Tribunal Criminal Tribunal for the Former Yugoslavia

Page 23443

1 Friday, 29 February 2008

2 [Open session]

3 [The accused entered court]

4 [The Accused Pavkovic not present]

5 --- Upon commencing at 8.59 a.m.

6 JUDGE BONOMY: Well, good morning everyone. I note Mr. Pavkovic

7 is not with us.

8 Mr. Aleksic, I understand there will be a waiver to allow the

9 proceedings to continue in his absence.

10 MR. ALEKSIC: [Interpretation] That's right, Your Honour. Good

11 morning. Yes, yes, it will arrive during the course of the day.

12 JUDGE BONOMY: Thank you.

13 Mr. Ivetic.

14 MR. IVETIC: Good morning, Your Honour. Our next witness will be

15 Danica Marinkovic.

16 JUDGE BONOMY: Thank you.

17 [The witness entered court]

18 JUDGE BONOMY: Good morning, Mrs. Marinkovic.

19 THE WITNESS: [Interpretation] Good morning.

20 JUDGE BONOMY: Would you please make the solemn declaration to

21 speak the truth by reading aloud the document now being shown to you.

22 THE WITNESS: [Interpretation] I solemnly declare that I will speak

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

24 JUDGE BONOMY: Thank you. Please be seated, and try to make

25 yourself comfortable with the technology.

Page 23444

1 You'll now be examined by Mr. Ivetic.

2 Mr. Ivetic.

3 MR. IVETIC: Thank you, Your Honour. And with the number of

4 exhibits that we have with this witness, I've prepared three binders of

5 hard copies so to perhaps run things a little more smoothly. With Your

6 Honour's leave, I would ask for the usher to hand the three binders to the

7 witness and maybe if we can have the Office of the Prosecutor's

8 representative look at it just to make sure that they're unmarked copies

9 of the exhibits.

10 JUDGE BONOMY: Thank you.


12 [Witness answered through interpreter]

13 Examination by Mr. Ivetic:

14 Q. Good morning, Judge Marinkovic. As you know, I'm Dan Ivetic. For

15 purposes of the record could you please introduce yourself to everyone in

16 the courtroom.

17 A. Good morning to all in the courtroom. I am Danica Marinkovic. I

18 live with my family in Belgrade, but I work in Kragujevac as a district

19 court judge.

20 Q. And for purposes of the record as well, could you give us a brief

21 biography of your educational background since you've already given us

22 your current residence.

23 A. I completed elementary and secondary school and graduated from

24 university in Skoplje, where I lived until I got married. After I

25 finished university I started working as a trainee at the court in

Page 23445

1 Skoplje, and that is where I passed the bar exam after my internship, and

2 after passing the bar exam I worked as a counsellor at the Supreme Court

3 in Pristina. I worked there until 1984, and I started working on the 1st

4 of September, 1976. From 1984 until the present day, I am a judge of the

5 district court; however, as a judge of the district court in -- I worked

6 as a judge of the district court in Pristina until 2004, and since the 1st

7 of March, 2004, until the present day, I am a judge of the district court

8 in Kragujevac.

9 Q. Thank you, and I'm just waiting for the transcript to catch up

10 with us --

11 JUDGE BONOMY: Are these dates accurate, Mr. Ivetic, as a judge of

12 the district court in Pristina until 2004?

13 MR. IVETIC: Let me ask the witness to explain that.

14 Q. Judge Marinkovic, the transcript reflects that you have been

15 the -- you have worked as a judge of the district court in Pristina until

16 2004. Could you please explain that?

17 A. I can. I was a judge of the district court in Pristina before the

18 bombing and during the NATO bombing and after we were expelled from

19 Pristina. However, in accordance with a ruling of the Supreme Court of

20 Serbia in Belgrade, the courts from the territory of Kosovo and Metohija

21 were temporarily relocated to the territory of the interior of Serbia

22 until they returned to Kosovo. So the seat of my court was in Nis, so I

23 continued working as a judge on the district court in Pristina but this

24 was in Nis. On the 1st of March, 2004, by a decision of the president of

25 the Supreme Court from Belgrade, I was sent to work temporarily in the

Page 23446

1 district court in Kragujevac because they needed assistance. And since we

2 judges from Kosovo and Metohija were temporarily unassigned, they offered

3 that position to me, and I accepted and I started working there. I worked

4 there by way of assistance for two years, and then after that in

5 accordance with the law on judges on the basis of the council for the

6 judiciary, I was taken over on a permanent basis by the district court of

7 Kragujevac, and now I'm a judge of the district court in Kragujevac.

8 Q. Thank you. I think that clears it up. And could you please tell

9 us your ethnic background or ethnicity.

10 A. Macedonian.

11 Q. Now, did you have an opportunity to complete a written statement

12 as part of your preparations with the Defence team of Sreten Lukic to be

13 used as part of your testimony?

14 A. Yes.

15 Q. I would like with the usher's assistance to show you Exhibit

16 6D1495, a hard copy of your statement. And, Judge Marinkovic, once you

17 receive this if you could please take a moment to review the same and let

18 us know if this is indeed the written statement that you've prepared and

19 which you read in full before signing and affirming.

20 A. Yes. This is my written statement that I read and signed.

21 Q. And if I were to ask you questions on the same topics as covered

22 in your written statement today, would you give the same answers under

23 oath as are set forth in the statement?

24 A. Yes.

25 MR. IVETIC: Your Honours, I would ask for the statement 6D1495 to

Page 23447

1 be admitted into evidence as we have both an English and an original

2 Serbian copy in e-court under that number.

3 JUDGE BONOMY: Thank you.


5 Q. Now, Judge Marinkovic, can you tell us, please, during the time

6 you spent living in Pristina, what were your observations of how people of

7 different ethnicities interacted as well as your own personal experiences

8 in that regard?

9 A. While I lived in Pristina, that is -- that was from 1976 until

10 June 1999, when we were expelled from Pristina, relations among people of

11 different ethnic backgrounds were as normal as possible. The usual thing,

12 people had contacts, socialised, helped each other out. I can say on the

13 basis of my personal experience that I had acquaintances of Albanian

14 ethnicity in the apartment building where we lived. We had neighbours

15 with whom we had good neighbourly relations. We visited each other. I

16 had an Albanian mechanic who helped me maintain my car. I had a

17 dress-maker who was close to the courthouse where I worked, and I went to

18 him regularly for his services, although his brother who had worked at a

19 cashier for the public utilities, waterworks and sewage, he was a crime

20 suspect and I carried out an investigation in relation to that person, his

21 brother, but I did my work professionally and even after the investigation

22 of this case was completed our relationship remained the same.

23 In the building where I lived, there was a man who owned a small

24 store, and all of us did our food and grocery shopping in that store,

25 although I investigated the son of the owner of that store, and I carried

Page 23448

1 out an investigation because he was a suspect in a different case.

2 However, I as a customer and he, or rather, his father as the owner of

3 this shop had a relationship that remained unchanged. I can give you many

4 other examples where we had the most normal possible contacts,

5 communication, irrespective of ethnicity and the work that we carried out.

6 JUDGE BONOMY: Could you give us the identities or even names, if

7 appropriate, of professional people who were Albanians that you regularly

8 associated with?

9 THE WITNESS: [Interpretation] I had colleagues who worked as

10 judges in the district court. We socialised. We were family friends. We

11 visited each other at home. This was a colleague of mine who worked with

12 me in the investigation department, Arsan Miliju [phoen], he was there;

13 and also Metush Latifi, another judge in the criminal court; then Judge

14 Betici, who was a second-instance judge; and also there were other

15 colleagues who worked on the district court while I was there but after

16 that they became lawyers, they opened their own private law offices, and

17 we remained friends, and there are a lot of lawyers. I really don't have

18 to mention all of their names now.

19 JUDGE BONOMY: And these persons you've just named, they were

20 working as judges in Pristina in 1999, were they?

21 THE WITNESS: [Interpretation] Shefqet Betiqi and Arsan Miliju

22 worked in the district court in 1999 as well; however, Metush Latifi

23 unfortunately died before that. It just so happened that I carried out

24 the investigation because his body was found in the apartment where he

25 lived, so I carried out the on-site investigation. And after the post

Page 23449

1 mortem was carried out, it was concluded that he died due to a heart

2 attack, infarction.

3 JUDGE BONOMY: Thank you.

4 Mr. Ivetic.


6 Q. And just to finish up on this topic, was there also an Albanian

7 couple for whom you served as a -- as a sort of godparent?

8 A. This happened a long time ago. This was a married couple who had

9 no children for many years, over 20 years. The relatives of the husband

10 insisted that he get a divorce because they couldn't have any children;

11 however, he did not want to divorce the wife and after 20 years they got

12 their first child, and he worked in the company where my husband worked

13 and he was his immediate superior. It is a custom among the Albanian

14 ethnic community that when a child is born they take the child out for the

15 first time, and since we were so close, they asked if we could be the

16 first family that they would visit and that's indeed what happened. And

17 they came and visited us, and our home was the first home that their child

18 visited, and for many, many years we went on socialising, even after they

19 moved to the area around Pec.

20 Q. Again just waiting for the transcript to catch up --

21 THE INTERPRETER: Interpreter's note: Could the witness be asked

22 to speak slower, please.

23 JUDGE BONOMY: Just before doing that, Mr. Ivetic.

24 MR. IVETIC: Yes.

25 JUDGE BONOMY: The interpreters would be assisted,

Page 23450

1 Mrs. Marinkovic, if you were able to speak a little more slowly when

2 answering the questions.

3 Mr. Ivetic.

4 MR. IVETIC: And for the sake of efficiency I'll try to speak more

5 slowly when I ask the questions as well, since I'm often guilty of that

6 same fault.

7 JUDGE BONOMY: Yes, and just to complete that, in that account you

8 gave us did you actually say that the couple lived in Junik?

9 THE WITNESS: [Interpretation] Yes.

10 JUDGE BONOMY: It wasn't picked up. That clarifies it. Thank

11 you.

12 Mr. Ivetic.

13 MR. IVETIC: Thank you, Your Honour.

14 Q. If we could move to some specific matters under the ZKP, or the

15 Serbian Law of Criminal Procedure, that was in place from 1998 to 1999,

16 what was the age of majority for purposes of criminal liability under that

17 act?

18 A. Well, according to the Law on Criminal Procedure that was in force

19 then and is still now, there were special provisions relating to under-age

20 persons, minors, prescribing that a person who had committed a crime and

21 was under the age of 18 --

22 THE INTERPRETER: 14, Interpreter's correction.

23 THE WITNESS: [Interpretation] -- when the crime was committed

24 cannot be criminally prosecuted. If pre-criminal proceedings are

25 initiated, they are halted against such a person.

Page 23451


2 Q. Thank you. And for the record that can be found at Article 453 of

3 the criminal procedure code, which is Exhibit P1824.

4 Ma'am, could you please tell us something about the structure of

5 the judicial organs on the territory of Kosovo and Metohija during the

6 period of 1998 through 1999?

7 A. In this period in Kosovo and Metohija there were five seats of

8 district courts, namely, Pristina, Prizren, Kosovska Mitrovica, Pec,

9 Gnjilane.

10 Q. And in addition to those district courts -- or strike that.

11 With respect to those district courts, could you tell us what

12 territories you as an investigative judge had responsibility for or

13 jurisdiction over?

14 A. The jurisdiction of Pristina was the municipalities of Pristina,

15 Kosovo Polje, Glogovac, Obilic, Lipljan, Urosevac, Kacanik, Djeneral

16 Jankovic, and Novo Brdo. Let me just add that there were municipal courts

17 in Pristina, Lipljan, and Urosevac.

18 Q. Could you please tell us what types of cases you handled and

19 processed as an investigative judge within the district court in Pristina?

20 A. As an investigative judge of the Pristina district court, pursuant

21 to the rules of procedure of that court, I was assigned cases as they came

22 in, regardless of the structure, the kind of the case, and regardless of

23 who the injured party and the suspects were. But let me just clarify one

24 thing regarding investigative judges. Investigative judges are not

25 elected or appointed to that post, but in accordance with the annual

Page 23452

1 schedule the president of the court in accordance with the rules of

2 procedure, the president sets up the annual schedule for the judges, the

3 roster for the judges, and this is how the decision is made who is going

4 to be the investigative judge in any given year and carry out those tasks.

5 Q. Thank you. Now, could you please tell us regarding 1998 and 1999

6 before the war with NATO how many investigative judges were there at the

7 district court in Pristina as well as the national or ethnic make-up of

8 that group of investigative judges?

9 A. Well, in that period - and that was valid for the years before

10 that and the same practice continued - every year there were four judges

11 assigned to investigative tasks. In 1998 at the beginning of that year,

12 there were three of us, three investigative judges, one Albanian, a

13 Serbian, and myself, a Macedonian. Another Serbian judge was appointed

14 later on, but in mid-1998, because the number of cases handled by the

15 first-instance court increased, the president of the court appointed one

16 of the judges to work in the first-instance -- at the first-instance level

17 and another judge was appointed as the acting president of the municipal

18 court in Pristina so that myself and this Albanian colleague for a while

19 were the only investigative judges, and that state of affairs lasted until

20 the end of 1998 when the judge from the municipal court came back and

21 another judge was appointed so that in early 1998 there were four of us

22 judges there.

23 Q. And how about after the commencement of the air campaign of NATO

24 and the proclamation of war, did the number of investigative judges at the

25 Pristina district court change at that point in time; and if so, how?

Page 23453

1 A. Well, when NATO air-strikes began, that was on the 24th of March,

2 1999, a decision was made and military courts were set up, and when those

3 military courts became operational a certain number of male colleagues

4 went to work in military prosecutor's offices and military courts. So

5 that an investigative judge was transferred to a military court and the

6 Albanian colleague left Pristina and went abroad with his family so that

7 this colleague of mine and myself, and this colleague was facing

8 retirement; and he was not drafted into the army, we covered the whole of

9 the ground there because some of our colleagues who had small children

10 they had left Pristina for safety reasons.

