Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15706

 1                           Wednesday, 4 February 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.11 a.m.

 5             JUDGE ORIE:  Good morning to everyone.

 6             Mr. Registrar, would you please call the case.

 7             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 8     everyone in the courtroom.  This is case number IT-06-90-T, The

 9     Prosecutor versus Ante Gotovina, et al.

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             The Chamber, more specifically I, apologise for the late start.

12     Partly due to the consequences of frost.

13             Before an opportunity will be given to the Prosecution to call

14     its next witness, we'd like first to give an opportunity, 11 minutes for

15     the Defence, to further -- make further oral submissions on scheduling

16     issues.  Who's first?  Mr. Cayley.

17             MR. CAYLEY:  Yes.  May it please the Court.  Thank you.

18     Your Honour I will have to some submissions to make, and I think the

19     colleagues, the other two teams, will also have some very brief

20     submissions to make.

21             The submissions obviously concern the period of time that the

22     Defence would like between the end of the Prosecution case and the

23     commencement of the oral submissions under Rule 98 bis.  And secondly the

24     period of time between the end of the oral submissions under Rule 98 bis

25     and the commencement of the first Defence case.

Page 15707

 1             In respect of the first matter, that is the time between end of

 2     Prosecution case and the beginning of the Rule 98 bis submissions, we

 3     would request a period of 15 working days.

 4             For the second period, the period between the end of the

 5     Rule 98 bis submissions and the commencement of the first Defence case,

 6     we would request 30 working days.

 7             Your Honours, I would like to bring to your attention six

 8     separate matters very briefly in respect of this application for time.

 9     The first matter is unique to the case of Ivan Cermak.  You will recall

10     that Mr. Kay was not appointed on this case until September of 2007.  I

11     was appointed in November of 2007 and Ms. Higgins in March of 2008.  That

12     is not Mr. Cermak's fault.  You will recall that his old Defence team was

13     removed by the Appeals Chamber in the summer of 2007.  They had worked on

14     the case for many years.  Mr. Kay did ask for more time before the

15     commencement of this trial.  You will remember that he asked until

16     October of 2008 before the case commenced.  That time was not granted; we

17     don't complain about that, but I think Your Honours will agree that we

18     have kept pace with this case and now we need some time to prepare both

19     for the Rule 98 bis and for the Defence case.

20             The second matter, Your Honours, that I would like to bring to

21     your attention is to remind you respectfully that this is a case of

22     significant proportions.  At the last count, I think before the witness

23     that we just heard, there were 3475 exhibits, both Prosecution and

24     Defence, and 88 Prosecution witnesses had been heard.  This is a case of

25     significant proportions, and I think it's fair to say that it falls into

Page 15708

 1     those categories of cases which are the larger and more complex cases.

 2     And if you look at the analysis that I sent to the Chamber and the

 3     Prosecution last Friday, I think you will find that what I've said is

 4     confirmed.

 5             Thirdly, the case has expanded throughout the Prosecution case.

 6     By that specifically I mean that there has been an increase in the number

 7     of exhibits, an increase in the number of documents and items on the

 8     Rule 65 ter list.  The Defence teams have got to consider all of these

 9     matters, specifically within the Rule 98 bis submissions, and

10     furthermore, in preparation for their Defence.

11             The fourth matter that I would like to remind you of,

12     Your Honours, and we don't take credit for this, but time has been used

13     very efficiently in this case.  If you look at the statistics that I have

14     put together, you will find that in this case, we have sat five days a

15     week for 57 percent of the time.  Can you see in other cases, in other

16     Chambers cases have not sat on that basis.  Again, the Defence don't take

17     credit for that.  Perhaps the Judges and the Prosecution and the Defence

18     together can take credit for that.  But this is it true.  We have used

19     time very efficiently.  And we would like to be given credit for that in

20     terms of the time that we are granted for the Rule 98 bis submissions and

21     our Defence case.

22             The sixth matter that I'd like to raise is in respect of the

23     Rule 98 bis application itself.  And these -- these are words -- that's

24     actually the fifth matter, not the sixth matter.  But these were

25     Mr. Kay's parting words to me as he left for the airport last night.  He

Page 15709

 1     believes that we have a meritorious 98 bis application on behalf of our

 2     client Ivan Cermak, and we would respectively like to ask you for

 3     adequate time to prepare and -- those submissions to do our client

 4     justice and to do the best job that we can for him.

 5             The last matter, Your Honour, and I won't go through it, because

 6     I think it's fairly clear, the documents that I filed last Friday, we

 7     would like to draw your attention to the analysis that is being done and

 8     to the number of days granted in other cases in support of our

 9     application.

10             Thank you very much, Your Honours.  I don't have any further

11     comments, and I think Mr. Misetic has comments to make.

12             JUDGE ORIE:  Mr. Cayley, thank you very much for being succinct

13     and very clear.

14             Mr. Misetic.

15             MR. MISETIC:  Thank you, Mr. President.  We joint with the

16     Cermak Defence in terms of the amount of time requested.  I would only

17     add two points.  One is we ask that the Chamber keep in mind the

18     rule change that was enacted in February of 2008 pursuant to Rule 67(a)

19     which now requires that the Defence make available to the Prosecutor the

20     documents -- essentially the documents that the Defence will be

21     introducing at trial.  This is going to place a burden on us, whereas

22     prior to that rule, we could have put documents together as the witnesses

23     were coming up and disclosing them to the Prosecution.  We are now

24     required to essentially put our Defence case, in terms of documents,

25     together before the commencement of the Defence case in chief.  We

Page 15710

 1     obviously are going to endeavour to that so that our colleagues across

 2     the isle can have that material before the Defence case starts.  However,

 3     that may impact in terms of comparing this case to other cases and when

 4     they start, the fact that we now have an additional burden that we will

 5     have to put all those documents together.

 6             The second practical issue for us is in terms of instructing

 7     experts and getting expert reports together.  As the Chamber is aware,

 8     and there has been much litigation on this point, we have received

 9     addenda from the Prosecution well after the commencement of the trial, as

10     recently as, I believe, November of 2008, which have, of course,

11     prevented us from being able to instruct an expert to prepare a report

12     given that theoretically speaking there may be even more witnesses coming

13     up this month on the issue of shelling, for example.  It hinders our

14     ability to get experts to prepare their reports in time or to have

15     complete reports, I should say.  Given that additional factor of addenda

16     to expert reports, we would ask that the Chamber also keep in mind that

17     it is going to take us a little bit of extra time to get our expert

18     reports together.

19             Mr. Kehoe also would like to address one issue concerning the

20     murder counts.

21             MR. KEHOE:  Yes, Mr. President, Your Honours.  We have addressed

22     this to some degree before, but as a result of the appellate decision, we

23     are back before the Chamber on the 189 deaths that the Prosecution has

24     included as a schedule -- a clarification schedule in November of 2008.

25             There are two issues.  Number one, the Prosecution has to show

Page 15711

 1     that -- that obviously when they got this information and the prejudice

 2     that is involved, then the Chamber has to make a decision whether or not

 3     those items are in and out.  That particular issue comes into play with

 4     the next witness.  But based on Your Honours' decisions back in November,

 5     if Your Honours conclude that those killings are in, then we are going to

 6     need additional time to actually investigate those matters and go into

 7     them.

 8             I can tell Your Honour just from a brief bit of investigation on

 9     the matters that -- of those 189 killings while preparing for some of

10     these forensic pathologists, there is any number of issues - I don't

11     hasten to say problems - but issues with the Prosecution's submission to

12     the Chamber and that clarification schedule.

13             So it's going to take a significant amount of time to investigate

14     those matters as well, if the Chamber maintains that -- or concludes that

15     the Prosecution has gotten over the prejudice issue and those items

16     should be included.

17             That's -- I understand my colleagues have talked a bit about

18     time-frames, but that particular time-frame makes the end of the

19     Prosecution case quite difficult to assess.

20             JUDGE ORIE:  Thank you, Mr. Kehoe.

21             MR. KUZMANOVIC:  Excuse me, Your Honour.

22             JUDGE ORIE:  Yes, Mr. Kuzmanovic.

23             MR. KUZMANOVIC:  I just wanted to add we fully agree with the

24     presentation of both counsel, or all three counsel on the issue of

25     timing, and the only other thing I would like to add is that the Chamber

Page 15712

 1     keep in mind the Easter holiday which for many of us is a traditional

 2     time for spending an at least a little bit of time with our family during

 3     the course of the break, so that's the only, sort of, personal thing that

 4     I have.  But other than that, I agree completely with my counsel on their

 5     presentation.

 6             Thank you, Your Honour.

 7             JUDGE ORIE:  Yes.  I wouldn't consider it perfectly personal,

 8     Mr. Kuzmanovic.  I think we have all have the same experience, and we are

 9     also looking back at when this family time was not always available.

10             Then, thank you for strictly keeping the time-limits.

11             Any need to respond?

12             MR. MARGETTS:  No, Mr. President.

13             JUDGE ORIE:  Then next item.  A motion is pending for a

14     videolink.  I think we have not heard from all Defence yet what their

15     response is.  Could I just make a short round.

16             Mr. Misetic.

17             MR. MISETIC:  We completely oppose the motion.  I don't know if

18     we should do there in private session but ...

19             JUDGE ORIE:  If we go into details, we certainly would have to do

20     that.

21             We move into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 15713

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18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  Your Honours, we're back in open session.

22             JUDGE ORIE:  Thank you, Mr. Registrar.

23             In view of the next witness, we have objections against the use

24     of exhibits in more general terms, and also very specific ones filed, I

25     think, yesterday; a list of some 30 approximately.  I have some questions

Page 15714

 1     in that respect, first to the Prosecution.

 2             Part of the submission says that the victim does not appear in

 3     the indictment; does not appear in the clarification schedule, whatever

 4     the fate of that schedule may be; and the cause of death is unknown.

 5             Now, Mr. Margetts, what is the probative value of a person of who

 6     we do not know why he died and who does not appear in the indictment nor

 7     in the clarification schedule?

 8             MR. MARGETTS:  Mr. President, the first thing I understood that

 9     the objection of the Defence was that the victims didn't appear in the

10     schedule to the indictment or the first clarification that was filed in

11     March of 2007.

12             MR. KEHOE:  That's correct counsel.

13             MR. MARGETTS:  Yes.  Thank you, Mr. Kehoe.

14             The victims do appear in the further clarification schedule which

15     is now, once again, before the Trial Chamber for consideration.  So

16     that's the relevance that they have in terms of the schedule of killings.

17     They're in that further clarification schedule that was filed by

18     Prosecution on the 16th July 2008.

19             JUDGE ORIE:  We have this list of A to DD.  That's what I'm

20     referring to.

21             MR. MARGETTS:  Yes, Mr. President.

22             JUDGE ORIE:  And to say the victims do appear in the -- often it

23     is claimed that they do not appear.  That's one.  And I was -- I think

24     referring to one specific example, but I read it from my computer

25     yesterday evening, so I'm trying to -- I thought there was one among them

Page 15715

 1     not appearing in the indictment, not appearing in the clarification

 2     schedule, and the cause of death unknown.

 3             MR. KEHOE:  I don't think so, Judge.  I think that Mr. Margetts

 4     is correct.  Our objection is that these aren't in the indictment nor the

 5     first clarification schedule.  But these are objections that are in the

 6     amended clarification schedule, the second clarification schedule that

 7     the Prosecution filed in July that was the subject of the November 2008

 8     decision of the Chamber.  And our objection, of course, was preceding on

 9     items which, at this juncture, are not before the Chamber.

10             There is, of course, another larger objection with many, many of

11     these that we have put in there that, geographically speaking, they

12     simply were not in the Split Military District which -- and many of them

13     were in the Gospic Military District.  So if you look where the body was

14     actually found.

15             JUDGE ORIE:  Well, we find a variety of reasons.  Sometimes being

16     it was not where the Split Military District was, sometimes there were no

17     Croatian soldiers, sometimes it is -- was where the special police was

18     and not where the Split Military District was.  So we find a variety.

19     Sometimes it said who was in the area; sometimes it just says it's not

20     the area of responsibility of the Split Military District.  So to deal

21     that with in one sentence, I find it a bit difficult.

22             MR. KEHOE:  I agree, Judge, that's why I tried to delineate all

23     of the issues with each of these exhibits.  I -- just with regard to in a

24     particular area.  The Prosecution in their amended schedule says that in

25     P 1685 that an individual was killed in Donji Lapac on 8/5/1995.  Excuse

Page 15716

 1     me, on the 5th of August, 1995.

 2             Now, the evidence before this Chamber, and I'm sure the

 3     Prosecution will agree, is there was simply no HV forces in Donji Lapac

 4     on the 5th of August of 1995.  But nevertheless, that's what they have

 5     put forth in their clarification schedule.  Have I any number of those.

 6     I just point that one out.  We have other ones where, as I pointed out in

 7     there, there -- where the cause of death is natural causes.  Yet, is in

 8     this schedule.  There are several of those.  I believe, I think, I have

 9     ten of unknown causes of death, where clearly some of them are natural

10     causes.

11             So we have a multitude of issues.

12             JUDGE ORIE:  Could you guide me to natural causes, instead of no

13     cause of death, in your submission.

14             MR. KEHOE:  Yes.  I actually -- frankly, I just put no cause of

15     death, but can I tell you it is -- specifically it is --

16             JUDGE ORIE:  I'm asking you for the following reason, Mr. Kehoe.

17     If you say no cause of death has been established, that means that

18     through this report we may find some information about the body, although

19     not a final answer to the question, why this person died.  That can come

20     from other evidence.  We do not know yet.  That would not automatically

21     make it irrelevant.  If there is an clear establishment that there was a

22     natural cause of death then, of course, the body disqualifies for

23     purposes of killing.

24             So, therefore, it makes a difference if you put in your

25     submissions it has no relevance because no cause of death has been

Page 15717

 1     established, that's different than cause of death was natural cause of

 2     death.  That's makes a difference for looking at your submission and

 3     looking at the relevance.

 4             MR. KEHOE:  I think, Mr. President, if we can harken back to my

 5     cross-examination of Dr. Clark where Your Honour cautioned me with regard

 6     to unknown causes and when we get into the unknown causes, and I asked

 7     the question does that -- it's equally plausible with the unknown cause

 8     that this person could have died from natural causes.  Your Honour

 9     interjected and said, Well, of course, the Chamber knows that.

10             JUDGE ORIE:  Yes, perfectly.  Could, could [Overlapping speakers]

11     ...  that's exactly -- you apparently have not understood my

12     observations.

13             MR. KEHOE:  Well, I [Overlapping speakers] ...

14             JUDGE ORIE:  [Overlapping speakers] ...  I'm not saying that if

15     there is an unknown cause of death that it means that the expert could

16     not establish what the cause of death was.  That, of course, leaves open

17     at that moment in time not looking at any other evidence, that it could

18     have been a natural cause as well.  We'll have to see whether any other

19     evidence comes up.

20             Now, if, however an expert says this person died of a natural

21     cause of death then, unless there is clearly contradicting evidence

22     saying, no, he is wrong because I find five bullets in that body, then I

23     would say that evidence is not probative in any way for killing.

24             MR. KEHOE:  And my response to that, Judge, is based on --

25     Mr. President, your comments is one of relevance.  And there is no

Page 15718

 1     question that because this is skeletonized remains and has very little

 2     flesh, some saponified flesh, but virtually no flesh, it's very difficult

 3     to tell organ damage, et cetera, as Dr. Clark said and I'm Dr. Baccard

 4     will as well.  So they're not going to be able to say, Look at

 5     skeletonized remains what this person died from.  However, they're not

 6     going to say, Looking at the skeletal remains, we don't have any idea how

 7     this person died.

 8             So we are in a position where the Prosecution has listed every

 9     body they have found, thrown them on a list, and then we're in the

10     position of saying -- or they are saying, Oh, these are killings, and

11     we're in a position to try to meet those.

