?

JUDGE BONOMY: Yes, this particular tab.

THE ACCUSED: [Interpretation] This has to do with the proceedings instituted by the authorities and the professional organs, how they worked in cases when violent death was established. This is work that was invariably carried out on the orders of the investigating judge in the interests of the investigation, whenever violent death would be established. So this was regular procedure as far as the state authorities were concerned, as well as the professional organs that assisted the state authorities. That is what is contained in tabs 13, 14, and 15.

JUDGE BONOMY: And which paragraph of the indictment was this investigation in relation to?

THE ACCUSED: [Interpretation] There is no specific paragraph of ³⁸²⁵⁷ the indictment that this refers to, but throughout the indictment there is reference to discrimination against Albanians, the killing of Albanians by Serb forces, and so on and so forth, whereas here in very concrete action taken by the authorities, that is to say the judiciary, the professional organs that worked there, it is obvious that there is no discrimination in any way in terms of the ethnic background of victims. Whenever there is violent death, the legally prescribed procedure is applied. This is, therefore, aimed to refute another false thesis, namely that the authorities did not work to the benefit of all or were, rather, working against a particular ethnic group. And that can be seen quite clearly, because in tab 14, you have general conclusions about a large number of cases, and in tab 15 -- I mean in tab 14 the investigating judge from Pec gave orders to act, whereas in tab 15 the investigating judge in Pristina.

THE INTERPRETER: In Prizren, interpreter's correction.

THE ACCUSED: [Interpretation] So you can see that all cases were treated equally whenever violent death was established, in terms of carrying out the investigation, that is.

MR. MILOSEVIC: [Interpretation]

Q. My question, Professor, is whether this was the regular way the authorities worked or, rather, the investigation organs that investigated the violent death of citizens.

A. Yes. This was regular procedure, well established, that was applied in the war conflict in a single way. We would get orders from investigating judges, and we would carry out post-mortems and give them our findings regardless of whether it was Serbs or Albanians who were ³⁸²⁵⁸ killed, policemen, civilians, members of the KLA, whoever.

JUDGE ROBINSON: I want to consider the relevance of this, the issue raised by Judge Bonomy.

Mr. Saxon.

MR. SAXON: Your Honour, in fairness to the accused, the Prosecution concedes that there may be some margin of relevance to this material related to the -- the accused's criminal responsibility under Article 7(3), the allegations of failure to prevent or failure to discipline persons that were responsible for these actions, and part of those charges would be whether proper procedures were carried out to investigate matters in --

JUDGE ROBINSON: I see. He's showing that there was a system in place, a system that worked.

MR. SAXON: Your Honour, I think a rational argument could be made. I'm not conceding that it's powerful evidence, I'm simply conceding that the argument could be made.

JUDGE BONOMY: Obviously it must go on, but is there any allegation, any suggestion that the pathology services or the forensic sciences services of the country were not operating properly?

MR. SAXON: Certainly not in the indictment, Your Honour.

MR. KAY: I thought that that was an issue being advanced in relation to Racak, the investigating judge, and the tenor of the cross-examination there was a criticism of the system that was said to stretch up from the accused -- or stretch down from the accused through the system repeatedly made by Mr. Nice concerning the court services and ³⁸²⁵⁹ obviously the investigative judge who closely works with the forensic science services. That would be allied to that.

JUDGE ROBINSON: Okay. We'll hear the evidence, but let us move through it as quickly as possible, Mr. Milosevic, these three tabs.

THE INTERPRETER: Microphone for the accused, please.

THE ACCUSED: [Interpretation] Mr. Robinson, this has to do not only with the work of forensic science services but this goes to show that they go into action upon the order of an investigative judge. And in all these documents you can see that the forensic services addresses itself to the investigative judge who had initially issued an order for certain forensic action to be taken in order to clarify issues in the proceedings before the judge.

MR. MILOSEVIC: [Interpretation]

Q. All right, Professor. Now, could you please reply and refer to all of these three tabs. Tell us, was this a regular, routine procedure, and did you take identical action in all of these three cases in terms of the investigation that you were apart of?

A. You are absolutely right. Not once did we diverge from the rules of our profession. Our school uses tradition of European forensic science, German and French mostly, and we acted exclusively upon the orders of an investigative judge, never outside of it.

Q. Very well.

THE ACCUSED: [Interpretation] Mr. Robinson, I have no further questions for Professor Dobricanin on the issue of his testimony. However, if you would allow me, there is something beyond that that I ^{38260 BLANK PAGE 38261} would like to raise.

Mr. Nice submitted here some dozen reports showing the signature of Professor Dobricanin. Mr. Nice did that in cross-examination of Judge Marinkovic, and it had to do with the cases when Professor Dobricanin, together with some other colleagues, examined some prisoners, establishing light bodily injuries in all cases.

Mr. Nice presented this, trying to establish that the prisoners in those cases were tortured. Therefore, I wanted Professor Dobricanin to cover these findings or to address these findings which had been sent to the investigative judge, Danica Marinkovic, by a member of the commission, Professor Dobricanin, Muharem Rama, and Tefik Gashi, all of them doctors, showing that in all cases but one they established only light bodily injuries. And I would like to ask a few questions of Professor Dobricanin. Would you allow me?

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Saxon.

MR. SAXON: Your Honour, the Prosecution does not object to questioning on this matter, Your Honour.

JUDGE ROBINSON: Yes, you may put the matter to the witness.

THE ACCUSED: [Interpretation] All right. I would like the usher to give these documents to Professor Dobricanin to take a look at them.

MR. MILOSEVIC: [Interpretation]

Q. You don't have, Professor, to read out the names or anything else. Just please take a look at these documents. These are several findings establishing in all cases light bodily injuries as you determined. ³⁸²⁶²

A. Your Honours, I remember vaguely these cases. However, I have these documents before me dating to December of 1994 when several persons were brought to us who allegedly, at least that's what we were told, had been beaten while in detention.

In any case -- in every case where a death of an Albanian person occurred in the course of an investigation, I would always establish a multi-ethnic commission comprising both Serbs and Albanians, because I wanted to ensure that it would be objective.

In this case as well we had two Albanian assistant professors. That was back in 1994. The two of them, together with me, examined each of these persons, asking them how they had been injured, how they had sustained injuries. We described these injuries in our findings, in our reports in a detailed manner, describing how these injuries could have been inflicted and we gave our opinion and qualification of these injuries.

In all of these cases, and some of these persons I knew personally --

JUDGE ROBINSON: Let me just clarify this. What you have put before the witness are documents tendered by the Prosecution?

THE ACCUSED: [Interpretation] Yes. These are the findings of the medical commission which were introduced into evidence by Mr. Nice, showing that some seven or eight prisoners had light bodily injuries, established by -- at least, that was established by this commission.

JUDGE ROBINSON: Oh, I see. We haven't yet decided on their admissibility. ³⁸²⁶³ We are at a disadvantage in that we don't have the documents in front us.

MR. SAXON: Your Honour, by a marvelous coincidence, I believe the Prosecution might be able to provide you with some copies.

JUDGE ROBINSON: Thank you very much, Mr. Saxon. This is one copy. Let it be placed on the ELMO.

THE ACCUSED: [Interpretation] May I continue?

JUDGE ROBINSON: Yes. What is the specific question that you have now?

MR. MILOSEVIC: [Interpretation]

Q. The specific question is as follows: Did you establish at the time that any of these persons had been tortured while in prison?

A. Undoubtedly they had certain injuries which qualified as light bodily injuries which could have been sustained in many various ways but could have been also inflicted by certain action while in prison. These were haematomas of small size which could have been inflicted by pressure applied, and I cannot exclude any circumstances under which this could have been inflicted.

Q. All right, Professor. Did you have in your experience, did you encounter cases of persons who had been abused while in prison and who were forced to give certain statements by inflicting light bodily injuries upon them?

A. No, not really, because I -- unless I was involved in investigating and examining, I didn't know of any such cases.

Q. And were attorneys, were defence counsel called in to confirm any ³⁸²⁶⁴ of these allegations?

A. No. I was not contacted by anyone. It is possible that they contacted my Albanian colleagues who signed this report as well.

JUDGE ROBINSON: Just let me clarify this. The doctor was himself not involved personally in the examination of any of these persons.

THE WITNESS: [Interpretation] I was. I was. This was a three-member commission. I did not go to court proceedings where perhaps some of this was challenged and so on. Maybe my Albanian colleagues did; however, I took part in all of the examinations and signed and am one of the signatories to this document.

JUDGE ROBINSON: Okay. Yes. Yes.

JUDGE BONOMY: Do some of these not refer to the use of blunt instruments against the individuals?

THE WITNESS: [Interpretation] Absolutely, Your Honour. Blunt instruments and fist pressure.

JUDGE BONOMY: Is there any reference to fists where there is a reference to the blunt instrument? It's not my recollection but unfortunately I don't have the documents. They were for another witness, and we weren't told to bring them today.

JUDGE KWON: Yes. On the ELMO it says "a heavy blow from a blunt heavy mechanical implement."

JUDGE BONOMY: What is a "blunt heavy mechanical implement"? If that's not a stupid question.

THE WITNESS: [Interpretation] No, it isn't, Your Honour.

THE INTERPRETER: Microphone for the witness, please. ³⁸²⁶⁵

THE WITNESS: [Interpretation] The bluntness of a mechanical implement can suppose everything starting from an instrument itself, from the pressure of fingers, police batons, any kind of a pole, anything that can apply blunt force. And this is what we understand in forensic --

JUDGE BONOMY: You are actually trying to tell me that that sentence includes pressure from fingers? Is that what you mean to include by that reference? I find that astonishing.

THE WITNESS: [Interpretation] Absolutely. In accordance with our classification as we see the application of force, that is right.

MR. MILOSEVIC: [Interpretation]

Q. Professor, does this mean that you make a distinction between blunt and sharp objects? Everything that is not a sharp object, including fists and feet, is considered a blunt instrument?

A. Yes, that's right, Mr. Milosevic. We in forensic sciences, not only in Serbia but elsewhere in the world, make a distinction between sharp objects, firearms, and blunt objects. So everything that is not sharp and which is not considered a weapon is classified as a blunt instrument, including the pressure of fists.

JUDGE ROBINSON: The word "mechanical," Doctor, how would a finger fit into that category?

THE WITNESS: [Interpretation] It falls under that category, Your Honour, because that's pressure. This is mechanical object. It's not a weapon, and it's not a sharp object but, rather, applies blunt pressure, force.

JUDGE ROBINSON: Yes, Mr. Milosevic. ³⁸²⁶⁶

MR. MILOSEVIC: [Interpretation]

Q. Thank you, Professor. I have no further questions.

JUDGE ROBINSON: Mr. Saxon.

MR. SAXON: Thank you, Your Honour. I'll just take a moment to put my papers in order.

MR. KAY: While we're doing that, can we get the exhibits sorted out at the end of this so they go on the record? Tabs 13, 14, 15, 16 by my record haven't been officially entered into the trial proceedings.

JUDGE KWON: The one under 12 is the same one as D2?

MR. KAY: Yes.

