³⁸³³⁷

Wednesday, 13 April 2005

[Open session]

[The accused entered court]

[The witness entered court]

--- Upon commencing at 9.08 a.m.

JUDGE ROBINSON: Mr. Saxon.

MR. SAXON: Thank you, Your Honour. I'd simply like to inform the Court that Dr. Helena Ranta is still here and in the public gallery and should I work on the assumption that the Court wishes her to remain here during the morning? She has rescheduled her flight to return to Finland this evening so she can be here if the Trial Chamber wishes her to be here.

[Trial Chamber confers]

JUDGE ROBINSON: If Dr. Ranta wishes to leave, she may leave.

MR. SAXON: Thank you very much, Your Honour.

WITNESS: SLAVISA DOBRICANIN [Resumed]

[Witness answered through interpreter] Cross-examined by Mr. Saxon: [Continued]

Q. Professor Dobricanin, good morning. Yesterday --

A. Good morning, sir.

Q. Yesterday, we were reviewing some of the forensic work that was done regarding the bodies of victims who were found at Racak, and I'd like to move to another part of the Racak area, the area that is known usually either as the gully or the ravine.

And I apologise if I didn't warn Mr. Prendergast earlier that we ³⁸³³⁸ needed the poster brought in, but it's almost here. And Professor Dobricanin, if you look at the aerial photograph the gully or ravine in this courtroom or at least on that courtroom is often referred to as crime scene -- or crime location number 5, and you see the 5 there with some arrows pointing along what looks to be a path over the mountain there. Do you see that, just to get oriented?

A. I see that, yes.

Q. I'd like to show you a photograph taken of the bodies in the gully.

MR. SAXON: And, Your Honour, again this morning I'm going to be referring to a lot to Exhibit 156, tab 12, which is the full report of the European Union Forensic Expert Team.

The first photograph is sort of a long overview shot of the bodies, some of the bodies lying in the gully.

Mr. Prendergast, perhaps you could take three at one time just to save you from having to walk back and forth.

Photo number 24, I believe, from the expert report. If that could go on the ELMO.

And again, this is simply to get everyone oriented. This is from an area higher up on the gully obviously towards what appear to be a group of bodies lying in the gully. We see along the edge of the gully just bushes.

Q. Do you see all that, Dr. Dobricanin?

A. Yes.

Q. And I'd like to draw your attention to a particular body that's ³⁸³³⁹ -- right now that's lying in that group of bodies.

MR. SAXON: If we could see the next photograph, please. I believe it's number 25.

Q. If you take a look at it photograph. This is more of a close-up of this group of bodies. Professor Dobricanin, you see that they are marked with the kinds of numbers that were used during your autopsies: RA3 in the top right; RA35 going counter clockwise; RA15, et cetera. Do you see the body lower down in what sort of looks to be a maroon-coloured jacket? It's marked Racak 24. Do you see that body?

A. I see that body, yes.

Q. Also, if you could just note as we're going through these photographs, above body number 24 we see body 21, and body 21 appears to be wearing a very light-coloured jacket. Do you see that?

A. Yes.

Q. And if we move a bit up and to the right we see body 3, who also is apparently wearing a very light-coloured jacket. Do you see that?

A. I see that too.

Q. All right.

MR. SAXON: If we could take a look at the next photograph, please, Mr. Prendergast, just to get a slightly different view. And if -- thank you very much, Mr. Technician. If we could move the photograph down just a little bit. No, down, please. I apologise.

Q. Again, Professor Dobricanin, you see the body. It's now at the top of this photograph which is photograph number 27 of the expert report, and again we see Racak 24 above that same body. Do you see that? ³⁸³⁴⁰

A. Yes, I see that.

Q. This is a man named Fatmir Limani, who died on the 15th of January.

MR. SAXON: And Exhibit C1, Your Honours, page 11, which is the statement that Dr. Helena Ranta provided to this Chamber upon this Chamber's request, Dr. Ranta explains that there were two molars found in the soil in the vicinity of this body in that position at the gully in a depth of about three to five centimetres, "in a position of victim Racak 24."

And if I could also direct the Court's attention to appendix -- appendix 3, I believe of the European Union's full report. This contains results of DNA analysis. And we can find there reports explaining that a particular molar can be associated with the DNA of body Racak 24.

Q. And there is another photo that I need to show you, Professor Dobricanin, if I can find it quickly. Yes.

MR. SAXON: I'm sorry, Mr. Prendergast. This is page number 20 of the -- of appendix 1 of the expert report. It's ERN K0202330. If we could place that on the ELMO, please.

Q. According to the report of the forensic expert team, Professor, this document or this page portrays the bodies that were found in this position in the gully, and it also portrays in little blue squares - they're hard to see, the colours seem to be hard to see on the monitor that I'm looking at - little blue squares indicate where bullets or bullet fragments were found when the gully was examined in November of 1999. And the red squares, small little red squares which we see ³⁸³⁴¹ primarily outside the gully where we saw bushes on the previous photograph, indicate where cartridge cases were found in November 1999 by the Finnish Expert Team.

Now, I'm just wondering if you could comment, Professor Dobricanin, given the information that I've just shown to you, we have the body of RA24, Fatmir Limani, there in the gully. A bullet or part of a bullet as well as a tooth with the same DNA as Mr. Limani are found in the soil beneath the spot where Mr. Limani's body was found. Can we then conclude, Professor, that Mr. Limani was most likely shot where he lay?

A. Sir, I'm going to give you the same answer that I gave yesterday. Had we entered Racak on the 15th of January and had we found the bodies where they had been -- maybe it was in this spot, too, I'm not pre-judging anything. We found heaps of casings along the trenches. Had we carried out a normal investigation like in any other country in the world where the entire scene is sealed off, and there were possibilities for that because there were many verifiers and monitors there, today I could give you a concrete answer to a concrete question. Everything that you're saying now ask not be accepted or, rather, I cannot accept as absolutely certain, because only on the basis of the bodies that were photographed here, on the basis of markings of the bodies, these numbers, I mean, we cannot compare the bodies we autopsied to the bodies that are marked and numbered here. That is a very thankless and very uncertain job.

These piles of casings could perhaps indicate that this was indeed the scene and that all the injuries came from the same direction, ³⁸³⁴² which absolutely was not the case. The distribution of casings shows something completely different in relation to what the true picture was. And then these teeth that are found, if the pulp is not there there can be no proper DNA analysis. Everything can be doctored. I'm a person who accepts only facts. My facts are absolutely on the side of the fact that it is a big-time mistake that we did not carry out the investigation on the spot on the very day. And again I put the question why we were not allowed access.

JUDGE BONOMY: I would like, if possible, to be assisted with the answer to this question. I think Mr. Saxon posed the question on the basis that these facts are correct. Now, they may not be correct. As you say, there may have been things tampered with. But one of the allegations you've -- one of the qualifications you've included in that answer is that there was not a complete-enough quantity of material for DNA. Now, that seems to suggest fabrication on the part of the Finnish Expert Team. Is that what you're suggesting?

I was hoping that you would answer the question on the basis that let's accept that this is an accurate finding. What can we conclude from it?

THE WITNESS: [Interpretation] Your Honour Judge Bonomy, I cannot conclude anything on the basis of things I had not seen myself. I'm a forensic doctor who knows how to reconstruct the scene on the basis of what he sees on the scene, not only on the basis of photographs that are blurred.

Please do not misunderstand me. I am not devaluating anybody ³⁸³⁴³ here. I have high regard for my colleagues from Finland, but this is a photograph that did not allow a professor of forensic medicine to give unequivocal answers to questions put in this way. It's as simple as that.

As for the teeth and the DNA, the method applied was absolutely correct.

JUDGE BONOMY: Well, why was it you said if there was -- if there was no pulp there there could not be a proper analysis? Why did you say that?

THE WITNESS: [Interpretation] I said that because pulp has to be there. If a tooth is broken or smashed with a projectile, it is virtually impossible to extract enough material from it to carry out a DNA analysis. However, I accept that if they had a complete tooth they could absolutely carry out this kind of analysis. However, again, on the basis of everything that I've been telling you, this doesn't mean anything to me. The only thing that is meaningful to me is what I see myself on the scene had I entered the place on the 15th of January. Whenever bodies are moved there are other elements involved. I do not recall the white jackets that are depicted here. I really do not recall any white jackets on the bodies of the persons from Racak who were autopsied.

JUDGE KWON: Dr. Dobricanin, before you mentioned the pulp, you also said that "The distribution of casings shows something completely different in relation to what the true picture was." I couldn't follow that. What did you mean by that? ³⁸³⁴⁴

THE WITNESS: [Interpretation] If you see no casings in the background of this picture, if this is the true picture - again, I'm speaking very conditionally. I'm only speaking on the basis of a hypothesis, something that I did not see - had the direction of the shooting been there towards the bodies that were there. In order to have bullet paths from here to here, then the paths would go either from the back or from the front. We would not have bullet paths coming from the bottom upwards or from the top downwards, and we would not have anything that was slanted. That is the picture that is here. Casings are not a trace of anything else unless they were just put there on purpose. I'm not saying that, but if they were fired from automatic or semi-automatic weapons, I'm saying what the situation would have been.

JUDGE KWON: Thank you. Mr. Saxon, let me be clear. The Finnish team must have drawn this picture based upon the pictures taken on the 15th and 16th. Am I right?

MR. SAXON: Correct, Your Honour.

JUDGE KWON: Yes. Thank you.

MR. SAXON:

Q. Just to clarify one or two points.

MR. SAXON: Mr. Prendergast, I need to ask for your assistance again. This is a diagram. If that could be placed on the ELMO, please. Again produced by the Finish Expert Team. It's page 83 of appendix 2 to their report. ³⁸³⁴⁵

Q. If you take a look at this, please, Professor Dobricanin, this is a computer simulation of the terrain along that gully. Do you see that?

A. Yes, I do.

Q. You don't see any trenches there along that gully, do you?

A. This gully resembles a kind of a trench. That's what it looks like to me.

Q. All right.

A. As a shallow kind of a trench.

Q. All right. I may have misspoken earlier, so just so that the record is clear, I want to show you a photograph of a little bit of clothing. It is the first item of clothing taken from the body of victim 3 who we saw in a photograph earlier in the gully. I have may have misspoke be by referring to a white jacket. It may simply be a white or light-coloured pullover, but there it is. This was the first item taken off the body when this victim was autopsied according to the Finnish report.

I don't know if you have any comment to make about this, Professor Dobricanin?

A. I don't have a comment. This is grey-coloured. Perhaps the picture is too light, but in the upper photograph it's a bit darker than on the lower photograph, and it's not the same colour as shown on the previous photograph.

And allow me to add this as well: I said that in our report, collective report, we stated that most of the bodies wore dark clothes. However, we did not say that all of the persons had dark clothes on them. ³⁸³⁴⁶

Q. I realise that, Professor Dobricanin. I'm going to discuss that with you a little later on.

I'd like to move on to a discussion about a different person who died at Racak.

MR. SAXON: May I see those photographs, Mr. Prendergast, just for one moment. The other photographs of the bodies in the gully. Okay. If this photograph which is number 25 from the Finnish expert report could be placed on the ELMO, please.

Q. You see this photograph, Professor?

A. I do.

Q. Do you see that there is a body on the left-hand side marked Racak 33? Do you see that? You can only see a portion of the body. Is that a yes, Professor? Can you see that body?

A. Yes, yes. I can see it, yes, in the upper-left corner.

Q. Yes. This is a man named Raif Salihu, who was unfortunately listed both by Judge Marinkovic and the Prosecution as Raif Jashari as well. And in Exhibit C1, page 11, again Dr. Ranta explains to the Trial Chamber that an examination of a bullet recovered from this body during the autopsy and bullet samples recovered in the gully in November of 1999 were fired from the same weapon.

Again, those were bullets as I showed you on the previous photograph that were found in the ground beneath the position where these bodies were.

Again, are you able to comment whether the information I've just given you might indicate that Mr. Raif Salihu was shot where he lay ³⁸³⁴⁷ assuming that everything I've told you is true and correct?

A. First of all, let me tell you that based on this photograph, especially where this body is concerned, nobody had a right to mark this body with RA33, because this is very unclear, and it is impossible to conduct a reconstruction based on the table -- on the bodies we had on the tables and the picture here on the site.

Second, the Finnish team, Mrs. Ranta namely, complained that she was unable to get a single projectile or any other piece of material to take it with them to Finland because that was material subject to criminal technical investigation on our side, the organs in Pristina. Therefore, I don't know how come somebody came to take this projectile with them, how they managed to do that.

Q. [Previous translation continues] ... sorry to cut you off. I said at the end of my question assuming everything I told you was correct: The position of the body, the position of the bullet or bullet fragments, the location of a bullet inside the body during an autopsy. Assuming all of that is correct, can we conclude that that person was shot where he lay, Mr. Salihu?

A. Sir, I challenge this photograph itself. It is very difficult for me to give approximate answers when I don't have the exact facts in front of me. Is it really this projectile? I don't know. For example, if we had two projectiles and had -- if we were able to compare them -- please allow me to conclude my answer.

Q. Please. Please continue.

A. I wanted to answer. If these two projectiles were fired from the ³⁸³⁴⁸ same weapon or if the projectile was taken out of the body and then fired from another identical weapon, and if you placed this under the microscope then we can establish with full certainty that these are projectiles fired from the same weapon.

However, in this case, this is all not conclusive because we don't have any practical evidence showing that these bodies had not been moved, had not been manipulated with. And as you know, we did not have access to these bodies. Had we seen those bodies, we would have been able to tell you something different, perhaps something that would support what you're saying or support what I'm saying. You can tell me about what I saw there myself.

Q. Professor, you say we have -- first of all, you're asking for practical evidence that the bodies have not been moved, which of course is asking to prove a negative. But secondly, we're showing you photographs of bodies at least where they were -- where they were seen on the 16th of January. We've discussed autopsy findings. We've discussed DNA analysis. We've discussed the findings of bullets in the soil beneath the position where the bodies were found on the 16th. How can you say that you have no practical information now to give an opinion?

A. Sir, how can you claim that the bodies were not moved? You know that we did not -- we were not present when the site was investigated. And who is it that conducted the investigation and videotaped the bodies without our presence? This is a sort of a violation of the established procedure. This means that they wanted to conceal something that we needed to see. ³⁸³⁴⁹

Q. And just for the record, when you say "they" wanted to conceal something, who is "they"? Just so the record is clear.

A. These are the people who were present in Racak on the 15th, 16th, and the 17th of January, 1999. These are the people who banned us from accessing the area. And this ban entailed threats of Mr. John Drewienkiewicz and also the shooting that we encountered three times.

Q. All right.

JUDGE ROBINSON: Professor, if you were to assume that the bodies had not been moved, if you were asked to make an assumption, would you be able to answer Mr. Saxon's question?

THE WITNESS: [Interpretation] Your Honours, based on that assumption, I would not be able to give an answer. I'm a person who deals with facts. I am a factographer and nothing more than that.