12             Now, this, of course, dove-tails with a larger problem in the

13     investigation.  But I have attempted to investigate many, many of the

14     items that are set forth in this exhibit list from this witness we are to

15     see.  And there is into evidence in the record, nor in the 65 ter

16     documents that the Prosecution has uploaded, on virtually none of them.

17     Several of them there has been, and I can tell you exactly which ones

18     there.  Virtually the rest of them, there is none.

19             MR. MARGETTS:  Mr. President, if I can add another element to

20     that.

21             In addition to considering the forensic pathologist's evidence in

22     context with the other evidence that has been brought before the

23     Trial Chamber in relation to these deaths, the other factor that's --

24     that is indicative of the relevance of these autopsy reports is that the

25     remains of the victims that have been the subject of these forensic

Page 15719

 1     examinations, and these persons are referred to in large part in Croatian

 2     official documents, and so another factor comes to bear; and that is the

 3     extent to which the deaths of these persons, be they unascertained, be

 4     they deaths by gun-shot injury, were within the notice of the accused.

 5     The accused knew of these deaths at the time, or alternatively, other

 6     members of the JCE or the subordinates knew of the deaths at the time.

 7             So it brings to bear another element of the case, that element

 8     being the notice case and the failure to investigate, the failure to

 9     ensure that the climate of fear generated by this large number of

10     killings continued.  So they failed to ensure that the Serbs felt safe on

11     the territory.

12             So in our submission there is another element here that's

13     important in terms of addressing the evidence we have, in relation to

14     these victims.  The Prosecution has not at all listed all of the killings

15     that they are aware of.  They have listed the killings that are relevant

16     to elements that are in the indictment, and one of those elements is

17     knowledge and the failure to respond and protect the Serb population.

18             MR. KEHOE:  Mr. President, I am needless to say, shocked by that

19     submission.  I mean, the Prosecution knows full well that deaths in a

20     cemetery or in an area mean nothing.  They have not presented one iota of

21     evidence that General Gotovina had any knowledge of any murder or

22     criminal activity, zero.  None.  They have nothing before the Chamber.

23     What this is, what this is, is an attempt to put fort a litany of bodies

24     to essentially shock the Chamber, so the Chamber concludes that something

25     untoward happened, i.e., murder, that the accused must have had knowledge

Page 15720

 1     of, and there is no evidence to support that.  And I offer to -- to

 2     Mr. Margetts to present some evidence that the accused knew of these

 3     particular items, that they knew that people were murdered.

 4             The Prosecution can't even say when these people were buried.  It

 5     is it -- they have yet addressed one of the larger issues here,

 6     Mr. President, is that the - I don't want say the vast majority - that

 7     almost 50 percent of these bodies were found in a different

 8     Military District.  They were not in the Split Military District.

 9             MR. KUZMANOVIC:  Your Honour, may I add something to that.

10             JUDGE ORIE:  Yes, Mr. Kuzmanovic.

11             MR. KUZMANOVIC:  What is happening here is essentially the burden

12     of proof is being reversed.  These people were killed, and you have to

13     proof that you had nothing do with it.  That's not the way it should be.

14             JUDGE ORIE:  I'm not aware that the Prosecution is in a position

15     to reverse the burden of proof.

16             MR. KUZMANOVIC:  That's factually what they're trying to attempt

17     to do here, Your Honour.  By putting these people on this list and giving

18     us either -- you know, you can see on the annex, for example.  It filed

19     in July, and I can just give you an example.  Number 53 on the annex

20     which is P1553 says that this particular person was killed on 5th August,

21     and then P1553, it says it was the 10th of August.

22             How am I suppose to cross-examine a pathologist who knows nothing

23     about that on that particular issue?  Whose burden is that?  Is that my

24     burden?  Or is that the Prosecution's burden?  What's happening here

25     essentially, and one of the reasons I sent an e-mail to Mr. Margetts last

Page 15721

 1     night with respect to the Appeals Chamber's decision remanding the

 2     further clarification to the Trial Chamber was, how can you present

 3     evidence that the Appeals Chamber said isn't necessarily in play because

 4     the Trial Chamber hasn't decided the issue of the remand yet on the two

 5     issues that the Appeals Chamber said the Trial Chamber must decide.

 6             Now obviously, it was a week and two days ago that the

 7     Trial Chamber got this, and no one expects the Trial Chamber to make a

 8     decision so quickly given all things that have been going on.  But how

 9     can evidence be presented and exhibits be presented on issues that still

10     are still not decided with this particular witness.  And then how are we

11     to cross-examine on that?

12             For this particular witness to testify on issues related -- on

13     issued related to the clarification that was filed in July, given the

14     fact that there has been no decision from the Trial Chamber on this, I

15     think it is premature for this particular witness to testify now on those

16     issues.

17             MR. KEHOE:  This witness --

18             JUDGE ORIE:  Mr. Kehoe, it is not a debating club here, but it is

19     a court of law.

20             Mr. Margetts, would you like to respond?

21             MR. MARGETTS:  Yes, Mr. President.

22             The first issue --

23             JUDGE ORIE:  Briefly please.

24             MR. MARGETTS:  [Previous translation continues] ... I 'all deal

25     with is that Mr. Kehoe referred to the fact that he asserts that these

Page 15722

 1     killings took place outside the Split Military District.  We would say

 2     the relevant area that he should be referring to is the area described in

 3     the indictment, which is not defined by the Military District but is

 4     defined by the municipality.

 5             The second issue is that Mr. Kehoe claims there has been no

 6     evidence in relation to the knowledge of the accused of these killings.

 7     We differ on that.  We say that contemporaneous documents demonstrate

 8     abundantly that the accused and other members of JCE were informed in

 9     writing about the killings of these civilians, and they were informed

10     also you've heard witness testimony to the fact that these matters were

11     discussed in meetings with the accused.

12             The third issue I'd deal with is the issue of this matter being

13     referred back, an issue raised by Mr. Kuzmanovic.  The clarification, the

14     further clarification of July 2008 that sets out -- lists all of these

15     victims, it was challenged on the 24th of July, by the Gotovina Defence.

16     The Trial Chamber made a decision.  The Appeals Chamber has now requested

17     that that decision count -- well, has ordered that that decision come

18     back to the Trial Chamber.

19             We're in no different position today than we were on the 24th of

20     July.  And we have carried on this trial since the 24th of July, when the

21     Defence objections to the further clarification were on the record

22     within.  And it was within the hands of the Trial Chamber as to whether

23     the further clarification of the Prosecution would be allowed.  Again,

24     this is an interlocutory matter before the Trial Chamber, and there's no

25     merit we say whatsoever, in the current application that the Defence have

Page 15723

 1     belatedly put before you, and the reasons being that, effectively, it is

 2     just an interlocutory application for the Trial Chamber to consider.

 3     It's not a ground for adjournment of the proceeding which is effectively

 4     what they seek.  Because following witnesses will be talking about

 5     killings that fall within the further clarification.

 6             So we say this is a wholly meritorious application and should be

 7     dismissed.  And I go back to the other issue, and it's not just the

 8     further clarification that the evidence of Dr. Baccard is relevant to.

 9     It's relevant to the general elements of widespread and systematic, the

10     proof of how many people, how many civilians were killed.  It's also

11     relevant to the issue that I raised before, for instance, I can quote the

12     paragraphs of the indictment, paragraph 17(D) to (E) that deal with the

13     failure of the accused to act, the failure of the accused having notice

14     that all of these people were being killed, the failure of the accused to

15     stop those killings.

16             JUDGE ORIE:  I asked you to be brief, Mr. Margetts.

17             MR. KEHOE:  One brief comment, just very briefly, Mr. President.

18             JUDGE ORIE:  Yes.  But I would also like you to respond

19     specifically on the issue raised by Mr. Margetts as to the geographical

20     scope of the indictment as the determining factor, rather than the area

21     of responsibility of the Split Military District.

22             MR. KEHOE:  The response --

23             JUDGE ORIE:  If you would include that in your answer within the

24     next two minutes.

25             MR. KEHOE:  My response to that is twofold.  They have put a

Page 15724

 1     broad reach in the indictment and covered areas that were in the Gospic

 2     Military District that have no application to our client with no

 3     responsibility whatsoever.  Those -- to the extent that the Prosecution

 4     is arguing that HV troops committed crimes in a different sector, that

 5     cannot be lead at the feet of General Gotovina.  The more serious problem

 6     with the argument of Mr. Margetts is not one of deaths.  It's not one of

 7     people dying because people die in a war.  The question here is murder,

 8     and knowledge of murder.  They are put forth no evidence whatsoever,

 9     zero, that General Gotovina had knowledge of murders.  And that is the

10     issue here.  They have nothing in that regard.  Now to compound the

11     problem, they are saying, We're going to put before this Chamber issues

12     of killings where there has been no evidence of -- that it is in fact a

13     murder and -- it takes place in an entirely Military District.  Killing

14     itself, people dying, is not a crime.  What is a crime is murder.  And

15     the Prosecution has put forth no evidence with regard to General Gotovina

16     of knowledge of any of these murders.  None.  And they have simply tried

17     to compound this problem by adding to people's deaths in areas that are

18     not even under his command and control.  It is extremely prejudicial.

19             MR. KUZMANOVIC:  Your Honour, may I add to that the specific

20     issue regarding --

21             JUDGE ORIE:  Yes, May I -- before I give you an opportunity to do

22     so, Mr. Kehoe, you said well, not even in the Split Military District,

23     Gospic, but often I do not find a positive determination of in whose area

24     of responsibility the incident may have happened.  Sometimes it is

25     specifically said it was in the area of responsibility of the special

Page 15725

 1     police and not of the Split Military District which is not the same as

 2     Gospic.  And I can imagine that Mr. Kuzmanovic would like to perhaps also

 3     comment on that part of the submissions made by the Gotovina Defence.

 4             Mr. Kuzmanovic.

 5             MR. KUZMANOVIC:  Your Honour, I think there was a corrigendum

 6     filed by Gotovina Defence on the issue of area of responsibility

 7     specifically related to the special police so --

 8             JUDGE ORIE:  Could I just have a look.  When was that?

 9             MR. KUZMANOVIC:  I think the corrigendum was filed last night,

10     Your Honour.  Our courtesy copy was sent last night.

11             JUDGE ORIE:  I'll check then whether it reached [Overlapping

12     speakers] ...

13             MR. KUZMANOVIC: [Overlapping speakers] ...  I can address that

14     issue anyway, Your Honour.

15             JUDGE ORIE:  Yes, please do so.

16             MR. KUZMANOVIC:  Two things.  First, I want to relate back to the

17     issue of area of responsibility.  We can all agree that Korenica is not

18     in any area of responsibility relating to this indictment, yet one of the

19     exhumations that takes place is from the cemetery in Korenica.  And we

20     have to deal with that in our list of additional scheduled killings,

21     among other things, and in Dr. Baccard's report.  My question would be,

22     How is that applicable to us in this case?  An exhumation in a cemetery

23     that is nowhere near where our clients were operating.  That's number

24     one.

25             Number two, as another example, one of the exhibits, P1554

Page 15726

 1     discusses the death of someone who was in uniform which is a soldier, and

 2     the cause of death is it most likely an explosive injury to the head,

 3     trunk, and limbs.  How is that a murder?  How is that a murder?  That's

 4     out of the additional list of scheduled of killings.  There are 189

 5     additional scheduled killings.  And for us to have to deal with this

 6     particular witness on 189 additional scheduled killings going through

 7     these one by one under the circumstances in which that further

 8     clarification still hasn't been effectively decided is a very difficult

 9     thing to do in cross-examination.

10             Now, the issue of area of responsibility.  The Chamber will

11     recall that in this particular area, for example, in Gracac, the special

12     police did not have effective control of territory.  They had an axis of

13     attack.  And they were under the command of the Main Staff of the

14     Croatian military.  Now if you look, for example, at the date of the

15     finding of the body of this particular person in P1554, on the road

16     between Gracac and Otric, the date of the finding of the body was

17     August 10th.  The special police was not there on August 10th.  The war

18     diary of the special police, which has been submitted as an exhibit, and

19     our response, specifically says when and where special police were

20     operating.  They were not in this area on August 10th of 1995.

21             Those are the kinds of things that, unfortunately, we're going to

22     have to go through in cross-examination of this particular witness to

23     show that we, either, for example, the special police was not present

24     with respect to this particular exhibit P1554, or there are some other

25     circumstance.  That's what we're going to have to do, given the

Page 15727

 1     description in every single autopsy report.

 2             JUDGE ORIE:  Yes.  Unless the witness would state in a more

 3     general way that he has not any knowledge, Mr. Kehoe would say, none,

 4     zero, about - I usually leave it to not any knowledge - to the

 5     whereabouts of whatever units or whatever troops, and that the only thing

 6     he did, is that this is information he can't confirm nor deny.

 7             MR. KUZMANOVIC:  I definitely understand that, but the whole

 8     proposition of use of this witness and these exhibits is an attempt to

 9     establish responsibility on our three individual clients.

10             JUDGE ORIE:  Or to establish some factual -- some facts that were

11     observed by -- by the expert.

12             Now, that might keep you even more divided.  Mr. Kehoe said that

13     he was shocked, and he, a few lines later, said that the Prosecution was

14     aiming at shocking the Chamber.  I don't know whether there's any

15     relationship between perhaps easily being shocked and expectations that

16     others will be shocked.  I'm not saying that Mr. Kehoe was easily

17     shocked, but at least he was shocked.  We have to look at the -- what has

18     been submitted to the Chamber.  Where is the line between being

19     convinced, being surprised, being shocked, there is a wide variety of

20     effects.  And I do understand that where Mr. Margetts claims that he has

21     honest intentions to assist the Chamber rather than to mislead the

22     Chamber, that that is not a shared view -- that that view is not shared

23     by the Defence.  That is perfectly clear to the Chamber.

24             MR. KUZMANOVIC:  I'm not questioning anybody's honesty, Your

25     Honour.  My position is that when the Appeals Chamber makes a decision

Page 15728

 1     remanding whether or not 189 additional killings can be the subject of

 2     the amended schedule, and the Trial Chamber has not yet decided that

 3     issue, and the Prosecution wants to go ahead and put evidence in there

 4     through this witness anyway, I think there is some issue there that I

 5     have with that, from an officer of the court standpoint.

 6             JUDGE ORIE:  Mr. Margetts.

 7             MR. MARGETTS:  Mr. President, if I could be very brief.

 8             JUDGE ORIE:  Yes, of course, you may be very brief.  You would

 9     like to say something?

10             MR. MARGETTS:  Yes, I would like to respond to a number of those

11     matters.  The first thing is that what we have done, is we have redacted

12     from Dr. Baccard's report all references to the Korenica victims, the

13     reason being that none of them appear in any of the clarifications or

14     schedules we have filed.

15             The second thing is, I think, Mr. President, you have dealt with

16     it entirely.  It seems to me that Mr. Kuzmanovic is arguing about merits

17     of the case and ultimate submissions as to the linkage to his accused,

18     rather than the relevance of this specific evidence relating to the

19     limits of what this specific witness can testify about.  He was in a

20     mortuary in 2002; he made observations about the remains.  That is what

21     his evidence is about, and it doesn't extend further.

22             In terms of this being new to the Defence, that there are 189

23     killings, the Prosecution never, never limited the number of killings.

24     There was a schedule to the indictment; there was a clarification in

25     March 2007; there was a further clarification in March of 2008.  These

Page 15729

 1     killings were always the subject of this proceeding, and they were

 2     expressly identified by the Prosecution to aid the parties, and the

 3     parties should have been addressing these killings well before July 2008.

