1 Wednesday, 3 October 2007

2 [Open session]

3 [The accused entered court]

4 [The accused Haradinaj not present]

5 --- Upon commencing at 2.23 p.m.

6 JUDGE ORIE: Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, everyone. Good afternoon to

8 everyone in the courtroom. This is case number IT-04-84-T, the Prosecutor

9 versus Ramush Haradinaj.

10 JUDGE ORIE: Mr. Emmerson, as you are aware, the Chamber granted

11 this morning provisional release for Mr. Haradinaj. Have I well

12 understood that Mr. Haradinaj gives his consent that we proceed in his

13 absence?

14 MR. EMMERSON: Your Honour, yes.

15 JUDGE ORIE: Yes. I'd like to add to that which the Chamber very

16 much regrets the circumstances which led Mr. Haradinaj to apply for

17 provisional release.

18 MR. EMMERSON: And, Your Honour, may I express my personal

19 condolences and those of all Defence teams to the Haradinaj family

20 following the sad death of Mr. Haradinaj's 11-year-old nephew,

21 Shqipton Haradinaj in a road traffic accident yesterday afternoon in

22 Prishtine. And I also express my thanks to the Registry and the Chamber

23 for the manner in which this matter was dealt with.

24 JUDGE ORIE: Then, Mr. Re.

25 MR. RE: The Prosecution also expresses its condolences to the

1 family for what happened.

2 JUDGE ORIE: Mr. Re, there was one procedural matter, that is how

3 far the Chamber is in respect of the witness who will testify tomorrow. As

4 I said yesterday, it's a lot of work, and the Chamber, as a matter of

5 fact, gave priority, especially yesterday evening and tomorrow, on other

6 matters, so we are not yet at a point where we could give you any further

7 guidance.

8 MR. EMMERSON: I understand that the Prosecution propose to file a

9 written response this afternoon.

10 JUDGE ORIE: Is that -- Mr. Re, is that --

11 MR. RE: [Microphone not activated] Yes, I will where -- yes, it

12 will be a short written -- written response on the legal aspects which

13 Mr. Haradinaj and Mr. Emmerson has raised in his matter. It will be

14 dealing generally with the points raised. It won't be going to specifics.

15 JUDGE ORIE: Yes.

16 MR. RE: It will only be a few pages long, and we should have it

17 done later. Definitely this evening.

18 JUDGE ORIE: Yes. The Chamber will read it and we'll try to make

19 as much progress as possible, but as I said yesterday, it's quite a lot of

20 work. The comments are -- studying the annexes, it takes certainly some

21 time. And we do not know whether we can fully complete all of the work in

22 full detail by tomorrow in the afternoon. But we'll see.

23 MR. EMMERSON: I -- may I make it absolutely clear. We obviously

24 only received the statement and annexes at very close of business, as in

25 11.00 at night on Wednesday of last week. And that's the reason the

1 matter comes before the Chamber in the way it does and also the reason why

2 we suggest it would be preferable if an alternate witness were found for

3 tomorrow so that sufficient time were set aside.

4 JUDGE ORIE: Yes.

5 MR. GUY-SMITH: We also have raised as a legal matter that

6 particular issue in terms of the delivery of the annexes in the manner in

7 which they come to us, based upon prior rulings of this Court.

8 JUDGE ORIE: Yes.

9 Mr. Harvey, you join the observations made by other Defence

10 counsel?

11 MR. HARVEY: I do and I have done so in writing.

12 JUDGE ORIE: Yes. As we have seen in writing.

13 MR. HARVEY: Thank you.

14 JUDGE ORIE: Mr. Re, is the Prosecution ready to call its next

15 witness?

16 MR. RE: Yes. The next witness is Professor Lecomte, and

17 Mr. Dutertre will be dealing with her.

18 JUDGE ORIE: Yes. May I -- yes, Mr. Dutertre.

19 Then could the usher bring the witness into the court.

20 [The witness entered court]

21 JUDGE ORIE: [Interpretation] Good afternoon. Are you

22 Mrs. Lecomte?

23 THE WITNESS: [Interpretation] Yes, I'm Professor Lecomte.

24 JUDGE ORIE: [Interpretation] Professor, I'd like to welcome you

25 here. Let me proceed in English.

1 Before you testify, you have to take the solemn declaration

2 provided for by the Rules of Procedure and Evidence. I'd like you to take

3 the solemn declaration now.

4 THE WITNESS: [Interpretation] I solemnly declare that I will tell

5 the truth, the whole truth, and nothing but the truth.

6 WITNESS: DOMINIQUE LECOMTE

7 [Witness answered through interpreter]

8 JUDGE ORIE: [Interpretation] Thank you very much. [In English]

9 Please be seated.

10 You'll first be examined by Mr. Dutertre, who's counsel for the

11 Prosecution.

12 Mr. Dutertre, you may proceed.

13 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

14 Examination by Mr. Dutertre:

15 Q. [Interpretation] Ms. Lecomte, I'm going to ask you to give us your

16 particulars, but before doing so, one observation: Both of us speak

17 French, and therefore I would like to ask you to make sure that the

18 translation of what you or I are saying is -- is completed before --

19 before answering so as not to have any overlap between the end of the

20 translation of my questions and the beginning of your answers.

21 Is your name Dominique Lecomte? Are you a French national?

22 A. My name is Dominique Lecomte. I am a French national. I am a

23 professor of medicine as the University of Paris, Paris V. I'm the head

24 of the forensic institute in Paris.

25 Q. What is your date of birth and your place of birth?

1 A. I was born on the 17th of March, 1946 in Tignieu-Jameyzieu.

2 Q. Thank you. I'd like to show the witness Exhibit 2072. That's

3 2072 on the 65 ter list. It's a CV.

4 The document will be displayed on your screen in a few seconds.

5 Professor, is this your CV?

6 A. Yes, I believe so.

7 Q. Thank you.

8 I'd like the witness to be shown 65 ter document 2073, 2073.

9 JUDGE ORIE: Mr. Dutertre, are you tendering this CV? Because

10 otherwise we get a lot of documents under one number. We'd then assign a

11 number now and --

12 MR. DUTERTRE: [Interpretation] We can assign a number immediately,

13 Your Honour. I'd like to tender this document.

14 JUDGE ORIE: Yes. Mr. Registrar.

15 THE REGISTRAR: That's P926, Your Honours.

16 JUDGE ORIE: Thank you, Mr. Registrar.

17 Any objections?

18 Then it is admitted.

19 Please proceed.

20 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

21 Q. I'd like to have document 2073 on the 65 ter list shown to the

22 witness now.

23 Professor, the document is now on your screen. Is this the CV of

24 your colleague, Dr. Walter Vorhauer?

25 A. I believe so.

1 Q. Thank you.

2 JUDGE ORIE: Mr. Registrar --

3 MR. DUTERTRE: [Interpretation] Yes, I'd like to tender this

4 document.

5 [Trial Chamber and registrar confer]

6 JUDGE ORIE: Mr. Registrar.

7 THE REGISTRAR: Your Honours, that will be P927.

8 JUDGE ORIE: Thank you.

9 No objections? Then P927 is admitted into evidence.

10 Please proceed.

11 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

12 I'd like the witness to be shown 65 ter document 2071. 2071.

13 Q. Professor, do you recognise this document? Is this the first

14 expert report you prepared in relation to the forensic operations

15 conducted at the Lake Radonjic canal in September 1998?

16 A. Yes, that is the report.

17 MR. DUTERTRE: [Interpretation] I'd like to have page 31 of the

18 report displayed in Sanction. Page 31. And please zoom in on the upper

19 part of the page.

20 Q. Do you have the document in front of you?

21 A. Yes.

22 Q. A number of questions were put to you, and they read as -- read as

23 follows, the first one being: Provide an opinion on how bodies were

24 recovered, recorded, transported, preserved, autopsied, and identified,

25 and on the 'traceability' of the said bodies."

1 And your answer to this question was, and I quote: "The matches

2 between the photographs of the discovered bodies and the photographs of

3 the autopsy operations enable an evaluation of traceability. We are told

4 that the bodies were transported under a protective 'patrol' up to the

5 Hotel Pastrik in Djakovica. The autopsies were performed in appropriate

6 conditions, considering the environmental context."

7 I'd like to put a number of questions to you with respect to this

8 answer of yours. Could you please tell us a bit more about the

9 traceability of the bodies between the crime scene and the location where

10 the autopsies were conducted at the Pastrik Hotel. Could you please give

11 us some more details about this.

12 A. We worked on the basis of photographs and reports. The reports --

13 the photographs taken where the bodies were recovered were photographs of

14 the bodies as where they were found on site. But for some of the bodies,

15 we had photographs of bodies in the body bags, before they had been

16 transported, and this caused a problem to us because the number was not

17 affixed to each body. It was on a loose tag. However, the number given

18 was the same as the number we found on the -- in the autopsy reports. And

19 when we had the photographs of the body in the body bag, when the bodies

20 were collected, the bodies looked like the bodies we saw photographed on

21 the autopsy tables. In other words, we had no difficulty regarding

22 traceability.

23 Q. Thank you. I'll read the third sentence: "The autopsies were

24 performed in appropriate conditions, considering the environmental

25 context"?

1 With respect to this sentence, can you give us some more detail,

2 especially when you talk about the environmental context.

3 A. The word I used, "environmental context," was a very broad term,

4 or "environmental difficulties," was a very broad term that my colleagues

5 may have been confronted with on the site where they recovered the bodies.

6 Their work - and I mention it in this first report - the work, the

7 forensic work conducted on the bodies in the institute, in the morgue and

8 later on in Belgrade, this work was conducted very meticulously. This

9 work was conducted by forensic physicians who, like all forensic

10 physicians in the world, are very accurate observers of the things.

11 Therefore, the examination of the bodies conducted at a distance where the

12 bodies were recovered was done very meticulously. But as for the work

13 conducted at the place where the bodies were recovered, we were faced with

14 a number of difficulties.

15 Q. Let me just first focus on the autopsies themselves. Sorry for

16 interrupting you. You mentioned an institute. Are you referring to the

17 Hotel Pastrik, where the autopsies were conducted?

18 A. Yes, indeed.

19 Q. Thank you very much for this clarification.

20 I would now like page 30 to be displayed with Sanction, and I'm

21 interested in the second paragraph on that particular page. And I quote:

22 "The causes of death were given in the report's conclusions, however the

23 ambiguity therein is regrettable. In fact, the report often states that

24 the cause of death cannot be determined, when in fact gunshot wounds and

25 bone traumatisms are clearly identifiable."

1 And I have the following question for you, Professor: Could you

2 please be more specific and tell us why -- what caused this ambiguity.

3 A. When we worked on the basis of the autopsy reports conducted by

4 the Serbian forensic physicians, we realised that their work had been done

5 very meticulously. I've said it before. They gave very good explanations

6 about gunshot wounds, about various trauma. And the photographs we had at

7 our disposals pictured the gunshot wounds and various trauma. However,

8 when it comes to their conclusions about the cause of death, very often

9 the reports read that the cause of death could not be determined. That's

10 why we use the word "ambiguity" in our own report, because in my opinion,

11 when you have traumatic lesions, when you have gunshot wounds and when the

12 person in question is dead, then obviously there is a link you should not

13 ignore. Therefore, to say that there's no cause of death whether you have

14 gunshot wounds in the skull with bullets going through the skull, we --

15 both of us found that slightly ambiguous. I'm talking about their answer,

16 their conclusion about the cause of death.

17 Q. When you talk about you, when you say "we," you mean yourself and

18 your colleague, Dr. Vorhauer?

19 A. Yes.

20 Q. Could you give us the reasons for this ambiguity.

21 A. When you work as forensic physicians on dead bodies with gunshot

22 wounds in the cranium, obviously the death has been caused by the gunshot

23 wound to the skull. Therefore saying that the cause of death cannot be

24 determined in such a case is ambiguous indeed, because we would expect the

25 cause of death to be specified and you would not expect the report to

1 include the fact that the cause of death cannot be determined.

2 Q. Do you believe that they erred on the side of caution?

3 A. I would not dare to make any comment about this, sir.

4 MR. DUTERTRE: [Interpretation] I would like to tender the first

5 report of Ms. Lecomte.

6 THE REGISTRAR: That's P928, Your Honours.

7 JUDGE ORIE: Any objections?

8 No objections. Therefore, P928 is admitted into evidence.

9 MR. DUTERTRE: [Interpretation] I have no further questions,

10 Your Honour. The OTP had notified the Chamber that we did not want to use

11 the second report for reasons we explained earlier on, but it is notably

12 because we believe that entomological criteria and parameters were not

13 used in the appropriate manner, therefore I have now completed my

14 examination-in-chief.

15 MR. EMMERSON: That may give rise to some logistical difficulties.

16 JUDGE ORIE: Yes.

17 MR. EMMERSON: Because I've been endeavouring to ascertain from

18 the Prosecution over the last two days how it was they proposed to deal

19 with the second report.

20 JUDGE ORIE: Yes.

21 MR. EMMERSON: And I'm afraid I wasn't able to get an answer at

22 all. And indeed I repeated my question just before the Tribunal sat this

23 afternoon and still didn't get an answer.

24 Now, I don't know whether Professor Lecomte has a hard copy of her

25 second report available to her in the witness box. I wonder whether she

1 might be asked.

2 JUDGE ORIE: Do you have a -- a copy of your second report, a hard

3 copy available to you at this moment?

4 THE WITNESS: [Interpretation] Yes, I do, Your Honour.

5 JUDGE ORIE: I cannot see whether it's -- it's a clean copy or

6 whether you made any markings in it, whether you made any comments in it.

7 That might be of importance perhaps for the Defence to know in advance.

8 MR. DUTERTRE: [Interpretation] To assist the Chamber, let me say

9 that we have a clean copy of the report here.

10 JUDGE ORIE: Madam le Professor, do you have a clean copy in front

11 of you or an annotated copy?

12 THE WITNESS: [Interpretation] There are annotations on this

13 report, because as I was on the train earlier on today, I wrote a number

14 of things of my -- on my report.

15 JUDGE ORIE: Then I would suggest that you keep it nearby. If you

16 want to consult any annotations, that you indicate and ask my permission

17 to do so, but that we start working on the basis of a clean copy.

18 Mr. Dutertre, if you would provide Madam le Professor avec un

19 clean copy of her report, that would be appreciated.

20 MR. EMMERSON: And can I indicate that the -- the report is in

21 e-court. It is 65 ter 1986.

22 JUDGE ORIE: I think we have no access to all the uploaded

23 documents in e-court automatically, but I think that we have somewhere

24 else on our computers a copy. Let me just check whether I get ...

25 Let me find it for a second.

1 MR. EMMERSON: I see it's coming up on the screen now.

2 JUDGE ORIE: Yes. Please proceed, Mr. Emmerson.

3 MR. EMMERSON: Thank you very much.

4 Cross-examination by Mr. Emmerson:

5 Q. Professor Lecomte, may I ask you, first of all, some questions

6 about your background experience in dealing with multiple body scenes in

7 the former Yugoslavia. Have you conducted crime scene investigations on

8 behalf of the Office of the Prosecutor in the past in various parts of the

9 former Yugoslavia?

10 A. Yes, indeed. I was head of a mission to -- as a forensic

11 specialist to examine bodies that had been recovered next to Mitrovica in

12 the area controlled by France. These were bodies of people who had been

13 buried in the ground.

14 I conducted more than 400 exhumations in Kosovo.

15 Q. Thank you very much. And I'm going now to ask you some questions

16 about the document which appears on your screen, but should, I hope, be

17 the first document in your file as well, which is the letter of

18 instruction you received from the Office of the Prosecutor on -- dated the

19 23rd of April, 2007, asking you to prepare a second report.

20 Were you informed then in that letter that the Defence for

21 Mr. Haradinaj had raised issues in the pre-trial brief and in

22 cross-examination concerning the integrity, that is, the authenticity of

23 the crime scene?

24 A. No, I was not aware of this. When I received this document, I

25 worked without any prior information on anything. I worked only as a

1 forensic physician. I analysed photographs, reports, et cetera. But I

2 was not informed about anything else. And in any case, I would not have

3 wished to be informed of such things.

4 Q. I'm -- I think it may be that my question was insufficiently

5 clear.

6 In this letter that was sent to you on the 23rd of April, the

7 Prosecution, we can see, informed you that the Defence had raised

8 questions about the possible movement of bodies, and you were being asked

9 to give observations on the authenticity of the crime scene; is that

10 correct?

11 A. Yes. But you see, this is a comment among others in this letter.

12 Yes, I see that. Paramilitaries are mentioned here. But this is not the

13 purpose of my work, the object of my work. I always work on the basis of

14 the questions that are being asked to me. I always worked on the basis --

15 work on the basis of the documents I'm asked to analyse. If somebody

16 raises an issue, I have no idea whether it's valid or not, that challenge.

17 For me it has no bearing on the quality of my work.

18 Q. I entirely understand that. And like all scientists, you need to

19 be provided with specific questions so that you can give specific answers;

20 is that right?

21 A. Yes, that's right.

22 Q. And in this instance, you were asked in respect of each body to

23 estimate, first of all, the date of death; that is, how long the body had

24 been dead. Is that right?

25 A. Yes, that's right.

1 Q. Then secondly, taking account of the material in your possession,

2 your estimate of the period of time that it had been at the discovery

3 site; correct?

4 Questions are listed in the letter at the front of the file.

5 A. Yes. And I gave a response for each body examined in my report

6 with respect to questions 1, 2, and 3.

7 Q. If we can just go through them so that we're clear.

8 Question 3, then, asked you to record any other forensic medical

9 conclusions that might be relevant; is that correct?

10 A. Yes, that's right.

11 Q. And question 4 specifically asked you to submit any other comments

12 that might be useful for determination of the authenticity of the crime

13 scenes; is that correct?

14 A. Yes. I'm reading the question, and usually this is -- and this is

15 part of the discussion and the concluding part of our report.

16 Q. And that is what you sought to do in respect of each of the bodies

17 that you examined.