MR. SAXON:

Q. Speaking of facts, Professor Dobricanin, do you see that body in the photograph, RA21? Do you see that body?

A. Yes, I do.

Q. And he -- in the photograph, the body is wearing what appears to be some kind of a white jacket. Do you see that?

A. Yes.

MR. SAXON: Mr. Prendergast, I'd like to ask for your assistance again. First, if we could show -- this is photographs taken when the autopsy was commenced of RA21 and the first piece of clothing that was removed. The ERN is 01089663. If that could be placed on the ELMO, followed by another photograph which is number 28 from the European Union ³⁸³⁵⁰ report.

Q. Professor Dobricanin, you see this photograph in front of you. Can we agree that this is a white jacket?

A. No, this is not a white jacket.

Q. Well, then, how would you describe this item in this photograph? How would you characterise it?

A. This is a grey colour. Let me just tell you this: Digital photography can change the appearance. It was white in the previous photograph and now it's grey.

Q. I see.

MR. SAXON: Can we take a look at the next photograph, Mr. Prendergast.

Q. Now, we see the same bodies in this next photograph, the bodies lying in the gully. We can see body Racak 21 up in the top of the photograph, but lower down I want to show you something else. Do you see body Racak 32? He appears to be lying on his back or on his side. Do you see that photograph? Can you see that?

A. I do, yes, yes.

Q. Take a look at the footwear that Racak 32 appears to be wearing. Do you see something red, appear to be either red boots or shoes or red socks? Do you see those?

A. These are most likely red boots with thick soles. Sir, please take a look at the next body to the left wearing military boots, number 70 -- 27F, on the same photograph.

Q. I wanted to show you another photograph, if I can. This is a ³⁸³⁵¹ photograph taken during the autopsy of body Racak 32, and these are his boots or whatever you want to -- however you choose to refer to his footwear.

Can we agree, Dr. Dobricanin, that these appear to be red-coloured boots?

A. Yes, roughly so. Dark red, at least based on this photograph.

Q. Now, you mentioned earlier in your testimony that the fact that some of the persons who died at Racak were dressed in dark clothing is an indicator that these persons were members of an armed group. Do you remember that testimony? Just do you remember that testimony?

A. Yes, I do remember it.

Q. Now, I've just shown you photographs which indicate that at least some of the people who died at Racak that day were wearing either light-coloured clothing or, as in the case of body number 32 found in the gully, rather bright-coloured clothing. Following your logic, Professor Dobricanin, can we assume that these persons who were wearing light-coloured clothing or bright-coloured clothing were civilians?

A. No. Perhaps you didn't follow closely what I said. I said that the vast majority. And this is something that could be seen on these photographs. However, you chose not to comment on that. We said that most of them wore dark clothing, that most of them had identical footwear on their feet which were boots with a zipper and mark or text Ozel. Most of the clothing on the victims in Racak were civilian clothes; however, of dark colour both for the top clothing and bottom clothing. Naturally, there were some people who did not have ³⁸³⁵² these shoes and who did not dark-coloured clothing, so they put on what they had. However, the vast majority had the dark-colour clothes. You are pulling out just one example out of a total number of example where the boots differ.

These are warm winter boots, and I wore similar boots when it was very cold and when the snow was very deep, whenever I worked outside in the field in Kosovo.

Q. Professor Dobricanin, I'm pulling out individual examples because time prohibits me from reviewing every single body from Racak, but if as you testified last week dark clothing would be worn by a person in an armed unit who would have to spend a lot of time in the mountains, can't we conclude that a person who is wearing light-coloured clothing or bright-coloured clothing would not be a member of such a group, because it would be quite dangerous for that person would be wearing the clothing that they're wearing, wouldn't it?

A. No. They wore what they had. The tendency was to wear black or dark blue. There were also persons who in the summer months wore sports clothing, and they were members of the KLA. If they did not have such clothes, they wore what they had. And among themselves, knew each other. They recognised each other, and there was no need for them to wear clothes of special colour. Those who had such clothes wore them. Those who didn't wore what they had.

However, in previous photographs we saw that people -- some people wore dark-coloured jeans or black jackets. However, the colour can be distorted and is distorted in some of the photographs. That is ³⁸³⁵³ problem that you have with photography.

JUDGE ROBINSON: Professor, can I ask you? You said that some of them had boots with a zipper marked Ozel. Is there any significance to that marking?

THE WITNESS: [Interpretation] No. No, sir, no. No, Your Honour Judge Robinson. It just means that they received from somebody a number of pairs of that footwear because they were unable to obtain military boots or something.

As you were able to see, one in the persons in the photograph has military-style boots. Ozel I believe comes from Turkey. They received humanitarian aid, different kinds of goods from various sources probably including these boots. I did not claim that these were military boots. However, they did come from the same source. There were some people among them who wore military boots.

What is important, though, is that those people wore the best kind of clothes they had for that season. They wore several layers of warm clothing, and they -- most of them attempted to have dark clothes in order to show their affiliation. This is what showed that they were affiliated with the village guards or Territorial Defence or whatever you want to call that.

JUDGE ROBINSON: Roughly how many bodies had dark clothing?

THE WITNESS: [Interpretation] I cannot remember that, Your Honour, not exactly.

JUDGE ROBINSON: Would you say the majority?

THE WITNESS: [Interpretation] Yes, yes, the majority. ^{38354 BLANK PAGE 38355}

JUDGE ROBINSON: Mr. Saxon, yes.

MR. SAXON: I'm going to move on, Your Honour.

Q. I'm going to ask you a few more questions related to gunpowder analysis, Professor Dobricanin. Yesterday, you explained in your testimony that when the bodies were brought to the morgue in Pristina and placed there, at some point after that first gunpowder analysis was performed on the hands of the bodies, and then subsequent to that fingerprint analysis was performed. Do you recall that?

A. Yes, I remember that.

Q. And the scientific reason for doing the gunpowder analysis first is because if the fingerprint analysis were done first that could contaminate the samples; is that right?

A. Yes.

Q. Now, there are some things that could be done to protect hands that need to be subjected to gunpowder analysis test, I believe, and -- for example, one option might be to try to protect the hands, placing paper bags over them; is that correct? I realise it was not done in this case, but I just need to confirm this with you.

A. Yes. We did not do it.

Q. Another way of protecting the reliability or the validity of these scientific tests would be to do the test as soon as possible. For example, within several hours after the alleged use of a weapon. Would that be correct?

A. Yes.

Q. And as you explained, obviously in this case, given the ³⁸³⁵⁶ circumstances, the gunpowder analysis was not done until several days after the incident in Racak; correct?

A. Yes, but not through any fault of ours, rather it was due to those people banned us from entering Racak.

Q. All right. I want to show you a couple of orders, Professor Dobricanin. These are two orders issued by Judge Marinkovic on the 19th of January, 1999.

MR. SAXON: There should be two. I gave you one this morning. Well, let's use the English. Is it possible, Ms. Dicklich, to get the other one?

Now, if this could be placed on the ELMO.

Q. This is an order dated the 19th of January, Professor, and the Serbian version is there as well. I hope you can see it. First we have the English, then we have the Serbian version. It's from --

A. Yes, I have my version in front of me. The English one is on the screen.

Q. All right. It's from Danica Marinkovic in relation to the autopsy of 40 corpses found in the mosque at the village of Racak, and it's an order to the -- it doesn't specifically say who it is to. It does at the bottom. It says, "Submitted to the forensic technician section in Pristina." And among other things, it orders the forensic technician section to perform the foil glove test on each body and to perform the fingerprint test.

Do you see that, Professor?

A. Yes, I do. ³⁸³⁵⁷

Q. The foil glove test, that would be a reference to a testing for gunpowder analysis, wouldn't it?

JUDGE ROBINSON: Mr. Milosevic, yes.

THE ACCUSED: [Interpretation] Just in order to be completely fair to the witness, Mr. Saxon says here, "Submitted to the forensic technician section in Pristina," which is true, but then below that it says also Institute for Forensic Medicine in Pristina. So I think he ought to quote it in its entirety, not just half of the sentence in order for the witness to be fully aware of the implications of the question.

JUDGE ROBINSON: Okay. That's the three letters ISM Pristina. Yes. Thank you, Mr. Milosevic.

MR. SAXON:

Q. Can we -- can we conclude that this reference to the foil glove test is a reference to a gunpowder analysis test using some foil? Can we conclude that?

A. Yes, these are foil gloves which replace the test that was used previously using the paraffin and the gauze. So these are the glove foils which have five fingers from both sides, the upper and the bottom side, in order to detect all the particles and the location. This is the test that is used nowadays. They use the diphenylamine foils and the paraffin is out of use nowadays.

Q. And so this would have been the test pursuant to this -- pursuant to this order, then this kind of test would have been performed on the bodies from Racak; correct? Please just say yes or no.

A. Yes. ³⁸³⁵⁸

MR. SAXON: I'd like to show a bit of video, please. Before we start the video, we need to explain it. I've been in the evenings the last few nights going through video materials in the possession of the Office of the Prosecutor trying to see if the Office of the Prosecution is in possession of video material that might show gunpowder analysis tests or other kinds of tests on the hands of these victims. And last night at about 6.00, I found some video that I'd like to show to the witness now.

Q. The quality of the photography is quite dark. The quality of the sound is less than perfect. But I'd like to show this to you, Professor Dobricanin, because you may be able to explain to us what is going on there. You may not be, but I'd like to show you a few minutes of this video and see if you can tell us what is going on.

[Videotape played]

MR. SAXON: Can we have sound if there is sound?

Q. You see bodies on the floor in the morgue. Body 17 on the left there. It looks like body 16 on the right.

Here is some sound. This is body 17 again. Body 20.

MR. SAXON: Can we stop the tape there, please.

Q. Professor Dobricanin, are you able to tell from what you've seen and heard what procedure was being performed in this video?

A. I can't tell you anything, it's such poor quality. There are English words. I think there was some Albanian spoken. All I heard clearly at one point was that somebody said "Take some other gloves not to infect one body with the material from another." That's all I heard. ³⁸³⁵⁹ Otherwise I really don't know what this was all about. But what I did notice is what I keep claiming: That all the bodies were in black clothing or dark clothing, all the ones you've shown now.

Q. We also see that the bodies were lying on the floor -- well, let me take one step backward. I heard in the sound the sound of what I can only describe as -- I don't know if it was paper crinkling or if it was tape being removed. Did you hear any such sound and could you comment on what that might have been?

A. I couldn't hear. There was such a lot of sound and noise that you couldn't differentiate.

JUDGE KWON: Doctor, you were there on the 20th? I might have heard your voice but I'm not sure.

THE WITNESS: [Interpretation] No. I wasn't at the autopsy in the morgue. I was in the hall where the autopsies take place. You couldn't have heard my voice. I would have recognised it myself.

MR. SAXON:

Q. Professor Dobricanin, the bodies were lying there on the floor. We could see blood spots on the floor. Is it possible that hands of victims could have been contaminated by contact with the floor?

A. No. They weren't close together, and you -- hands wouldn't have been able to have been contaminated with gunpowder particles or nitrates from the blood spots on the floor.

Q. Could hands have been contaminated by other material on the floor?

A. No. ³⁸³⁶⁰

Q. And why not?

A. Because on that particular floor there was nothing else, and the floor was wiped every evening. It is washed with a hose every evening and then the bodies are brought into a clean area.

Q. Are you aware, Professor Dobricanin, that the bodies of at least 24 persons who were killed in Racak were tested for fingerprints while they still lay in the mosque on the 18th of January? Are you aware of that?

A. I'm not aware of that. I didn't see it in the mosque.

Q. I need to show you a document.

MR. SAXON: And if this could be exhibited, please.

Q. This is in English and B/C/S, Serbian, so you can read the Serbian, Professor Dobricanin. It's a document again that I found last evening. I should say I found it last evening with the help of some of my colleagues.

The first page has the case file of what I believe is the Serbian judicial system on it, case A/VI-025, and then it says "Enclosure, 2.13." And then it says fingerprint identification of 24 persons killed in Racak village... dated 29 January 1999."

MR. SAXON: And while we're waiting, Ms. Dicklich, if we could distribute the aide-memoire.

JUDGE KWON: I don't think the ELMO is working.

MR. SAXON: The ELMO, please.

JUDGE KWON: Yes, it is.

THE WITNESS: [Interpretation] I apologise, but may I correct you. ³⁸³⁶¹ It's the 29th of January, 1999, not the 21st. The 29th of January, 1999 is the date.

THE INTERPRETER: Microphone, please, Mr. Saxon.

MR. SAXON:

Q. If we could turn to the first page, please. The first page says the first page at the top it says 269/99. It's from the Crime Investigation Department, Republic of Serbia, Secretariat in Pristina. Then it's titled "Dactyloscopic Identification of Dermal Ridge Print" and it explains how on 18 January 1999 forensic technician Sasa Bozanic conducted a forensic examination --

JUDGE KWON: Sorry, Mr. Saxon, do you have the English version?

MR. SAXON: And you should too, Your Honour.

JUDGE KWON: No. All we have is the one page.

MR. SAXON: I'm sorry, Your Honour. This is the document I was referring to. I apologise for my confusion.

And if that could be placed on the ELMO, please, Mr. Prendergast.

Q. Again, the cover page shows the case file and the title, "Finger print [sic] identification of 24 persons." And then on the first page we see that it's from the Crime Investigation Department, Pristina. It's dated the 29th of January, 1999. "Dactyloscopic Identification of Dermal Ridge Print," and it describes how "On the 18th of January, 1999, Forensic Technician Sasa Bozanic... fixed impressions of dermal ridges for comparison with a right index finger print" to compare with the "personal identity card in the name of Mufailj Hajrizi," as one of the victims who died at Racak, victim Racak 03. Do you see this, Professor ³⁸³⁶² Dobricanin?

A. Yes.

MR. SAXON: And Your Honours, just for the Trial Chamber's information, I have with me here the other 23 files. They are -- they are exactly the same with perhaps the differences of a comma here or a space here. They all say the same thing. And I'd rather use my time more efficiently at this point by simply showing one of them to the Trial Chamber.

And the aide-memoire that I've also just given you gives -- provides the list of the names whose fingerprints were taken on the 18th in the mosque, their autopsy number, as well as the handwritten number which you can see on this page in the upper right-hand corner, A/VI-25/20.

Q. Now, Professor Dobricanin, this report would seem to indicate that fingerprint test were is done on 24 of the victims two or three days before any gunpowder analysis tests were done, doesn't it?

A. I wasn't following you. Could you repeat your question, please? I was looking at these findings, and I'm not sure I followed you.

Q. You have a file. It has the fingerprint identification reports of 24 persons killed in Racak, 24 of the persons who are listed in this indictment, and according to these reports, each report says that the fingerprint test was conducted in the mosque in Racak on the 18th of January, 1999.

So my question is: That would indicate, wouldn't it, that fingerprint tests were conducted on 24 of the victims before any ³⁸³⁶³ gunpowder analysis testing was done; correct?

A. No. You did not understand it properly or perhaps it wasn't translated correctly.

This first paragraph when it says on the 1th of January, 1999, the forensic technician, et cetera, et cetera, gives his findings and says, "On the basis of established principles and dactyloscopic identification -- dactyloscopic identification on at least 12 -- of at least 12 identical anatomic features/characteristics, it was established that the aforementioned impressions of dermal ridges are identical to the print of the right index finger of Mufailj Hajrizi, born..." et cetera, et cetera, "by dactyloscopy on 20 January 1999 at the Institute for Forensic Medicine in Pristina. Unidentified body labelled number RA03..."