 4     In July 2008 assistance was given to the parties and the Trial Chamber

 5     with this further identification.  The proceeding continued from

 6     July 2008, while the Trial Chamber's decision -- were awaiting the

 7     decision.  There is no reason today for this proceeding to be effectively

 8     adjourned and the evidence of this witness on these matters not to be

 9     heard.  There is no prejudice whatsoever to the Defence, should this

10     witness, in addition to the 11 killings that he will refer to in the

11     schedule and the clarification, if he also refers to killings that are in

12     the further clarification.  There is no prejudice.  We're in no different

13     position to the position we were in, in July 2008.

14             JUDGE ORIE:  Yes.  It took me a while to find the example I

15     referred to earlier.  That is, not in the indictment, not in the

16     clarification schedule, and the cause of death unknown.  Because that is

17     one of the examples I said I thought I would have found one.

18             Mr. Margetts, under M we find 65 ter 6050, cause of death

19     unknown.  Not in the indictment, not in the clarification schedule, and

20     it was added not occurring in the area of the Split Military District.

21     So apart from to what extent that is the determining geographical factor,

22     but what is the probative value of this case?

23             MR. MARGETTS:  Yes, Mr. President.  We emphasise the -- the

24     extent to which this witness can testify about circumstances of death.

25     This witness can testify about cause of death, well, insofar as he can

Page 15730

 1     ascertain it and be certain of it from the remains.  Where the cause of

 2     death is unknown, it doesn't mean that there aren't features that are

 3     observed by this witness about the body that would alert those that

 4     disposed of the body, and we have heard a lot of the evidence about the

 5     systematic disposal of the bodies, that there should have been an inquiry

 6     into it.

 7             Now if that inquiry eventually came up with the same conclusion

 8     that Dr. Baccard came -- or that Strinovic or the Croatian examiners

 9     arrived at after a proper examination, taking into the account

10     circumstances, the criminal investigation, and all those things, that is

11     one issue.

12             What we have here is a forensic pathologist who can say that, In

13     2002, I couldn't ascertain the cause of death.  Now if in 1995 proper

14     steps had been taken, that is it not dispositive of whether or not the

15     accused and those subordinate to them, if they had done what they're

16     obliged to do, would have been able to determine that cause of death.

17             So the findings of this witness are variously strong as to cause

18     of death.  Finding that there's none ascertained cause of death, does not

19     exclude his evidence as being evidence of value.

20             JUDGE ORIE:  The procedural order would that we have heard the

21     objections; we have heard the response; we have heard this in two or

22     three rounds.

23             The Chamber will consider the matter.

24                           [Trial Chamber confers]

25             JUDGE ORIE:  The Chamber would prefer to consider the matter

Page 15731

 1     during the break.  We would then have a rather early break.  This allows

 2     also to look at any addenda or corrections that have been filed and which

 3     are not known to the Chamber yet.

 4             So, therefore, if the parties would ensure, together with the

 5     legal officer, that the Chamber has received everything the parties

 6     wanted to submit, we'll look at it at the break.  And then after the

 7     break, Mr. Margetts, you'll have the opportunity to call your next

 8     witness.

 9             MR. MARGETTS:  Thank you, Mr. President.

10             JUDGE ORIE:  Mr. Kuzmanovic, anything?

11             MR. KUZMANOVIC:  One thing, Your Honour.  With respect to the

12     Appeals Chamber decision, I would just encourage the Court, if it has the

13     time to look at paragraphs 19 through -- basically through 21 again.

14     Specifically --

15             JUDGE ORIE:  It's always under my -- [overlapping speakers] ...

16             MR. KUZMANOVIC:  Specifically related to the argument that the

17     Prosecution had no obligation to notify of this -- the additional further

18     clarification.  And that's dealt with in the Appeals Chamber's decision.

19             JUDGE ORIE:  Yes, of course, that's the core of the decision.

20             Mr. Kehoe, anything.

21             MR. KEHOE:  Yes, Mr. President.  Just on that score, I believe

22     that approximately 30 of the 53 autopsies that counsel is attempting to

23     put in, I do believe are -- bear on the appellant decision and the

24     obligation of the Prosecution to notify the Defence as soon as possible

25     which is something they have yet to do.  So it is virtually -- well in

Page 15732

 1     excess of half of them are going to come into play specifically on

 2     paragraph 20 of the appellant decision says, The obligation resting upon

 3     the Prosecution to name the alleged victims to the extent possible,

 4     logically implies that it should do so as soon as practical after

 5     obtaining the information in order to facilitate the preparation of an

 6     effective Defence.

 7             That simply is response to the comments made by --

 8             JUDGE ORIE:  Yes, Mr. Kuzmanovic has already invited us to read

 9     19 to 21.  And 20, as far as I'm aware of, is just in the middle of that.

10             MR. MARGETTS:  Mr. President, if I may, in terms of the pleading

11     of the Defence, I just looked at paragraph M and the final sentence that

12     you referred to me to regarding 65 ter 6050, the cause of death is also

13     unknown.  I, in fact, differ with that --

14             JUDGE ORIE:  I will check that.  And you will understand that if

15     we get some 30 -- late at night if I open my mailbox at home and read

16     this, I have not the entire underlying documents available.  But you draw

17     our attention to the fact that in M you consider that the report on the

18     cause of death is inaccurate.

19             Mr. Kehoe, there I would like to ...

20             MR. MARGETTS:  If can I refer my learned friend.  As I understand

21     it, 65 ter 6050, P1689 refers to autopsy report G04, 30B, which is

22     referred to in Dr. Baccard's report at page 75 and the autopsy report of

23     2nd November, 2002, of Davor Strinovic concludes that the cause of death

24     was blunt force head trauma or explosive head injury.

25             MR. KEHOE:  It is interesting because the charging document that

Page 15733

 1     you have included where it sets forth the cause of death in virtually all

 2     of them, expect those were unknown that the Prosecution left blank.  So

 3     when it is unknown, they leave it blank but -- and they have done so with

 4     regard to this instance, so I take it from the Prosecution's position

 5     that they have no idea why this person died.

 6             JUDGE ORIE:  So the way in which the Prosecution presents the

 7     results is guiding you, rather than the original material.

 8             MR. KEHOE:  No, both.  I will tell you, the original material,

 9     because I'm not sure what other material they have.  And I'll give a case

10     in point:  They have charged in this document, in their -- in their

11     schedule that an individual was killed in Donji Lapac on the 5th, for

12     instance.  Now if you look through the documents of the autopsies, it

13     doesn't say anything about the 5th.  But I assume that the Prosecution

14     has done additional investigation to come to the conclusion that this

15     person was killed on the 5th.

16             JUDGE ORIE:  Yes.  In view of the example, I'm not dealing with

17     other matters that we have looked at already.

18             MR. KUZMANOVIC:  Your Honours, that does go directly to the issue

19     of notice.  Because if on the schedule, these things are all left blank,

20     and then in the autopsy report, it says unknown, I mean that -- and the

21     schedule which we received in July and the autopsy reports which we did

22     not receive, I believe, until October, I'm not sure exactly when we got

23     the reports, but when we got Dr. Baccard's original exhibit list and with

24     all the reports, I think that came some time in October, I mean, that

25     goes directly to the issue of notice.

Page 15734

 1             MR. MARGETTS:  Mr. President, all of this material was available

 2     to the Defence from April 2007.

 3             MR. KEHOE:  [Microphone not activated] That is absolutely not the

 4     case.  All of this material was not available to the Defence since

 5     April of 2007.

 6             MR. MARGETTS:  Mr. President, the situation is we've looked at

 7     the disclosure, a CD that was intended to include all of the material and

 8     did include 90 percent or more of the material was provided in

 9     April 2007.  Now, the second issue is that then on -- in e-court the

10     material was uploaded, and the references to that material was made very

11     clear, and all the Defence had to do was to call us to supplement that

12     disclosure.  It was, in fact --

13             JUDGE ORIE:  [Overlapping speakers] ...

14             MR. KEHOE:  [Overlapping speakers] ...  you've got to be kidding

15     me.

16             JUDGE ORIE:  Mr. Margetts, you say that all -- that means

17     90 percent was available and all would have been available if the Defence

18     would have called you to make it available.

19             MR. MARGETTS:  Mr. President.

20             JUDGE ORIE:  That is a puzzle which I think for to us consider

21     during the break.

22             MR. MARGETTS:  Mr. President, in our submission, it was effective

23     disclosure, and it was understood by us from disclosure records we had

24     that all of the material was provided to the Defence.  It has been in

25     their possession for over a year, all of it, and we say, effectively

Page 15735

 1     disclosed to them for almost two years.

 2             JUDGE ORIE:  May I take it that you say to the extent it was to

 3     be found somewhere that this is not effective disclosure.

 4             MR. KEHOE:  Your Honour, I think my daughter would call that an

 5     egg-hunt, to try to decipher what the Prosecution was trying to present.

 6     We will go through chapter and detail concerning the disclosures on these

 7     autopsies and their deficiencies coming from the Office of the

 8     Prosecutor.  I will present those to them.  It -- it is simply not

 9     accurate what was just been said to this Court.

10             JUDGE ORIE:  The difference of view is clear, and it's now also

11     clear why Mr. Kuzmanovic would like to spend the Easter weekend at home.

12             We will have a break, and we will resume in half an hour.

13                           --- Recess taken at 10.09 a.m.

14                           --- On resuming at 10.48 a.m.

15             JUDGE ORIE:  Yesterday two motions were filed.  One was motion to

16     exclude the evidence of Dr. Eric Baccard.  That motion is denied, reasons

17     to follow.  Although not exactly the same matter, different, perhaps not

18     totally unrelated, motion to reconsider filed yesterday, to reconsider

19     the 25th of November decision.  That motion will be decided in due

20     course.

21             The Chamber is working hard on decisions that will have to be

22     taken as a result of the decision of the Appeals Chamber.  The Chamber

23     was pleased to hear that it was not expected that we do that in a hurry,

24     and it might even be necessary to come back to the parties for some

25     factual details before we finally decide on that matter, but we're

Page 15736

 1     working hard on it, but we have not yet finished.

 2             As far as the exhibits are concerned in relation to the next

 3     witness to be called, it has been emphasised, it has been stressed that

 4     there is a relation between these exhibits and the decision still to be

 5     taken as a result of the Appeals Chamber decision.  Final decision on

 6     admissions will not be taken.  Exhibits will be marked for

 7     identification, apart, of course, for any exhibit that is already in

 8     evidence.  There, perhaps we would have to reconsider; we'll deal with

 9     that.

10             The Chamber expects and the Chamber intends to finally decide on

11     admission more or less simultaneously with the other decisions still to

12     be taken, and the parties should not expect that we give any final

13     decisions on admission prior to these other decisions.  Whether we make

14     it deciding the matter simultaneously is still to be seen.  But that is

15     at least what we're trying to do.

16             Mr. Margetts, if you let me finish first, and then if there's any

17     -- any questions, we'll hear from you.

18             Finally, the parties are invited to deal with any exhibits on the

19     basis of a proper understanding of what an expert can tell us and what he

20     can't tell us.  We do not expect whatever is there on paper that an

21     expert, who, at a certain moment in time, is involved in exhumations or

22     post-mortems, that he would know any specifics about circumstances under

23     which the person died, which are not a result of his expertise in looking

24     at the bodily remains.  So whether someone died at 3.00 or 4.00, apart

25     from where perhaps a watch has been shot at the same time, and then still

Page 15737

 1     it's to be seen this is more forensic expertise than the expertise of

 2     this witness.  But there's no need it ask the expert, Is it true that you

 3     have no knowledge of this?  Is it true that you have knowledge of that?

 4     And, Mr. Margetts, you're invited to positively establish what the expert

 5     can't tell us, and that should not take too much time.

 6                           [Trial Chamber and registrar confer]

 7             JUDGE ORIE:  Mr. Margetts, you earlier were on your feet.

 8             MR. MARGETTS:  Yes, Mr. President.  I note that in respect of the

 9     reconsideration of the decision, you suggested that you may or may not

10     invite submissions from the parties.  If --

11             JUDGE ORIE:  Invite submissions from the parties on ...

12             MR. MARGETTS:  Further factual bases that may be relevant to the

13     further consideration.

14             JUDGE ORIE:  Yes.

15             MR. MARGETTS:  In so far as a decision is rendered in regard to

16     the clarification, we may -- on the basis of that decision, we should

17     have put further submissions in relation to the relevance of the

18     documentation.  And so at this stage, I just indicate it may be

19     preferable from the Prosecution's point of view if the issue of the

20     further clarification and the issue of the admission of the documentation

21     were not decisions that were rendered simultaneously, but if the further

22     clarification decision could be rendered and possibly an opportunity for

23     the parties to then put further submissions as to relevance of the

24     material, having had the opportunity to consider the further

25     clarification decision.

Page 15738

 1             JUDGE ORIE:  Yes.  You're inviting to us to kind of a second

 2     round on the relevance after we would have decided the clarification

 3     issue and reconsideration.

 4             MR. MARGETTS:  Yes, Mr. President, I'm just minded to the fact

 5     that the clarification, the relevance of the clarification is clear.  If

 6     the clarification is in any way changed, we may wish to put additional

 7     submissions.

 8             JUDGE ORIE:  Yes.

 9             MR. KEHOE:  Mr. President, just as an officer of the Court, the

10     submission that we made, I recognise that the motion has been denied, and

11     I'm not re-arguing that; however, we went back through, and I noticed a

12     couple of errors in the submission that we made.  I know it has been

13     denied, but in the spirit of accuracy, I'll just file a corrigendum --

14     [Overlapping speakers] ...

15             JUDGE ORIE:  Yes.  If that would assist us, especially later when

16     we have to decide on admission, then, of course, it is welcomed if you --

17     if you would bring it to your attention.

18             MR. KEHOE:  Yes, Your Honour.

19             JUDGE ORIE:  Then, Mr. Margetts, are you ready to call your next

20     witness?

21             MR. MARGETTS:  Yes, Mr. President, we're ready to call our next,

22     Dr. Eric Baccard.

23             JUDGE ORIE:  Thank you.

24             I was informed that Mr. Baccard would not be available to

25     continue next week but only the week after that.  Well, that being the

Page 15739

 1     situation, of course, the parties are even more -- but I take it that

 2     we'll not finish with the witness today.  That's at least my expectation.

 3     But there is no possibility then to hear his evidence early next week.

 4             MR. MARGETTS:  No, Mr. President.  We made the inquiry also with

 5     the witness, and he indicated that he wouldn't be available to continue

 6     the testimony on Monday or Tuesday.

 7             JUDGE ORIE:  Yes.

 8                           [The witness entered court]

 9             JUDGE ORIE:  Good morning, Mr. Baccard.

10             THE WITNESS:  Good morning, Your Honour.

11             JUDGE ORIE:  Mr. Baccard, before you give evidence in this court,

12     the Rules of Procedure and Evidence require that you make a solemn

13     declaration that you speak the truth, whole truth, and nothing butt

14     truth.

15             May I invite you to make that solemn declaration.

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

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

18             JUDGE ORIE:  Please be seated.

19             Mr. Baccard, you will first be examined by Mr. Margetts.

20     Mr. Margetts is counsel for the Prosecution, as you most likely aware of

21     already.

22             Mr. Margetts, please proceed.

23             MR. MARGETTS:  Thank you, Mr. President.

24                           WITNESS:  ERIC BACCARD

25                           [Witness answered through interpreter]

Page 15740

 1                           Examination by Mr. Margetts:

 2        Q.   Good morning, Dr. Baccard.

 3             Dr. Baccard, could you please state your full name for the

 4     record.

 5        A.   Yes, my name is Eric Baccard.

 6             MR. MARGETTS:  And, Mr. President, if we could bring up 65

 7     ter 6032 onto the screen, please.

 8        Q.   Dr. Baccard, if you could look at the screen on the left there,

 9     can you confirm that that is your curriculum vitae?

10        A.   Yes, that's right.

11             Could you scroll it down and move it to the second page, please.

12             MR. MARGETTS:  And, Mr. Registrar, if we could move to the next

13     page.

