1 Wednesday, 12 September 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.03 a.m.
5 JUDGE ORIE: Good morning to everyone in the courtroom and those
6 outside the courtroom assisting us.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good to everyone in
9 the courtroom. This is case number IT-04-84-T, the Prosecutor versus
10 Ramush Haradinaj et al.
11 JUDGE ORIE: Thank you, Mr. Registrar. Mr. Emmerson you'd like to
12 address the Chamber?
13 MR. EMMERSON: Just very briefly on a scheduling issue. Your
14 Honour will recall that yesterday the schedule for this week was agreed in
15 relation to the recall of Witness 55 and certainly that had been my
16 information throughout the whole of the week, that Witness 55 would be
17 returning Thursday and indeed I planned to spend today finalising
18 cross-examination preparation in relation to him after we finished in
19 court. I understand that VWS have --
20 JUDGE ORIE: Perhaps I can explain to you what happened. Arrival
21 of the witness to be recalled would be only Thursday morning, which would
22 most likely cause a delay in the start of that witness and as a keen
23 interest in allowing this witness to return on Thursday so therefore the
24 Chamber has considered whether we could afford to start late and then the
25 only solution was to have the witness to arrive the day before, which
1 would open the possibility to start cross-examination with him as well, if
2 there would be any time remaining which of course we do not know yet but
3 at least we would not lose time Thursday morning.
4 MR. EMMERSON: Can I indicate --
5 [Trial Chamber confers]
6 JUDGE ORIE: Yes, please.
7 MR. EMMERSON: I only learned of this possibility on walking into
8 court a few moments ago and we are reasonably confident that there will be
9 insufficient evidence today to use up the whole of the day in court, but
10 I'm not in a position to begin cross-examination of Witness 55 until
11 tomorrow morning because that has been the basis upon which I'd understood
12 all week that the scheduling would occur and indeed that's the way I
13 planned my preparation. On the other hand, I can give the Trial Chamber
14 this guarantee, that cross-examination of Witness 55 if it starts promptly
15 tomorrow morning at 9.00 will conclude well within the session and
16 sufficient to allow re-examination to occur.
17 JUDGE ORIE: Then I do understand your problems. We'll discuss
18 it. Let's first see how much time we need today because it might be a
19 non-issue. We do not know yet how much time the witness to be called now
20 will take and then we'll further discuss that. At the same time, if there
21 are sometimes, I'm not saying always, but sometimes there are tiny
22 separated issues which you could perhaps deal with, and I'm asking you to
23 consider -- and also other counsel, to consider whether there are such
24 issues which might not be part of a long line of questioning but separate
25 issues which could be dealt with in --
1 MR. EMMERSON: I'm afraid to say in effect that because of the
2 scheduling indications that I've had, I simply haven't been in a position
3 to sit down and plan cross-examination in the way that Your Honour is
4 indicating, in other words to identify separate issues.
5 JUDGE ORIE: Okay. It's clear communication also from the Chamber
6 has not been as it should be, that is something for the Chamber to
7 consider, that communication will be better in the future.
8 Then, Mr. Di Fazio, are you ready to call your next witness?
9 MR. DI FAZIO: Yes, I am indeed. I call Milutin Visnjic.
10 JUDGE ORIE: Yes. Mr. Usher, could you please escort the witness
11 into the courtroom.
12 [The witness entered court]
13 JUDGE ORIE: Good morning, Mr. Visnjic. Before you give evidence
14 in -- yes. Can you hear me in a language you understand, Mr. Visnjic?
15 THE WITNESS: [Interpretation] Yes.
16 JUDGE ORIE: Yes. Before you give evidence in this Court, the
17 Rules of Procedure and Evidence require to you make a solemn declaration
18 that you'll speak the truth, the whole truth and nothing but the truth.
19 The text is now handed out to you and I would like to invite you to make
20 that solemn declaration.
21 THE WITNESS: [Interpretation] I solemnly declare that I will speak
22 the truth, the whole truth and nothing but the truth.
23 WITNESS: MILUTIN VISNJIC
24 [Witness answered through interpreter]
25 JUDGE ORIE: Thank you very much. Please be seated, Mr. Visnjic.
1 Mr. Visnjic, I see that you're taking some documents out of an
2 envelope. May I instruct you that you should not consult any paper unless
3 you have asked permission to do so. Mr. Visnjic, you'll first be examined
4 by Mr. Di Fazio, counsel for the Prosecution. Mr. Di Fazio, please
6 MR. GUY-SMITH: Excuse me, Your Honour, before we begin, can we be
7 assured that whatever documents Mr. Visnjic has with him, he has shared
8 with the Prosecution so that we are in the event that such documents are
9 to be pulled out or if --
10 JUDGE ORIE: If they are to be pulled out we will ask what they
11 are and whether they are known to others as well. But for the time
13 MR. GUY-SMITH: The reason I'm raising that at this point is
14 considering the history of litigation concerning this particular testimony
15 it may be of some import.
16 JUDGE ORIE: Yes. Mr. Di Fazio.
17 MR. DI FAZIO: In a nutshell, the answer is simple. Yesterday
18 Mr. Visnjic provided me with his own brief curriculum vitae. That was
19 translated and provided to the Defence. Other than that, no other
20 documents were produced to me yesterday.
21 Examination by Mr. Di Fazio:
22 Q. Mr. Visnjic could you please confirm if these personal details are
23 correct? Your full name is Milutin Visnjic, father's name is Luka. You
24 were born on the 27th of January 1952 in Kosovo and you're a Serb by
1 A. Yes.
2 Q. Thank you. Can the witness please be shown 65 ter 1970, which I
3 hope is his curriculum vitae that I just referred to.
4 Thank you. Mr. Visnjic, is that document that you're looking at
5 some brief notes concerning your curriculum vitae that you prepared and
6 produced to me yesterday? And is that your signature at the bottom?
7 A. Yes.
8 Q. Thank you. I seek to tender those -- that CV, if Your Honours
10 JUDGE ORIE: We have some difficulties in -- first of all, I see
11 on my e-court screen I see the original. Do I not have in my e-court
12 system --
13 MR. DI FAZIO: Translation?
14 JUDGE ORIE: Yes.
15 MR. DI FAZIO: We've got hard copies, but I thought we had English
16 version as well.
17 JUDGE ORIE: Now it's loaded. Now we are. Please proceed, Mr. --
18 MR. DI FAZIO: Thank you.
19 Q. Mr. Visnjic, you set out what you did basically between 1978 and
20 1993 and I want to get some more details of your work and experience from
21 the point 1993 when you started working at the Pristina SUP. In your CV
22 there you say that you commenced working there in 1993 as a ballistics
23 expert and that you then went on to become a manager of a group of
24 experts. First question is when precisely in 1993 did you start working
25 there, if you can recall?
1 A. On the 13th of December 1993.
2 Q. And did you immediately commence working for the SUP as a
3 ballistics expert or in the field of ballistics or did you do other work
4 for the SUP as a preliminary?
5 A. I started working in the field of ballistics right away.
6 Q. Thank you. Can you tell the Trial Chamber what training, if any,
7 you received in order to carry out those sorts of duties?
8 A. There was in-house training held by a ballistics expert who had
9 been sent from the Secretariat of Novi Sad. I worked with him there and
10 was trained by him as we went along.
11 Q. And how long did that training last?
12 A. He spent some six months there.
13 Q. And what form did the training take? Was it simple observation of
14 him going about his work? Was there a formal component, lectures or
15 anything like that? Could you please provide a little more detail of the
16 form that the training took?
17 A. The training took place on the job. There was no extra training.
18 We worked on individual cases, and whatever we came across as we were
19 trying to solve a case, we would be trained in that particular area.
20 Q. And how long did your -- I'm sorry, I think you said you spent six
21 months doing that sort of training. Did you receive any sort of formal
22 qualification after doing the six months training?
23 A. There was no formal qualification. I was only given a decision
24 assigning me to that particular post.
25 Q. Following the training, were you able to carry out your own
1 analyses in the field of ballistics?
2 A. After that, I worked on my own. However, whenever I was uncertain
3 of certain matters, there were other ballistics experts in the MUP who
4 would assist me in matters that I was not able to deal with on my own.
5 MR. GUY-SMITH: Excuse me, at this time, if there is going to be a
6 self qualification of expert, I think we should understand the names of
7 the people who he consulted with and their qualifications or at least some
8 indication of what experience they have.
9 JUDGE ORIE: Yes. I think as a matter of fact that -- yes. While
10 that might have been the next question by Mr. Di Fazio, what the
11 qualifications were of those the witness consulted with but before we
12 continue I would have another question. Mr. Di Fazio, in your questions
13 you're talking about ballistics. I always understood ballistics to be the
14 science that deals with the flight of projectiles, et cetera, where some
15 also include the technical aspects of firearm identification by marks, et
16 cetera. How is the word ballistics used? Because that seems not to be
17 entirely clear.
18 MR. DI FAZIO: Thank you. I'll clarify that with the witness.
19 Q. Witness, you heard what His Honour said. We have been using the
20 term ballistics. Perhaps we should be -- you should provide a little more
21 precision as to the precise nature of what your field was and whether or
22 not you include the term -- whether or not your field of expertise, if you
23 possess it, comes within the term -- within the meaning of ballistics.
24 A. One could term it as an analysis of traces left on cartridge
25 cases. Most of the job involving ballistics or rather 90 per cent of it
1 deals with the traces to be found on cartridge cases.
2 JUDGE ORIE: And bullets or just cartridge cases?
3 THE WITNESS: [Interpretation] Cartridge cases and projectiles,
4 bullets and so on.
5 JUDGE ORIE: Please proceed, Mr. Di Fazio. You are aware that
6 Mr. Guy-Smith would like to know --
7 MR. DI FAZIO: That's an excellent suggestion from Mr. Guy-Smith
8 and I'm grateful to him.
9 Q. But before I get on to that, there is just one more thing. Does
10 your field of study incorporate or refer to the methods of -- the
11 functioning of firearms and how they operate on bullets?
12 A. In the course of work, we did not have time for that because this
13 is not an institute dealing with research. What we were mostly concerned
14 with was whether the weapons concerned were in working order, in proper
15 order, and whether they could fire or not.
16 MR. DI FAZIO: Would Your Honours just give me a moment? I want
17 to see --
18 JUDGE ORIE: Mr. Di Fazio I take it there is some confusion about
19 your question. I wouldn't mind if you would move on because talking about
20 the traces left requires a certain understanding of how a weapon
21 functions, and I think the witness understood it as whether they were
22 testing weapons on their functioning, whereas I understood your question
23 to be more limited.
24 MR. DI FAZIO: Thank you, Your Honours.
25 JUDGE ORIE: Please proceed.
1 MR. DI FAZIO:
2 Q. You mentioned earlier that in the course of your carrying out your
3 duties you conferred or spoke to other ballistics experts. Can you tell
4 us how that came about and why it came about? In the normal course of
5 your duties, in the normal course of carrying out analyses, why and how
6 would you confer with other -- others possessing expertise in your field?
7 A. As I said, right at the outset, there was the ballistics expert I
8 worked with. Since the Secretariat in Pristina did not have a ballistics
9 expert, it had experts who had been seconded by other offices. As I
10 arrived there in Pristina, I came upon a ballistics expert who had already
11 been there. It was with him that I worked with matching projectiles,
12 marks and traces to be found on projectiles and rounds. With him, I
13 worked on comparisons and matching. For the rest, I worked on my own. If
14 I happened to be unsure about some marks, I would go to the MUP in
15 Belgrade, and I would go to my colleague who worked with the security
16 institute who was quite experienced in the matter; and I would consult him
17 and he would be the one to have the final say so to speak.
18 Q. Thank you. And can you just tell us the name of the gentleman who
19 you worked with in Pristina, the ballistics expert who was there when you
20 arrived? That's if you can recall it. If you can't --
21 A. I only know that he had originally come from the Novi Sad
22 Secretariat. Vlado Dopudja, Vladimir Dopudja.
23 Q. Thank you. And how often did you have to go to Belgrade to speak
24 with other ballistics experts?