18 A. Yes, that's right.

19 Q. And you've listed in your report all of the materials you had

20 available to you, the videos, the photographs of the remains in situ, the

21 photographs of the autopsy process and all of the autopsy reports. Yes?

22 A. Yes, indeed.

23 Q. Now, I just want to see if you can help us, please, first of all

24 with some terminology, some of the terminology you've used in your report.

25 When answering the second question for each body, that is, the

1 period of time that it had been at the discovery site, you have divided

2 the bodies according to the locations where they are recorded as having

3 been found. And I want to concentrate, first of all, please, on the group

4 of remains that are recorded as having been found on the ground adjacent

5 to the concrete canal wall. That would be bodies R1 through to R17.

6 Now, in respect of each of those sets of remains, you have given

7 an estimation of how long the set of remains had been in the position in

8 which it is recorded as having been found. And you summarise your

9 conclusions in that regard on page 114 in a table. That's 114 of the

10 French version, of the original version of the report, and page 53 in the

11 English translation.

12 And we can see, if we look at that table, that you record in the

13 centre column the length of time in your estimation the person concerned

14 had been dead. And in the right-hand column, the length of time that in

15 your opinion the remains had been present at the scene where they were

16 found.

17 And we can see in the right-hand column that in all but three

18 cases you use the expression "very short time," and in three of the cases

19 you use the expression "short time." I want you to help us, please, if

20 you can, first of all, as to what the distinction between a short time and

21 a very short time is, in terms of days. When you use the expression "very

22 short time," what are we to understand by that as distinct from "short

23 time"?

24 A. If I did not include a number of days, it's because a physician is

25 not a clairvoyant. A forensic physician only makes notices, notices

1 something, and then includes or writes what I wrote. It is very difficult

2 to say three days and how many minutes.

3 When I say that it's a short stay, I would say that -- a short

4 time, that it's something less than eight days. I don't know if it's six

5 or seven. And when I talk about a very short time, I am thinking of less

6 than eight days. But it can be four days, five days, two days. And when I

7 say that the body may have stayed there for a short time, that's even

8 shorter; meaning, a few days, two days or three days or going up to four

9 days.

10 But let's say that the appreciation is something that's very

11 subjective, and I hope that you will understand this, and it has to deal

12 with the experience that we have, my colleague and myself, in order to see

13 and in order to examine the bodies. We have the pictures, we had the

14 environment. They talked to us about bad weather, for instance that, had

15 taken place. So by taking all these elements into account - and please

16 allow me to finish - the work -- this type of work was done for each of

17 the bodies. And this table is only a collated result.

18 Q. I didn't mean to interrupt you, Professor Lecomte. I'm going to

19 go back in more detail in respect to some of the remains in due course.

20 At the moment, I'm just concentrating on what the language means.

21 Now, it may be that there was a problem with translation in the answers

22 that you've just given. I don't know. But you have said on the

23 transcript that where you use the expression "short time," you mean less

24 than eight days but where -- I'm sorry. Let me just be absolutely clear.

25 JUDGE ORIE: I think the witness said eight days or less or it

1 could be six or seven.

2 MR. EMMERSON: Yes. I just want to be absolutely certain.

3 Q. This is purely a matter of terminology. I just want to understand

4 what you mean by these expressions. Is it correct that when you say a

5 "very short time," you mean a matter of three, four, or five days; and

6 when you say a "short time," you mean less than eight days? Is that how I

7 am to understand your evidence?

8 JUDGE ORIE: Mr. Dutertre.

9 MR. DUTERTRE: [Interpretation] I believe that the witness already

10 answered that question when she answered the first question. It seemed

11 very clear to me.

12 MR. EMMERSON: It -- there may be a translation problem.

13 JUDGE ORIE: Yes.

14 MR. EMMERSON: Because it seemed to me to be the natural inverse

15 of what the witness was seeking to say. So perhaps we can just clarify.

16 JUDGE ORIE: Please do so.

17 MR. EMMERSON:

18 Q. Professor Lecomte, just so that we're clear, you've used two

19 different expressions here. You've used a "short time" for some of the

20 bodies and a "very short time" for the other bodies. And presumably when

21 you say a "very short time" you mean less than the period of time

22 applicable to those bodies for whom you say a "short time"?

23 We --

24 A. That's right.

25 Q. Thank you. We understand that this is not a precise science. But

1 when you say a "short time -- when you say a "short time," which you do,

2 for example, here for R-16, R-17, and R-7, have I understood correctly,

3 when you say a "short time," you mean something in the region of about

4 eight days or less? Is that right?

5 A. If I may, I know that I may be unpleasant now, but I have to say

6 that a forensic physician is not a clairvoyant. We have to work on each

7 of the bodies. And there are various elements that enable us to say what

8 we conclude. Rather than saying something rather general and -- something

9 rather general that will not perhaps clearly state what the report is

10 saying.

11 Q. I'm -- I'm just at this stage trying to clarify the terms,

12 Professor Lecomte.

13 So you mentioned periods of eight days and periods of three days.

14 Can I summarise it with you in this way: That for each of these sets of

15 remains that appear in the table on page 114, for each of them you

16 considered that their -- they had been present at the location for no more

17 than about eight days; is that fair?

18 A. No, I cannot allow myself as a forensic physician to say that it's

19 no more than eight days. It could be nine days. It can be ten days. But

20 I cannot say anything else. I cannot assess and give you a figure when

21 you have a photograph of a body that is shown on a picture during the

22 recovery -- recovery operation.

23 If I may say so, the recovery operation was badly done. The

24 photographs are not clear enough, not relevant enough in order to tell us

25 to say how many days they were there. We just examined or looked at the

1 bodies where they were photographed at -- for instance, at the autopsy

2 room, we had a better visibility of the bodies. But I maintain that in my

3 mind a "short time" and "very short time" is not something that we should

4 dwell too much upon. It would not reflect -- it would not be

5 necessarily -- particularly important for this report.

6 When we say "short stay," it could be eight days, six days, seven

7 day. But when it's very short time, it's shorter than short time but it

8 can also be seven days. It could also go up to eight days. But I do not

9 want to insist on this eight days that you are mentioning, because eight

10 days is not something that a competent forensic physician can say. We do

11 not have this type of precision.

12 Q. Can I --

13 A. I'm sorry.

14 Q. Can I -- I entirely understand that, Professor Lecomte, and I'm

15 not seeking to pin you down to a specific number of days at all. And I

16 entirely understand that there's a margin of error. What we -- what we're

17 trying to assess from your testimony is whether we're talking about days,

18 weeks, or months. And as -- from what you've told us, your opinion is

19 that these bodies, all of them in that table from R-1 through to R-17, had

20 been for -- you say it could be eight days, nine days, ten days. A matter

21 of days. Is that -- is that correct?

22 A. That is correct. You are right.

23 Q. Thank you.

24 A. Yes, we're talking in terms of days here.

25 Q. Yes. So if we could just look at an outer limit, would the outer

1 limit be somewhere like two to three weeks?

2 A. I will not answer this question, sir, because I believe that we're

3 not talking in terms of months. In months, we can say something else.

4 But even if you look at the assessment of the bodies just in order to put

5 the date of death, we used months there, and we say -- we used the same

6 terminology, more than one, over one month, less than two months. We

7 cannot, once again, have the precision of a train controller. That is

8 impossible.

9 Q. Absolutely understood. But from what you're telling us, when

10 estimating the period of time that that group of bodies had been in the

11 position in which they are found, that is something that you would

12 estimate in days; whereas, when estimating the length of time that the

13 person has been dead, you are estimating that in multiples of months. Is

14 that correct?

15 JUDGE ORIE: Mr. Dutertre.

16 MR. DUTERTRE: [Interpretation] Objection, Your Honour. The

17 witness already answered that question. This question was already put to

18 her in various ways. And once again, one is insisting on the duration of

19 the -- from the moment when the person has deceased and the duration of

20 time during which the body was on the scene.

21 JUDGE ORIE: I do not know whether we make much progress at this

22 moment in this respect.

23 Madam Lecomte, what Mr. Emmerson is trying to find out is what you

24 mean by your words. If you use the same words, then one would expect that

25 that word is used for the same range, even if that range is not very

1 precisely defined.

2 And Mr. Emmerson, the only thing he'd like to know, as far as I

3 understand, is if you're talking about a very short time, what

4 approximately that range would be, accepting that for everybody you might

5 perhaps be a bit more to the left of the range or a bit more to the right

6 in that range, but that's the only thing he's trying to find out. And it

7 seems there is a debate ongoing rather than that we have a very clear

8 answer. I'm not saying a very precise answer but a very clear answer to

9 the question. That is, would a very short period of time be anything

10 between two and ten days or one and fifteen days or -- approximately?

11 Because you use a certain term, so therefore if you do not further -- give

12 further precision, that we'd like to know what this range approximately

13 is, where we do understand that the beginning and the end of the range, if

14 it is in days, might cover two or three days. That means four to eighteen

15 days could be two, three, four, five, or six at the lower end and perhaps

16 sixteen, seventeen, eighteen, nineteen, twenty at the higher end. But

17 that's what Mr. Emmerson is trying to find out.

18 Could you further assist him on these terms about "very short,"

19 and "short".

20 THE WITNESS: [Interpretation] To answer your question,

21 Your Honour, when we put "short time," we're -- and "very short time,"

22 we're thinking in terms of days. We're not thinking in terms of months.

23 But in order to get a week, you need eight days. So when we say "very

24 short time," this is an assessment which, according to us, means that we

25 are thinking in days. It's less days of -- less days of -- of presence on

1 site. But we are not working in terms of months and -- or weeks. We work

2 with days.

3 JUDGE ORIE: I will make a distinction between "very short,"

4 and "short." Could you explain what -- where you would say "short," where

5 you would say "very short," because you categorise them as such.

6 THE WITNESS: [Interpretation] It all depends, of course, because

7 of the state of body and where the body was recovered. It also depends on

8 other issues; for instance, the body covered with earth or the state of

9 the terrain. It -- it depends on various criteria.

10 JUDGE ORIE: Would you allow me to interrupt you there for a

11 second. I'm asking what the two categories are. Your answer is

12 explaining to us what the circumstances are which may lead you to

13 categorise one body in the category "short" and the other body in the

14 category "very short." That was not my question.

15 I do understand that you take into consideration all these

16 circumstances, but when would you call it "short"? When would you call it

17 "very short"? You said, "It's short as in days, not month."

18 Now, "very short," would that be within the range of anything

19 between one and ten days or would that also be a category that could cover

20 one to twenty days? Because you're -- you are using different terms, and

21 we're just trying to understand exactly what you mean by that on the basis

22 of all findings and all circumstances.

23 THE WITNESS: [Interpretation] All the elements that were examined

24 in order to give this assessment -- and once again, this is an assessment

25 which has to take into account a whole range of elements. But when we talk

1 about a "short time" on site, some bodies were there for a short time and

2 other bodies were there for a very short time, depending on, for instance,

3 if there were larva, if there was the presence of diptera larva, or, for

4 instance, we can notice that clothes is present and that it's still

5 intact.

6 So this is an assessment which is not vague. I'm not saying that

7 this is a vague assessment. But this assessment depends on many criteria.

8 We looked at the photographs. Some pictures we looked with a

9 magnifying glass in order to see if, for instance, there is the presence

10 of humidity or not, if they were buried in a humid soil or not. So all

11 these elements enter into account.

12 JUDGE ORIE: May I interrupt you again. You're doing exactly the

13 same as I said before you did it; that is, to explain how you come to an

14 assessment.

15 What -- we are seeking something quite different. What we are

16 seeking is that -- I take it that all circumstances taken into

17 consideration -- let's just take an example: That you come to the

18 conclusion that the body has been there for a -- a time, anything between

19 10 and 23 days. Now, what we would like to know is whether would -- you

20 would then categorise that body as being there for a short time or being

21 there for a very short time.

22 We are trying to understand the different categories you are using

23 yourself, not on how you came to the conclusions in respect of one

24 individual bodily remain.

25 THE WITNESS: [Interpretation] If you take, for instance, the two

1 bodies R-16 and R-17. For each it is indicated "short time." Those bodies

2 were buried in the ground. They were covered with earth. So if you will,

3 the assessment is more difficult. So we put these two bodies in a

4 category of "short time," because we did not have sufficient elements.

5 The bodies were covered by earth. That's why we've put "short time." We

6 had less elements to assess. When the bodies are under the earth, when

7 they are buried, it's a different evaluation, it's a different assessment.

8 I'm terribly sorry we are spending so much time with this

9 terminology. It's -- it's -- we should have put "short time" everywhere

10 instead of "very short time." The reason why we put "very," it's because

11 we had elements to believe that it's a very short time; whereas, for the

12 other bodies, R-16 and R-17, those bodies were covered -- covered in earth

13 and they're against a wall, so we don't have enough elements to say how

14 long they were there. So that's why we put "short time."

15 So I would like to insist on the fact that this assessment is not

16 an assessment made without being very precise. It's where the bodies were

17 found. R-16 and R-17 were covered with body [as interpreted]. They were

18 not near the surface, so we cannot really evaluate. We cannot assess.

19 That's why we say these two bodies belong to the category of "short time."

20 Whereas, when you have people who were buried under the earth or

21 accessible or visible, then you can say it's a very short time, because

22 then we have elements that enable us to assess the duration of time.

23 And I have to tell you that this assessment of time is done by

24 taking various criteria into account. We cannot say 10 days, 15 days more

25 or less. It's criteria that enter into account, where the bodies were

1 found and other criteria, of course, especially the aspect of the bodies.

2 JUDGE ORIE: [Previous translation continues] ... Mr. Emmerson, I

3 suggest you move on.

4 MR. EMMERSON: Yes. Can I just approach that in a slightly

5 different way.

6 Q. Can we look back at your table, please, on page 114. If you could

7 just turn that table up for a moment.

8 Let me ask you: Do you have the table on page 114?

9 Now, if we just look at the bottom body on that list, R-15. Do

10 you see that?

11 A. Yes.

12 Q. Now, we -- we can see that your assessment there is that that

13 person had been dead for a period greater than three months. Is that

14 correctly understood?

15 A. That's correct. Yes, that is right.

16 Q. But the -- the time that the body, in your assessment, had been at

17 the scene is recorded as being a "very short time"; correct?

18 A. Yes, that is correct. It's what's written there.

19 Q. Now, from the answers you've already given, a very short time

20 could not include a period greater than three months; is that correct?

21 A. No, I did not say that at all, sir. I did not say that a "very

22 short stay" means three months. I said that a "short time" or a "very

23 short time" is determined in days.

24 JUDGE ORIE: Yes. Perhaps there's a translation error.

25 MR. EMMERSON: I think there's a translation problem generally.

1 JUDGE ORIE: Yes. I'll -- from now on I'll listen to the French.

2 MR. EMMERSON: Yes.

3 JUDGE ORIE: One ear to the French and another --

4 MR. EMMERSON: Yes.

5 JUDGE ORIE: No, the question put to you by Mr. Emmerson was that

6 if a body is reported to have been dead for more than three months, that a

7 "very short time" the body was at the location where it was found could

8 not cover more than three months.

9 And Mr. Emmerson, I think, said this on the basis of your previous

10 answer that "very short" would mean in terms of days, rather than of

11 month.

12 THE WITNESS: [Interpretation] I believe - and I will try to

13 explain everything to you by looking at this table. This is a summary of

14 all of our observations. In this table, the date of death -- the forensic

15 evaluation to have date of death, meaning that a person died on a certain

16 date and that person is discovered. The body is discovered. So with

17 respect to this discovery, without taking into account the environment, we

18 can say that the death occurred over a three-month or -- three months

19 before the death. Why? Because body 15, for instance, is a skeleton,

20 almost completely a total skeleton, with disjointed bones and the internal

21 organs are no longer inside the body, and there's -- there are almost no

22 soft tissues around the bones. There's only skeleton. And so this is a

23 body that is certainly there for more than three months.

24 We can talk about a period that goes over three months. It could

25 be three months, four months, four months and a few days. We're looking

1 at the aspect of the body, the way the body looks through the documents

2 that were given to us and the documents that talk about the autopsy report

3 handed to us by our colleagues.

4 Now, if we take this other body, which is against -- against a

5 wall, and it -- there are little rocks that are at that level, little

6 pebbles. This body did not show the presence of larva. And if I talked

7 about larva or diptera, it's because my colleague, like any other forensic

8 physician, they make a complete observation of the body. They examine the

9 body, they examine the clothes to see if there are larva or not. And when

10 there is a presence of larva, they say that it is an observation. This is

11 what we do in forensic medicine.

12 So my colleagues did not put here "presence of larva" or

13 "diptera." Diptera is something that appears approximately after ten

14 days. From eight to ten days you have the pupa and sometimes even up to

15 twelve days. So there were none. So we're talking about the days in

16 terms of discovery, the discovery of the body. Because these bodies were

17 in fact in a -- on soil. There are little rocks. And there's air going

18 through. It's not a cement prison around them. There is air. Flies can

19 also go through these spaces. So they will lay their eggs.

20 Between the egg and the larva, there's approximately seven days.

21 So we did not see any pupa of diptera, no larva, no vegetation, because it

22 is true that we attached a great importance to the vegetation, because in

23 Kosovo when we worked, vegetation was very important for us. The

24 vegetation enabled us to date, to know when those bodies were buried

25 approximately, because this vegetation takes approximately 20 days to grow

1 back. So it takes 20 days for a plant to resurface or to appear. So here

2 there was no vegetation.

3 You will tell me there were little pebbles. Because of pebbles,

4 that's not very easy for vegetation to grow. But vegetation was

5 vegetation with huge leaves. So there were -- there was vegetation with

6 very large leaves but -- around in the area, but there were some pebbles

7 but there were no leaves around this body so no vegetation.

8 So this is what enabled us to say, once again, we are not a

9 clairvoyant. For us it means that this body has been there for a very

10 short time.

11 MR. EMMERSON: Could I, Professor Lecomte, can I ask you, please,

12 just to take this in smaller chunks, because you give us a lot of

13 information in one time and it's quite important for us to understand step

14 by step how you reach the conclusions that you do.