So it wasn't on the 18th of January that this was conducted, it was when they were found in the mosque. Whereas the dactyloscopy took place on the 20th of January, 1999 at the Institute for Forensic Medicine.

Q. Dr. Dobricanin, if dermal ridges were placed on the hands on the 18th of January, that is done as part of a test for fingerprints, isn't it?

A. That was not conducted on the 18th of January. That was done on the 20th of January and wasn't done at the mosque but at the Institute for Forensic Medicine in Pristina. Take a look at the last paragraph where it says that under "Findings." Look at "Findings," that last paragraph, and you'll see what it says. ³⁸³⁶⁴

Q. Dr. Dobricanin --

A. And this refers to -- this is the preamble.

Q. Yes. And the preamble says, Professor Dobricanin, that "On 18 January... Technician Sasa Bozanic fixed impressions of dermal ridges" for comparisons with the fingers of this man, Mufailj Hajrizi." So that would mean that something was done on the hand of this man on the 18th of January, doesn't it?

A. No. I was in the mosque in Racak and nobody conducted any dactyloscopy under the conditions that prevailed when they started firing with mortars. What I tell you is certain: All traces of dermal ridge for dactyloscopy, all gunpowder findings, all samples were taken at the Institute for Forensic Medicine in Pristina. Before that nothing had been done with respect to the crime and technical research except for the photographs. The photographs were taken in the mosque in the village of Racak. That was all.

Q. Well, then, why did Sasa Bozanic record having performed this work on the 18th of January? Why did he go to all this trouble?

JUDGE ROBINSON: Are there two procedures, two stages, Mr. Saxon?

MR. SAXON: I would ask --

JUDGE ROBINSON: Or the Professor.

THE WITNESS: [Interpretation] No, sir. This is probably an error in the preamble because he refers to the date when we took over the corpses. But it says quite clearly when all the prints were taken, and that took place on the 20th of January whereas -- at the Institute for Forensic Medicine in Pristina. That's what it says. And I state to Your ³⁸³⁶⁵ Honour Judge Robinson that nothing was done in Racak. I say that quite clearly and unequivocally because there were no conditions for anything to be done or conducted. It is no place in which you would take samples for dactyloscopy.

So the only correct thing is this: It is the findings which clearly state what was done and where and when.

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Yes.

THE ACCUSED: [Interpretation] Might I be of assistance to the Trial Chamber?

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] What you have here in the Serbian original is a form, a form. It's not that Bozanic said "fixed impressions of dermal ridges." It is a pre-printed form for dactyloscopic identification of dermal ridge print and he was just filling in the form, whereas the findings tell us what the professor has been saying, when the dactyloscopy was performed. So this is -- whereas this is a form, a general form, a printed form and you just fill in the empty spaces. And if you look at the original you'll see this very easily. You'll see what the form contains, the pre-printed form, and what they filled in. So the sections filled in coincide exactly with what the professor was telling us, whereas how -- what the pre-printed form is quite unimportant for this case.

THE WITNESS: [Interpretation] Your Honour, might I tell you something else and to indicate a portion of this document? Might I be ³⁸³⁶⁶ allowed to do that?

On the last page, which is where you will see the fingerprints themselves, here I have it. You can look at this on my copy. It's the last page showing the fingerprints themselves, it says the following: Family name and first name and other particulars; and then it says date of registration and the date there is the 20th of January, 1999. That clearly indicates that it was on that day that the fingerprints were taken from this individual.

JUDGE ROBINSON: Why was the 18th filled in? Why did they fill in the 18th at the top?

THE WITNESS: [Interpretation] That's a printed form, and it says "on the 18th," et cetera, et cetera. It's probably a mistake. When you fill in forms, you don't -- they do it very often mechanically and fill in the blanks that way, mechanically. So maybe that was it.

JUDGE BONOMY: The two blanks show different dates. I mean, could you possibly explain why the 18th would be put in there at all?

THE WITNESS: [Interpretation] It's the date when the bodies were taken over from the mosque. So that was the date recorded, because that was the first time we came into contact with the bodies, and then he couldn't say that they were from the bodies from the 15th in Racak. We never recorded that way when you give a crime -- to the crime technician. This was the date, and he clearly said that the technical part of the business was done on the 20th of January, 1999, at the Institute for Forensic Medicine in Pristina, and you'll see the fingerprints on the last page where the date is the 20th of January, 1999, again, and it's ³⁸³⁶⁷ written in in handwriting. It's fairly small but you can see it, where it says date, registration.

JUDGE ROBINSON: Yes, Mr. Saxon.

MR. SAXON: Your Honour, the next document I would like to show, two documents, actually. One of them is a request for assistance from the Office of the Prosecution to the government of Serbia from 2002, I believe in May, and the second document is a response from the government of Serbia from the summer of 2002. I'll pause for a moment.

JUDGE ROBINSON: Mr. Saxon, Judge Kwon reminds me that we are dealing with the exhibits individually. So those that are -- that can be admitted, which are not going to be controversial, we should admit them.

MR. SAXON: Well, would I offer for admission the documents that I have just provided to the Trial Chamber regarding the fingerprint analysis, and then we will very briefly discuss these two.

JUDGE ROBINSON: I think there were some before that, so maybe we had better deal with it later.

MR. SAXON:

Q. Very briefly, the letter of -- the request for assistance from May 2002 asked the government of Serbia questions regarding gunpowder analysis testing that were done on the bodies in Racak.

MR. SAXON: Can we -- can that be placed on the ELMO, please? And can it be moved up a little bit, please. Can it be moved up a little bit more. And the next page, please. Next page, please.

Q. And there's a question there -- there are two questions. It says "If the test was positive, what further tests were applied on that ³⁸³⁶⁸ person?" And then it asks: "What tests were carried out to establish the source of contamination?" In other words, the source of an indication of nitrates.

Actually, this is the response, which is perfectly fine. It makes life simpler.

And the response of the government of Serbia that we're looking at here underneath the question says that: "In the concrete situation (Racak), there were no conditions to check whether there was any contamination in the case of persons for whom the above test was positive, that is, there were no realistic conditions to try to establish contamination sources."

Professor Dobricanin, is that a fair statement do you think?

A. Yes, I would say it was --

Q. All right.

A. -- a true statement.

MR. SAXON: I would offer these two documents for admission as well, Your Honour, at the appropriate time, thank you.

Q. I want to go back just very briefly, Professor Dobricanin, to the subject of colours of clothing, because you made a comment that I wanted to discuss with you. You said "they wore whatever they had." That was earlier this morning, I think in response to a question from Judge Robinson.

What would people who were not members of a KLA or a village defence force wear?

A. Not all the people in the village were uniformed. You know that ³⁸³⁶⁹ there are different types of clothing. But these tried to have the black colour prevail which showed their affiliation to a village guard or a terrorist organisation or the special police, and their colour was exclusively black.

Q. Professor, I'm not sure if you understood my question. It was very different. My question was: What would people who were not members of a KLA unit or a village defence force wear?

A. I don't know what they wore.

Q. You don't know. Well, if you don't know, then how could we ever know -- if -- if there's no correlation between clothing worn by a person and the possibility that that person could be a civilian or not, then why is there a correlation between colour of clothing worn by a person and the possibility that that person is a member of an armed unit? I don't understand how you can say one thing and not the other.

A. I don't think that you understood what I was saying. I said that the members of those military organisations wore predominantly black clothing or almost every time black clothing, especially their special police, whereas the other farmers and peasants that didn't belong to them - not everybody was a member of the KLA - it would be something else, then. They wore the clothing they had.

The members of the KLA wore exclusively black, black-coloured clothing or dark clothing if they didn't have parts of a black uniform. They didn't actually have uniforms. They did what they could.

Q. Professor Dobricanin, so I think, then, by that logic if a policeman entered Racak on the 15th of January and saw a person wearing ³⁸³⁷⁰ light clothing, that person would -- that policeman would not know whether the person wearing the light clothing was a civilian or a member of an armed unit, would he?

A. I have no answer to that question. It's hypothetical, an assumption. I can't think along those lines.

Q. You see, the problem that we have here is that we have a number of bodies in the gully and in other areas around Racak, people shot from all different directions, bullets found in different parts of their bodies. We have people wearing dark-coloured clothing but also people wearing light-coloured clothing. We have people wearing several layers of clothing, but it was wintertime. We have -- apparently gunpowder analysis was done but we have no formal results of that analysis. We certainly have indications that the analysis was not carried out under optimal conditions. We have forensic examinations done by the European Union team that places bullets underneath bodies where they were found, as well as parts of bodies, and we have no information that weapons were found next to anyone that was killed in Racak.

So can't we simply conclude that all of these persons were killed where they were found and that they were unarmed? Isn't that a possible conclusion for the events in Racak?

A. If you listened to me carefully over the past few days, I made four assumptions. I focused on four points, and I gave very precise answers to those questions both to the Trial Chamber and to you yourself. You have now made a compilation of all this, and I just can't answer that. I can only take them one by one. ³⁸³⁷¹ Your conclusion is your own conclusion. It is not my conclusion.

Q. No. And your conclusions are based on your four assumptions. Isn't that right, Professor Dobricanin?

A. Yes. And my conclusions are based on these assumptions, and they do not speak of unarmed civilians.

MR. SAXON: Your Honour, I have no further questions at this time.

JUDGE ROBINSON: Thank you, Mr. Saxon. Mr. Milosevic.

[Trial Chamber confers]

JUDGE ROBINSON: It's time for the break. We will adjourn for 20 minutes.

Mr. Saxon, when we return, we will deal with those exhibits that can be admitted.

--- Recess taken at 10.32 a.m.

--- On resuming at 10.55 a.m.

JUDGE ROBINSON: Mr. Saxon.

MR. SAXON: With your leave, I would ask permission to ask one or two more questions. It's because I realised during the break at the last session I made a comment that was not completely fair to the witness and I should have asked him a question about a topic before making my comment. So with your leave, I'd like to ask one more question.

JUDGE ROBINSON: Yes, Mr. Saxon.

MR. SAXON: Thank you.

Q. Professor Dobricanin, going back to the analysis of the hands of ^{38372 BLANK PAGE 38373} the bodies for gunpowder residue, the -- and you have testified that 37 out of 40 bodies tested tested positive for nitrates. Do you recall that?

A. Yes, I recall that.

Q. Why weren't these results recorded in your autopsy reports?

A. For one single reason. We expected all the results of the ridge prints and the identification and everything. I didn't even have a list of the killed persons. We expected all the results of the gunpowder analysis to come as return information, that one copy should go to the investigating judge and that we should get yet another copy for our own documentation. The only reason why this did not happen is, I think, the fact that all the people working on this were very busy, extremely busy. We had a very difficult situation over those several months, and because this was prepared together with the video footage and the photographs that was all supposed to be handed over to us. All of this was destroyed, however, during the bombing of the SUP. So there is no other reason but that for the fact that we haven't got all of that.

Q. Are you suggesting that you were -- you were too busy to record these results on the autopsy results, that time did not allow it?

A. No. No. In our notes, in the records that we had that remained at the Institute, we certainly recorded that there was a positive reaction as far as nitrates are concerned. We just gave the figure of 37 positive for nitrates. We thought that there was no reason to publish this in detail.

You saw the Finnish reports too. They did not describe all of ³⁸³⁷⁴ these findings in detail. This wasn't enough material in all cases too.

Q. You say "there wasn't enough material in all cases too." Can you explain what you mean by that?

A. I thought that since the so-called paraffin glove was already taken, that is to say this foil glove that the technicians used, that there was a little bit of that material on the hands and that that is probably why my colleagues from Finland did not pursue this any further.

Q. All right. Very briefly --

THE INTERPRETER: Interpreters note: More than a little bit, not enough.

MR. SAXON: I see.

Q. Do you recall telling investigator Barney Kelly that you did not record your findings regarding gunpowder residue because there wasn't sufficient time to do that?

A. I've already answered that question a few moments ago.

JUDGE ROBINSON: No. This is a different question. He's now asking whether you remember telling the investigator Barney Kelly that you didn't record your findings relating to gunpowder residue because there wasn't enough time to do that. This is a different question, Professor.

THE WITNESS: [Interpretation] Your Honour Judge Robinson, this was recorded in the collective findings of the group of forensic pathologists from Serbia and the forensic pathologists in Belorussia -- in Belarus. I haven't got the findings here.

It was stated that in 37 cases traces were found of nitrate on ³⁸³⁷⁵ the hands. That was our collective finding.

JUDGE ROBINSON: Did you have an interview with Barney Kelly, the investigator Barney Kelly?

THE WITNESS: [Interpretation] Yes. Yes, for two days in Krusevac.

JUDGE ROBINSON: What Mr. Saxon is calling -- is asking is if you remember telling him at that you didn't record the findings relating to gunpowder residue because there wasn't enough time.

THE WITNESS: [Interpretation] That's not what I said. I told him what I am saying here today, that we did not get these findings. We did not receive them because there wasn't time for that. But we did record the findings in our general conclusions.

The results regarding gunpowder particles and nitrates have been recorded in one sentence, as I said a few moments ago.

MR. SAXON: With your leave, Your Honour, I'd like to exhibit the prior statement of Professor Dobricanin. I will do this as quickly as I can.

JUDGE ROBINSON: Yes, please do.

MR. SAXON: And I would invite the parties to turn to page 9.

THE WITNESS: [Interpretation] In Serbian, please.

MR. SAXON:

Q. Dr. Dobricanin, I don't have a Serbian translation, but I will read you the appropriate passages so that you can -- you can hear the translation in your language.

First of all, take a look at the top page. Do you see your name ³⁸³⁷⁶ written there, Slavisa Dobricanin?

A. Yes. This is my statement.

Q. And do you see how on every page your signature is at the bottom? Do you see that?

A. Yes. Yes.

Q. If you take a look at page 12, please, the English version. At the very top of the page it says: "This statement has been read over to me in the Serbian language, and I have been invited to make any alterations or additions that I deem necessary, but I do not wish to do so. This statement is correct."

Do you see that?

A. Yes.

Q. Can you look at page 9, please. And in the fourth paragraph on page 9, you describe the gunpowder analysis tests that were done, and in the second to the last sentence you say: "These important findings were not added to our written conclusions because we did not have time." Do you recall saying that to Investigator Kelly now?

A. You've said that, but I've explained to you just now why it was put that way.

Q. Well --

JUDGE ROBINSON: Let him give the explanation again.

MR. SAXON: Yes.

Q. Perhaps you could explain again, because I'm not -- at least I'm not following your explanation.

A. Your Honour, when an autopsy is done, the forensic pathologist ³⁸³⁷⁷ does the autopsy. Crime technicians take samples of whatever is necessary from the hands and finally on the spot. These are biological traces, traces of explosion, et cetera, and we did that on all the bodies from Racak.

They took these samples of theirs to the crime technical laboratory of the provincial SUP in Pristina. We received information about all the cases with numbers and with positive analyses. We recorded these analyses in our working notebooks which we took when we went to autopsy the 40 bodies.