11 JUDGE BONOMY: It would help I think if you would concentrate,

12 please, on the particular questions because I'm certainly losing track of

13 numbers. We have a statement, transcript, that in the early part of 1998

14 there were four of you working as investigative judges. Now, it doesn't

15 seem consistent with the rest of what you said. Did you refer to a period

16 when there were four investigative judges?

17 THE WITNESS: [Interpretation] I didn't understand your question.

18 What period are you interested in.

19 JUDGE BONOMY: End of 1998 -- sorry, the early part of 1998.

20 THE WITNESS: [Interpretation] In the first part of 1998, there

21 were three of us judges, but another judge came in as the fourth. But

22 after a few months this judge who had come from the associated labour

23 court was appointed the acting president of the municipal court in

24 Pristina, and an investigative judge was assigned to the first-instance

25 chamber by the president. So that over a period of a couple of months --

Page 23454

1 JUDGE BONOMY: That's clear now. And the other question you were

2 asked was: Did the number of investigative judges change on the 24th of

3 March? Now, is the answer to that yes or no?

4 THE WITNESS: [Interpretation] Yes.

5 JUDGE BONOMY: And was that simply because one colleague went

6 abroad?

7 THE WITNESS: [Interpretation] Yes, a colleague went abroad and

8 another colleague went to work to a military court.

9 JUDGE BONOMY: So were you the only investigative judge after the

10 24th of March?

11 THE WITNESS: [Interpretation] No, there was another colleague who

12 had come back from the municipal court, he had been working there as the

13 acting president of the municipal court. But because he was about to

14 retire, he could not work in military courts or organs because of his age

15 and so he remained in the court and he worked with me.

16 JUDGE BONOMY: Thank you.


18 Q. Just to follow-up on a few points there. First of all, do you

19 know approximately when it was that your colleague would have left to join

20 the military courts, was that immediately after the bombing, several weeks

21 after, if you recall?

22 A. Well, to tell you the truth, I can't give you the date because

23 after the decision was made to establish military prosecutor's offices and

24 courts, maybe 10 or 15 days after that, that was when it happened. So in

25 this period before he left to work in the military court, he continued

Page 23455

1 working with us on investigative tasks and he completed his cases. He

2 attended on-site investigations. So before he left to work in the

3 military court, there were three of us together with him.

4 Q. Thank you. And the one colleague who left the country, do you

5 know the circumstances of his departure and had there been -- do you know

6 the circumstances of his departure? Let's start with that question.

7 A. Well, let me tell you about him. Although he was a district court

8 judge, throughout the period that he worked there, he was concerned about

9 his family and he was worried that because he had agreed to work in the

10 district court as an investigative judge that his family might suffer

11 because of that because members of the KLA exerted pressure on some people

12 to reject appointments in the state institutions of the state of Serbia.

13 In early 1999 before NATO air-strikes began, attacks on civilians,

14 Albanian civilians, by the KLA escalated. So he was worried because of

15 his family, and in the first few days of the air-strikes the number of

16 attacks by the KLA increased again and he felt that he himself might be at

17 risk. So he left with his family to keep his family safe. We helped

18 him -- we drove him to -- a colleague of mine drove him to Skoplje and

19 then he went abroad by plane.

20 Q. Thank you. And how about the case load that you had at the

21 district court in Pristina in 1998, how did it compare with the

22 time-period before 1998?

23 A. Well, in 1998 a number of cases increased at a normal rate with

24 regard to criminal cases involving all kinds of crimes, regardless of the

25 injured party and the suspect. If we disregard the cases where -- that we

Page 23456

1 investigated that involved terrorism and conspiracy to commit hostile

2 acts. However, in 1998 the number of on-site investigations increased

3 because the number of attacks on civilians, Albanian civilians, on Serbs

4 increased; the number of attacks on the facilities, housing of refugees

5 from [Realtime transcript read in error "in"] Croatia and Bosnia

6 increased. So it would happen almost every day to have two or three

7 on-site investigations because we from the district court in Pristina

8 covered a large territory so that we did a lot of work in this period.

9 Q. For purposes of the transcript, page 14, line 10, I believe the

10 refugees were from Croatia and Bosnia and not in Croatia and Bosnia.

11 And could you tell us please, ma'am, what was the case load like

12 in 1999 leading up to but before the commencement of the NATO bombings?

13 A. Before the air-strikes began we worked -- it was business as

14 usual. The number of attacks increased, we had to carry out the on-site

15 investigations, but we could only do it where it was safe because in the

16 second half of 1998 it already became quite risky to go out into the

17 field, in particular where we had information that those areas were

18 covered by the illegal organization, the KLA. But wherever it was

19 possible and wherever it was safe, we did our work as usual. We were

20 assisted by the personnel of the Ministry of the Interior who secured the

21 site and the whole area.

22 Q. And just to complete the picture on this line of questioning, how

23 would you describe the case load following the commencement of the NATO

24 bombings all the way through the withdrawal in June of 1999?

25 A. During the NATO air-strikes we did so much work. We had to do

Page 23457

1 on-site investigations, we had to deal with the cases where people were

2 brought in, people were suspects in other crimes, and we had a large

3 number of cases involving the people who were in custody because of

4 conspiracy to commit hostile acts. We did -- we had a full case load,

5 myself and my colleague, and the number of on-site investigations

6 increased to such an extent because NATO forces targeted civilian

7 facilities in Pristina and the area around it. We had to go out and visit

8 those scenes, and on the other hand the KLA members carried out their

9 attacks and they were well-organized. We had a very large number of

10 murders where civilians were murdered or they would have their own

11 internal conflict. So we did more work then than we did in the whole of

12 1998.

13 In the less than three months of the air-strikes, we did more

14 on-site investigations than we did in the whole of 1998, and let alone

15 1997. Together with my colleagues, that was before one of my colleagues

16 left to join a military court.

17 Q. Thank you. And while we are at the point of the NATO -- at that

18 time-period of the NATO bombings, I would like to show you Exhibit 1D301.

19 You should have that in one of your binders as the first tab. This was

20 promulgated by the federal government. What can you tell us about this

21 document and the change or any effect that it had on your official work?

22 A. This is a document that the federal document -- federal government

23 promulgated after the state of war was declared in the Federal Republic of

24 Yugoslavia. It is a decree on implementing the Law on Criminal Procedure

25 during the state of war. As regards this decree, as far as it pertains to

Page 23458

1 investigations, I as an investigative judge and the organs of the Ministry

2 of the Interior, we were authorised to carry out certain investigative

3 actions if it was an urgent matter even without the approval and the

4 recommendation of the district public prosecutor.

5 Secondly, this decree also stipulated that the time -- the period

6 of time that a person could be held in custody in pre-trial proceedings

7 and or pre-investigative proceedings and during the investigation in

8 accordance with the criminal procedure act a person that was arrested

9 could be detained in custody for a maximum of 72 hours. After that

10 time-period a person had to be brought before an investigative judge.

11 According to this decree, the personnel of the Ministry of the Interior

12 could, if a person -- if a criminal report was filed against a person for

13 an act of terrorism, this person could be held for a maximum of 30 days.

14 You can see that from Article 8 of this decree.

15 This decree also cut short the dead-lines for the service of the

16 indictment to the accused and also cut short the dead-line by which the

17 accused could file motions alleging defects in the indictment. So this

18 made it easier for the courts to proceed, given the conditions in which we

19 worked because the state of war was already in force and there was a huge

20 number of cases that had to be dealt with and the investigative judges and

21 the Ministry of the Interior, the public prosecutor's offices, we all had

22 a huge amount of work to go through.

23 Q. Thank you, and if I can just remind you to try to slow down,

24 especially when we're reading the law so that the translators can keep up

25 with us.

Page 23459

1 And did this -- did this decision have an effect on the abilities

2 of the organs of the interior to conduct -- to conduct on-site

3 investigations on their own in urgent cases as well?

4 A. Yes. This decree -- let me just have a look --

5 Q. Would that be Article 6?

6 A. Article 6, Article 6, paragraph 3.

7 Q. Thank you. Now, you mentioned at some point in time there was the

8 establishment of the military court system on the territory of Kosovo and

9 Metohija. Prior to that time were the civil judiciary organs the only

10 ones that were available to do investigations and on-site investigations?

11 A. Yes. Before military courts and prosecutor's offices were

12 established and before they started working, it was the investigating

13 judge who went out into the field to carry out on-site investigations. If

14 he could not do so, then he would authorise organs of the interior to do

15 that. And in urgent cases, organs of the Ministry of the Interior could

16 carry out an on-site investigation on their own as well.

17 Q. Thank you. Now --

18 JUDGE BONOMY: Are you going to be looking at the time-scale of

19 this? I take it there was a military court system prior to 1999, at least

20 I thought that was the evidence so far, and that there was a separate one

21 or different one established for the war.

22 MR. IVETIC: And I believe my question asked about the one that

23 had been established on the territory of Kosovo-Metohija -- I thought I

24 had said during the war, but I apologise.

25 Q. Is this military court system we're talking about the one that was

Page 23460

1 established at the time of the NATO bombings, the war with NATO, or

2 what -- did it exist prior to that time, Madam?

3 A. Well, military courts and prosecutor's offices existed before the

4 state of war as well, but at that time, military courts had certain

5 territorial jurisdiction. On the basis of the Law on Courts and

6 Prosecutor's Offices, their jurisdiction was regulated too. When the

7 state of war was declared, courts started functioning in a different way.

8 Beforehand, the military courts in Pristina were not actually located in

9 Pristina. There was a military court in Nis that included the territory

10 of Pristina as well.

11 Q. You will have to slow down for the transcript.

12 JUDGE BONOMY: Thank you, Mr. Ivetic. The earlier answer at line

13 17 on page 17, I don't know what it refers to, but it doesn't seem to me

14 to matter. However, if you do -- if it is important to know the position

15 before there ever were military courts, if there was such a time in the

16 recent past, then you need to clarify it.

17 MR. IVETIC: I will do that, Your Honour.

18 Q. Madam, following the commencement of the NATO air-strikes but

19 prior to the Pristina military court and prosecutor's office getting up

20 and running, who handled investigations and on-site investigations on that

21 territory?

22 A. Well, before the NATO bombing started in the territory of

23 Pristina, where the district court had its jurisdiction, on-site

24 investigations were carried out by the investigating judges of the

25 district court, whereas the municipal court had its own investigative

Page 23461

1 judges.

2 Q. Following the NATO bombing, following the commencement of the

3 bombing, did that same system stay in place until the military courts

4 in -- and prosecutor's office in Pristina became active and up and

5 running?

6 A. During the state of war we continued carrying out our duties in

7 line with our jurisdiction, as was the case until then; however, our work

8 was impeded due to the NATO bombing. As for jurisdiction is concerned, we

9 really didn't have anything to do with the military courts. Their

10 jurisdiction was quite different. So we continued working irrespective of

11 whether or when military courts were established in the territory of

12 Serbia.

13 Now, if we carried out an on-site investigation and if we found an

14 NN corpse, after the post mortem it is established that it was a case of

15 violent death, say caused by a fire-arm, and later on it is established

16 who the perpetrator of the said crime was, and perhaps if it is

17 established that the perpetrator was a military person then the criminal

18 complaint is sent to the military court along with the evidence collected

19 in the pre-trial proceedings like this on-site investigation, the record

20 of the on-site investigation, the post mortem, so that the military court

21 could afterwards take over the case and continue proceedings against that

22 particular person. Was that the point of your question?

23 Q. I think that explains most of it, and I thank you for slowing

24 down. I know it's difficult to try and keep the pace under control.

25 Trust me, I've had that difficulty for a long time in this courtroom, so

Page 23462

1 you're not alone.

2 Could you tell us what your official workday and time of on-call

3 duty was like as an investigative judge for both the periods before and

4 during the air war with NATO?

5 A. Well, the investigating judge had to be on duty as well. When

6 there were four of us investigative judges, each one of us was on duty for

7 a week during the course of one month. From one Monday to the next

8 Monday, 24 hours a day. Everything that happened within the course of

9 that week, irrespective of whether it was an on-site investigation or

10 bringing persons into custody, all of that was handled by the duty judge.

11 When there were only two of us left, then our tour of duty would be 15

12 days a month. During the NATO bombing, we could no longer follow that

13 schedule because we had to go out into the field a lot, so my colleague

14 and I tried to work out an arrangement who would be free when one would be

15 working on regular cases and the other one would go out for on-site

16 investigations. So we really did not pay much attention to working hours.

17 We just wanted to get the work done because that's what the situation was

18 like.

19 Q. Thank you. And now focusing on the time-period in 1999 during the

20 NATO war, what types of on-site investigations did you undertake, that is

21 to say what types of occurrences did you conduct on-site investigations

22 for, if you could give us an overview?

23 A. Well, during the NATO bombing, we carried out on-site

24 investigations because NATO targeted and bombed civilian facilities. So

25 my colleague carried out an on-site investigation when the post office

Page 23463

1 building was hit and the institute for retirement insurance, private homes

2 were hit then as well. I carried out an on-site investigation in the

3 neighbourhood of Grmija, where a civilian building had been hit. It was a

4 recreation centre. The guard of that sports facility was killed and the

5 building itself was razed to the ground. Nothing was left. My colleague,

6 before he went to the military court, carried out an on-site investigation

7 because a NATO bomb had hit in the area of Lipljan, a hunting area. In

8 Lipljan, I carried out this on-site investigation because in the village

9 of Staro Gradsko, cluster bombs hit private homes. There were casualties,

10 fatalities, a little girl was killed, an old man, and there were two

11 persons who were wounded. We found many cluster bombs out in the fields,

12 so we called the military investigative organs to help out because they

13 were well-versed in such matters, that is to say how these cluster bombs

14 should be removed from the fields.

15 In addition to these on-site investigations, we also worked on

16 homicides because in some areas NN bodies were found by the road or

17 houses, we tried to identify them and to establish the cause of death.

18 Records were kept of all of this, photographs were taken, post mortem

19 orders were issued, and cases were filed in relation to these occurrences.

20 Since we could not be everywhere at all the places where on-site

21 investigations were supposed to be carried out, after the organs of the

22 Ministry of the Interior would inform me about what had happened on the

23 ground, I would agree with them that sometimes they would carry out the

24 on-site investigation on their own because we simply did not have enough

25 time to complete an on-site investigation everywhere.