15 Now, I just -- please just wait for the question and then

16 concentrate on -- on, if you can, specifically the information that I'm

17 looking for.

18 If we look back at your table on page 114. I was asking you

19 questions about body R-15, and you've told us already that in your

20 assessment that body had been dead for more than three months but its

21 presence at the scene was for a very short time, which you say is a matter

22 of days.

23 And what I want to understand from that is -- just to use body

24 R-15 as an example: The implication of your finding seems to be that this

25 body had been dead in some other location at an earlier

1 time; is that correct?

2 A. If you look at my report, if you read my report, you will see that

3 in the end, in the conclusion, it says -- and I would like to give you the

4 exact terminology. It says that these bodies can very well have been

5 buried somewhere; meaning they were buried somewhere. Somebody dug a

6 hole. They put the body there. It's a hermetical hole.

7 And then at page 119 of my report, they were transported on site.

8 I am saying that nothing enables us to eliminate an initial burial.

9 Q. Yes.

10 A. A primary burial. But I am terribly sorry to be giving you so

11 many -- so much information, but you're answering me to answer to

12 questions which are complex. I have to work on many factors of your

13 question in order to give you an answer.

14 Q. That's -- that's understood. But just to -- just to be absolutely

15 clear, in respect of body R-15, if it has been dead for more than three

16 months but in your opinion has been at the scene for only a matter of

17 days, that suggests, does it not, that the body was dead in some different

18 location at an earlier time? Is that correct?

19 A. You are indeed correct, sir. And if you take a look at page 119

20 of my report, you will see that this is what it says.

21 Q. Yes, I --

22 A. "Nothing can preclude there being a primary burial."

23 Q. I understand. I entirely understand.

24 And if we can now just look at the others. That -- that

25 presumably applies as well, then, if we just look down the list, to the

1 other bodies that are listed as having been dead for more than three

2 months; that is, on your table: R-3, R-5, R-7, R-8, R-10, and R-15.

3 Presumably the same conclusion follows in respect of those.

4 A. I will have to take these cases, because I tell you that I am

5 basing my conclusions on several criteria. If we take all of these cases,

6 we can see ... If you don't mind. I apologise. I'm looking.

7 Q. Professor Lecomte, can I assist you to this extent. I'm going to

8 take you in a little while to some specific examples. So at the moment,

9 I'm just understanding the -- the import of your evidence.

10 Now, you've told us with R-15 because it was dead more than three

11 months and, in your opinion, had only been at the scene for a few days,

12 the implication is that it must have been or was likely to have been dead

13 in some other location beforehand. And all I'm asking you at this stage

14 is: That presumably -- that same conclusion would apply to each body

15 which, in your opinion, had been dead for more than three months but which

16 had been at the scene for only a very short time. The same conclusion

17 would follow.

18 A. Yes, I do agree with you, sir.

19 Q. Thank you. Does it -- does it also apply to those bodies for whom

20 you have recorded an opinion that they had been dead for two months or

21 more? But had only been at the scene for a matter of days? Is the same

22 conclusion applicable in the case of bodies dead for two months or more?

23 A. I'll give you the same answer, sir. I do agree.

24 Q. And then -- and then finally, is it also correct for those bodies

25 that are recorded in your opinion to have been dead for more than one

1 month?

2 A. I think so, sir.

3 Q. Yes. Thank you. I think -- yes. Sorry.

4 I will take my questions today -- the reason I'm asking you to

5 deal with them in small chunks is because we are speaking through an

6 interpreter, and I think it's possible that some of the nuances of the

7 questions and answers get lost in translation. So it is -- it is much

8 easier if we simply take it in -- in short chunks and then we'll get the

9 information clear.

10 Now, if -- if we look through the -- the body of the report where

11 you go through each of these sets of remains one by one, we can see that

12 for that group of bodies that are recorded as being found by the side of

13 the canal, that is, R-1 through to R-17, you very often record the opinion

14 that the body has been previously buried. So that is the position with

15 R-1, R-2, R-3, R-4, R-5, R-7, R-8, R-9, R-10, R-12, R-13, R-14. Those

16 particular sets of remains.

17 In each instance, you have -- you have recorded, in answer to

18 question number 3, "the totality indicates prior burial." Now, I just

19 want to understand. When you say "prior burial," do you mean burial at

20 some other location to the location at which they were found? Is that

21 what "prior burial" means?

22 A. Yes, indeed. Of course. "Burial," that means placing in the

23 earth, once the earth has been dug, so that it is then hermetically

24 sealed. When a body is buried in the earth, it's either in a coffin that

25 is closed or in the -- at the base of the dug part of the earth.

1 Q. Yes. But just -- just to be clear, just to be absolutely clear,

2 the emphasis I am placing is on the word "prior." When you say "prior

3 burial," do you mean burial at some previous location to the location in

4 which the body is recorded as having been found in the material that you

5 were shown from the Serbian operation?

6 A. Well, I thought it was very clear in the report, because I say

7 that the estimated date of death is above three months and I say a short

8 stay at the place. That means obviously that the body has been buried

9 elsewhere. And I say there's no presence of flies because there has been

10 this burial.

11 Q. Thank you. That's -- I'm just making sure that it's -- that I

12 have understood what it is that your report is concluding.

13 Now, with a number of the bodies, you also record -- and I'm only

14 looking at conclusions at the moment. We'll look at the reasons in -- in

15 a moment or two.

16 But with a number of the bodies -- and I'm going to indicate in

17 particular R-3, R-5, R-8, and R-10 -- you also record an opinion that in

18 addition to prior burial, one factor or another has led you to conclude

19 that the remains have been handled. You say, for example, in relation to

20 R-3, "the totality indicates prior burial and the entanglement of the

21 bones indicates handling."

22 And in the case of R-5, you say "the totality indicates prior

23 burial, while the separation of the bones indicates handling."

24 Now, it's the handling I want to ask you about. Do you mean

25 handling of the body before it found its place in the position where it is

1 recorded as having been found by the Serbian team?

2 A. No. For instance, for R-3 that you referred to, we have an

3 indication of a prior burial shortly after death, in other words, the body

4 was buried, buried in a deep grave. And the entanglement of the bones

5 indicates handling. Now, I think if the body was transported given the

6 state of putrefaction, if we're talking about three months later on. And

7 looking at this, if we have bones, bones are no longer retained by the

8 soft tissue and when the body is transported to another site, there is a

9 tendency for the bones to become entangled.

10 If you leave a body in situ and if the person died at that

11 position, then there'll be no movement. There'll be no change as regards

12 the initial position of the body. It will be in the same position it was

13 when the person died and was buried. There will be no movement of the

14 body unless somebody actually moves it.

15 And here we have an entanglement of bones, which means that that

16 body, in all likelihood - and that's why I say "indicates" - in all

17 likelihood has been transported and handled, because otherwise you die,

18 you're in your coffin, you're lying on your back, and you won't be

19 discovered sometime down the road as a pile of bones. That will only

20 happen if the coffin has moved or been moved.

21 Q. I -- I think that is exactly what I was seeking to clarify. The

22 handling you're referring to there is handling of the body between the

23 time when it was first buried somewhere else and the time when it

24 was found adjacent to the canal wall, some handling between those two

25 points in time; is that correct?

1 A. Yes, I entirely agree.

2 Q. Thank you. And if we could then look at R-13 for a moment. You

3 use a slightly different expression there. I just want to know whether

4 that means something different or the same.

5 With R-13, you say: "The totality indicates that the body was

6 transported after prior burial in the ground."

7 Does "transported" mean anything different from "handled" or is it

8 the same concept that we are to understand?

9 A. It is indeed the same concept. Transporting, handling, carrying.

10 Q. Yes.

11 A. Whatever. It's the same concept.

12 Q. And just for the sake of -- just for the sake of clarity, at -- in

13 the case of R-14, you say: "The totality indicates prior burial and

14 movement of the skeleton."

15 That again, do I understand it correctly, is the same concept?

16 Movement of the skeleton between prior burial and the place where it was

17 found?

18 A. Yes, absolutely.

19 Q. Thank you. Now, in respect of these sets of remains, to take in

20 as a whole R-1 to R-17, do I understand your conclusion to be that the

21 appearance of this group of bodies led you to conclude that it was more

22 likely than not that they had been moved after previously being buried

23 somewhere else?

24 A. Yes, I agree with you, sir.

25 Q. Thank you. So what I want to do now is just to look in a little

1 bit more detail with you at the criteria that you examined. And I think

2 you are aware, because Mr. Dutertre has communicated to you for the

3 Prosecution, some evidence of Mr. Dourel on the entomological aspects of

4 this. I want to look at all of the factors with you, please that led you

5 to reach the conclusions that you did.

6 MR. EMMERSON: But I see the time. I don't know whether before I

7 embark on Your Honour would think this the appropriate moment to take a

8 break.

9 I'm happy to carry on.

10 THE WITNESS: [Interpretation] I -- I can go on.

11 JUDGE ORIE: Yes. But for very technical reasons we can't go on,

12 because we have our -- we are running out of tapes. Our interpreters need

13 some rest as well. Therefore, I think we'd have a break now until five

14 minutes past 4.00.

15 Mr. Dutertre.

16 MR. DUTERTRE: [Interpretation] Yes, Your Honour. Could we have

17 some broad idea of the time required for cross-examination? Given the

18 questions being put, I will also need a certain amount of time, perhaps a

19 considerable amount of time for redirect.

20 MR. EMMERSON: Well --

21 JUDGE ORIE: Mr. Emmerson.

22 MR. EMMERSON: I'm -- given that I'm, in effect, in the position

23 of having to elicit from this witness the evidence in chief in relation to

24 these matters, I -- I would have thought at least another hour and a half,

25 possibly a little longer.

1 JUDGE ORIE: And after that, Mr. Guy-Smith?

2 MR. GUY-SMITH: Well, considering the state that we're in where we

3 are, as Mr. Emmerson said, dealing with the report of the professor which

4 was sought by the Prosecution, I think that I probably will have very

5 little cross -- cross-examination or examination at all, because the

6 matters will be covered in an attempt to bring the information that the

7 Chamber needs to light.

8 JUDGE ORIE: Yes.

9 Mr. Harvey.

10 MR. HARVEY: I shall not have anything to add to the questions

11 that Mr. Emmerson asks. Thank you.

12 JUDGE ORIE: Yes.

13 Then, Mr. Emmerson, the second report of Professor Lecomte, would

14 you like to tender that?

15 MR. EMMERSON: I will -- I certainly wish to.

16 JUDGE ORIE: Yes. Then we'll ask a number to be assigned to that.

17 Mr. Registrar.

18 THE REGISTRAR: That's D166, Your Honours.

19 JUDGE ORIE: Thank you, Mr. Registrar.

20 Any objections, Mr. Dutertre?

21 Then D166 is already admitted into evidence, although the

22 examination of the witness has not been concluded yet.

23 We'll have a break until five minutes past 4.00.

24 --- Recess taken at 3.45 p.m.

25 --- On resuming at 4.13 p.m.

1 JUDGE ORIE: Please continue, Mr. Emmerson.

2 MR. EMMERSON:

3 Q. Professor Lecomte, I want now, if I may, just to go through with

4 you in a little bit more detail some of the criteria that you used in

5 order to reach your overall evaluations about the date of death and the

6 length of presence at the scene.

7 But before I do that, I want to put aside for a moment the

8 question of the presence or absence of larvae. That's something I'm going

9 to come back to. I want to look, first of all, at some of the other

10 criteria that you list in your report as being relevant and just ask, if

11 you would, just very briefly one by one to insist the Trial Chamber in

12 understanding the relevance of those criteria.

13 Now, first of all, you said, I think, in answer to a question

14 before the break that -- that amongst the factors that you took into

15 consideration was information that you had about the weather and the

16 environmental conditions. Is that correct?

17 A. I knew that between the day when the bodies were discovered and

18 the day when they returned to the site that there was a violent storm. I

19 believe that this was in September.

20 Q. And amongst the factors that you list as relevant, if we could

21 just go through them briefly -- are the following: First of all, missing

22 bones or parts of the skeleton.

23 Is that a -- a relevant factor in determining the question of how

24 long the body had been at the scene?

25 A. No. No, it wasn't. The fact that there were bones that were

1 missing -- for instance, in the case of R-13 that we were talking about

2 earlier on, there were bones missing that have not been found at the site.

3 So that is somewhat awkward. Where are those bones?

4 Which in fact led us to raise the next question. All of this

5 would imply that the body was transported after prior burial in the ground

6 because during the transport or the collection, shall we say, of the body

7 that was initially -- or previously buried, there might have been a bone

8 that went missing. You have to understand that this body after all was

9 over three months old, so obviously it -- its appearance and its state had

10 been affected. Perhaps it was two months. But anyhow, there was a

11 missing bone.

12 But the fact that you have missing bonings in many cases is an

13 element that led us to say -- that enabled us to say that some sort of

14 transport had occurred, because we didn't recover those bones in situ.

15 Q. And similarly, we can see in --

16 JUDGE ORIE: Mr. Emmerson, could I ask one clarifying question

17 here. It might save time at a later stage.

18 You said missing bones in many cases is an element that led you --

19 that enabled you "to say that some sort of transport had occurred, because

20 we didn't recover those bones in situ."

21 I -- I'm trying to understand your answer. Are you saying that

22 the body was transferred -- transported to that place where bones may have

23 been lost during transportation, or is it also a possibility that the

24 bones, the missing bones, were taken from the spot where the body was and

25 always had been and then removed to another place?

1 THE WITNESS: [Interpretation] No. Perhaps I'm not stating it very

2 clearly. What I'm trying to say - and I'm trying to explain that this

3 criterion -- actually, it's rather, an element, not so much a criterion -

4 but this was something that was noted by my colleagues who produced the

5 autopsies report. They said they noted that there were bones that were

6 missing from the body.

7 JUDGE ORIE: Yes.

8 THE WITNESS: [Interpretation] I don't recall exactly what it was

9 in this case, but, for instance, you had a forearm, a bone that was

10 missing, part of the foot bone was missing or one of the bones. So at the

11 site where the remains were found, that forearm and that part of the foot

12 was not found. And the question is: Why were they not present?

13 And we evoked the fact -- we mentioned the fact that they probably

14 came from somewhere else, and when they were picked up from this other

15 point - for example, they'd been taken out of the earth - and the whole

16 body didn't come because it had already suffered the consequences of

17 putrefaction; in other words, the body wasn't entire.

18 JUDGE ORIE: I do understand your answer. But what makes that

19 more probable -- let's say we have a -- I don't know how many bones there

20 are in the body but let's just for argument's sake say there are 100

21 bones. Now, you find 95. Isn't it true that the 95 bones you found could

22 have been brought there and the remaining, the other five, were left

23 somewhere else, or that the body with all the 100 bones had always been at

24 that place but 5 bones were taken away by animals, by persons, by whomever

25 and taken to another place?

1 THE WITNESS: [Interpretation] No. Let me put it this way: I

2 think we have to be reasonable in stating the facts. When I die, my body

3 will be in a certain position with all of its bones in place. Gradually

4 the muscle mass will disappear and the bones will separate. But I will

5 still be in the position that you put me in when I was buried in the

6 ground or in a coffin.

7 If you find me at the base of a wall, at the foot of a wall

8 dislocated - in other words, without any muscle, without the soft tissue,

9 with just the bones and you find that there's the forearm or a femur or

10 part of the foot that's missing - then obviously this begs questions, if

11 you find that there are several bodies in this state.

12 So you can assume perhaps that I have been transported from the

13 place where I was originally. I've been picked up or my -- I don't know,

14 My coffin has been thrown into something or the bodies have been dug up

15 and taken off somewhere else. And the bones missing probably remained at

16 the original site. For example, when the body was taken out of the

17 ground.

18 The case of the predator is somewhat different. A predator is an

19 animal -- I mean, we know that in Kosovo there have been many -- there

20 were many predators. I mean, I have been there. I was there in

21 September. And there were many dogs, wild dogs who are very hungry, you

22 know, looking for food to eat. And it's true that those dogs can attack

23 bodies. And in the examination we had one body such as this that had very

24 clearly been attacked. The fragment of the body was not very far removed

25 from the body but had been torn to pieces. So there we assume that there

1 was probably a predator.

2 The predators don't take the bones and travel kilometres. The

3 predators are generally dogs. And what they do, they get their teeth

4 round the muscle. They pull it from side to side to try and tear it off

5 the bone. But they aren't terribly interested in the bones, so the bone

6 will be thrown out by the -- from the dog's mouth by it shaking its head.

7 But it's not going to be kilometres away; it will be close to the site.

8 So I eliminate the possibility of there being predators for most of these

9 cases.

10 And there have even been cases - and I think you've probably seen

11 this in reading the report - where there was clothing but no body. And

12 there were other cases where there was a bone that didn't correspond to

13 the body. This has been noted by my colleagues. And all of this gives us

14 the impression that there's been some movement, that something has

15 happened before the discovery of the bodies and the remains.

16 MR. EMMERSON: I --

17 JUDGE ORIE: Please proceed.

18 MR. EMMERSON:

19 Q. I think you note as one of the criteria in relation to each body

20 whether or not there are predator lesions; is that correct?

21 A. Yes, absolutely.

22 Q. So, for example, with body R-4 -- body R-4, you have recorded the

23 presence of predator lesions where they are to be found; is that right?

24 If you look at the conclusions: "In relation to body R-4," question

25 number 3, you've recorded there where predator lesions are evident. Is

1 that correct?

2 A. Yes, I can indeed confirm this. I also have the photograph in

3 front of me, and we can see that it's been torn and it is close to the

4 body.

5 Q. Yes. And so we -- can we assume therefore that with each of these

6 bodies where there were missing bones, you were looking to see whether

7 there was evidence of predator lesions or not?

8 A. Yes. Yes, of course. When we take a look at the bones and the

9 photos taken by my colleagues at the -- on the autopsy table, we could see

10 very clearly that there are bones that are missing, the bones are quite

11 clearly not there.