25 A. In the beginning, I did not have occasion to do that. However, as
1 the number of cases of assault against the police and citizens grew, a
2 decision had been taken higher up that whatever I worked on, I don't know
3 when this practice started, but at any rate, from that point on, whatever
4 cartridge cases I examined ultimately I had to take the cases and my
5 findings to my colleague in Belgrade for the final matching and
7 Q. Thank you. Can you just tell us -- we know that you started
8 working in 1993. I'd like you to focus on the period of time between 1993
9 and the beginning of 1998. Did this practice of your conferring with
10 colleagues start before 1998 and if so, can you give us some idea of how
11 long before you started this practice of conferring with colleagues?
12 A. What do you mean since when? Do you mean whether it started
13 before 1990?
14 Q. Yes. Perhaps I'll be -- make my question a little clearer.
15 You've told us that you started working in 1993 at the Pristina SUP. You
16 told us that as the number of cases of assault against police and citizens
17 grew, that your examinations and findings were taken to a colleague in
18 Belgrade. When did that practice start, taking your findings and
19 examinations to a colleague in Belgrade, approximately, if you can tell
21 A. I don't know. I'm really not sure. I wouldn't want to venture to
22 state a year, but I believe the practice started in 1995, but please do
23 not take this as 100 per cent sure.
24 Q. At any rate, before 1998?
25 A. Yes, yes.
1 Q. And this practice, did it involve -- tell us precisely what it
2 involved. Was it a question of you simply handing over your results or
3 did it involve discussion with your colleagues?
4 A. Once I did my job, compared the cases, and arrived at the
5 conclusion as to the weapons the cases came from, let me explain this more
6 closely. The unresolved cases of cartridges found at crime scenes were
7 stored in the Pristina SUP. One of the most characteristic groups of
8 cases was placed in collections of cartridge cases. Any new case that we
9 had involving cartridge cases would entail matching these cases with the
10 cases found also at the same crime scene and then we would also match them
11 with the cases that had been found earlier on. That is to say the cases
12 from these collections. Once I did my part of the job, that's to say
13 compared the newly found cases one with another and with the cases that
14 had been found earlier on, I would reach my conclusions and then take all
15 of the cases involved and my -- to my colleague to Belgrade. I would not
16 present him with my findings beforehand. Rather, I would only present him
17 with the case, the problem, the cartridges, and at the end of that
18 process, we would compare our findings and reach the conclusion.
19 Q. Did you have reason to discuss your findings with your colleagues
20 on these occasions, to --
21 A. After my colleague would finish his work and make conclusions and
22 we would discuss the work and all other things as well as future
24 Q. Thank you. Thinking back to the period between 1993 and 1998,
25 this may be difficult to answer but please do the best you can, can you
1 give the Trial Chamber an idea of how many examinations you might have
3 A. Well, a lot, really a lot. I couldn't put a figure to it because
4 in addition to these cases, there were also cases where we knew the
5 perpetrators, such as murderers or suicides and similar cases. So in
6 addition to this kind of work, we also had our routine cases, routine
7 work, and that's why it would be difficult for me to give you a number of
8 cases. I had full records, and as I have told you earlier, all of those
9 records disappeared during the bombing and the records contained precise
10 information on all of the cases.
11 Q. All right. Thank you. Did you in the course of your duties,
12 prepare reports --
13 JUDGE ORIE: Mr. Di Fazio, could I ask? You said it's difficult
14 to give an estimate. Was it in the tens, was it in the hundreds, was it
15 in the thousands? Could you give us some indication of the number of this
16 type of cases, that is comparing and matching cartridges over five years?
17 THE WITNESS: [Interpretation] Well, let me say up to 100, when it
18 comes just to these unresolved cases, dozens. We could say dozens.
19 JUDGE ORIE: Yes. That would mean once every two, three, four
20 weeks, such a case would come to you? Is that --
21 THE WITNESS: [Interpretation] Well, on average, one could say so,
23 JUDGE ORIE: Thank you. Please proceed, Mr. Di Fazio.
24 MR. DI FAZIO: Thank you, Your Honour.
25 Q. In the course of carrying out your duties, and following on from
1 these analyses that you conducted, did you produce reports for judicial
3 A. Yes.
4 Q. I'm not entirely sure of the legal procedures in the former
5 Yugoslavia but did that involve you actually testifying or giving evidence
6 before tribunals and courts?
7 A. Yes.
8 Q. You've -- you say in your CV that you -- that you became a manager
9 of a group of experts and chief of forensics. When did that take place?
10 A. Well, after about two years of work, I think. Since we did not
11 have the people for the job, I was given a decision appointing me head of
12 the section but since we didn't have the necessary experts, the required
13 experts, I still continued working as a ballistics expert. My boss was
14 killed in the bombing and I took over his duties as well as head of
16 Q. Thank you. So you presumably took over as head of forensics in
17 1999 but before that, you'd become chief -- sorry, the manager of the
18 group of experts around 1995. Is that a correct understanding of your
20 A. Well, something like that. I'm not quite sure, but I do have that
21 decision appointing me. Had I known that it would be necessary here, then
22 I would have brought it with me. It was sometime after two years. Could
23 have been in 1995 or in 1996, that I started heading this group.
24 Q. And in your CV, you also say that you completed an OSCE ballistics
25 course. When did you do that?
1 A. Well, that was later, when I started working in the municipal
2 Secretariat of the Interior in Belgrade. I think it was in 2003 or 2004,
3 more likely in 2003.
4 Q. Thank you. And you also say that you are enlisted in the register
5 of permanent court experts for ballistics and identification of traces of
6 weapons and tools. I just would prefer if you would explain that to the
7 Trial Chamber. I would just like you to explain to the Trial Chamber what
8 precisely that means, what is this register, where is it located, when did
9 you enlist in it?
10 A. Since I was an employee of the Secretariat of the Interior, and I
11 had a decision appointing me as a ballistics expert, I was an
12 institutional expert and there was no need for me to be registered as a
13 court expert. Once I retired in 2006, I became registered as a court
14 expert within the region -- district court.
15 Q. Earlier in your testimony you said that you had produced reports
16 that -- for judicial proceedings. I'm not entirely sure of the difference
17 between an institutional expert and a court expert. During the time that
18 you were an institutional expert, did you nonetheless provide reports
19 for -- to be used in judicial proceedings?
20 A. Yes. Most of our work was for the purposes of trials, of court
21 proceedings. All of our reports were done in writing and were sent to
22 courts. Naturally, they were also used in intelligence work.
23 Q. Thank you. I now want you to turn your attention to events in
24 1998. At that time -- I don't think this is in dispute -- you were
25 working with the SUP in Pristina; is that correct?
1 A. Yes.
2 Q. Earlier in your evidence you referred to comparisons that you
3 would conduct between material found by police at crime sites and with
4 material -- and results, and other analyses that you had conducted of
5 other materials found at different locations and conduct comparisons. Do
6 you recall giving that evidence a while ago?
7 A. Yes, yes. I said so, and I described the procedure. All of the
8 casings found on the spot were put in the collection, and we always
9 compared newly found cartridges with the ones existing in the collection
10 that stemmed from unresolved cases.
11 Q. Thank you. It's the collection that I'd like you to provide a
12 little more detail about, please. Do you know when this collection was
13 started in Kosovo and how big it was by -- approximately how big it was by
14 September of 1998?
15 A. Well, the collection was already in existence when I started
16 working there, so it had been established prior to my arrival there, and I
17 just continued using it in my work. In 1998, since different types of
18 weapons were used in various events, I would say that there were between
19 150 and 250 cartridge cases in the collection.
20 Q. And who actually put in the information into the collection to
21 indicate where a particular item had been found? Did you do that?
22 A. I did all the work concerning that. When the cartridge cases were
23 brought in from the site, I would first record where they had been found,
24 how many, so we kept records of that nature. Then following that, I would
25 establish from what weapons they were fired and then from each group, I
1 would select one or two characteristic cartridge cases, and then I would
2 mark them.
3 Q. Now in the process of recording where they had been found, were
4 you dependent on records produced to you by other police officers who had
5 been at the crime site?
6 A. Yes. Cartridge cases would arrive to me with accompanying
7 documents containing a brief description of the event, time, date and
8 place. So all of the cartridge cases would arrive with this brief
9 description of the event.
10 Q. Thanks. Are you familiar with the actual process involved in
11 finding an item of evidence at a crime site and getting it to you for
12 analysis? Do you know -- are you familiar with that process?
13 A. In principle, I know how this needs to be done, but I don't know
14 how it was done in particular cases, because it was done by technicians
15 who conducted on-site investigations. Those who investigated on the site,
16 they would collect cartridge cases put them in bags, mark them with
17 numbers, assigned on the spot.
18 Q. Can you recall what other information was required to be placed on
19 these bags, if any, other than -- well, let me withdraw that question and
20 rephrase it.
21 Can you tell us precisely what information was required to go on
22 to these bags from the point of collection?
23 A. Well, I mostly received bags with the marked numbers. I did not
24 receive complete report of the investigation conducted on site. I would
25 just receive a brief description of the event and then brief information
1 concerning the cases. All traces are normally marked with a number when
2 an on-site investigation is conducted. So whenever a case is found, it is
3 put in a bag and assigned a number, and this report would be sent to the
4 relevant Secretariat. I myself would only receive a brief summary
5 accompanying these cases so that in compiling my report, I could say, case
6 number such and such was fired from such and such weapon and so on. So I
7 had to know just the basics concerning the numbers so that I could include
8 this in my report when describing particular groups of cases.
9 Q. Okay. Thanks. Do you know who prepared these sorts of summaries?
10 Was it the seizing officer, the gentleman who actually found the item, or
11 someone else?
12 A. The procedure was such that the person going on site to conduct an
13 investigation was duty-bound to write this technical report and then
14 prepare a request that was sent to me. So a supervisor or head of the
15 department would look at the request, review it, and then approve it to be
16 sent to me.
17 Q. Thanks. Now, it's not in dispute here that the forensic
18 department was hit by a NATO missile and records -- and -- records were
19 destroyed. Firstly, you used to keep personal notes. They were destroyed
20 in the -- when this missile struck the --
21 MR. GUY-SMITH: I would request that Mr. Di Fazio does not lead.
22 JUDGE ORIE: Mr. Di Fazio you're invited not to lead on this.
23 MR. DI FAZIO: I'm happy to deal with it without leading. I
24 didn't think it was in dispute.
25 Q. Anything happen to the Pristina forensic department in 1999?
1 A. Yes. During the bombing, the entire forensics department was hit
2 and it burned down, including my lab, my office, containing all the
3 cartridge cases found on various sites, including the records that I kept.
4 Q. Thanks. Does that include your personal notes?
5 A. Yes, including my personal notes.
6 Q. Does it -- did it include the summary that you were just earlier
7 referring to, the brief summary that accompanied the cases that came to
9 A. Yes. All of it. All of the replies that I wrote, all of my
10 reports that were sent to various Secretariats of the Interior were sent
11 out as originals and copies remained in my office, and all of them were
12 destroyed in the fire that ensued.
13 Q. Thanks. I'd like to take you to a specific examination, please.
14 MR. DI FAZIO: Can the witness be shown P445? I'd ask that he be
15 shown the B/C/S version, please.
16 Q. Just have a look at that document and familiarise yourself with
17 it, please.
18 A. Yes.
19 Q. First question is are you familiar with that sort of -- that sort
20 of request for investigation -- for an analysis?
21 A. Well, as I have said just now, each request that I received
22 contained a brief summary of the event and the number of cartridge cases.
23 Those were the typical records that I received, the documentation that I
24 received. I apologise. Let me add something. In addition to the
25 description of the event, the number of cartridge cases, the request must
1 also contain the specific request, what they actually wanted me to do. So
2 those three things were required, a brief description of the event, the
3 cartridge cases found on the spot, and the request as to what needed to be
4 done in relation to these cases.
5 Q. And in this particular case, Milan Stanojevic asked you to compare
6 the various pieces of evidence with the archival material that you've
7 referred to earlier in your evidence?
8 A. Yes.
9 Q. All right. Thanks.
10 MR. DI FAZIO: Can the witness now be shown 65 ter 990? Again the
11 B/C/S version, please. It's page 2, I'm told, that -- the actual report
12 itself that I'm interested in. And can we go down to the bottom?
13 Q. Do you recognise that document?
14 A. Yes.
15 Q. What is it?
16 A. Well, this is my reply to the request that I received from the
17 Djakovica Secretariat about the cases that were sent to me, accompanied by
18 their request.