In the collective report that was written on the 30th of January, 1999, on the basis of this information we wrote that on 37 bodies, on the hands of 37 bodies, traces were found of nitrates, which may indicate that there were particles of gunpowder too.

In view of the format of the general report, we believed that that was quite sufficient. We expected in the following months that when all of this was processed, we would get photographs, video footage, and analyses of the crime technical services related to gunpowder particles and the names of persons who were killed in the village of Racak. All of that was being prepared, and I said that on Thursday or Friday that there were about 18.000 photographs, a couple of hundred video recordings, video cassettes, and other documentation, which after everything that happened, was supposed to be handed over to the Institute and the investigating judge Mrs. Danica Marinkovic.

Since all of this was on the premises of the crime technical service of the provincial SUP all of this was destroyed during the ³⁸³⁷⁸ bombing of the SUP. So would did not get a single shred of information about all these documents. Actually we did not receive a single document. The only written trace that remained is our general conclusion.

MR. SAXON: Your Honour, I have nothing further.

JUDGE ROBINSON: Thank you. Mr. Milosevic.

I'm sorry. Mr. Saxon, those exhibits that can be admitted should be.

MR. SAXON: I would start with the statement of Professor Dobricanin, Your Honour.

JUDGE ROBINSON: This one, yes.

MR. SAXON: And then starting chronologically --

JUDGE ROBINSON: Let it be given a number.

THE REGISTRAR: The statement of Dobricanin would be 848.

MR. SAXON: The ICTY witness statement of Rizah Salihu.

JUDGE KWON: We'd like to hear whether there's any objection from the accused. I don't expect him to oppose to this but --

JUDGE ROBINSON: Any objection, Mr. Milosevic?

JUDGE KWON: The statement that deals with the name of the dead person. Did you say no?

THE ACCUSED: [Interpretation] I have no objections, but I'm going to put a question. The name of Raif Salihu was mentioned here. Raif Salihu or Jashari. The question is whether it's Salihu or Jashari. Is not on the list contained in Schedule A, neither as Salihu or as Jashari. ³⁸³⁷⁹ So from that point of view, this statement does not match the information contained in here.

Since Mr. Saxon explained that it was possible that Salihu is the same as Jashari. However, Raif is not in Schedule A either as Salihu or Jashari. So that is what I wanted to ask about.

JUDGE KWON: Yes, he is in Schedule A.

MR. SAXON: He very clearly is.

JUDGE KWON: "Jashari Raif, 20 years of age." Okay. There's no objection from the accused on this statement.

JUDGE ROBINSON: Let it be admitted.

THE REGISTRAR: 849.

MR. SAXON: Then there were 3 photographs, the photo of the grave of Jashar Salihu, Raif Salihu, and Shukri Salihu.

JUDGE ROBINSON: Yes.

THE REGISTRAR: 850.

MR. SAXON: There was the ICTY statement of Milazim Syla or Syla, depending on your language, dealing with victim Sabri Syla on Judge Marinkovic's list.

JUDGE ROBINSON: Yes.

THE REGISTRAR: 851.

MR. SAXON: There were three photographs from the Racak cemetery, the grave of Arif Metushi, Sabri Metushi and Haki Metushi.

JUDGE ROBINSON: Yes.

THE REGISTRAR: 852.

MR. SAXON: There was a chart or an aide-memoire dealing with the ³⁸³⁸⁰ names of the persons killed at Racak on the 15th of January and a compilation of information available about those names.

JUDGE KWON: Any observation from assigned counsel or the accused?

JUDGE ROBINSON: Is this an exhibit? Was this meant to be exhibited or just --

MR. SAXON: It was, Your Honour, for your assistance. For the assistance of everyone, quite frankly, because the issue of names is confusing.

MR. KAY: I have no objection.

JUDGE ROBINSON: Yes.

JUDGE KWON: Thank you.

MR. SAXON: Then we have --

THE REGISTRAR: 853.

MR. SAXON: Then we have an order signed by Danica Marinkovic dated the 19th of January, 1999, regarding autopsies and other processes concerning the 40 bodies taken from Racak.

JUDGE ROBINSON: Yes.

THE REGISTRAR: 854.

MR. SAXON: And I suppose I should go in a more logical order. The sample from what's called the enclosure 2.13 --

JUDGE KWON: Fingerprints.

MR. SAXON: "Finger print identification of 24 persons killed in the Racak village."

JUDGE ROBINSON: Yes. ³⁸³⁸¹

THE REGISTRAR: 855.

MR. SAXON: And I --

JUDGE KWON: Are you tendering all of them or one of them?

MR. SAXON: Unless the Trial Chamber feels it's necessary, again to cut down on paper to be more efficient, we would simply tender one, Your Honour.

JUDGE KWON: We have to hear from the Defence, I guess.

JUDGE ROBINSON: Anything on this, Mr. Kay or Mr. Milosevic?

MR. KAY: I have no objection.

JUDGE ROBINSON: Mr. Milosevic.

THE ACCUSED: [Interpretation] No.

JUDGE ROBINSON: Yes. Admitted.

MR. SAXON: And then the final item would simply be another aide-memoire simply listing for you the persons who are named in that file as having had the fingerprint work done starting on the 18th of January. There are 24 of them, so it does not -- it does not refer to every victim. Twenty-four of the victims.

JUDGE ROBINSON: Yes.

THE REGISTRAR: 856.

MR. SAXON: And that is all, Your Honour.

JUDGE KWON: No. There are correspondences between ICTY and Mr. Marinkovic.

MR. SAXON: I am grateful to Your Honour for being sharper than I am this morning. We had a request for assistance from May 2002 from the ICTY to the government of Serbia. Sorry, it would be one document. ³⁸³⁸²

MR. KAY: No objection.

JUDGE ROBINSON: Yes.

THE REGISTRAR: 857.

MR. SAXON: And then we had a respond from the government of Serbia in the summer of 2002.

JUDGE ROBINSON: Yes.

THE REGISTRAR: 858.

JUDGE ROBINSON: Thank you.

MR. SAXON: Thank you, Your Honour.

JUDGE ROBINSON: Mr. Milosevic, re-examination.

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

Q. [Interpretation] Professor Dobricanin, please take a look at this document that was exhibited a few moments ago by Mr. Saxon. This is the respond of the Federal Ministry of Justice to the questions put in relation to the paraffin test.

JUDGE ROBINSON: What exhibit was that?

JUDGE KWON: 858.

JUDGE ROBINSON: 858. Will the Registrar see that the witness has the correct document.

Yes. Do you have the document, Professor? Yes.

THE INTERPRETER: Microphone, please.

MR. MILOSEVIC: [Interpretation]

Q. Professor Dobricanin, Mr. Saxon only pointed to one of the answer that I will deal with, but before that I would like to check a few other ³⁸³⁸³ things.

On page 1 of this of this response, in response to the third question, "What level of training was required from persons conducting the test," the answer is "the collection of gunpowder particles may only be done by forensic technicians who finished a course for forensic technicians, where they were specially trained.

"Only adequately qualified experts (physico-chemists, chemists, technologists...) who completed internal specialist training may check for gunpowder particles by applying the diphenylamine test." Are you aware of this, and was a standing practice?

A. Yes. This was done by experts in chemistry.

Q. All right. The last question was what kind of quality control was performed, and the answer is --

THE INTERPRETER: The interpreters are sorry but they cannot find the reference that is being made.

JUDGE ROBINSON: Mr. Milosevic, the terms -- that's on page 2, the one, two, three, fourth question on page 2 of the exhibit.

MR. MILOSEVIC: [Interpretation]

Q. Was that customary procedure, and is this correct what it says here, Professor?

A. Absolutely. This is the customary procedure of testing solutions. This is what our technicians do. And we have that which we got precisely for these purposes, and we used to conduct this on our own too. And this is done before every procedure for testing nitrates.

Q. All right, Professor. Please look at the next two questions and ³⁸³⁸⁴ answers. Could you just comment on that? The question here is: "What is the total number of tests conducted in Kosovo in 1998 and 1999?" With this paraffin glove, if I can call it that. And it says here -- let me just read the answer. And I assume that it is also correct, but I want you to compare it. "It is not possible to give a precise answer because the whole documentation was burned in the bombing of the Secretariat of the Interior building in Pristina. It is estimated that diphenylamine tests were carried out in over 2.000 cases."

So in your opinion, is this estimate also correct?

A. I think it's a correct estimate.

Q. All right, Professor. That will do. Thank you. The next question --

JUDGE BONOMY: It was -- just before this continues, have I wrongly understood that in fact the paraffin test was not the one used here, that the test used was a different one?

THE WITNESS: [Interpretation] Your Honour Judge Bonomy, I think that perhaps you misunderstood it. It is called the paraffin test. It is called the paraffin test because earlier, previously, the particles were taken off, were lifted with a melted paraffin. At that time it was called the paraffin test. Nowadays we call it both paraffin test and adhesive foil test. But nowadays we use diphenylamine with a certain acid. So these are two identical tests with two different names. It used to be known as the paraffin test but nowadays paraffin is not used any more because paraffin does not participate at all in the reaction needed in order to carry out this test. ³⁸³⁸⁵

JUDGE BONOMY: So this is actually describing the test which was carried out in this case.

THE WITNESS: [Interpretation] Yes.

JUDGE BONOMY: Thank you.

MR. MILOSEVIC: [Interpretation]

Q. Therefore, Professor, based on your -- what you know, this statement in this letter of the Ministry of Justice to the effect that this was carried out in over 2.000 cases coincides with your understanding of the situation?

A. Yes.

Q. The next question is how many of these tests were positive, and the replay states: "It is not able to give an answer for the above-mentioned reasons. It is estimated that the result was positive in about 50 per cent of the cases."

Professor, does that mean that in those cases where it was suspected that weapons were used and where paraffin test was conducted, in 50 per cent of those cases roughly it turned out that the result was positive; is that right?

A. No, that's not right. In 50 per cent of the cases or perhaps a bit less, it is probable that people did not use weapons, and this is why we obtained 50 per cent negative reactions to nitrates. And in cases where there were nitrate traces on the hands, the results were 50 per cent. However, this is a rough estimate. I don't think that this is entirely accurate.

Q. Professor, all right. I understand you. If I understood you ³⁸³⁸⁶ well, when it is believed that a person fired from a weapon, from a firearm, then the paraffin test is applied. And based on what is stated in the answer, in 50 per cent of the cases the suspicion proved to be right, that in 50 per cent of the cases the person did fire from a firearm whereas in 50 per cent of the cases the person did not, and the test was not positive; is that right?

A. Yes.

Q. All right. Now, in this particular case in Racak we have this figure 50 per cent. In view of the fact that you tested or, rather, that this test was used in all 40 cases, meaning hundred per cent of the persons that you examined, and the positive result was obtained in 37 of the cases, this means that in this particular case the positive result was obtained in 92.5 per cent of the samples, tested bodies; is that right?

A. Yes, that's right.

Q. Professor, last week, based on your experience in the use of this test, you said -- I'm not going to quote verbatim what you said, but you said something along the lines that based on your experience, in almost all of the cases where the test was positive, later on in the investigation it was confirmed via other tests used or via other analyses; is that right?

A. Yes.

JUDGE ROBINSON: Mr. Saxon.

MR. SAXON: I just -- my objection is simply that the -- I think it's important that the -- if the accused is going to cite from the ³⁸³⁸⁷ record that he needs to do it accurately. And my recollection of the testimony of this witness is that he was not aware of cases that tested positive which then turned out to be wrong or incorrect. However, at no time did he say what he based his -- his findings on, whether additional tests had been made or anything.

JUDGE ROBINSON: I don't have the record in front of me, but do I have a recollection of testimony in that direction. Mr. Milosevic, what is the question?

THE ACCUSED: [Interpretation] I asked Professor to confirm the following: We had this general situation concerning the application of the paraffin test based on the answers given by the Ministry of Justice where it says that in 50 per cent of the cases it was confirmed that nitrates were present. And here in Racak the percentage was 92.5 per cent. So that was the percentage of cases where the test was positive. I asked Professor to confirm or deny that, and he confirmed it. The next question says as follows: "Were the tests carried out in accordance with international standards, and if yes, what standards were these?" And then it says that the test was applied in accord and with the criteria described in all forensic textbooks in the world.

Q. Therefore, Professor, based on your experience, not only in Yugoslavia but also based on your professional contacts with experts from other countries, do you claim that this test is always conducted in the same way in accordance with the standards found in forensic textbooks?

A. Yes.

Q. The following question: "Were the tests on the dead people from ³⁸³⁸⁸ Racak consistent with other tests which were carried out at the time?" The answer was yes. "Were the dead persons tested in the same way as live ones?" "Yes."

So therefore there is no difference here?

A. Yes.

Q. And then they go on to say precisely how many persons were qualified to carry out the paraffin test in the SFRY in 1998 and 1999 and how many of such persons lived in Kosovo and in the area. The answer was 35, 35 forensic technicians and one permanent expert who was in the Secretariat of the Interior in Pristina.

Therefore, was this number of staff sufficient in order to carry out reliable tests which would be in accordance with forensic textbooks and which would be needed in order to apply the test properly?

A. Yes. That's quite a sufficient number.

Q. Very well. Professor, I would like to go back to another question now highlighted by Mr. Saxon, which can be found on page 1, and that is what kind of tests was conducted in order to establish the source of contamination? And then this says that in Racak, in the concrete situation in Racak there were no conditions to check, whether there was any contamination in the case of persons for whom the above test was positive. That is, there were no realistic conditions to try to establish contamination sources. And you said that this was stated correctly. And you basically confirmed everything else in this document. So this claim, does it challenge at all the conclusions reached by the paraffin tests? ³⁸³⁸⁹

A. No.

Q. Thank you, Professor. That's quite enough for this document. Now I would like you to take a look at the document that you already commented upon, also the document offered into evidence by Mr. Saxon, which is an example out of this binder for Racak, which is the dactyloscopic identification of ridge lines. I hope that you have that before you, Professor.

A. Not -- not yet.

JUDGE ROBINSON: Yes, Mr. Milosevic. You may proceed.

MR. MILOSEVIC: [Interpretation]

Q. Professor, please tell us, is this a form, a pre-printed form that has been printed in advance and contains certain blanks?

A. Yes, and it has been copied.

Q. All right. So the criminal technician filling in the blanks will basically take this form, pre-printed form, and simply fill in data pertaining to the particular case that he's investigating.

A. Yes.

Q. What created confusion here is that in the beginning, it states the 18th of January, and I would like to ask you the following: Since it says here "On the," and then blank and he typed in the 18th of January, and then it says, "Forensic Technician," and then blank and he inserted his name, Sasa Bozanic. And it says, "Conducted a forensic examination of an incident scene following the discovery of 40 unidentified bodies in Racak."

Is it clear, based on this document, that the 18th of January ^{38390 BLANK PAGE 38391} pertains to the date when the bodies were found in Racak in the mosque?

MR. SAXON: Objection. Is it clear, Your Honour? It sounds a bit leading to me.

JUDGE ROBINSON: Yes. Mr. Milosevic, we've been through this several times. Questions beginning is it clear, et cetera, are usually leading questions. But I wonder why you're bothering with this, because I thought an explanation was given which was quite satisfactory.