12 Let's take other examples of this, if you like. R-5, for

13 instance. On the photo, the lower part of the legs is missing. It's the

14 left leg, in fact. The right femur is missing. These are important

15 bones. And, in fact, in the conclusion I said: "The totality indicates

16 that there's been handling because of separation of the bones," and

17 somewhere or other I've put: "Where are the missing bones?" So a

18 forensic scientist inevitably asks this question when he or she has

19 examined the bodies.

20 Q. Could we just look back at R-4 for a moment, because you've noted

21 that R-4 was found lying on the surface and in the open air. Now, this is

22 your paragraph 2 under the -- under the body R-4. You've said: "Lying on

23 the surface in the open air and appears to have been placed on the ground,

24 mangled at the trunk."

25 Now, mangled at the trunk. Just so that I understand,

1 entanglement of bones is a factor that you have recorded in a number of

2 instances as relevant; is that correct?

3 A. Well, this is a different case. It's not a tangling of bones.

4 It's not a mix-up of bones. This is the trunk, the body in itself, in

5 other words, that has been torn or mangled. I mean, there are parts of

6 the flesh that have been torn away from the body which indicates the

7 presence of a predator. And the body was indeed on the surface of the

8 earth.

9 And I would like to say - and this is very important - this body

10 was not terribly old. It was one or two months old. There was still soft

11 tissue present.

12 Q. Yes. We -- we can see under question number 3 that despite being

13 found on the surface, the clothing of that body was filled with soil; that

14 is, presumably soil on the inside of the clothes. Is that correct?

15 A. Well, I worked on the basis of my colleagues' reports. When it

16 says "filled with earth," that means that there is soil stuck to the

17 clothing. I think that the state of putrefaction was significant in this

18 body. In fact, it says "chewed by predators," if we're taking a look at

19 what my colleagues have written for R-4. Yes, "Advanced state of

20 putrefaction." But when a body is deceased -- when there is water in the

21 body, which means that there are liquids that are going to leave the body,

22 and these humours, this putrid liquid will be between the body and the

23 clothing and the clothing will be slightly damp and may indeed become

24 covered by soil, if there is soil at that particular location. And there

25 was -- there were also diptera larvae as well.

1 Q. We'll come back to larvae in a minute.

2 Another factor that you describe in the report as being -- or you

3 list in the report is the presence or absence of desiccation. Could you

4 just help us as to what "desiccation" means in this context.

5 A. When a body is deceased, the skin, the envelope, which is what our

6 skin is, is in contact with the air. And if we're in a well-aired place,

7 the body will dehydrate. It will lose its water. It will lose its

8 elasticity. It will dry out, become desiccated. So over time we can end

9 up with mummification, a sort of parchment aspect. The skin has lost its

10 water, its humidity and looks like a card or parchment.

11 So desiccation is something that takes place over a certain length

12 of time, say 48 hours. You have to be in the open air. 48 hours or three

13 days. I mean, it depends on all of the other factors as well, ambient

14 humidity and so on. But you will see that the skin will be desiccated.

15 And so we can say -- it's one of the criteria. We can say that when

16 there's no desiccated skin, then that body has not been in the open air

17 just after death.

18 Q. Thank you. Another criteria you list in relation to a number of

19 the sets of remains is the absence of penetration by roots or grass. Can

20 you just explain to us what you would expect to find if a body had been in

21 situ for, let us say, several months.

22 MR. DUTERTRE: [Interpretation] No roots are mentioned in the

23 report, Your Honour. It might be a mistake by Mr. Emmerson. Branches are

24 mentioned, but no roots are mentioned.

25 MR. EMMERSON: I'm sorry. It's -- I'm sorry. You're quite right.

1 It's branches, rather than roots.

2 JUDGE ORIE: Yes.

3 MR. EMMERSON: But -- but let me put the question --

4 JUDGE ORIE: Perhaps put the question again.

5 MR. EMMERSON: More generically.

6 Q. In a number of instances, you mention the absence of colonisation

7 by vegetation, grass, branches. Can you just help the Tribunal understand

8 why that is relevant to determining the length of time that the remains

9 may have been at the scene.

10 A. When a body is placed on the ground with grass or when the earth

11 has been moved, you have a body lying on the ground. And if there is

12 vegetation around the body, if the body is located where there is grass

13 growing, this grass is going to grow back around the body, because the

14 body is going to lose putrid matters that will help the vegetation grow

15 back around it; therefore, the body will be surrounded, even sometimes

16 covered by vegetation and you will often find bodies in the fields or in

17 the undergrowth that are covered by the grass. The grass grows back above

18 the body sometimes.

19 Q. Thank you. Now, with each of your conclusions for each body, when

20 you are expressing a view on the length of time it has been present at the

21 location and when you are expressing a view on whether or not it had been

22 moved or previously buried, you use the word "totality," the totality

23 indicates prior burial or the totality indicates a short presence.

24 And I think you said in answer to a question from Judge Orie about

25 missing bones that -- that none of these issues should be treated as

1 criteria but as elements in the assessment that you make.

2 Now, my question is this: When you're coming to the conclusions

3 that you've come to here, are you looking at all of these factors together

4 to build up an impression and a picture based on your experience of having

5 exhumed, you say, more than 400 bodies in this region? In other words,

6 this is an overall assessment rather than any specific individual

7 criteria.

8 A. It is an overall assessment based on elements that are the

9 photographs, the autopsy reports, the location where the bodies were

10 recovered, the state of the bodies as described by my colleagues, the

11 bodies as I see them on the photographs. It's a whole series of elements

12 that will lead me to say that this indicates such-and-such thing.

13 Q. Thank you. Now, I want, if I may, to turn to the question of

14 larvae, because you -- you, I think, have been supplied by the

15 Prosecution, Mr. Dutertre, with some material evidence in a transcript

16 from Mr. Dourel, a forensic entomologist.

17 And just before I give you the opportunity to comment on that

18 evidence, can I just ask you to look at, first of all, body R-1, where we

19 see under question number 2, you have noted for body R-1 the presence of

20 dipterous larvae on the clothing and in the cranial cavity.

21 And then if we -- and you have assessed from the totality that

22 that body had been at the scene for a very short time.

23 If you could then turn to R-9 for a moment. We can see there that

24 you have recorded no larvae or flies and no invading or colonising grass

25 amongst the environmental factors. And you have reached the same

1 conclusion; namely, a very short presence at the location.

2 Could you just help the Trial Chamber understand. In one case,

3 you noted there was a presence of dipterous larvae; in the other case, you

4 noticed an absence of larvae. But having regard to the totality, you

5 concluded in both cases that the body had been present for a very short

6 time. Could you just help the Trial Chamber understand, then, what

7 importance attaches to the presence or absence of larvae in that

8 assessment?

9 A. I believe that there is a major difference between R-1 and R-9,

10 and that's -- that is shown in the report.

11 With respect to R-1, we found dipterous larvae on the clothing and

12 on the cranial cavity. This is a data I gathered from the autopsy report

13 prepared by my colleagues.

14 As for R-9, no larvae were described, so I said that no larvae or

15 flies had been described or recorded.

16 Therefore, there is here major difference between the two bodies

17 that led me to come to the same conclusion. When it comes to R-1 and R-9,

18 you will see that both these bodies were found on the ground in the

19 surface and that in the case of one of these bodies, it was covered with a

20 plastic bag over the upper half of the body and there was a jute sack over

21 the legs.

22 Plastic is a material that keeps humidity, that retains humidity;

23 therefore, the body will -- the upper part of the body that is covered

24 with plastic will necessarily be in a -- a higher state of decomposition.

25 And because of humidity, the larvae, the eggs, may develop more rapidly

1 and they can also develop better, because they are very comfortable, in a

2 humid environment, away from light, and they will necessarily develop.

3 Therefore, the difference between those two bodies is that one of

4 the bodies was covered by a plastic bag, R-1. When it comes to R-9, you

5 see the body was found in the open air; it was not covered by a plastic

6 bag.

7 Q. So just if I can draw those threads together. The fact that one

8 of these bodies had been recorded as having larvae present in the cranial

9 cavity and on the other body there was no larvae present, that does not

10 affect your conclusion that both of them had been present at the scene for

11 a very short time; is that correct?

12 A. That's correct. It's a criterion amongst other criteria, but

13 with -- based on the other criteria, I reached the same conclusion. There

14 were dipterous larvae on R-1 because R-1 was in such a state that the

15 dipterous larvae were able to develop more rapidly.

16 Q. Now, coming to -- to the report of Monsieur Dourel, the forensic

17 entomologist. If I could just very crudely summarise the testimony that

18 he gave to the Tribunal. First of all, he testified - I hope I get the

19 thrust of it right - that it's not possible to pinpoint either a date of

20 death or the length of time a body has been present at a location by

21 reference to the presence or absence of larvae unless you have data about

22 the species and the environmental conditions that have prevailed. Now,

23 that's the first proposition.

24 Now, can I -- can I ask you just to help us as to how you respond

25 to that, given that you have noted the presence or absence of larvae as

1 one of the relevant factors in your overall assessment.

2 A. Let me say, first of all, that my comment -- my observation is the

3 same as the observation made by the forensic experts, because they

4 recorded that comment in their reports and I worked on the basis of their

5 reports. I don't know who is Mr. Dourel. I was told there what he had

6 done. But I believe that his technician, a sort of technician has a very

7 short -- narrow perspective.

8 JUDGE ORIE: [Previous translation continues] ... I am aware

9 that --

10 THE WITNESS: [Interpretation] He's a technical expert.

11 JUDGE ORIE: -- you have a train at 7.30 and you're not available

12 for testimony tomorrow. Could you please focus on the question.

13 The question is -- this is the criticism you're not invited to

14 comment on the qualities of a person you apparently do not know. You are

15 not invited to draw our attention to the fact that your conclusions are

16 the same as the others. You are invited to answer the question.

17 The question is: What your comment is or Mr. Dourel's comment or

18 the main line of his testimony, that if you don't know the details of the

19 atmospheric circumstances and if you don't know what species of larvae

20 there are found, that it -- you're in the situation where you couldn't

21 draw any conclusions from the presence or absence.

22 Could you please answer the question.

23 THE WITNESS: [Interpretation] To answer this question, I had to

24 tell you that we are not talking about the same level of expert opinion or

25 expertise. The -- the report I prepared with my colleague is a forensic

1 expertise, based on the reports prepared by other forensic experts. I'm

2 not judging in any way the work done by this gentleman, but he's not

3 working on the bodies. He works on technical procedures, on scientific

4 procedures. He does not work in the field.

5 So to come back to what he said, no, I do not agree. The absence

6 or presence of dipterous larvae is significant. We, as forensic experts,

7 are trained to observe these larvae. I believe that the data related to

8 the environment is indeed significant, scientifically speaking. When a

9 body is buried in the ground 50 or 80 centimetres below ground, I believe

10 that you will not find any dipterous larvae. You will only find dipterous

11 larvae on a body as soon as the body -- as the person dies. Diptera

12 flies, diptera are the first insects to appear on the body. Diptera are

13 various kinds of flies. They are 100 and 1.000 [as interpreted] flies,

14 sorts of flies in the world.

15 In Canada, they wrote an article, and there are 7.000 different

16 flies. These flies will lay eggs in the ocular cavity. It will take

17 seven days for the maggot to appear on the body.

18 It's a very small larva, and its length varies, depending on the

19 species of the fly. These maggots turn into pupa, and these pupa - that

20 is to say, the shell of the larvae - the pupa remain on the body or in the

21 clothes. Pupation usually takes place between 10 to 14 days of the death.

22 And the maggot --

23 JUDGE ORIE: Could I ask you to focus on the question. The

24 question is -- I think that there's no disagreement on how larvae develop

25 and when they are pupae. The issue is that an expert --

1 Let me first ask you: Do you know Mr. Dourel? Do you know him?

2 THE WITNESS: [Interpretation] No, I don't.

3 JUDGE ORIE: Do you know his work? Do you know his work, his

4 expertise?

5 THE WITNESS: [Interpretation] No, I don't.

6 JUDGE ORIE: I have -- are you aware of the research he did as he

7 explained it to us?

8 THE WITNESS: [Interpretation] No, I'm not.

9 JUDGE ORIE: Are you aware of the experience he has gained during

10 his professional life?

11 THE WITNESS: [Interpretation] No, I'm not. No, I'm not.

12 JUDGE ORIE: Nevertheless you -- nevertheless, you permit yourself

13 to disqualify him and compare his expertise to yours, which is quite

14 interesting.

15 THE WITNESS: No. No.

16 JUDGE ORIE: Could you please focus on the question. Yes, could

17 you please focus on the question put to you by Mr. Emmerson. That is: Do

18 you have any comment to the testimony of Mr. Dourel that if you do not

19 know the details, the data of the circumstances, and if you do not know

20 what species of larvae or diptera are involved, that you couldn't draw any

21 conclusions from either the presence or the absence of these -- these

22 findings -- the presence or the absence of -- of a larvae or --

23 MR. GUY-SMITH: Excuse me, Your Honour. Just to make sure that

24 I'm clear. And perhaps I'm mistaken, but since -- I want to make sure I

25 know where we're going, for purposes of determining what examination, if

1 any, I need to make.

2 It was my understanding that the professor just commented with

3 regard to a Canadian article in which there was discussion over a fair

4 number - I think she's mentioned the figure of 7.000 different species of

5 larvae. So I don't know whether or not she was in fact addressing the

6 question that was being put forth by Mr. Emmerson or not. I'm trying to

7 just make sure that --

8 JUDGE ORIE: I got the impression that the witness was not

9 focusing on the answer of Mr. Emmerson.

10 MR. GUY-SMITH: Okay.

11 JUDGE ORIE: And, Mr. Guy-Smith, if Mr. Emmerson would disagree, I

12 would expect him to raise his voice.

13 MR. GUY-SMITH: Well, I -- I appreciate that. But since I --

14 I'm -- as I've indicated to the Chamber, I'm going to foreclose my

15 examination in order to expedite the matter.

16 JUDGE ORIE: Yes.

17 MR. GUY-SMITH: I want to make sure we can take care of it all at

18 once.

19 JUDGE ORIE: That's understood.

20 Mr. Emmerson, when I again phrased the question, was it a question

21 you had in mind?

22 MR. EMMERSON: I'm obviously keen to give the witness an

23 opportunity to comment --

24 JUDGE ORIE: Yes.

25 MR. EMMERSON: -- both on the a-- of the question but also the

1 relevance and the scope of expertise.

2 JUDGE ORIE: Yes. But --

3 MR. EMMERSON: I wouldn't have objected to when Your Honour took

4 issue to the witness, but --

5 JUDGE ORIE: No, I would not have any problem in the witness

6 giving her expression on the expertise of another witness and what her

7 experience would be, et cetera, et cetera. But then at least I expect her

8 that know what that experience is what expertise is --

9 MR. EMMERSON: Yes. I had understood that the Prosecution had

10 provided Professor Lecomte with Mr. Dourel's materials. And what -- my

11 note of her answer was that he was referring -- she was referring to the

12 fact that he's looking at the matter from a narrower perspective. I think

13 that was the words that she --

14 JUDGE ORIE: Okay. If that, please try to elicit this in

15 follow-up questions.

16 Please proceed.

17 MR. EMMERSON:

18 Q. Just so that we understand, Monsieur Dourel's report is something

19 I think you've seen; is that correct?

20 A. Yes, I have.

21 Q. And he's obviously focusing on forensic entomology.

22 A. Yes, indeed, and only on that.

23 Q. Yes. And you've seen his testimony, I think, in this court, have

24 you? Was that provided to you, a transcript of his evidence?

25 A. Yes, indeed.

1 Q. And I think he accepted for his part that he was looking at only

2 one of the criterion and that your report was based on a much wider range

3 of criterion. Did you see that?

4 A. Yes, that's right.

5 Q. And indeed, when your conclusions were put to him, he did not

6 disagree with them and indicate he was not in a position to challenge

7 them.

8 A. Yes.

9 Q. Just help the Trial Chamber understand, if -- if you can, please,

10 what the range -- what the difference is between the approach that you

11 take, as a forensic pathologist who's conducted exhumations, and the --

12 what you described as a narrow perspective taken by a technical forensic

13 entomologist.

14 A. I'm not going to refer to Mr. Dourel again. Mr. Dourel prepared

15 his report, and that's it.

16 But to answer your question, Mr. Emmerson - and I've said it right

17 from the beginning - I do not agree with the initial proposition you gave

18 me. It's not because you don't know the species of the fly. It's not

19 because you're not aware of the environment that you cannot take the

20 larvae into account. I do not agree with that at all. That's why I was

21 explaining to the Presiding Judge that the perspective of Mr. Dourel is of

22 a purely technical nature. It's much more -- it's much narrower. Any

23 forensic pathologist when observing a body will record whether there are

24 larvae or not or pupa or not. If larvae are recorded, even if you do not

25 know what species of flies it is, you have a larvae, you cannot ignore it.

1 That's why I do not agree with the proposition you gave me at the

2 beginning. I could have answered that way, but I was trying to explain to

3 you that the perspective adopted is completed different. One larva is one

4 larva. An absence of larvae is an absence of larvae. It might mean that

5 the bodies were located elsewhere.

6 I knew the superior of Mr. Dourel, and his superior wrote an

7 article stating that if there aren't any larvae, it means that the

8 larvae -- the body has been displaced, has been transported.

9 I do not agree with Mr. Dourel when he says that because there

10 are -- the fact of -- the absence of presence of larvae has no meaning.

11 It's -- it's one element amongst others that you have to take into

12 account. That's why I made that digression, and I'm sorry.

13 Q. Yes. Thank you for that explanation.

14 You also said -- you said a moment ago that it's something that

15 forensic pathologists habitually record. And little earlier on -- I think

16 the answer may have got lost in translation a little. A little earlier

17 on, you said that your inclusion of reference to the presence or absence

18 of larvae was something that you took from the forensic pathological

19 reports prepared by the Serbian forensic pathologists. Is that correct?

20 A. Yes, indeed.

21 Q. So they -- they -- they plainly considered it a -- a relevant

22 factor to record; is that correct?