JUDGE KWON: D2, which has been marked for identification.

MR. KAY: Yes. May 13 to 16 go in.

JUDGE KWON: And D2 should be admitted.

MR. KAY: Yes. Now it's been translated.

JUDGE ROBINSON: Yes, we'll admit D2, and then tabs 13, 14, 15, and 16.

JUDGE ROBINSON: Yes, Mr. Saxon. Cross-examined by Mr. Saxon:

Q. Professor Dobricanin, can you hear me?

A. Yes.

Q. I will try -- I will do my best to pronounce your name correctly. I can't promise that I will do it always successfully, but I will try. Professor, one of the things that you said towards the end of your testimony on Friday of last week certainly resonated with me. You said, "I don't want to separate the people, the Albanians and the Serbs, because ³⁸²⁶⁷ they both suffered a great deal in that war. It was a great misfortune." And I just want to take a moment now to ask you some questions, because it's my understanding that in your professional capacity since the events of 1999, you have been working in your own way to alleviate some of that misfortune, and what I mean by that is trying to exhume and identify persons who died in Kosovo in 1999. Is that -- is that a correct statement?

You need to say a verbal answer.

A. Fully accurate, yes. This is a fully correct statement.

Q. Would it be fair for us to assume here that because you and your office moved to a more northern region of Serbia after the events in 1999, that to continue with your medicolegal investigations in Kosovo you would have required assistance and cooperation from officials of UNMIK?

A. Absolutely correct.

Q. And can you recall, for example, when you had your first contacts and assistance from UNMIK officials in this respect, what year that was?

A. The first time I had contact with UNMIK and with their officials was, I think, in 2001 when there was a terrorist attack on the bus travelling between the administrative border in Merdari and Podujevo. Eleven persons were killed in that incident, and together with my colleagues I joined the UNMIK officials, who were of different ethnic background, to conduct the autopsy of the victims, which was done in the British hospital in Pristina.

Q. All right. So beginning in 2001 and subsequently, you began to have contact and collaboration with UNMIK officials so that you could ³⁸²⁶⁸ carry out this kind of forensic work within the province of Kosovo. Is that a fair statement?

A. Yes.

Q. Can you recall what part of 2001 it was; the beginning of the year, end of the year, middle of the year?

A. I couldn't say exactly. That was in 2001, when via the commission of the Federal Republic of Yugoslavia cooperation was established in this field together with my colleagues from UNMIK who were from different countries and my team consisting of my colleagues. We started working together on several exhumations. First of all, we examines several bodies which had already been examined -- exhumated. We did that in the Institute for Forensic Medicine in Pristina which is where I used to worked before. I'm sorry if my answer was too long. This cooperation was exceptional and is continuing to this day and continues to be very successful.

Q. Very well. And would the members of UNMIK also assist you if you needed records or documents that had been left behind, for example, in the Forensic Medical Institute in Pristina in 1999?

A. No. I never saw those documents again. They just gave us documents which related to investigations into the killing of Serbs or other non-Albanians or Albanians dating to 1999. And the autopsy findings and reports that physicians had conducted that came in with core or perhaps The Hague investigators, but nothing apart from that.

Q. Did -- well, when you requested assistance, let's say documentation or assistance in obtaining documentation from members of ³⁸²⁶⁹ UNMIK, were you ever refused that assistance that you can recall?

A. No. I said a moment ago that there was a very high degree of cooperation.

Q. I want to also reflect for a few minutes on something that you said today, which I think is also quite clear from watching your testimony. Mr. Milosevic asked you whether you were familiar with the customs of the people of Kosovo. Do you recall that? That was just about an hour ago, a little bit less.

A. Yes.

Q. Obviously, Professor, you were -- you were born in Kosovo, I believe. You grew up there. You studied there. You've had a long career there up until 1999. Well, your work continues there to this day, I realise. So can we understand that you would also have made, during your lifetime, many friends and colleagues of all ethnicities living in Kosovo?

A. Of course. I had neighbours and friends and colleagues who are Albanians. I worked with them and had very good cooperation with them, and I personally never had any problems.

Q. And you were familiar with their customs and traditions, the customs, traditions, way of life of the Albanian population, or at least those who were your friends?

A. When I spoke about the customs of the Albanian population in this case it was the custom of Muslim Albanians, not Catholic Albanians, Albanians who have different customs, perhaps. Yes, I was acquainted with both of them, both types, because I lived together with them for 46 years.

Q. During those 46 years, did you ever have a situation where you ³⁸²⁷⁰ learned or you observed that one of your Albanian friends or colleagues was known by more than one name?

A. I don't -- I'm not sure I'm following you. Could you answer the question or reformulate it? I don't know what you mean actually. I didn't understand what you mean.

Q. Okay. Let me try to give you a more concrete example. For example, did you ever have a friend or colleague of Albanian ethnicity who might have had a particular name on his identity documents but was known by -- to you or to that person's friends by some other name, perhaps the person's father's name? Did you ever encounter such situations?

A. I don't remember that. I don't think I ever encountered a situation like that.

Q. Okay. I'm going to ask your assistance with something, and I'm going to have to ask Mr. Prendergast's assistance as well. I'd like the witness to be shown a copy of Exhibit D291.

For the benefit of the witness, this document was presented by Judge Marinkovic in the Cyrillic alphabet, so that would probably be of most use for Professor Dobricanin, but I believe we have some English copies for the other parties present. And perhaps if an English copy could be placed on the ELMO and turned to page -- and turned to page 2. Professor Dobricanin, this is a list of names prepared by someone you know, obviously, Danica Marinkovic. It's titled "List of identified bodies found in the village of Racak." And if you could, please, could you direct your attention on page 2 to names 32, 33, and 34, which are towards the bottom of the page in the English version, a little bit higher ^{38271 BLANK PAGE 38272} up in the Serbian version.

Do you see those names? The first name we see is Sukri Jasari. Number 33 is Raif Jasari, and number 34 is Jasar Jasari. Do you see those names?

A. Yes.

Q. Now very briefly I'd like to show you an annex to the Prosecution's indictment in this case, because the Prosecution in this matter has also presented a list of names of persons who died at Racak. And I can provide an extra copy for the witness and/or the ELMO, and I'd ask that we turn to here page 43 of my copy. It's Schedule A to the Racak indictment.

Do you have that list from the Prosecution next to you now, Professor Dobricanin? Can you see it?

A. Yes, I can see it.

Q. Can you also see now, if we look about halfway down the page, we see the same names that I just read from Judge Marinkovic's list, the three Jashari relatives; Jasher Jashari, Raif Jashari, and Shukri Jashari. Do you see those?

A. Yes, I can see that.

Q. So we can see that these three names are on both lists. Can we agree on that?

A. Yes, that's right.

Q. I'd like you to look just a little bit further down that same page, and further down that page there are two people with the name Salihu, first name Jasher and first name Shukri. Do you see that? ³⁸²⁷³

A. Yes, I see that.

MR. SAXON: Now, if Mr. Prendergast could remove those lists for the time the time being because I need to use another document. I'd like to -- Ms. Dicklich, I'd like to show the statement of Rizah Salihu, if we can.

And perhaps that statement could be placed on the ELMO as well for the public.

Q. Professor Dobricanin, I don't know how fluent you are in the English language but I'm going to read some parts of this out so you can certainly hear the interpretation in your own language as well. But this is a witness statement given to members of this Tribunal, the Office of the Prosecutor, by a man named Rizah Salihu. And if we turn to the statement itself, in paragraph 2 Mr. Salihu explains that he resides in the village of Racak, he is the eldest of six brothers, and that three of his brothers were killed in Racak on the 15th of January, 1999. And just below that he provides the names of his deceased brothers; Jashar Salihu, Raif Salihu, and Shukri Salihu.

And if you can recall, we've seen those first names, Jashar, Raif, and Shukri already on both of the lists that I showed you a few minutes ago, only with the surname Jashari.

And then in paragraph 3, Mr. Salihu explains that at birth his brothers were given the family name of Salihu. But in paragraph 4, he explains that he had an uncle named Jashar Salihu, and that sometimes persons in the village of Racak refer to members of his family with the last name Jashari. And he explains in paragraph 5 that when the bodies of ³⁸²⁷⁴ his brothers were found in January of 1999, that someone incorrectly identified his three brothers with the surname Jashari. And if I can, he also says in paragraph 7 that the markers on his brothers' graves bear the family name of Salihu.

MR. SAXON: And if I can have the first batch of photographs, please. If I may very quickly bother Mr. Prendergast again, and if these three photographs could be placed on the ELMO.

Q. These are three photographs which I took in the cemetery at Racak about ten days ago. The first one shows the name Jashar Salihu. The second one shows the name Raif Salihu. And the third one shows the name Shukri Salihu.

MR. SAXON: Thank you very much, Mr. Prendergast.

Q. And the brother in this statement also explains that he has provided copies of the death certificates for his brothers with the surname Salihu.

Now, I know you lived in Kosovo for many years, and you're familiar now with the two different lists of names that I've showed you, Professor Dobricanin, one created by Judge Marinkovic, another one created by the Office of the Prosecutor. Can we agree right now that a mistake was made in both lists, that where the names -- where the surname says Jashari, Jashar, Raif, and Shukri, on both lists that is actually incorrect, or at a minimum not the most accurate name? Do you agree with me on that, what I've just shown you?

A. I agree.

THE WITNESS: [Interpretation] And, Your Honours, please, Judge ³⁸²⁷⁵ Robinson, might I be allowed to give an explanation by way of two or three sentences with respect to that?

JUDGE ROBINSON: Yes, please do.

THE WITNESS: [Interpretation] From the forensic team, we did not take part in the final identification. That was done by the crime technicians. And we know that with all 40 bodies in Racak, that all 40 bodies, 37 were identified of the 40 bodies, and I think that the mix-up came with these three people, that they are in fact the same people. But what is very important and what we kept saying, and we've been discussing that, we didn't make a separate conclusion, three individuals that were autopsied from the village of Racak were not circumcised. They were not circumcised, which is the custom with all Muslims in the world, including Albanian Muslims in Kosovo and Metohija. So I am afraid that those three bodies were intentionally or unintentionally during this process of identification, because they weren't all identified, they were identified on the basis of ID identification documents and fingerprints or because their relatives recognised them or not, that those three bodies were taken away and buried in other place, where as the three brothers Jashari, who of course would be buried in their village in their family graveyard, have been buried under these three -- the three pictures. It's just my statement that we found three persons, three corpses who were not circumcised, which means that they were not Muslims, so that might be an explanation, and I apologise for taking up more time.

JUDGE BONOMY: Then, Mr. Saxon, does it follow from that list that you have got two bodies too many on your list? ³⁸²⁷⁶

MR. SAXON: There is more to go in this process, Your Honour --

JUDGE BONOMY: Oh, dear.

MR. SAXON: -- which I am trying to clarify. So with great respect, I would prefer not to answer your question right at this moment.

Q. Professor Dobricanin, at no time did I mean to imply that you had committed any error regarding identification. That was not my intention at all. I was simply trying to clarify the names, that's all.