19 Q. Thank you. That -- do I understand you correctly, this is your
20 report that you produced in response to the earlier document that I showed
21 you, P445?
22 A. Yes.
23 Q. That's your signature at the bottom?
24 A. Yes.
25 Q. Thank you.
1 JUDGE HOEPFEL: May I ask what name that is at the bottom?
2 MR. DI FAZIO: If Your Honours please, I'll ask the witness.
3 Q. Is that your name that appears at the bottom of the document?
4 A. Yes, yes, my name, first name and last name.
5 MR. DI FAZIO: I think English translations are available, Your
6 Honours. I think they should be.
7 JUDGE ORIE: I don't know what caused the question but I see on
8 the line just above the signature, I see some five words, the last two
9 apparently being Milutin Visnjic. I do not see any translation of the
10 first -- the first ten letters.
11 MR. DI FAZIO: Yes.
12 JUDGE ORIE: Perhaps you find that out.
13 MR. DI FAZIO: I will, thank you.
14 JUDGE ORIE: Let's not spend time on it in court. It could be
15 something, please proceed.
16 MR. DI FAZIO: Thank you, Your Honours.
17 THE WITNESS: [Interpretation] If I may explain something, this is
18 my title, what, the text before my name is my title, and that I am -- have
19 a degree in mechanical engineering.
20 MR. DI FAZIO:
21 Q. Just read it out so the interpreters can translate it for the
22 Trial Chamber.
23 A. In front of my name is my title and it says that I have a
24 bachelor's degree in mechanical engineering.
25 Q. Thank you. Can the witness now be shown 65 ter 990, page 1,
2 Again, if we could just go to the bottom of the document?
3 Have a look at that document. Who is it -- who is it signed by,
4 if you know?
5 A. This was signed by my superior, head of the section,
6 Radojica Kovac.
7 Q. And why did he involve himself in forwarding the ballistics expert
9 A. Every report produced by me or by my colleagues, when it was sent
10 to the Secretariat of the Interior or to a court, had to have a cover
11 letter accompanying it, and in that cover letter, it would be made clear
12 that my boss had approved this report and that that was the meaning of it.
13 Q. Thank you. And now I apologise for switching around but can we
14 now go back to your actual report, which is 65 ter 990, page 2?
15 And -- thank you. It's the opinion that I'm interested in, which
16 is the last paragraph in the document.
17 JUDGE ORIE: Before we continue, I think that the two documents
18 shown to the witness at least should receive an MFI number.
19 Mr. Registrar. First, I think we are talking about the -- did you show
20 the 21st of September 1st or you're using 65 ter numbers.
21 MR. DI FAZIO: I think -- we've got, 21st of September document
22 has already got an exhibit number.
23 JUDGE ORIE: Yes, that's 445. And the other one it's the
24 ballistics expert report and the accompanying cover letter.
25 MR. DI FAZIO: Yes. I'd be happy for them to be exhibited, to be
1 marked as one, if Your Honours prefer.
2 JUDGE ORIE: Yes. I would not mind to. In the electronic system
3 it's one document at this moment, two pages, cover letter first and then
5 MR. DI FAZIO: That's fine.
6 JUDGE ORIE: Mr. Registrar that would be number?
7 THE REGISTRAR: Your Honours that would be P916.
8 JUDGE ORIE: Thank you, Mr. Registrar.
9 MR. DI FAZIO: Thanks.
10 Q. Okay. Now, if we can go to the opinion, please? You say that of
11 the forwarded cartridges, firstly are you referring to the cartridges that
12 were sent to you on the 21st of September 1998 by that gentleman
13 Milan Stanojevic?
14 A. Yes. This is stated in the first sentence of my report.
15 Q. Okay. And the -- yes, thanks. So it is. I apologise.
16 Well, let me then ask you this directly, the one matter I'm
17 interested in and that's this: You say that of the 14 -- of the forwarded
18 cartridges, 14 are identical to 29 found in a certain place on 7th of
19 March, Pljancor and 29 cartridges found on the 24th of March in a place
20 called Gramocelj. When you say they are identical, when you say they are
21 identical, what precisely do you mean by that?
22 A. By identical, I mean the traces found on the cartridge cases are
23 identical to the traces found on the cartridge cases recovered from
24 Pljancor and Gramocelj. Let me explain what the traces mean. Automatic
25 and semi-automatic weaponry leaves three or several characteristic traces
1 on the cartridge case, one is the firing pin marks, the other one is
2 ejector marks, the third mark is the breech face mark. The
3 above-mentioned traces are the ones that can be found at the bottom of the
4 cartridge case. There is also the fourth mark, which is the extractor
5 mark, which is found on the edge of the cartridge cases. These are the
6 four marks or traces that every automatic or semi-automatic weapon would
7 leave on the cartridge case. On the basis of the marks that are compared
8 one with another, one draws the conclusion as to whether the given
9 cartridge case is identical to another such case.
10 Q. Okay. And if it is identical, what does that mean?
11 A. If the traces or marks are identical, this means that the
12 cartridge cases examined were fired from the same weapon.
13 Q. Thank you.
14 MR. DI FAZIO: If Your Honours please, I seek to tender the expert
16 JUDGE ORIE: Yes. I take it that that -- that the Defence would
17 like to make submissions on the admission of the expert report.
18 MR. EMMERSON: Might we consider that position at the end of the
19 witness's testimony?
20 JUDGE ORIE: Yes. Same for you, Mr. Guy-Smith?
21 MR. GUY-SMITH: Yes.
22 JUDGE ORIE: And Mr. Troop?
23 MR. TROOP: Yes, Your Honour.
24 JUDGE ORIE: Then we will delay a decision. Yes. If I further
1 MR. DI FAZIO: I do apologise. I have no further questions.
2 Thank you, Mr. Visnjic. I'm reminded if Your Honours please that the CV
3 that I referred to earlier has not been given an exhibit number and it
4 should be given an exhibit number.
5 JUDGE ORIE: Mr. Registrar, the CV of Mr. Visnjic.
6 THE REGISTRAR: P917, Your Honours.
7 JUDGE ORIE: Yes. Thank you.
8 [Trial Chamber confers]
9 Questioned by the Court:
10 JUDGE ORIE: Before the Chamber gives an opportunity to Defence
11 counsel to cross-examine you, Mr. Visnjic, I'd like to have a look
12 together with you to the 21st of September request for an examination.
13 Could that be shown on the screen?
14 Yes, could it be enlarged so that the -- one can read it? Yes.
15 I'd like to do some simple calculations, if you wouldn't mind.
16 Could you please follow me? I see that there are under label R-1, there
17 are 40 cartridges. Do you see that?
18 A. Yes.
19 JUDGE ORIE: Under R-2, there are 36. Under R-3, there are 16.
20 Under R 4, there are four. Would you still agree with me?
21 A. Yes.
22 JUDGE ORIE: Under R-5 -- R-5, there are five pieces, five
23 cartridges. Under R-6, there are three, yes? That brings me to a total--
24 A. Yes.
25 JUDGE ORIE: Of 104. If you would like to check that, perhaps
1 someone writes it down and see whether we all agree on the simple --
2 MR. DI FAZIO: It's correct.
3 JUDGE ORIE: It's correct. Then we have another series that is RE
4 1. That's one piece. Re-2 is again one piece. That makes two, and
5 altogether, 106. Now we have another series, that is D-1, six pieces.
6 D-2, five pieces. D-3, again, five pieces, and D-4, one piece. This
7 third series is a total of 17, which brings me to a total of 123
9 Now, could I draw your attention to the 2nd of December 1998
10 report? Could that be shown on the screen please, that is P916. Second
11 page, please.
12 There, in the second line, it is said that 117 cartridges of a
13 certain calibre were sent, one of another calibre, five of a 9 millimetre
14 calibre, and one 7.9 millimetre calibre. If I add all this, I come to
15 124. Could you explain how you can, at the one hand, receive 123
16 cartridges and then in your comparison talk about 124? That puzzled me
17 when I read these reports in their context.
18 A. I apologise. Most likely there was an error in summing, 117 plus
19 five is 122, and then there is another one and that's 123. So I
20 apologise. The sum is correct.
21 JUDGE ORIE: Then I am a layman in this respect. I see first 117,
22 and now we go into detail, 7.62 times 39, one 6.-- 7.62 times 25, five 9
23 millimetre, and another one now 7.9 millimetre calibre. So I have 117
24 plus one plus five plus one makes 124, as far as my expertise goes in this
1 A. Yes, yes. That's correct. 124.
2 JUDGE ORIE: Could you resolve this puzzle for me, how you can
3 receive 123 cartridges and how you can compare 124?
4 A. I really don't know how it is possible that the report states a
5 number that was wrong. I have to say that I referred to the cartridge
6 cases that I examined. There must have been an error in the request that
7 was submitted to me. I must admit that it is an error on my part not to
8 have noticed that the number of cartridge cases is not the same.
9 JUDGE ORIE: Where the error lies, that's exactly the question
10 that I was putting to you, but you have no clear recollection that you
11 said one other cartridge slipped in or it did not -- we already noted that
12 in the letter in which they sent the material to us, this was a mistake.
13 You have no recollection, or do you have any recollection? But it seems
14 that you're surprised by it now so I'm therefore not too optimistic to
15 receive a clear answer from you.
16 A. As I say, I don't recall where the error was made, but I do claim
17 that the number of cartridge cases I wrote in my report is correct,
18 because I could not have referred to cartridge cases that I did not
19 examine. There were a great many such cases involving many cartridge
20 cases. We were supposed to work under great time pressure, and I suppose
21 that the lads who were working at scenes were also required to work at
22 great speed, all of which could have led to some errors having been made.
23 JUDGE ORIE: Yes, of course, we have to consider all possible
24 errors, one of them being that the cartridges you examined was not exactly
25 the same sample as that was sent to you.
1 A. No. The cartridge samples that I received, I just explained to
2 you a moment ago, the procedure under which I worked. All the cartridge
3 cases that were received from Djakovica, I said that first -- the first
4 thing that I would do would be sort the cartridges out according to their
5 calibre. Next I would sort them out according to the number of weapons.
6 In this instant report, we don't have that, but normally we would have the
7 number of cartridges coming from a given number of weapons and then the
8 third section of the report would contain the comparisons or matching of
9 these particular cartridges with the cartridges from the collections. I
10 would say that the correct number of cartridges is the one contained in my
12 JUDGE ORIE: Yes. Then one more question about matches. You say
13 14 of the cartridges matched with 29 cartridges found on site on the 7th
14 of March and with 29 cartridges found on site on the 24th of March. Do
15 you remember these matches, were all these cartridges fired from one
16 weapon or were there matches involving several weapons? Do you understand
17 my question?
18 A. I think I do. The 14 cartridges out of the 117 cartridges of the
19 7.62 and 39 millimetre calibre were fired from the same weapon as the 29
20 cartridges that were found in the Pljancor village on the 7th of March
21 1998, and as the 29 cartridges found in the Gramocelj village on 24th of
22 March 1998. Therefore, the 72 cartridges, as far as I was able to sum
23 them up, were fired from the same weapon.
24 JUDGE ORIE: Yes. There were not more weapons involved, for
25 example that the sample of 14 existed of ten from one weapon, four from
1 another weapon, where the four matched with -- well, let's say 15 of the
2 29 and 13 of the other series of 29. It was just all one weapon. So when
3 you described the matches here, there is only one weapon involved and not
4 two or three or -- which would still be 14 matching with 29 and with 29.
5 Do you understand what I mean, my question?
6 A. Yes, yes. The 14 cartridges and the two groups of 29 cartridges
7 each were fired from one and the same weapon. Presumably, on the 7th of
8 March, in Pljancor, there were several weapons, because as far as I
9 recall, these cases of crime scenes, they always involved several weapons.
10 So the 29 cartridges, the two groups of 29 cartridges, which were just a
11 selection of probably many more cartridges that were found on the crime
12 scenes were, together with the 14 cartridges that were found elsewhere,
13 fired from one and the same weapon. So it means out of the 117 cartridges
14 that were forwarded to me for examination.
15 JUDGE ORIE: Yes. That is clear to me.
16 Mr. Di Fazio?
17 MR. DI FAZIO: Could I just ask one or two questions following on
18 from what Your Honours just asked?