JUDGE BONOMY: Can I ask one question about this. Do you know the technician Sasa Bozanic?

THE WITNESS: [Interpretation] I think I remember the name but not the face. I knew some of the technicians.

JUDGE BONOMY: Was he at the mosque in Racak?

THE WITNESS: [Interpretation] No.

JUDGE BONOMY: Thank you.

THE WITNESS: [Interpretation] No. No, he wasn't.

THE INTERPRETER: Microphone, please.

MR. MILOSEVIC: [Interpretation]

Q. What is stated in this document, let us make it as brief as possible. We also have the enclosure with fingerprints and the dates and so on.

Is it unequivocal as to the date when the fingerprinting was carried out?

JUDGE ROBINSON: Mr. Milosevic, again, "Is it unequivocal," that's suggesting the answer.

THE ACCUSED: [Interpretation] Very well. ³⁸³⁹²

MR. MILOSEVIC: [Interpretation]

Q. Professor, based on this document, can one establish for a fact exactly when the fingerprinting was carried out?

A. Yes.

Q. On what date?

A. The 20th of January, 1999.

Q. Is that stated in the form, and is it also stated on the fiche with fingerprints?

A. In both documents, in both places.

JUDGE BONOMY: What is it then, Professor, you claim that Mr. Bozanic says he was doing on the 18th of January?

THE WITNESS: [Interpretation] This is just a major misunderstanding. When he was filling out the text, he probably wasn't reading the form. He simply inserted his name and the date when the bodies were found in Racak. I'm tell the truth. Mr. Sasa Bozanic was not present in Racak, and no fingerprints were taken in Racak.

JUDGE KWON: Dr. Dobricanin, are you able to answer the question who wrote this document? Is it Mr. Bozanic or Perunovic and Cirkovic who appear at the bottom of the document? According to the document, it seems to me that it was Bozanic that fixed an impression of dermal ridges, and those two people, there is a Perunovic and Cirkovic, made the findings on 20th of January. Could you assist me on this matter?

THE WITNESS: [Interpretation] That's right, Your Honour. Bozanic took the fingerprints, lifted them off the bodies, and the other two, Zoran Perunovic is a chemical expert. The other two performed the ³⁸³⁹³ analysis. These are people trained to conduct dactyloscopy and they carried out the identification of this person based on the previous information that existed in the SUP, the card that existed there, plus using the results obtained by dactyloscopy.

JUDGE KWON: So it is those two chemical experts who wrote this document.

THE WITNESS: [Interpretation] No, not chemists. Not chemists. Persons trained to perform dactyloscopy and identification. I made a mistake. The chemical experts did another analysis which is the paraffin test.

JUDGE KWON: So this Perunovic and Cirkovic wrote this document.

THE WITNESS: [Interpretation] They filled in and wrote this document.

JUDGE KWON: Thank you.

JUDGE ROBINSON: Yes. Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. Are those the persons who are supposed to carry out the identification?

A. Yes. They are experienced crime technicians. Zoran Perunovic has a bachelor of science degree, and they were the ones who mostly worked on identification of dermal ridge prints.

Q. What is stated here in the findings signed by them, that the dactyloscopy was carried out on the 20th of January, 1999 and that this is based on this card where by hand certain information is filled in, Racak, name, last name, and it says the date of registration the 20th of ³⁸³⁹⁴ January, 1999.

A. Yes. This was filled in by Sasa Bozanic.

Q. All right. So he filled in this form on the date when he took fingerprints, and then he spent it to them in order to carry out the identification. Was that the procedure carried out?

A. Yes, that's the entire procedure.

MR. SAXON: Your Honour, can some foundation be laid as to how this witness knows that Sasa Bozanic filled in the form showing the fingerprints and dated the 20th of January, 1999?

JUDGE BONOMY: This is actually a typewritten form, it would appear.

MR. SAXON: It would appear that, Your Honour. But the date -- it's a typewritten form although the date appears obviously written in hand.

THE INTERPRETER: Could Mr. Saxon please speak into the microphone.

MR. SAXON: It's a typewritten form but the date was written by someone in hand but --

JUDGE BONOMY: It's typed in on the one I have. Do you have one that shows it handwritten? Everything's typed in, except the signatures of the two examining -- the fingerprint experts.

MR. SAXON: I'm looking --

JUDGE ROBINSON: He's looking at the back.

MR. SAXON: I'm looking at the fingerprints themselves, Your Honour. You see a typewritten form, and the fifth line down we see the ³⁸³⁹⁵ date written by someone's hand. That's what I was referring to.

JUDGE KWON: The Chamber was referring to this form.

MR. SAXON: Well, if you look at the B/C/S.

JUDGE KWON: So I have a doubt whether Mr. Bozanic typed this in himself, but let's move on.

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE INTERPRETER: Could Mr. Milosevic please be asked to speak into the microphone. Thank you.

MR. MILOSEVIC: [Interpretation]

Q. Now, since you haven't got the translation that is written in hand, it's a typewritten one, could replace the form on the overhead projector so we could have a look at what it actually looks like with the ten fingerprints. All the data there has been introduced by hand, all handwritten entries.

JUDGE KWON: It is translated.

MR. MILOSEVIC: [Interpretation]

Q. Just so we can see it. All ten fingers, please. Just to have a look at the original. Is that what you see on the overhead projector, Professor?

A. Yes.

Q. So as we can see, all these columns have been filled in by hand, the name the surname, the registration number, the date of registration, which is the 20th of January, 1999. The 20th of January, 1999.

JUDGE ROBINSON: Yes. What is the question?

MR. MILOSEVIC: [Interpretation] ³⁸³⁹⁶

Q. Professor, we have a number under the right index finger. Does that mean that it was the only fingerprint that was on the ID card and on the basis of that they were able to establish, on the basis of that one fingerprint, who the person was, the identification?

A. Yes.

Q. Yes, Professor.

A. That is true. That is correct.

Q. Now, with respect to the order issued by Judge Danica Marinkovic, which Mr. Saxon tendered --

JUDGE BONOMY: Just one thing before you move on. Mr. Saxon, does the date the 18th appear on all of these 24 forms?

MR. SAXON: All 24, Your Honour.

JUDGE BONOMY: Thank you.

MR. SAXON: Every single one.

JUDGE BONOMY: Thank you.

THE ACCUSED: [Interpretation] Very well. Now, as soon as I don't have all the 24 forms myself, I should like to ask the witness to take a look and see whether the date when the prints were taken in all 24 forms, does it appear as being the 20th of January as well, or does the 18th figure anywhere? Because it's quite clear what we're dealing with. It was the 18th when the bodies were found, and the 20th is the other date if the same dates appear in all 24 forms.

JUDGE BONOMY: Can you confirm that, Mr. Saxon?

MR. SAXON: One moment, Your Honour. Body number 4, Ljutfi ³⁸³⁹⁷ Biljali, the date on the form is 20 January. The date on the fingerprint form in the original is 20 January. 18th of January on the first form regarding the work of Sasa Bozanic.

Body Racak number 5 belonging to Murtez Imeri, the -- on the fingerprints themselves it's handwritten 20 January, 1999, 18th of January on the first page dealing with the work of Sasa Bozanic in the mosque.

Body Racak number 1, Banush Kameri, who is also Banush Azem. We see the form looks a little bit different, and I am frankly struggling to see a date here on this particular form. I don't know if the witness would like to --

JUDGE ROBINSON: They should be passed to the witness. As you look at them, just pass them over to the witness.

MR. SAXON: Shall we pass them to the witness?

JUDGE ROBINSON: Yes, those three you've looked at already.

MR. SAXON: I've lost my paper clip but I'll keep this in order. There is one more here. This one here, I am not finding any date on the particular fingerprint form. The work of Mr. Bozanic on the first page 18th of January, and then it says below, "examined by dactyloscopy examined on the 20th of January."

Do you wish me to continue?

JUDGE ROBINSON: Well, it's going to be a laborious exercise, Mr. Milosevic.

[Trial Chamber confers]

JUDGE ROBINSON: Let's proceed this way: Mr. Saxon, continue ³⁸³⁹⁸ looking at them, and then we can return to this later, Mr. Milosevic.

MR. SAXON: All right, Your Honour.

JUDGE ROBINSON: Not now. Not now. Mr. Milosevic will continue with his re-examination, and we'll return to this --

MR. SAXON: If I can simply point out for everyone's information, I just happened to see one fingerprint form where there appears to be no date written on it at all.

JUDGE ROBINSON: Yes, but it does have the 20th at the front.

MR. SAXON: On the first form it does, Your Honour.

JUDGE KWON: Or you could update the aide-memoire during the break.

MR. SAXON: As I'm in my aide-memoire period, it seems, I will try to do that, Your Honour.

JUDGE ROBINSON: That might be useful. So we'll come back to this, Mr. Milosevic. We haven't forgotten it, but let us proceed.

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

MR. MILOSEVIC: [Interpretation]

Q. Professor Dobricanin, now, with respect to the order issued by Judge Danica Marinkovic, which states and I hope you have it before you: "I order that in cooperation with the forensic experts you should perform the following: Take the foil from every individual; obtain gunpowder analysis to establish the identity of the bodies; photograph -- photograph and to record on VHS tape each body separately and let that be submitted to the Court; to perform the expertise of each missile and foreign bodies found on the body to establish what kind of missile and ³⁸³⁹⁹ weapon it's about."

THE INTERPRETER: Could the speaker please be asked to slow down.

JUDGE ROBINSON: Mr. Milosevic, the interpreters are asking you to slow down.

MR. MILOSEVIC: [Interpretation]

Q. And it says, "As well as to undertake all other necessary works at your discretion, if it deems necessary during the performance of above-mentioned works, tasks."

Professor Dobricanin, this order by Judge Marinkovic, does it contain all the elements necessary, everything that is needed to be done in a procedure of this kind, and is it the customary, is it the usual way of issuing orders by a judge as to what should be done?

A. Yes.

Q. Now, this order, does it imply in that last line, that last point when it says "As well as to undertake all other necessary measures at your discretion if you deem necessary," et cetera, et cetera, for the previous things to be conducted, that covers everything, that nothing must be omitted [Realtime transcript read in error: "admitted"] which could be considered important for an investigation?

A. Yes. This is a very well-worded order.

Q. Where it says that it should be submitted to Forensic technician section Pristina and ISM Pristina, does that --

JUDGE ROBINSON: Yes.

MR. SAXON: I apologise for interrupting the accused but I think I've just seen an error in the transcript and I think simply the error ³⁸⁴⁰⁰ needs to be clear.

THE INTERPRETER: The interpreter said omitted.

MR. SAXON: That's what I thought was the error. Thank you.

JUDGE ROBINSON: Thank you. Yes.

MR. MILOSEVIC: [Interpretation]

Q. This order, then, is addressed to the police crime technical section, and the ISM is the Institute of Forensic Medicine of Pristina; is that right?

A. Yes, that is right.

Q. Thank you. Mr. Kwon asked you a question -- or, rather, asked Mr. Saxon a question with respect to the photographs that Mr. Saxon showed.

Now, were those the photographs taken on the 15th and 16th of January? Mr. Saxon's answer was yes.

Since I'm not aware of anybody taking any photographs on the 15th of January or, rather, as far as I know the photographs were made by the team with Walker only on the 16th of January, do you happen to know, are you aware of anybody taking photographs on the 15th of January?

A. No, I'm not aware of that at all.

Q. So you say you don't know that any photographs were taken on the 15th of January; is that right?

A. That's right. No, I don't.

Q. The photographs that were taken on the 16th of January were shown to you here in court. Now, do you know that the investigating judge, Mrs. Danica Marinkovic, had already on the 15th of January arrived at ³⁸⁴⁰¹ Racak but was then sent away by gunfire and was not able to carry out an on-site investigation?

A. Yes, I am aware of that.

Q. Is it incontestable, then, that --

MR. SAXON: Objection.

JUDGE ROBINSON: Mr. Milosevic, "Is it clear," "is it unequivocal," is it uncontestable" are leading.

THE ACCUSED: [Interpretation] Very well.

MR. MILOSEVIC: [Interpretation]

Q. As I was saying, do you -- were you aware that Danica Marinkovic was in Racak on the 15th of January but had to leave because of the fire that she was exposed to along with her team?

A. Yes, I do know about that.

Q. Now, do you also know that on the 16th of January, precisely at the time when Walker was in Racak, she attempted to reach Racak herself and that she was prevented in doing so by gunfire?

A. I am aware of that, too, yes.

Q. Did you on the 17th of January, when you joined Danica Marinkovic, also attempt to reach Racak, to enter Racak together with the other members of the team but -- and you were very close to Racak, could see the village from a distance, but that you were once again prevented from entering because of firing and had to go back to return? Is that right?

A. Yes.

Q. On the 18th of January when you finally reached Racak and -- were ³⁸⁴⁰² you shot at?

A. Yes.

Q. Judge Marinkovic testified here and said that on the 15th, she saw weapons in Racak that had remained. You were shown weapons by the police. You saw trenches in Racak; is that right?

A. Yes.

Q. You saw bunkers in Racak; is that right?

A. Yes.

Q. You, therefore, had knowledge and awareness of the fact that there was shooting in Racak on the 15th --

MR. SAXON: Objection.

JUDGE ROBINSON: Mr. Milosevic -- well, he has already given that evidence.

THE ACCUSED: [Interpretation] Well, Mr. Robinson, as for the most part attempts are made here to explain that this was killing and not a conflict, these are facts which had to be well known to one and all, and now I'm asking the witness this. I'm asking him whether it was, therefore, common knowledge that there was shooting in Racak both on the 15th and on the 16th and on the 17th and indeed on the 18th, all four days.

THE WITNESS: [Interpretation] Yes.

MR. MILOSEVIC: [Interpretation]

Q. Can you -- do you assume that some unarmed civilians did all the shooting during those days?

A. Well, I think it's quite clear that somebody who was in the ³⁸⁴⁰³ village and armed was doing the shooting.

Q. You performed the paraffin test which showed that on 37 bodies that they had used arm -- firearms?

JUDGE ROBINSON: Mr. Saxon.

MR. SAXON: Well, it's simply just to keep the record clear. The question was put with the pronoun "you." And I think it's simply quite clear that Professor Dobricanin has been clear that he personally did not perform these tests.

JUDGE ROBINSON: Yes. Isn't that so, Professor?

THE ACCUSED: [Interpretation] That's not being challenged, Mr. Robinson, at all. When I say you, I don't mean him personally. I mean the experts who performed the task, and the Professor confirmed that.

MR. MILOSEVIC: [Interpretation]

Q. Now, since it was common knowledge that there were trenches and bunkers and firing in those days at Racak, did any forensic expert -- were they able to say -- to write the sentence that I'm going to quote in his report, like the sentence in Mrs. Ranta's report where it says there were no indications of this involving people who would be anything else but unarmed civilians.

THE INTERPRETER: The interpreters note that they don't have the actual wording of that sentence before them. Thank you.

JUDGE ROBINSON: [Previous translation continues] ... that question, Mr. Milosevic.

THE ACCUSED: [Interpretation] I don't understand, Mr. Robinson.

JUDGE ROBINSON: That's a matter which we will determine ³⁸⁴⁰⁴ ultimately.