MR. SAXON: You will recall, Judge Bonomy, that Judge Marinkovic referred to discrepancies in the different lists and I'm simply trying to clarify these discrepancies, that's all.

Mr. Prendergast, if once more we could place on the ELMO the list -- it's D291, the list provided by Judge Marinkovic. And if that could be turned to page 3, please.

Q. And Professor Dobricanin, if you could simply direct your attention to what's referred to as body number 37. Do you see that? And the name --

A. Yes.

Q. -- Syla Sabri. It's surname Syla and then --

A. Syla, Syla.

Q. Thank you for correcting me. So the first name would be Sabri and the surname would be Syla.

MR. SAXON: Now, Mr. Prendergast, if you could replace Judge Marinkovic's list with Schedule A from the indictment.

Q. And, Professor Dobricanin, if you look down that list, you don't see anybody with the name Sabri Syla, do you? ³⁸²⁷⁷

A. No. There's Syla Sheremet and Syla Shyqeri.

Q. But no Syla Sabri, correct?

A. No.

MR. SAXON: Your Honour, would this be an appropriate time to take the morning break?

JUDGE ROBINSON: Yes, it is, thank you, Mr. Saxon. We'll take the break for 20 minutes.

--- Recess taken at 10.30 a.m.

--- On resuming at 10.55 a.m.

JUDGE ROBINSON: Please continue, Mr. Saxon.

MR. SAXON: Thank you, Your Honour.

Q. Professor Dobricanin, just before we took the break -- can you hear me?

A. Yes.

Q. Just before we took the break, we established that nowhere on Schedule A to the Prosecution's indictment do we find the name Sabri Syla or Sabri Sulja or Syla; correct?

A. Yes.

MR. SAXON: If I could have Mr. Prendergast's assistance again, if we could distribute the statement of Milazim Syla. And if a copy could be placed on the ELMO, please.

This is a statement given to the Office of the Prosecutor by Mr. Milazim Syla or Sulja. He is also a resident of Racak. Paragraph 2 he tells us that in 1999, he was a member of the Kosovo Liberation Army, but on the 15th of January, he was not in Racak. ³⁸²⁷⁸

Q. And then turning to paragraph 3, Professor Dobricanin, he says that the following members of my family were killed in Racak on the 15th of January: Sabri Syla or Sulja, who was the father of the declarant; Haki Metushi, his uncle; Arif Metushi, another uncle; and Sahide Metushi, his aunt.

And then in paragraph 5 Mr. Syla explains that at birth his father and his brothers were given the surname Syla or Sulja but during the 1980s his uncles decided to change their family name, their surname to that of Metushi, following a tradition in their family.

In paragraph 6, however, it is explained that at that time the father of the declarant, Sabri Syla, was working in Macedonia, and he was unable to change his surname. And when he returned from Macedonia to Kosovo, he also felt unable to change his surname formally from Syla to Metushi.

In paragraph 7, it remarks that the father of this declarant is buried with his brothers in a cemetery in Racak in a grave bearing the name Sabri Metushi.

MR. SAXON: I would just like again to ask Mr. Prendergast's assistance if we could put a photograph -- actually, three photographs on the ELMO.

Q. We see the first photograph of brother Arif Metushi. Next photograph, please. And then the photograph of Sabri Metushi, who was the father of this declarant, also known as Sabri Syla. And Haki Metushi. We also see in the last paragraph, paragraph 9, that attached to the statement is a copy of the licna karta of Sabri Syla and hence that ³⁸²⁷⁹ name being found on the list of -- produced by Judge Marinkovic. Could we look again, please, at Schedule A to the indictment. And Professor Dobricanin, if you go down that list you'll see, sort of in the lower half of that list, we see the two names Arif Metushi, Haki Metushi, but nowhere do we see their brother Sabri Metushi, also known as Sabri Syla. Do you agree with that?

A. It's probably as you say, but I'd like to draw your attention to this: I have absolutely no knowledge about any of these names. While we conducted the autopsies at the institute, we didn't receive the names of those who had been killed nor were we interested in that because those people had been transferred to the mortuary, the process of identification had been carried out, and the documents were taken to the crime technology department of the district SUP. All I can say is I came across these names here and nowhere else so I really can't say. I don't know. I don't know why you're asking me this in the first place when I know nothing about this. I don't know the names. I don't know these -- well, these queries as to whether it's one person or another, I really can't say anything because I don't know, and this is the first time that I'm seeing these names here and the documents. We conducted the autopsies, the identification process took place in another premises, in different rooms, so I don't know about that.

Later on, they might have sent me the -- something that I never received -- a document for checking out the names, but I never received that so I really have no idea about why you're asking me this.

Q. Professor -- ³⁸²⁸⁰

JUDGE BONOMY: Mr. Saxon, is the name Sabri Syla on Judge Marinkovic's list?

MR. SAXON: It is, Your Honour.

JUDGE BONOMY: Where would I find it?

MR. SAXON: You will find it, Your Honour, at number 37.

JUDGE BONOMY: 37, thank you.

MR. SAXON:

Q. I'm asking you this question, Professor Dobricanin, simply because of your long-standing knowledge of Albanian culture. That's why I'm asking you these questions, simply to help us clarify these points. That's all.

A. May I be allowed to say something very briefly to assist you, if I can, because I'm a little confused about all this. There are Albanian families whose members have different surnames. Not only with Albanians. There are parts of Kosovo where Serbs changed their surnames and then you have the case where two brothers don't have the same surname. It's probably a vestige of the age-old culture that developed alongside each other over the centuries.

The next point is that when somebody, when an Albanian -- we had occasion to see this -- comes to recognise somebody or identifies, he might say, let's say, Miftar Banushi, whereas Banushi is not the surname, it is Miftar and the father's name is Banushi. So perhaps this is what this is all about; instead of us giving a surname, they say Salihu Jashari or Jahsarit which means Sali of father Jashari. So maybe that's what's caused this confusion, where the father's name is given rather than the ³⁸²⁸¹ surname. So possibly that was the source of the confusion, I really can't say.

Q. Thank you for that, Professor Dobricanin. I don't want to bore you with this or the other members of the Court. I'm only going to discuss with you one more name and then we'll move on to another topic.

JUDGE BONOMY: Is this -- is this something that the witness can actually specifically deal with? I mean, he's said what he knows. Is this not legal argument now or argument on the facts as they are contained in the evidence?

MR. SAXON: Well, the Prosecution believes, Your Honour, that because of this witness's knowledge of Albanian culture, and as he pointed out, the local Serbian culture, and given his recent -- his -- the response that he just gave, he can certainly confirm that this confusion is, quite frankly, fairly common in the culture where he resided for so many years, and we're simply trying to explain why there are discrepancies on this list.

Your Honour, to save time, what I would like to produce for the Chamber is an aide-memoire. And I'd ask that this be marked as an exhibit, please. And if a copy of this could be placed on the ELMO. Your Honours, this is simply a simple chart which the Prosecution has created that describes -- that -- with a list in the far left column of the names in Schedule A to the indictment, and in the remaining columns evidence that the Prosecution has obtained regarding, for some of these people, the use of other names and/or other surnames. And I would offer this as an aide to the Trial Chamber, and of course we will -- we do ^{38282 BLANK PAGE 38283} intend to make a written submission in the near future regarding this issue and offering for the Chamber a revised list of names to correspond to the Racak part of the indictment.

With a represented accused or an accused who would have been more cooperative, we would have tried to negotiate this, but we felt that that was not appropriate in this case, in the circumstances of this case. If you have no questions on this, then I will move on to another topic.

JUDGE ROBINSON: Yes, please do.

MR. KAY: Perhaps it should be a filing to amend the indictment. That's really what it comes down to, that the names within Schedule A have been duplicated and names omitted, and perhaps the appropriate course is to make a filing on that matter and give the explanation as to the history of this matter as based upon the evidence.

[Trial Chamber confers]

JUDGE BONOMY: Mr. Saxon, are there examples of the Prosecution actually writing to the accused seeking specific agreement on matters and making no headway? Because if there aren't, then why don't you submit it to him, refer to the discussion in court, and ask if it can be agreed?

MR. SAXON: Your Honour, I have been working on this case since the accused was detained in the summer of 2001. I am not aware of any indication by this accused since that time that he would be willing to even communicate with members of the Office of the Prosecution. I may be wrong, because a lot of time has passed, but that is my impression. Perhaps Mr. Nice -- ³⁸²⁸⁴

JUDGE BONOMY: But you're turning the matter on its head that way, Mr. Saxon. I appreciate the problem, don't misunderstand that, but if you have something that you want to specifically have agreed, then it may be worth trying. You can't really lose anything by at least trying.

MR. SAXON: Point well taken, Your Honour, and we will follow the appropriate channels.

JUDGE ROBINSON: Yes, next topic, Mr. Saxon.

MR. SAXON:

Q. Professor Dobricanin, I'd like to move on to some questions that I have about your testimony from last week, and I guess first of all, since several days have passed by, you may have had some time to think about your comments here during two days last week. Is there anything that you want to change, amend, or modify?

A. I would not have anything to add or to take away. Perhaps some of the wording could have been clearer, but do I not recall having said anything that was unclear. I don't wish to add anything, no.

MR. SAXON: If Mr. Prendergast could show to -- perhaps Professor Dobricanin already has it with him.

Q. I'd like to ask you to turn your mind to tab 6 of your exhibits. This was the general conclusions provided by the Yugoslav team of expert forensic scientists on the 30th of January, 1999, to Judge Danica Marinkovic.

Do you have it there in front of you, Professor?

A. Yes, I do.

Q. And if you could focus your attention on the very last paragraph, ³⁸²⁸⁵ paragraph 14, where in English it says: "It should be stressed that the work of all forensic experts involved in this forensic effort was performed at a high professional level and with full mutual respect and confidence."

Do you see that?

A. Yes.

Q. So at least as of January the 30th, 1999, you had no problems or criticisms to make about Dr. Helena Ranta, did you?

A. I certainly did not. I had an excellent cooperation with her.

Q. And if we turn now to tab 11, which were the comments made at a press conference by Dr. Ranta on the 17th of March, 1999, and if we turn to page 3.

MR. SAXON: Ah, yes. This was also Exhibit C1, Your Honours. I apologise.

Q. Professor Dobricanin, we see in the last sentence of the first paragraph, the sentence says: "There were no indications of the people being other than unarmed civilians." Do you see that sentence?

A. I found that.

Q. And clearly you and your colleagues did not -- you and your Yugoslav colleagues, I should say, did not agree with that sentence, did you?

A. We did not agree with that sentence.

Q. And so the -- the problems, if I can use that term, regarding the work of Dr. Ranta arose on the 17th of March, 1999, with that sentence in this press conference; isn't that right? ³⁸²⁸⁶

A. Yes. I think that that was one of our objections to what our colleague Dr. Helena Ranta had to say. With your permission, I could explain why.

Q. I think we already understand why, Professor Dobricanin. If you turn, please, to tab 3.1. Actually, I apologise, tab 3 first. You mentioned in your testimony last week that there were disagreements between Dr. Ranta and the other members of the Finnish forensic team regarding the results of the work done concerning the events at Racak.