Page 23464

1 After the on-site investigation, the organs of the Ministry of the

2 Interior would provide information to me and the prosecutor.

3 Q. And in addition to doing investigations and on-site inspections

4 for NATO bombing, civilian damage -- civilian casualties, killings or

5 murders or deaths, did you also have occasion to do on-site investigations

6 for damage to property or for theft, et cetera, regular types of criminal

7 occurrences?

8 A. Well, in relation to these regular criminal occurrences, we did

9 not carry out on-site investigations. We pursued requests to carry out an

10 investigation that were filed by the prosecutor after the organs of the

11 Ministry of the Interior had reported to them. During the NATO bombing, I

12 carried out on-site investigations in cases of homicide too.

13 Q. Okay. We'll get to more of the specifics of actual

14 investigations, but first of all I'd like to ask you a general question,

15 generally speaking, is the mere fact that an on-site investigation takes

16 place mean that the occurrence is always classifiable in the end as a

17 criminal act or transgression? For a reminder, I think you mentioned the

18 instance of one of your colleagues.

19 A. Well, since we go out to the site and since the investigation

20 takes place, all the material evidence is collected there and then. It

21 doesn't mean that a crime had been committed by virtue of that fact and

22 that we know who the perpetrator was, if indeed it was a crime. In

23 relation to this, I want to say the following: We went out for on-site

24 investigations when homicides took place and when suicides took place,

25 when people hanged themselves, when people used fire-arms or hunting guns

Page 23465

1 to commit suicide. After a post mortem is carried out and after it is

2 established what the cause of death is, there is no further work on that

3 particular case to see who the possible perpetrator was in case it is

4 established that it wasn't a suicide. I mentioned the case when my

5 colleague's body was found in his own apartment. After the on-site

6 investigation in agreement with the forensic pathologist, a post mortem

7 was carried out and it was established that he died due to a heart attack

8 because he had been a heart patient before that too. So we were not

9 suspicious, either we as the court or his family. We did not continue an

10 investigation on this case. We did not look into the possibility of it --

11 of his death having been the result of a crime.

12 Q. Thank you. Now, you mentioned that in addition to on-site

13 investigations both you and your colleague undertook other work as well.

14 What other types of work were part of your duties as an investigative

15 judge within the system in Pristina?

16 A. Well, as an investigative judge, I worked on cases where the

17 authorised prosecutor had filed a request for an on-site investigation.

18 Perpetrators and injured parties were of different ethnic backgrounds,

19 starting with homicides, abuse of office, theft, at first this was under

20 district courts all the way up to crimes of terrorism, conspiracy to

21 commit hostile acts. That is to say all kinds of cases that were within

22 our line of work.

23 Q. In addition to on-site investigations, did you also conduct

24 interviews and other court business during the day?

25 A. Well, I did regular work in relation to regular cases. If on that

Page 23466

1 day suspects were to be heard, witnesses as well, if I was not on duty

2 then I would do my regular work in relation to investigation cases and my

3 colleague who would be on duty would go out on on-site investigations.

4 During working hours we would go out on on-site investigations, but we did

5 it in the afternoon, during the night, at midnight, depending on when the

6 particular occurrence took place.

7 Q. Thank you. And under -- under whose jurisdiction are exhumations

8 and autopsies or corpse inspections?

9 A. Obduction [Realtime transcript read in error "abduction"] and

10 exhumations are exclusively within the remit of the investigative judge.

11 It is the investigative judge who is to issue an order if he or she

12 believes that an obduction is to be performed. Obduction were performed

13 by the Institute of Forensic Medicine. Obduction were always carried out

14 if there was something suspicious about the death involved and if the

15 court or forensic pathologist cannot rule out that possibility or if he

16 cannot establish the cause of death on the spot.

17 Q. Can you tell us the steps --

18 JUDGE BONOMY: Just a moment, Mr. Ivetic. I wonder if the

19 interpreter could assist. The word abduction has been used on at least

20 two occasions in the transcript, and I think I heard the word, it's not

21 just a transcript. Can you clarify that whether --

22 THE INTERPRETER: Interpreter's note: Until now we used the

23 word "post mortem." Then Mr. Ivetic used the word "obduction," and that

24 is why we then in the answer used the word "obduction" too.

25 JUDGE BONOMY: I don't think he used that word.

Page 23467

1 THE INTERPRETER: O-B-D is the spelling. I now see the transcript

2 I apologise.

3 JUDGE BONOMY: It's a word I'm not familiar with. It's something

4 I'm not familiar with.

5 Is there such a thing as an obduction?

6 MR. IVETIC: In Serbian there's an "obdukcija."

7 THE INTERPRETER: In English we use the word post mortem,

8 interpreter's note, but Mr. Ivetic now used the word "obd," et cetera.

9 JUDGE BONOMY: None in English?

10 MR. IVETIC: No, I think the -- just let me double check. I used

11 the term exhumations, autopsies and corpse inspections.

12 JUDGE BONOMY: I see, I see. It's this problem of using two

13 languages again, Mr. Ivetic. If you used the Serb word which is what the

14 interpreter is saying, then that may have caused the difficulty, but how

15 should we read obduction here, is it autopsy?

16 MR. IVETIC: Your Honour, I did not use the Serb word I spoke in

17 complete English.

18 JUDGE BONOMY: That's what I though, but has caused a measure of

19 confusion.

20 But, in any event we were talking about both autopsies and corpse

21 inspections I think. Is that correct?

22 MR. IVETIC: Correct.

23 JUDGE BONOMY: And it may be the word corpse inspection or the two

24 words corpse inspection that caused the difficulty. Anyway, let's

25 continue.

Page 23468

1 MR. IVETIC: Thank you. And I think we did have prior evidence

2 from one witness explaining the difference from --

3 JUDGE BONOMY: Yes, there are cases -- I understand it where it's

4 not possible for a full post mortem to be carried out and the corpse is

5 inspected as far as is reasonably possible on site. So please continue.

6 MR. IVETIC: Thank you, Your Honour.

7 Q. Now, Madam, if you could tell us the -- describe for us the

8 typical steps and procedure for both an on-site investigation and, indeed,

9 an official investigation including an explanation of the point where the

10 work jurisdiction and authority of the police and the investigative judge

11 ends.

12 A. Let us just clarify one thing. What is carried out on site is

13 only investigation, investigation is on-site investigation, corpse

14 inspection, or exhumation. The authorised prosecutor then takes further

15 action for a complete post mortem.

16 Q. Okay. And could you explain for us the steps leading up to such

17 an investigation and define for us the point in time when the authority

18 and obligations of police on the one hand and the investigative judge on

19 the other hand cease and then who -- who -- what organ continues to have

20 authority in the situation beyond that?

21 A. The organ of the interior files a criminal complaint with the

22 authorised prosecutor if there is a suspicion that the suspected person

23 had committed a crime. The public prosecutor, when receiving this

24 criminal complaint, makes his own assessment on the basis of the

25 information contained in the criminal complaint, whether that is

Page 23469

1 sufficient for him to continue proceedings, or rather, to have a request

2 for carrying out an investigation with the investigative judge. If the

3 criminal complaint does not contain sufficient information, then the

4 prosecutor in charge has the authority to ask the organs of the interior

5 to collect additional information, which the organ of the interior is

6 duty-bound to do within a reasonable period of doubt -- reasonable period

7 of time and then the prosecutor receives this information. The request

8 for an investigation can be made, but then the prosecutor can also reject

9 the criminal complaint if there are not sufficient grounds for carrying

10 out an investigation against a particular person.

11 If the public prosecutor accepts this criminal complaint and does

12 file a request to carry out an investigation, after the request for

13 investigation the organs of the interior no longer have any authority

14 whatsoever or influence over the court and the prosecutor's office. The

15 only thing that the organs of the Ministry of the Interior do in the

16 process of investigation is to carry out some specific work within

17 investigation. Or if the suspect does not respond to a subpoena or

18 summons, then the investigative judge can subpoena him actually.

19 Q. Thank you. And some follow-up questions on that. At page 27,

20 line 15 to 16 were you're quoted as saying that: "The only thing that the

21 organs of the Ministry of the Interior" --

22 THE INTERPRETER: Could the counsel please slow down.


24 Q. "Within investigation," is that were always suspect to --

25 JUDGE BONOMY: Mr. Ivetic, the transcript is incomplete because

Page 23470

1 you were speaking very quickly, again I think probably because you're

2 reading from something. Could you try to slow down when you do that.

3 MR. IVETIC: Yes.

4 JUDGE BONOMY: But also repeat that quotation.


6 Q. At page 27, lines 14 through 17 actually, you're recorded as

7 saying that: "The only thing that the organs of the Ministry of the

8 Interior do in the process of investigation is to carry out some specific

9 work within investigation."

10 Is that work always subject upon a specific request or direction

11 from the relevant prosecutor with authority over the matter?

12 A. Well, the relevant organs of the Ministry of the Interior in the

13 pre-criminal proceedings before they file a criminal complaint to the

14 prosecutor --

15 JUDGE BONOMY: Just hold on. I'm certain that your answer related

16 to the situation after the prosecutor had decided that -- to accept the

17 complaint and proceed with the investigation, and it's after that stage

18 that we're concerned about. You say that the role of the Ministry of the

19 Interior is very limited, and it's that role at that stage that Mr. Ivetic

20 is asking about.

21 THE WITNESS: [Interpretation] After the public prosecutor files a

22 request for an investigation with the investigative judge in terms of a

23 specific crime and against a particular person, in relation to that case

24 the organs of the Ministry of the Interior have nothing to do after that.


Page 23471

1 Q. And am I correct that at that point in time the investigative

2 judge upon the authority of the prosecutor carries the investigation and

3 may request assistance of the organs of the interior but not in all

4 circumstances?

5 A. I didn't understand your question.

6 Q. Can you explain for us the interaction between the investigative

7 judge and the organs of the Ministry of the Interior upon the acceptance

8 of a criminal denunciation and the commencement of an investigation upon

9 that criminal denunciation.

10 A. Once the investigative judge receives the request for

11 investigation filed by the public prosecutor, the investigative judge may

12 authorise the organs of the Ministry of the Interior to carry out certain

13 investigative actions.

14 Q. Thank you. Now, you also mentioned that the prosecutor may accept

15 or reject a criminal denunciation. Does any -- first of all, does any

16 organ of the Ministry of the Interior or any other body have any influence

17 or legal effect on the public prosecutor in this regard or is it their

18 pure discretion?

19 A. Once the public prosecutor receives the criminal report, that

20 person is the -- has the sole authority and has the discretion to decide

21 whether to accept the criminal report, to what extent, whether to return

22 it for amendment and whether to file a criminal proceedings -- to

23 institute criminal proceedings based on the investigative -- the results

24 of the investigation.

25 Q. And does the relevant prosecutor at that point in time also have

Page 23472

1 the discretion to reject and not act upon a criminal denunciation --

2 JUDGE BONOMY: Mr. Ivetic, you'll need to begin that question

3 again because you were speaking over the translation.

4 MR. IVETIC: I apologise.

5 Q. In those circumstances, does the relevant prosecutor have the

6 right and discretion to reject and not proceed upon a criminal

7 denunciation without even giving a rationale or reason for the same?

8 A. The public prosecutor does have the authority under the Law on

9 Criminal Procedure that when he receives a criminal report and when he

10 deems that there are no grounds for a request for investigation to be

11 filed or if there are no grounds for suspicion based on the criminal

12 report that a person had committed a criminal offence to reject such

13 criminal report; and he may or may need not inform the organ of the

14 Ministry of the Interior or any person that actually filed the criminal

15 report of this development. The only thing that he's duty-bound to do, if

16 there is an injured party in that case, he must inform the injured party

17 if he believes that there are grounds for this person to file a legal suit

18 against the suspect on his own.

19 Q. Thank you. And for purposes of clarity, Your Honours, I've

20 noticed -- I've been using the word criminal denunciation, which is the

21 term that I was told by CLSS is the official translation of "krivicna

22 prijava," the Serbian word. Criminal report and criminal complaint have

23 been used in the transcript. As far as I'm concerned they mean the same

24 thing and they're both -- they're all legitimate translations, but that

25 way if someone's following in the transcript, that's the same -- the same

Page 23473

1 instrument that we're talking about?

2 JUDGE BONOMY: Thank you.


4 Q. Now, Judge Marinkovic, you've told us --

5 JUDGE BONOMY: Just a second, Mr. Ivetic.


7 [Trial Chamber confers]

8 THE INTERPRETER: Interpreter's note --

9 JUDGE BONOMY: There are two issues there. I think you've said

10 that you do not require to -- the prosecutor does not require to tell the

11 Ministry of the Interior official reporting the matter of a decision not

12 to accept the criminal denunciation. Is that correct?

13 THE WITNESS: [Interpretation] Yes.

14 JUDGE BONOMY: And are you also saying that having made a decision

15 the prosecutor does not require to record any reason for that decision

16 anywhere?

17 THE WITNESS: [Interpretation] Once the public prosecutor decides

18 to reject the criminal report, he drafts an official note for that case,

19 stating the reasons why the criminal report was rejected. And if the

20 person that actually filed the criminal report wants to find out, he may

21 address the public prosecutor and ask. But the public prosecutor is under

22 no obligation to inform the organs of the Ministry of the Interior. He

23 may do so, but he need not, I think it's Article 151, 2, of the law on

24 criminal procedure.

25 THE INTERPRETER: Interpreter's note: The official term for

Page 23474

1 "krivicna prijava" is criminal report.

2 JUDGE BONOMY: You identify a person there as the person that

3 actually filed the criminal report. Will that be a person from the

4 Ministry of the Interior?

5 THE WITNESS: [Interpretation] No.

6 JUDGE BONOMY: So who do you -- who do you mean by the person that

7 actually filed the criminal report?

8 THE WITNESS: [Interpretation] When an organ of the Ministry of the

9 Interior files the criminal report - well, that would depend on the actual

10 crime, there is an injured party, if it is a homicide, it is the family;

11 if it is abuse of office, then it would be a company; if it is a theft or

12 robbery, then we have a natural person that is the injured party. And in

13 such a case when the public prosecutor decides to reject a criminal

14 report, he is under an obligation pursuant to Article 61, paragraph 2 of

15 the Law on Criminal Procedure to inform the injured party of the fact that

16 the criminal report was rejected and to inform the injured party that

17 within eight days this person may institute criminal proceedings against

18 the person who committed -- allegedly committed the act.