THE ACCUSED: [Interpretation] Very well.

MR. MILOSEVIC: [Interpretation]

Q. So, Professor, in tab 11, which was sent to the journalists on the 17th of March, 1999, it is almost -- not almost but in fact it's two months, 15th of January, 17th of March, and two days after the event, post festum.

Did the Finnish team with Mrs. Ranta have any knowledge about the fact that the so-called paraffin test had been performed which she, on page 5, comments and says that it is not reliable?

A. We informed them about that when they arrived.

Q. And when did they arrive?

A. On the 22nd ever January.

Q. Right. The 22nd of January is when they arrived and when they were informed; is that right?

A. Yes.

Q. Now, on the 17th of March it is claimed that there were no indications which would confirm -- her sentence is a little unwieldy. She didn't say that they were unarmed citizens, she said there were no indications that this was a case of people who were anything else but unarmed civilians. That's the way she puts it.

A. Yes. And that was the subject we contested.

Q. Very well. Now, could you say something -- could that kind of thing be said from a professional aspect?

A. No. ³⁸⁴⁰⁵

JUDGE ROBINSON: No. I don't see how the witness can comment on that.

THE ACCUSED: [Interpretation] Well, the witness is a forensic expert. He bears in mind all the indications, because indications are mentioned here. There are no indications. As a forensic expert himself, he can answer the question of whether we can -- one could say there were no indications. If he testifies that there were indeed indications and many indications at that, so that this is completely conflicting with the available facts, an assertion of this kind, saying that there were no indications.

JUDGE ROBINSON: You could ask him --

THE ACCUSED: [Interpretation] The witness claims there were.

JUDGE ROBINSON: You could ask him what indications there were --

THE ACCUSED: [Interpretation] The witness claims there were.

JUDGE ROBINSON: That there were unarmed civilians.

MR. SAXON: And before we hear the witnesses answer, I think it also would be helpful to let the witness clarify whether he is answering in his capacity as an expert in forensic medicine or in his capacity as a citizen when he is referring to indications or assumptions, because throughout his testimony since last week he has told us that on certain matters he's testifying as an expert and in other matters he's speaking as a common citizen.

JUDGE ROBINSON: And what arises from the answer that he gives?

MR. SAXON: One thing that arises would be the amount of weight that the Chamber gives to his response. ³⁸⁴⁰⁶

JUDGE ROBINSON: But isn't that a matter that we'll have to determine?

MR. SAXON: Absolutely, Your Honour, but you -- I don't see how the Trial Chamber will be in a position to determine it unless the witness clearly says that he is providing an answer in this case as an expert or in his capacity as a human being, or as a citizen.

JUDGE ROBINSON: Speaking for myself, Mr. Saxon, I find that a very tedious way to go about the work. I think we'll have to make up our minds when he's testifying as an expert. We have said -- we said at the very beginning that if you were prejudiced in any way by the lateness of the notification in relation to his evidence as an expert that we would allow you to make an application.

We'll have to decide what evidence comes in from this witness as an expert and what is otherwise. I don't see that it is helpful to ask the witness in relation to every answer that he gives whether he's testifying as an expert or not.

Yes, Mr. Milosevic. Yes.

MR. MILOSEVIC: [Interpretation]

Q. Professor Dobricanin, I'm going to follow Mr. Robinson's suggestion. He suggested that I ask you whether there were any indications.

Now, before I put that question to you, please bear in mind that I'm asking you as a forensic expert. So in relation to this sentence, there were no indications that these were persons who would be anything but unarmed civilians. Professor, were there any indication that is ³⁸⁴⁰⁷ these were not unarmed civilians but persons who were armed and who were shooting? Were there any indications and, if so, what were they?

A. I would like to single out only two out of all the indicators. I've already spoken about this over the pass few days. First of all, it is not customary ever in the street when all of this was going on, and that is the early morning hours, to have so many people in the street wearing several layers of clothing. When I say that, I'm saying that this was truly clothing that was prepared for a longer stay outdoors.

Secondly, the traces of nitrate on their hands which indicate but not with any certainty that firearms were used and also the distribution pattern of the traces indicates that they were armed and that they were shooting from firearms.

These are two indicators which guide me as a forensic medical expert to believe that there was a struggle between the police and these people who were firing in Racak or, rather, that they were firing, that they were shooting. Were they were shooting, I don't know.

Q. Thank you, Professor. Mr. Saxon gave some information here about casings and bullets found in November 1999 in Racak. You recall this information that he presented here?

A. Yes, I do.

Q. Tell us now, Professor, on the basis of the fact that in November 1999, that is to say ten months after the event concerned, some bullets were found, casings on one side and bullets on the other. I don't want to waste any time to look for the sketch that Mr. Saxon showed you. Can ^{38408 BLANK PAGE 38409} this lead to the conclusion that some kind of execution had taken place there?

A. No. No.

Q. Now, if we were just to assume that on the location that was marked there casings were found and that bullets were really found in the place that was marked as such, the exit/entry wounds and their bullet-path directions, could they confirm that it was execution that took place from the place where the casings were to the place where the persons were?

A. I already explained today that the sketch leads me to believe that the bullet direction would be in -- on one level or they would move from forward to the back or from the back to the front, but certainly not from the top to the bottom, because the alleged pattern of the bodies indicates only this possibility.

Q. Even if the facts were correct in relation to the location of the casings and the location of the bullets, that would not match the directions from which the firing came; is that what you're saying?

A. Yes, that's right.

MR. SAXON: That's another leading question, Your Honour.

JUDGE ROBINSON: Yes. That's leading, Mr. Milosevic.

THE ACCUSED: [Interpretation] I just asked the professor whether I understood him correctly. If we have this assumption, if it would be correct where the bullets were and where the casings were, would it be possible to have these several directions of the exit/entry lines?

A. There can be no comparison. These bullet-path directions that we ³⁸⁴¹⁰ found during the autopsy would not fit into the sketch I saw today.

JUDGE BONOMY: Can I -- why did you not say that earlier when you were asked about it by Mr. Saxon if it's today's sketch that you're talking about, not the one that we saw yesterday?

THE WITNESS: [Interpretation] Your Honour, I did say it today. Precisely when Mr. Saxon was putting his questions to me. I said that the possible bullet-path directions are only possible on a particular plane that we are talking about and that it is impossible to have the paths going from the top to the bottom, to the left to the right if we look at the position of the bodies and the position of the pile of casings.

MR. SAXON: Just for the record, Your Honour, to the best of my recollection I did not show this witness any sketches of the bullet paths this morning. Yesterday I did. Today I did not.

JUDGE BONOMY: Yes. Thank you.

JUDGE ROBINSON: But I'm not sure whether that particular question was put.

MR. SAXON: It was put, Your Honour, in this particular context: The question roughly was, assuming the facts were correct, that a bullet was found in this position in the soil underneath a position where this particular body was found, could one draw a conclusion that the person was shot where they lay. That's how I put the question, Your Honour.

JUDGE ROBINSON: This is about the bullet path. It's a different question.

MR. SAXON: At no point in the response was it about bullet ³⁸⁴¹¹ paths, Your Honour, that I can recall. That's my point.

JUDGE ROBINSON: That's why I say that particular question was not put.

JUDGE BONOMY: What concerns me is as far as today's evidence is concerned - I'm ignoring for the moment yesterday's - as far as today's evidence is concerned, the witness throughout his evidence has said, "I can draw no conclusions one way or another from paper, from what is presented to me on paper." And I'm concerned now that he is trying to draw conclusions from what is presented to him on paper.

MR. KAY: I think the transcript needs to be looked at because there was a look at the sketches of the bullet marks on two of the victims in the ravine, and the witness made a comment about the angle of the marks on the body.

JUDGE ROBINSON: Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. It seems that we haven't clarified this sufficiently. So let us proceed with the assumption presented by Mr. Saxon. Did you understand that the place where the casings were found is the assumed firing position, from where the firing took place?

A. This was a hypothetical question put by the Prosecutor during the course of today's questioning. I think that this is just a question of a great misunderstanding. I did not talk about drawn bullet-path directions. I talked about the place where the dots were where allegedly there were scattered casings. And on the small hill were the bodies that had lay there previously. ³⁸⁴¹² I said that from that direction, which was semi-circular, if the firing came from there, all the directions would practically be parallel. So the wounds would be here. Or if the persons were facing the firing persons, then they would be in the chest or in the abdomen, the wounds. Or if they were turned to them in the back, then the bullet paths would go from the back and perhaps a bit upward. I emphasise that. However, during the autopsy, we found -- we found bullet-path directions from all sides. So it wasn't only from one side. There were injuries from top to the bottom and from the bottom to the top and laterally, and on the basis of the sketch that was shown today, I said that that was impossible.

I did not talk about the sketch from my testimony yesterday. I talked about the sketch that Mr. Saxon showed me today, that I saw here on the screen. But I made this reservation: I said that for me, this cannot be evidence of anything for me as a doctor. But even if it were so, that that was simply impossible. So that is my answer. I think that we understand each other now. There was a bit of a misunderstanding, wasn't there, I think.

JUDGE ROBINSON: Yes, Mr. Milosevic. Yes.

JUDGE KWON: And just for the record, I remember that the witness had answered to my question referring to bullet paths, bottom of page 7, leading to page 8.

JUDGE ROBINSON: Proceed, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. Professor, Mr. Saxon questioned you at length about what you ³⁸⁴¹³ wore. You gave these explanations. I am not going to examine you about that again. But since you had a jacket on, did you dress expecting that in the months of January you would be spending some time outdoors?

A. I dressed so that I would not feel cold when I'm out in the field, and that is normal dressing for the month of January. I had a jacket and perhaps I had a sweater and a shirt. I'm not sure now.

Q. He wanted to compare that to the multi-layered clothing that you found during the autopsy. Your conclusions in relation to these multiple layers of clothing, were they not that these persons did that or, rather, had these multiple layers of clothing because they were staying outdoors for a long time?

A. Only because of that.

Q. Could these persons have had multiple layers of clothing if they were sitting in their homes by the fire?

A. There would be no need to do that.

Q. If you entered a house where there was some kind of heating, any kind, even an ordinary fire in the middle of the room, would I have kept your jacket on or would you have taken it off?

A. I always take my jacket off when I enter a house where there is heating, where it's warm.

Q. Thank you, Professor. Professor --

JUDGE ROBINSON: Mr. Milosevic, we are at the time now for the break.

We will take a break for 20 minutes.

--- Recess taken at 12.16 p.m. ³⁸⁴¹⁴

--- On resuming at 12.41 p.m.

JUDGE ROBINSON: Mr. Saxon, did you complete your labour during the break?

MR. SAXON: I did not complete it, Your Honour. I'm about halfway through, it and I'm continuing as we speak.

JUDGE ROBINSON: We will all be indebted to you at the end. Mr. Milosevic, yes.

THE INTERPRETER: Microphone, please.

MR. MILOSEVIC: [Interpretation]

Q. Professor Dobricanin, Judge Marinkovic was forced by this shooting to leave Racak on the 15th. On the following day, on the 16th, the chief of mission William Walker arrived there with his group. Was it possible to manipulate the bodies in between that time from when Judge Marinkovic was forced to leave due to firing until Walker arrived with his group on the 16th?

MR. SAXON: [Previous translation continues] ... Your Honour.

JUDGE ROBINSON: Yes.

MR. SAXON: It's speculative, Your Honour.

JUDGE ROBINSON: It's asking the witness to speculate. Ask the questions which he can answer as a matter of fact or relying on his expertise.

MR. MILOSEVIC: [Interpretation]

Q. Professor, based on your expertise or based on your knowledge of facts, can you tell us whether it was possible to manipulate the bodies in the meantime between the 15th and the 16th? ³⁸⁴¹⁵

MR. SAXON: [Previous translation continues] ...

JUDGE ROBINSON: No. Those are matters you can properly address us on in your final address. The witness can't help you very much in that area.

THE ACCUSED: [Interpretation] All right. I will remind the witness that he has explained, as a forensic expert, that it was impossible for the hats to remain on the heads of those people who had fallen down. Skull caps. Some of these people were even shot.

MR. MILOSEVIC: [Interpretation]

Q. Do you remember, that Professor Dobricanin?

A. Yes. And I explained that twice already.

Q. All right. So somebody had to subsequently put on those caps -- on. Is that your expert conclusion?

A. This is a conclusion I draw based on my experience.

JUDGE ROBINSON: Mr. Saxon, yes.

MR. SAXON: It's leading. It's speculation, Your Honour.

JUDGE ROBINSON: Yes. I think you should leave all those matters to us, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. Professor Dobricanin, did you say indeed that it was impossible for a cap to remain on the head after an injury of that nature?

A. Yes.

Q. Does that point to the fact that it was subsequently put on, the cap?

A. Yes. ³⁸⁴¹⁶

MR. SAXON: Objection.

JUDGE ROBINSON: Mr. Milosevic, we're moving into an area of diminishing returns. Diminishing returns are setting in. If you do not have any proper questions of the witness, then we'll bring the re-examination to an end.

I think you misunderstand, in any event, the purpose of re-examination.

THE ACCUSED: [Interpretation] Mr. Robinson, I think I understand that fully, but in the cross-examination of Mr. Saxon, Professor Dobricanin stated that it was possible to tamper with the bodies, to manipulate them, because they were unable to conduct any examination all the way up until the 18th. Therefore, I attempted to illustrate that with the specific example and for him to tell us whether it was possible that the bodies were tampered with. So this has to do with the cross-examination.

JUDGE ROBINSON: Professor, is it your view that the bodies might have been tampered with?

THE WITNESS: [Interpretation] Your Honour, Judge Robinson, tampering with bodies was quite possible. Yes.

JUDGE ROBINSON: Why do you say that?

THE WITNESS: [Interpretation] Based on all the information, based on all facts noticed, the skull caps, ladies in black inside the mosque, and several other elements I have mentioned during my testimony.

JUDGE ROBINSON: All right. Thank you. Yes, Mr. Milosevic. ³⁸⁴¹⁷

MR. MILOSEVIC: [Interpretation]

Q. Professor Dobricanin, you were shown here a video footage for which -- Mr. Saxon said that it was footage of a house on fire. Based on what I could see, it wasn't really a house but, rather, a shed shouldering. And you were shown this due to the fact -- due to the statement that you gave that there was no shelling. I will not ask for this footage to be shown again, but please tell us this: Were you able to see in that video clip any indicators of there being shelling prior to that?

A. That was obviously a house on fire. There was nothing specific about that. That could have been a house in a Serb village or in the Albanian village. There is nothing to show that that was a house in the village of Racak. I didn't see anything resembling that when I was in Racak myself.

Q. My question was did you notice any marks of shelling in that footage.

A. On the left side, on the left wall of the house I didn't see anything, and the picture was quite blurred as well.

Q. Mr. Saxon also showed you the footage of the weapons uncovered in Racak, and as he himself said, there were many weapons there. In view of the fact that there was shooting in Racak even after those weapons were collected, meaning on the 15th and the 16th and the 17th and the 18th, could we conclude that there was much -- that there were much more weapons there than the police managed to seize on that occasion?