19 JUDGE ORIE: Yes, I would not mind, although I always wait until
20 all the questions by the Prosecution are put to the witness and -- but
21 please do so. And then we might have a break and then after the break.
22 MR. DI FAZIO: It only concerns one particular topic and that's
23 the -- I'll ask the witness.
24 Examination by Mr. Di Fazio: [Continued]
25 Q. You've told us in some detail about the procedures that you
1 adopted. When the samples came to you for analysis from, on the 21st of
2 September, they were presumably analysed between that date and December,
3 early December, early December. So for about two and a bit months, it's
4 that two and a bit months that I'm interested in. During that time, who--
5 where precisely were the samples kept as they were being analysed?
6 A. All the samples were kept with me, both the ones from earlier
7 cases and the recent ones. All the samples stemming from unresolved cases
8 were kept in my collection in my office.
9 Q. Who was the --
10 A. In order to be efficient, the traces were not sent back to the
11 Secretariats that had forwarded these cartridges to me. They were all
12 kept in my office to save time so that I can match them and compare them
13 with the new ones that I receive rather than have to have to go back to
14 the Secretariats to ask them to re-send them to me. That was why I kept
15 all the cartridge cases from unresolved cases.
16 Q. Thanks. From the points of time that you received the cartridges
17 or sorry, the bits of evidence for analysis, who was the official
18 custodian of those pieces of evidence?
19 A. We did not have special custodian. The cartridges were kept in a
20 special safe that was located in my office.
21 Q. Okay. And can you tell the Trial Chamber if -- what procedures,
22 if any, existed to avoid any samples being mixed?
23 A. All the pieces of evidence from a given scene were kept in a
24 special bag labelled with the date and place, including the reference
25 number of the request sent by the Secretariat. All of this was kept in
1 one bag.
2 Q. All right.
3 A. Each and every evidence bag contained the basic information which
4 told me immediately what the cartridge cases contained therein referred
6 Q. Thank you.
7 JUDGE ORIE: Then I suggest that we have a break now and that
8 cross-examination -- Mr. Emmerson?
9 MR. EMMERSON: Cross-examination is not going to take very long,
10 as far as I'm concerned.
11 JUDGE ORIE: I take it more than five minutes because that will be
12 the time to the break usually.
13 MR. EMMERSON: Maybe not but I'm very happy to take the break at
14 this stage.
15 JUDGE ORIE: Yes. We'll have a break and we'll resume at ten
16 minutes to 11.00.
17 --- Recess taken at 10.26 a.m.
18 --- On resuming at 10.55 a.m.
19 JUDGE ORIE: Mr. Visnjic, you'll now be cross-examined first by
20 Mr. Emmerson, counsel for the -- for Mr. Haradinaj. Please proceed,
21 Mr. Emmerson.
22 Cross-examination by Mr. Emmerson:
23 Q. Mr. Visnjic, I've just got some general questions for you about
24 the methodology involved in comparing cartridge cases. You told us in
25 your evidence that there were four indicia, four signs that one looks for
1 in a cartridge case for the purposes of comparison, pin markings, ejector
2 markings, breech face markings, and extractor markings, correct?
3 A. Yes.
4 Q. And obviously every weapon within a particular class will make
5 markings in each of those four categories; is that correct?
6 A. Yes.
7 Q. And your job, when making the comparison, is to determine whether
8 the markings that you are looking at, say, for example, the extractor
9 marks, whether these are what are described as class markings or
10 individual markings characteristic of an individual gun; is that correct?
11 You have to make that distinction.
12 A. Well, these are the markings characteristic of a particular
13 weapon. We compare cartridge cases to other cartridge cases in relation
14 to a specific weapon, not a class of weapons.
15 Q. I understand that but when you identify a marking on a cartridge
16 case, you have to make a decision about whether the marking that you're
17 looking at is an individual marking made by a particular weapon or a
18 marking made by a class of weapons or a marking that could be common to
19 more than one weapon within its class? You have to make that judgement,
20 don't you?
21 A. Well, it is very difficult to establish the class of weapons
22 because there are some weapons that leave a similar marking so in the
23 initial stages, it is very difficult to say that it was the same type of
24 weapons. This is why we compare directly the -- this with the
25 already-existing markings.
1 Q. I understand that. And then you have to decide whether, in your
2 opinion, the particular marking you're comparing is one that could have
3 been made by a number of different weapons or must have been made by an
4 individual weapon. You have to make that assessment?
5 A. Yes. We make an assessment. It is generally known that every
6 weapon has a particular, specific identity or an individual trace. The
7 more a weapon is used, these individual features become much clearer
8 because they are intensified after the weapon has been used for sometime.
9 Q. Understood. So, for example, with some weapons, it's going to be
10 much clearer to you that what you're looking at is two markings definitely
11 made by the same weapon but with other weapons it might not be quite so
12 clear; is that right?
13 A. Yes. This is why there are so many of those traces. Out of those
14 four markings that I explained, not necessarily all four are left. In
15 some cases there are only two left or in some cases only three markings
16 are left. If one of them is very -- is barely visible, then such traces,
17 such markings or such cartridge cases are not taken into account when
18 making an opinion. It is only in those cases where markings are
19 completely identical that we take them into consideration. In cases when
20 we are not sure, we disregard them.
21 Q. And you would record, in the notes that you made at the time, the
22 reasons that had led you to a particular conclusion, would you?
23 A. What do you have in mind? Which trace? I didn't quite
25 Q. With your working notes and the records that you kept at the time,
1 the working notes as you're conducting an examination, you would record
2 what the markings were that led you to the conclusions that you reached?
3 A. Out of the group of cartridges, we would group them based on a
4 calibre. Then within the same calibre, we would see how many weapons, and
5 then we would describe the markings based on which we concluded that they
6 were identical but that was not included in the report.
7 Q. No. I understand that but it would have been included in your
8 working notes, your own personal working notes that were destroyed?
9 That's where you would have recorded that type of information; is that
11 A. No. I didn't record this type of information. In my personal
12 notes or notebooks, I don't know how clear I was about it. But since we
13 had a number of unresolved cases and we had a number of cartridges, in my
14 report I would include -- or rather in my notes, I would write down
15 relating to a particular event how many cartridges, what type of weapons
16 and so on. And then I would write down whether these cartridges from the
17 same group were identical to some other cartridges. That was the
18 information included in my notes.
19 Q. Did you record anywhere the workings that led you to a particular
21 A. Well, I didn't do that. That was not a standard procedure when it
22 came to our work.
23 MR. EMMERSON: Those are my questions, Your Honour.
24 JUDGE ORIE: Yes. Mr. Guy-Smith? Mr. Guy-Smith is counsel for
25 Mr. Balaj and he'll now cross-examine you, Mr. Visnjic.
1 Cross-examination by Mr. Guy-Smith:
2 Q. I want to understand one of the responses that you just gave, so
3 I'm clear about what you were looking at. When you were doing your
4 examinations, you recognise that there are a group of markings which are
5 called class markings? I'm not talking about class of weapon but, rather,
6 class characteristics that exist for all cartridges that would be-- that
7 would go through a particular weapon, right?
8 JUDGE HOEPFEL: Maybe that's not exactly clear. What do you mean
9 by saying a particular weapon?
10 MR. GUY-SMITH: Okay. Let me ask it in a different way.
11 Q. With regard to the issue of examining cartridges, you're examining
12 what are called tool marks which are marks that are made on the cartridge,
14 A. Yes.
15 Q. And you've identified four types of markings that you examined,
17 A. Yes.
18 Q. With regard to the kinds of markings that you examined, one type
19 of marking is a marking which is a class characteristic, which is a
20 marking that will be found as a result of it going through -- of a
21 cartridge going through a particular type of weapon, correct?
22 A. Yes.
23 Q. There is another characteristic which is a subclass
24 characteristic, and a subclass characteristic is present when there are
25 those markings that arise out of the manufacturing process, which create a
1 particular kind of anomaly in certain barrels but not in others, correct?
2 A. Yes.
3 Q. And then there is this area that you called -- the last area which
4 are individual markings, right?
5 A. There are two types, individual markings and identificational
6 traces. That's our terminology. Individual markings are the ones that
7 you mentioned that pertain to the type of weapons. Whereas the
8 identificational traces are the ones left by that specific weapon.
9 Q. As I understand your testimony, when you were examining any
10 cartridges, you did not memorialise, write down any notes, with regard to
11 those distinctions between the class, the subclass, and the individual
12 markings that you were examining, right?
13 A. Yes.
14 MR. GUY-SMITH: I have no further questions.
15 JUDGE ORIE: Mr. Harvey? Mr. Troop?
16 MR. HARVEY: Mr. Harvey.
17 JUDGE ORIE: Yes. You were hidden.
18 MR. HARVEY: Either way, we have no questions. Thank you.
19 JUDGE ORIE: Yes. Mr. Di Fazio, let's first see whether --
20 [Trial Chamber confers]
21 JUDGE ORIE: Perhaps the Chamber first takes the opportunity to
22 ask some questions. Judge Hoepfel has a question for you.
23 Questioned by the Court:
24 JUDGE HOEPFEL: Please may I ask you how you establish these
25 traces, one just by looking at it with your eye, two, with a magnifying
1 glass, and three, with a microscope? You mentioned the microscope but is
2 everything only done by microscopic analysis or how is your methodology?
3 A. Since these are microtraces that cannot be seen with the naked
4 eye, we used a comparative microscope or comparison microscope which is a
5 specialist type of microscope specifically designed for this type of
6 comparison. There are two plates on -- one for each cartridge, one from
7 one group, one from another group. When we need to establish whether
8 cartridges were fired from the same weapon or from different kinds of
9 weapon, we put one cartridge on the left side of this comparison
10 microscope and the other cartridge on the right side, on the right plate,
11 and we make a comparison. As soon as we see that there is a match, then
12 we appropriately group the cartridges. So from this entire group of
13 cartridges that was forwarded to us, we first compare all of them to one
14 randomly selected cartridge and then we select from that group all those
15 cartridges that match the one that we had in our sample. As our sample.
16 And then we continue, the process, randomly selecting cartridges from our
17 collection to compare them to the ones that were forwarded to us. Once we
18 see that there is a match, we appropriately group these cartridges that
19 was the method of work we used with this comparison microscope when we
20 needed to see whether there is a match. On this microscope, we can see
21 the cartridge on the left and the cartridge on the right, and when making
22 the comparison, if we establish that there is a full match, then we make
23 appropriate conclusions and then proceed along the lines that I've just
25 JUDGE HOEPFEL: And may I ask you, you are speaking of "we." This
1 is just your style of speaking or is it a group of people?
2 A. Yes. Or rather, I was referring to myself, since I was the sole
3 ballistics expert, I was referring to myself. But this is just the
4 standard procedure when working with the microscope.
5 JUDGE HOEPFEL: Thank you.
6 JUDGE ORIE: Yes. I have a few questions for you as well.
7 In using the comparison microscope, was there any camera fitted on
8 it so that you could make a picture of what you saw under the microscope?
9 A. Those were the older generation microscopes and unlike the new
10 ones, they don't have a camera, they do not have the ability to make a
11 picture. This is just plain visual comparison.
12 JUDGE ORIE: Yes. Then were you asked some questions by
13 Mr. Guy-Smith on characteristics, whether they were type of weapon
14 characteristics, whether there were individual weapon characteristics. It
15 was not entirely clear to me, since Mr. Guy-Smith seemed to have three
16 categories in his mind and were you talking about two categories. I would
17 like to further elaborate on that but before I do so, in your report, you
18 write that in 14 of the forwarded cartridges and compared to the two
19 series of 29 cartridges, you said they showed identical patterns of
20 significant individual features. And for that reason, you come to the
21 conclusion that these cartridges are identical, which I understand to mean
22 that they are fired from the same weapon.
23 Now, would you ever come to such a conclusion if not the
24 individual characteristics of the weapon the cartridges were fired from
25 would not be -- would not match? That is the -- would you come to such a
1 conclusion ever on the basis of weapon type characteristics or only on the
2 basis of specific, individual weapon characteristics?
3 A. The conclusions can be made only when identification features are
4 compared. Identification features pertain to a weapon. But as I said to
5 you, each specific piece of weapon leaves a particular identification
6 marking, has its own identification features. We can compare that to the
7 papillary lines on fingertips, just as every person has their own
8 fingerprint that is specific to that person, the same applies to weapons.