19 [Trial Chamber confers]

20 JUDGE BONOMY: Thank you very much.

21 JUDGE CHOWHAN: I would need a little clarification here. You

22 said that when the report is rejected by the prosecutor and he's informed

23 of this fact, he can institute criminal proceedings against the persons

24 who committed. What do you mean by that? I mean, is there a matter

25 going -- I mean taking an impression from the prosecutor and filing a case

Page 23475

1 in the court directly or you want to say something else? I couldn't get

2 this, line 15, 16, 17 of what you have said. Thank you.

3 THE WITNESS: [Interpretation] If you mean cases involving injured

4 parties, once an injured party is informed by the public prosecutor, the

5 injured party has a right to file a request for an investigation with the

6 investigative judge, subsidiary prosecutor or plaintiff, the subsidiary

7 plaintiff or an injured party as a plaintiff.

8 [Trial Chamber confers]

9 JUDGE BONOMY: Mr. Ivetic, is this a suitable time to interrupt

10 your examination or not?

11 MR. IVETIC: It could be in five minutes. I did have another

12 question that I wanted to try and get in before the break, but it's not --

13 it's not precisely on the same topic, it's taking a step further so ...

14 JUDGE BONOMY: I understand Mr. Hannis has some administrative

15 issues and we might find out what these are before we have the break, I

16 think.

17 MR. IVETIC: Okay.

18 JUDGE BONOMY: Mrs. Marinkovic, we will have a break shortly, as

19 is the normal practice here. We're going to interrupt your evidence a bit

20 earlier than the break so that we can deal with administrative matters.

21 We will be resuming about ten minutes to 11.00, so could you please leave

22 the courtroom with the usher and we'll see you again when we resume.

23 MR. IVETIC: Your Honour, one matter, can I ask the usher to give

24 her her classes in case she needs them for reading.

25 [The witness stands down]

Page 23476

1 JUDGE BONOMY: Mr. Hannis, you had certain matters you wished to

2 raise.

3 MR. HANNIS: Thank you, Your Honours. Yes. The first matter

4 related to some photographs that we used with the

5 Witness Dragan Milenkovic last week. Some of those photographs were under

6 seal in connection with an earlier witness in the Prosecution case. That

7 under seal had to do with the connection with that witness. We think it's

8 appropriate to lift the seal on three of the photos we used with

9 Milenkovic last week, those being Exhibits P2627, P2628, and P2630, and

10 I'd make an oral application to do that at this time.

11 JUDGE BONOMY: Well, I see no one resisting that application, so

12 we will authorise that, Mr. Hannis.

13 MR. HANNIS: Related to that matter, Your Honour, Mr. Ivetic

14 raised the point that when the protected witness had testified earlier in

15 the case in connection with those photos, there was an issue that one of

16 those photos had been published in Danas, and Mr. Ivetic raised some

17 concerns at that time in, I think, February 2007 about a leak relating to

18 protected witnesses. You inquired of me if there had been any

19 investigation done. From what I've been able to determine, Your Honour,

20 it appears that if -- there was nothing in violation of the Court order.

21 We had a pending motion for protective measures for that witness

22 testifying at that time, but there was no leak from the OTP. A private

23 individual who had possession of those photos may have been likely to have

24 been in the loop that led to those photographs being published in Danas,

25 but he was not a witness who testified here, and he was not subject to any

Page 23477

1 protective measures that were in place in connection with it. So as far

2 as I've been able to determine, there was no violation of any Court order.

3 JUDGE BONOMY: Was that person someone who was likely to be aware

4 of the application for protective measures?

5 MR. HANNIS: Yes.

6 JUDGE BONOMY: Does that not give rise to concern?

7 MR. HANNIS: Your Honour, I don't know if I'm going to have any

8 further discussion about this. I probably should do it in closed session.

9 JUDGE BONOMY: Well, before considering it any further, I will

10 need to remind myself of the circumstances in which it arose before, which

11 I'll do when we have the break. And it may be that if anything else is to

12 be said on this, we can deal with it immediately after the break.

13 MR. HANNIS: The third thing I wanted to raise is in connection

14 with P948, which is the interview with General Lukic. Mr. Fila, I think,

15 is the only one who has responded so far identifying portions of that

16 interview that he proposed. We have some further translation of. I raise

17 the issue, Your Honour, because I was thinking about in terms of a

18 practical matter for CLSS. The transcript we have, we have -- someone has

19 listened to the audio and we have B/C/S transcript and English transcript

20 intermixed. I don't -- there's not any further translation to be done.

21 What CLSS could do, I suppose, is comment on and say that B/C/S that is

22 spoken there is not quite a full, accurate translation of what was said in

23 the English, which as you understand in a simultaneous translation, as we

24 have in the courtroom --

25 JUDGE BONOMY: Indeed.

Page 23478

1 MR. HANNIS: -- may happen. But I'm not sure what CLSS's job is

2 to do, is to make some commentaries or to prepare a separate report. I'm

3 asking for some guidance from the Court on how we would proceed on that

4 and what's going to be most helpful to you.

5 [Trial Chamber and registrar confer]

6 JUDGE BONOMY: Is the transcription you're talking about one

7 compiled by the Prosecution, by your own office?

8 MR. HANNIS: Yes.

9 JUDGE BONOMY: And would it not, in fact, be compiled from

10 listening -- or it wouldn't be done by listening to the tape. It's simply

11 a transcription of the interpreter's translation at the time, is it?

12 MR. HANNIS: I believe it was done by watching and listening to

13 the tape.

14 JUDGE BONOMY: But done by your office?

15 MR. HANNIS: Yes, by language assistants in our office.

16 JUDGE BONOMY: But -- but the questions would be asked in English,

17 translated into B/C/S, the answer would be B/C/S and translated into

18 English.

19 MR. HANNIS: Correct.

20 JUDGE BONOMY: Would that not be done at the time and simply

21 transcribed automatically so that there's no translation being done by the

22 person transcribing it, they're simply writing or typing up what they hear

23 on the tape?

24 MR. HANNIS: Correct.

25 JUDGE BONOMY: Right. And in that situation, Mr. Fila is saying

Page 23479

1 that perhaps some of it needs to be revised for accuracy. Now, I would be

2 inclined to think that the principle of ensuring that justice is seen to

3 be done in a situation where the OTP compile the document demands that

4 where there's some sort of challenge that that should be reviewed by an

5 independent body, CLSS falls into that category, and if parties can

6 responsibly identify the passages that really need that exercise done,

7 then in our view that should be done.

8 MR. HANNIS: And Mr. Fila has --

9 JUDGE BONOMY: If you require us to order that to be done, then we

10 will have to consider an application that identifies the areas in which

11 the matter is required; if, on the other hand, you can between yourselves

12 arrange to identify these areas and make a submission to CLSS, that would

13 be ideal.

14 MR. HANNIS: Mr. Fila has done so, and I'm prepared to send that

15 over now and ask for those portions to be done, but I don't want to send

16 that over and next week get something from somebody else. I would like to

17 have a cut-off time.

18 JUDGE BONOMY: Let's have the cut-off point at close of business

19 on Tuesday, and then it can be submitted, and anyone else who has anything

20 to raise should raise it then.

21 MR. HANNIS: Thank you, Your Honour.

22 JUDGE BONOMY: It does raise the issue, of course, of the timing

23 of this.

24 Mr. Ivetic, is it likely that Mr. Lukic will give evidence?

25 Just a moment, Mr. Fila.

Page 23480

1 MR. IVETIC: We -- we at this point do plan to -- we have him on

2 the list and we haven't made the final decision yet. As so he's on the

3 list --

4 JUDGE BONOMY: If he is to give evidence, then the timing of this

5 becomes important.

6 MR. IVETIC: We would, of course, wait until that's done I think

7 to call him if indeed he were to testify. That would I think be the

8 logical route to take.


10 MR. FILA: [Interpretation] Your Honour, I think that I did what I

11 could in the most accurate and the fastest possible terms, and I abided by

12 what Mr. Hannis said not to translate the very beginning, although it is

13 quite interesting because there Philip Coo is presented as an investigator

14 of the OTP, not an analyst. This is -- I found it quite interesting, but

15 that's water under the bridge now. But what I listed here are where I see

16 the differences in the terminology, in the way in which questions are

17 asked in Serbian, what is translated into English, so the only accurate

18 picture is when we hear everything that is said in English and in Serbian

19 and I never asked for any translation to be done. So that I think that I

20 really did all I could to keep it very brief and clear and the Lukic

21 Defence could not respond because they have so much work to do. So I did

22 it for everyone just to save time.

23 JUDGE BONOMY: So are you satisfied everyone has commented so far

24 as they may wish?

25 MR. IVETIC: We may have one or more -- I noticed I think one

Page 23481

1 additional section that I saw that had a difference between the

2 translation and the -- the English and the B/C/S. I will do that by the

3 close of business Tuesday, as the Court has instructed.

4 JUDGE BONOMY: What is involved here is simply identifying

5 passages which CLSS will be invited to revise the translation of. It's as

6 simple as that, and if there are arguments then to be made about what was

7 actually meant by what was said then these are for later in the

8 proceedings or for examination of witnesses as we pass through the trial.

9 We'll take our break now -- sorry, Mr. --

10 MR. IVETIC: Just to assist you, Your Honours, since you said you

11 wanted to inform ourselves about the situation Mr. Hannis raised about the

12 photographs in the Danas paper, since there are several days of

13 testimony. I think the discussion that's pertinent to some, the 31st of

14 January, 2007, but at the tail end of that day before the witness actually

15 testified.

16 JUDGE BONOMY: Thank you.

17 We'll resume at five minutes to 11.00.

18 --- Recess taken at 10.33 a.m.

19 --- On resuming at 10.57 a.m.

20 JUDGE BONOMY: Mr. Hannis, to look more closely at that issue will

21 take me longer than a 20-minute break, I'm afraid. So it will be given

22 further consideration, and if any further address is required from you or

23 anyone else, then we'll notify you.

24 MR. HANNIS: Thank you.

25 JUDGE BONOMY: Thank you.

Page 23482

1 So we can resume the evidence now with Mrs. Marinkovic.

2 [The witness takes the stand]

3 JUDGE BONOMY: Mrs. Marinkovic, thank you for your patience. We

4 can now continue with the evidence.

5 Mr. Ivetic.

6 MR. IVETIC: Thank you, Your Honour.

7 Q. I believe we had left off -- you had explained to us where the

8 authority of the MUP ended with respect to an investigation. Can you

9 explain for us what the steps are and what happens to a case when you as

10 the investigating judge complete your work.

11 A. When I, as an investigative judge, received a request for

12 investigation, the first thing I check is whether I have jurisdiction,

13 whether the request for investigation contains all the relevant data,

14 including the personal details of the suspect, the factual description of

15 the crime, and then I set a hearing date at which the suspect is

16 questioned. When the suspect is questioned, and if I find that there are

17 grounds for the investigation to continue, I, as the investigative judge,

18 I issue a decision for an investigation. If I disagree with a request for

19 the investigation filed by the competent prosecutor, I, as an

20 investigative judge, am authorised to express my disagreement with the

21 request for an investigation and then the chamber, relevant chamber, of

22 the court rules in chambers on this request. If I decide that an

23 investigation is in place, I gather all the information, all the data, in

24 my investigation that make it possible to draw a conclusion whether the

25 suspect did, indeed, commit the crime he is charged with.

Page 23483

1 In the investigation phase I gather the evidence designated by the

2 prosecutor in the request for investigation, and as an investigative judge

3 I'm authorised to gather other evidence if I deem it necessary to come to

4 the material truth or the objective truth. Once the investigation is

5 complete, I submit the file, the case file, to the public prosecutor, who

6 then proceeds.

7 Q. And at that stage where you submit the file, the case file, to the

8 public prosecutor who then proceeds, does the Serbian MUP have any

9 influence, role, or authority at that stage of the proceedings either?

10 A. No.

11 Q. Thank you. Now, during the course of the investigation, that is

12 to say before the case file is presented to the public prosecutor for

13 eventual indictment and proceedings, under what circumstances can an

14 investigative judge under the criminal procedure code of Serbia limit

15 access to defence counsel to documents and information out of security

16 concerns?

17 A. After I issue a decision for an investigation, the defence counsel

18 or defence counsel teams, if there are several accused, have the right to

19 inspect the case file and any items or objects that are the object of the

20 crime. But in exceptional circumstances in the previous preliminary

21 stages of the proceedings before the indictment is issued if there are

22 grounds to do so and in the interests of the defence and the security of

23 the state, I as an investigative judge can issue a decision preventing the

24 defence counsel from inspecting the case file and the objects or items in

25 this case. The defence counsel have the right to appeal against this

Page 23484

1 decision to the judges who will then rule in chambers if they deem that

2 any other rights, apart from this right, has been violated, the right to

3 inspect the case file. They are entitled to file a complaint to the

4 president of the court against me, against my work.

5 Q. If I could ask you this initial appeal that you said is heard by

6 judges, how many judges would hear such an appeal?

7 A. I didn't hear your question. I do apologise.

8 Q. Where you say the defence counsel have a right to appeal against a

9 decision to the judges who will then rule in chambers, how many judges

10 would comprise that body that would rule in chambers on any appeal by

11 defence counsel in this regard?

12 A. This chamber, it's a panel, a three-judge panel, they are

13 professional judges and they deal with any appeals that have to do with

14 the investigation.

15 Q. And the next question I have for you. Thank you. And the next

16 question that I have for you: Would such a restriction on access to

17 documents and information continue after the investigation is complete and

18 an indictment issues?

19 A. No. This is a temporary measure during the investigation. Once

20 the indictment has been issued the defence counsel have ample time after

21 receiving the indictment to prepare for their defence, to inspect the case

22 file, and to await trial.

23 Q. Thank you. Now if you could please tell us what in essence is a

24 criminal denunciation, in Serbian "krivicna privaja," what is contained in

25 it, who can prepare and submit such instruments, and under what

Page 23485

1 conditions?