Tab 3 is an article published in Forensic Science International in February of 2001. It's one of the articles that you presented. Is there anything that you disagree with in this article?

A. There is absolutely nothing in here that I would disagree with. This is an article about our joint work.

Q. All right. And do you see -- can you tell us where in this article there is a mention of a disagreement with Helena Ranta?

A. I have the English version in front of me. I don't speak English very well, but never mind.

I don't think that there is very pronounced disagreement, but I believe that forensic scientists should not speak about the origins, about what had happened there where the bodies had been found. I think that is the only disagreement. I mean, whether it's disagreement or not is for them to say.

Q. Are you suggesting, Dr. Dobricanin, that during your testimony last week you were not speaking about what happened in Racak? ³⁸²⁸⁷

A. Please rephrase your question. I did not understand it. Could you please ask me again.

Q. Well, you just told the Chamber -- you said, "I don't think there is very pronounced disagreement." So we've clarified that. "But I believe that forensic scientists should not speak about the origins, about what had happened there where the bodies had been found." Now, don't you think last Thursday and Friday when you were testifying before this Chamber you were doing exactly that? You were giving your opinion - I should say opinions - about what happened in Racak on the 15th of January, 1999.

A. Sir, I could not have presented such an opinion according to any criteria. Had they allowed me into Racak on the 15th of January, you would have a much more definitive answer in this regard today. I just said once when one of Their Honours asked me why I emphasised this, I said that -- I mean, when asked why this was not an execution, I gave some of my own explanations. That is the only thing that I said in relation to the events in Racak. I'd never say anything about what had happened in Racak except for what I saw myself. Nothing would give me the right to do so.

Q. All right. So I will move on. If we look in paragraph 4, we see the following sentence: "Forensic pathologists can determine the cause and manner of death --" this is on page 8 -- "and note other injuries, pathological changes, and facts for identification. Determination of reasons for events, their political and moral meanings or the connection of victims to political or other organisations are questions which lie

³⁸²⁸⁸ beyond the scope of forensic science. This should be realised by the authorities and also by the forensic scientists themselves." Now, your comments last week about the connection of some of the victims or all of the victims in Racak to certain organisations such as, for example, so-called Village Guard, would fall into this category, wouldn't it?

A. The question put to me was to explain why there were several layers of clothing and what I saw then in Kosovo. I gave my opinion not as a specialist in forensic medicine but as a person who is quite familiar with the circumstances under which all of this happened, because I was on the move all the time, I was travelling all the time because of different autopsies in the area, and nothing more than that. What we did in the Institute for Forensic Medicine in terms of autopsy led to all our other conclusions.

Q. So just to clarify, Professor, when you say, "I gave my opinion not as a specialist in forensic medicine," so can we understand, then, today that the opinions that you gave last week about the possible scenario of events in Racak on the 15th of January, 1999, were not based on your expertise as a forensic scientist? It was simply your opinion?

A. At that moment when I saw the bodies in the mosque in Racak, and after that when I saw the bodies in our institute, that is to say everything I saw as a citizen who was going through the village and also as a member of the investigation team that toured the trenches under fire, I said as a member of the investigation team. Everything I said about the bodies I said as a professor and a specialist in forensic medicine. Those ³⁸²⁸⁹ are two things that have to be distinguished between.

Q. All right. Well, thank you for that distinction. By the way, at one point in your testimony last week, you mentioned -- I know you said today, a little while ago, that there were no strong or profound disagreements between Dr. Ranta and the other members of the Finnish team, but last week you mentioned that the Finns had published a report, that Dr. Ranta's colleagues had published a report somewhere, and Judge Bonomy asked you, well, what report? Where was it published? Can you tell us where we can find this report? And you weren't able to provide a very specific response at that time. Have you had any time to think about that?

A. Well, it's not that I said that they published it. I told you that I heard about it somewhere or saw it somewhere. Now, where this was, I don't know. Perhaps it was in a discussion that we had at the institute. We discussed everything there as colleagues at the institute. We were all thinking about this. We were all wondering how we could explain the positions of all those wounds in the case of persons who had multiple wounds. And then at that moment we said that this did not look like execution, that it did not look like execution. We are not eyewitnesses of these events. I'm not an eyewitness either. A forensic doctor speaks with greater or lesser probability about events than caused such-and-such wounds, and that is how you have to understand this.

Q. Professor Dobricanin, you used the pronoun "we." You said, "We discussed everything there as colleagues. We were all thinking about ³⁸²⁹⁰ this. We were all wondering. And then at that moment we said that this did not look like execution." Now, are you including members of the Finnish -- or I should say the European Union team when you used the pronoun "we" here; and if so, could you please tell us which members of the Finnish team?

A. First of all, I did not say that we said that it had not been an execution but that it had not looked like an execution. All the members of the team, the Serb, Finnish, Belorussian, we talked, we had discussions, we had breaks, we chatted as friends and colleagues, and we talked about all the possibilities, because not all of us -- or, rather, until the present day I do not understand how we could explain each and every one of these wounds. It's only natural. We say "in all likelihood," "it is likely," or whatever, but we cannot establish that with 100 per cent certainty.

Q. Professor Dobricanin, just one more question on this and then hopefully I'll move on.

JUDGE BONOMY: Well, did you get the answer to that question?

MR. SAXON: Well, no. I'm following up on that, Your Honour.

Q. Can you name a specific member, an individual member of the Finnish forensic team who specifically agreed with your conclusion that what happened to the people in Racak did not look like an execution? Can you name one member of that team?

A. No, I cannot give you any names of any member of the team, either the Finnish team or our team. It's been many years. It was just a discussion that we had, a chat, either within the autopsy room or outside ³⁸²⁹¹ it. I really can't say anything to you at this stage.

Q. I see. It's been many years. Let's take a look, if we can, Professor, at tab 12 of your exhibits.

Tab 12 is an article written by you, Professor Dobricanin, and three of your colleagues. And I'd like to ask you to direct your attention to what is page 13 in the English version. And a little ways down the page, page 13, you and your colleagues begin to discuss Helena Ranta, the Finnish forensic expert team leader, and I believe you're making a reference to what is tab 11, the press conference from the 17th of March, 1999, and this is what you say in the English translation: "Using the political and not medical terminology, Dr. Ranta condemns Serbs for massacre of the innocent, unarmed civilians ..." Then it goes on to explaining that the diphenylamine is not sure, et cetera, et cetera. Do you see that, Professor Dobricanin? Do you see that sentence?

A. I see it.

Q. Can we turn back, now, to the previous tab, tab 11. And this is the text of Dr. Ranta's comments made at the press conference on the 17th of March. And can you tell us, please, where in these comments Dr. Ranta condemns Serbs?

A. Sir, there are direct and indirect indicators about the things that were referred to in my professional article. If we say that this document is, in terms of its title, a report of the forensic professional team of the EU about the events in Racak, in the first paragraph it says that the comments constitute a personal view of the authors. Then it is obvious that these are not comments made by the EU team or the Finnish ³⁸²⁹² team but simply comments made by Ms. Helena Ranta. That is what she is saying, and that's the only thing I said. I made no other comment. She says and concludes that -- yes, please?

Q. I'm sorry, I thought I asked a direct, simple question. The question was simply this --

A. I'm looking for it.

Q. -- where in the comments of Dr. Ranta does Dr. Ranta condemn Serbs for the events that occurred in Racak?

A. There is no such sentence. I did not find that sentence in her comment, and I'm sure that that sentence would not belong in these comments. But the indirect detrimental consequence of such an opinion was the beginning of the bombing of Serbia and Montenegro at the time. The very words that these were unarmed civilians, that means that this was a brutal killing, and these victims were found in a gully, et cetera, et cetera, and we cannot have any information about that, we were not eyewitnesses, neither Mrs. Ranta nor I. That shows that there was acceptance of an opinion that this was some kind of retaliation against the Albanian population of the village of Racak. I gave a detailed explanation as regards the text -- the test that is called the paraffin test, and if there are any further clarifications that are required, I'm prepared to give them.

Q. There are some, Professor Dobricanin. I think you just acknowledged that in a professional article that you published under your name, you said something untrue about another professional colleague. Do you think that is responsible? ^{38293 BLANK PAGE 38294}

A. I did not say anything that was untrue. I just commented on the fact that forensic doctors are not supposed to give political comments that could lead to a very serious reaction on the part of the international public.

Q. Professor Dobricanin, can you turn back to tab 12, please. Page 13 of the English version again. And if we look about halfway down the page, following the sentence that I read to you previously, we see the following sentence: "This kind of political and not thinking of the forensic doctor ended with opinion that there is no reason to believe that these individuals are the members of the terrorist organisation KLA." Do you see that?

A. Yes, I see that.

Q. Now, if we turn back to tab 11, Dr. Ranta's comments, where at the end of Dr. Ranta's comments do you find such an opinion?

A. I find it on page 4, paragraph 2 in the last sentence. "There were no indications that these were persons who could be anything but unarmed civilians."

She did not have the right to state that. She did not have any proof for any such thing. And we, all together, her team and our team, had indirect proof that these people had gunpowder particles on their hands -- sorry, nitrate particles on their hands. That is what we can talk about. But we did not have any additional documents, any findings that they were unarmed civilians. This was not a forensic medical qualification of something that happened there.

Q. Let's move on, Professor Dobricanin, to the events of Racak, and ³⁸²⁹⁵ I'm going --

JUDGE BONOMY: Could I be clear about one thing, Mr. Saxon? I probably should know but I've forgotten. Did Dr. Ranta accept that the paraffin glove test had produced the results which were claimed for it? By that I mean the physical results. What conclusion you draw from it is another matter, but that one of four possible causes existed for the results that were there?

MR. SAXON: I believe the answer to that question, Your Honour, is no, because it's my understanding that any such results were never provided to the members of the Finnish team, that the -- whatever paraffin or gunpowder residue tests were made were taken before the arrival of the group of Finnish experts. Obviously Dr. Ranta could provide you with a more specific response.

JUDGE BONOMY: Perhaps the witness knows the answer. Professor Dobricanin, were the European Union forensic team given the details of the results that were found by the technicians who carried out the paraffin glove test?

THE WITNESS: [Interpretation] I don't think that they were given that. I'm not sure, but I don't think that they received it, no.

JUDGE BONOMY: Thank you.

MR. SAXON:

Q. Professor Dobricanin, if I could just try to summarise some of the evidence that you gave last week regarding the events in Racak. You provided your opinion - I understand it's only now an opinion as a citizen - that the victims in Racak were killed in some kind of ³⁸²⁹⁶ combat situation, and you based that opinion, if I understood your testimony correctly, on four factors, and let me just explain my understanding of them so that we can discuss it. The first factor was the fact that the victims wore several layers of clothing. The second factor was that many of the victims wore clothing that was dark in colour. The third factor were the results of the gunpowder residue tests. And the fourth factor were the fact that the bodies exhibited different bullet paths. In other words, bullets that impacted on the bodies but coming from different directions. Is that a fair summary of your testimony on this issue?