9 Once we compare and match these features, and if we see that the match is
10 full, then we make a conclusion that cartridges were fired from one and
11 the same weapon.
12 JUDGE ORIE: That would be such a conclusion would rest only on
13 specific characteristics of the one weapon they were fired with; is that
14 correctly understood?
15 A. Yes.
16 JUDGE ORIE: Yes. Do you have any recollection of this comparison
17 between the 14 and the -- 14 cartridge cases and the other cartridge cases
18 you found in your collection? Do you have any fresh recollection, or is
19 it just on the basis of paper that you say, "Well, this is what I did
20 write down. This is what I always did. So --" I mean, or do you have any
21 specific recollection of exactly this examination of these cartridges?
22 A. I don't remember that specific examination. I remember the events
23 in general. But the examination itself, and the procedure, no, I don't
24 remember that in that particular case. I can just tell you what the
25 general procedure is when making a comparison, but I don't remember that
1 particular case.
2 JUDGE ORIE: I'm asking this, for example, details such as these
3 cartridges, were they delivered in a carton box sealed with tape or were
4 they brought in a bag? I mean these kind of details of this specific
5 examination. Do you have any recollection of that? If not, I would not
6 be surprised after such a long period of time and also after -- well,
7 having received many, many cartridges during your professional career, but
8 I would not be surprised. I'm just asking if there is anything specific
9 you would remember, we would like to hear, and if not, then of course, you
10 couldn't say anything about it.
11 A. I truly don't remember anything specific about that case. I don't
12 remember what they were brought in. As a general rule, they were brought
13 in bags, numbered and all.
14 JUDGE ORIE: Yes. Mr. Di Fazio any need to re-examination the
16 MR. DI FAZIO: Just two very minor issues.
17 Re-examination by Mr. Di Fazio:
18 Q. Both Defence counsel asked you about the keeping of notes. Was it
19 necessary for you to conduct your examination and reach whatever
20 conclusion you were going to reach in this particular case, and generally,
21 to keep notes?
22 MR. GUY-SMITH: I object to the question.
23 JUDGE ORIE: Yes. For asking for judgement or opinion rather than
25 MR. GUY-SMITH: Right.
1 JUDGE ORIE: Ask whether it was necessary, Mr. Di Fazio. That's--
2 MR. DI FAZIO: I'm not asking for a judgement. I'm just asking
3 him about the normal day-to-day methods.
4 JUDGE ORIE: You can ask, were you able to make a conclusion or
5 make -- draft a report without prior to that writing down your findings.
6 Did you ever do that? Then we are talking about facts and about
8 MR. DI FAZIO: I'm happy to phrase it like that.
9 JUDGE ORIE: Please proceed.
10 MR. DI FAZIO:
11 Q. Could you reach a conclusion without keeping notes?
12 A. I could have reached a conclusion but it would have taken much
13 longer, since there were quite a few such cases, in order to make it
14 easier for me to work, I would keep notes of unresolved cases only. In my
15 notebook, I had the description of the event, the number of cartridge
16 cases, and the weapon from which it was discharged. All of this was
17 labelled with numbers that I chose to facilitate my work. As I said, I
18 had only one particular group of cartridge cases in my collection. In
19 order to make sure that my conclusions were quite definite, I would take
20 not only one cartridge from the collection I had that was characteristic.
21 Rather, I took all those that I had in my collection in order to make my
22 findings more conclusive.
23 JUDGE ORIE: Mr. Di Fazio, let me try to understand. I think you
24 can't make a report without making short notes. I mean, otherwise, you
25 say 14 compared to 29. So there must be a piece of paper somewhere which
1 says number 1 plus or number 1 minus match, no match, but do I understand
2 that your notes did not include the details on which you concluded that
3 there was a match? For example, pin mark unclear but the block mark
4 perfect striae found. You didn't make those details in your notes. You
5 would just write down match or no match on the basis of what you had seen?
6 Is that the way you worked or --
7 THE WITNESS: [Interpretation] No. As I said, I only made notes of
8 cartridge cases that were a match, and I would say, such and such a number
9 of cartridges were fired from this one weapon and such and such a number
10 of cartridges cases were fired from this other weapon. It was not
11 standard procedure with us ballistics experts to write down that a match
12 was found between different ejector marks and extractor marks. Rather,
13 only when we found matches covering all these different markings examined
14 would we write down that a match was found.
15 JUDGE ORIE: Yes. That's clear. Mr. Di Fazio?
16 MR. DI FAZIO: Thank you, Your Honours.
17 Q. You were asked by Mr. Guy-Smith whether you wrote down any notes
18 concerning distinctions between features such as class, subclass and
19 individual markings on the pieces of evidence that you examined. Was it
20 necessary -- sorry. Why not? Why did you not keep such notes?
21 A. I apologise. I did not fully understand your question. Can you
22 please clarify it a bit?
23 Q. Sure. Mr. Guy-Smith one of the Defence counsel, asked you this:
24 When you were examining any cartridges you did not memorialise or write
25 down any notes with regard to those distinctions between the class, the
1 subclass and individual markings that you were examining. And you said
2 yes. Any reason why you did not make notes?
3 A. I've just given my answer. It was not standard procedure to make
4 notes indicated on the traces on the basis of which a match was found.
5 Only when I reached a conclusion based on the existing markings that are
6 normally used to identify a certain weapon, I would write down what my
7 finding was without any additional reasons that led me to that conclusion.
8 Q. I thank you. And just the last issue that I want to ask you about
9 is one that you've just raised in your answer. You say it was not
10 standard procedure. Can you tell the Trial Chamber where it was not
11 standard procedure? Do you have any information as to whether or not at
12 the time it was standard procedure -- not standard procedure in the former
13 Yugoslavia or whether it was not standard procedure on a broader-- in a
14 broader sense or simply not standard proceed in your department?
15 A. This was not standard procedure. Since there were only three
16 centers in Belgrade, Novi Sad and Pristina, I was in touch with all my
17 colleagues who did the same job I did. The procedure applied was the one
18 that I used. You remember that I told you that the first colleague I
19 contacted was the ballistics expert from Novi Sad. Later on I had
20 contacts with my colleagues in Belgrade. These were the centres I
21 collaborated with, and they all used the method of work and note keeping
22 that I used.
23 Q. Thank you.
24 JUDGE ORIE: Any further questions?
25 MR. GUY-SMITH: No.
1 JUDGE ORIE: Mr. Visnjic, this then concludes your evidence in
2 this Court.
3 We have -- I don't know whether for any discussions on the
4 admission of 916 and 917, whether we need the witness to be present.
5 Usually not but this is -- I see nodding no from all sides. Same for you
6 Mr. Di Fazio. Then Mr. Visnjic I'd like to thank you very much for coming
7 a long way to The Hague and to answer the questions put to you by the
8 parties and by the Bench.
9 I wish you a safe trip home again.
10 Madam Usher, could you please escort the witness out of the
12 THE WITNESS: [Interpretation] Thank you.
13 [The witness withdrew]
14 JUDGE ORIE: Admission of 916, expert report and attached
16 MR. EMMERSON: I think Your Honours are aware that we oppose the
17 admission of the report for the reasons that are set out in the pleadings
18 that have already been filed in this matter, and therefore it's not a
19 report to be admitted by consent.
20 JUDGE ORIE: Yes. Mr. Guy-Smith?
21 MR. GUY-SMITH: I join.
22 JUDGE ORIE: Yes. Mr. Harvey?
23 MR. HARVEY: I certainly join as well, Your Honour.
24 JUDGE ORIE: Yes, Mr. Di Fazio, would you like to respond to that
25 or would you leave it to the Chamber to consider all the matters already
1 submitted in respect of this report? Or would you like to add something
2 just on the basis --
3 MR. DI FAZIO: Just to say this. As far as the first hurdle is
4 concerned, the expertise of this witness the Prosecution submits that on
5 the evidence that you've heard today, he falls within that category of
6 expert. I'm well aware of the matters that have been raised by the
7 Defence in their pleadings. Any of those issues, the issues they raise in
8 the Prosecution's submission can only go to the weight that you attach to
10 JUDGE ORIE: Yes. Then 917, the curriculum vitae of the witness,
11 may I take it that the relevance very much depends on the admission of 916
12 and that therefore, if 916 would not be admitted, that you would object to
13 the admission of 917 on the basis of lack of relevance, but if 916 is
14 admitted, that would you then have any objections?
15 MR. GUY-SMITH: No.
16 JUDGE ORIE: Yes. Then the Chamber will not decide this right on
17 the spot but -- this means that we are -- the Chamber is ready. Let's
18 first try to clarify would the witness who is available, who would testify
19 with protective measures, examination-in-chief is concluded, I take it.
20 We were in a bit of a rush at that time, limited -- there was limited time
21 at the moment. I think I encouraged the Prosecution then to finish within
22 one or two minutes then once we had finished, Mr. Emmerson asked whether
23 he could put a question which was important for him to prepare for
24 cross-examination. That was allowed. So therefore, the status of whether
25 we have already started cross-examination, whether the examination in
1 chief was concluded, is perhaps not as clear as it usually is. Mr. Re?
2 MR. RE: The situation is that in the rush to finish by quarter to
3 7.00, there was a matter at the end which was a little bit unclear in
4 relation to the cousin and the bodies in the lake. I probably needed
5 realistically five to ten minutes to fix that on the other day. If we
6 could use the time today, I would be finished very shortly.
7 JUDGE ORIE: Yes. Then my next question would be whether there
8 would be objection against that, as, again, there was some doubt as to
9 whether examination-in-chief had been concluded.
10 MR. EMMERSON: It's a matter for the Trial Chamber. The position
11 is, though, that as I indicated this morning, I am not in a position to
12 cross-examine this witness today.
13 JUDGE ORIE: Yes. Which surprises the Chamber to the extent that
14 if the Prosecution would have stayed within the time when the witness left
15 last time, then you were at a point to start cross-examination and I do
16 understand that you expected the witness to return on Thursday.
17 MR. EMMERSON: Yes.
18 JUDGE ORIE: But nevertheless the Chamber expected you already to
19 be in a state of preparation at the time which would allow you at that
20 time to at least to start the cross-examination of the witness.
21 MR. EMMERSON: The difficulty I have is that obviously the witness
22 has given evidence-in-chief and having been given really a very clear
23 understanding that he was going to come back and testify tomorrow morning
24 I have put entirely to one side the issues of cross-examination of that
25 witness in order to be able to deal with the witnesses that were listed to
1 take place in the meantime. I don't have my papers with me. I don't have
2 my notes brought up to date. I haven't studied the transcript of evidence
3 in chief because all of that was work that I was proposing to do today and
4 so I'm simply not a position.
5 JUDGE ORIE: How much time would you need for cross-examination,
6 as far as you can assess now.
7 MR. EMMERSON: I would expect about two hours.
8 JUDGE ORIE: Mr. Guy-Smith, you also put aside everything or there
9 is there a possibility that other counsel are in a different position?
10 MR. GUY-SMITH: I don't have my binder with me. And was intending
11 to see whether or not I could have somebody in the office grab it. I'm
12 not prepared at the moment.
13 JUDGE ORIE: Yes.
14 MR. GUY-SMITH: And with regard to the issue of how long my
15 cross-examination would be I trust it would be no more than half an hour
16 and quite frankly, depending on what occurs, shorter is my expectation.
17 JUDGE ORIE: Yes. Mr. Harvey?
18 MR. HARVEY: Your Honour, I am taken somewhat by surprise by this
19 as well. I obviously had been expecting that Mr. Emmerson, and
20 Mr. Guy-Smith, would be preceding me. Based on that assumption, I had few
21 if any questions for this witness and I think it would be inappropriate of
22 me to interpose anything at this point until I've had an opportunity to
23 hear what they have to say and to consult with them.
24 JUDGE ORIE: Yes. May I then take it that you have at least a
25 certain area where you have some questions where you are -- of course,
1 because the Chamber wants to -- no. Next question would be how much time
2 would you need, approximately?
3 MR. HARVEY: Taint necessarily so is really the response to your
4 first observation, Your Honour. I do not know that I would need any time
5 at all with this witness. I was expecting that I would probably not have
6 anything to ask at all. So I think the most efficient use of the Court's
7 time, and I understand the Court's concern wishing to move ahead, is,
8 however, to accommodate Mr. Emmerson in his request.