2 A. A criminal report is a document that actually initiates a criminal

3 proceedings. It must contain information about the person who is listed

4 there as the perpetrator of the crime. It must contain a factual

5 description of the crime for which there are grounds for suspicion that a

6 person named in the criminal report actually committed it and the legal

7 qualification of the crime. It also must state what data or what evidence

8 possibly led to this knowledge, all of that must be appended to the

9 criminal report.

10 Apart from the organs of the Ministry of the Interior who file

11 criminal reports for crimes that must be prosecuted ex officio, criminal

12 reports may be filed by other institutions of the state and by citizens,

13 natural persons. Every citizen has the right to file a criminal report.

14 Citizens may file criminal reports directly with the public prosecutor or

15 with the organs of the Ministry of the Interior. Criminal reports are

16 filed only when there are grounds for suspicion that a certain person

17 committed a certain crime, and a criminal report may also be filed against

18 persons unknown if we know what the crime was, but at that time it is not

19 known, and it is impossible to determine or to identify the perpetrator.

20 Q. Thank you. Now, according to the relevant provisions of the

21 criminal procedure code that was in effect at the time in 1999, what were

22 the legal obligations and responsibilities of all citizens of the state in

23 regards to reporting criminal acts and criminal perpetrators?

24 A. In the Law on Criminal Procedure there is an article stipulating

25 that every person who comes upon a perpetrator in the course of the

Page 23486

1 perpetration of the crime is under an obligation to arrest this person and

2 hand this person over, either to the investigative judge or to the

3 organ -- to an organ of the Ministry of the Interior. As far as I can

4 recall now, the article in question is Article 191, paragraph 4 of the Law

5 on Criminal Procedure that was in force at that time.

6 Q. Thank you. And again for the record, the relevant exhibit is

7 P1824, where Article 191, subpart 4, can be found.

8 Madam, did this obligation continue to exist during the

9 proclamation of the state of war?

10 A. Yes.

11 Q. And could you tell us in terms of the persons who all was covered

12 by this legal obligation of reporting crimes and/or perpetrators?

13 A. Well, the term that is used in this article, anybody or everybody,

14 it covers police officers, authorised officials, soldiers, ordinary

15 citizens, so anybody who comes upon a person in the commission of a crime

16 is under an obligation to arrest that person. That's the wording.

17 Q. Am I correct that there is also an obligation then to report it

18 either to the organs of the interior or to the judicial organs?

19 A. Yes.

20 Q. What were the legal ramifications of someone's failure to so

21 report a criminal act and/or knowledge of a criminal perpetrator?

22 A. The Law on Criminal Procedure in Serbia describes the crime of

23 failure to report a perpetrator, failure to report a crime, and in the

24 relevant article, the criminal sanctions are envisaged for any person that

25 fails to report a crime or to report a perpetrator of a crime. But in

Page 23487

1 this article it is also stated - I think it is paragraph 2 of Article

2 203 - that if an authorised official fails to report a perpetrator in the

3 course of the performance of their duty, then the punishment is more

4 severe than the one envisaged in paragraph 1.

5 Q. Thank you. And for the record, Exhibit P1020 has Article 203 of

6 the Criminal Code of the Republic of Serbia. I have a notation that it's

7 page 63, I believe that in the Serbian. I don't have a notation for the

8 English.

9 Madam, when organs of the -- when organs of internal affairs bring

10 a criminal denunciation to the public prosecutor, is that prosecutor bound

11 to follow the exact qualification of the criminal act as set forth in the

12 police criminal denunciation?

13 A. When the public prosecutor receives a criminal report filed by an

14 organ of the Ministry of the Interior, he is not under an obligation to

15 retain the legal qualification of the crime. He is authorised on the

16 basis of the factual description of the crime contained in the criminal

17 report to give a different legal qualification if he believes that the act

18 itself constitutes a different crime from that that is listed or alleged

19 in the criminal report.

20 Q. Thank you. Now I'd like to return to your work. Did you have

21 occasion in the course of your work to conduct investigations against --

22 regarding suspects and victims of all ethnicities and nationalities

23 without any preference or bias?

24 A. Yes.

25 Q. I'd like a take a moment to look at some.

Page 23488

1 MR. IVETIC: If we could have Exhibit 6D140 up on the screen, the

2 first page will suffice for now.

3 Q. Madam, we have a document here on the screen. Could you please

4 tell us what -- first of all, what kind of document this is once we get it

5 back up on the screen.

6 [Trial Chamber and registrar confer]

7 THE WITNESS: [Interpretation] This is a criminal report --

8 MR. IVETIC: Just one second --

9 JUDGE BONOMY: Just a moment.

10 The exhibit is under seal, Mr. Ivetic.

11 MR. IVETIC: I think I recall the circumstances of that. It was

12 in relation to the testimony of a certain witness with regard to a third

13 party.

14 MS. CARTER: Respectfully, Your Honour, I believe I may be of

15 assistance. This exhibit was referred to in the context of the testimony

16 of Aleksandar Vasiljevic. It was actually in relation -- he was being

17 questioned on another case and which he reported on, and that specific

18 paragraph was being -- it was redacted from his statement itself. So this

19 generally relates, because it's talking about the same time-period;

20 however, it isn't exactly what Mr. Vasiljevic was speaking to. So I see

21 no problem in lifting the seal as to this document.

22 JUDGE BONOMY: Very well. We shall lift the seal.

23 MR. IVETIC: Thank you, Your Honours.

24 And thank you, Madam Prosecutor.

25 Q. Now, Judge Marinkovic, if you could please tell us first of all

Page 23489

1 what kind of document is this that we have before us.

2 A. This is an official document, a criminal report, that was filed

3 pursuant to Article 151, paragraph 6, of the Law on Criminal Procedure.

4 It was filed by the MUP of the Republic of Serbia, the Pristina SUP. And

5 here in the upper left-hand corner you have the KU number, 346/1999, the

6 date is the 8th of May, 1999. The criminal report was filed against an

7 unidentified perpetrator for the crime of murder under Article 47 of the

8 Criminal Code of Serbia, and the murder was committed on the 6th of May,

9 1999 in the village of Batuse, Kosovo Polje municipality.

10 Q. And is the ethnicity of the victims apparent from this document?

11 A. Yes. You can see hear that the victims were of Albanian

12 ethnicities because we can see the names here. Should I read them out?

13 Q. I'm waiting for the transcript. So there's no need to read them.

14 I note that you have several times mentioned NN or unknown perpetrators.

15 Under the applicable laws and provisions in place at the time, and I

16 believe at present, what is the legal significance of such a formulation

17 within a criminal denunciation?

18 A. A criminal report filed in this form indicates that the event that

19 occurred on the 6th of May, 1999, was processed and a record exists of it,

20 and the criminal report was filed with the competent public prosecutor.

21 So although the perpetrator was unidentified at the time, a criminal

22 report was filed and it contains in brief the description of the facts and

23 circumstances of the events that occurred on that day, and pursuant to

24 this criminal report further action can be taken in order to identify the

25 perpetrator of this crime. When the public prosecutor receives a criminal

Page 23490

1 report of this kind, on the basis of his authority, he issues a written

2 order to the organs of the Ministry of the Interior to continue with their

3 work, gathering information, gathering evidence, in order to identify the

4 perpetrator of this crime.

5 Q. And is there any legal benefit or protection to filing against an

6 NN or unknown perpetrator, what effect does that have on collection and

7 safe-guarding of evidence?

8 A. It has a great effect, but it's only of advantage, the fact that a

9 criminal report has been filed and the event recorded, and at a given

10 point in time proceedings, are taken against perpetrators unknown,

11 stipulating the -- against who the crime was committed and that the SUP

12 conducted an on-site investigation and that I issued an order for an

13 autopsy to take place of the bodies found or corpse inspection, which

14 means that at any given time all these things have been collected and

15 everything that was possible was done on the spot. And it says here that

16 casings were found on the spot, which is material evidence and in due

17 course if a perpetrator is apprehended this can serve a beneficial

18 purpose.

19 Everything that the organs of the interior did on the spot, all

20 the evidence they gathered on the spot and the corpse inspection

21 conducted, all those facts are sent to the district public prosecutor, who

22 then draws up a case against the NN perpetrator or perpetrator unknown, so

23 that once the perpetrator is discovered all this evidence and proof

24 becomes part of the criminal proceedings that follow and can help to

25 establish whether the person was, indeed, the perpetrator of the crime or

Page 23491

1 not.

2 Q. And with respect to such instances where criminal denunciations

3 are submitted for NN, or unknown perpetrators, what are the applicable

4 statute of limitations or statutes imposed for such crimes? Are they

5 increased from regular statute of limitations?

6 A. Well, yes, because here in this particular case where the criminal

7 report was against a perpetrator unknown and as the crime is murder here,

8 the statute of limitations here is rather great, and it stipulates Article

9 47 but doesn't say what para of the article and crime. But for murder,

10 for the crime of murder, at least a ten-year prison sentence is prescribed

11 and the statute of limitation -- there is no statute of limitations for

12 this crime. So it does not -- there is no statute of limitations for 30

13 years. Perpetrators can be investigated during that period of time.

14 I'm not quite sure whether 15 years is the relative number of

15 years or whether it's ten years, but the important thing is that there's a

16 long period, so no statute of limitations within a long period of time and

17 in this particular case of course the investigation can be ongoing for a

18 long time.

19 Q. Thank you. And you indicated that you had had some part in this

20 investigation. Do you have any personal knowledge relating to the

21 circumstances of this precise incident and what further investigative

22 steps were undertaken and what for their information was uncovered by the

23 Serbian MUP?

24 A. I wasn't able to make an on-site investigation, I was prevented

25 because I had other affairs to attend to. So it was the organs of the

Page 23492

1 Ministry of the Interior that conducted the on-site investigation, and

2 what I did as far as the investigation was concerned was that I gave an

3 order for a crime inspection to be conducted of the bodies found. Now --

4 corpse inspection. And linked to this particular case, the perpetrators

5 of the crime were uncovered by the organs of the interior.

6 Q. Thank you. If we could please turn to the next page of this case

7 file in both the English and the Serbian so we can see based upon the

8 additional work of the Serbian MUP what we now have. First of all, can

9 you explain for us what is this type of document and what it reflects the

10 additional investigations and efforts of the police and the effect

11 vis-a-vis the original NN perpetrators criminal denunciation or report.

12 A. This first document was a criminal report filed against

13 perpetrators unknown. Now, in view of the fact that the organs of the

14 Ministry of the Interior continued their investigations to uncover the

15 perpetrators of this crime and when they apprehended the perpetrators,

16 then they compile a report like this and it's what it says on our screens,

17 the report as a supplementary criminal report; and then in this particular

18 report it stipulates who the perpetrators are and contains all their

19 personal data.

20 Q. And in this particular case who were the perpetrators that were

21 uncovered by the Serbian MUP?

22 A. They were --

23 Q. By profession or identifying details.

24 A. They were Predrag Nikolic, he was a policeman in Kosovo Polje;

25 then Zoran Djeletovic, he was a policeman, reservist, in Kosovo Polje; and

Page 23493

1 Ivan Ivanov, also a reservist in Kosovo Polje. Now, the qualification of

2 the crime for the first two suspects was murder, and the third for Ivanov,

3 it was an accessory or aiding and abetting murder.

4 Q. And do you know of any concrete steps taken by the authorities

5 following the support relating to these named suspects?

6 A. After these persons were found, and according to this

7 supplementary criminal report they were suspects, they were held in

8 detention, as prescribed by the internal affairs organ of the SUP of the

9 Pristina, and it was detention up to 30 days, applying the provisions of

10 the Law on Criminal Procedure during a state of war. After that, the

11 supplementary criminal report with the document on the fact that they had

12 been apprehended and were being held in detention are sent on further to

13 the competent organs, district organs.

14 Q. The competent district organs that you identified that further

15 processed these, would that be the prosecutor's office?

16 A. Yes.

17 Q. And do you have any personal knowledge, was there any

18 extraordinary pressure or upheaval on the part of the citizenry of the

19 area of the arrest and detention of these suspects by the Serbian police?

20 A. Well, as I was there at the time, that is to say I was in Pristina

21 working when these people were arrested by the interior organs, the

22 citizens from Kosovo Polje protested and asked the police to release these

23 perpetrators so that they could defend themselves while being at liberty,

24 but the police did not comply and the persons were held in detention.

25 Q. Thank you. And if we could -- one moment. I'll just check what

Page 23494

1 exhibit number. While I'm checking, did the process against these -- the

2 criminal proceedings against these individuals continue?

3 A. Yes, it did. The district public prosecutor filed a request for

4 continuing the proceedings and the case came to me, and these individuals

5 were in detention, they were being held in custody. I interviewed them,

6 and as the district court, because we were no longer able to function

7 normally in Pristina, we relocated to Nis and all the detainees who were

8 in prisons at the time in the territory of Kosmet were relocated as well

9 and sent to other prisons in towns in Serbia. Now, these three were also

10 dislocated and they were in the prison in Pozarevac, district prison in

11 Pozarevac where I interviewed them and issued orders for an investigation

12 to be conducted. I interviewed a number of witnesses. I had not

13 completed my investigation when I moved to work in the district court in

14 Kragujevac, when I transferred there. So as to the outcome of this

15 particular case, I don't know what happened.

16 Q. And am I to understand that the work that you just described

17 occurred after the withdrawal from Kosovo, that is to say after June of

18 1999?

19 A. Yes.

20 Q. Thank you. Now if we could please --

21 JUDGE BONOMY: Just before moving off that.

22 This was the 8th of May. Were you still actually in Pristina on

23 the 8th of May?

24 THE WITNESS: [Interpretation] Yes.

25 JUDGE BONOMY: So when did you relocate to Nis?

Page 23495

1 THE WITNESS: [Interpretation] I left Pristina on the 9th of June,

2 1999, and the district court was relocated to Nis straight away in January

3 2000.