14             JUDGE ORIE:  Mr. Margetts, one small question for Dr. Baccard.

15             [Interpretation] Mr. Baccard, you're being shown a text in

16     English.  Can you tell us that you have a sufficient master of the

17     English language in order to be in a position to answer questions on --

18     regarding an English document.

19             THE WITNESS: [Interpretation] Yes, absolutely.  In the course of

20     the years, I have learned some English, and I have a good knowledge of

21     English.

22             JUDGE ORIE:  [Interpretation] Since you don't have any problems

23     with English text, and if you do, please let us know.

24             THE WITNESS: [Interpretation] Yes.

25             MR. MARGETTS:  Thank you, Mr. President.

Page 15741

 1             And, Mr. Registrar, if we could move to the third page of the

 2     curriculum vitae, please.

 3        Q.   And, Dr. Baccard, having reviewed the three pages, are you able

 4     to confirm that that is your curriculum vitae?

 5        A.   Yes, that's correct.

 6             MR. MARGETTS:  Now, Mr. President, if we could please have an

 7     exhibit number and Dr. Baccard's CV could be admitted into evidence.

 8             JUDGE ORIE:  No objections.

 9             Mr. Registrar.

10             THE REGISTRAR:  Your Honours, that becomes Exhibit P2313.

11             JUDGE ORIE:  And is admitted into evidence.

12             MR. MARGETTS:

13        Q.   Dr. Baccard, I confirm on the basis of your CV that you're a

14     forensic pathologist of 27 years standing and that you're currently

15     engaged by the Office of the Prosecutor at the International Criminal

16     Court in the position of forensic coordinator for the Office of the

17     Prosecutor.  Correct?

18        A.   Yes.  I work as a coordinator of the forensic and criminalistic

19     activities at the ICC, not the ICTY.  So it the ICC, International

20     Criminal Court.

21        Q.   Thank you, Dr. Baccard.

22             MR. MARGETTS:  And, Mr. Registrar, if we could please go to the

23     second page of Dr. Baccard's curriculum vitae.

24        Q.   Now, Dr. Baccard, I'd like to refer you to the middle of the

25     page.  And there's a reference there in the middle or just below the

Page 15742

 1     middle that refers to -- to the fact that you were president of the

 2     French Wound Ballistic Society until 1999.  And then under that there are

 3     details in relation to various positions that you were engaged in acting

 4     for and on behalf of the Office of the Prosecutor of the ICTY.  And I'd

 5     first like to refer to the reference to your activities in 1999.

 6             Would you be able to explain to the Court the role that you

 7     played as a forensic pathologist for the Office of the Prosecutor of the

 8     ICTY in 1999.

 9        A.   Yes.  I participated in the autopsies carried out in Bosnia in

10     Visoko in July 1999 as a forensic pathologist and then in Croatia, at the

11     mortuary of Zagreb of the Salata hospital in November and October 1999.

12        Q.   Thank you, Dr. Baccard.  And if we could go down a little bit

13     further, there's a reference to your engagement as the chief pathologist

14     of the Office of the Prosecutor between March 2000 to November 2000.

15             Are you able to explain to the Trial Chamber the tasks that you

16     undertook in that position and the various remains and the location that

17     those remains were exhumed from that you studied in that position.

18        A.   The activity that I carried out in 2000 as chief forensic

19     pathologist of the Office of the Prosecutor for the ICTY was in the first

20     place to set up a morgue with two post-Mortem rooms and seven autopsy

21     tables and then was charged to supervise the operation of this morgue

22     where you had multi-cultural, multi-disciplinary teams with

23     anthropologists, forensic pathologists, dentists, radiologists, and we

24     had to work on the corpses that were exhumed in various sites in Kosovo

25     in the course of the year 2000.

Page 15743

 1        Q.   Are you able to indicate to the Trial Chamber, if you remember,

 2     approximately grave sites in Kosovo the remains that you examined were

 3     exhumed from and approximately how many victims you and your team

 4     examined?

 5        A.   Well, I'm afraid I can't really come up with very precise

 6     figures.  But it's over 225 autopsies that were carried out in this

 7     mortuary in Orahavac in the south of Kosovo.

 8             THE INTERPRETER:  1500.  Correction of the interpreter.

 9        A.   I also worked with the mortuary which was in the British sector

10     in Pristina.

11             MR. MARGETTS:

12        Q.   Thank you, Dr. Baccard.  And then further down from the we have a

13     reference your engagement as a forensic consultant from February 2001 to

14     October 2002, again for the Office of the Prosecutor of the ICTY.  And

15     can you confirm that one of the assignments that you undertook in this

16     capacity was leading an ICTY, Office of the Prosecutor, ICTY monitoring

17     team of autopsies that were conducted by Croatian pathologists in Zagreb.

18        A.   That's correct.  The monitoring team including myself, of course,

19     but there was also an investigator and a photographer, an officer who was

20     also a scene of crime officer.

21        Q.   And the autopsies that you monitored in this role where -- of

22     remains that had been exhumed from three sites; Korenica, Rizvanusa, and

23     Gracac.  And the autopsies were conducted between May and June 2002, and

24     then, later, during September and October of 2002.  Is that correct?

25        A.   Yes, that's correct.

Page 15744

 1        Q.   Now subsequently to the monitoring mission, you were asked by the

 2     Office of the Prosecutor of the ICTY to prepare an expert report, and you

 3     prepared an expert report in relation to the -- your monitoring of the

 4     autopsies and reviewing the autopsy reports that were produced by the

 5     Croatian team in June 2003.  And that report related to the Korenica and

 6     Gracac sites.  Is that correct?

 7        A.   Yes, that's correct.

 8        Q.   And, Dr. Baccard, on Monday of this week, you met with

 9     representatives of the Office of the Prosecutor, and you were shown a

10     copy of that report from June 2003 that had been redacted by

11     representatives of the Office of the Prosecutor.  And you were given the

12     opportunity to compare that report, where parts have been redacted or

13     taken out of it, with your original report.  Is that correct?

14        A.   That's correct.

15             MR. MARGETTS:  And, Mr. President, if I could please have 65 ter

16     7038 presented on the screen.

17        Q.   Now, Dr. Baccard, this is a lengthy document of some 137 pages.

18     So I'll just show you the first page.  And can you see there, is that the

19     page that you signed on Monday?

20        A.   That's correct.

21             MR. MARGETTS:  And, Mr. Registrar, if we could please go to the

22     last page of this document.

23        Q.   And, again, Dr. Baccard, is that your signature and the date

24     reflecting Monday's date that appears on this, which is the final page of

25     that redacted report?

Page 15745

 1        A.   That's correct.

 2             MR. MARGETTS:  Mr. President, if we could please have an exhibit

 3     number.  This could be marked for identification.

 4             JUDGE ORIE:  Mr. Registrar.

 5             THE REGISTRAR:  Your Honours, marked for identification as

 6     Exhibit P2314.

 7             JUDGE ORIE:  And keeps that status for the time being.

 8             Please proceed.

 9             MR. MARGETTS:

10        Q.   Dr. Baccard, that report that I have just shown you, can you

11     confirm that that report that you saw, the redacted report that you saw

12     and signed on Monday, accurately reflects the findings that you came to,

13     having monitored the autopsies and having reviewed autopsy reports, in

14     relation to the various victims that are referenced in that report for

15     the Gracac exhumations?

16        A.   Yes, with the exception of the cases that were redacted, yes,

17     this is indeed the very same report.

18        Q.   Thank you, Dr. Baccard.

19             JUDGE ORIE:  May I just ask one question in this request,

20     Mr. Margetts.  You introduced in your question the word "victim."

21     Findings on bodily remains may sometimes or perhaps often not give a

22     possibility to identify whether they were victims.  They were persons who

23     had died.  When we're talking about "victims," can I take it,

24     Dr. Baccard, that we're talking about the bodily remains of the persons

25     who were the subject of the autopsies?

Page 15746

 1             THE WITNESS: [Interpretation] Yeah, that's correct, Your Honour.

 2             MR. MARGETTS:  Thank you, Mr. President.

 3             Mr. President, if we could please have 65 ter 7048 presented on

 4     the screen.

 5             Mr. President, it appears that we have a technical difficulty in

 6     locating 65 ter 7048 in e-court.  If I could just a moment while my

 7     assistant attempts to remedy that.

 8             MR. KEHOE:  Excuse me, Counsel.  It still hasn't been uploaded in

 9     e-court.  I think we can do it via Sanction; it might be more efficient.

10             MR. MARGETTS:  Yes, Mr. President, it is not uploaded.  I do have

11     a hard copy here.

12             MR. KEHOE:  Counsel, I have it on Sanction.  I can put it on

13     Sanction right now.

14             MR. MARGETTS:  Thank you.

15             JUDGE ORIE:  Thank you for assisting, Mr. Margetts.

16             Mr. Kehoe.

17             MR. MARGETTS:

18        Q.   Yes, Dr. Baccard, can you see the document that's now presented

19     on the screen before you?

20        A.   Yes, absolutely.

21             MR. MARGETTS:  And, Mr. Registrar, are you able to scroll down

22     this document?  No.

23             Mr. Kehoe or... Ms. Katalinic?  Could you assist us just to

24     scroll down the first page, and then if we could move to the second page.

25     Thank you very much.  And up to the top.  And back down, if possible.

Page 15747

 1     And then the third page.

 2        Q.   Dr. Baccard, can you confirm that that is a list that was

 3     presented to you by representatives of the Office of the Prosecutor and

 4     it references on -- in the right-hand column materials, documentation,

 5     autopsy reports that were available to you when you were preparing the

 6     report, your expert report.

 7        A.   Yes, that's correct.

 8             MR. MARGETTS:  Mr. President, if I could please have an exhibit

 9     number for the list, and it could be entered into evidence.

10             JUDGE ORIE:  Mr. Registrar.

11             THE REGISTRAR:  Your Honours, this becomes Exhibit P2315.

12             JUDGE ORIE:  Any objections against admission of this table?

13             MR. KEHOE:  Just to the extent that there are redactions from it,

14     Judge.  Based on Your Honours' decision, it may cause it to be changed.

15     I don't know if we want to MFI it subject to --

16             JUDGE ORIE:  Perhaps due to the relation with the other documents

17     that we MFI it for the time being.

18             MR. KUZMANOVIC:  Your Honour, I wanted to put on the record that

19     I do agree with that MFI proposal.

20             JUDGE ORIE:  Mr. Margetts.

21             MR. MARGETTS:  We would say that this merely reflects that that

22     was the basis for his conclusions with and doesn't reflect on the

23     admissibility of the underlying material.

24             JUDGE ORIE:  Yes.  Wouldn't it be -- wouldn't the relevance be

25     totally dependent on.

Page 15748

 1             MR. MARGETTS:  Yes, Mr. President.

 2             JUDGE ORIE:  So to that extent, it will be marked for

 3     identification.

 4             MR. MARGETTS:  Yes.

 5             JUDGE ORIE:  Please proceed.

 6             MR. MARGETTS:

 7        Q.   Dr. Baccard, in your report at page 4 you list the members of the

 8     monitoring team, and you list the members of the Croatian forensic

 9     pathology team that were present at the mortuary in Zagreb.  Would you be

10     able to just explain to the Trial Chamber the role that you played in

11     this monitoring mission and the extent to which you observed the various

12     steps that took place in the mortuary and the various procedures that the

13     Croatian pathologists undertook?  If you could just describe that to the

14     Trial Chamber, in general terms.

15        A.   The role of the monitoring team was to monitor the methods used

16     by the Croatian forensic experts in the course of the autopsies, and in

17     the very large sense of the term, so it include the geography of the

18     deceased and external examination and the post-mortem, so dissection

19     property speaking.  And then the other steps where we carried out

20     anthropological examinations and the cleaning up and examination of

21     clothing with a few exceptions.  We did not actually witness the

22     odontological examination which was carried out for identification

23     purposes only.

24        Q.   Thank you, Dr. Baccard.

25             I would like to refer to you an exemplar of the autopsy reports

Page 15749

 1     and other material that you had available to you when you were preparing

 2     your report.

 3             MR. MARGETTS:  And, Mr. President, if I could please have

 4     presented on the screen, 65 ter 6040 which is currently marked P1692.

 5        Q.   Now, Dr. Baccard, I'd just like to go through this exemplar

 6     autopsy report in order that can you explain to the Trial Chamber

 7     precisely the nature of each of the documents that in this collection

 8     materials, who prepared those documents, at what time you reviewed those

 9     documents, and the role that they played in the preparation of your

10     expert report.

11             And so the first page we see on the screen is the page that is

12     marked X0163310, and it's headed autopsy report, and that document

13     continues until page 3312.

14             So, Dr. Baccard, if could you just address first the autopsy

15     report and what is contained in the autopsy report and the role that

16     played in the preparation of your expert report.

17        A.   Well, this document is a translation of a report drawn up by the

18     forensic doctor, Dr. Blazanovic.  It's a document which obviously was not

19     handed out to me on the very day of the autopsy.

20             You have to realise that the presence of the Croatian forensic

21     expert was -- he was only there at the time of the autopsy.  So during

22     the radiological examination of the body, this was done by a radiologist,

23     and we were present but the -- a Croatian forensic pathologist was not

24     present.

25             After this initial step of the radiological examination, the

Page 15750

 1     radiologist draws up a report for his colleague, the Croatian forensic

 2     pathologist, and it is with that radiologist report that the Croatian

 3     forensic pathologist carried out the autopsy.

 4             Now obviously in the course of the autopsy, we were in

 5     attendance, and we were discussing with -- back and forth with our

 6     Croatian colleagues regarding their findings and their conclusions.

 7     These were only provisional conclusions because we were still missing a

 8     concern number of other data that were going to be available later, such

 9     as the pathologic data and the cleaning up and examination of clothing

10     and the odontological examination.  Now have you to realise that when you

11     deal with this one same body, all these expert examinations take a

12     certain time, and this time has been divided up.

13             Generally speaking the various operations were not carried out on

14     the same day.  So first you have a certain number of bodily remains to be

15     X-rayed.  And then maybe two or three days later, the autopsies are

16     carried out by the Croatian forensic pathologists and the autopsy

17     technicians.

18             In the course of the autopsy, the corpses are undressed.  The

19     pieces of clothing are taken by the autopsy assistant.  And in the

20     afternoon or maybe the following day, the pieces of clothings [as

21     interpreted] are washed and the projectiles are collected along with

22     personal belongings.  And everything is then exhibited in the autopsy

23     room, and that's when we were able to examine the pieces of clothing.

24     And generally speaking, when we were examining the clothing at the same

25     time we were carrying out anthropological examination.  That means that

Page 15751

 1     the bones that were collected in the course of the autopsy were cleaned

 2     up by the autopsy assistants or technicians, and these bones were

 3     displayed for the anthropologist, Dr. Mario Slaus.  And then finally came

 4     the time for the odontological examination.  This is when a forensic

 5     dentist who actually came maybe every five, six or, seven days, would

 6     examine the mandibles and the teeth of the corpses.  So it took place in

 7     different steps, if you like.  And what you find in the translation of

 8     the autopsy report, which you have before you, is a document which was

 9     established a posteriori by the forensic pathologist which -- and he

10     includes in his summary report the various reports established by his

11     colleagues, the radiographer, the anthropologist, and the findings made

12     after the examination of the clothing, and then the odontologist report.

13        Q.   [Previous translation continues] ... and we have before us on the

14     screen a summary of the findings, including the cause of death.

15             MR. MARGETTS:  And, Mr. Registrar, if we could please move to the

16     second page.

17        Q.   Dr. Baccard, if you could just take us through these various

18     sections marked A through to E.  I take it, Dr. Baccard, that in your

19     general description of the procedure and the various steps that were

20     undertaken that the results of those examinations of the remains, the

21     clothing, identifying features, bodies parts, and then injuries.  And

22     then we see, at the bottom if we scroll down, findings on fluoroscopy and

23     reference to the radiographer.  These matters were all collected into

24     this autopsy report.  Correct?