9 JUDGE ORIE: Yes. Mr. Re, if time would be given to you to
10 conclude or to add something to examination-in-chief, I did not hear any
11 objection to that.
12 MR. GUY-SMITH: I just went through the record and I would not be
13 interposing the objection that I made the other day.
14 JUDGE ORIE: Yes. How about cross-examination to start tomorrow,
15 to finish it by tomorrow so that the witness can leave?
16 MR. RE: I'm sorry, I don't quite understand the question.
17 JUDGE ORIE: If you -- because the witness is now back, I'd rather
18 not let the witness wait until tomorrow and not see him, not explain to
19 him what the present situation is, but if you would be given some
20 additional time today to conclude your examination-in-chief, we would then
21 adjourn and on the basis of the time estimates would have
22 cross-examination tomorrow to be concluded also any re-examination by
23 tomorrow, would that meet any objections as far as you were concerned?
24 MR. RE: It doesn't meet objections. We are clearly obviously in
25 the Trial Chamber's hands although we do express some surprise that the
1 Defence isn't able to cross-examine a witness who we would have thought
2 they were prepared to cross-examine last week, but we obviously will
3 follow the Trial Chamber's directions on that. In terms of the planning
4 of the witnesses and administrative matters there is another witness
5 arriving tonight who will be available to testify tomorrow. We just
6 couldn't get him earlier today.
7 JUDGE ORIE: That's new for the Chamber as well, isn't it?
8 MR. RE: No, no, I've explained that.
9 JUDGE ORIE: When did you explain that?
10 MR. RE: I informed Mr. Zahar earlier this week that we had
11 another witness arriving on Thursday. It was in the e-mail we sent last
12 Thursday night.
13 JUDGE ORIE: I might have missed something. I thought that
14 witness was dropped but let's not make any problem out of that.
15 MR. RE: But that will work.
16 JUDGE ORIE: Yes. Now, of course, the time today will be partly
17 unused, but if we proceed efficiently tomorrow, we might start with the
18 next witness already tomorrow. Then, for the continuation of the
19 examination-in-chief, we would need a break in order to prepare again for
20 voice distortion.
21 MR. RE: Yes.
22 JUDGE ORIE: So we couldn't start right away.
23 [Trial Chamber confers]
24 JUDGE ORIE: At the same time, the Chamber will consider the issue
25 raised that Defence is not in a position to start cross-examination. At
1 the same time the Chamber invites the Defence counsel to see whether
2 anything at all is possible to start with today. The Chamber is very
3 concerned about loss of time. I see your problems, Mr. Emmerson, your
4 face expresses --
5 MR. EMMERSON: I don't wish in any way to be tendentious but I had
6 no idea at all until we came into court this morning --
7 JUDGE ORIE: That's clear.
8 MR. EMMERSON: I'm -- short of leaving the building now, going,
9 making some inquiries, reassembling my papers and coming back later, I'm
10 denuded, I'm not in a position to cross-examine.
11 JUDGE ORIE: Yes. The position is clear. We'll have a -- Mr. Re?
12 MR. RE: Before Your Honours adjourn there is -- it's nothing to
13 do with the next witness, it's in terms of administrative matters.
14 Mr. Zahar asked -- I think or someone from Mr. Nilsson asked last week if
15 there would be sometime set aside this week to deal with administrative
16 matters. There are the 92 ter summaries for example which we really do
17 wish to be read on the record at some point. If we do have some spare
18 time today could we possibly maybe use that court time?
19 JUDGE ORIE: Yes. We can use that. At the same time there are a
20 few decisions to be delivered by the Chamber as well or reasons for
21 decisions. So we'll have a break. Protective measures will be prepared.
22 Then an opportunity will be given to the Prosecution to conclude
23 examination-in-chief and we would then spend to the extent possible the
24 remaining time on administrative matters.
25 We resume at five minutes past 12.00.
1 --- Recess taken at 11.42 a.m.
2 [The witness entered court]
3 --- On resuming at 12.14 p.m.
4 JUDGE ORIE: Good afternoon, Witness 55. I'm glad to see you
5 back. You may have been surprised a little bit that we invited you to
6 come one day earlier than it was scheduled at the time. The main reason
7 is that we had some concern that if you would arrive in the morning, that
8 we would most likely have a late start but I'd say not before 10.00 or
9 10.30 and since we cannot finish in the afternoon -- we cannot continue in
10 the afternoon we were worried that you would not be able to go back to the
11 place of your residence on that same day. And therefore we asked you to
12 come a bit earlier. At the same time, I can imagine that travelling takes
13 something of you, and therefore we decided that today a few more questions
14 will be put to you by the Prosecutor, then we'll adjourn for the day and
15 since you're now in The Hague we can start tomorrow at 9.00, and everyone
16 is confident that we will then also finish your testimony tomorrow so that
17 you can return home again.
18 Do you understand that?
19 WITNESS: WITNESS SST7/55 [Resumed]
20 [Witness answered through interpreter]
21 THE WITNESS: [Interpretation] Yes, yes, I do. But I have
22 something to say.
23 JUDGE ORIE: Yes. Is there something -- I suggest the following,
24 that if you would like to say something, that first Mr. Re will -- that
25 first you answer a few more questions and that you then get an opportunity
1 to address the Chamber, or is it so urgent that you would like to address
2 us now and then we also have to keep in mind on whether you would like to
3 address us in private session or whether it could be public.
4 THE WITNESS: [Interpretation] I would like to address you,
5 Your Honours, in private session, in order to explain a few things.
6 JUDGE ORIE: Yes. We'll see to what extent, because usually
7 witnesses are there to answer questions but we'll give you an opportunity
8 to say something in private session. We have keep a close eye on the way
9 you address us, whether that's appropriately done by a witness. We turn
10 into private session.
11 [Private session]
11 Pages 8366-8370 redacted. Private session.
6 [Open session]
7 THE REGISTRAR: Your Honours, we are in open session with the
8 exception of the curtains being down.
9 JUDGE ORIE: Yes. Could the curtains be pulled up again. If I
10 could have the assistance of those, although not trained for it.
11 The Chamber would like to deal with a few procedural matters to
12 use the time this morning.
13 I will first read a decision and read the reasons for a decision
14 in respect of Witness 64. I'll start with the first one. The decision on
15 Prosecution's 20th motion for trial-related protective measures.
16 The Prosecution's 20th motion for trial-related protective
17 measures filed on the 13th of July 2007 with corrigenda filed on the 3rd
18 of August and the 16th of August 2007, the Prosecution applied for
19 protective measures for a person whose two witness statements have been
20 admitted into evidence in accordance with Rule 92 bis through the
21 Chamber's decision of the 11th of July 2007. The Prosecution asked for
22 the assignment of a pseudonym and also that the witnesses referred to by
23 this pseudonym in all public documents and that no identifying information
24 of the witness is disclosed to the public.
25 The Chamber notes that in principle, the trial must be open to the
1 public. Protective measures, therefore, may only be granted if there is
2 an objectively grounded risk to the security or welfare of the witness or
3 the witness's family should it become known that the witness has given
4 evidence before the Tribunal.
5 The party seeking protective measures for a witness can satisfy
6 this standard by showing that the threat was made against the witness or
7 the witness's family, or by demonstrating a combination of the following
8 three factors: 1, the witness's testimony may antagonise persons who
9 reside in a specific territory; 2, the witness or his or her family live
10 or work in the territory, have property in the territory or have concrete
11 plans to return to live in the territory; and 3, there exists an unstable
12 security situation in that territory which is particularly unfavourable to
13 witnesses who appear before the Tribunal.
14 The Chamber notes that no threats were made against the witness
15 and therefore turns to examine whether the three above-mentioned
16 conditions are met.
17 The Chamber has accepted the parties' agreement that there exists
18 an unstable security situation in Kosovo which is particularly
19 unfavourable to witnesses who appear before the Tribunal. The witness and
20 her family live in a town in Kosovo. Therefore the third and the second
21 condition of the test are met.
22 However, the Chamber is not satisfied that the first condition of
23 the test is met. The witness stated that some day in July 1998, her
24 husband disappeared and that in 2004, she was informed that his remains
25 had been found. The witness stated that she does not know who killed her
1 husband or why he disappeared. Since the witness's evidence does not
2 point to any particular person, the Chamber fails to see how the content
3 of the witness's testimony may antagonise people who reside in Kosovo.
4 For these reasons, the Chamber denies the Prosecution's request
5 for pseudonym and redaction of all identifying information.
6 The witness's statements are currently under seal. Therefore, the
7 Chamber orders the registrar to make the statements public, unless the
8 Prosecution informs the Chamber by 5.00 p.m. On the 19th of September 2007
9 that it chooses to withdraw the evidence.
10 This concludes the Trial Chamber's decision on the Prosecution's
11 20th motion for trial-related protective measures.
12 I will now give the reasons for a decision on the Prosecution's
13 motion for trial-related protective measures for Witness 64.
14 The Trial Chamber would like to give its reasons for having
15 granted the protection motion for trial-related -- the Prosecution's
16 motion for trial-related protective measures for Witness 64.
17 On the 29th of August 2007, the Prosecution applied for the
18 trial-related protective measures of pseudonym and face and voice
19 distortion for Witness 64. The Chamber notes that no threats have been
20 made against Witness 64. The test for granting protective measures in the
21 absence of threats has been set out by the Trial Chamber many times
22 before, and need not to be reiterated here. The Chamber has accepted the
23 parties' agreement that there exists an unstable security situation in
24 Kosovo, which is particularly unfavourable to witnesses who appear before
25 the Tribunal. Given the nature of the witness's testimony, the Chamber is
1 also satisfied that it may antagonise persons who reside in Kosovo.
2 Therefore, the first and the third conditions of the applicable test are
4 Witness 64 and his family own property in Kosovo. Witness 64 has
5 expressed fear that following his testimony before the Tribunal, he may
6 never be able to return to Kosovo to live there or to sell his property in
7 Kosovo. In court, Witness 64 explained that he would wish to live in
8 Kosovo with his family should the conditions allow for their return. He
9 also stated that his parents had a strong wish to return to their home in
10 Kosovo and that if they would return, he would travel to Kosovo more
11 often. Witness 64 further explained that if it turns out to be impossible
12 for them to return to Kosovo, he and his family would like to be able to
13 sell their property. I refer to the pages 7819 and 7825 of the
15 The Chamber understands that the plans of Witness 64 and his close
16 relatives to return to Kosovo or sell their property there depend to a
17 large extent on future developments in Kosovo. The Chamber is satisfied
18 that Witness 64, and his relatives, do, in effect, intend to return to
19 Kosovo even if this plan is conditioned upon an improvement of the
20 situation there.
21 The Chamber does find that the requirements for granting
22 protective measures were met and therefore granted the protective measures
23 of pseudonym and face and voice distortion.
24 This concludes the Chamber's reasons for the decision on
25 protective measures for Witness 64.
1 MR. EMMERSON: Just before Your Honour continues I noticed from
2 the transcript that both of the rulings that Your Honour has given are
3 recorded as having been given in respect of Witness 64.
4 JUDGE ORIE: That's wrong. In the beginning, I said reasons --
5 no, the decision on the 20th motion, and reasons for Witness 64. I then--
6 though I think I used the word Witness 64 again I moved to the other
7 decision first.
8 MR. EMMERSON: I'm simply making that observation for the
10 JUDGE ORIE: That's now clear on the transcript and the Chamber
11 appreciates your comments, Mr. Emmerson.
12 A few other matters. The Chamber has considered whether it would
13 invite the Prosecution to read 92 ter statements. We have decided that it
14 would not make that much sense at this moment. Why? Reading out 92 ter
15 statements was meant to inform the public about the basis, the basic
16 elements of the testimony of that witness so as to better understand any
17 follow-up questions in relation to that statement. Now, a practice has
18 developed, a practice the Chamber is not extremely happy with, that up
19 until the last minute before the witness appears, that a battle is ongoing
20 on what could and could not be dealt with under Rule 92 ter. That means
21 that usually the final version to be admitted for the 92 ter statement is
22 not yet available at the beginning of the testimony, let alone a summary
23 of that 92 ter statement.