4 JUDGE BONOMY: Thank you.

5 MR. IVETIC: If we could please have Exhibit 6D142 on the screen.

6 Q. And, ma'am, you have that, I think, in your binder. Could you

7 tell us when this comes up something about this document and -- and

8 whether in fact you have personal knowledge of the -- 6D142. Before we

9 put it up on the screen, I don't -- this was in the same set as the other

10 documents, so I don't know whether it's also under seal?

11 JUDGE BONOMY: Ms. Carter.

12 MS. CARTER: Yes, Your Honour. This document was under seal as

13 well. I don't believe that the documents themselves require any sort of

14 type of sealing; however, if any reference is made to the transcript when

15 they came in, that will be required in closed session.

16 JUDGE BONOMY: That is helpful. Thank you.

17 We will lift the seal on this document also.

18 MR. IVETIC: Thank you, Your Honour. And I don't intend to ask

19 about the transcript when this came in, so hopefully we'll -- hopefully my

20 colleague will alert me if I run afoul of anything in that regard.

21 Q. Madam, can you tell us something about this document. Do you have

22 any personal knowledge of this -- of this instance or incident?

23 A. This first page is a document, a letter, sent to the district

24 public prosecutor which provides the criminal report against unidentified

25 perpetrators of the crime of murder under Article 47 of the Criminal Code

Page 23496

1 of Serbia against Fehmi Agani from Pristina.

2 Q. And can you tell us, did you have any personal involvement with

3 this; and if so, was the identity of victim known immediately or is that

4 something that was discovered over time?

5 A. Since this event took place on the 6th of May, 1999, at around

6 1700 hours, on the telephone the inspector on duty Lepovic, I can't see

7 this very well, Milenko was his name, he informed me that by the roadside

8 near this place around the village of Batuse, that an unidentified male

9 corpse was found. I told them that I was not able to go to the location

10 so that they should not wait for me, but they should conduct an on-site

11 investigation themselves without me because it was already getting dark;

12 and it was risky because of the NATO bombing to put that off until the

13 following day. They informed me that when they conducted the on-site

14 investigation the body they found -- in the body they found -- they found

15 no documents in the pockets of the clothing so that they were not able to

16 identify who the person was. After that, we agreed that the corpse be

17 transferred to the forensic institute, where I issued orders for an

18 autopsy to be conducted because according to the on-site investigation the

19 inspector who was there with the crime technicians found that there were

20 traces of projectiles on -- near the head. And so as the cause of death

21 was suspect, an order was given for an autopsy to be carried out. And

22 during the autopsy the experts at the institute for forensic medicines

23 identified the body and established that it was Fehmi Agani from Pristina.

24 Q. Thank you. If we could turn to the fourth page of this exhibit, I

25 believe in both the Serbian and the English, that will be at the top

Page 23497

1 right, it will say attachment 3 on your copy, Madam. If you could tell

2 us -- if you would look at this and tell us what kind of a document is

3 this and what is its significance in the course of an investigation.

4 A. After the police conducted an on-site investigation and after the

5 autopsy had been completed, they compiled a criminal report against

6 perpetrators unknown and the criminal report with all the attached

7 material was sent to the district public prosecutor. And pursuant to his

8 authority under the code on criminal proceedings sent to the SUP of

9 Pristina a request in order to discover the unknown perpetrator or

10 perpetrators of the crime of murder, and states that all necessary

11 measures must be taken to uncover the perpetrator of the crime and that

12 the perpetrator or accessory should not be allowed to go into hiding or

13 abscond, to discover and secure the traces of the crime, and items that

14 might be used as evidence and collect all information that might be

15 useful. And then it says: "After discovering the perpetrator, send the

16 criminal report and collected information to the public prosecutor for him

17 to be able to make a ruling."

18 Q. Thank you. Now, looking at all the documents that make up this

19 case file for Fehmi Agani's murder and based on your own knowledge, was

20 the investigation undertaken in accord with the applicable standards and

21 procedures and protocols for any such crime investigation of a similar

22 nature?

23 A. In relation to this specific case and in relation to other cases,

24 when the perpetrator of the crime is unknown what is done is what is

25 possible and permissible at the moment. So in this case the organs of the

Page 23498

1 Ministry of the Interior in accordance with the authority vested in them

2 by the law and the public prosecutor, in keeping with his own powers, did

3 everything they deemed necessary. I took part as an investigative judge

4 there. I issued an order for an autopsy, and in accordance with my order

5 the Institute of Forensic Medicine carried out the autopsy. All of this

6 was not sufficient for the public prosecutor to start an investigation

7 because in the case of murder, the crime of murder specifically, it is

8 very hard to find material evidence that would indicate who the

9 perpetrator was because at a given point in time if there are no

10 eye-witnesses, no witnesses as such, if there is no evidence as to who the

11 perpetrator might be, it is very hard within a short span of time to find

12 out who the perpetrator is. In particular because there was a state of

13 war, there was a great deal of work anyway. So in view of what was

14 possible, in view of the security situation and the actual possibilities

15 the SUP and the prosecutor's office had, they did what they could. The

16 important thing was that a case file had been established, it was

17 important to know who the injured party was, that the material evidence on

18 the ground was collected and kept. Later on when the possible perpetrator

19 is found, that would all be used in the further investigation and the

20 criminal proceedings against a particular person.

21 Q. Did the withdrawal from Kosovo have any effect on the

22 investigation into this matter and, indeed, into any matters that had

23 remained filed against NN, or unknown, perpetrators?

24 A. Well, yes, yes. That was additionally influenced by the fact that

25 we had to relocate from Kosmet, so we could not complete our

Page 23499

1 investigations. We could not process any of these cases because

2 everything became more difficult. So a great many cases, especially

3 detention cases that we worked on in our court during the war, after we

4 were relocated from Pristina and when the district court started to

5 function in Nis, we tried to complete quite a few of these cases; but

6 after that, there was a lack of cooperation with the representatives of

7 UNMIK, who did not want to cooperate with us because they no longer

8 recognised us as regular judiciary institutions. Therefore, if a witness

9 or if an accused person was in Kosmet, we could not call them to be heard

10 in Nis either as a suspect or as a witness.

11 Q. And --

12 JUDGE BONOMY: Just one moment, Mr. Ivetic.

13 Mrs. Marinkovic, what is the basis for saying they no longer

14 recognised you as regular judiciary institutions?

15 THE WITNESS: [Interpretation] First of all, they didn't want to

16 establish any kind of contact with us at all. We tried telephoning,

17 sending letters, all of this was sent back as unknown, they didn't

18 understand and so on. Even now I have problems while I'm working at the

19 district court in Kragujevac. If I'm looking for a person from Kosmet,

20 especially if the person is an Albanian, they're not giving me any kind of

21 legal assistance to have persons like that summoned to Kragujevac to be

22 heard in our court.

23 JUDGE BONOMY: Thank you.

24 Mr. Ivetic.


Page 23500

1 Q. In your own personal work history do you know of instances where

2 cases initially brought against NN or unknown suspects are uncovered by

3 further investigations and then processed against named individuals long

4 after the initial criminal denunciation is filed?

5 A. Yes, I did have such cases during the course of my work.

6 MR. IVETIC: If we could call up -- if we could call up Exhibit

7 6D592 on e-court.

8 Q. Madam, you should have that in your binder there in front of you.

9 And first of all with respect to this document, if you could identify this

10 document and tell us what this document is and what knowledge you have of

11 it.

12 A. Just a moment, please. Let me find --

13 Q. 6D592.

14 A. This document is a judgement of the district court in Pristina.

15 97 -- 37/97 is the number.

16 Q. Do you know what year it was issued?

17 A. Well, I'll take a look. It should say so in the preamble. On the

18 11th of July, 1997, that is when it was made public too.

19 Q. And since this judgement covers a variety of events, if we could

20 focus on page 5, Roman numeral number II, I think that would be the

21 clearest instance. It should be, I believe, the same page in both the

22 Serbian and the English translation. It looks like it's going to be the

23 page in the English, Roman -- pardon me, the previous page in the English,

24 Roman numeral number II.

25 A. Yes, let me just say that 15 persons mentioned here in this

Page 23501

1 judgement were accused of the crime of terrorism. Three of them only were

2 detained because the rest were on the run. Inter alia they were charged

3 with the following: On the 22nd of May, 1993, on the road near the

4 entrance of Glogovac they ambushed an official motor vehicle in which

5 there were policemen.

6 Q. Now, if we could now also have -- well, Madam, you can have both

7 documents in front of you. I would like to direct your attention to 6D586

8 as well and ask you what type of document this is, and then I'll ask you

9 about your personal recollections and what is reflected in these

10 documents. I think in e-court we can move to the next document. 6D586,

11 Judge, that's what we're looking for, to find out what that document is,

12 it's the review of cases is how it starts.

13 A. Did you give me a specific page?

14 Q. No, it's the document itself. First of all, what kind of document

15 is this and do you have knowledge of who created it?

16 A. Well, this is a review of cases which I, as an investigating

17 judge, conducted investigations on, as requested by the authorised

18 district public prosecutor. I did that in order to facilitate the work of

19 the Trial Chamber, so that they could have a review of all the crimes that

20 were concerned and the guilty verdicts. This is for the benefit of the

21 Trial Chamber.

22 Q. And now, based on your personal knowledge and what these two

23 exhibits demonstrate about the case we just looked at, was the case

24 initially filed against named persons or NN perpetrators; and it was

25 against NN perpetrators, do you know how long it took to actually name the

Page 23502

1 suspects?

2 A. Well, this happened on the 22nd of May, 1993. The on-site

3 investigation was carried out by one of my colleagues, who was also

4 working in investigations, and he was on duty then. That is when a

5 criminal report was filed against NN perpetrators because the perpetrators

6 were unknown; however, on the site itself when the on-site investigation

7 was carried out, quite a bit of material evidence was collected and that

8 was used later in order to uncover the perpetrators of this specific crime

9 because many casings were found and a lot of ammunition as well. Also, a

10 rifle was found when one of the suspects was searched, and when the rifle

11 was compared to the casings that were at the scene this became evident.

12 And after that, there was a supplementary criminal report against the

13 persons who had committed the crime, but this was done three or four years

14 later.

15 Q. And with regard to the cases that are summarized in 6D586 and as

16 well as in the judgement, are other cases against other individuals known

17 to you to also have started out as NN or unknown perpetrators later to be

18 supplemented and prosecuted; and if so, do you know what types of --

19 length of time it was between the time-period that the crime occurred and

20 the NN denunciation issued and then the final indictment against the named

21 individual occurred?

22 A. In addition to this case where I conducted the investigation in

23 relation to the crime of terrorism, I had yet another criminal case where

24 I carried out an investigation against a certain number of persons. There

25 was a reasonable suspicion to the effect that they had committed terrorism

Page 23503

1 as well as conspiracy to commit hostile acts. There were a number of

2 cases there too where criminal reports were filed against NN perpetrators,

3 but after, that as we continued working, the organs of the interior found

4 out specifically who the perpetrators of these crimes were and then there

5 was a supplementary criminal report. And against these specific persons

6 there was a request for carrying out an investigation and also an

7 indictment was issued, and they were declared guilty.

8 JUDGE BONOMY: Can we have 6D592 back on the screen, please.

9 I think you said this was the final judgement in 1997; is that

10 correct?

11 THE WITNESS: [Interpretation] Yes.

12 JUDGE BONOMY: The event was in 1993. Can you tell from the

13 document when the perpetrators were identified?

14 THE WITNESS: [Interpretation] I can tell you on the basis of the

15 information contained in the judgement, the persons who were accessible to

16 the state organs, I can tell you also when they were arrested, Besim Rama

17 on the 29th of September, 1996, that is when the perpetrator was

18 uncovered. On the 10th of October, 1996, another person --

19 THE INTERPRETER: The interpreter did not catch the name.

20 THE WITNESS: [Interpretation] -- Then Adem Jashari was also one of

21 the accused persons. Hashim Thaqi, who is now prime minister of Kosovo,

22 is in this group of indictees, also Rexhep Selimi, who is the Speaker of

23 Parliament in Pristina now, and a few other people, who at the time when I

24 was carrying out this investigation were on the run. At the time they

25 were tried in absentia because they were still on the run. A judgement

Page 23504

1 was passed and they became wanted people; however, they were not sent to

2 serve their sentence yet.

3 JUDGE BONOMY: So is every one of the accused on this a person who

4 was tried in his absence?

5 THE WITNESS: [Interpretation] No. The first three, Besim Rama,

6 Idriz Aslani, and Avni Nura, they were in detention, and they were present

7 for the trial. The rest were fugitives, but they had court-appointed

8 defence counsel.

9 JUDGE BONOMY: Did the three who were there appeal against their

10 convictions?

11 THE WITNESS: [Interpretation] The three persons who were there and

12 the defence counsel who represented the fugitives filed appeals, and the

13 appeal was heard by the Supreme Court of Serbia.

14 JUDGE BONOMY: And what was the outcome in relation to the three

15 that were tried in their presence?

16 THE WITNESS: [Interpretation] Well, I can't really say whether the

17 conviction was -- whether the judgement was confirmed or was quashed

18 regarding the sentence itself. I do think that we have the judgement of

19 the Supreme Court, but I don't know at which tab. But in this review I

20 think I actually refer to the judgement.

21 JUDGE BONOMY: Thank you.

22 Mr. Ivetic, can you help identify that?

23 MR. IVETIC: I think Judge Marinkovic is more familiar with her

24 own paperwork to be able to locate it quicker than I to find the exact

25 citation of the appeals judgement. I have been leafing through it as

Page 23505

1 we've -- as you've been asking the questions.

2 JUDGE BONOMY: Perhaps after the next break you can return to it

3 and clarify it.

4 MR. IVETIC: That would perhaps be the most efficient way to go.

5 JUDGE BONOMY: Thank you.


7 Q. Judge Marinkovic --

8 JUDGE CHOWHAN: Sorry, just a little legal clarification from the

9 witness.

10 Sorry, I just wanted a legal clarification. Now, people who were

11 sentenced in absentia, supposing they had come back and asked for

12 re-opening of the case, was that possible? Thank you.

13 THE WITNESS: [Interpretation] Yes, yes. They could ask for a

14 re-trial.