23 A. Yes, of course. A forensic pathologist has to record everything

24 he or she observers -- observes. That's a rule, a cardinal rule that's

25 part and parcel of the work of a forensic pathologist. It's a work made of

1 observation.

2 Q. Can -- on this question of narrow and broad perspective and

3 totality, going back to the distinction that you drew between a criterion

4 for determining date of death or length of presence at the scene and an

5 element in an overall evaluation, can you help us, please, as to whether

6 or not the presence or absence of dipterous larvae was, in your judgement,

7 a sole decisive factor in any one of these cases?

8 A. For me, it's an element amongst others.

9 Q. Now, if we could just turn very briefly to your conclusions at the

10 conclusion section of your report, please. I want, if I may - just bear

11 with me for one moment - I want, if I may, to look first at paragraph 2 on

12 page 118, which summarises, obviously, information that you have recorded

13 earlier in the report.

14 Paragraph 2 records that "The six bodies, the Re bodies, found

15 around the economic farm are all at the same stage of decomposition, their

16 death being estimated at a relatively recent time, 8 to 15 days, or three

17 weeks for two of them."

18 And just to be clear, you stand by that conclusion,

19 Professor Lecomte?

20 A. Yes, I do. I wrote it and I stand by it.

21 Q. Thank you. I'll come back to the first part of paragraph 3 in --

22 in a moment or two.

23 Can I ask you, please, just to look at paragraph 3(b) for a

24 moment. And this relates to the remains recorded as having been recovered

25 in the canal itself.

1 You -- if you look at the top of page 119 - 119 - you conclude as

2 follows: "One cannot eliminate the possibility that the bodies which are

3 significantly skeletonised and without dipterous larvae were brought to

4 the canal subsequently and mixed with more recent bodies, their putrefied

5 soft parts having been washed away from inside the clothes by the

6 current."

7 Again, can I ask you, is that a conclusion that you stand by?

8 A. Yes, I do stand by it.

9 Q. Immediately beneath that, you deal, firstly, at (c) with those

10 bodies that were on the surface on the ground adjacent to the canal wall,

11 and you describe them as being very much changed, and you say that their

12 aspect suggests that death occurred more than 3 to -- or between 1 and 2

13 months before. But overall you say that:

14 "They are frequently incomplete, dislocated, without dipterous

15 larvae, although they were found on the surface of the ground in the open

16 air. The possibility that they were previously buried in the ground and

17 then transported to the site cannot be eliminated".

18 Is that a conclusion you stand by?

19 A. Yes, I do.

20 Q. And indeed -- and indeed you've told us today that you consider it

21 to be more likely than not that that is the position.

22 A. I stand what -- by what I wrote in my report, sir.

23 Q. Thank you. And then the bodies - at (d) - buried in the ground,

24 at the bottom of the wall, you say: "Are changed, fragmented,

25 skeletonised, covered in mud."

1 And again, in those case, you express the view that it is not

2 possible to eliminate the possibility of transport to the site.

3 And, again, is that a conclusion that you stand by?

4 A. Yes, I stand by this conclusion.

5 Q. And then finally you say this in the bottom part of the

6 conclusions: "Consequently, the circumstances of the deaths cannot be

7 determined, which leaves a large margin of doubt as to the exact place and

8 course of events."

9 And can we assume you stand by that conclusion as well?

10 A. Yes, I do stand by this conclusion.

11 Q. Thank you. Now, I'd like to turn back, please, to -- in the

12 conclusions section to paragraph 3(a), where you refer to two bodies that

13 are visible at the level of the overflow, which you say: "Showed signs of

14 immersion of approximately one week."

15 I wonder if you could be handed a blue file of photographs. This

16 is Volume 3 of the Haradinaj forensic cross-examination bundles, the blue

17 file.

18 If you could just turn behind tab 1 for a moment,

19 Professor Lecomte. I know that you've viewed the video itself. This is a

20 still photograph.

21 And, for the record, I'm referring to Exhibit D31.

22 Are these the two bodies that you are there describing?

23 A. Upon analysing and reading the documents and getting the documents

24 that I received, I can confirm those are those two bodies, yes.

25 Q. And if we can just invite you to look in a little bit more detail,

1 please, at the first of the two. This is behind tab 2, Exhibit D43.

2 Can you see that? I'll just ask you to confirm that that is a

3 photograph that you are focusing on, Professor Lecomte.

4 A. The one that you are showing me is not the photograph that I have

5 in the file.

6 Q. In fact there's a discrepancy. I'm sorry. It may be my fault.

7 First of all, I want you to look at tab 2 in the bundle, which is

8 Exhibit D43. And I think what we have on the screen is Exhibit D44. No,

9 I have it the wrong way round.

10 Could we -- could we put up D44 on the screen, please. I'm sorry.

11 It may be my mistake.

12 So let me put the question to you again. Behind tab 2 is a

13 photograph in more detail of one of those two bodies. There we are. And

14 that is Exhibit D44.

15 Now, we've -- and behind tab 3 is a more detailed photograph of

16 the other of those two bodies, which then is Exhibit D43.

17 Now, we've seen -- and I'm -- I know you have seen the video of

18 those two bodies which shows them in more detail. And I don't know

19 whether you recall that the fingers are intact and the toes are intact, as

20 they can be seen on the video.

21 A. I believe that I had seen some signs at the level of the hands,

22 but your picture is extremely unclear.

23 Q. Yes.

24 A. So I cannot work with this picture. I must have worked either

25 with -- either with a magnifying glass or otherwise in order to look at

1 the hands. The hands are something very important when a body has spent

2 time in the water. The maceration of the skin is a very important element

3 when it comes to forensic analysis. I don't remember if that was the case

4 for these two bodies, but I do remember that on some bodies I had noticed

5 a maceration of the palm of the hands, which was whitish, which meant to

6 me that those people had spent a certain amount of time in the water. And

7 I believe that they had spent approximately one week in the water.

8 I believe that those are those two bodies, but this picture does

9 not actually enable me to say anything precisely.

10 Q. I think you had the videotapes available to you of the crime

11 scene; is that correct?

12 A. Yes, we have looked at videos, indeed. But I believe that if we

13 put in the conclusion of the report that the body is showing signs of

14 immersion approximately one week long, it must mean that there was

15 maceration, rather the whitish appearance of the skin at the hands.

16 Q. Yes. I think if you look a little earlier in your report, under

17 the heading "Discussion," there are a series of subheadings. And -- and

18 under the subheading "The state of the bodies," you have two tables. And

19 immediately following the second table, you have made a further

20 observation in respect of these two sets of remains. This is -- this is

21 on page 112 of the French version. And I think it's clear, is it not,

22 from that that you were working from the video recordings; is that right?

23 A. That's correct, sir.

24 Q. And you -- you say there: "These bodies of increased volume have

25 preserved their natural skin colour without advanced putrefaction. The

1 hands are discoloured, whitish, and crumpled at the initial phase of

2 maceration, which indicates recent immersion, less than two weeks."

3 Is that right?

4 A. That's correct, sir. I do maintain what I -- I stand by what I

5 wrote.

6 Q. Is it possible, looking at those two photographs -- is it

7 possible -- and bearing in mind the video and your findings there, to give

8 an approximate, as approximate as you like, estimation of how long those

9 bodies had been dead?

10 A. The death must have been recent, because the -- the bodies are

11 still swollen and -- and, you know, it's very difficult to know exactly.

12 But what I was able to notice is that I had seen that their natural skin

13 colour was there. But the pictures that you are showing me here are not

14 precise enough. I would not be able to analyse anything from this

15 picture. If I said the bodies were swollen, I mean that they're not --

16 it's not bones, it's not a skeleton. We're under the impression that

17 those bodies were not put in the water for a long time, that they had not

18 spent too much time in the water. I believe that those bodies had fallen

19 in the water and they are in the water. These are not bodies that were

20 dead for a long time. They must have been dead not long before the

21 picture.

22 Q. Well, as I say, it's clear from your report that you were working

23 from the videotape. I don't play it unless anybody asks me to.

24 Could you now turn -- if you look in the bundle a little bit

25 further on, you will find some tabs numbered 18 onwards. And if you could

1 just turn, please, to the tab numbered 21 and 24. That's R-21 and R-24.

2 Now, you will there see the photographs that show the recovery of

3 the upper and lower part of a single body, R-21 and R-24. Do you see

4 those pictures? Do you see those pictures?

5 A. I am not able to find it. I cannot find it.

6 MR. DUTERTRE: [Interpretation] I am absolutely certain that those

7 exhibits are already in the file. Could we have maybe exhibit numbers?

8 Could Mr. Emmerson give us an exhibit number for those two documents. I

9 think that these documents were tendered through Mr. Dunjic.

10 JUDGE ORIE: [Previous translation continues] ... Mr. Emmerson, I

11 think that Mr. Dutertre made a good suggestion that whenever you draw the

12 attention of the witness to any specific document or photograph, that you

13 precisely as possible identify that photograph.

14 MR. EMMERSON: Yes. We have in the index, the records. It may be

15 that what I will need to do, because I think it's quite right to say that

16 since this index was prepared, some of these photographs have been

17 ascribed exhibit numbers.

18 JUDGE ORIE: Yes.

19 MR. EMMERSON: And so may I -- may I check the exhibit numbers and

20 read them into the transcript in due course, bearing in mind that we are

21 dealing here with the photographs behind tab 21/24.

22 Q. Now, Professor Lecomte, in your report, you --

23 JUDGE ORIE: Mr. -- Mr. Dutertre.

24 MR. DUTERTRE: [Interpretation] This is a constant request that we

25 make. This is not the first time that we make such a request. But I am

1 satisfied with this answer.

2 JUDGE ORIE: [Previous translation continues] ... Of course it

3 would have been easier if we would have them already available. At the

4 same time, to cause further delays for that reason.

5 MR. EMMERSON: I'm going to look at two tabs in this bundle.

6 JUDGE ORIE: Yes.

7 MR. EMMERSON: And once it's done, we will have the exhibit

8 numbers and we'll read them into the record as soon as they're available.

9 JUDGE ORIE: Yes.

10 MR. EMMERSON:

11 Q. Now, if you could find the relevant passage in your report. You

12 estimated that this body had been dead for approximately two months; is

13 that correct?

14 A. What body are you talking about? I'm sorry to ask you. I am

15 slightly lost. There are so many bodies thrown at me in a way that I

16 don't know which body you're mentioning.

17 JUDGE ORIE: [Previous translation continues] ... 21, which is the

18 same body as 24.

19 MR. EMMERSON:

20 Q. R-21 and R-24 are the upper and lower parts of one body and that

21 is the photograph you're looking at in a bundle.

22 Now, you estimated that that body had been dead for approximately

23 two months; is that right?

24 A. Yes. Yes, that's what I put. I put: "Approximately two months."

25 Q. Now, if you would -- just looking at those photographs, please, if

1 you could then turn to the autopsy report. I don't know whether you -- do

2 you read English, Professor Lecomte, or not? Do you read English?

3 A. Yes, I do.

4 Q. All right. If you could -- if you could turn, please, to just a

5 few tabs further back to I, to tab I, which is the --

6 JUDGE ORIE: Could Madam Usher insist the witness because in the

7 binder at 21 you have certain letters, A, B, et cetera. Mr. Emmerson is

8 now drawing your attention to --

9 MR. EMMERSON: I and J, which are --

10 JUDGE ORIE: 21/24 I and --

11 MR. EMMERSON: This is 65 ter 1791, I'm told.

12 Q. If you could just have a very brief look at that. Behind tab I is

13 the Serbian post mortem report on R-21. And behind tab J is the Serbian

14 post mortem report on R-25, which records the state of decomposition on

15 which you based your assessment. Is that correct?

16 A. Yes.

17 Q. Thank you. Could -- and I'm sorry to do this exercise with you in

18 this way, Professor Lecomte, but can I ask you, please, just to turn back

19 in the bundle to tab number 2, just to remind you of which photograph it

20 is that we're -- which body it is that we're talking about.

21 A. I don't understand your question, sir.

22 Q. I haven't asked you yet. No, I --

23 JUDGE ORIE: No question has yet been asked.

24 THE WITNESS: [Interpretation] I'm terribly sorry.

25 JUDGE ORIE: Madam Lecomte.

1 Would you just look --

2 MR. EMMERSON: Behind tab 2.

3 JUDGE ORIE: -- behind tab 2, where you'll find a photograph.

4 MR. EMMERSON:

5 Q. Just to remind you of that body. Yes?

6 Is it possible that the body behind tab 2 could be the same?

7 A. Given the state of decomposition given by my colleagues who made

8 the autopsy, I believe that this is not the same body, because my

9 colleagues - and I noted in the report that I gave you, that I handed you

10 - that those were two decomposed putrefied skeletalised body parts where

11 the soft tissue were absent, there is saponification on the bones and

12 there is no viscera, identifiable viscera. So we're not in the same

13 context here. Maybe you can explain to me what you want to do.

14 Q. [Previous translation continues] ... You've absolutely answered

15 the question. I'm not going to ask you to explain it any further. There

16 are reasons why I'm asking you these questions, but I don't need to

17 trouble you with the reasons at the moment.

18 Could you now turn, please, to tab 29, which deals with body R-29.

19 And you dealt with body R-29 in your report at page 69, and indeed you

20 included some of those photographs in the report. So if you could just --

21 in your report, you concluded, I think, that body R-29 had been dead for

22 more than two months; is that correct?

23 A. If this is what I wrote, it means that I had elements to say this

24 is a skeleton. It's dislocated. The soft tissues are putrefied. The

25 body -- the skin is saponified. And I also said that the right hand is

1 detached and that there are bones missing. The fact that bones are

2 missing, I don't know where they are, why they're missing.

3 Q. If you could just look through those photographs in the blue file.

4 You've got one at the top there. If you carry on through that tab, you'll

5 see there are some other photographs of these remains. Do you see that?

6 I don't think you have all of the photographs in your report, but you can

7 see the state of the body there, can you?

8 A. There must have been a numbering mistake. They had problems in

9 terms of numbering the bodies. I'm not sure that this is the same body

10 that you're showing me here. If you recall, there had been some mistakes

11 in the numbering of the bodies.

12 Q. Yes. I think -- I think we -- we managed to eliminate the

13 mistakes in relation to this group of bodies. So you can take it that

14 R-29 that appears in that collection of photographs is the same set of

15 remains as you examined the records on. And indeed, if you look at the

16 photograph in your report, you can see, I think, the correspondence

17 between that photograph and the photographs in this bundle.

18 My question to you is -- is a relatively short one. It's the same

19 question I asked you before. But if you have a look at the forensic

20 pathology reports of the Serbian forensic pathologists in relation to

21 R-29, this body is described as having been "in an almost complete state

22 of skeletonisation with no soft tissue, bones bare and dislocated, and all

23 bones found to have been partly connected by ribbons of soft tissue, which

24 were putrefied and dirty grey."

25 Now, is that description, then, consistent with your assessment

1 that this is a body that had been dead for more than two months?

2 A. This particular body does not correspond to this image. This

3 photograph does not at all correspond to this body. This is a body with

4 earth. The other one is in water, which confirms exactly what is said.

5 And I would like to reiterate this, is that the recovery of the body was

6 not made correctly.

7 MR. DUTERTRE: [Interpretation] I'm not absolutely certain that the

8 witness -- would it be -- would it be -- it would be good if the witness

9 could give us perhaps the numbers, the exact picture numbers that she is

10 looking at.

11 JUDGE ORIE: Mr. Emmerson, perhaps you --

12 MR. EMMERSON: Yes.

13 JUDGE ORIE: You asked the witness precisely on 29a, 29b, et

14 cetera. So in order to --

15 MR. EMMERSON: Yes.

16 Q. I'm going to ask you, first of all, about 29a. Do you see this

17 photograph here as I hold it to you and just make sure you're on the right

18 one.

19 Professor Lecomte, can I just ask you to look towards me for a

20 moment.

21 JUDGE ORIE: Could you look at Mr. Emmerson and see what he has --

22 MR. EMMERSON: Yes, you have that photograph, 29a.

23 THE WITNESS: [Interpretation] Yes.

24 MR. EMMERSON:

25 Q. And if you look at your report, at the second of your photographs

1 in your report for R-29. Do you have -- in your own report, Professor

2 Lecomte, just here.

3 A. No, I don't. I do not have the same elements. I worked based on

4 the report of my colleagues on the -- with regard to 29.

5 Q. Very well. I think, unhelpfully, we have R-28 on the screen at

6 the moment, which is even further confusing matters.

7 JUDGE ORIE: Yes.

8 MR. EMMERSON:

9 Q. I just want to be absolutely clear, Professor Lecomte. If you

10 look at the photographs --

11 A. I cannot answer.

12 JUDGE ORIE: [Previous translation continues] ... There's no

13 question put to you yet at this moment --

14 MR. EMMERSON:

15 Q. I just want to take this slowly, if I may.

16 JUDGE ORIE: Let's take it step by step.

17 MR. EMMERSON: Exactly.

18 Q. If you look at your report, your own report, you've made some

19 findings in relation to body R-29 on pages 69 and 70. Correct?

20 A. I did not understand your question. This is the problem. I do

21 not understand your question. I am lost with all these numbers and with

22 all these pictures.

23 JUDGE ORIE: [Previous translation continues] ... Mr. Emmerson

24 asked you now - and perhaps you'll look at your screen - is whether it's

25 true that in your report you deal with R-29 at the page you can see on

1 your screen now. That's the only question.

2 THE WITNESS: [Interpretation] Yes, R-29 is the body that is stuck

3 in the branches. And you showed me on this picture.

4 MR. EMMERSON: Yes. Thank you. Thank you.

5 JUDGE ORIE: In order to have the record clear, Mr. Emmerson, I

6 think the witness said that she described R-29 as she finds it on the

7 photograph behind tab 29a.

8 MR. EMMERSON: 29a.

9 JUDGE ORIE: Which is ERN U003-0042.

10 MR. EMMERSON: Exactly.

11 JUDGE ORIE: Okay. There we have.

12 MR. EMMERSON:

13 Q. That's step one.

14 If you look at page 670 [sic] of your report, you have appended

15 two photographs of body R-29.