25        A.   Yes, that's correct.

Page 15752

 1             MR. MARGETTS:  Mr. Registrar, if we could move to the next page.

 2        Q.   And then you see that there is a final reference to samples that

 3     were taken, including a DNA sample.

 4             Now, Dr. Baccard, there's one further matter I'd like to proceed

 5     with looking at the documentation that you had available to you when you

 6     were preparing your expert report, but just one further matter.

 7             At the time that you were monitoring these autopsies, did you

 8     take notes and set down your observations contemporaneously with your

 9     monitoring of these examinations?

10        A.   Yes, of course, yes.  I was taking notes at the various steps of

11     the examination, be it at the X-ray examination or even at the time of

12     the autopsy or at the time of the anthropological examination and the

13     examination of the pieces of clothing.

14        Q.   And, Dr. Baccard, in June 2003 when you prepared your expert

15     report, did you have those notes available to you for review?

16        A.   Yes, absolutely.

17        Q.   Do you still have those notes, or have you misplaced them?

18        A.   I must have them.  However, I was not able to find them following

19     your request.  I moved twice in the meantime.  And just before I moved to

20     The Hague, those notes were lost or misplaced somehow.

21        Q.   Thank you, Dr. Baccard.

22             MR. MARGETTS:  Mr. Registrar, if we could please move to the next

23     page.

24        Q.   Dr. Baccard, this is an exhumation and mortuary evidence sheet.

25     Could you explain to the Trial Chamber what information this records and

Page 15753

 1     when it was compiled.

 2        A.   It is a document or a sheet that was established by the scene of

 3     crime officer, Mr. Frydenlund.  This sheet recaps in a general way

 4     various examination procedures and mentions also who was present at the

 5     examination.

 6        Q.   Thank you.

 7             MR. MARGETTS:  Mr. Registrar, if we could please move to the next

 8     page.

 9        Q.   Dr. Baccard, again, this page headed "clothing," could you

10     explain who prepares that.

11        A.   It's the scene of crimes officer.

12        Q.   And the nature of the observations that are set out in this

13     sheet, what type of observations are made?

14        A.   Essentially these are clothing and their features.  So everything

15     that can help us identify something.

16             MR. MARGETTS:  And, Mr. Registrar, if we could please refer to

17     the next page, which is headed "personal artefacts."

18        Q.   Dr. Baccard, who prepares this list of personal artefacts?

19        A.   Once again, it is the scene of crime officer.

20        Q.   And this document, is it prepared at the mortuary?

21        A.   That's correct.

22             MR. MARGETTS:  Mr. Registrar, if we could please move to the next

23     document, next page.

24        Q.   Dr. Baccard, does this refer to the fact that a DNA sample was

25     taken from the right femur?

Page 15754

 1        A.   Yes, that's correct.  A bone fragment of the diaphysis of the

 2     right femur.  And when I speak about the diaphysis, it is the long

 3     cylindric bone of the femur.  And this was -- a sample was taken in order

 4     to identify it through DNA.

 5        Q.   Thank you, Dr. Baccard.

 6             MR. MARGETTS:  And, Mr. Registrar, if we could move to the next

 7     page, which is an artefact listing.

 8        Q.   Again, is it the scene of crime officer that prepares this is

 9     page?

10        A.   Yes, that's correct.  And in this case it was Mr. Frydenlund.

11             MR. MARGETTS:  Mr. Registrar, if we could move through the next

12     series of pages which are a series of photographs.  That's from page

13     3318, and then 3318 B and C.

14        Q.   Dr. Baccard, are these the X-rays that were taken of the body?

15        A.   Yes, indeed.  To be more specific, these are body parts that had

16     a particular interest for us during the examination, and it was done

17     through an X-ray exam.

18             MR. MARGETTS:  Mr. Registrar, if we could please move three pages

19     on, which will be to 3318 B.  I may have gone one too far.  If you can

20     just go back one.  Mr. Registrar, about two.  Thank you.

21        Q.   Dr. Baccard, looking at that top X-ray what does that represent,

22     or what does that depict?

23        A.   The top X-ray shows vertebrae -- ribs - correction.  Some are

24     mixed, some are where they're supposed to be.  And there's a long object,

25     metallic elongated object which seemed to be a jacket, a projectile

Page 15755

 1     jacket.

 2        Q.   Thank you, Dr. Baccard.

 3             MR. MARGETTS:  Mr. Registrar, if with he can move to page 3319,

 4     which will be two pages on, I expect.  Yes, correct.

 5        Q.   This is the radiology report.  And does this radiology report

 6     describe those X-rays that we have just seen?

 7        A.   I suppose so, but since I do not read Serbo-Croatian, I cannot

 8     confirm it.

 9        Q.   When we referred to the translated autopsy report, we looked at

10     page, and at the bottom of page 2, there was a reference to fluoroscopy

11     findings.  When you prepared your expert report, did you rely on the

12     description of fluoroscopy findings that were set out in that autopsy

13     report that had been translated?

14        A.   No.  I did not have with me those notes, but I was present every

15     time the radioscopy of the bodies was made, and it was myself taking

16     notes.  Furthermore, the X-rays were available during the autopsy when

17     the autopsy was made, rather, but there was no report.  The radiologist

18     report did not exist at the time, or was not made available.

19        Q.   When you were preparing your expert report in June 2003, did you

20     have your notes?  And did you have copies of the X-rays?  And did you

21     have the translation of the autopsy report?

22        A.   I had the translation of the autopsy report, not as such, rather,

23     but only the part that was put in the report of the pathologist.  I also

24     had some X-rays.  We're not really talking about real X-rays.  Those are

25     rather pictures of X-rays and, of course, I had my own notes which I had

Page 15756

 1     taken during the X-ray exam itself.

 2        Q.   Yes, Dr. Baccard.  This confusion may be my own, but I'd just

 3     like to return --

 4             MR. MARGETTS:  Mr. Registrar, to the first three pages that we

 5     displayed with this exhibit, if I could, and just receive some

 6     clarification in relation to those.

 7        Q.   So, Dr. Baccard, this -- this document headed "autopsy report" --

 8             MR. MARGETTS:  If we could scroll to the next two pages.  And to

 9     the next page.

10        Q.   Sorry, this may just be my own confusion.  But at the time -- in

11     June 2003 when you prepared the expert report, did you have these three

12     pages available to you for review?

13        A.   Yes, absolutely.  I did.

14        Q.   Thank you very much, Dr. Baccard.

15             MR. MARGETTS:  Mr. Registrar, if we could now please move to --

16     and we'll go through the final pages relatively quickly, to page 3320,

17     which should be ten pages on from -- it should be page 10 or possibly

18     page 11.  Thank you.

19        Q.   These notes are headed "exhumation site notes."  Can you explain

20     to the Court when these were prepared?

21        A.   These notes were prepared during the exhumation to which I did

22     not attend.

23        Q.   [Previous translation continues] ... were these notes prepared at

24     the mortuary, or did you see them later when you were preparing your

25     expert report?

Page 15757

 1        A.   I believe that those notes were put -- were given to me later on

 2     but not at the time of the autopsy at the morgue.

 3             MR. MARGETTS:  Mr. Registrar, if we could please proceed to the

 4     next page.

 5        Q.   And, again, this is exhumation and mortuary operations, mortuary

 6     notes.

 7             Do you know who prepared this document?

 8        A.   This document was not prepared, apparently.

 9        Q.   Yes.  Who would have -- what would have been the purpose of this

10     document, had been completed?

11        A.   To complete the eventual discoveries that would have been made

12     during the autopsy and that were not taken into account at the time of

13     the exhumation, such as additional clothing that were not listed or

14     personal items that were not identified.

15             MR. MARGETTS:  Mr. Registrar, if we could go to the next page.

16        Q.   This page here, Dr. Baccard, when would have that been prepared?

17        A.   It's a note sheet that is usually used during the exhumation.

18             MR. MARGETTS:  Mr. Registrar, if we could move to the next page.

19        Q.   Dr. Baccard, this is a photograph.  Did you see these

20     photographs, which are taken more contemporaneously with the death, at

21     the time when you were in the mortuary, or did you receive them and

22     review them at some later time?

23        A.   I most certainly did see all these photographs when I drafted my

24     report.  In some cases, those photographs were available during the

25     autopsy.

Page 15758

 1             MR. MARGETTS:  And, Mr. Registrar, if we could please move to the

 2     next page.

 3        Q.   Again, this document here, when did you first see documents of

 4     this nature?

 5        A.   This document was annexed to the file that was given to me when I

 6     drafted my report.

 7             MR. MARGETTS:  If we move, please, to the next page,

 8     Mr. Registrar.

 9        Q.   Again, Dr. Baccard, who prepared this document?

10        A.   This is a report that is prepared in the Croatian language by the

11     Croatian forensic expert.

12             MR. MARGETTS:  And, Mr. Registrar, if we could please move to the

13     next page.

14        Q.   Dr. Baccard, who prepares this document?

15        A.   This is a report that shows the anthropological examination, and

16     it was drafted by the Croatian anthropologist, Dr. Slaus.

17             MR. MARGETTS:  Mr. Registrar, if we could please move to the next

18     page.

19        Q.   Dr. Baccard, this is it an odontology report.  Did you see this

20     when you were in the mortuary?

21        A.   Exceptionally, we were able to take part in the exam that was

22     carried out by the dentist so we were present.  But this exam was often

23     -- often took place at the same time as the anthropological exam.  So

24     this is a report, a handwritten report which was carried out at the same

25     time as the rest.

Page 15759

 1        Q.   Thank you, Dr. Baccard.

 2             MR. MARGETTS:  Now, if we could move to the next page,

 3     Mr. Registrar.

 4        Q.   Dr. Baccard, we have already dealt with this document in this

 5     collection.  It appears at 3319 as well as 3328.  So we won't deal with

 6     this one again.

 7             MR. MARGETTS:  And if we could move to the final document, which

 8     is a lengthy one.

 9        Q.   Dr. Baccard, what's this document that you see here?

10        A.   This is a report written in the Croatian language.  It's a

11     summary report.  It's an autopsy report in fact drafted by the forensic

12     expert and it takes into account everything, and it's his conclusion.

13             MR. MARGETTS:  And if we could just scroll through the remaining

14     pages, which are 3329 through to 3337.

15        Q.   And, Dr. Baccard, I --

16             MR. MARGETTS:  If we could move forward.  Move forward to the

17     next page.  Scroll down and then move forward.  And move forward again,

18     please, Mr. Registrar.

19        Q.   And, Dr. Baccard, can you confirm that that set of pages marked

20     3329 through to 3337 comprise the autopsy report that is prepared by the

21     Croatian pathologist?

22        A.   3397?  Is it 33 ...

23        Q.   [Previous translation continues] ... misspoken.  It's X0163337

24     which is the final page.

25        A.   Yes, that's correct.

Page 15760

 1        Q.   Thank you very much, Dr. Baccard.  Thank you for taking us

 2     through all of those pages.

 3             I just have one final matter I'd like to address.  And that's

 4     just for the benefit of the parties and the Trial Chamber.  When you're

 5     examining the remains and seeking to ascertain cause of death, can you

 6     explain to the Trial Chamber precisely what the -- the range of findings

 7     you can make are.  In other words, are there any limits, in terms of the

 8     extent to which you can describe circumstances or cause of death?

 9        A.   It's a very wide question, and I may give you a long answer.

10             As you know, when one carries out an autopsy, it is to determine

11     the cause and the circumstances of death.  The cause of death can only be

12     confirmed after a whole series of examinations, and this is various

13     procedures which will look at the state of conservation of the body, and

14     this may create a limit to the autopsy.  Then we have to see which

15     identification elements can be drawn up, whether -- to see whether it was

16     a male or female, if there any other characteristics such as scars,

17     tattoos, or other.  And afterwards, there is an inventory that's made of

18     various injuries.  And among those various injuries, we can find injuries

19     that are benign, and other injuries are more serious.  And can you also

20     find injuries that can be considered as being potentially deadly.  And

21     after establishing this inventory of wounds, one can come to a conclusion

22     as to the cause of death.  One can, for instance, have a victim or a

23     person that's deceased who received -- who is injured at the hand, for

24     instance, and there's a another person -- or if the same person received

25     also a bullet at the heart, of course, the cause of death is not the

Page 15761

 1     bullet found in the hand of the person but the bullet found in the heart

 2     because there is a cardiac arrest.  And so the determination, the cause

 3     of death, is only concluded at the end of the autopsy.  And then of

 4     course one has to determine the circumstances of death.  And the

 5     circumstances of death can be only -- the conclusion can be only made

 6     after examining various elements, whether it -- there's a whole slough of

 7     elements that one can find, whether it is an entry wound behind the head,

 8     or if you could see that a person was shot at point blank, whether there

 9     is an multiple lesions or dramatic lesions.  All this can eventually help

10     us conclude why the person died.  So, of course, you're asking me whether

11     there are limits to this exam.  Obviously, if the body is deteriorated --

12     the more the body is deteriorated, the more the conservation of the body

13     is bad, and the forensic pathologists will not have sufficient elements

14     to come to these conclusions.  Of course, it is it much easier to find

15     the cause of death, but the circumstances of death are much more

16     complicated.

17             Yes, Your Honour.

18             JUDGE ORIE:  [Previous translation continues] ... may I please

19     ask you to slow down for the interpreters.

20             THE WITNESS: [Interpretation] Yes, of course.

21             I was saying the conclusions that one can draw as to the

22     circumstances of death are usually made after a more refined analysis,

23     and it is based on various indicia.  It is much more difficult to find

24     out the circumstances of death than the cause of death.  As to the other

25     limits, there are other limits, and they are linked to the fact that a

Page 15762

 1     corpse may be whole or not.  We can sometimes only find body parts and

 2     that, of course, if -- if 80 percent of the body is missing, the forensic

 3     pathologist will have a lot of trouble to determine the cause of death,

 4     unless if, for instance, he has a skull in his hands, and there was a

 5     projectile injury at the skull.

 6             So to have the entire body is an important element.  The

 7     conservation of the body is also an important element, and this is why we

 8     are very often called to use various sources of information, whether it

 9     is photographs taken at the inhumation.  But it is also the X-rays, the

10     X-ray photographs are very important.  And this can show us small

11     elements that cannot be seen during the autopsy because of small

12     fragments that can be found there, and that are all inside the putrefied

13     parts.  And so the radiography, the X-ray is very important because we

14     can see the small elements.  Also the examination of clothing is very

15     important, and obviously one can make a difference or one can come to a

16     conclusion whether a person was injured by a projectile or because of an

17     explosive.  If you have a burst of small shrapnels, and you can see that

18     at a leg, and you have only one only entry point in a pair of trousers,

19     this will help to us understand, of course, aside from the small shrapnel

20     fragments, but this will be able to show us that there was one projectile

21     that entered and then fragmented, for instance.

22             So all these elements are taken into account when the forensic

23     pathologist is analysing the causes of death and the circumstances of

24     death.

25        Q.   Thank you, Dr. Baccard.

Page 15763

 1             In terms of the time of death and when the person died, what

 2     observations can a forensic pathologist make that would assist them in

 3     ascertaining time of death, if they are in fact able to ascertain time of

 4     death?

 5        A.   We are able to evaluate, of course, always approximately the time

 6     of death when we intervene very rapidly after the death of the person.

 7     But as time goes by it is more difficult to put a date to a death of a

 8     person with certainty and this is, of course, linked to the non-specific

 9     character of putrefaction, and also other factors that can influence

10     putrefaction.  For instance, how big the body is, whether the body was

11     dressed or not, the nature of the earth where the body is inhumated,

12     whether there is water that is around that area where the person is

13     found, whether there was plastic bag around the body, whether there was a

14     coffin, so all this influences the putrefaction factor.