24 The Chamber would urge the parties to already include in whatever
25 negotiations there are in relation to admissible or non-admissible
1 elements in 92 ter statements to already prepare a summary. Whereas the
2 discussions on 92 ter statements often go into details, summaries very
3 often could be prepared and might cause especially since there are no
4 evidence, might cause less problems. We could then restore what we
5 initially had in mind, that is to have a summary of the witness statement
6 to be read so that the public understands what the testimony is about and
7 then to put further questions to the witness. However, to read 92 ter
8 statements days or weeks after the witness has given testimony could not
9 serve this purpose any more. Therefore, the Chamber decided not to invite
10 to read the 92 ter statements.
11 Then we have a few matters in relation to the admission of
13 [Trial Chamber confers]
14 JUDGE ORIE: There is one exhibit in relation to a recent witness
15 who, as far as I remember, did testify without protective measures. That
16 is the witness to whom the Defence showed an aerial photograph. I just
17 want to be perfectly certain that there were no protective measures for
18 this witness. It was the aerial view on the Haradinaj compound.
19 Having verified that, the aerial picture shown by the Defence to
20 this witness, Mr. Jollaj, no decision has yet been taken. Mr. Registrar
21 has a number been assigned to it?
22 MR. EMMERSON: I think it's D160.
23 JUDGE ORIE: D160.
24 THE REGISTRAR: Yes, Your Honours, that's correct, D160.
25 JUDGE ORIE: Any objections against admission?
1 MR. DI FAZIO: No, Your Honours.
2 JUDGE ORIE: D160 is admitted into evidence. One thing is not
3 entirely clear to me, whether the witness marked in any way the copy that
4 was available to him at that time, because I saw pens quite close to the
5 photograph. Mr. Registrar confirms me that finally no markings were made.
6 I think there are no other exhibits in relation to Witness Jollaj.
7 MR. DI FAZIO: No. That was it, if Your Honours please.
8 JUDGE ORIE: We, however --
9 [Trial Chamber and registrar confer]
10 JUDGE ORIE: I'd like to deal with the exhibits, most of them
11 attached to the 92 ter statement of Witness 17.
12 Have the parties received a -- the list that was distributed by
13 the Prosecution already at that time? That is the list with the annexes
14 to the 92 ter statement.
15 Because I would like to -- the Prosecution has suggested numbers
16 to be assigned to the annexes. Some of them had already numbers. At the
17 same time, this is not on the record yet. So therefore I would go through
18 the list and see whether there are any objections and whether there is any
19 need at this moment to take a decision.
20 The 92 ter statement I think still needs a decision. Any
21 objection against the 92 ter statement?
22 MR. EMMERSON: The position is that Your Honour may recall that
23 there were redaction errors, and we have sent to Mr. Kearney a list of
24 what seems to us to be the redaction errors, together with those portions
25 of the statement where the admission was made conditional upon the
1 Prosecution laying a foundation which was then not laid. And we've heard
2 nothing back so the position is that the 92 ter statement remains the
3 subject of ongoing work and Mr. Kearney I imagine will come back to the
4 Defence with a response.
5 JUDGE ORIE: So therefore, P885, because that was the number
6 assigned to the 92 ter statement, is still pending, and I do understand
7 that the Chamber should not be surprised if we get a new version but the
8 parties are invited to try to agree on this as soon as possible.
9 Then nevertheless the -- we can deal with the annexes even if we
10 do not have the final version yet of the 92 ter statement.
11 I'll first give the number of the annex and then the number
12 provisionally assigned. Mr. Registrar has adopted all the numbers as
13 suggested by the Prosecution but since they are not yet on the record,
14 I'll read them.
15 MR. GUY-SMITH: We may be able to assist the Court in expediting
16 this matter. I believe there was only one annex.
17 JUDGE ORIE: Yes, I think it was 17 and there were additional
18 problems with relation to annex 1. I said I would look to Mr. Harvey
20 MR. EMMERSON: May I interject? I think the position is that
21 there was an additional portion of notes that were put to the witness in
22 cross-examination and I think our collective position is that nobody is
23 seeking to tender those notes because the relevant passages were read to
24 the witness during cross-examination.
25 JUDGE ORIE: And that admission of the notes as they were attached
1 as annex 1 to the 92 ter statement is not opposed.
2 MR. EMMERSON: Is not opposed.
3 JUDGE ORIE: That means that although not the complete set of
4 notes that P886 is admitted into evidence.
5 Then 2 was a map, annex 2, P887, from what I understand, no
6 objection therefore admitted.
7 3 was a report, 4th of July 1998, P888. No objection. Therefore,
8 admitted into evidence.
9 4 was a report by Tahir Zemaj which already received an MFI number
10 and admission will be discussed and decided in the context in which it was
11 introduced at the time. The same is true for annex 5, which is notes
12 dated the 5th of July 1998, at least about the meeting of the 5th of July
13 1998. The previous one was P167. The number 5, the notes of the 5th of
14 July meeting, is P165.
15 Let we move on to annex 6. Now being assigned P889, no objection,
16 then P889 is admitted into evidence.
17 Annex 7 is already an Exhibit D40.
18 Annex 8, just as annex 9, the two of them are marked for
19 identification, P192, P193. Decision will be taken in the context in
20 which they were introduced.
21 Annex 10, order establishing brigades, P890, no objections,
22 therefore admitted into evidence.
23 11, map with FARK areas of responsibility, P891, no objections,
24 admitted into evidence.
25 Annex 12 is already an exhibit, P150.
1 Annex 13, working notes Baran Valley Staff, P892, no objections,
2 therefore admitted into evidence.
3 14, military police regulations, P893, no objections, admitted
4 into evidence.
5 Annex 15, 24th of June 1998 order, P894, no objections, therefore
6 admitted into evidence.
7 16, a training plan, is already an exhibit, that is P153.
8 Annex 17 was the contested annex. I did understand that further
9 discussions were on going between the parties on admissibility of this
10 document, a portion of a book which provisionally was assigned number
11 P895. Any progress, Mr. Emmerson?
12 MR. EMMERSON: That's part of the material which we have sent to
13 Mr. Kearney and upon which we are waiting for response.
14 JUDGE ORIE: Then no decision at this moment will be taken and the
15 parties are informed to -- are invited to inform the Chamber by next week,
16 Monday, whether an agreement is reached or whether there is any
18 Annex 18, P896, notes of (redacted)
19 MR. GUY-SMITH: If we could pass that for but a moment we are just
20 double checking on something.
21 JUDGE ORIE: Yes. 18, therefore, is for the time being pending.
22 Would the same be true for 19 or --
23 MR. GUY-SMITH: Yes, if we just, yes, I hope we should be able to
24 resolve it quite quickly, Your Honour, I think.
25 JUDGE ORIE: Then annexes 17, 18 and 19 are still pending.
1 Annex 20, P898, a statement of two persons, no objection, then
2 admitted into evidence.
3 21, map of the 2nd of August offensive, P899, no objection,
4 admitted into evidence.
5 22, map, 11th of August offensive, P900, no objections, admitted
6 into evidence.
7 23, map, 15th of August offensive, second battle of Loxha, P901,
8 no objections, admitted into evidence.
9 Annex 24 is already admitted as P252.
10 Annex 25, marked for identification as P253, a decision will be
11 taken in the context in which it was introduced.
12 Annex 26, official note re: assassination permit. P902, no
13 objection, admitted into evidence.
14 Annex 27, already marked for identification as P258, a decision
15 will be taken in the context in which it was introduced.
16 28, a report by persons mentioned, re: Threat by (redacted),
17 that's P903, no objection, admitted into evidence.
18 Annex 29, map of the 7th and 8th September 1998 offensives, P904,
19 no objections, admitted into evidence.
20 30, annex 30, photo boards, 19 pages, P905, no objections,
21 admitted into evidence.
22 The Chamber would like to turn -- yes, Mr. Emmerson?
23 MR. EMMERSON: Just before Your Honours move on, I do apologise
24 because the two documents, not annex 17, but annexes 18 and 19.
25 JUDGE ORIE: Yes.
1 MR. EMMERSON: Both have the same provenance. Does Your Honour
2 see from the note what I'm referring to? The original author of those two
3 documents is the same person.
4 JUDGE ORIE: Yes.
5 MR. EMMERSON: Yes. That also applies to annex 20 and annex 26,
6 upon which I'm afraid because Your Honour was speaking I didn't include
7 within the same general rubric.
8 What we would like to invite the Trial Chamber to do is to
9 postpone a decision on 18, 19, 20 and 26, so that the parties can consider
10 the position. I'm anxious not to speak in open session but may I go into
11 closed session just for one moment?
12 JUDGE ORIE: Yes let's turn into --
13 [Private session]
11 Page 8383 redacted. Private session.
24 [Open session]
25 JUDGE ORIE: Is there any --
1 THE REGISTRAR: Your Honours, we are back in open session.
2 JUDGE ORIE: Thank you, Mr. Registrar. Is there any procedural
3 matter to be raised or any administrative matter to be raised in open
5 MR. EMMERSON: Very briefly.
6 MR. RE: If it's on this -- could I deal with something in
7 relation to the annexes to Witness 17 is this a different matter.
8 MR. EMMERSON: It's related to Witness 17 but not in relation to
9 the exhibits.
10 MR. RE: If I could say one thing Mr. Kearney said annex 1 to the
11 statement was not objected to. I don't think Your Honour mentioned that
13 JUDGE ORIE: Yes. I said that annex 1, although being the
14 incomplete notes, whereas the remainder of the notes were read to the
15 witness, that therefore annex 1 is admitted into evidence, even if the
16 notes are not complete.
17 MR. RE: I apologise. I've misunderstood.
18 JUDGE ORIE: Yes. Mr. Emmerson.
19 MR. EMMERSON: Simply this: There were, I think, four -- five
20 instances during the course of my cross-examination of Witness 17 in
21 respect of which I referred him to tabs in the bundle but without the
22 cross referring identification for the document. And my might I just very
23 briefly read those five into the record?
24 JUDGE ORIE: Please do so. Do it clearly and slowly.
25 MR. EMMERSON: This rules to documentation put in
1 cross-examination to Witness 17 and which is currently material behind the
2 numbered tabs in the bundle used for cross-examination.
3 Tab 23 is 65 ter number 729, which is proposed Exhibit number
4 P897, and it is annex 19 and therefore one of those documents in respect
5 of which the admission is held over.
6 Tab -- I'm sorry but one moment.
7 [Defence counsel confer]
8 MR. EMMERSON: Tab 25 is an excerpt from the statement of an
9 individual which was read to the witness in the course of
10 cross-examination. I say no more about it at this stage except to say
11 that it is Defence document identification 1D540039.
12 Tab 29 is a document, a report, concerning the appointment of
13 commanders and it is annex 25 to the 92 ter statement of Witness 17 and
14 has been marked for identification as P253 through the evidence of another
16 Tab 30 is a, again, a report showing the appointment of commanders
17 signed by Tahir Zemaj. That is Defence document 1D540019.
18 Tab 32 was the 92 -- would Your Honour just give me a moment?
19 JUDGE ORIE: Yes, has a number been assigned to the last document
20 you mentioned?
21 MR. EMMERSON: No.
22 JUDGE ORIE: Mr. Registrar informs me that it was not. Then a
23 number should be assigned to it.
24 THE REGISTRAR: D161, Your Honours.
25 JUDGE ORIE: Thank you, Mr. Registrar. Please proceed,
1 Mr. Emmerson.
2 MR. EMMERSON: Sorry, I was just check being the position with
3 respect to the next witness -- the text tab. Tab 32 was the Rule 92 ter
4 statement of Vesel Dizdari, which is Exhibit P366.
5 And tab 34 was a statement made on an earlier occasion by Witness
6 17 to the Prosecution dated the 26th of November 2004. It is not tendered
7 and therefore does not need to be marked for identification, passages
8 having been put in cross-examination.
9 JUDGE ORIE: Yes. Now, you referred to tab 25 and you said it was
10 Defence document identification 1D-540039. Has that received?
11 MR. EMMERSON: No it hasn't and it isn't tendered because the
12 relevant passage was read to the witness.
13 JUDGE ORIE: Yes. Then just going through your list, tab 23 is
14 pending. Tab 25 is not sought to be admitted, not tendered. Tab 29 is
15 already admitted as P253. Tab 30 is now assigned number D161. I don't
16 know whether you are in a position to express any objection at this moment
17 or whether you would leave that to Mr. Kearney.