16 JUDGE ORIE: Could that be --

17 MR. DUTERTRE: [Interpretation] There's no page 670. Maybe that's

18 a mistake.

19 MR. EMMERSON:

20 Q. Page 70 is what I said.

21 You see the photographs you have in your own report at page 70,

22 Professor Lecomte?

23 A. Yes.

24 JUDGE ORIE: The problem might be, Mr. Emmerson --

25 THE WITNESS: [Interpretation] Indeed.

1 JUDGE ORIE: The page preceding --

2 MR. EMMERSON: This is not page 70. This is --

3 JUDGE ORIE: It's two photographs.

4 MR. EMMERSON: This is page 68.

5 JUDGE ORIE: -- With -- between 69 and 71, isn't it? Because

6 that page, as far as I can see, doesn't bear a number.

7 MR. EMMERSON: Page -- two -- we have on the screen now page 68.

8 We need to have page 70 on the screen. Just two pages further on, and

9 should look like this.

10 JUDGE ORIE: Yes. I am aware of that.

11 MR. EMMERSON: There we are.

12 JUDGE ORIE: Yes. Now -- you see now the problem is -- where the

13 numbering is in a bit of an odd place.

14 MR. EMMERSON: There we are.

15 JUDGE ORIE: Yes, page 70.

16 MR. EMMERSON:

17 Q. Now, we can see the bottom of those two photographs is -- you've

18 labeled "R 29"; is that right? If you look on the screen in front of you,

19 Professor Lecomte.

20 A. Mm-hmm.

21 Q. Yes?

22 Now, your conclusion in respect of that collection of remains is

23 that the individual had been dead for more than two months; correct?

24 A. I do confirm this.

25 Q. Thank you very much. And finally if we could just turn back in

1 the blue file to your left there. If we could turn back to tab number 3.

2 And for the record, I'm referring to D43.

3 Again, I'm just asking you to make the -- the same comparison.

4 This body that we see in that photograph there to your left in tab 2, that

5 can't be the same body, can it?

6 A. I wish that this be clearer. This shows you the bad quality of

7 the recovery of the body work. The photographs are re-done, if you wish.

8 Some pictures are not clear. I worked on body R-29. That body had been

9 photographed when it was lifted or recovered on the branches. I worked

10 from the reports of my colleagues regarding R-29. This is what enables me

11 to say this. But I can absolutely not make a -- a correlation between

12 these two. It is impossible. I cannot work like this. I cannot answer

13 this question. This is why I was waiting for your questions. I cannot

14 compare the two bodies. I can absolutely not state anything precisely.

15 This is not a good forensic work. It would not be correct on my part to

16 state anything.

17 Q. I am -- let -- let me see if I can just take that one step further

18 with you. A simple question: Looking at the photograph in the bundle of

19 the body that you said had been immersed in water for less than two weeks

20 and that you told us was a recent death. Could that be consistent with

21 the pile of bones that we see in R-29?

22 JUDGE ORIE: I suggest the following: That we put on the screen

23 now the first photograph, that is, the body in the water; that we then

24 again have the R-29 photograph.

25 Madam Lecomte, you'll be shown two photographs: One of a body in

1 the water, and then another photograph which we discussed before, being

2 R-29. The question after you've seen these bodies, whether there is a

3 possibility that these are identical bodies; that is, at one moment, one

4 day the body in the water, then the next day I take it or the --

5 MR. EMMERSON: It's --

6 JUDGE ORIE: Within two days --

7 MR. EMMERSON: Within five days.

8 JUDGE ORIE: Within five days that that could have been the body

9 we've seen on the photograph of R-20 -- R-29.

10 So prepare for the comparison of these two pictures and whether

11 this could within a time frame of five days, whether you consider it

12 possible that that would be the same bodies.

13 Could we -- Mr. Emmerson, you have all the numbers. Could you --

14 MR. EMMERSON: Yes. The --

15 JUDGE ORIE: We'll start with the first one.

16 MR. EMMERSON: The first photograph is --

17 JUDGE ORIE: This one is --

18 MR. EMMERSON: No, it isn't this one. It should be D43.

19 JUDGE ORIE: D43.

20 MR. EMMERSON: Maybe if we could just enlarge that.

21 JUDGE ORIE: Yes.

22 MR. EMMERSON: And we can, of course, look at the video if need

23 be. But D43 is the first photograph.

24 JUDGE ORIE: Could it be enlarged -- could we zoom in a bit more

25 on the body here. That's perhaps too much. That seems to be a ...

1 Could you please look at this body, because you will be asked to

2 compare whether within a time frame of five days this could be the same as

3 the bodily remains we'll see on the second photograph.

4 MR. EMMERSON: And the second photograph is 65 ter number 870,

5 page 27. I think that one needs to come out a little.

6 JUDGE ORIE: Yes.

7 MR. EMMERSON: So that's the second photograph.

8 Q. Now, this is the body that you have estimated as being more than

9 two months old. And the question is: Could the photograph that we have

10 just seen turn into that in a space of a few days?

11 A. I cannot answer this question. I am not trying to avoid

12 answering, but we have clothing here, so we can compare the clothing. So

13 do the clothes that are described by my colleagues on the first picture,

14 do they correspond to this -- to those clothes.

15 MR. DUTERTRE: [Previous translation continues] ...

16 JUDGE ORIE: [Previous translation continues] ... Yes, could you

17 please move on, Mr. Emmerson. I'm also looking at the time. How much

18 time would you still need?

19 MR. EMMERSON: Those are my questions.

20 JUDGE ORIE: Those are your questions.

21 Mr. Guy-Smith.

22 MR. GUY-SMITH: I will stand by the agreement that I made.

23 JUDGE ORIE: Yes.

24 Mr. Harvey?

25 MR. HARVEY: I too.

1 JUDGE ORIE: Yes. Then Mr. Dutertre, I suggest that we have a

2 break now and that you'll start re-examination after the break.

3 MR. DUTERTRE: [Interpretation] Very well, Mr. President. But I

4 would like to say that I'm not certain if I will be able to finish within

5 the time that was given to me. I have a lot of questions -- or rather,

6 the cross-examination raised a lot of questions that I -- and I would

7 like to be able to put these questions.

8 JUDGE ORIE: [Previous translation continues] ... Yes, at the same

9 time, of course, it is a foreseeable result of the Prosecution not

10 presenting the second report of Professor Lecomte.

11 But let's have a break. We'll have a break for 20 minutes, Madam

12 le Professeur. I am aware of your time schedule.

13 We'll resume at ten minutes to 6.00.

14 --- Recess taken at 5.30 p.m.

15 --- On resuming at 5.53 p.m.

16 JUDGE ORIE: [Interpretation] Professor Lecomte, I would ask you to

17 respect the break between questions and answers in the interest of the

18 interpreters. Otherwise, it's extremely difficult for people to translate

19 when the Prosecutor and the witness speak the same language.

20 Mr. Dutertre, please.

21 MR. DUTERTRE: [Interpretation] Thank you, Your Honour.

22 Re-examination by Mr. Dutertre:

23 Q. [Interpretation] Madam Lecomte, on page 42 of today's transcript,

24 you said: "Dogs are not terribly interested in bones."

25 Do I understand you? Is this a problem of translation, or did you

1 indeed say that?

2 A. Dogs prefer flesh to bones. When there is flesh, the dogs will

3 rush at it, rather than going for the bones. I mean, the dogs will be

4 attracted to bones only if there is flesh attached to them.

5 Q. What are your exact qualifications in science of canines, foxes,

6 other rodents in general?

7 A. I worked at the National Dental Academy in Paris on all types of

8 bites, donkey bites, dog bites, shark bite, rat bites, and we have a

9 significant iconography at the forensic institute, and that is where I've

10 been working for over 20 years now, and I have seen many bodies found in

11 forests, in squats or other areas where there are rats and dogs, where

12 they -- they often gnaw away at their owners to wake them up and they're

13 dead.

14 Q. So on the basis of your knowledge, you exclude the fact that a dog

15 might run off with a bone.

16 A. A bone where there's no flesh attached, yes.

17 Q. A general question now: Could you describe the limits of an

18 expert assessment of the -- this file.

19 A. Yes. Obviously any expert report or assessment has limits,

20 whatever they may be. For a file such as this, this particular one, the

21 limits are to do with -- everything to do with the recovery of the bodies.

22 There were no overall photographs taken of the whole site. There were no

23 photos taken systematically, which is whatever we do whenever there is a

24 disaster, whenever there are many bodies, a systematic photo zooming in on

25 the bodies, starting from the broader photograph. That sort of work has

1 not been done. The photographic work was not carried out correctly in

2 situ. And that perhaps explains the discrepancies between certain bodies

3 and so on. And this really has been a major stumbling-block.

4 Q. Thank you. The photographic documentation and here I'm referring

5 to page 22 of your first report, saying that the video clips don't add any

6 additional forensic element and cannot be used in the context of a

7 forensic study.

8 And my question is as follows: What influence does this have on

9 your report?

10 A. Well, on my report, no -- I mean, the work that I had to do to

11 carry out the report, yes, was a considerable influence, because it was

12 necessary to keep looking at, to review and review and categorise and

13 classify things, and it was a huge amount of work and it wasn't made any

14 easier by these video clips.

15 In the video clips, we saw shots of bodies, of VIPs, of people, of

16 trees. The video clips were not carried out as -- as they should have

17 been, as rigorously as they should have been. It wasn't professional

18 work.

19 Q. So you didn't have enough in the way of documentation for you to

20 have a full overview; is that correct?

21 A. Well, I took the liberty of saying to you that the video clips

22 required a lot of work on our part for us to reconstitute and to work on

23 the report that I then submitted to you.

24 And my second comment is as follows: The -- there is no order in

25 the photographs. They are not technically correct. They're sometimes

1 fuzzy. And they're not the sort of photographs that we would take, where

2 we have the -- the -- starting with a general photograph and then zooming

3 in. Photographs are -- are somewhat random, a body here, a body there, a

4 tree, a spade. I mean, it's really not acceptable work.

5 Q. So that was difficult in your study. It was an obstruction.

6 A. It was an obstacle. It made it difficult for us.

7 Q. We have 2076 under 65 ter. It's the aide-memoire that was drawn

8 up. There are two tables. And it was sent last week to

9 Professor Lecomte.

10 MR. GUY-SMITH: Excuse me.

11 JUDGE ORIE: What will be the status of that document, or is --

12 MR. GUY-SMITH: And what is the basis of its use -- the legal

13 basis of its use? Because it includes, among other things, opinions made

14 by Mr. Dutertre himself as an advocate. It refers to precisely what he's

15 doing here.

16 JUDGE ORIE: Mr. Dutertre, what's -- how would you like to use

17 this or ...

18 MR. DUTERTRE: [Interpretation] I use it as an aide-memoire, as a

19 paper support to facility everybody's following.

20 JUDGE ORIE: For us or for the witness?

21 MR. DUTERTRE: [Interpretation] For everybody.

22 JUDGE ORIE: Because it's -- because it's, well, I'd say, to some

23 extent it's leading to conclusions, especially the first part, the --

24 MR. DUTERTRE: [Interpretation] Of course, I will ask questions,

25 Your Honour, on this part. It's mainly to have the exhibit numbers,

1 references, that sort of thing, and to speed things up, given that I don't

2 have much time.

3 JUDGE ORIE: Yes. I do understand.

4 Could we -- would there be a possibility the first -- the first

5 table to have the left column only on the screen, which gives us a --

6 where we find the reference to the report? And then you could ask

7 questions to the witness about it?

8 MR. DUTERTRE: [Interpretation] Indeed, Your Honour.

9 JUDGE ORIE: Yes. Would the Defence agree that is an appropriate

10 way of ...

11 MR. EMMERSON: I'm equally concerned about the second table,

12 because as Mr. --

13 JUDGE ORIE: Yes. But let's -- first start with the first table

14 and then see with the second table what to do with that.

15 Please proceed, Mr. Dutertre.

16 MR. DUTERTRE: [Interpretation]

17 Q. Professor Lecomte, you have two tables that were sent to you last

18 week: A first table that might have possible errors in it. Have you

19 taken -- are you aware of this document?

20 A. Yes.

21 Q. Do you agree with this document or only with part of it or not at

22 all?

23 A. This document is your document.

24 JUDGE ORIE: Yes, I think the witness answered the question in --

25 in the way I would expect her to answer this question.

1 Mr. Dutertre, what do you mean by agreeing with the document?

2 That it does exist or it that gives the right references to the report? I

3 mean --

4 MR. DUTERTRE: [Interpretation] With the mistakes that are

5 mentioned in the document, Your Honour. But given the answer, I can move

6 straight on to the different mistakes in order to obtain clarifications.

7 MR. GUY-SMITH: [Previous translation continues] ... We had at the

8 beginning, which is that he's indicating both factual and legal

9 conclusions and testifying and attempting to impeach his own witness.

10 JUDGE ORIE: Well, as a matter of fact, of course --

11 MR. GUY-SMITH: I think we --

12 JUDGE ORIE: We are in a situation at this moment, Mr. Guy-Smith,

13 where Mr. Dutertre called the witness and did not rely on potential

14 evidence because, as he explained to us, he considers it's not up to the

15 standards of what he expects from an expert in this respect and there are

16 too many mistakes.

17 Now, since the Defence has chosen to introduce this evidence,

18 under those circumstances, of course, Mr. Dutertre is not impeaching his

19 witness on any matter he wants to introduce through this witness, but he

20 more or less is in the position that he hardly has any possibility, since

21 that material has been introduced by the Defence.

22 MR. GUY-SMITH: Well, I -- I understand the Court's interpretation

23 of Mr. Dutertre's position. But seeing as that he sought to introduce one

24 report by the same expert witness and has found fault with the second

25 report, I don't think that -- that we can actually take that precise

1 position and, rather, he's avoiding conclusions that he doesn't care for.

2 JUDGE ORIE: Yes.

3 MR. GUY-SMITH: Which based upon -- based upon -- based upon the

4 fact, as we know, that the information that he received from another

5 expert, which was limited to a very specific issue, is something that he

6 prefers to the conclusions that this expert has made based upon -- based

7 upon a combination of factors.

8 JUDGE ORIE: Yes. That's --

9 MR. GUY-SMITH: My only issue right now -- my only issue right now

10 is the issue of him alluding to them as errors. Once again, if he wishes

11 to go to the first table and if he wishes to ask questions about the first

12 table, that's okay.

13 JUDGE ORIE: There are some matters which seems to be less

14 traumatic than others. Let's wait and see.

15 MR. GUY-SMITH: We --

16 JUDGE ORIE: I mean, where something was filmed, for example,

17 might be a matter which is not that critical to ...

18 Mr. Dutertre, you may proceed, but we find ourselves in a rather

19 sui generis position to expert reports. You'll be closely followed by the

20 Defence and by the Chamber. Please proceed.

21 MR. DUTERTRE: [Interpretation] Yes. I do appreciate that I will

22 be followed closely.

23 Q. Page 107 of your report, sixth line: "35 bodies or fragments of

24 bodies numbered R were found near the Radonjic canal." Is this insertion

25 exact? The professor said that there were a number of markers -- there

1 were a number of markers that have been attributed to clothing, items of

2 clothing. And this is confirmed on pages 24, 52, 63, and 78 of your

3 second report.

4 A. This is not a mistake. This is quite simply numbering that

5 forensic pathologists do when they find something close to a body. It's a

6 sort of numbering, 35, that has brought to 31.

7 Q. So it's not 35 bodies or fragments of bodies that have been

8 numbered. There are fewer, because there are certain markers attached to

9 clothing.

10 A. Clothing, yes. And there is one where there are some bones. So

11 these are fragments of bodies or -- they're fragments. It's the numbering

12 system. That's how it's numbered.

13 JUDGE ORIE: Mr. Dutertre, let's move on. This seems not to be a

14 very critical issue. Please proceed.

15 MR. DUTERTRE: [Interpretation] Well, it goes to show that there

16 are a number of errors that have crept in and they're not insignificant.

17 And I just wanted to draw this to your attention.

18 JUDGE ORIE: [Previous translation continues] ... But just putting

19 the question referring to numbers assigned to clothes. And, of course,

20 the Chamber is aware that sometimes two numbers cover one body. So

21 therefore it's -- does it affect in any way the conclusions? Because

22 that's, of course, the major issue, if we are talking about an expert

23 report.

24 Please proceed.

25 MR. DUTERTRE: [Interpretation] Yes, the question is really to do

1 with accuracy of the work.

2 Q. Page 4 of your report, you're talking about the numbering, "E,"

3 for the economic farm, and you referred to R-5 and R-7 that were close,

4 that they were compared, and they're just from one body.

5 A. Actually, it's Re-5 and Re-7. It's a typo, another typing error.

6 But that is part -- to be seen in an overall context in this work.

7 Q. Page 113. Page 113, paragraph 4 of -- R-21, R-22, R-23, and R-24.

8 These are the body references. And you say: "R-21, R-22, R-23 -- it's

9 R-21, is it, and not R-20? So it's another typo?

10 A. There are typos all over this report. You have to take the report

11 as a whole and not just take a look at this specific typo. Because

12 obviously it's taken then as part of an overall system.

13 Q. On body R-10, page 33 of the report, it says that the body is

14 visible, it's on the earth with -- it's rocky ground. It's the bottom of

15 a concrete wall. And you say it's in the open air and there's no

16 desiccation.

17 Now, I understand that as the body is in the open air, is one of

18 the elements that you've used to draw your conclusion as to the time --

19 the -- the length of -- the stay of the body at that place.

20 A. Amongst other things.

21 MR. DUTERTRE: [Interpretation] I'd like us to see video P452, from

22 minute 24.24 to minute 24.35.

23 [Videotape played]

24 MR. DUTERTRE: [Interpretation]

25 Q. So this is the situation of body R-10 before it was exhumed. You

1 see it on a pile of rubble.