15             So during the examination we were not able to also carry out

16     entomological examinations such as the presence of various insects and

17     larvae on the body.  If this examination was not carried out, it would

18     not -- it's -- it's completely incorrect to try to put a date as to the

19     death of bodies that were exhumed many years later.

20        Q.   Thank you, Dr. Baccard.  Thank you for answering my questions.

21             MR. MARGETTS:  Thank you, Mr. President, that concludes the

22     examination-in-chief.

23             JUDGE ORIE:  Thank you, Mr. Margetts.

24             We could either have, again, an early break and then to continue

25     for approximately one hour and a half.  But I do not know how much time

Page 15764

 1     the parties would need.  Who is going to start?

 2             MR. KUZMANOVIC:  Your Honour, I'm going to start, and I have

 3     substantial amount of time.  It's going to go more than today, so ...

 4             JUDGE ORIE:  Yes, more than today.

 5             Then I take it that you'd prefer to have an uninterrupted first

 6     round.

 7             MR. KUZMANOVIC:  I would, Your Honour, and I don't know -- I

 8     mean, obviously the witness is here, and he is ready to go.  I prefer to

 9     be able to start and finish him at one time, but that's not going to

10     happen.

11             JUDGE ORIE:  No, but I see, but rather not to start for

12     20 minutes first and then have a break, but rather have a break

13     immediately.

14             MR. KUZMANOVIC:  Right, Your Honour.

15             JUDGE ORIE:  Mr. Baccard, we will have a break.  After the break,

16     we'll further discuss your availability, because we might not finish

17     today and, unfortunately, this Chamber is not sitting tomorrow and the

18     day after tomorrow, and we were informed that you are not available next

19     week.

20             So we'll discuss that after the break.  But we'll first now have

21     a break until 20 minutes past 12.00.

22                           --- Recess taken at 12.00 p.m.

23                           --- On resuming at 12.23 p.m.

24             JUDGE ORIE:  [Interpretation] Dr. Baccard, it's Mr. Kuzmanovic

25     who will begin the cross-examination.  He's the Defence counsel of

Page 15765

 1     Mr. Markac.

 2                           Cross-examination by Mr. Kuzmanovic:

 3        Q.   Good afternoon, Doctor.  I'd just like to take you back to the

 4     end of your testimony in your direct examination, where you were

 5     discussing putting a date of death on the bodies that you were involved

 6     in reviewing.

 7             And you said on page 55, line 14 and 15:  "It's completely

 8     incorrect to try to put a date as to the death of bodies that were

 9     exhumed many years later."

10             My questions to you in this portion of my cross-examination

11     relate to that statement.

12             Is it fair to say, based on your testimony, that in this

13     particular case to conclude a time of death or a date of death would be

14     speculative?

15        A.   There is an translation error.  I indicated the term illusory

16     that has been translated by incorrect.  What I, in fact, meant to say was

17     that over and above a certain lapse of time, it is not scientific

18     possibly to establish with certainty a date of death, and it is even

19     truer for the time of death.

20        Q.   Would you agree with me, Doctor, that in this particular

21     instance, meaning in the review of the exhumations and the -- in your

22     expertise as a forensic pathologist, it would be speculative to conclude

23     a date of death for any of the autopsies that were performed in this

24     case?

25        A.   Firstly, the expertise I performed no expertise or examination I

Page 15766

 1     performed.  I acted only as an autopsy performer.  If by performing an

 2     exhumation, what does not allow us, if we do not perform examinations in

 3     terms of the presence of insects, that does not allow us to determine the

 4     date of death.  If the body has remained at all times in the same

 5     environment before being buried, we can have a better estimate.

 6             But the fact that of burying the body and then exhumating the

 7     body does not allow to determine the date of death with certainty.

 8        Q.   Thank you.  You, in this case, it's fair to state, had nothing to

 9     do with where -- in what part of Croatia these bodies were found.

10     Correct?

11        A.   I don't understand the question translated.

12             JUDGE ORIE:  Will you rephrase your question.

13             MR. KUZMANOVIC:  I will rephrase the question.

14        Q.   Doctor, have you done no investigation, and you were not asked in

15     any form to provide information about the location of where these bodies

16     were found prior to their burial.  Correct?

17        A.   No.  I just know -- I just knew the name of the site where they

18     were exhumated.

19        Q.   The reason I ask that, Doctor, is there have been representations

20     made in this case with respect to specifically the bodies that are

21     referred to in these autopsy reports of generally a place where the body

22     was found and a date given as to approximately when the death occurred.

23     And I'm asking you, as a forensic pathologist, and I think you have

24     confirmed that you cannot tell us or you were not asked to tell us about

25     where the body was found, and you could not as a forensic pathologist

Page 15767

 1     determine the date of death.  Is that correct?

 2        A.   That is correct.

 3        Q.   Doctor, can you tell us when the last time you, yourself,

 4     performed an autopsy?

 5        A.   Last Wednesday.

 6        Q.   And that's something that you do on a regular basis?

 7        A.   This is that I did on a regular basis, up until my arrival at the

 8     International Criminal Court.

 9        Q.   Was the autopsy -- you don't have to get into any details

10     obviously.  Was that performed in your role as a -- at the ICC?

11        A.   Yes, that is correct.

12        Q.   Before your work at the ICC and the autopsy that you performed

13     there, when was the last time you had performed an autopsy as a forensic

14     pathologist?

15        A.   2007.

16        Q.   The year 2007?

17        A.   Yes, that's correct.

18        Q.   Now, you -- in your report which is P2314.

19             MR. KUZMANOVIC:  And if I could have that on the screen, please.

20        Q.   On page 4.  And there was some discussion about this.  Actually,

21     Judge Orie asked you a question about this and that I wanted to follow up

22     on.

23             Section 3, background of the report.  The first sentence in that

24     paragraph says:  "The monitoring mission of the autopsies of the victims

25     exhumed ..."

Page 15768

 1             And my question to you is, was it your presumption when

 2     performing these -- this review -- and for purposes I'll say what you did

 3     was a review, rather than you, yourself, did not commit -- conduct

 4     autopsies.  Correct?

 5        A.   Yes, that's correct.  I was only there to observe the autopsies

 6     that were performed by the Croatian pathologists.

 7        Q.   So when I'm referring to your work, Doctor, I'll just refer to it

 8     as your review, just so we're clear.

 9             During your review, Doctor, you had presumed that all the persons

10     that were exhumed from these particular sites were victims of some kind

11     of a crime?

12        A.   What is the question?

13             JUDGE ORIE:  The question mark, that happens now and then in

14     cross-examination.  Something is put to you, and then in the translation

15     the question mark more or less disappears, but that's how --

16             MR. KUZMANOVIC: [Overlapping speakers] ...

17             JUDGE ORIE:  [Previous translation continues] ... Mr. Kuzmanovic

18     spoke this sentence.

19             MR. KUZMANOVIC:  I'll rephrase it, Your Honour.

20        Q.   Dr. Baccard, did you presume when you conducted your review that

21     the people that -- upon whom the review were conducted were all victims

22     of a crime?

23        A.   No, absolutely not.  I observed autopsies conducted on exhumed

24     bodies in sites for which I was given the name, but like all experts, I

25     have no a priori as regards the particular situation of the body that i

Page 15769

 1     have before me.  It is only after the expert examination that the

 2     circumstances of death appear or not.

 3        Q.   Doctor, you list the members of the Croatian forensic team on

 4     page 4 of your report.  Can you tell us -- were you at all critical of

 5     any of their work in this process, other than what you've written in your

 6     reports, in terms of disagreeing with certain analyses?

 7        A.   It's certain that I would perhaps not have conducted the

 8     autopsies overall in the way in which they were conducted.  Notably I

 9     would not have fractionated the various times of the examination.  I

10     would have no doubt have assembled on a single day the radiographic

11     examination, the forensic exam, the anthropological exam, the examination

12     of the clothing so as to be able to have at the same time all the

13     findings.

14        Q.   [Previous translation continues] ... did not reflect upon the

15     seriousness with which they took their work.  Correct?

16        A.   I don't understand -- what is the question?

17        Q.   [Previous translation continues] ...

18             You were critical of certain methodologies, but that did thank

19     did not reflect upon them in terms of the seriousness with which they

20     undertook their work; is that correct?

21        A.   That is correct.

22        Q.   On page 5 of your report, Doctor, at the top, you do state under

23     methodology that the methodology adopted by the Croatian forensic team

24     was generally -- the word says "conform;" but I would think it would be

25     in conformance with the international scientific standards.  Correct?

Page 15770

 1        A.   Yes.  Would it be possible to display page 5.

 2        Q.   Sure.  You'll see at the very top under 4.1, Doctor.

 3        A.   In answer to your question, that is correct.

 4        Q.   Page 6 of the report --

 5             MR. KUZMANOVIC:  If we could go to page 6, please.

 6        Q.   You -- in the first full paragraph that starts:  "The main

 7     problem."

 8             You discuss that there was a -- there were possible gaps in the

 9     chain of custody, and you had explained that briefly in the answer to a

10     previous question.  Would you agree with me, Doctor, that the possible

11     gaps in the chain of custody did not affect the report -- reports

12     written, autopsy reports written, and your analysis of those reports?

13        A.   I believe, that is, that we asked the Croatian pathologists to

14     secure the rooms where the autopsies were being conducted, to secure the

15     rooms where the bodies were stored, and the room where the clothing was

16     washed and dried.  And, therefore, I believe that, given the fact that

17     Professor Strinovic and myself each had a set of keys, that we could

18     consider that the place was secure.

19        Q.   So the problem that you address on page 6 about possible gaps in

20     the chain of custody, as far as you're concerned, did not affect the

21     overall result here.  Correct?

22        A.   That is correct, yes.

23        Q.   If we could go to page 7, Doctor.  As it's coming up on the

24     screen, you describe the composition of -- and you term them victims

25     groups.  And you note civilian or military status in that particular

Page 15771

 1     section.  "The status was affirmed only when several typical pieces of

 2     uniform were present."

 3             Now, can you -- can you expand on that and discuss that and give

 4     us an indication of what -- what you felt was necessary to determine

 5     whether someone was civilian or military.

 6        A.   Indeed, this is what is described in my observation report.  The

 7     items of uniform were generally the upper part and the lower part.  The

 8     forensic experts didn't just base themselves, for example, on the

 9     presence of boots or rangers' boots but required a complete uniform.

10        Q.   Now, if we could pull up P1692, please.

11             And while that's coming up, Doctor, would remnants of ammunition

12     be considered evidence of someone holding military status?

13        A.   No, absolutely not.

14        Q.   Let's take a look at the second page of this document, under

15     section E, there is an radiologist finding:

16             "In the projection of the head, we can see a head with three

17     entire bullets as well as the metal bullet frame."

18             And if we go further into the document.  Unfortunately, mine are

19     page numbers, so you will have to bear with me for a moment.

20             If you go to page 8 which is the artefact listing, the first

21     artefact listed is a bullet in the thorax, and the second artefact listed

22     is three live rounds in the skull area.

23             And if we go to the next page, which are the smaller radiographs,

24     we have what looks like a clip of three bullets.  Correct?

25        A.   That is indeed what we see on the X-rays.

Page 15772

 1        Q.   Now, if those bullets were fired from a weapon, they would not

 2     look like that in the skull of a -- someone who was exhumed from a grave,

 3     would they not?

 4        A.   No.  I believe here there's a confusion.  These rounds are not in

 5     the skull but are a projection in the area that was X-rayed at the same

 6     time as the skull.  That is why the presence of rounds or a clip -- live

 7     rounds does not constitute as such an indication of belonging to a

 8     civilian or military group.  The identifying garment must belong

 9     quote/unquote "to the body."  During an exhumation the earth around the

10     body may contain just any object, and it's not because the persons who

11     performed the exhumation at the same time put items that are close to the

12     body that said items necessarily belong to the body.  There is a

13     distinction to be made, and I repeat, that the criteria that were used by

14     Croatian experts to decide on belonging to the civilian or military group

15     were only based on the fact that said persons were clothed in uniforms.

16     In other words, these uniforms were around the bodies.  They hadn't put

17     them on.  Same as for the bullets.

18        Q.   So, in essence, Doctor, you discounted the fact that there was a

19     live clip of ammunition near this person as bearing any factor on whether

20     or not there person was civilian or military.

21        A.   Indeed, that did not come in as part of the criteria that were

22     used by the Croatian experts, and quite rightly, because we don't know

23     whether this clip was in the same position in the burial site or whether

24     it was picked up from underneath, or what its origin was.

25        Q.   Doctor, back to your report, page 7.  Just as a general question,

Page 15773

 1     Doctor, concerning the issue of bullet entry wounds and bullet exit

 2     wounds.  Nowhere in any of the reports is it shown whether bullet entry

 3     wounds were caused by a short-barrel weapon or a long-barrel weapon.

 4     Correct?

 5        A.   Yes.

 6        Q.   You understand, do you not, that the same calibre bullet could be

 7     fired from a short-barrelled weapon as could be from a long-barrelled

 8     weapon?  Correct?

 9        A.   It depends on the projectiles, but yes.

10        Q.   There are several places in various analyses of reports that you

11     have done that have concluded or hypothesised that there was a bullet

12     entry wound or a bullet wound that was a cause of death, but nothing more

13     specific than that.  Correct?  Meaning about the type of weapon or the

14     type of calibre bullet or something like that, unless an artefact was

15     found.

16        A.   It's also possible in lesional ballistics, wound ballistics to

17     have indications that are derived from the appearance of lesions caused

18     by high-speed bullets, different from those from medium- or low-speed

19     projectiles.  We can distinguish between wounds caused by AK-47 rounds

20     and a 9 millimetre round.  It is quite possible, and we have to look at

21     the wound profile, what we call the wound profile, the way in which the

22     projectile will interact with the tissue when we're fortunate in still

23     having soft tissue, or, if not, the way in which the projectile will

24     perforate the bounds.

25        Q.   Is it fair to state that the kind of analysis that you just

Page 15774

 1     described wasn't possible because of the state of the remains, correct,

 2     generally?

 3        A.   Except when we obtained characteristic impact on -- bone surface.

 4     But generally speaking, it was difficult to specify the wound profile

 5     given the state of tissue degradation.

 6        Q.   Okay.  If we could please go back to page 7 of your report, which

 7     is P2314.

 8             You state, Doctor, on page 7 under the forensic criteria

 9     conservations status, the last sentence that that section:  "This

10     criterion was important to know in order to determine the degree of

11     liability of the autopsy's findings."

12             What I'd like to ask you is, what do you mean by the degree of

13     liability?  What does that refer to?

14        A.   That is depending on the state of preservation of the body, we

15     will have more or less information available to us, in order to determine

16     the nature of the wound suffered.  Here we have a body that is reduced to

17     skeleton state.  Everything that is surrounding the -- for the missing

18     soft parts we will have to limit our examination to only one of the

19     constituents of the body.  When we have greater tissue thickness, there

20     we have far more information stemming from the ballistics examination.

21        Q.   I guess for my own benefit, when you say "degree of liability,"

22     would you mean degree of accuracy?  Or am I wrong in that?

23        A.   Yes, yes, it's the degree of completeness of the findings that I

24     have in mind.

25        Q.   Thank you.

Page 15775

 1             Now later on in this page, there's a discussion regarding point

 2     of entry, and at the bottom of the page, there's a discussion about the

 3     characteristics of the projectile have been noted when it was possible.

 4     And then it goes on to the next page --

 5             MR. KUZMANOVIC:  Which I would ask the registrar to move to,

 6     please, page 8.

 7        Q.   It says:  "This information being generally absent on the reports

 8     of the Croatian experts."