A. I think that it would be.

Q. All right. For right now, I'd like to show a bit of video, if I may.

And you also recall that you testified that you saw no damage to any of the houses at Racak when you went there. Let's look at this video first. I believe this is from the 17th of January, the first clip that we're going to see. This video comes from the material that Judge Danica Marinkovic presented during her testimony here.

[Videotape played]

MR. SAXON:

Q. Here we see a trench line in the woods. A shovel. Can we stop it right there for a moment?

Professor Dobricanin, I believe that is you, isn't it, crouching between those two cars? Is that you?

A. Yes. Yes, that is me. ³⁸²⁹⁷

Q. All right. Please correct me if I'm wrong. I think this was the 17th of January. Obviously it's wintertime. You're dressed warmly, are you not?

A. Yes. I had only one jacket, though.

Q. I see. Were you naked underneath that jacket?

A. No, sir.

Q. What were you wearing on that day underneath your jacket?

A. I think that I wore a sweater and a winter shirt. I'm not sure. I know that I always wore this jacket when going out to work in the field.

Q. All right. So you're wearing this jacket, you're wearing a sweater, you're wearing a winter shirt. Any undershirt, perhaps?

A. Sir, you made a mistake. I said that I had a jacket, a sweater, or a winter or a thick shirt, not both of them. I normally wear just that.

Q. I see. My mistake if I misunderstood you. It might have been a mistake in translation.

The point I'm simply trying to make is that you were wearing more than one layer of clothing on that day, weren't you?

A. If you take the vest into account and a shirt, then certainly.

Q. All right. Now -- and can I assume that the person with you who is wearing a nice blue winter parka also had some clothing on underneath the parka?

A. Sir, I didn't examine that. I just saw a jacket.

Q. But you do have a lot of common sense. You're an intelligent man. You know that most people in the wintertime, when they go outside they put ³⁸²⁹⁸ on their winter jacket, and they usually have something on underneath their jacket; right?

A. Certainly. They certainly do have it. It is sure that they do not put a jacket on a naked body.

Q. Now, should we draw particular conclusions from the fact that you and your colleague or colleagues wore more than one layer of clothing in January of 1999 in the Racak area besides the conclusion that it was cold?

A. Sir, if you have in mind multi-layered clothing of the people who were killed in Racak, and if you plan to compare that with the clothing that we wore, these are two completely different things. Those people there had two jackets, several sweaters, several winter clothes, several pairs of socks, of trousers, and very good boots. What we had on is the clothes that we regularly wore; a jacket and perhaps a sweater or a shirt. We did not plan on spending a lot of time outside in the cold in low temperatures.

Q. I understand that, Professor Dobricanin. And I would like to compare the clothing that you wore, briefly, with the clothing found on the victims from Racak, because quite frankly, and I don't mean any disrespect by this, but you and your colleagues were probably in a different socio-economic place than the majority of the residents at Racak. Isn't that true?

A. I did not understand your question. I was not a wealthy man. I could not spend a lot of money on clothing or anything else. We lived on our salaries. I lived on my salary. That was the system we had. Many people in Albanian villages had other sources of income; agriculture, ³⁸²⁹⁹ trade, and so on. Many of their children, brothers, and so on worked in foreign countries. Therefore, I don't think that you can compare the standard of all of these people.

The first house that I had I acquired just ten months before being forced to flee Pristina.

Q. And many of these people, many of these residents of the Racak area have relatives who live in Switzerland because there is little or no work in the Racak area except for subsistence farming. Isn't that true?

A. That does not apply only to Albanians, sir. We were going through a very hard crisis. We lived under embargo. You know that sanctions had been introduced. So that did not apply only to Albanians but to Serbs in towns and villages. All of these people suffered a great deal because of everything that was lacking. And I am very familiar with this because I toured many Albanian villages as a physician.

We had in the 1970s an epidemic of variolavera so I visited a lot of villages.

Q. Dr. Dobricanin, I'm going to cut you off now. I think you've tried to answer my question.

The point is this, though: If you're not a university professor, if you don't have a reliable income, if you're poor, you can't afford to buy the nice winter clothes that you and your colleague were wearing there on the 17th of January, if you have to go out in the wintertime, particularly early in the morning, you might put on a few layers of clothing, wouldn't you?

A. Sir, I did not say that I was poor. As a university professor, my ³⁸³⁰⁰ standard of living was certainly higher than many of those villagers. However, I was not rich to be able to spend money left and right. This -- I apologise for speaking about this, but this jacket was the jacket I wore when I went to work in the field because it was a warm jacket, it had a lot of pockets that could used for my notebooks and so on.

Yesterday, in The Hague, I saw people sunbathing in the sun, whereas I wore a sweater and a jacket and didn't feel too warm.

Q. I see. So yesterday you were also wearing more than one layer of clothing, but we shouldn't make any conclusions about your political associations based on that, should we?

A. Yes, sir. I'm a man of a certain age. I like to wear warm clothes. I never walk out in only one layer of clothing except when I'm at the beach.

Q. All right. Professor Dobricanin, I want to move on to the subject of the gunpowder residue test which we also referred to here as the paraffin test. Perhaps you can clarify one thing -- and now I realise that I have moved too quickly, so I have to interrupt my last thought. Can we move to the next video, to the Dobricanin 3, please. Dobricanin 2 and 3. Fine. We'll go to 3. That's fine.

[Videotape played]

MR. SAXON: Can we stop right there.

Q. Professor Dobricanin, this again is some video material submitted by Danica Marinkovic. It shows the Racak area. And do you see this part of a house here on the right-hand side? It appears to be a house that has ³⁸³⁰¹ been burnt out. Do you see that?

A. Yes. Yes, I do.

Q. Do you know if you -- can you recall if you saw this house on the 17th of January when you visited the community?

A. I never saw this site or anything similar.

Q. I see.

MR. SAXON: Can we look at the remainder of this clip and then the next clip, please.

[Videotape played]

MR. SAXON: Can we stop here.

Q. Professor Dobricanin, this is a house in Racak. I believe it's the 17th of January. Might be the 18th, but no later than that. The house is still shouldering. Can you see the smoke rising?

A. I can see it here on this picture, but I did not see it there at the site. And I would have seen it because I climbed to the highest elevation above Racak where the bunker was, and I never saw this. Did you say it was on the 17th? Not on the 17th. I did not see it. I was in Racak on the 18th, and I did not see it then either.

Q. Well, what do you suppose happened to this house?

A. This house was set on fire, is on fire. I couldn't tell you anything more about it. I don't know whether this house is located in Racak. But based on what we see, I cannot explain this. Perhaps this house was on the outskirts of the village, because I would have remembered had I seen this from the hill.

Q. All right. Well, it is possible, at least, that a house on the ³⁸³⁰² outskirts of the village of Racak was damaged by some kind of fire on the 15th of January, some type of gunfire?

A. I think you're asking me something that I truly don't know. I said even before that I am familiar with certain types of weapons, but I cannot identify the damage on the road, on the houses and tell you what weapon had caused it, I'm sorry.

Q. Very well, Professor. Let me move on now to the topic of gunpowder residue tests that were done.

Can you -- can you clarify for us when the -- what day were these tests carried out on the 40 bodies that were brought from Racak to the morgue? Was it the 19th of January, the day the bodies were transported to the morgue, or was it some other day, if you recall?

A. That was on the 19th when we started with autopsies. And we worked with each body that was placed on the table. And there was a team who also worked with bodies in the morgue.

These are analyses that are carried out in a very simple way, and I think that in a short space of time the investigation or the analyses was carried out on all the samples taken from hands.

Q. All right. Now, I also understand that fingerprint samples were taken from the bodies to assist in the process of identification; is that correct?

A. Absolutely correct.

Q. And --

A. The tips of the fingers.

Q. And were the fingerprint samples also taken on the 19th of ³⁸³⁰³ January?

A. The fingerprints were taken later, after the nitrate tests had been carried out in order not to create a disturbance or to affect the particles. That means that these tests were not carried out simultaneously. The paraffin test was done first, and then the fingerprints were taken in order to identify them.

Q. All right. I'm only asking were -- I realise that the two tests were not done simultaneously, but I'm simply trying to clarify: Were the two tests done on the same day or were the fingerprints taken a long time after?

A. Quite a long time subsequently. When I say "quite a long time," I mean five to six days after the paraffin test was performed on the hands and the area below the elbow.

Q. All right. I'd like to show a little bit more of video, please.

[Videotape played]

MR. SAXON:

Q. This is some more video provided by Judge Marinkovic. And this is, according to Judge Marinkovic, the weapons that were collected at Racak on the 15th of January, 1999. Weapons and ammunition. We see hand grenades. Then we start to see a number of automatic rifles. You see there's quite a few rifles there.

I think that's enough. Now, Professor Dobricanin, we've already discussed, or you have already discussed that the so-called paraffin test is not a perfect test for indications of the presence of gunpowder, and I just wanted to ask you ^{38304 BLANK PAGE 38305} that -- and of course the purpose of all your work is to try to provide as much information as possible to the legal authorities as precisely as possible so that they may be able to make their decisions about the events in Racak; isn't that right?

A. Yes.

Q. Well, what I'm trying to understand, then, is you had the fingerprints available, or someone had the fingerprints from these bodies. Did anybody ever test these automatic rifles that were lined up so carefully for the presence of the fingerprints of any of the victims from Racak?

A. I'm not aware of that.

Q. Well, you see, if the purpose of this exercise was to get to the truth, eventually find the truth as clearly, precisely, as objectively as possible, wouldn't it have been an obvious and a relatively easy procedure just to see if any of the fingerprints from the victims at Racak were also present on any of these automatic rifles?

A. Sir, this is beyond my scope of work. I suppose that perhaps that should have been done. Whether it was done I don't know, and I can't tell you anything further. I saw the weapons later. Now, whether any fingerprints were taken or not, I really don't know that. This is really for the criminal investigation department and other organs; that is not my job.

Q. Well, even if it is beyond the scope of your work, if we can just continue this conversation in your role as a citizen. We know that there are at least concerns about the reliability of the so-called paraffin ³⁸³⁰⁶ test. Wouldn't it have been a much more precise and final way of determining whether the persons who died at Racak had fired any of those weapons simply by comparing the fingerprints? Just as a citizen. Would you agree with that?

A. That would be one of the pieces of information that could be used for those purposes, yes.

Q. And if the authorities of the Federal Republic of Yugoslavia, or the Republic of Serbia had really wanted to demonstrate the truth about what had happened at Racak --

JUDGE ROBINSON: Mr. Saxon, I think you're becoming a little argumentative there now.

MR. SAXON: Very well, Your Honour. I will move on.

Q. I'd like to move to the other two factors that you mentioned last week, Professor Dobricanin; the dark coloured clothing as well as the different bullet paths that were found on the victims, and to do that I'm going to have to ask for the patience of everyone in this courtroom as I fumble through a number of exhibits, but I'm going to try to do this as efficiently and as quickly as I can.