15 JUDGE CHOWHAN: Thank you.

16 MS. CARTER: Your Honour, to the extent that it assists the Court,

17 the Supreme Court judgement that has been referred to is entitled number

18 703/98. Unfortunately, it has not been exhibited by either the Defence or

19 the Prosecution in this case, it is, however, tab number 8 of exhibit 290

20 out of Milosevic, but again it has not been exhibited as of yet.

21 JUDGE BONOMY: Thank you for clarifying it to that extent,

22 Ms. Carter.

23 Mr. Ivetic.

24 THE WITNESS: [Interpretation] Yes, that is true.

25 MR. IVETIC: Of course the translation issues, I can -- I can

Page 23506

1 ensure that we can file that as a bar table matter and obviously on this

2 motion amend at some parts in our case in chief. We'll gladly do that to

3 have the full picture in front of the Trial Chamber.

4 Q. Judge Marinkovic, if we could move on. I'd now like to look at

5 the sworn statement that I hope you still have in front of you that was

6 Exhibit P -- pardon me 6D1495, just briefly to touch on some items in

7 there that are the same issue of NN, or unknown, perpetrators. If we can

8 look at paragraph 3 of the sworn statements, the first page of actual

9 texts in both the Serbian and the English. And looking at this you

10 mention a case involving Radivoje, and I believe if I can look closely, I

11 believe it's -- it ought to be Papovic, it's Popovic in both the Serbian

12 and the English --

13 A. Papovic.

14 Q. Do you recall this incident when Radivoje Papovic was injured on

15 the 16th of January, 1997, and what else there is of significance you can

16 tell us about this instance?

17 A. I remember this incident because I carried out the on-site

18 investigation. It was the first time that a terrorist attack was carried

19 out in the town itself, and that was the first time that a car bomb was

20 used. And I also happened to live nearby. It was a car bomb, and the

21 detonation was so strong that we all were afraid. We didn't know what had

22 happened. It was a car, a passenger car, that was used by

23 Radivoje Papovic. He was driven by Nikola Lalic, his driver, he was the

24 director of the Pristina university. It happened in the morning as he was

25 driving to work.

Page 23507

1 Q. Do you know if a criminal denunciation was issued for this

2 incident and if the -- and if so, was it for a named or an unknown

3 perpetrator?

4 A. At that time when the on-site investigation was carried out at the

5 scene of this incident, the perpetrator was unknown. And as in any other

6 case under the law, the on-site investigation was carried out by an expert

7 team, a team that had the relevant expertise for explosive devices. The

8 parts of the explosive device were gathered and were submitted for

9 forensic analysis. Lalic and Papovic were seriously injured and were

10 immediately taken to hospital. A criminal report was filed with the

11 prosecutor against an unidentified perpetrator. I submitted my on-site

12 investigation record to the public prosecutor appended to the criminal

13 report. The crime scene department collected and placed into custody all

14 the relevant physical evidence gathered at the scene, and the public

15 prosecutor issued an order to the organs of the Ministry of the Interior

16 to do everything they could to identify the perpetrators, as was the case

17 whenever the perpetrator was unidentified.

18 Q. [No interpretation]

19 A. In the case the legal qualification of the act was the crime of

20 terrorism.

21 Q. And just for purposes of the record, page 66, line 2, my Serbian

22 was: Please go on and continue, since I see that it was not caught in the

23 transcript.

24 Do you know the end result and subsequent history of this criminal

25 denunciation. Were named perpetrators eventually found and processed?

Page 23508

1 A. Yes.

2 Q. And if I can have up on the screen 6D587 first of all, and for the

3 benefit of the witness I would also advise you that 5D -- pardon me, there

4 I go again, 6D586 appears to be the review of cases similar to the one we

5 had just looked at for this particular indictment.

6 And, Madam, does this refresh your recollection. Is this -- are

7 the perpetrators of this crime initially reflected as NN, unknown, named

8 in this indictment by the district public prosecutor's office dated the

9 25th of July, 1997, in Pristina?

10 A. Yes.

11 Q. And do -- and does 6D587 and your summary 6D586, do they reflect

12 and demonstrate some of the variety of criminal acts that were being

13 undertaken under the circumstances in 1997 in Pristina and the surrounding

14 area by these armed hostile Albanian perpetrators or separatist groups I

15 should say?

16 A. Well, this indictment shows that the indictment was filed against

17 21 persons, and in relation to this indictment I carried out an

18 investigation as an investigative judge in accordance with the request for

19 investigation filed by the district public prosecutor. After the

20 investigation was completed, the public prosecutor issued an indictment.

21 The first-instance judgement was delivered in this case. Some of the

22 persons were convicted of the crime that was committed and that they were

23 charged with under the indictment. Two of the persons from this group

24 were acquitted, and there were some people among them who were fugitives

25 and who were tried in absentia. But in relation to this on-site

Page 23509

1 investigation where this car bomb had exploded injuring director and his

2 driver, the first accused, Nait Hasani, was charged with providing

3 financial assistance and actually funding the purchase of the explosive

4 that was to be used to assassinate the rector. And the actual perpetrator

5 of this act was Zahir Pajeziti [phoen], who is not listed here as an

6 accused because he was killed in a fire-fight with the police.

7 JUDGE BONOMY: Mr. Ivetic, how extensive is 6D586?

8 MR. IVETIC: 6D586 was approximately -- well, look at the

9 English-- the English appears to be 15 pages.

10 JUDGE BONOMY: And does it deal with different cases from those

11 dealt with in the witness's statement, 6D1495?


13 Q. Judge Marinkovic, does 6D586 deal with a variety of cases that are

14 not covered in the written statement that we have prepared for you in

15 these proceedings, if you know?

16 A. Well, the cases that are covered by the overview are not all

17 listed in the written statement.

18 JUDGE BONOMY: Your written statement, though, is described as an

19 overview, and that's what -- I'm trying to understand what's the

20 distinction between what's in the written statement and what's in this

21 document, 6D586.

22 Now, I assume you know the difference, Mr. Ivetic.

23 MR. IVETIC: I can. I believe the written statement was a

24 supplement for matters for which we had documentation that we'd found that

25 was not contained in other exhibits that -- that she authored, like this

Page 23510

1 5D586 [sic] to present a full picture to the Trial Chamber without

2 repeating items that are in other documents and therefore requiring

3 additional translation of items that are already translated by CLSS.

4 JUDGE BONOMY: Is the answer to the question then that some of the

5 cases appear in both these documents?

6 MR. IVETIC: Yes, because at least the first -- the number 3 does

7 for sure, that's the one that I know about --

8 JUDGE BONOMY: Thank you very much.

9 MR. IVETIC: -- the one I mentioned about Mr. Papovic.

10 THE WITNESS: [Interpretation] May I explain?

11 MR. IVETIC: I don't know if there's a need.

12 THE WITNESS: [Interpretation] If I may be allowed to explain.

13 JUDGE BONOMY: Very well.

14 THE WITNESS: [Interpretation] In my written statement I included

15 the records of on-site investigations, the investigations that I carried

16 at the scene, they pertain to all kinds of victims, civilians, Albanians,

17 Serbs, anyone who had been attacked. And in this overview I presented all

18 the cases where I carried out an investigation, where an indictment was

19 issued, and where we have the first-instance and the second-instance

20 judgement. And this gives you an overview of the activities of the

21 terrorist organization KLA. The competent organs, from the SUP to the

22 prosecution office to the court, at the time when the incident occurred

23 involving people who were killed, regardless of who the victims were, all

24 this was put on the record, and then the perpetrators were -- attempts

25 were made to locate and identify the perpetrators. And then the

Page 23511

1 proceedings continued.

2 So in this case where I carried out an on-site investigation in

3 the case when the rector was injured, the perpetrators were finally

4 identified and the proceedings were instituted against those people.

5 Those people were prosecuted.

6 JUDGE BONOMY: Thank you.

7 THE WITNESS: [Interpretation] And that is why it is included

8 there.

9 JUDGE BONOMY: In the cases which are in your -- the document you

10 described as the overview, 6D586, where there was an on-site investigation

11 it will also appear as a case in your written statement; is that the

12 position?

13 THE WITNESS: [Interpretation] Yes, yes. But in relation to the

14 on-site investigations that I carried out because some on-site

15 investigations were carried out by my other colleagues and this was all

16 put together, and in this case file we have everything that pertains to

17 those incidents.

18 THE INTERPRETER: Interpreter's remark: Could the witness please

19 be asked to speak a little slower.

20 JUDGE BONOMY: Ms. Carter, you're anxious to say something.

21 MS. CARTER: Just for the assistance of the Court, if I might, if

22 you start at page 13 of 592, where the overview, there are a number of

23 documents that are overlapped within her statement, specifically number 10

24 is referred to in her 92 ter statement and it's under 6D1507 and it's also

25 has a 6D number 594 as well. Number 11 --

Page 23512

1 JUDGE BONOMY: It's not that that I'm after, it's the relationship

2 between 6D586 and the witness statement, not the other sources that we

3 might have available to us. And I understand the witness to be saying the

4 statement relates to her own personal on-site investigations and the

5 overview relates to all the cases in which she was an investigating judge

6 which went through the full process.

7 Now, this would be a suitable time to break, Mr. Ivetic, would it?

8 MR. IVETIC: Absolutely, Your Honour.

9 JUDGE BONOMY: So we'll break now.

10 Mrs. Marinkovic, we need another break, that will be for half an

11 hour, so could you please leave the courtroom again with the usher.

12 We shall review -- resume at ten minutes to 1.00.

13 [The witness stands down]

14 --- Recess taken at 12.17 p.m.

15 --- On resuming at 12.59 p.m.

16 [The witness takes the stand]

17 JUDGE BONOMY: Mr. Ivetic -- one matter I would like to raise with

18 you, Mr. Ivetic. Thank you for letting me see a hard copy of the 6D586.

19 It does appear to be a 92 ter statement essentially.

20 MR. IVETIC: I was thinking about that during the break myself,

21 Your Honour.

22 JUDGE BONOMY: And if you consider it to be such, then perhaps you

23 should go through the formalities associated with such a statement.

24 MR. IVETIC: I will do that right now. Thank you.

25 Q. Hello again, Judge Marinkovic. If you could please look at 6D586

Page 23513

1 in your binder, first of all. We've talked about this document previously

2 and it at the end bears your name. Could you for the record confirm that,

3 in fact, you authored this -- I can perhaps give a hard copy, Your Honour,

4 that might be quicker.

5 A. 586 did you say?

6 Q. [Interpretation] Yes, 586, that's right.

7 JUDGE BONOMY: It's the overview of cases that you've compiled.


9 Q. Could you first confirm for us that you authored this report?

10 A. Yes, that's right.

11 Q. And if I were to ask you questions relating to the matters

12 contained herein today, would you, today being under oath, give me the

13 same information and the same answers relative to these questions as

14 reflected in this written document?

15 A. Yes, except perhaps for the numbers, the numbers of the

16 judgements, first-instance, second-instance; otherwise, the contents are

17 not under dispute.

18 JUDGE BONOMY: Thank you.

19 MR. IVETIC: Thank you, Your Honours.

20 JUDGE BONOMY: Ms. Carter.

21 MS. CARTER: Your Honour, if we can't rely necessarily on the

22 numbers, I would ask either for a clarification from the judge in order to

23 make amendments; and the second issue I just would inquire about is there

24 are a number of cases that are exhibits in this case that are referenced

25 within this document, and I want to know if those documents are coming in

Page 23514

1 as part and parcel of this 92 ter or if they will have to be individually

2 submitted. They're not enumerated by exhibit number; however, they are

3 referencing exhibits.

4 JUDGE BONOMY: Referencing exhibits that are in our e-court

5 system?

6 MS. CARTER: Yes, Your Honour.

7 JUDGE BONOMY: But without the numbers related to them?

8 MS. CARTER: Correct. You would have to actually go into the

9 documents, but there's a number of exhibits that are referenced within the

10 92 ter.

11 JUDGE BONOMY: And have you not been able or have you been able to

12 find them all?

13 MS. CARTER: Not -- the ones that are on the exhibit list, I have

14 cross-referenced those.

15 JUDGE BONOMY: But not all?

16 MS. CARTER: Not all, it doesn't appear that they're all there.

17 JUDGE BONOMY: Two outstanding matters arise from that then.

18 I think it's up to you, Mr. Ivetic, to give Ms. Carter some time

19 over the weekend, the sooner the better, today hopefully, the exhibit

20 numbers for the various exhibits in this document that are not specified,

21 and she may be able to assist you by telling you the ones she's found and

22 the ones she hasn't.

23 And the second matter, Mrs. Marinkovic, would be this, if you can

24 take that statement away with you over the weekend because I'm afraid

25 you'll be back here on Monday -- Tuesday, rather, and could you somehow or

Page 23515

1 other try and check your reference numbers so that the statement can be

2 presented as entirely accurate or is it not possible to do that from here?

3 THE WITNESS: [Interpretation] I don't know, perhaps you

4 misunderstood me a moment ago. The numbers in this overview are the exact

5 numbers, those are the right numbers. Now, if you are asking me about the

6 number of a first-instance judgement, I can't tell you off the bat.

7 That's what I meant. Otherwise, everything stated here is correct.

8 JUDGE BONOMY: So the numbers are correct, but some -- the -- some

9 of the -- the earlier numbers, for example, if a case has an --

10 THE WITNESS: [Interpretation] Yes, that's right.

11 JUDGE BONOMY: Appeal reference number, it doesn't have a

12 first-instance number.

13 THE WITNESS: [Interpretation] Yes.

14 JUDGE BONOMY: You can enjoy the whole weekend, you've got no

15 homework, but Mr. Ivetic has.

16 MR. IVETIC: I always do, Your Honour --

17 THE WITNESS: [Interpretation] Thank you.

18 JUDGE BONOMY: Mr. Ivetic.

19 MR. IVETIC: Thank you.

20 Q. Judge Marinkovic, from the testimony we've been going through now

21 it's clear that you started handling terrorism cases at a high rate at

22 some point in time. Could you tell us with regards to your work how it

23 came to be that you started handling so many cases or investigations

24 relating to the named crime of terrorism?