 9             And then you have the schematic of the body at various positions.

10             My question to you is:  Who was the person or persons who

11     determined the path and trajectory, if it was not done by the Croatian

12     experts?

13        A.   The path or trajectories that are in my report of autopsy

14     attendance are trajectories that I determined based on my notes.

15        Q.   And the angles and the entries and the exits were all determined

16     from your notes that you did yourself?

17        A.   As regards the angles, yes.  As regards the point of entry and

18     point of exit, this information which can be found in the Croatian

19     forensic's experts, if my memory serves me well.

20        Q.   You told us earlier that your notes that you had regarding this

21     particular analysis or investigation, you don't have or can't find

22     anymore.  Correct?

23        A.   Yes, you're right.

24             JUDGE ORIE:  [Previous translation continues] ... 25 to

25     30 percent of your questions are either seeking, That's what you wrote,

Page 15776

 1     is that what you wrote?  Or trying to get the same answer two or three

 2     times, apparently because you consider them important.  Could you please

 3     try to be as focussed as possible.

 4             Please proceed.

 5             MR. KUZMANOVIC:  Sure.  I will, Your Honour.

 6        Q.   In the next section you discuss cause of death.  And it might

 7     seem trivial, but you use the term "the cause of death was established,"

 8     and it seems to me that there were potentially several causes of death

 9     that were considered in many of these reports.  What was it that led to

10     you conclude about "the" cause of death as opposed to "a" cause of death?

11        A.   In actual fact, if you read the very last paragraph, I say that

12     the cause of death was established taking into account the potentially

13     lethal wounds.  And in some cases, several possible cause of death were

14     identified, and putrefaction did make it possible to determine which was

15     the particular wound that led to the lethal fate of this person.

16        Q.   [Previous translation continues] ... it's true that there is no

17     specific cause of death listed as homicide in any of the reports.

18     Correct?  Or circumstance of death, I should say.

19        A.   Well, I believe that this is a question to be addressed on a

20     case-by-case basis, based on the various autopsies.

21        Q.   And doing as such on a case-by-case basis, at least you have not

22     come to any determination that any of these reports concluded that that

23     was a result -- the death was the result of a homicide?

24             JUDGE ORIE:  Mr. Kuzmanovic, homicide, is that a legal term, or

25     is it anything else?  Isn't homicide killing with intent another person

Page 15777

 1     or not with intent, depending on what kind of homicide we're talking

 2     about?

 3             Of course, if you want to ask this expert whether he came to any

 4     conclusions in terms of intent or whether someone killed by a bullet; it

 5     was an accident, that one of his children fired a weapon by mistake or --

 6     is that the area?  Because homicide is typically a legal term, isn't it?

 7             MR. KUZMANOVIC:  Well, it wasn't-- I didn't use it, Your Honour.

 8     It's in his report.  He is the one who put it in his report, and he is

 9     the one who used it in his report, so that's why I'm asking, Your Honour.

10             JUDGE ORIE:  Yes.  Then you did not come to any determination

11     that any of these reports concluded that death was as a result of a

12     homicide.  Yes.  You couldn't, isn't it?  But it's just our understanding

13     of what the expertise of this witness is.

14             MR. KUZMANOVIC:  I think, Your Honour --

15             JUDGE ORIE:  If you think that it's any -- it's a useful line of

16     questioning, then -- just -- I just want to draw your attention to the

17     fact that whoever uses whatever terminology that it seems to be very much

18     legal expressions, opposed to anything I consider this witness could tell

19     us about, not knowing anything about the circumstances, as he said

20     before.  The only thing he knew is the site where the -- the name of the

21     site where the bodies were exhumed.

22             MR. KUZMANOVIC:  Understood, Your Honour.

23             JUDGE ORIE:  Please proceed.

24             MR. KUZMANOVIC:  I guess my question related to his comment that

25     the manner or circumstances of death was noted when this determination

Page 15778

 1     was possible.  And one of the manners or circumstances he listed was

 2     homicide.  And my question to him was, were any of these reports listing

 3     homicide as a manner or circumstance of death?  And his answer was that

 4     he didn't know.

 5             JUDGE ORIE:  Yes, he never concluded that, yes.

 6             Please proceed.

 7             MR. KUZMANOVIC:  Thank you.

 8        Q.   If we could go to page 33 of your report, please.

 9             THE INTERPRETER:  Could we close some microphones, please.  Thank

10     you.

11        Q.   At the top of page 33 of your report, Doctor, you disagreed with

12     a conclusion of a specific report, and you state in the second sentence:

13     "Indeed several arguments are supporting the hypothesis of gunshots."

14             Now two questions I have regarding this sentence.  The first is

15     the subject of arguments.  Do you mean facts, or are you being an

16     advocate here on the issue of disagreeing with Mr. Strinovic's report?

17        A.   Well, I certainly do not claim to be an advocate of any sort.  I

18     base myself on forensic and medical -- or facts in order to do exactly

19     what I was called upon to do, which was to monitor what the Croatian

20     forensic experts were doing and to give my opinion in this respect, and

21     my findings are based on what I monitor.

22             In this particular case, I was in disagreement with

23     Professor Strinovic.  At the time of the autopsy, we discussed it

24     together.  And at the later stages of the forensic examinations, i.e.,

25     the examination of pieces of clothing and the analysis of X-rays, all of

Page 15779

 1     this support my opinion.  I believe that this was not explosive injury

 2     but an injury caused by the fragmentation of a projectile.

 3        Q.   And, Doctor, isn't it -- it's true, is it not, that based on your

 4     disagreement with Professor Strinovic, that his view was also a

 5     reasonable one as much as yours was based on the arguments that he made?

 6     Two reasonable people can disagree.  Correct.

 7        A.   Well, I believe that my colleague, Professor Strinovic, is a

 8     perfectly reasonable person and is somebody who is respectable, somebody

 9     who has very good forensic education.  However, in this particular case,

10     we were in disagreement.  I argued in favour of my findings.  I presented

11     four forensic arguments, and I continued to believe that my assumption is

12     scientifically valid.

13        Q.   Just as his is; correct?

14        A.   Well, in my report, I said that his assumption was not

15     scientifically valid.

16        Q.   The use of the word "hypothesis," and it's used in several places

17     in your report, Doctor.  A hypothesis implies that there is insufficient

18     evidence to provide more than one tentative explanation.  And it seems to

19     me that in many instances, especially in incidents where you hypothesised

20     there were execution killings, that there is insufficient evidence to

21     confirm there were or there were not those types of killings.  Is that a

22     fair statement?

23        A.   So what is your question exactly?

24        Q.   My question is when you use the word hypothesis, that is not

25     something that can you conclude to a reasonable degree of certainty.

Page 15780

 1     That's speculative.  You are speculating that there was an

 2     execution-style killing based on the evidence that you have before you.

 3     Not that in fact occurred?

 4        A.   Well, I never spoke -- I didn't speak of execution.  The point of

 5     disagreement with Professor Strinovic regarded the causes of death.  He

 6     said that a death was due to explosive injury, and I said it was due to

 7     gun-shot projectiles.  This has nothing to do with the circumstances of

 8     death.

 9        Q.   [Previous translation continues] ... 54, Doctor, of your report.

10             If you look at the second paragraph of this part of your report,

11     you state with respect to this particular case:  "The gun-shot was

12     directed from back to front, slightly downward.  It was consistent with

13     the hypothesis of an 'execution-style' shot."

14             Now before I had asked you about the use of the word hypothesis.

15     And would you agree with me that a hypothesis is generally an assumption

16     or a concession made of an argument?

17        A.   Yes, quite right.

18        Q.   [Previous translation continues] ... that on the issue of your

19     use of the term hypothesis of an execution-style shot would be

20     speculative?

21        A.   It's one hypothesis.  The autopsy is a piece of the puzzle that

22     the magistrate has at his or her disposal and that has to be assessed

23     with the other elements of the expertise.  But we have to present all the

24     various assumptions or hypotheses that can be arrived at after our

25     examination of the corpse.

Page 15781

 1        Q.   But a hypothesis is not a conclusion of the manner of death;

 2     correct?

 3        A.   Well, I said, I said so.

 4             MR. KUZMANOVIC:  If we could go to page 97 of your report,

 5     please.

 6        Q.   If we look at the lower part of the document, where you discuss

 7     some disagreement with Professor Strinovic's report.  You describe a --

 8     this particular fracture as "consistent with a blunt-force trauma

 9     possibly caused by a weapon's butt."

10             Now, the sole basis for you to make that conclusion was because

11     there was a ping-pong fracture?

12        A.   The point of disagreement only concerned the precise location of

13     the trauma of the fracture.  Professor Strinovic was mentioning the

14     temporal area which is much lower and on the side of the skull, while the

15     impact, as you can see on the picture, was located in the left parietal

16     bone.  So the point of disagreement with Professor Strinovic was only

17     concerned with the location.

18             Now we're dealing here with a typical fracture of a trauma caused

19     by a blunt force.  As to the semi-circular shape and the dimension as

20     well as the characteristics are compatible with the hypothesis of a

21     fracture caused by a weapon butt.  I -- several times in Kosovo as well,

22     I was able to observe this type of trauma.

23        Q.   Were you at any time, Doctor, when you were involved in reviewing

24     those autopsies -- I'll strike that question.

25             This kind of injury that you just described and that we just

Page 15782

 1     referred to could also have been caused by someone falling from a

 2     significant height.  Correct?

 3        A.   The location of this fracture, which is located on the upper and

 4     lateral part of the skull, and also due to the shape of the depression,

 5     this is not really compatible with this hypothesis.  Now, if there is a

 6     priority to be given to the various options, I wouldn't give the fall of

 7     a person as being the top priority that would come to mind, in view of

 8     this particular fracture.

 9             MR. KUZMANOVIC:  Can we go to page 99, please.

10             If we go to the bottom of page 99, 5.2.119.

11        Q.   There's a discussion here about an injury which you disagreed

12     with initially, and you described that "the injury was with pellets

13     likely fired by a shotgun."

14             Now, were you aware at any point in time that any military

15     personnel in Croatia used shotguns?

16        A.   No, no, no.  I didn't get this information.

17        Q.   And you concluded that the injury was not related to a

18     hand-grenade but something fired by -- pellets fired by a shotgun.

19             Can you explain for me how you came to that conclusion, that it

20     was pellets from a shotgun?

21        A.   Yes, absolutely.  In this particular case, this is not a

22     hypothesis, but it is an absolute certainty.  And if I could have the

23     photographs and the X-rays, I could demonstrate to the Court on what

24     basis I came to this finding.

25             MR. KUZMANOVIC: [Previous translation continues] ... exhibit

Page 15783

 1     number handy, but I will take your word for it, Doctor.

 2             THE WITNESS: [Interpretation] If you may, if I may, sorry.  This

 3     was absolutely characteristic.  You can see the pellets that are in --

 4     into the surface of the bone, so obviously we're not dealing with

 5     fragments coming from a hand-grenade.  We're dealing with spherical

 6     pellets, lead pellets.

 7             MR. KUZMANOVIC:

 8        Q.   [Previous translation continues] ...

 9        A.   Well, I would say that it was compatible with lead.  There was a

10     greyish trace when you touched it.  But, of course, there was no analysis

11     carried out, or if such analysis were made, they were not brought -- they

12     were not brought to my attention.

13        Q.   [Previous translation continues] ... possibility that it might

14     have been gravel or some kind of pellets from rocks?  You know where the

15     territory of these -- of this area of operation that occurred is very

16     rocky and very -- has a lot of areas where gravel are contained in the

17     roadways.  Did you exclude that?

18        A.   Yes.  This possibility can be excluded definitely.  The diagnosis

19     of such lead pellets fired by gun-shot are confirmed by the X-rays.

20     Everything that is made of metal is shown in a very dark colour on

21     X-rays.  The colour contrast is very clear.  Nothing to do with the

22     colour of gravel, for instance, and the shape of these pellets was

23     regular, spherical, all of the same dimension.  And I'm sorry we can't be

24     shown the pictures taken in the course of the autopsies or the X-rays,

25     where I wouldn't need to make it any further comments.

Page 15784

 1        Q.   Doctor, with respect to --

 2             MR. KUZMANOVIC:  If we could go to page 136, please.  Okay.

 3     Sorry, that's been redacted.

 4             If we could go to 137, please.

 5        Q.   During the course of your direct examination, you had -- in an

 6     answer to a question, you had mentioned the term "scene of crimes

 7     officer."

 8             MR. KUZMANOVIC:  Actually we don't need this page anymore,

 9     Mr. Registrar.  Thank you.

10        Q.   Can you describe for me what you meant by that?  That's how it

11     was interpreted anyway?

12        A.   Well, in actual fact, these scene of crime officers were part of

13     our team, and they were there as forensic photographers.  They were also

14     acting as an officer protecting evidence, recording evidence, describing

15     evidence.  They were also describing the pieces of clothing.  So this

16     officer had a dual role.

17        Q.   [Previous translation continues] ... Was this a Croatian person?

18     Or was this an ICTY person?  Who was this scene of crimes officer?

19        A.   In our team we included a scene of crime officer, but essentially

20     we had two persons.  I think that in the Croatian team, if my memory

21     serves me well, because I can't really remember precisely, but I think

22     they also had a police officer, but I can't be absolutely certain of that

23     now.

24        Q.   Doctor, how many of these -- did you personally see all of the

25     autopsies that were performed, observe them?

Page 15785

 1        A.   Yes, yes.  At least all those that are listed in my monitoring

 2     report.

 3        Q.   And then what did you do after the autopsies were completed?  Did

 4     you then go back and write your own report?  Did you wait for somebody

 5     else to write a report?  Can describe for me what you did.

 6        A.   Well, I was then writing my notes.  I was comparing my point of

 7     view with that of my Croatian colleagues, and then I was checking with

 8     our photographer or scene of crime officer that the appropriate

 9     photographs had been taken, and we would make an appointment with the

10     autopsy -- the Croatian autopsy assistants, in order to examine the

11     pieces of clothing.

12        Q.   We had already discussed to some extent the fact this is an lot

13     of room for interpretation in these reports and that there's also a lot

14     of room for the reports not being definitive one way or the other on the

15     issue of cause of death.

16             For the most part, you agreed with the findings of the autopsy

17     reports of the Croatian pathologists.  Correct?

18        A.   Yes, yes.  With the few exceptions that I have already mentioned

19     in my report.

20        Q.   And then when you list a cause of death as unknown or, for

21     example, the Croatian pathologist lists a cause of death as unknown, at

22     least at that point in time, you had not -- or no one had sought any

23     additional information to try and fill in that gap to change it from

24     unknown to some gun-shot, or grenade, or anything like that.  Correct?

25        A.   Well, that's more or less true.  The Croatian pathologists based

Page 15786

 1     themselves on the autopsy findings, and I also took into consideration

 2     the examination of the photographs and the pieces of clothing, realizing

 3     the limitations of hypothesis one can draw from this.

 4             MR. KUZMANOVIC:  Your Honour, I will look over my notes.  I'm

 5     just about done.

 6             There's a question I have, but it would be directed to

 7     Attorney Margetts, so it really is -- I would want to ask him before i

 8     ask the witness.  It has to do with the redactions, Your Honour.  The

 9     reason I say this is we got the redacted report relatively recently.  And

10     I, of course, had marked up the non-redacted report, and some questions I

11     had were involving areas where there were redactions.  So I would like to

12     ask him about that before I conclude my questioning.

13             JUDGE ORIE:  Yes.  I take it that the questions you want to put

14     if the witness would hear them and would hear the answers, would that in

15     any way prejudicial to -- possible.

16             MR. KUZMANOVIC:  I think would be better if the witness removed

17     his headphones, and I just went to chat with Mr. Margetts, just for a

18     moment, Your Honour.

19             JUDGE ORIE:  Yes.  Because if you stay at a distance, he would

20     understand everything, yes.

21             So perhaps he could better keep his earphones on, which is even

22     better.