If we --

MR. SAXON: I'd like the usher's assistance, perhaps, to place part of Helena Ranta's report on the ELMO, which I have to find. If we turn to appendix 2 of Dr. Ranta's report, and page 9 of appendix 2, we're going to see three bodies. And perhaps page 9 could be placed on the ELMO. You will see there are page numbers in the corner there, so if you could place page 9 on the ELMO, please. Make it easier than using the ERN ³⁸³⁰⁷ number, so it should be quicker.

For some reason I'm not seeing this. Now it should work.

Q. Professor Dobricanin, if you could take a look at this, please. These are the bodies of the three Metushi brothers who were found in Racak.

MR. SAXON: And for the Trial Chamber's edification, this picture is located in what is referred to normally as crime location 2, scene 2.

Q. And behind me, Professor Dobricanin, I have a large poster, and I'd like to somehow make it visible at least to the Trial Chamber, and to you as well, if we can - I'm going to take my earphones off now - so that you are able to visualise the particular part of Racak where these photographs were taken and where these bodies were found.

MR. SAXON: Your Honour, I don't know if you would prefer simply to break right now so I don't waste any of the Court's time.

JUDGE ROBINSON: Yes, it's a convenient time. We'll break for 20 minutes.

--- Recess taken at 12.12 p.m.

--- On resuming at 12.40 p.m.

JUDGE ROBINSON: Mr. Kay.

MR. KAY: Before Mr. Saxon resumes, Your Honour, one matter to raise. I've now been able to look at the issue concerning the further Jasovic material that in fact relates to 57 witness statements. I've had an opportunity to reflect on legal argument which I would like to bring to the attention of Your Honours at an appropriate moment.

JUDGE ROBINSON: Thank you, Mr. Kay. We'll hear them later. ³⁸³⁰⁸ Continue, Mr. Saxon.

MR. SAXON:

Q. Professor Dobricanin, to your right there is a large poster there on the stand, and just to help keep you and other people in the courtroom oriented I want to go over a few things about it. This is simply an aerial photograph of the Racak area with certain -- with certain locations and landmarks marked on.

You will see, Professor Dobricanin, that there's a series of numbers going from 1 to 13 at different points around the village of Racak and in the hills, the hillsides above the village, and these numbers simply refer to what we've been calling in this courtroom different crime locations and different scenes within those locations simply because all of the persons who died at Racak in 1999 did not die in a single place. They died in roughly 13 separate areas in the environs of Racak, and so that's what those numbers represent.

You also see some landmarks that you may recall from your visit to the village. For example, there is a black square you'll see on the lower left-hand corner of the poster, with an arrow pointing to a hillside, and that marks the site of the so-called KLA bunker, which I believe you saw when you were walking around Racak.

There is also a small flag closer below in the village itself which marks the spot of the so-called headquarters of the KLA unit that was based in Racak, and I believe you visited that house as well. So those are there just to keep yourself and myself and everyone else oriented as we discuss some of the victims of the 15th of January. ³⁸³⁰⁹ If you could, please, Professor Dobricanin, take a look at the photograph that is on the projector right now, and you'll see it's a photograph of three bodies. Before we begin, I need -- I should ask you, have you seen such photographs previously? These are photographs of the bodies as they were found in situ after the events of 15 January. Have you seen such photographs before?

A. No, I haven't had an opportunity of seeing this.

Q. All right. We see in this photograph three bodies. They are the -- they are the three Metushi brothers; Sabri Metushi, also known as Sabri Syla, Arif Metushi, and Haki Metushi. And I would like to review some of the findings of the Finnish forensic experts regarding the autopsies that were done on these three men, if we may. Perhaps if this photograph could be removed and we're first going to refer to the body in the middle is referred to as RA37. That is Mr. Sabri Metushi. And I have another photograph here, and perhaps just to save time I'll simply hand it to Mr. Prendergast. You can use my copy. Place this on the ELMO for everyone to see.

And you can see there, Professor Dobricanin, this was a photograph taken during the autopsy of Mr. Sabri Syla, and what we see in the upper photograph here, if you agree, we see the entrance -- we see two entrance wounds for bullets, and then if we go down and look at the lower photograph, we see what appears to be sort of a, if I can call it that, sort of a joint exit wound from the top of the foot. Do you see that?

A. Yes.

Q. Am I describing it correctly? ³⁸³¹⁰

A. More or less, yes.

Q. All right.

A. I think I remember this case, in fact. I think I remember it, judging by some of the elements there.

Q. I realise that I'm very much of a layman. If we can remove that photograph now, please.

And if we take a look, RA38 in the first photograph that I showed you of the three bodies in situ was brother Arif Metushi. And I will show another photograph from the Finnish team that is a sketch. Now, we see that according to the results of the autopsy performed, that this man was struck multiple times by gunshots and that the gunshots came from behind him, behind Mr. Metushi, and below him. Is that a fair representation, Professor?

A. Based on the sketch, yes. But there were lateral wounds, number V, for instance, coming in laterally.

Q. And we can also see what appears -- I guess what you would call a lateral wound, number IV, through the fingers. Is that also correct, a bit more lateral?

A. Yes.

Q. All right. And if we could remove that photograph as well. That sketch, I should say. And we'll look at a photograph of Haki Metushi, who was RA39 in the autopsy protocols and is the brother lowest down in this area. And I'd like to put this sketch, if I may, on the ELMO. Again we see that Mr. Haki Metushi was hit by more than one bullet. We see down below it looks like in Mr. Metushi's left leg, it ³⁸³¹¹ looks like he received a bullet wound just below the knee. Is that right?

A. It resembles an injury, and I have no reason to disbelieve it, but maybe it was during the fighting, during fleeing, or any other operation, but they were inflicted more or less at the same time. Let me just intervene. This is nothing separate, special, if that's what you meant. Here the directions of the channels are quite different, or tracks are quite different, and I assumed you noticed that. We have them coming in from the top, from the bottom, from right to left under an angle, from left to right under an angle, then one again -- some again from quite another direction. So this is a perfect illustration of what I was saying the other day; that there are different directions, different tracks, different bullet paths, and so on.

Q. I appreciate that, Professor, and that's what I want to ask you about. Another thing you said the other day was that one of the reasons why you believe that these persons were killed during some kind of combat is because most of the wounds were found either in the upper body or in the head, which would indicate that they were standing in trenches at the time. And here, for example, we see in this sketch we see someone who was shot in the left lower leg; right?

A. Yes.

Q. And I showed you a few minutes ago the brother of this -- of the person represented in this sketch, who was Sabri Metushi, who was shot actually through the sole of his foot twice. So such wounds would not be consistent with someone standing in a trench, would they?

A. What are you thinking? What's on your mind? I will be happy to ³⁸³¹² give you an explanation if His Honour Judge Robinson will allow me to try and explain something with respect to this particular case. An injury in the -- on the neck, under number I, was inflicted from this direction, top to bottom. Can you assume that this man was in some form of trench when he was shot from this position? The left lateral wound is now from the opposite, reverse direction. The injury in the -- on the right thigh a little to the back and to the side, whereas on the right-hand side they are all right to left under an angle. Now, can you picture the following situation: I could give you a concrete answer if we had been able to go into Racak and see the bodies in situ. If he had tried to flee, there is an uphill slope, and that he was hit, which shows us the injury on the left lower arm, the left thigh and these other injuries. They are parallel channel directions or track directions. And in this way we can explain it very simply. But I cannot accept any kind of explanation outside what we did during the autopsies, because once again we -- let me say we were not allowed, and the Judge and I was a professional, to go in situ, to the site where the bodies were actually found. These are post festum findings, four days later when we came upon the bodies in Racak and we started conducting the autopsies. Then we have this. I and my colleagues would know exactly whether the bodies were found in the spot they were killed, whether they had been moved, whether they had been dressed again, and so on and so forth. We would know that exactly had we been allowed to enter onto the site. I am sorry for being a little more lengthy in my answer but I had to explain this. ³⁸³¹³

JUDGE ROBINSON: Professor, you say the injuries to the lower part of the body could be explained if they were fleeing up -- up a hill.

THE WITNESS: [Interpretation] Yes. Yes, yes. Yes, Your Honour. If I might be allowed to add, Your Honour, another example with respect to the first sketch. I wasn't given the chance of saying anything there. On those bodies, on the bodies of the two men on an uphill slope, you find the caps in the position in which I indicated on Friday and said that it was impossible to find caps in that position, which means that the body had been manipulated with. And I will tell you one more thing: If you are hit on an uphill slope, there's absolutely no chance that you will stay there. The body will topple and roll down the hill and find itself ending up in a quite different location from where it was hit. And here all the bodies were turned head upwards, head towards the hill.

MR. SAXON:

Q. Professor Dobricanin, is it likely that in an incident such as what happened at Racak, that when people were killed survivors or whoever happens to come by and sees the bodies, it's not uncommon, is it, that they might turn over a body to see who this person is, whether or not they are still alive? That's not uncommon, is it?

A. It is not uncommon if we're dealing with an individual killing. But if we're dealing with a mass killing during combat, rare would be the person after so much shooting who would dare run up to see what was going on. You know, there is justified fear that there are still parties in the conflict there and that you could lose your head very easily perhaps later on. ³⁸³¹⁴

Q. Professor Dobricanin, didn't you say about one minute ago that you couldn't comment on matters outside of your autopsies? Because then how do you explain your last response?

A. I hope that you asked me as a man who doesn't have to deal in forensics. It's the explanation of an ordinary citizen. My behaviour, how I would behave in a situation like that or anybody else outside forensic medicine. Your question was outside the realm of forensic medicine, wasn't it?

Q. So your comment of last week that the fact that bodies have wounds on the upper part of the body indicates that the deceased persons were fighting in trenches, that is also outside the realm of forensic medicine, isn't it?

A. That falls only partially within the realm of forensic medicine. I didn't say that none of them had injuries and wounds on the lower part of the body. I said that they were mostly in the upper half of the body, the upper torso, whereas wounds like this can be administered in trench fighting and in other types of fighting depending on the configuration of the terrain where all this happens. This is a hilly terrain so the bullet path directions can take different courses. So that is altogether outside the realm of what I know as forensic.

Q. Are you familiar with the report of a forensic pathologist named Eric Baccard?

A. No. I've never heard of him. He didn't work with us.

Q. Just so you know, he presented a report in this case back in April of 2002, and in his report he reported that 18 per cent of the injuries ^{38315 BLANK PAGE 38316} that were recorded during these autopsies of the Racak victims were found on the lower limbs. So that's almost 1 in 5. That's almost 20 per cent. A significant number of injuries found on the lower limbs of the victims. Do you have any comment to make about that?

A. Yes. That means that four-fifths were found in the upper half of the body. And that's what I said. I said that the majority of the wounds, four-fifths are a considerable amount, more than one-fifth, were in the upper half of the body; the thorax, et cetera.

Q. All right. I now would like to show a drawing from Dr. Helena Ranta's report. And it's also from appendix 2, and it's also related to the same particular crime scene from the Racak area, which was crime location 2, scene 2, in the case of Metushi brothers.

MR. SAXON: If this could be placed on the -- on the ELMO, please. Let me just read out the ERN number: K0202405.