A. Yes. ³⁸⁴¹⁸

Q. Mr. Saxon asked you something about fingerprinting the weapons. Please tell us briefly. Danica Marinkovic came on the 15th when the weapons were still in Racak and she was forced to leave. Is it customary for the fingerprinting to -- of weapons to be carried out right there at the site or later on once the weapons are taken away?

A. There is a procedure regulating how the weapons are to be collected in order to avoid contamination with new fingerprints. Otherwise, this test is not done at the site but, rather, in laboratories.

Q. In view of the fact that that was quite an unrestful period, sort of a state of emergency, would it have been --

JUDGE ROBINSON: Mr. Saxon.

MR. SAXON: "In view of the fact" sounds like we're getting ready for another leading question.

JUDGE ROBINSON: Well, let us hear the rest of it. Let's hear the rest of the question.

MR. MILOSEVIC: [Interpretation]

Q. Professor Dobricanin, was it typical, was it a regular procedure in cases where there was a conflict between the police on the one hand and the armed terrorists on the other hand or members of the KLA to take prints on the weapons discovered there?

A. As far as I can remember that wasn't the job of the people working in my institute. That was done only in the cases where we had terrorists who were arrested with the weapons in the course of the combat. Then fingerprinting would be done, both of them and the weapons. ³⁸⁴¹⁹ Otherwise, that was not a typical procedure as far as I know.

JUDGE BONOMY: Can I ask you, that does seem rather odd. In a case like this where you have 40 bodies and you are to take fingerprints from every one of these bodies and there's a dispute about whether this was a massacre or a combat and there are weapons, does it not seem to you absolutely obvious to carry out a comparison between the fingerprints on the weapons and the fingerprints of the deceased people?

THE WITNESS: [Interpretation] Your Honour Judge Bonomy, I've stated previously that I'm not aware whether the weapons were fingerprinted. It is possible that it was done, but this is outside of our regular work, and I normally never received such results and was not interested in them.

JUDGE ROBINSON: Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. Professor Dobricanin, Mr. Saxon asked you whether Judge Marinkovic was able to interview witnesses. Now, I'm asking you this in relation to that: Once you managed to enter Racak on the 18th, was there a single witness there who could have given a statement?

A. On that day in Racak I did not see a single person.

Q. Thank you. Professor, yesterday Mr. Saxon showed you a photograph of a boy killed in Racak. Did you have occasion to listen to the testimony of the German journalist Bo Adam who investigated the circumstances under which this boy was killed and made interviews with his family?

A. I heard it only partially because I had to leave my house when ³⁸⁴²⁰ the testimony was broadcast.

Q. So did you see that the family actually explained that the boy had been killed by a bullet fired from the other side of the valley as the family fled?

A. The boy had only one wound which -- and the bullet could have been fired from anywhere. It is likely that the boy was on a slope, was on an uphill terrain.

Q. All right, Professor. You were shown a number of photographs here depicting several bodies, especially in the gully, and you were constantly asked to see that there was a certain number, several bodies and so on. Could you please very briefly tell us what is the procedure of establishing identity of persons shown in such photographs?

A. I personally would never take it upon myself to identify bodies based on such photographs where the bodies are in such position that you can't really see much. This was done in a very approximate manner that has no value in forensic medicine.

Q. Thank you, Professor. Just a few more general questions which are related to what Mr. Saxon asked you.

In the beginning of the cross-examination, you stated that you had no problems with Albanians after having lived in Kosovo and Metohija for many years.

A. I never had any problems.

Q. Were you aware whether -- do you know whether Serbs and Montenegrins in Kosovo had any problems caused by the behaviour of Albanian separatists? ³⁸⁴²¹

A. I know that based on my work because I --

MR. SAXON: Your Honour --

THE WITNESS: [Interpretation] -- I worked --

JUDGE ROBINSON: Yes, Mr. Saxon.

MR. SAXON: This certainly was not a topic that I raised during my cross-examination.

JUDGE ROBINSON: The ruling is that this doesn't arise, Mr. Milosevic, from cross-examination, so ask another question.

THE ACCUSED: [Interpretation] I noted down the answer of Professor Dobricanin given yesterday to Mr. Saxon where he stated that he personally had no problems with the Albanians. This is why I asked him whether he knew whether Serbs and Montenegrins in Kosovo and Metohija did have problems with Albanian separatists. This occurred during cross-examination. This is the answer he gave in the course of cross-examination, and I assume that he himself remembers that.

THE WITNESS: [Interpretation] Yes.

JUDGE ROBINSON: Mr. Saxon.

[Trial Chamber confers]

JUDGE ROBINSON: I think we should move on, Mr. Milosevic, to another question. You're already spending far too long in this re-examination.

THE ACCUSED: [Interpretation] Thank you, Mr. Robinson. I have no further questions stemming from the cross-examination except the one that I put you earlier and which had to do with what Mr. Saxon was verifying, namely the exact date when the fingerprints were taken and whether it is ³⁸⁴²² indicated in all documents that this was done after the 18th.

JUDGE ROBINSON: Mr. Saxon, how far --

THE ACCUSED: [Interpretation] -- about that date.

JUDGE ROBINSON: -- have you reached?

MR. SAXON: I have simply -- sorry, Your Honour. I have finished my aide-memoire. It needs to be printed out, copies made and brought down here. I assume that will take a few minutes. My printer that I'm connected to is on the third floor of the building. I can tell the Chamber that about half of the -- half of the fingerprint cards bear no date at all and the other half bear the date 20 January.

JUDGE ROBINSON: Bear no date at all at the very back, but they nonetheless have the 20th.

MR. SAXON: Yes, Your Honour.

JUDGE ROBINSON: On the bottom part the first page.

MR. SAXON: Yes, Your Honour.

JUDGE ROBINSON: And how soon could you have the aide-memoire?

MR. SAXON: As soon as I hit print, Your Honour, then we can ask a staff -- well, I will send it to Ms. Dicklich and she will get it printed out. I assume it will take just a few minutes.

JUDGE KWON: We can deal with the admissibility of tab 5, which we reserved, while we're waiting. But I don't remember that the content of tab 5 was put to the witness except for the picture. So if that is the intention of the accused there would be no problem.

MR. SAXON: Your Honour, I'm sorry, I stopped my cross-examination before I had a chance to deal with tab 5 just due to ³⁸⁴²³ the fact that so much time was passing. So I did not address it with the witness.

I just want to bring to the Chamber's attention that tab 5 as presented to this witness provides no source of where it comes from. However, the Prosecution has found this material on a website called Srpska Mreza, Serbian network, and I simply wanted to bring that to the Trial Chamber's attention before a decision is made regarding admissibility so the Chamber is aware of the source of that material. And I can provide the Chamber a with a copy of my material as it was found on the website, if the Chamber so wishes.

It's part of an article entitled "The Racak File: Truths and Manipulation." And it shows the same photographs.

[Trial Chamber confers]

JUDGE KWON: Mr. Milosevic, can you confirm that this was not dealt with with this witness? So this does not have to be admitted. We have these kind of pictures already in our exhibits. If you have any observations.

THE ACCUSED: [Interpretation] I asked questions -- yes, Mr. Kwon. I referred to tab 5 and just used to show the photographs to the witness. Otherwise, those photographs appeared on several occasions here with respect to Racak. And the witness did answer questions in that regard and explained why it was unnatural or, rather, impossible for the cap that we can see on two of the bodies still be on the head of the person killed, especially on the first photograph, for example, where you can see that the man was hit in the head but his skullcap remains intact on ³⁸⁴²⁴ the head. And the Professor gave us detailed explanations as to why that was impossible.

JUDGE KWON: So I guess there would be no opposition from the Prosecution if we admit only that picture.

MR. SAXON: And for that purpose, yes, Your Honour.

JUDGE ROBINSON: Well, we'll admit the photograph on the second page of tab 5.

Mr. Nice, in the age of electronic simultaneity, I rather thought I would have had the benefit of the aide-memoire now, but perhaps you could start the debate.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Milosevic, in relation to the 24 documents, will you have any questions of the witness? If not, then the witness could be released and we could deal with that later.

THE ACCUSED: [Interpretation] Mr. Robinson, it depends on what we're going to see in the documents, because they haven't been shown. The witness quite clearly said that the fingerprints were taken after the paraffin test, and this is confirmed by the documents that we saw here, that they were taken on the 20th, the fingerprints. Now, I don't know whether there is a single document where -- with a date showing the fingerprints were taken before the 20th. So in that regard whether the witness has something to explain or not because the witness was quite clear in his answer, and he said that the finger -- that the paraffin glove test was first conducted and then the fingerprints came second. And that is something that he stated quite ³⁸⁴²⁵ categorically. And this is in fact borne out by the documents, at least the ones we saw here in court. If that is not challenged, then I really do not have any more questions in that regard.

JUDGE ROBINSON: Mr. Saxon, what are you challenging, if anything, in relation to these -- these documents?

MR. SAXON: I'm sorry, Your Honour. What am I challenging?

JUDGE ROBINSON: Yes. I mean, what is your position if relation to the documents? You just heard what Mr. Milosevic said.

MR. SAXON: Well, it is the Prosecution's position that on the face of these documents some at least preliminary fingerprint work was done on these particular victims on the 18th of January. I'm not sure if I'm answering your question, Your Honour. I'm apologising if I'm not.

JUDGE ROBINSON: That answers it. That answers it. So we do have a difference.

[Trial Chamber confers]

JUDGE ROBINSON: We now have the benefit of Mr. Saxon's work. Mr. Saxon, in relation to the document just produced, am I right in saying that where you have "None" for date on fingerprint card there is the date of the 20th on the first page at the bottom?

MR. SAXON: That is -- that is correct, Your Honour. The date 20 January 1999 is still recorded on the first page at the bottom, but on the last page of the B/C/S version we see no date, on the fingerprint card itself.

JUDGE ROBINSON: Yes. Mr. Milosevic, do you have any questions ^{38426 BLANK PAGE 38427} arising from this?

THE ACCUSED: [Interpretation] If there is no other date but the 20th of January, Mr. Robinson, then I assume that that is sufficient confirmation that Professor Dobricanin spoke correctly and said that the fingerprints were indeed taken on the 20th of January, which is to say after the paraffin glove test traces were taken.

[Trial Chamber confers]

MR. SAXON: If I can just respond briefly.

JUDGE ROBINSON: Yes.

MR. SAXON: There is certainly no indication on any of these fingerprint forms as to whether this fingerprint work was done before or after any of the gunpowder residue tests. There's simply no information at all.

JUDGE ROBINSON: Well, we have heard submissions from both parties. Let's give that exhibit number.

THE REGISTRAR: Thank you, Your Honour. That will be 857.1 -- 856.1.

JUDGE ROBINSON: 856.1. With that, Professor, we have concluded your testimony, and we thank you for coming to the Tribunal to give it, and you may now leave.

THE WITNESS: [Interpretation] Thank you.

[The witness withdrew]

JUDGE ROBINSON: Let us now proceed to the debate on the evidence issue.

Mr. Nice, you were at the beginning or near the end of your ³⁸⁴²⁸ submissions.

MR. NICE: Well, Your Honour, before we return to His Honour Judge Bonomy's question which was the last thing that I was asked last night, can I deal with two entirely separate, very short administrative matters to dispose of them. There's a Status Conference tomorrow. If it would assist Chamber, I've got a list of proposals which, rather than file them as a separate filing, I will distribute this afternoon for the saving of time and get it to all parties.

Second, and while the evidence of the last witness is still fresh in our memories, the Chamber will recall that Mr. Saxon produced an aide-memoire or a document dealing with names, and His Honour Judge Bonomy suggested that we should try and negotiate with the accused over the topic in the way that we have explained we would have done with any other representative accused. We didn't take long on it then and I don't want to take long on it now save simply to remind the Chamber that there have been several occasions and efforts to cooperate with the accused have been fruitless or when offers have led to nothing coming from him because he doesn't like to get involved in procedural matters -- most notably every Rule 68 invitation to him to get engaged and have parameters changed or something like that have met with no response. And the only occasion that I have met with his associates was on one occasion when there was something they actively wanted from me. Can I respectfully suggest that the Chamber might ask the accused -- rather than us through another fruitless exercise, can the Chamber at some time say to him will you cooperate with us over trying to ³⁸⁴²⁹ sort names out because if the answer is yes, we'll get on with it; if the answer is no, if he is obdurate about it, we will know where we stand. Can I return to the immediate issue --

JUDGE KWON: Given that the accused said that Raif Salihu does not appear on the schedule, he might not have had time to examine all these schedules. We can expect him to go through the schedule and come back with an answer?

MR. NICE: We simply shouldn't, if I may say so, we shouldn't -- to use the vernacular, pussyfoot around a problem that the accused creates by his attitude towards these proceedings. In a -- in a functioning court with litigators on both sides representing, the Judge would say to each side well please get together and try and sort this out. And if one of them said no, the Judge would want to know why.

JUDGE KWON: Yes.

MR. NICE: Can I return --

JUDGE BONOMY: But -- I understand exactly you're saying as I explained to Mr. Saxon yesterday, Mr. Nice. But what about on this occasion set out your position as you have done in writing, send it and invite the accused to get an associate to go through this exercise and try to resolve it. Do it in a way -- and then perhaps come back to us. Because at that stage I think I would be happier to become involved in the way that you suggest.

But would you be good enough on this occasion to have a specific go at it and see what comes of it. Because the impression I had yesterday from Mr. Milosevic was he was anxious to have it sorted out ³⁸⁴³⁰ too. We might see if on this occasion we could make some progress.

MR. NICE: Very well. We'll do as Your Honour proposes.

JUDGE BONOMY: I don't think it is the end of the world, this particular issue, and is one that we should be able to resolve in this way.

MR. NICE: Without taking too much time, yes. Your Honours, His Honour Judge Bonomy said yesterday and I have it actually in the transcript. I'll read the question. He said: "There are two trials in this court 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." And I was asked whether it's an appropriate position for us to take. And the answer to that question, in my submission, is that it is both appropriate, necessary, and indeed inevitable that we should take the position we do and that there's nothing wrong with that and it's one of the consequences of having several cases involving several different parties to conflicts tried in the same court.

It is in fact in many ways I hope to make clear in a couple of sentences and minutes actually rather a good thing. The Chamber will possibly have forgotten, but I must remind you that what is occurring with Jasovic or potentially occurring with Jasovic has already happened in relation to Shukri Buja. He was the witness upon whom the Prosecution relied to deal with the presence of and involvement of the KLA in Racak on the very day of the matters into which we are more particularly ³⁸⁴³¹ inquiring. He was cross-examined but the Prosecution had no reason to doubt him in any way at that stage.

He was called in the Limaj case to deal with entirely different evidential matters and he was turned hostile at the request of the Prosecution, thus the Prosecution evincing effectively an expression of view as to him on part of his evidence, namely the evidence he was giving in that case, and that evidence will be available to the accused to deploy at some future date if he wishes to.

Now, I mention that right at the outset and weave in this proposition: Where you've got witnesses who may be believable and likely to be telling the truth in part of their evidence and might be more -- might find it more difficult to come clean in respect of other parts of their evidence, it would always be open to an overall prosecuting authority to make rather tactical decisions. To say, well, in case one we would call this witness, but then if we call him in case two and things go badly wrong, well, we'll embarrass case one. And so it could have been the case that counsel in the Limaj case, the other case, could have said that Well, we could see the prospect coming of our having to turn him hostile. Would that damage your case.