2 And now I'd like us to see the same video from 51.50 to 1.00.36.

3 THE INTERPRETER: Correction: From 59.50 to 1.00.36.

4 [Videotape played]

5 MR. DUTERTRE: [Interpretation] I think we'll stop at 1.00. That's

6 marker 10. I don't think anyone would dispute that. That's on the

7 screen.

8 So we'll continue.

9 [Videotape played]

10 MR. DUTERTRE: [Interpretation] We can stop there.

11 Q. Professor, the body R-10 that we see here, do you think it's

12 visible and in the open air?

13 A. First of all, you showed me a video where there was a pile of

14 rubble. Well, I can accept that it was under the pile of rubble that the

15 body was to be found.

16 Then in the second part to have video that you show me, you can

17 see people raking away the rubble to find a body or to reveal a body

18 covered in the -- in soil underneath this.

19 But let me say one thing: The body has not been buried, because

20 if you're burying, you dig a hole to place the body in it.

21 Q. My question is: Is it visible in the open air?

22 A. It's visible. There are bones that you can see. On the photos

23 that I have based myself on, we can see that it's not buried. It's not in

24 the earth. "Visible" is a term that -- well, once again, is perhaps too

25 important for you. I think really it would have been important to point

1 out to the expert that all words count from the point of view of their

2 significance and so on.

3 Now, I would say the body is not buried in the earth. There are

4 stones. There's rubble around. There are many stones. It's at the base

5 of a concrete wall. These are the photos that I used to say it was

6 visible, because you can see the emerging body, and that's what you see on

7 the body -- on the photos that I used.

8 We're not having to use a digger, an excavator to get the bodies

9 out.

10 Q. You --

11 JUDGE ORIE: I think so we -- we are at this moment we are

12 discussing whether the body -- whether bone fragments were visible or

13 whether the whole of the body was visible. We've seen the pictures. Some

14 elements of the body were apparently visible. Many others not. That's --

15 would that ...?

16 MR. DUTERTRE: [Interpretation] No, Your Honour. There were no

17 parts of the body that were visible. It's rather long -- rather lengthy

18 to show it all.

19 JUDGE ORIE: One of the first things I saw on this -- first of

20 all, it's Professor Aleksandric -- the bone fragments that were on the

21 surface of a heap of gravel. And I saw him manipulating what appeared to

22 be a lower jaw and put that at the side. At least, the person in the

23 photograph.

24 But let's -- is it -- how important is it to have a long

25 discussion on this?

1 MR. DUTERTRE: [Interpretation] Your Honour, the importance is as

2 follows: If we draw conclusions from the fact that a body was in the open

3 air or wasn't in the open air, in order to determine whether it spent a

4 long period or a short period in situ, then the starting observations have

5 to be precise. R-10 was not -- neither visible nor in the open air. It

6 was under a pile of rubble. And the bones that were visible - that's

7 R-10-1 - and I'll show you that, if necessary, through a series of photos.

8 JUDGE ORIE: We've seen the photo -- we've seen the video and

9 we've heard the comment by Professor Lecomte. What more to -- to be

10 there? Let's move on.

11 MR. DUTERTRE: [Interpretation] I do indeed think this is clear.

12 Q. Professor, you say that the body R-10 is in a ventilated area. Do

13 I understand correctly that this is a criterion that's used in your

14 conclusions as well?

15 A. When a body is not buried or in a confined space - in other words,

16 really buried, some 50 to 80 centimetres below the surface or in a

17 confined space - then it's under stones or rubble. And there's always air

18 that creeps in. There's movement of air inevitably, always. Even if

19 you've got a pile of stones-. So that's a criterion that ... Well, it's

20 not in the open air in the same way as other bodies are. I will agree

21 with you when you say that. There is mud that covers it. But it's not

22 buried. It's on the earth.

23 Q. I understand. I understand.

24 JUDGE STOLE: Just a moment. This conclusion that we find in the

25 middle here: "The heap of gravel where R-10 is found is not a ventilated

1 environment." Whose conclusion is that? Is it an expert conclusion or is

2 it your conclusion?

3 MR. DUTERTRE: [Interpretation] Mr. Aleksandric himself says that

4 the body was buried and that he unearthed it from the pile of rubble.

5 JUDGE ORIE: Yes. But -- no, Mr. Dutertre, to get this quite

6 clear, there -- this box is -- or this column says "commentaire." Now,

7 whose comment is it? That was the question.

8 MR. DUTERTRE: [Interpretation] These are from the OTP, and there

9 are comments on the right-hand side.

10 JUDGE ORIE: Yes, that's another matter. But the middle column,

11 which I consider not to be -- on the screen, are comments by the Office of

12 the Prosecutor.

13 JUDGE STOLE: Thank you.

14 MR. DUTERTRE: [Interpretation] Yes, absolutely, the OTP.

15 Q. On the image, you can see a trace of humidity, Professor. Does

16 this prove that this is a ventilated area?

17 A. I think that there's a fundamental error here. When you say that

18 the Professor Aleksandric said that he unearthed the body, "unearthed"

19 means that the body had to have been buried under the earth. But you

20 can't unearth somebody from under a pile of rubble. You push away a pile

21 of rubble. You don't unearth.

22 Secondly, there's another important thing, the trace of humidity.

23 Well, I agree that, yes, there is humidity here, and I think that the

24 storms and the heavy rainfall that occurred -- because it's a slope, after

25 all. There was heavy rainfall that came down and brought down rubble,

1 which came up against the wall, which explains the humidity and the -- the

2 body that's next to it. So there's no desiccation of this body, of the

3 clothing, of the body of anything.

4 But really there's something very important I would like to say

5 here. In order to assess and understand all of this, let me come back to

6 what I've already said. You need to take a look at a number of different

7 elements. You can't just take the fact that there's no desiccation.

8 Well, obviously there's no desiccation, because as you say, you were close

9 to -- well, I mean, there's something you can see that's important. You

10 can see barbed wire. Nobody said anything about the barbed wire. Where

11 does that come from?

12 JUDGE ORIE: [Previous translation continues] ... Madam Lecomte,

13 Madam Lecomte. From the -- both language, I do understand that

14 Mr. Dutertre is not in any way seeking further comments on the

15 dessechement du corps but, rather, on the ventilation.

16 Let's move on, Mr. Dutertre.

17 MR. DUTERTRE: [Interpretation] Yes, indeed.

18 R-14 and R-15 now, Your Honour. On pages 41 and 43 of the report.

19 So R-14, R-15, pages 41, et seq.

20 Q. For R-14, "absence of dipterous larvae, the body is above ground

21 in the open air."

22 And for R-15, "the body was found on the earth next to rocks."

23 Now, I understand that the fact that the body is in the open air

24 is an element that makes it possible for you to draw your conclusions as

25 to the length of stay of that body at that particular site.

1 A. And I've said - and I'll say it again - that saying that there's a

2 very short stay. To do that, we draw on a number of arguments.

3 Q. Yes, I understand. But that's one of the criteria that you used.

4 A. It's one of the elements, not criteria. Let me say that when a

5 body is not buried, if it's not buried in a confined space, it is

6 ventilated, even though there are stones around. And if you take a look

7 at the photos that I used on my work - these are the photos that you have

8 on page 42 - you can see that we can see the body parts. In fact, it's

9 numbered.

10 Q. Yes, indeed. Thank you. And I'll come back to those photos.

11 Dr. Aleksandric's report, Exhibit 412, page 3 - but I'll quote it

12 to you - states: "[In English] About 2 metres to the right of the body

13 labelled R-10, that is to say, at the end of the outside edge of the

14 concrete wall -- outside edge of the concrete wall, there was a pile of

15 gravel. There were no human bone fragments on or around it. However,

16 since there was projectile damage on the wall overlooking the pile of

17 gravel, it was suspected that there might be a body underneath the pile of

18 gravel. Once it had been removed, two more bodies were discovered and

19 subsequently labelled R-14 and R-15."

20 [Interpretation] I'd like to show the video P452, 08.15 to 08.19,

21 which shows you the pile of gravel at issue.

22 [Videotape played]

23 MR. DUTERTRE: [Interpretation] It would seem there's a technical

24 problem here. Well, let's go to 36.02 to 36.49 seconds.

25 [Videotape played]

1 MR. DUTERTRE: [Interpretation] Here we can see people who are

2 digging into this pile.

3 MR. GUY-SMITH: Excuse me. I would ask Mr. Dutertre to not

4 comment on what we are seeing. We can all see what's going on.

5 JUDGE ORIE: Mr. Dutertre.

6 MR. DUTERTRE: [Interpretation] I agree.

7 [Videotape played]

8 MR. DUTERTRE: [Interpretation] We can stop here. And now I'd like

9 to move on to a further -- another video clip, 65 ter 2074 from 7.26 to 8

10 minutes 45 seconds.

11 [Videotape played]

12 MR. DUTERTRE: [Interpretation] We could start at the beginning.

13 [Videotape played]

14 MR. DUTERTRE: [Interpretation] Here we go.

15 [Videotape played]

16 MR. DUTERTRE: [Interpretation] We can stop here at 7.50. We've

17 seen enough.

18 I'd like an exhibit number for this video, Your Honour, if

19 possible.

20 JUDGE ORIE: Mr. Registrar.

21 THE REGISTRAR: This is Exhibit P929, Your Honours.

22 JUDGE ORIE: Any objection? No objection. Then it's admitted

23 into evidence.

24 MR. DUTERTRE: [Interpretation]

25 Q. Professor, bodies R-14 and R-15, do they look like bodies that are

1 in the open air, as is stated in your report?

2 A. Let me come back to two points. First of all, this footage is

3 just a video clip and just that. The report of the professor you've

4 mentioned - I don't remember his name - has as much value as my own

5 report.

6 I repeat that we are here to help the judicial system. We are not

7 prosecutors here. I'd like to say that all the things that are removed

8 with shovels here are rubbles, are stones. The body was not underground.

9 The body was not buried. And we can see that they remove this rubble to

10 the other side.

11 You can interpret any photograph any which way. Personally, I

12 prefer to base myself on general observations. I don't think you can make

13 any final conclusions based on documents that are not detailed enough.

14 These bodies are above the ground but under a heap of gravel. It's not

15 cement, and the air -- it was very possible for the air to reach the body.

16 JUDGE ORIE: Mr. Dutertre, the Chamber is not assisted by an

17 ongoing further debate on whether a body under a heap of pebbles, where we

18 do not know to what extent it allows further ventilation or not, or

19 whether that's a body covered by or in the earth or upon the earth but

20 covered by -- that's -- all these examples now have shown that

21 Professor Lecomte considered that if a body is not, I would say, solidly

22 embedded in the earth itself but if it's -- even if it's covered by quite

23 a lot of things that she considers, that this is not in the ground but on

24 the ground and that ventilation is still possible.

25 We are not much assisted by -- I don't know what -- what else

1 there to come, but these are almost semantic discussions, rather than

2 anything else.

3 Please proceed.

4 MR. DUTERTRE: [Interpretation] I believe that it goes beyond a

5 semantic discussion.

6 JUDGE ORIE: Mr. Dutertre, you may proceed.

7 MR. DUTERTRE: [Interpretation] Yes, let me proceed.

8 Q. When it comes to entomological matters, do I understand well that

9 you've used the entomological data as one of the elements allowing you to

10 draw your conclusions?

11 A. Yes, indeed.

12 Q. Do you have a university background as an entomologist?

13 A. No, but I am a trained pathologist and a pathologist is supposed

14 to -- I'm a trained forensic pathologist, which is general training. We

15 work on toxicology, on all the domains covering forensic pathology. We

16 also study soil, bites, everything, and also vermin, because we are

17 supposed to describe the vermin we find. We are not supposed to interpret

18 it, but we are supposed to describe what we find.

19 MR. DUTERTRE: [No interpretation]

20 JUDGE ORIE: [Previous translation continues] ... Yes,

21 Mr. Guy-Smith, you were on your feet. I did not immediately respond --

22 MR. GUY-SMITH: Well, there were a couple comments I was going to

23 make, with regard to the last question asked by Mr. Dutertre. First of

24 all, once again, it seems that we -- that he is intending to impeach his

25 own witness.

1 Second of all, we have seen a number of experts. Individuals have

2 been called by the Prosecution for their expertise who have commented on a

3 myriad of fields.

4 With regard to the issue of pathology, I believe it's been

5 recognised by the Chamber that a pathologist takes into account multiple

6 disciplines in order to make a determination of their ultimate

7 conclusions.

8 JUDGE ORIE: Yes. That's on the record. Mr. Dutertre, please

9 proceed.

10 MR. DUTERTRE: [Interpretation]

11 Q. Mr. Dourel told us that in the institute he works for, people

12 spend one year training to identify various species of flies or larvae.

13 What sort of training do you have in terms of identifying -- larvae

14 identification?

15 A. No, we can't go on like this. I can't go on like this, because at

16 the ICRG, where -- the institute you're referring to, I've told you that

17 they study the development of a larvae in a jar. They conduct research.

18 They bury sheep and unearth them and so on and so forth. But that's not

19 what I do. I am a forensic pathologist, and my colleagues, my Serbian

20 forensic colleagues made a number of observations.

21 I'm saying that dipterous larvae is different from coleopterous

22 larvae. In one case you have little legs. The coleoptera has little legs

23 and it comes third. The dipterous larvae is a maggot. It's a fly. And

24 of course I've got some training in that matter. Of course it's not the

25 type of training you would like me to have, but I've got the same type of

1 training as any other forensic pathologist in the world, the basic

2 training that allows me to make the difference, the distinction between

3 the coleoptera larva and the dipterous larva. I'm not -- I'm not blaming

4 you in any way. I'm just trying to get things quite clear.

5 Q. Would you agree that Mr. Dourel has a higher degree of

6 specialisation when it comes to entomology?

7 A. Probably. I don't know him. I knew his former superior --

8 JUDGE ORIE: [Previous translation continues] ... Mr. Dutertre.

9 THE WITNESS: [Interpretation] I don't see what it has to do with

10 this.

11 JUDGE ORIE: Mr. Dutertre, we're not inviting this witness to

12 comment on the level of expertise of another witness.

13 It may be clear that if you're a general practitioner that you

14 might have quite some knowledge of the functioning of the heart but

15 perhaps not as much as a cardiologist. So therefore that's understood.

16 It's clear from the testimony of Mr. Dourel that -- that he focused and

17 spent more time on these issues than a general medical pathologist would

18 do. That's clear for the Chamber. It -- I don't think that this question

19 and -- and the answer would -- would essentially contribute to the

20 understanding of this issue by the Chamber.

21 Please proceed.

22 MR. DUTERTRE: [Interpretation] I seem to understand that you do

23 not share the views of Mr. Dourel. You do not agree with his conclusions.

24 Let me take a number of examples. When you talk about R-1, R-2,

25 and R-4 in your report, you mention that diptera are present. So the

1 presence of diptera is one of the elements you've used to draw your

2 conclusions.

3 A. It's one of the elements I've used amongst other elements.

4 I would like to stress one thing: I believe that I'm being -- I'm

5 being put on trial here. My colleague is working on larvae. My job is to

6 work on the -- to describe the appearance of a larva. I'm not going to go

7 into too much detail about that. We do not have the same field of

8 expertise. His perspective is much narrower. He's a specialist, a

9 technician, a fly technician, if I may say so. I'm not in the same time

10 in the same line of work, so I can't say anything about what he said.

11 My Serb colleagues who prepared the autopsy reports also recorded

12 the larva -- the dipterous larvae. They mentioned that there were maggots

13 and nothing more. I don't see what it adds to the report. They just

14 mentioned that there were dipterous larvae.

15 JUDGE ORIE: Madam Lecomte, don't feel attacked. At least, it's

16 not the Chamber's wish that anyone here is attacked. Which doesn't mean

17 that the testimony of a witness or an expert could not be tested. I think

18 that Mr. Dutertre is trying in his way to test your testimony.

19 And could you please focus on the questions specifically put to

20 you.

21 Mr. Dutertre, you know there's a saying that -- about specialisms

22 that specialising means knowing more about less until finally you'd know

23 everything about nothing. Please --

24 MR. DUTERTRE: [Interpretation] Less and less about -- more and

25 more about less and less. Yes, I know.

1 Q. In their reports, your Serb colleagues do not use the expression

2 of "dipterous larvae." At page 6594 [as interpreted] of the transcript,

3 Mr. Dourel states that: "The conclusions in the autopsy report related to

4 R-1 do not allow the conclusion that these are dipterous larvae."

5 He also says that there are coleopterous larvae that -- and it's

6 very difficult to differentiate them from dipterous larvae with the naked

7 eye.

8 The same applies to R-2 and R-4.

9 Since you did not have any larvae samples at your disposal and

10 since the only --

11 JUDGE ORIE: Mr. Dutertre, I read on the record page 6594.

12 Checking the testimony of Mr. Dourel, I'm in the 8.000s, rather than -- or

13 am I?

14 MR. DUTERTRE: [Interpretation] It's page 8594.

15 JUDGE ORIE: Thank you. Please proceed.

16 MR. DUTERTRE: [Interpretation]

17 Q. You did not have any larvae samples at your disposal and the

18 conclusions of the Serbian forensic specialists regarding R-1, R-2, R-4

19 are very limited. Can you be very sure that we are talking about

20 dipterous larvae or coleopterous larvae?

21 A. I'm going to try to stay very calm, but the dipterous larvae is

22 the most frequent larvae, the most -- that occurs the most frequently on a

23 body, because it's a fly. Whether the coleoptera is a sort of beetle. It

24 does not arrive on the body immediately. The fly comes immediately on the

25 body, lays an egg that produces a larva. A coleoptera is a type of beetle

1 that has little flies. It will come -- arrive later on the body and the

2 larva is different. I cannot say whether it was a coleopterous larvae or

3 a dipterous larvae, but considering that you have flies everywhere, on

4 pieces of cheese or whatever, flies produce dipterous larvae. That's it.

5 But I did not go beyond that. I did not go and see whether --

6 what type of insects they were dealing with. I did not have the necessary

7 data. And the technician you ask, you -- you referred to is right when he

8 says that you can't tell the difference. I'm saying that in 99.9 of the

9 cases the first on the body are flies and not coleopteras.