Q. I want to ask you about this. Professor Dobricanin, this photograph was made in March of 2000 when the Finnish forensic team had an opportunity to return to the Racak site, and they went to several of the crime locations, and with the help of a metal detector they searched for bullet casings and bullets or the remains of bullets in relation to the locations where were different bodies were found. And this particular photograph shows the positions of what I have referred to as victim 37, who would be here in this photograph 13; victim 10 who was RA39 from your forensic autopsy reports; and the victim that was further up the hill, the white marker that says 7014, was actually victim number 38 in the work that you did. ³⁸³¹⁷ But we see behind the markers were the bodies -- behind these white markers we see a series of blue markers. Each blue marker represents the spot where a bullet or bullet fragment was found in the soil along that hillside.

And I can show you as well another photograph, but before I do, would the presence of bullets in the soil so close behind a spot where those three bodies were found indicate that those men were shot where they were found?

A. You're asking me something to which I cannot give you an answer to for the following reasons: How come and who knows that this was truly the location if the investigation by the legal Yugoslav authorities was not conducted on the day of the event? That's the first point. Secondly, it is absolutely possible to feign this in any part of Kosovo and Metohija, any village, and then say that you found projectiles in the soil. A projectile, a bullet that has not been identified ballistically and not treated ballistically and that has not been compared with the weapon from which it was allegedly shot, there is absolutely no possibility for that projectile to be any kind of proof or evidence whatsoever. These very indistinct photographs that you're showing here, I really cannot comment upon them. All I can tell you is what you ask me, if you could find that anywhere at Kosovo, there was so much shooting in Kosovo that you can find rounds, bullet casings or anything, as many as you like anywhere. So if you don't have actual facts and figures where it came from, there's no point in you asking me this.

Q. I'm going to try to give you a few more facts, Professor ³⁸³¹⁸ Dobricanin. I simply asked your opinion. I'm not trying to be difficult. If you could keep your answers short so we could move along a bit more quickly. I think we've all heard you.

Let me show you my next photograph. This is also from Helena Ranta's report. It's photograph number 14 in appendix 2, ERN K0202411. I'm wondering if we could move that photograph a little bit more in the other direction. Yes, yes. Back to the left now. Perfect. Thank you. Again, Professor Dobricanin, in March of 2000 when the Finnish forensic team went back to the site, not only do they find bullets or bullet fragments in the hillside up on the left of this photograph but they also found a number of cartridge cases in the debris and in the silt and the dirt you see down in the lower right-hand corner there. And every small white square, or rectangle, I should say, represents a spot where a cartridge case was found.

Now, combining the fact that we have photographs of bodies in situ up on the left side of the hillside, we have bullets found embedded in the soil behind where those bodies were found, and we have cartridge cases down below to the right, and some of those -- some of the wounds suffered by the deceased in this scene were received from below and behind, in your opinion, whether professional or as a citizen, do you think we can conclude that perhaps the persons who did the firing were down in this area in the right hand -- lower right-hand portion of the photograph, firing up towards the left where the bodies were found? Can we possibly conclude that?

A. For me to give an affirmative answer, then I would be a great ³⁸³¹⁹ layman in terms of forensic medicine, because each site you can do anything you like along this, feign this. We found a large number of casings. Does that mean that the casings there are relevant whereas in another place by the graveside they're irrelevant? This is a hill. You can do what you like. You can show anything, that the shooting came from any direction you like.

Q. Well, how can you do that scientifically, Professor Dobricanin? How can you show that anything you like, that shootings came from any particular direction? If you have an autopsy done of the body, if you have a study done of the bullet paths, how can you possibly do whatever you like?

For example, in this photograph we see a tree. You're not suggesting that someone could have feigned these results so that cartridges would have been found up on the top of that tree, do you?

A. Everything is possible, sir.

Q. I see. All right.

JUDGE KWON: Mr. Saxon, you're saying that this is part of Dr. Helena Ranta's report?

MR. SAXON: Yes. This is found in appendix 2 to Dr. Ranta's report, Your Honour.

JUDGE KWON: Do we have it in as an exhibit?

MR. SAXON: Yes, you do, Your Honour. It is Exhibit 156, tab 12. I'm sorry if I didn't make that clear previously.

JUDGE KWON: Thank you.

JUDGE ROBINSON: Mr. Saxon, where is the evidence that the bullets ³⁸³²⁰ were found in soil near to where the bodies were?

MR. SAXON: From Dr. --

JUDGE ROBINSON: In the report as well?

MR. SAXON: In Dr. Ranta's report, Your Honour, yes.

Q. In the photographs that I've just shown you and discussed with you, Professor Dobricanin, do you see any evidence there that the men who died were firing back at the men who killed them?

A. I don't know who could say anything like this. On the basis of this photograph you can't see anything.

Q. You can't see any cartridge cases marked up on the left-hand side close to the bodies, do you?

A. It can be a mark for anything. I don't see cases. Possibly there were, but I don't see them.

Q. Are you -- are you doubting the integrity of the final report of the Finnish team? Is that what you're suggesting, that they had faked this?

A. Sir, if our team was prohibited from entering the village on the 15th, 16th, and 17th, then in my opinion something must have happened there. Why were we otherwise forbidden from entering? The only person who on behalf of the state authorities was authorised to carry out investigation was Judge Danica Marinkovic. Had we entered Racak on that day, we would have found this or something else. On the basis of something that was done a year later, you cannot establish where the bodies were at the moment when they were killed and where the casings were found. You probably know it is possible to doctor ³⁸³²¹ a scene any way you want. I'm not saying that that's what our colleagues did, but somebody else could have done it and then brought them to have a look at that. Why didn't they call us when all of this was being done so we could be together on the scene?

Q. You mentioned Judge Danica Marinkovic and her authority that she had. Did Judge Marinkovic need to seek the authority of the district prosecutor to carry out her investigation?

A. At the moment when I went there, it was the deputy public prosecutor, district prosecutor who was there, and the deputy district prosecutor has all possible powers in this respect.

Q. Did Judge Marinkovic have to seek the permission of the public prosecutor to interview witnesses?

A. They did it together. They did everything on the request of the public prosecutor's office in Pristina. That's what she did.

Q. I'm going to -- I just want to make one more point about this particular photograph provided to us by the Finnish team, and that is simply this: Also included in the report in appendix 2, we're told that all of the cartridge cases that are represented by these rectangles in the lower right-hand corner, they came from two weapons, and each of the -- the cartridge cases, the -- represented ammunition of only two different brands. One was the Igman brand, and the other was a brand known as PPU. These are brands of ammunition manufactured in Serbia, aren't they?

A. If it is Igman ammunition, then that's not in Serbia. That's in Bosnia-Herzegovina. PPU means Prvi Partizan Uzice. This is a factory from the town of Uzice that manufactures ammunition. ³⁸³²²

Q. And these two kinds of ammunition are used by police and military forces of Yugoslavia and Serbia, aren't they?

A. Not only they but also everyone who took part in this war; the Albanians, members of the KLA. Everybody used both. Actually, the Albanians used this ammunition which was in the Territorial Defence arms depots that had been looted, and they also used Chinese ammunition that they brought from Albania. Of course, the military mostly used PPU and I don't know what else, but manufactured in Serbia, I think. Or, rather, it wasn't the military, it was the police. I am sorry, I made a mistake. But I don't know what the army used.

Q. Give me your views as a citizen regarding this scene if not as a forensic professional.

We have three men. They're older. They're lying dead on a hillside. They're dressed in civilian clothes. Some of their wounds but not all of them came from below and behind. According to one group of forensic experts, there are bullets found in the soil close to where their bodies were found, and there are cartridge casings found down below. Is it possible -- or would it be possible to conclude, or would one -- maybe better put, would one possibility be, based on this evidence, that these three men were murdered? Is that possible?

A. Only if we had attended the investigation while the bodies were still there where they fell could we come to a relevant conclusion. Such conclusions can only be made once there is a complete reconstruction on the basis of the initial investigation, with photographs of the scene and bodies on the scene and with further examinations. Bullet path directions ³⁸³²³ are not only part of the work of forensic experts but also ballistics experts. I do not understand why they did not allow us access immediately or at least in 2000 when this mini reconstruction, if I can call it that, was conducted. Why could we not take part in it when we did the autopsies together on the bodies of the persons found in Racak?

Q. Professor Dobricanin, are you aware of any reports or records, documentation that indicate whether weapons were found in the spots where bodies were found at Racak such as these three bodies?

A. No. No. I have no such reports or was I interested in that kind of thing.

Q. All right. I'm going to move to a different scene, different crime location. And just to keep you oriented, Professor Dobricanin, and everyone else, the scene I'm going to discuss now is crime location 4, scene 9, which on that poster there is a bit higher up on the poster than the crime scene location that we -- that we just discussed. If you'll bear with me for one moment. I want to show you -- we don't have an in situ photograph of the bodies for this crime location, however, we do have some autopsy photographs, and I'd like to discuss one or two of them with you, if I may.

MR. SAXON: If I could -- I'm sorry, Mr. Prendergast, I have to call you over here again.

Q. I'd like to show you a photograph of one of the persons who died at this scene. This is a boy named Halim Zeqiri, and he was 14 when he died in Racak on the 15th of January, and he received one bullet wound. It was from the back and exited through his neck. So that is the exit ³⁸³²⁴ wound we see there, isn't it, Professor Dobricanin?

A. That can be seen here, right here, this area.

Q. Yes. Okay.

A. It cannot be seen very well here --

Q. Very well.

A. -- on the screen.

Q. Let me -- just to help you and help everyone else, let me just show you the entry wound.

A. It cannot be seen very well here, but it's marked, so I assume that that's it.

Q. So again we have someone who was shot from behind and below. This was -- can we see the other photograph, please?

Halim was 14 at the time. Professor Dobricanin, do you think it's possible that this boy was simply an innocent civilian?

A. I don't know why you draw that conclusion. This is a 14-year-old boy. Among the Albanians, boys of that age are mature. Many of them carried weapons. And this positioning of the wound from the bottom upwards shows that he was on a hillside too. That was the entire terrain. It was on the slopes above the village. So it is possible to be killed in any spot. This is a typical bullet path for a person who is climbing uphill, or which would be very unlikely -- I have to explain this. Perhaps --

Q. Professor, I'm sorry, perhaps my question was not clear. I will rephrase it. I simply asked: Is it possible this boy was simply an innocent civilian? Do you think it's possible? ³⁸³²⁵

A. I cannot answer that question. I have no grounds for answering that question. If you're only referring to his age, that doesn't mean anything.

Q. My question was simply whether it's possible. I wasn't asking you to draw any final conclusions.

A. I think that I have answered that question.

Q. Well, let me go back to another point. You mentioned that this is a typical bullet path for a person who was climbing uphill. Wouldn't it also be a typical bullet path for someone who is fleeing uphill, running away?

A. Well, I cannot say to you whether the person was running away or moving slowly. There are no characteristics on the bodily wounds that could indicate the speed at which a person moves at the moment when he or she is hit by a bullet.

Q. Well, I think I'll leave that question for now, Professor. This boy, Halim Zeqiri, his father was also killed on the 15th of January, and his mother and his sister -- his sister were wounded and were taken to the hospital for treatment. Did you ever speak with them?