18 MR. RE: I'd ask to leave that to Mr. Kearney but just back on tab
19 25, could Mr. Emmerson perhaps assist by giving us a transcript reference
20 to the page where that was mentioned? I was just trying to work out
21 whether there is a description on the record of the document.
22 MR. EMMERSON: There is.
23 MR. RE: Can you give me the transcript page?
24 MR. EMMERSON: I can't off the top of my head but I have a very
25 clear recollection of having put it to the witness and having indicated
1 what it was.
2 JUDGE ORIE: Yes. If you would assist Mr. Re, if Mr. Re would
3 have any -- I take it Mr. Re if you would have any interest in having
4 these documents put to the witness to be admitted into evidence that we'll
5 hear from you. Yes.
6 Then I continue, so therefore, for D161, we'll hear any
7 objections, if there are, by tomorrow, 1.45 p.m. I take it that that --
8 and then we'll -- if there is no objection by then, then D161 will be
10 Tab 34 doesn't need any decision. So we have dealt with all of
11 them at this moment to the extent possible, Mr. Emmerson.
12 MR. EMMERSON: I should mention briefly that tab 35 was an article
13 dated the 25th of September 2004 from a newspaper which was put to the
14 witness, I say no more in open session at this stage than that. The
15 relevant passage was put to him and he answered questions in relation to
16 it. I don't seek to tender the newspaper article itself.
17 JUDGE ORIE: Yes. If the Prosecution would take a different view,
18 then we'll hear.
19 Is there any other procedural matter to be raised at this moment?
20 Mr. Guy-Smith?
21 MR. GUY-SMITH: I just want to make sure that I am correct in my
22 assumption of what we'll be doing tomorrow.
23 JUDGE ORIE: That depends. As we said, today we are not --
24 MR. GUY-SMITH: I understand that, Your Honour. It's my
25 anticipation that we will be dealing with either one or two witnesses
1 depending on.
2 JUDGE ORIE: There is one witness who has not yet finished his
3 examination. Whether we can proceed tomorrow is uncertain at this moment
4 as matters stand now. If we can't proceed with him, we'll proceed with
5 the next witness, who I understand has arrived or does arrive today.
6 MR. RE: The next witness is due to arrive tonight and was in the
7 notification we sent to the Trial Chamber and the parties last Thursday
9 JUDGE ORIE: Yes. I verified that.
10 MR. GUY-SMITH: Double collecting to make sure.
11 JUDGE ORIE: No surprise witnesses or surprise events tomorrow.
13 MR. EMMERSON: And may I make a request that the mechanisms be put
14 in place so that the Defence can be kept informed in respect of any
15 communication from VWS which it is proper for the Defence to see
16 concerning the witness's testimony which is outstanding.
17 JUDGE ORIE: Yes. I can't promise that any -- that we receive
18 information which would allow us to make decisions early, but I'll take
19 care that the parties will be properly kept updated --
20 MR. EMMERSON: Thank you.
21 JUDGE ORIE: -- On matters the Chamber considers appropriate to
22 give them.
23 MR. RE: There is a procedural matter and that is in relation to
24 the --
25 JUDGE ORIE: Yes, I have one more, as a matter of fact, the 29th
1 motion for protective measures, I take it.
2 That is, as a matter of fact, the next witness.
3 Have Defence counsel already made up their minds in respect of the
4 29th motion for protective measures? If so, the Chamber would like to be
5 informed. To the extent needed, the parties are invited to consider
6 whether to go into private session.
7 MR. EMMERSON: Based on the contents of paragraph 6 of the
8 declaration of Roel Versonen, there is no opposition, so far as we are
10 JUDGE ORIE: Yes. Thank you, Mr. Emmerson.
11 MR. EMMERSON: Solely on that paragraph.
12 JUDGE ORIE: Yes, Mr. Guy-Smith?
13 MR. GUY-SMITH: I agree with the submission just made.
14 MR. TROOP: Your Honour, in relation to the same paragraph
15 mentioned by my colleague, Mr. Emmerson, we've sent just a short request
16 to the Prosecution which we would prefer to consider before we come to a
17 clear position. For my own part I would appreciate the input of my lead
18 counsel so would it be a terrible inconvenience to raise it first thing
19 tomorrow morning?
20 JUDGE ORIE: No, although if the communication with the
21 Prosecution leads to any final conclusion, then the Chamber would like to
22 be informed about that conclusion so that if any preparations are needed,
23 et cetera, that we could start working on that already rather than wait
24 until tomorrow morning.
25 MR. TROOP: I'll certainly undertake to do that, Your Honour.
1 JUDGE ORIE: You know, the usual way of exchanging information of
2 a practical kind is to do that in an e-mail to the legal officer,
3 Mr. Zahar, with the copy to the other parties involved. If there is --
4 Mr. Re?
5 MR. RE: There is a procedural matter I wish to raise. That is,
6 Your Honours ruled earlier about the 92 ter summaries and reading them on
7 to the record, and what I want to do is invite Your Honours to reconsider
8 this ruling of in the light of what I'm going to say and for the following
10 That there are two ways I wish to approach this. One is the
11 practice we have adopted in terms of getting the 92 ter statements to the
12 Defence and the Trial Chamber and the second is the necessity of the
13 public being able to know what the evidence is in effect before the
14 cross-examination takes place.
15 The -- there are two particular witnesses I draw Your Honour's
16 attention to and I telegraph, I think there were probably about maybe half
17 a dozen 92 ter summaries or 92 ter witnesses to testify of some length in
18 the -- in this trial.
19 In relation to the -- our first military witness, retired Serbian
20 general, we provided his statement, the 92 ter statement to the Defence on
21 the 15th of August, and we provided it to the Trial Chamber legal officer
22 on the 20th of August. So the parties and the Chamber has had it for
23 sometime and we are waiting from the Defence any objections so that we can
24 deal with them well and before the witness gets here so that we don't have
25 meetings at 8.00 in the morning of the day of trial. In relation to
1 Witness 17 where Your Honour kindly did have the early morning meeting
2 before the day -- before he testified, I think the witness's statement was
3 taken I think signed on the 14th of August. Now we provided it to the
4 Defence on the 17th of August and to the Trial Chamber on the 22nd of
5 August but it wasn't until the 27th of August that the Defence notified us
6 of their objections to a statement that had for 10 days. And it was the
7 next morning that Your Honour Judge Orie convened a meeting to decide it.
8 So in that sense --
9 MR. GUY-SMITH: That's not correct.
10 JUDGE ORIE: To be quite honest I'm not mainly interested in who
11 is to be blamed for being late. I suggested -- I think I said I urge the
12 parties, I didn't say anything that is as a ruling. It is a matter of
13 informing the public rather than a substantial part of the trial itself,
14 because that of course is contained in 92 ter. What I would like to do,
15 that is that the public is better able to follow those testimonies which
16 are given under Rule 92 ter. I also noticed that sometimes the 92 ter
17 summaries were rather detailed, whereas that's not exactly what the
18 Chamber seeks. The Chamber wants just to give the public an impression of
19 what we are talking about and where we are seeking further details.
20 Now, even if you have not -- and of course, the quicker you agree
21 on the final version of the 92 ter statement which will not meet any
22 objections, the better it is. It's always a pleasure for me to see you
23 early in the morning but that's not the issue. The issue is whether, when
24 preparing the 92 ter statements, whether a summary, which is even with
25 less details, could be prepared where I expect that whatever time it takes
1 to agree on the 92 ter itself, that at least we have already these ten
2 lines, 15 lines available, that in order to give that to the public, if
3 the examination-in-chief starts, so that the public knows what the
4 questions are about. That's the issue.
5 MR. GUY-SMITH: I'm confident in the Prosecution would forward
6 same to us we would be in a position to do that with regard to the
7 summary. I think the distinction that the Chamber has drawn is an
8 understandable one and a wise one. If we get the summary we will be able
9 to look at it and I'm sure work something out.
10 MR. RE: Thank you. I'm actually trying to make a submission on
11 several different aspects. I wish to make a proposal to the Trial Chamber
12 about a way forward with this.
13 JUDGE ORIE: Yes.
14 MR. RE: The reason I raised the procedure in the past was to
15 inform the Trial Chamber that the Prosecution has attempted to resolve
16 these matters as far in advance as possible. That is the admissibility
17 and what should be admitted into --
18 MR. GUY-SMITH: I must rise again.
19 MR. RE: But I just want.
20 JUDGE ORIE: Let's not -- let Mr. Re finish what he wanted to say
21 because I wanted to make some suggestions. I interrupted him which is
22 already a bad thing to do and then others to join me might not be a wiser
23 thing --
24 MR. GUY-SMITH: Then I will not again.
25 MR. RE: If I've got the dates wrong I will stand correct you had
1 but that's the information I was given as to when we provided it. Our
2 practice is we are trying to get it to the Defence as early as possible
3 and we would very much appreciate it subject to the convenience of the
4 Trial Chamber, if the objections can be dealt with four or five days
5 before the witness arrives, as best as possible. If we could put that
6 procedure into place, it would be much smoother when we actually get to
7 court and we can work out exactly what's in what's out what has to be led
8 orally. All I'm saying is we tried to do it and with that general we have
9 given the statement several weeks ago, three weeks ago, so that is in
10 place. In relation to the summaries, what is the unfortunate effect is --
11 of what has happened is that we have urged several times on the Trial
12 Chamber that we be allowed to read the summaries before the witness
13 actually testifies and of course we stand, we will stand guided by the
14 Trial Chamber as to the length and content of the summaries. But we
15 submit it's important for the Trial Chamber -- for the public to have it
16 and to know what the witness is going to say before the witness is
17 cross-examined. Because what we are seeing the unfortunate effect, is the
18 way it's being reported the proceedings of the trial are being reported is
19 that because the Rule 92 ter statement often is not admitted until
20 sometime afterwards or maybe it's under seal, by the time we've got to it,
21 the moment is well and truly passed and the public is only seeing the
22 cross-examination and they are not aware of what is actually in the
23 witness's 92 ter statement.
24 Now, that has an unfortunate flow-on effect in that the reporting
25 of the trial is not, shall I say balanced and as objective as it should be
1 because only one side of the proceedings are actually being reported. And
2 that may have a deleterious effect upon witnesses and their willingness to
3 come to The Hague if they are only seeing one side of the picture.
4 So we are very much urging the Trial Chamber to reconsider and to
5 allow us to read on to the record, we have given to the Defence all the
6 summaries which we have proposed to read on to the record, if we could do
7 that, get that out of the way, some of the 92 ter statements have not yet
8 been admitted, in particular Witness 17, which -- that's still outstanding
9 and we urge the Trial Chamber to allow us to read a short summary on to
10 the record before someone actually testifies. We do understand the
11 pressures on time but in the overall interests of justice we submit that
12 they would be served by us reading it, having the witness sworn in, the
13 statement tendered, any additional oral testimony, and then the
14 cross-examination. I'm not asking for a decision now but I'm asking for
15 Your Honours to reconsider your earlier ruling and allow us at some point
16 to spend the necessary half an hour or so to read those existing ones on
17 to the record so it's actually on the trial record and the public doesn't
18 have to go back and look for exhibits which are more difficult to find and
19 you've got to do that by the internet rather than their being reported in
20 a transcript which is actually being broadcast live and reported in the
21 region. Those are my submissions.
22 JUDGE ORIE: Thank you. So there are two questions, one is to
23 allow to you wrap up from the past not-yet read 92 ter statements and the
24 second to allow the Prosecution to read summaries prior to the witness
25 starting giving testimony. Of course, the second -- I see that the
1 parties would like to emphasise very much the party calling the witness,
2 those instances, where the material was available at an early stage. The
3 party not calling the witness is more inclined to emphasise those
4 instances where the 92 ter statement was completed rather late. I do
5 understand that the truth will be somewhere in between.
6 I think, Mr. Re, that what you suggested, as far as reading
7 summaries goes into the same direction as the Chamber was thinking that is
8 returning to what was originally on my mind, on our mind, when we
9 introduced the reading of summaries of statements. Again, summaries which
10 are not part of the evidence. Any other matter?
11 Then we stand adjourned until tomorrow morning, 9.00, the same
13 --- Whereupon the hearing adjourned at 1.36 p.m.,
14 to be reconvened on Thursday, the 13th day of
15 September, 2007, at 9.00 a.m.