10 Q. So you can't say with absolutely certainty that it's dipterous

11 larvae and not coleopterous larvae?

12 A. I'm saying it's a certainty of 99.9 per cent.

13 Q. On body R-3 -- or should I understand that the absence of flies or

14 dipterous larvae is also an element that may enable you to make your

15 conclusions?

16 A. These are not official conclusions. I believe that I sent you the

17 report. I thought that you read my report. I said it tells us -- it

18 tells us -- it indicates, indicates. So I answered earlier that it's an

19 ensemble of elements and it is the practice of exhumed bodies enable us to

20 say that it indicates something. This is not a strict argument. It's not

21 a definite argument, a formal argument like that grass is not a formal

22 argument. But this is what is seen most often in most cases.

23 Q. Thank you very much. Mr. Dourel, on page 8595 and 8596 of the

24 transcript stated that at a certain point in time the larvae go on to

25 immigrate on to -- to burrow down into the ground and in order to make--

1 to take samples, you have to take samples of the soil. And if the samples

2 are not available, it is impossible to exclude that a body without any

3 larvae that was not colonised by the larvae, where it is found by larvae

4 that had immigrated down into the soil, that had migrated down into the

5 soil, rather.

6 And you are describing R-3 as a body that had a very advanced

7 state of skeletonisation, page 18 in French.

8 The expert Mr. Dourel explained to us at page 8565 - 8605,

9 rather - 8605 of the transcript that a skeletonised body without any soft

10 tissues is a body that is no longer attractive for flesh-eating insects.

11 Can you -- you are confirming to us that there were no soil

12 samples for body R-3.

13 A. I will not answer this question, because I do not agree. For two

14 reasons: First of all, flies go close to the body. If there is a

15 skeletised body, which is the case of this body, we must not forget that

16 the body had clothes totally impregnated of putrid matters and this

17 attracts flies.

18 Q. You did not answer my question.

19 A. Your question is way too long. You have to ask short questions so

20 that I can answer your question.

21 THE INTERPRETER: Overlapping.

22 JUDGE ORIE: What type of questions Mr. Dutertre should put is

23 finally for me and for the Chamber to decide. Nevertheless, the

24 suggestion made by Madam le Professeur is a good one, that instead of

25 summarising something -- and your question actually, Mr. Dutertre, you are

1 explaining why you are putting your question.

2 MR. DUTERTRE: [Interpretation] I will do so.

3 JUDGE ORIE: But the question finally just was whether there were

4 any ground samples taken and available to Madam Lecomte. And I think she

5 then, of course, commented on the introduction to the question rather than

6 answering the question.

7 Do I understand you well, Madam Lecomte that, no ground samples

8 were available to you?

9 THE WITNESS: [No interpretation].

10 JUDGE ORIE: Thank you. Please proceed.

11 THE WITNESS: [Interpretation] That's correct, Your Honour.

12 But I may say something that is very important, if I may. This is

13 really very important. The collection of the soil sample is not

14 necessarily in order to know whether there were larvae. The larvae, when

15 they go on to a body, they -- they land on the clothes that had putrid

16 elements and they lay eggs inside the clothes and then the larvae, they

17 migrate in order to go to the darkness, 2 or 3 centimetres into the soil.

18 So 2 or 3 centimetres of a sample is very easily taken, when it is a

19 sample of 2 or 3 centimetres below the earth.

20 Every word of his report are as important as my every word, so I

21 cannot say or give any -- or give comments that are so general. I do not

22 agree with this procedure.

23 JUDGE ORIE: Madam Lecomte, I wanted to demonstrate that it was

24 just a question about a fact, nothing else, at that moment.

25 But, of course, your expertise, of course the Chamber will finally

1 determine whose expertise assists in making the final determinations the

2 Chamber will have to make.

3 Mr. Dutertre, you may proceed.

4 MR. DUTERTRE: [Interpretation] Thank you very much, Mr. President.

5 Q. My question is as follows: Since there were no samples taken from

6 the soil, could you therefore exclude absolutely that R-3 was not

7 colonised prior to the place where it was found?

8 A. I cannot answer such a question. First of all, because you should

9 have asked the professor that was on site if he had made some -- taken

10 some samples. I don't know what he did.

11 And second of all, it doesn't mean that because there were no

12 samples taken, that there were no larvae, because there can be some traces

13 of pupa. The pupa is the envelope of the larvae before they go away. And

14 they are positioned, placed on clothes or on body parts. So if they are

15 not described, it means that there are none. But the samples are --

16 taking the samples or not taking the samples is not a problem.

17 The forensic expert -- you know, we work in two different fields.

18 You should have asked your expert to come and see us, to come and see us,

19 to work with us, because then we would have known. This is two very

20 distinct fields.

21 Q. On page 8618 of the transcript, Mr. Dourel states that the

22 absence -- the visible absence of larvae does not mean that there are no

23 diptera larvae. He said that some maggots can exist, they are very small,

24 that belong to the calliphoridae family, reputed to come to -- onto the

25 body during the last phases of decomposition or putrefaction and that they

1 are very small in size. Is this an element that you took into account

2 when you carried out your expertise?

3 JUDGE ORIE: Mr. Dutertre, let's try to -- to separate matters

4 very clearly. From what I understand, from the testimony of this witness,

5 she has seen photographs and a video and has seen reports but has not

6 personally observed the situation.

7 Now, whether this expert has considered the possibility that

8 larvae that were not seen by others and not reported were there is, of

9 course, a very difficult question. It means that whether she took into

10 account - and I didn't get that impression from her testimony until now -

11 whether she took into account the possibility that the experts who were at

12 the site may have overlooked something -- because let's -- let's try to --

13 to -- to clearly understand what the situation is.

14 If no larvae are reported -- there are two possibilities: Either

15 they were there or they were not reported; or they were not there. That's

16 the situation. How could possibly this expert give any comment on that?

17 If we would ask the expert: Have you also drawn conclusions on

18 possible errors made by the experts who were on site, then I think we

19 would easily fall into speculation rather than in clarifying issues of

20 fact.

21 Please proceed and formulate your questions very precisely in this

22 respect.

23 MR. DUTERTRE: [Interpretation] I shall try, Mr. President, but I

24 will go on to another subject because of our time constraint, but I do not

25 think that I'll be able to finish.

1 Q. Anyway, regarding the --

2 THE INTERPRETER: The interpreter did not hear concerning what.

3 THE WITNESS: [Interpretation] I have always -- I studied for 12

4 years. I'm not a botanical expert. You asked me the question. I will

5 ask my colleague. A third report to work with other experts, the experts

6 in the field of larvae, flies, and experts on the agronomy. I am very sad

7 that you did not ask me to bring a third report. You are asking me to

8 give my opinion on a report that I looked at very briefly.

9 I believe that that report was not sufficiently close to reality

10 in order to comment on.

11 JUDGE ORIE: Madam Lecomte, I invited Mr. Dutertre to carefully

12 and precisely formulate his question. However, you started already

13 answering a question which was not yet put to you.

14 So Mr. Dutertre is again invited to put a question to you.

15 MR. DUTERTRE: [Interpretation] The question that was not entered

16 in the transcript was to know whether you or Dr. Vorhauer had a university

17 degree in plant studies.

18 A. I will repeat. I studied for 12 years, and when it comes to a

19 forensic pathologist, every forensic pathologist must work with other

20 fields and connected fields, and I insist to work with other people, with

21 other experts who are very, very precise, specific. I don't know if you

22 answered -- hear me. We always have to work with other experts.

23 Every time I carry out an expertise, I always call upon another

24 expert on another topic; rather, on -- an expert in the matters of

25 cardiology or --

1 Q. Right.

2 A. But I really insist on saying this: You cannot attack me on

3 saying that I don't have diplomas on this or that, on flies or whatever.

4 I have to say that as a good expert witness, I have to surround myself

5 with other experts and we work together as a team. This is the work of a

6 good expert.

7 JUDGE ORIE: This is not an attack on you. It is a --

8 THE WITNESS: [Interpretation] Yes, it is. Yes, it is.

9 JUDGE ORIE: The Chamber doesn't consider it like that. But it is

10 a way -- a technical way -- and we -- unfortunately, we are lawyers. It's

11 a technical way of establishing what education --

12 THE WITNESS: [Interpretation] No, no.

13 JUDGE ORIE: -- you had and what education someone has not had.

14 Let's not enter into a debate, also because I know your traveling

15 schedule. At least --

16 THE WITNESS: [Interpretation] No, no, no.

17 JUDGE ORIE: If you feel attacked -- but Mr. Dutertre will now

18 show that he's not attacking you. He's asking questions to you.

19 Mr. Dutertre, proceed -- please proceed.

20 THE WITNESS: [Interpretation] No, no, no, no. No.

21 JUDGE ORIE: Madam Lecomte -- at the end --

22 THE WITNESS: [Interpretation] Mr. President, I do not agree.

23 JUDGE ORIE: At the end of your testimony, I'll give you an

24 opportunity to make the comment you'd like to make at this moment. We are

25 under some time restraints. You'll get an opportunity for that.

1 Mr. Dutertre will now put the next question to you.

2 Please proceed.

3 MR. DUTERTRE: [Interpretation] Thank you very much, Your Honour.

4 I would like to play a video that already received an exhibit

5 number. It's Exhibit Number V00748 from minute 5 to minute 5.11. I do

6 not have the exhibit number any more, but I -- I think that you found it.

7 [Videotape played]

8 JUDGE ORIE: Mr. Registrar, I hope you can find it as well, the

9 exhibit number. Please proceed. And let's play it.

10 MR. DUTERTRE: [Interpretation] Yes, maybe we should play it again.

11 [Videotape played]

12 MR. DUTERTRE: [Interpretation] Yes, we can stop here at 5.10, 5

13 minutes, 10.

14 Q. Professor, would you say that when it comes to this slope, there's

15 a lot of vegetation -- not a lot of vegetation, that it's completely

16 depleted of vegetation?

17 A. The image that I have in front of me, it is not a very clear

18 image; right?

19 Q. Yes, exactly.

20 A. It's fuzzy, no? Don't you agree with me that it's fuzzy?

21 Q. Well, the quality is not absolutely fabulous, but can you answer

22 my question?

23 A. It's very difficult for me to answer, because I see some green. I

24 see the green colour, but for me it's a fuzzy picture and I'm not able to

25 interpret it.

1 JUDGE ORIE: [Previous translation continues] ... I understand the

2 answer of the witness to be that --

3 MR. DUTERTRE: [Interpretation] Thank you.

4 JUDGE ORIE: [Previous translation continues] ... due to the

5 quality of the images that she's not in a position to give a specific

6 answer on the level of vegetation on this slope.

7 Please proceed.

8 MR. DUTERTRE: [Interpretation] Exhibit P400, page 12, please.

9 [Microphone not activated]

10 THE INTERPRETER: With the microphone, please, Mr. Dutertre.

11 Could the question be repeated.

12 JUDGE ORIE: [Previous translation continues] ... Yes, could you

13 please repeat the question.

14 MR. DUTERTRE: [Interpretation] Yes, I didn't have the microphone

15 on.

16 I'd like to have a close-up of photo 60, which is the bottom

17 right-hand photo.

18 My mistake. Actually, it was number 57 that I should have said.

19 That's at the top, on the left-hand side.

20 Q. This photo is better in terms of quality, and my question is as

21 follows: When you take a look at this photo, do you think that the soil

22 surface is equal to, greater than, less than the green area covered in

23 vegetation?

24 A. Before I answer this question precisely, I'd like to make a

25 comment. I'd like to know whether the photo was taken once the bodies had

1 been removed and the -- there had been footsteps or people moving around

2 who had turned up the earth while they were recovering the bodies.

3 Q. Well, perhaps we could zoom in. But I think you'll see very

4 clearly at the bottom of the slope and next to the wall that there are

5 still bodies. So it's before exhumation.

6 A. Well, I'm talking about all of the bodies,.

7 Q. [No interpretation]?

8 A. Because I'm not entirely sure.

9 Q. Yes, you can see some of them at the bottom.

10 A. You don't see all of them. And I believe that there were more

11 than --

12 JUDGE ORIE: I think you -- you read our minds. At the same time,

13 you are not here to read our minds but to answer the questions.

14 Certainly one of the next questions would be: When was this

15 photograph taken? Which, of course, is important for the relevance of

16 this question.

17 Nevertheless, I'd like to invite you to answer the questions, but

18 no questions any more at this moment, because we are close to 7.00, and I

19 know that you have to leave.

20 Now, Mr. Dutertre, I take it that you have not yet finished your

21 examination, do you?

22 MR. DUTERTRE: [Interpretation] That is indeed the case,

23 Your Honour. But that would mean that we might have to re-call

24 Professor Lecomte.

25 THE WITNESS: [Interpretation] I'll see whether I can come.

1 JUDGE ORIE: You're asking permission to have Professor Lecomte to

2 be re-called.

3 MR. DUTERTRE: [Interpretation] I'd like to know whether Professor

4 Lecomte would -- could come tomorrow.

5 THE WITNESS: [Interpretation] No.

6 [Trial Chamber confers]

7 JUDGE ORIE: The Chamber will decide whether or not to -- an

8 opportunity will be given to you, Mr. Dutertre, to re-call

9 Professor Lecomte. Of course, we will first try to find out whether

10 Professor Lecomte is available.

11 I take it that the Defence would be in favour to re-call

12 Professor Lecomte in order to put further questions to her, because the

13 order of the testimony is a bit confused by now, to say the least.

14 MR. EMMERSON: I'm entirely neutral on the subject.

15 JUDGE ORIE: Mr. Guy-Smith.

16 MR. GUY-SMITH: As am I.

17 JUDGE ORIE: Mr. Harvey.

18 MR. HARVEY: I'm like Switzerland.

19 JUDGE ORIE: Yes. Mr. Dutertre, that means that the Chamber will

20 consider whether or not you will get an opportunity to re-call the witness

21 for further re-examination. It might also depend on whether the Chamber

22 would have any further questions.

23 At this moment, Madam Lecomte, whatever the Chamber will decide,

24 whenever you'd like to be re-called, I know that you would like to go.

25 Mr. Dutertre, one second only because --

1 MR. DUTERTRE: [Interpretation] Yes. Could Professor Lecomte come

2 back tomorrow? Does she have commitments elsewhere that might be

3 postponed?

4 JUDGE ORIE: No. We were informed that Professor Lecomte could

5 not come tomorrow and that she has travel arrangements for today, so

6 therefore it would be at a later stage. That's our information. If it's

7 wrong, Professor Lecomte, please tell us.

8 Professor Lecomte, I'd like to -- I'd like to instruct you that

9 since there is a possibility that you would be re-called for further

10 examination, that you should not speak with anyone about your testimony

11 nor the testimony already given or the testimony perhaps still to be

12 given. This is my instruction. If finally the decision will be that you

13 will not be re-called, you'd be informed about that, and then, of course,

14 you're free to speak again with whomever you want about your testimony.

15 Madam Usher, could you please escort Madam Lecomte out of the

16 courtroom.

17 [Trial Chamber confers]

18 JUDGE ORIE: Yes, we would also -- we would also include in our

19 considerations that I promised you to have an opportunity make any final

20 comments. It might be, if that would be the only reason for us to re-call

21 you, that you'll be invited to put that on paper and send it to us,

22 because -- just to give a comment of the -- I'll let you go now. I know

23 that you're in a hurry.

24 Thank you very much for coming.

25 THE WITNESS: [Interpretation] Thank you.

1 JUDGE ORIE: Mr. Guy-Smith.

2 MR. GUY-SMITH: Yes. I don't know what the Chamber is

3 anticipating for tomorrow.

4 [The witness withdrew]

5 MR. GUY-SMITH: I've just double-checked my e-mail. I have not

6 received a response from the Prosecution with regard to the issue. They

7 said they were going to file between 5.00 and 6.00. I don't know whether

8 the document is forthcoming or not. I'd like to know where we stand on

9 this issue so we're in a position to address it intelligently.

10 JUDGE ORIE: I asked my staff to inform me immediately, and we

11 have not received anything. At least -- perhaps the staff, but not yet

12 sent to the Judges.

13 MR. RE: You won't have received it because it's not finalised,

14 but it will be very soon.

15 JUDGE ORIE: Yes. Okay.

16 MR. GUY-SMITH: How do you wish to -- I mean, how do you wish

17 to --

18 JUDGE ORIE: I have to discuss that with my -- my colleagues at

19 this moment.

20 MR. GUY-SMITH: Very well.

21 JUDGE ORIE: And I can't give you any answer to that. Both of you

22 of the last day, and also in view of other matters -- I mean, of course,

23 the Chamber is 24 hours available a day, but -- but sometimes not all 24

24 hours.

25 We'll see how to proceed, and we'll -- we'll let you know.

1 MR. GUY-SMITH: I trust that we're not meeting at 4.00, 5.00,

2 6.00, or 7.00 tomorrow morning.

3 JUDGE ORIE: Under those circumstances, I would not dare to force

4 you to come at this time.

5 There will be communications tomorrow, I take it, how to proceed.

6 Mr. Dutertre.

7 MR. DUTERTRE: [Interpretation] Procedural point: There's the

8 Dourel report that hasn't received an exhibit number yet. And I wonder

9 whether it can be numbered.

10 JUDGE ORIE: Let me just check. We will ... the Dourel report has

11 not received a number yet?

12 [Trial Chamber and registrar confer]

13 JUDGE ORIE: Mr. Registrar will assign a number to it, but we'll

14 adjourn now.

15 Oh, Mr. Registrar, it's just the one word and ...

16 THE REGISTRAR: Your Honours that, will be P930.

17 JUDGE ORIE: Yes. Was there any objection against the Dourel

18 report?

19 I see nodding "no" three times, that means that P930 is admitted

20 into evidence.

21 With the apologies to technicians and interpreters and others who

22 are assisting us, we'll adjourn until tomorrow, same courtroom, quarter

23 past 2.00.

24 --- Whereupon the hearing adjourned at 7.05 p.m.,

25 to be reconvened on Thursday, the 4th day of

1 October, 2007, at 2.15 p.m.

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