A. No. No. I never came to Racak again after the 18th of January, and I never encountered any resident of the village of Racak.

Q. Wouldn't it have been one way to clarify the events of that day simply by speaking to wounded survivors who could tell you what they saw and experienced on that day?

A. Sir, that is not within the scope of my work. If anybody was supposed to speak to them, it was the investigating judge. And secondly, ^{38326 BLANK PAGE 38327} if they were transferred to the hospital in Pristina, perhaps the investigating judge could have talked to them. However, as far as I know, they had their local medical service where the wounded were treated. I don't know exactly in which village, but it was somewhere in the immediate vicinity of the village of Racak. They had their own doctors, and they had their own medical support for their units.

Q. During the time you were working on the autopsies for this medicolegal investigation, did you -- were you given access to any records regarding the wounded, the wounded survivors?

JUDGE ROBINSON: Mr. Saxon, we'll stop in five minutes to hear the legal submissions.

MR. SAXON:

Q. Can you answer my question, Professor? Were you given access to any records regarding the wounded, the wounded survivors?

A. No, no documentation. I have not seen any documentation. I would like to stress once again that these persons were not treated in the Pristina hospital at all but at this other medical centre. There are no records of them. I would have had to know because somebody from surgery would have certainly called me to tell me someone was there. They usually call us when there are severely wounded persons there so that we could come and have a look. I don't think that any one of them was treated there.

Q. Doctor, is it possible that the survivors were treated in the hospital in Stimlje?

A. There is no hospital in Stimlje. ³⁸³²⁸

Q. Well, we had a nine-year-old boy who was shot in the leg on the 15th of January and received treatment in some kind of medical facility in Stimlje. Efrem Salmi [phoen], I believe is his name.

A. I don't think so. I don't think this was in Stimlje. It is certain that the wounded Albanians from Racak could not reach Stimlje. This was quite a bit of police still there, but it's quite possible that he was in the village clinic either in Racak or on the periphery of Stimlje near Racak, Rance, Petrovo Selo and the other villages that were there.

As far as I know, I heard from my colleagues, my Albanian colleagues, that every one of these units had this kind of medical support, and before the war every village had a clinic of its own to treat the residents of the village. These persons, these doctors who were in these villages were only Albanians because these were exclusively Albanian villages.

It is possible that some kind of a hospital had been set up there, but I really don't know.

Q. You referred to, and I know we're short of time, but you made a reference to "every one of these units had this kind of medical support." Which units are you referring to? Are you referring to KLA units?

A. Yes. Yes, the KLA units for sure. And if you're asking me about our units, they also had their own medical corps. When I say "our," I'm saying the police of Serbia. Don't think that I belong to these units. In any kind of troops there is also a medical corps.

Q. Are you suggesting that this victim, Halim Beqiri, then, was a ³⁸³²⁹ member of the KLA?

A. No. I never said that.

MR. SAXON: Your Honour, this would be a good point for me to stop.

JUDGE ROBINSON: Yes. Professor, we are going to hear some legal arguments. I think it would probably be more convenient for you to just stay for the five, ten minutes.

Mr. Kay.

MR. KAY: Yes. The issue concerns the Jasovic statements which were served on the Prosecution very recently. That's a file that consists of 57 further witness statements sought to be produced through the witness Jasovic. Those are witness statements deriving from the time period 1998 to 1999, and indicate activities of the KLA. Within those statements there are further names as well as a repetition of the names already mentioned within the tabs of tab 45, I think it is, to 53 of Exhibit 293, which were the witness statements adduced through the witness Marinkovic, which again indicate that a number of those deceased mentioned in Schedule A of the indictment were connected with the KLA or have been referred to as having connections with the KLA through sources who were interviewed by the police in that period of 1998 to 1999.

It comes down to about 30 of those names in Schedule A fall into that category. So they are identified in witness statements taken by the witness Jasovic in the period 1998 to 1999 as having been involved with the KLA. ³⁸³³⁰ This is very different from the Barney Kelly, Kevin Curtis evidence sought to be relied on by the Prosecution, who were Prosecution investigators who had summarised the contents of a series of witness statements taken over a period of time from 1999 to later periods, and the Prosecutor sought to include that evidence from those witnesses as summarising witnesses, and as the Trial Chamber knows, the Appeals Chamber found against that practice using the investigators to summarise the contents of the witness statements. The Prosecutor didn't want to use the full witness statements but wanted to use those investigators as summarising witnesses.

JUDGE ROBINSON: Mr. Kay, if we were to admit the statements, would you not agree that the declarants should be brought for cross-examination, should be available for cross-examination?

MR. KAY: If I can assist the Court, this was material produced at the time, contemporaneous material within the files of the law enforcement agencies, prosecutor services, and was not material that was created or produced for this litigation. So it stands apart from material that has been made by one party for the purposes of the proceeding. It is material that is part of what was happening at the time.

This case concerns the criminal responsibility of the accused and goes to the issue of his state of mind. If there are official records at the time that have not been created for the issue that we're concerned with in this trial and that they are within the system of the law enforcement agencies, it is right to say that the accused would be entitled to rely upon the content of that information to prove matters ³⁸³³¹ relevant to the issue concerning his state of mind. The issue here is what the accused knew or ought to have known, what he was led to believe, what were the facts at his disposal. That has been a line that has been cross-examined upon by the Prosecution. If this officer is someone who in the course of his duties was able to prepare a number of original exhibits, original material on issues unconnected with the accused at the time but for a completely different reason that indicate the extent of the issue concerning the power, the control, what was being done, the acts and conduct of the KLA, that is material, in our submission, that this accused would be entitled to rely upon in his Defence if it proves an issue in his favour. And it's very different from the other material. These proceedings would not have been designed for him to call 80 such witnesses if they were available and willing to be called to give evidence about those matters, which is really the way Mr. Nice put his submission this morning. What is important here, what this goes to is what was known within the system. What had been produced in the system that was nothing to do with these proceedings, entirely independent, and part of the general information involved at the time.

We have a parallel: The Prosecution relied on the statements produced through Captain Dragan. The Court will remember he gave evidence. His real name was Vasiljkovic. He produced -- the Prosecution sought to rely upon about 10.000 pages of CD-ROM through him, which were the records of soldiers who had been injured and had received support from a foundation. Within those records there was a statement of where the ³⁸³³² soldier originated from, from Serbia or elsewhere, who he had served with as a soldier, and what his injuries were. This was objected to by the accused and the amici curiae, but the evidence was admitted on the basis that it was evidence that had become part of an official record that had been produced, nothing to do with this litigation, but it gave information that the Prosecution was seeking to rely upon not only for the fact of the content but also the truth, and the purpose behind it was to prove that there had been Serbian soldiers involved in the conflict within Croatia and Bosnia-Herzegovina.

JUDGE ROBINSON: Suppose the accused had sought to produce the witness statements through 92 bis. Would the Prosecution not be entitled to seek to cross-examine the declarants?

MR. KAY: 92 bis is not the only -- only route. They're not being called for what they would say now. They're being called -- this evidence is being used for what they said then, and that's the importance of it. What was said at the time, the contemporaneity. Just in the same way as the Prosecutor relied on Exhibit 391, tabs 4 to 8, the Captain Dragan materials, for what was said then to prove an issue that they needed in relation to their case against the accused, this accused, in our submission, would be entitled to use that original evidence. It's original evidence. He's not relying upon it for the statement of the witness. He is relying upon it for what was said and known at that time. They're not coming here as witnesses. That content is being adduced through the witness as exhibit material. And not exhibit material prepared over the weekend, as the Prosecutor has sought to do and would no ³⁸³³³ doubt try to draw a parallel between these instances. That was exhibited -- exhibit material that was prepared before any indictment, completely unrelated to this case and, therefore, falls within that classic material that is admissible in any trial of what original material was in existence at the time, and it's highly relevant to this accused's Defence as to his state of mind.

If there were a vast body of material within the archives of the Kosovan MUP declaring the contrary to this kind of material, no doubt the Prosecutor would have sought to rely upon it in prosecution of the accused. And the way the Appeals Chamber dealt with these issues, and the Trial Chamber, was not to close down the use of original material that may have been taken in statement form. It wasn't being exclusive in the use of Rule 92 bis as applying merely to statements. 92 bis applies to statements taken for the proceedings, for Court statements taken through an officer of the Court, and therein lies its restriction. This is being relied upon as exhibit material to show what was out there, what was in existence at the time that forms a bedrock to the Defence of the accused. A very, very different set of circumstances to the material that the Prosecutor has sought to rely on in his prosecution.

JUDGE ROBINSON: Thanks. Let me just hear Mr. Nice very quickly.

MR. NICE: Your Honour, to deal with this it may take a couple of minutes, and I haven't --

JUDGE ROBINSON: We just -- I don't want to trespass on the time of the other.

[Trial Chamber confers] ³⁸³³⁴

MR. NICE: Thank you, Your Honour. I also need to ask something of you of an administrative nature before we close today, and it's this: If Helena Ranta is available tomorrow - and I don't know whether she is - might it be the case the Court would want to hear from her? She had originally been called by the Court. If so, I will convey the request to her. If the Court doesn't envisage that it might want to hear from her, then -- and if she's otherwise free tomorrow, then we'll make our own decision whether to inconvenience her further.

JUDGE ROBINSON: For my own part, no, I don't wish to hear from her. We'll consider that.

MR. NICE: Very well. Obviously, we need to let her know this afternoon because she's taken two days out of her schedule in order to make herself available.

JUDGE ROBINSON: Mr. Nice, I think we'll have to continue this tomorrow morning.

MR. NICE: Yes, Your Honour, I think so because I'm afraid that I don't really quite understand my learned friend's submissions. What I would be grateful to know, if the Court can ask the accused one question, is if, as Mr. Kay says, and these are documents are all fresh to me and without any translation, but if these documents suggest that names on Schedule A are shown to be members of the KLA, whatever Mr. Kay's argument, is the accused seeking to rely on this document to prove that people killed in the Racak incident were members of the KLA? Because if he is, then that's different from Mr. Kay's argument and I need to be able to address that. ^{38335 BLANK PAGE 38336} I don't know if the Court will feel able to help me with that.

JUDGE ROBINSON: We'll continue this debate tomorrow morning. It's almost time, and we don't wish to trespass on the --

JUDGE BONOMY: Mr. Nice, I'd be grateful if you would give some thought to this: There are two trials in this court, and they both involve the same witness or potential witness. The Prosecution position in relation to that witness, I understand, is entirely different in the other case from the position it appears to be taking in relation to the witness in this case. I'll be interested to hear you further tomorrow when we can continue this on whether that's an appropriate position for the Prosecution to have.

MR. NICE: It's a matter I've already considered and I'll return to it tomorrow.

JUDGE ROBINSON: Yes. We will adjourn until tomorrow morning at 9.00 a.m.

--- Whereupon the hearing adjourned at 1.44 p.m., to be reconvened on Wednesday, the 13th day of

April, 2005, at 9.00 a.m.