That would be a rather concerning tactical decision for an overall Prosecution office to make if the Limaj decision was basically that they wanted to call this witness and to get his evidence out even if it meant turning him hostile. It would be concerning because this Chamber, and indeed this accused, would then be deprived of the reality that the witness Shukri Buja was one who was going to be turned hostile ³⁸⁴³² because he was vulnerable to the effective views of the Prosecution that that should happen.

In that example, of course, the order of events was called first as a witness to be believed and no reason to doubt, and second subject to question in another court. That's the same position as we find now with the witness Jasovic. There was a particular coincidence of timing but in reaction, he was called for the truth of his evidence in the other case and it then became apparent in this case that there will be reason to doubt him. So in each example it's the same order of events. And I mention that simply because one could see at that it might be more difficult if it -- if things happened the other way round. If at any stage it became apparent to the Prosecutor that there might be reasons to doubt a witness it might be more difficult for that witness. Not impossible, but it might be more difficult for that witness to be called in another case.

JUDGE BONOMY: But you invited us, Mr. Nice, I think in relation to him to disregard anything that he was involved in because you were neutralising it with the statements. Is that not -- was that not in relation to him that you said this?

MR. NICE: I can't remember putting it in that way but Your Honour's quite --

JUDGE BONOMY: No.

MR. NICE: I certainly sought to neutralise the statements that he produced.

JUDGE BONOMY: But in another court he is being defended by the ³⁸⁴³³ Prosecution against attacks upon him that he was doing exactly the things that you say in this -- in this case he was doing, in other words, torturing his witnesses. Now that's different, is it not? I don't know the detail of the evidence of Shukri Buja in the Limaj case and therefore I'm not in a position to compare them at the moment. But surely we have here an extreme example of a witness that you have to make your mind up about one way or -- otherwise two different Trial Chambers could reach two different conclusions about a man giving evidence in the same court more or less at the same time in relation to whether he tortured witnesses or not because neither perhaps has the full picture. You alone are perhaps in the position to have the full picture and make a judgement. I find this a very invidious position for a Court to be placed in.

MR. NICE: Well, whether they were defending him on that particular allegation or not I don't know because it depends a little as to what questions were asked in re-examination and whether they were questions of exploration or giving him an opportunity to amplify certain answers, or whether they came with a particular pointed purpose behind them. And we'll have to look at the re-examination if that becomes material.

But, Your Honour, although it's an invidious position and a very difficult one it's one that we nevertheless simply have to face given the circumstances in which we all find ourselves in these trials and in this court. And I'll develop that in a couple of minutes.

JUDGE BONOMY: Well, it's got nothing to do with that. ³⁸⁴³⁴

THE INTERPRETER: Could the speakers kindly slow down. Thank you.

JUDGE BONOMY: -- the same could happen in an English court, you're familiar with -- at least that's my understanding -- and a decision would have to be taken with it. At least that's my understanding. And there is no reason in principle why you should regard that as any different from the situation here.

MR. NICE: Well, Your Honour, the position so far as this particular witness then and these particular allegations is concerned is as follows: If the position is as black and white as Your Honour would propose, then it would only be possible for either I in this case to say I'm unable to cross-examine on the basis that he's an unreliable human being or that he's a torturing police officer and that therefore I have to accept without question the material that comes in at his hand; or the other case would have to abandon him. In each case this really being an expression of final view about a witness by counsel prosecuting in one case or the other.

Now, can I pause there to invite the Court to consider the underlying approach towards the calling the witnesses. Some of my colleagues, I think, from civil system and perhaps some of them from the United States of America might be more prone than I am ever to express personal views about the credibility of witnesses. My understanding has always been that you can all witnesses and should call witnesses who are capable of being believed; that you're not really there to interpose your own judgement in the matter even if you have one sometimes you do ³⁸⁴³⁵ sometimes you don't. What you're not there to do is call witness who is fall outside the parameters of capability of being believed. So that you can have the circumstance, which is why I referred earlier to the problems facing witnesses who are involved in these wars and conflicts. You can have the circumstances and it happened -- circumstance it happens often where and witness might be believed in part of his evidence and might be more questionable on another part. We've indeed seen that on the part of several witnesses who I called -- as the Court will remember, I only called for certain limited parts of their testimony making it clear I might not accept what they said about other issues.

JUDGE BONOMY: I don't think you can help me more, Mr. Nice, on this point. We could go on forever on it but I think I have the position very clearly in my mind now, thank you.

MR. NICE: I'm very sorry to --

JUDGE BONOMY: No, no.

MR. NICE: Can I just conclude -- I would like to make two other points. In principle, it is in my submission preferable for the trials to proceed without tactical overall considerations because that would be indeed invidious and to proceed as adversarial trials do when issues arise. And that makes for these uncomfortable possible consequences but it doesn't make it wrong that they happen.

In this particular case -- and this brings me immediately to the evidence that the accused now seeks to bring in through this witness. In this particular case when we first heard of him as a source of ³⁸⁴³⁶ information, an intervening person between hearsay and the floor of the court, it was essential that I make investigations to find out what I should do next. If I'm presented with a statement produced not by the witness in the witness box but handed to her by a policeman that runs counter to an important part of my case, my duty is to investigate it. I have no choice if I'm to do my job responsibly. And the Court will remember that I declined to cross-examine until I knew what my position was, saying that for all I knew I might have to make concessions. And I didn't want to start the process of cross-examining not knowing where I was going to be challenging or conceding.

So that once this material came in, first of all with Marinkovic, Mrs. Marinkovic, and now as is proposed through this witness Jasovic, if he's ever called, my duty is to check it. And I simply cannot say up the system of trial we have well because the officer has been called in another case as a witness of truth I'm in the allowed, for example, to go to these witnesses and say, "Did you say these things to this officer? Were they true?"

The consequence of my being in that position is not only that all these 80 statements would have to go in unchallenged as to their content in any way but any such material coming in by any such witness would be beyond my ability under the adversarial system to challenge. With those last two general points, then, the application as repeated by Mr. Kay allows me, I think, a few further points. But can I invite the Chamber to take a step back because we being looking at the adduction of 80, effectively, witness statements. ³⁸⁴³⁷ No it's not Your Honour, the tab -- if you go to tab 1 it goes to 57 then 2 goes to 30, so that's 87. Then there is tab 3 and 4 so it's 89.

The way the accused explained his application yesterday morning was that he wanted this material in because it indicated or partially indicated things and information that the organs of the Interior had about activities of terrorists in the area of Racak. He went on to say that it showed that there were different names in many of the statements of persons who fell casualty in Racak. He suggested you could paint a clear picture of what happened, and then he linked it to the witness Dobricanin and said you will gain a clear later -- a comprehensive, clear picture.

Insofar as the accused was explaining in legal terms what he was hoping to achieve, I think it would be possible to infer from what he said that this material -- that I certainly have not analysed, 89 statements -- will identify KLA-active individuals both in 1998 and indeed because we see the statements go to 1999 and in 1999, and from his own application it may well be although he isn't explicit about it, that this will deal with the alleged KLA involvement of some of those said to have died as innocent civilians by the Prosecution, i.e., there will be further statements of the three or four dealt with specifically through Mrs. Marinkovic.

My learned friend Mr. Kay in the afternoon yesterday invited your further consideration, and he said amongst other things the following: He said that there were further names as well as a repetition of names ³⁸⁴³⁸ mentioned in the earlier witnesses' materials which were witness statements -- sorry, yes, further names beyond those adduced through Mrs. Marinkovic. And he said as having referred to as having connections with the KLA he said this, then: "It comes down to about 30 of those names in Schedule A fall into category. So they are identified in witness statements taken by Jasovic for 1998 to 1999 for the KLA." So pausing there. If he and the accused are arguing a common theme, it seems that they are putting this material in for the truth of its content to go to show that people in Schedule A were active KLA people. Later Mr. Kay put the matter differently, and he said that the "case concerns the criminal responsibility of the accused and goes to the issue of his state of mind" in that they are official records at the time that have been created or not being created for the issue that we are concerned with. "They are within the system of law-enforcement agencies, and it's right to say," said Mr. Kay, "that the accused would be entitled to rely upon the content of that information to prove matters relevant to the issue concerning his state of mind."

He amplified that and pressed on you that he would be entitled to put the material in on that basis, suggesting at the end, having looked at the position with Captain Dragan as he was known, called by the Prosecution, he went on to say that this was material prepared before the indictment unrelated to the case and suggested that that was a classically different type of evidence.

So that Your Honour -- I'm sorry to take you through that, but the position I face, I think, despite Mr. Kay's second basis of ³⁸⁴³⁹ application, is that this material should go in for the truth of its content.

If that's the case, point number one is I really need to know exactly what is being relied on and what is going to be said through this material. It may be different things for different statements, and simply to give me 80 statements -- and it's true as a matter of fact we've been able to find English translations of most or all of these statements overnight, but I haven't gone through them but I really need to know before I consider my position finally about Jasovic what is being relied on and to prove what. But I assume for the balance of what I'm going to say that it is what it appears to be, that the accused and Mr. Kay said could be proved, namely that many people of those said to be innocent civilians are actually KLA activists. And it's with that in mind that I respectfully remind Your Honours of two things. First, there have been the general practice of this Chamber and I drew to your attention one example from His Honour Judge May where he said in terms in the course of the evidence of Helena Ranta that statements weren't typically produced, and he said the same thing in relation to another witness at a later stage when the accused was trying to get in the witness statement of someone who would have given a different account for the death than the account that was being given by the witness in court and he said to the accused that the proper course would you for you to call this witness in which case he could give in his evidence. Meanwhile if you still want to have his statement exhibited he said we'll mark it for identification. He went no further than that. ³⁸⁴⁴⁰ That can be found at page 7914.

Picking up on the point raised yesterday about what is the potential legal position of such material, and although I know the Chamber will be familiar with the Appeals Chamber's decision on the admissibility of investigators' evidence, can I remind you of one short paragraph at the end of paragraph 18 where the Appeals Chamber having dealt with the position both in Kordic and in Galic found as follows, and I'll read this slowly: "To avoid any misunderstanding, however, it is perhaps necessary to add that there is nothing in the Galic decision which prevents a written statement given by prospective witnesses to OTP investigators or others for the purposes of legal proceedings being received in evidence notwithstanding its non-compliance with Rule 92 bis, one, where there has been no objection taken to it; or, two, where it is otherwise -- it has otherwise become admissible where, for example, the written statement is asserted to contain a prior statement inconsistent with the witness's evidence."

Neither of those exceptions applies here. And the principles advanced by the Appeals Chamber, with which this Chamber will be familiar, in our respectful submission would determine that this material - which is important material, Galic covers this - on an important part of the Prosecution's case should not come in other than by the witnesses being called or if there's a reason not to quality witnesses for example because they're dead and the qualifying conditions that allow the admissibility of such statements be met, only after all those necessary pre-conditions have been met. ³⁸⁴⁴¹ And so in my respectful submission, these statements that appear to be made for legal proceedings or in the course of some kind of legal process but obviously not for these proceedings, these documents simply do not qualify and should not be allowed into evidence. Your Honours, I'll just see if Mr. Saxon wants to add something but I'm not sure.

Thank you. I'll go back to war I started yesterday, with this series of statements that came in through Marinkovic. Now all of these there is no explanation given for not calling the material -- the people concerned live and on such an important issue that is what you, in our respectful submission, must have.

If in the event and I'm only saying this to avoid popping up and down, if in the event the Court is prepared to admit 89 statements of this kind without them being clarified as to their purpose, separated out between those that refer to people in the Racak schedule and so on or otherwise, I simply say I'm quite unable to deal with them today or indeed tomorrow, because obviously on a potentially important issue I will have to inquire into them. And that would be another reason -- no. I need say no more than that.

Your Honours, unless I can assist further -- I should I suppose say that it doesn't seem to me with great respects to Mr. Kay that his second argument seek to go categorise these as -- in a different class because they simply came to light before the indictment or before this inquiry and not for the purpose of it changes their status. They are still statements made, as it happens, in some kind of judicial or police ³⁸⁴⁴² proceedings. But they are the statements out of court, and they need to meet the various indicia for admissibility of reliability if they're to be admitted.

Perhaps, yes, I ought just to emphasise that. I've emphasised it before or made the point before. Where there are serious issues as to the reliability of statements, and this again is dealt with in the ruling of the Appeals Chamber on the admissibility of the investigators' evidence at paragraphs 26 to 31, I think. Where there are serious issues as to the credibility, then of course hearsay evidence should not be admitted. And in our respectful submission the three contrary statements produced in the way that we suggest they were taken, and we've shown they were indeed taken, I hope, are themselves quite sufficient to show that there are indicia of unreliability attached to the work of this police officer and in those circumstances it would simply be not safe -- not be safe to allow them in in this way.

JUDGE ROBINSON: Mr. Nice, would you please go back to paragraph 18 --

MR. NICE: Yes, certainly.

JUDGE ROBINSON: -- of the Appeals Chamber's decision on the admissibility of investigators' evidence. They cited two circumstances in which statements which did not meet the criteria of Rule 92 bis could nonetheless be admitted. One where there is no objection, and the second one was prior inconsistent statement.

MR. NICE: Correct.

JUDGE ROBINSON: Was that an example of a wider range, the prior ³⁸⁴⁴³ inconsistent statement?

MR. NICE: It doesn't spell it out in terms, but I wouldn't argue in favour of my argument that is exhaustive. It would seem to be exemplary. I'm not going to try and take a technical advantage of the way they've expressed it.

JUDGE ROBINSON: Mr. Kay, well, we did hear from you already. And Mr. Milosevic -- let us hear from Mr. Milosevic first. I want Mr. Milosevic to clarify the purpose for which he is seeking to adduce these witness statements.

Oh, I see we are out of time. There is another case here this afternoon, Mr. Legal Clerk.

I'm sorry, I apologise.

THE REGISTRAR: We do have the Limaj case this afternoon, Your Honour.

JUDGE ROBINSON: There is the Limaj case here this afternoon. Thank you very much.

We will have to take the break now, and we are due to continue tomorrow. 8.00 Status Conference, and then 9.00 we'll resume this debate and hear the submissions from Mr. Milosevic.

[Trial Chamber confers]

JUDGE ROBINSON: The Status Conference is at 8.00, and at 9.00 we will resume the trial, yes.

[Trial Chamber confers]

JUDGE ROBINSON: I understand that we can just continue after the Status Conference. We don't need to have a changeover. ³⁸⁴⁴⁴ Mr. Milosevic, you should have another witness on standby, quite apart from Mr. Jasovic.

THE ACCUSED: [Interpretation] I understand that, Mr. Robinson. Do I have the possibility of saying at least a few sentences by way of explanation why I believe that Mr. Jasovic should be heard and why I believe that is of significance?

JUDGE ROBINSON: Not now, tomorrow. Yes.

THE ACCUSED: [Interpretation] Very well.

--- Whereupon the hearing adjourned at 1.45 p.m., to be reconvened on Thursday, the 14th day of

April, 2005, at 9.00 a.m.