23             MR. KUZMANOVIC:  Sure.  That's fine.

24             JUDGE ORIE:  If you were -- could consult with Mr. Margetts more

25     closely, then you're free to do so.

Page 15787

 1             MR. KUZMANOVIC:  Thank you, Your Honour.  I'll be just a moment.

 2                           [Defence counsel confer]

 3             MR. KUZMANOVIC:  Your Honour, I had enough questions to take me

 4     through the rest of the day based on the redactions, which are now

 5     redacted, so I don't have further questions.

 6             JUDGE ORIE:  Thank you, Mr. Kuzmanovic.  It also gives me an

 7     opportunity to express that, in all fairness, I had overlooked the use of

 8     the word "homicide," although it nowhere materialised any further on.

 9     And that what I put as a question to you and perhaps with a -- in a tone

10     which might not have been the appropriate one, that perhaps it should

11     have been addressed to someone who used that word in this context where

12     it's unclear whether it could mean anything more than a legal concept.  I

13     just want to put this on the record.

14             MR. KUZMANOVIC:  Thank you, Your Honour.  No offence taken.

15             JUDGE ORIE:  Who is next in line for the --

16             MR. KEHOE:  Mr. President, mine is next.  I do believe, in

17     fairness to the witness, I mean, taking him back and forth without some

18     continuity, and that it's going to be difficult, and I don't think I am

19     going to finish in this period of time.  I think it would be quicker if I

20     went from start to scratch as opposed to going through it and having some

21     five, six, seven days down the line just rehashing what we did before,

22     just to bring it back into context.

23                           [Trial Chamber confers]

24             JUDGE ORIE:  Mr. Margetts.

25             MR. MARGETTS:  Mr. President, I feel obliged to observe that

Page 15788

 1     Dr. Baccard is someone whose time, particularly at this moment in this

 2     month is at an absolutely premium, and we have had some problems with

 3     scheduling his evidence, and we obviously don't want any time that he is

 4     attending these premises to be wasted, and so we would say given that

 5     consideration, it would be far better from our point of view if this time

 6     was used.

 7             JUDGE ORIE:  Yes.  Could I inquire with the Cermak Defence team

 8     whether they have any questions.

 9             MR. CAYLEY:  We don't have any questions for this witness.  Thank

10     you, Your Honour.

11             JUDGE ORIE:  Mr. Kehoe, the Chamber is not fully convinced yet

12     that it would save time so invites to you start your cross-examination.

13             [Interpretation] Mr. Baccard, the next counsel who will

14     cross-examine you is Mr. Kehoe, and he defends Mr. Gotovina.

15                           Cross-examination by Mr. Kehoe

16        Q.   Good afternoon, Doctor, it's a pleasure to meet you.  Doctor, I

17     would like to ask you some general questions, and I think that you can

18     probably move through some of this quickly.  And I think you did touch

19     upon it in response to some questions by Mr. Kuzmanovic.  But I think you

20     would agree, Doctor, that the fact that these bodies were in the ground

21     for several years, that they were in an advanced state of decomposition

22     and many had skeletal remains, obviously made your analysis and the

23     analysis by the Croatian pathologists very difficult.  You would agree

24     with that, do you not?

25        A.   That's correct.

Page 15789

 1        Q.   And I do believe, I think you've touched on this just a bit with

 2     Mr. Kuzmanovic when you were answering some questions generally about

 3     being a forensic pathologist with the experience level that you have,

 4     that generally when you're doing a forensic examination and coming to a

 5     conclusion in an autopsy, you have tissue and organs, and based on an

 6     analysis of damage to tissues and organs, you can make a more thorough

 7     conclusion as to the cause of death.  Isn't that right?

 8        A.   Yes.  But the forensic pathologist has to often give conclusions

 9     on bodies which are quite decomposed, yes.  We -- we are used to working

10     with bodies that are often very much damaged.

11        Q.   I understand that.  But it makes your ability to render accurate

12     conclusions concerning the cause of death, for instance, more difficult

13     when you're faced with merely skeletonized remains or maybe skeletonized

14     remains with minor degrees of saponified flesh.  It makes it more

15     difficult to make that conclusion.

16        A.   That's correct.

17        Q.   And just to wrap this up, that is also because you have

18     skeletonized remains, you can look at things such as bruising and wounds

19     in the flesh to make determinations concerning, say, bullet-holes or

20     maybe a knife wound or something of that nature.  Is that accurate?

21        A.   That's correct.  When we examine remains that are skeletonized,

22     we can only see what is present at the bone level.  Everything -- if

23     everything else has disappeared, we cannot conclude anything as to the

24     disappeared flesh.

25        Q.   And, of course, if you just have skeletonized remains, you can't

Page 15790

 1     make a determination whether or not an individual died from natural

 2     causes, such as disease, heart attack, something of that nature?

 3        A.   That's correct.  Unless the illness touches the skeleton itself.

 4        Q.   I understand.  Let me -- I'd like to ask you a couple of

 5     questions based --

 6             JUDGE ORIE:  Mr. Kehoe, may I take it that page 80, line 16, that

 7     there's -- that you intended to say, You can't look at things as, because

 8     the witness confirmed that it was correct, but in view of the question, I

 9     think it needed some clarification, like in your next question.

10             Please proceed.

11             MR. KEHOE:  Yes.  Thank you, Mr. President.

12             Could we turn to P1251, which is the report of Dr. Clark.  And if

13     I could turn to page 4 of this document, which is 235.  Three pages up.

14        Q.   And in the first paragraph in deciding -- this is Dr. Clark's

15     report, and he is deciding -- breaking it into various areas, and the

16     paragraph is dealing with decided whether a particular finding was

17     genuine or not, and he writes:  "With discoloured and broken down tissues

18     assessments such as things as bruising, wounds, or bullet-holes in the

19     skin was extremely difficult, and in many cases impossible, as the

20     changes seen could have been part of the normal post-mortem process."

21             You agree with that, do you not, Doctor?

22        A.   Yes.

23        Q.   And staying with that concept of post-mortem and pre-mortem

24     processes, oftentimes it is very difficult to make a decision when you

25     are looking at skeletonized remains whether that particular injury that

Page 15791

 1     you may see to a skeletal structure took place antemortem or post-mortem.

 2     Isn't that right?

 3        A.   It is it more difficult, but it is not impossible, especially if

 4     you are dealing with bleeding, which can happen at the level of the

 5     factors, for instance, or the defect.

 6        Q.   Well, let's stay with that just a little bit.  If we're talking

 7     about hemorrhaging or some type of bruising, you wouldn't be able to

 8     examine those types of things in skeletonized remains, you would have to

 9     have some type of flesh to see that type of wound, would you not?

10        A.   It is it not quite true because if you are talking about

11     hemorrhage or the ecchymosis, it leaves the traces on the -- on the skin,

12     on the flesh, and then you can see that there was a blood collection at

13     that level.

14        Q.   Of course, Doctor, that is assuming you have skin.  And most of

15     the bodies that you looked at didn't have skin, right?

16        A.   No.  But I'm talking about the colouration of the surface of the

17     bone.  Let's talk about the skull.  You can have a collection of blood

18     that can disappear after putrefaction, but you can have a colouration on

19     the bone which shows that previously there was a blood collection that is

20     it now gone because of the putrefaction.  It is it all a matter of

21     case-by-case analysis.  It is very difficult to draw conclusions or rules

22     when we talk about this.

23             JUDGE ORIE:  A translation issue.  I was listening to the French.

24     Could I invite to you look at your screen where the text appears, and

25     look at page 82, lines 7, 8, and 9.

Page 15792

 1             Could it be that you said something different in French as to

 2     where the traces were to be found?

 3             THE WITNESS: [Interpretation] What I said is that in some cases

 4     we can still see on the bone surface the print of a hemorrhage that took

 5     place when the wound touched the bone.

 6             JUDGE ORIE:  [Previous translation continues] ... Mr. Kehoe,

 7     please proceed.

 8             MR. KEHOE:

 9        Q.   Doctor, let's just take this post-mortem and pre-mortem analysis

10     yet further.  You were doing these exhumations in 2007 with bodies that

11     had been in the ground since approximately mid-1995, or the latter part

12     of 1995.  And when you were examining these bodies with the Croatian

13     forensic pathologists, did you notice various damage, items of damage to

14     the skeletonized remains that you concluded were post-mortem type of

15     damage?

16        A.   In many cases, the lesions were attributed to a post-mortem

17     traumatism whether it's during the exhumation, maybe a shovel hit or

18     something like.  And also there are certainly also traces of various

19     scavengers.

20        Q.   Tell us about the scavengers.  I didn't see that in your report.

21     I mean, what kind of traces of scavengers did you see?

22        A.   I was not referring to that type -- to this in my examination.

23     When you have post-mortem traumatisms, you can also -- you have to take

24     into account also scavenging, but I do not address those issues in my

25     report.

Page 15793

 1        Q.   You're saying that, generally speaking, you have to take into

 2     account scavengers when you're looking at post-mortgage damage, you

 3     didn't necessarily conclude that there was scavengers in this particular

 4     situation; is that accurate?

 5        A.   No, absolutely not.  It was a general answer regarding possible

 6     origins of various post-mortem lesions.

 7        Q.   I just wanted to clarify that.  If we can go back to this report

 8     by Dr. Clark on number 2, he is dealing with post-mortem damage.  And he

 9     notes in his examination, and this is a different scenario.  This is a

10     different cemetery.  He notes that dealing with the latter, post-mortgage

11     was certainly a consideration and something that could have occurred in a

12     number of ways.  In the process of handling the bodies and putting them

13     into graves in the first place from the pressure of compacted soil or

14     other bodies over the years or from the final process in exhuming them.

15             I know that that's somewhat of a limited list.  Would you agree

16     that those are all possibilities, that post-mortem damage could occur to

17     a corpse and/or to skeletonized remains?

18        A.   Yes, that's correct.

19        Q.   Taking this from Dr. Clark's experience and bringing it to yours,

20     I'm interested in the amount of post-mortem damage that you observed

21     going through these autopsies, because I read how that your report, and I

22     didn't see any indications of post-mortem damage.  Do you recall during

23     your report -- maybe I missed it.  And pardon me if I did, Doctor, with

24     all due respect, I may have missed it.  But do you recall listing when

25     you were going through here what you considered to be post-mortem damage

Page 15794

 1     when you're assessing the injuries either to the skeleton or to a corpse?

 2        A.   I believe that I must remind you that my report is a monitoring

 3     report.  It's a report of a monitor.  I was present there in order to

 4     give my opinion on the quality of work undertaken by my Croat colleagues,

 5     and this is not an expertise report.  This is a report drafted by an

 6     expert on an expertise that I did not carry out myself.  And to answer to

 7     your question as to post-mortem or antemortem lesions, this is in the

 8     report of the Croat forensic experts, some squares are checked,

 9     post-mortem damage or antemortem damage is checked.  So these are

10     elements taken into account, but I, myself, did not have to make any this

11     particular observation as to this.  My report was rather an internal

12     report.  It was made for the OTP, and I never thought, or I did not think

13     that it would be produced subsequently to the Chamber.  And this is not

14     an expertise, a report, I draft expert reports that are completely

15     different.  This is a technical report.

16             JUDGE ORIE:  I am aware that we have to deal with some scheduling

17     issues as well.  So I wonder whether this would be a suitable moment.

18             MR. KEHOE:  It is, Mr. President.

19             JUDGE ORIE:  The first part of the scheduling issues, I would

20     like to deal with in the presence of the witness.

21             Dr. Baccard, I was informed that you are not available, that you

22     have a lot of work to do next week.

23             Mr. Kehoe, could you tell us how much -- how much time you'd

24     still need?

25             MR. KEHOE:  Mr. President, a few hours.  I think a little bit

Page 15795

 1     more than a session.  Session an a little bit more than that.

 2             JUDGE ORIE:  So two hours.

 3             MR. KEHOE:  I think that's --

 4             JUDGE ORIE:  Two hours.

 5             Now, I appreciate, and I fully respect if you have no two hours

 6     available next week, Dr. Baccard.  If, however that would be different,

 7     if you say, Well, I'm not available for a whole day or for two days, that

 8     is fully understood.  Your unavailability would also be firm if we are

 9     talking about half a morning --

10             THE WITNESS: [Interpretation] On what date?

11             JUDGE ORIE:  That's a matter still to be -- still to be

12     considered then.  If you would say, Certainly not on this day, but I

13     might find could or three hours on another day, then we might try to find

14     -- because we have -- we are not fully booked with witnesses next week to

15     say the at least and, of course, if we try to lose as little time as

16     possible.  I would like to hear from you whether three hours would be ...

17             THE WITNESS: [Interpretation] Your Honour, it is going to be very

18     difficult.  Because I have to answer an order by the ICC, and they are

19     ordering me to compile three expert reports by next Friday.  And last

20     week, there was this mission to Africa, and I do not think that I will be

21     able to free myself for half a day next week.

22             However, I'm entirely at your disposal next week at any date, for

23     any date.

24             JUDGE ORIE:  [Previous translation continues] ... from exploring

25     the possibility, but your answer is you couldn't find close to half a day

Page 15796

 1     next week.

 2             I'm -- I hardly dare to ask, but you say have you to deliver

 3     those reports on Friday?  Is that Friday close of business?  Because ...

 4     would there be any time remaining on Friday?  [Microphone not activated]

 5     [Previous translation continues] ... and, if not, of course, we're ...

 6             May I take your silence as an expression of being perhaps a bit

 7     unpleasantly surprised by this question?  Is that a proper understanding?

 8             THE WITNESS: [Interpretation] No, I understand very well.

 9     However, I cannot tell you right now, knowing all the work that's

10     awaiting, that's ahead.  But maybe next week at the beginning of the

11     week, I would be able to give you some answer depending on how much I'm

12     advanced --

13             JUDGE ORIE:  [Previous translation continues] ... whether you

14     would have possibly another job to do next week as well.  So we leave

15     that for the time being.

16             Mr. Margetts, was I correctly informed if you would like to ask

17     the witness to come back on the 16th of February?

18             MR. MARGETTS:  Yes, Mr. President.

19             JUDGE ORIE:  And that would be, I have to look at my court

20     schedule in the morning hours or...  perhaps Mr. Registrar could help us

21     out.

22                           [Trial Chamber and registrar confer]

23             JUDGE ORIE:  Would you be available on the 16th of February, in

24     the morning, that is, 9.00?

25             THE WITNESS: [Interpretation] Yes, Your Honour.

Page 15797

 1             JUDGE ORIE:  Thank you for being available on that date.  You're

 2     invited to then join us in the same courtroom on Monday, the 16th of

 3     February, and from what I hear, it will not taking more than half a day.

 4             I would further like to instruct you that you should not speak

 5     with anyone about the testimony, either the testimony you have given

 6     already today or still to be given on the 16th of February.

 7             THE WITNESS: [Interpretation] Understood.

 8             JUDGE ORIE:  [Previous translation continues] ... Mr. Usher to

 9     escort Dr. Baccard out of the courtroom.

10                           [The witness stands down]

11                           [Trial Chamber and registrar confer]

12             JUDGE ORIE:  Mr. Margetts, I do understand that, due to health

13     issues, that you have not -- not your health, that no witnesses are

14     available until Thursday.  Is that --

15             MR. MARGETTS:  Yes, Mr. President.  Unfortunately so.

16             JUDGE ORIE:  Yes, it is very unfortunate.  Because we are not

17     being able to use five days in court, which is -- which is to be

18     deplored.

19             If there is no other procedural issue in relation to scheduling

20     at this moment, we adjourn, and we'll resume on Thursday, the 12th of

21     February, quarter past 2.00, in Courtroom I.

22                            --- Whereupon the hearing adjourned at 1.47 p.m.,

23                           to be reconvened on Thursday, the 12th day of

24                           February, 2009, at 2.15 p.m.