25 A. Well, linked to the crimes of terrorism, it didn't depend on me

Page 23516

1 and rather cases about that. It depended when the criminal report was

2 filed to the public prosecutor, and then when the prosecutor tabled his

3 request for an investigation to be unleashed. And then if along with the

4 criminal report if the persons have been arrested, they must be handed

5 over to the investigating judge straight away, and the investigating judge

6 on duty starts work on the case immediately, takes over the person

7 arrested and so on. So this is just the part of the job that I did and

8 the cases that I show in my overview. Otherwise there were other cases

9 conducted by other colleagues of mine and ones that I did too, but all

10 that remained in the district court in Pristina. This is just something

11 that I had in my own possession so that I myself could follow progress on

12 these cases and to create the practice of conducting these cases, but --

13 so these cases are not shown here.

14 Q. Thank you. Now if we can move to a related topic, if we can look

15 at Exhibit 6D589, and that should be in the same binder for you, Madam,

16 that had 586, it should be the same binder, hopefully, if my assistants

17 collated the same way they did for me. Yeah, that's it. If you could

18 first tell us about this document, what is its subject matter as well as

19 the significance to the situation in Pristina, in Kosovo and Metohija, at

20 the time?

21 A. An indictment was raised against a certain number of persons and I

22 conducted the investigation, and it is the first case since I began my

23 investigation which is linked to crimes against the constitutional order

24 and the security of the country of the SRY at the time. And it is about a

25 group of individuals, and later on they were convicted in the first

Page 23517

1 instance, they were found guilty, for the crime of association in order to

2 perform enemy activity and Article 136 and linked to -- the crime linked

3 under Article 16 which relates to -- I do apologise for having to pause.

4 Linked to crime [as interpreted] 116 against the territorial integrity and

5 entity of the state, and this group was accused, was charged, with the

6 fact that in 1992 they created hostile associations and an illegal MUP as

7 it was called to bypass the institutions and the law so that on the

8 territory of Serbia they could set up an illegal hostile association of

9 parallel, illegal MUP, which in addition to the MUP that existed at the

10 level of the state they wanted to form this hostile association with the

11 purpose of cutting off a part of the territory of Yugoslavia and then to

12 create a state of its -- on its own and to attach it to Albania later on.

13 Q. Thank you. And with respect to the factual circumstances of this,

14 what steps had these individuals undertaken to create this illegal,

15 parallel MUP - and by "MUP," I assume you mean Ministry of the Interior or

16 police force?

17 A. This group that was charged with enemy activity received

18 instructions from its illegal government of Kosovo which existed abroad at

19 the time and the prime minister was Bujar Bukoshi, and so it was at his

20 initiative that they attempted to set up an illegal MUP which would

21 incorporate all the departments and institutions as they existed

22 officially. So they -- what they did was to form centres of public and

23 state security in all the larger towns, and then they would appoint chiefs

24 of those centres, the heads of those centres, and then people worked as

25 operatives to undertake surveillance against persons, whether they be

Page 23518

1 military personnel, policemen, Albanians, or others, to follow their

2 movements. Then they would gather information and intelligence about

3 these persons, and then they organized trips to Albania where they

4 procured weapons and transported them to Kosovo. They also looked at the

5 map of Macedonia and Kosovo to see which mountain paths they could use to

6 bring in the weapons. They gathered information linked to on-site

7 investigations and parallelly with the state institutions that conducted

8 on-site investigations, they too would compile their documents, had their

9 crime technicians, and all that information that they gathered in that way

10 they would put it on disk and send it to the illegal government of

11 Bujar Bukoshi for review and their aim was to effect a take-over, to

12 take-over all the functions of the regular MUP that existed on the

13 territory of Serbia, all with the aim, once again let me state this, of

14 toppling the constitution order of Yugoslavia, to cut off part of the

15 territory, and to form their own state, the state of Kosovo.

16 Q. Now, this particular indictment arises out of the Pristina area.

17 What can you tell us about the actions of this illegal parallel MUP that

18 was formed? Was it limited to Pristina or were there cases like this in

19 other jurisdictions within Kosovo and Metohija?

20 A. This was part of the illegal MUP which was active in the area of

21 Pristina, but criminal proceedings were taken for an illegal MUP that

22 planned actions in Prizren and Gnjilane as well. So there were criminal

23 proceedings under way there too against certain persons but for the same

24 crime.

25 Q. Thank you. We've seen the indictment. If we could turn to 6D590,

Page 23519

1 that should be the very next document for you but it ought to be perhaps

2 in the next binder if your set-up is the same as mine,

3 Madam Judge Marinkovic. And I would like to ask you, is this document,

4 6D590 -- it's a judgement, what is the subject matter of the judgement?

5 Is this the same as the indictment that we just looked at?

6 A. This is the first-instance judgement in the indictment raised

7 against persons who were suspected of having created an illegal MUP or

8 worked to create an illegal MUP. Now, I conducted an investigation

9 against 82 persons. After completing the investigation, the prosecutor

10 gave up criminal proceedings against 16 individuals, and I made the

11 decision to cease the investigation, to stop the investigation. However,

12 indictments were raised against the rest, and in the criminal proceedings

13 a first-instance judgement was passed. They were convicted, found guilty,

14 and sentences meted out. But with respect to two of the individuals when

15 an individual had been raised, the first-instance court passed a judgement

16 which found them not guilty and you can see that in the judgement.

17 Q. Was one of these individuals for whom a not guilty judgement was

18 entered, Nuredin Ibishi?

19 A. One of them was Nuredin Ibishi, who during the investigation was a

20 suspect. He was suspected of having been a commander of an illegal

21 paramilitary formation of the MUP, a special unit of the illegal MUP.

22 However, as there was not enough evidence and proof during the

23 investigation, the prosecutor did not pursue the case. However,

24 afterwards he came a KLA commander in the area of Pristina and the

25 surrounding parts where he was active.

Page 23520

1 Q. And when was that later if you know, during what period of time?

2 A. Well, it was when I started working with the second group of

3 terror suspects, his name came up and it's -- this was at the beginning of

4 1997 when his name appeared as the commander.

5 Q. And just to complete the circuit, 6D591, you mentioned that this

6 judgement was subject to an appeals judgement. 6D591, is that the -- is

7 that the appeal of this case?

8 A. Yes, it is.

9 Q. Okay. Now this particular case we've looked at regarding the

10 parallel or the illegal MUP and the --

11 JUDGE BONOMY: What -- sorry, Mr. Ivetic. What is 6D589? It also

12 relates to the same case I take it?

13 MR. IVETIC: 589 ought to be the indictment.

14 JUDGE BONOMY: Yes, it's -- I thought it was the later stage, but

15 it was the very earliest stage and 591 --

16 MR. IVETIC: Is the final --

17 JUDGE BONOMY: Is the final --

18 MR. IVETIC: -- appeals judgement.

19 JUDGE BONOMY: Thank you very much.


21 Q. This particular case that we've looked at with illegal MUP and the

22 efforts to establish illegal police stations and to bring in weapons into

23 the country, were all the legal protections and procedures available under

24 law implemented and made available to the defendants at that time?

25 A. As regards the investigation and the issuing of the indictment,

Page 23521

1 all the institutions, the SUP, the court, and the prosecutor's offices

2 took all the actions under the powers that they have under the law and

3 they complied with the legal provisions. Now, as regards this case, if

4 this is what the Defence counsel has in mind, as far as I can recall, I

5 issued a decision in this case temporarily barring the defence counsel in

6 this stage of the investigation before the indictment is issued to inspect

7 the case file and the items that were object of the crime on the request

8 of the prosecution because there were special reasons to do so because of

9 the national security. This decision was temporary until the time when

10 the indictment was issued.

11 Q. Thank you. Now if we could move to a related topic. Did you have

12 occasion to act as an investigating judge in cases where there was

13 credible evidence that the KLA had plans to attack civilian targets

14 including ethnic Serbs and ethnic Albanians?

15 A. Yes.

16 Q. Could you tell us some of your recollections about that, what the

17 particular plans that came to light in the course of your investigations

18 were and what time-period is involved.

19 A. Well, members of the terrorist organization parallel,

20 paramilitary, enemy organization, KLA, started operating as early as in

21 1992. And this could be ascertained from the work on my cases. At the

22 beginning the number was smaller, but as time went by, the number

23 increased. In particular because at one point, based on what I was doing

24 in the investigation of those cases, I came to realize that there had been

25 a disagreement, a clash, between the Democratic Party of Kosovo, headed by

Page 23522

1 Rugova, who wanted to achieve the independence of Kosovo by political

2 means and peacefully, while the KLA members wanted to have an independent

3 Kosovo as soon as possible by violent means. And that is why they engaged

4 in acts of violence, assaults, murders, to create an atmosphere of

5 insecurity among ethnic Albanians and ethnic Serbs, to make the Serbs move

6 out and to beat the Albanians into submission to obey the KLA because they

7 would face punishment otherwise. I know that I as an investigative judge

8 carried out on-site investigations in a large number of cases, and you

9 have an overview in my statement involving Albanian victims who worked in

10 Serbian state institutions, the post office, the municipality, or perhaps

11 they were members of an agricultural co-op or they were forest workers.

12 At any rate, people who agreed to work for the state institutions of

13 Serbia, and they were killed.

14 Q. And did you have occasion in the course of your official duties as

15 a judge to listen to interviews or statements of suspects talking about

16 plans to liquidate Serbs, Albanians, and especially those in positions of

17 government; and if so, could you tell us the specific circumstances of

18 that. And here I have a -- I have in my notes that 6D587 may be -- may be

19 related to this. Perhaps you can assist me.

20 A. Well, in two cases that I investigated for a large group of people

21 suspected of terrorism, and this case that you yourself mentioned, this is

22 an indictment where I had also carried out the investigation. In those

23 cases the accused included those who showed no remorse whatsoever, and

24 they openly talked about their plans and their goals, what had motivated

25 to join the KLA and what they had done. They showed no remorse

Page 23523

1 whatsoever. But there were those among them who in their statements

2 indicated that they had been forced to do some things in order to protect

3 their families, that they had not wanted to take up arms or to undergo

4 weapons training, but they had been forced to do so because had they

5 refused to join the KLA, their families would have been targeted.

6 Q. All right. If we could now specifically look at an instance

7 surrounding the issue of KLA attacks against ethnic Albanians. In the

8 course of your official duty and work as an investigative judge did you

9 take part in an on-site investigation at Gornje Obrinje in 1998 relating

10 to the death of, I believe, a postal worker?

11 MR. IVETIC: And if we could have 6D12 [sic] come up on the screen

12 while the witness is answering, that could help save us some time.

13 JUDGE BONOMY: It's in the statement as 6D1506.

14 MR. IVETIC: Yes, that's the one, 6D1506, I'm sorry.

15 Q. Can you provide us any additional information relative to this

16 incident based upon your recollections of the same or is everything as

17 contained in paragraph 10 of your statement and this exhibit?

18 A. Well, the only thing I can say, it is true that I carried out an

19 on-site investigation with other members of the investigation team that

20 are listed here. The only thing that I can say is that at that time

21 already it was very dangerous to go out in the field, especially in

22 Gornje Obrinje, because we had learned that Gornje Obrinje was already

23 controlled by the KLA. And the initial advice we received from the police

24 was not to go there because it was dangerous. It is a hilly area, and by

25 the time we got to the crime scene -- actually, we went there although it

Page 23524

1 was at our personal risk, but we wanted to go there and conduct an on-site

2 investigation to register everything that had happened there because the

3 victim in that case was an unidentified person at that time. We managed

4 to identify him later. We managed to do the on-site investigation as fast

5 as we could, and we went back in order to minimise the threat to our

6 security.

7 Q. While we're on the issue of security for on-site investigations,

8 can you describe for us what was the security situation like on the ground

9 in 1999 during the course of the NATO bombings and the course of the

10 several on-site investigations that you conducted during that time.

11 A. Well, let me tell you, our security was at risk for a number of

12 reasons, first of all, because of the NATO air-strikes. We never knew

13 where a rocket or any other projectile used by NATO would hit. And on the

14 other hand, there was another danger too because the KLA members

15 stepped-up their activities at that time. I can give you an example of an

16 on-site investigation that was carried out at night-time. I think it was

17 after midnight. We received a report that at the entrance to the village

18 of Maticane, that's at the outskirts of Pristina, it's a part of Pristina,

19 that a body had been found by the road. We went there with the

20 investigation team to carry out the on-site investigation to try to

21 determine who that was and, if necessary, to have that dead body

22 transported to the institute for a corpse inspection. It was night-time.

23 There were no lights because of the NATO air-strikes. We lost our way and

24 we walked right into a trap. We came across some KLA guards. Fortunately

25 the inspector that was part of the investigation team spoke Albanian and

Page 23525

1 he spoke to them in Albanian and he told them that they we had just

2 wandered there. Fortunately they allowed us to go back, and they didn't

3 check who else was in the vehicle. So we were unable to conduct this

4 on-site investigation for this reason.

5 And I also had another high-risk on-site investigation that I

6 carried out in the village of Malisevo. The KLA troops were already

7 there; however, this concerned two police officers who had been kidnapped

8 and held for a week. Their fate was unknown, and seven days later the

9 police found them, their bodies were mutilated, torn into pieces on an

10 asphalt road there at Malisevo. We went there to carry out this on-site

11 investigation, although we risked our lives by doing that, and when we got

12 to the crime scene a fire was opened at us from every direction. We

13 withdrew to a house and waited there for the shooting to subside, and then

14 we went back to Pristina. But we did carry out the on-site investigation.

15 Q. Now if we could return to Gornje Obrinje and this time look at

16 6D197. Can you tell us if at any point in time you were informed about

17 allegations of a killing of civilians in the village of Gornje Obrinje and

18 what the authorities of the Republic of Serbia undertook in regard to

19 those allegations and your involvement in the same.

20 A. I am sorry. I just didn't hear -- oh, the number was 6D what?

21 Q. I'll show you the right document. One moment, please.

22 Oh, okay, there we go.

23 Do you recall being involved in efforts by the authorities of the

24 Republic of Serbia to investigate allegations of killings of civilians in

25 Gornje Obrinje at the tail end of -- in September or October of 1998, I

Page 23526

1 believe it was October -- there it is, the document is on the screen now,

2 in October of 1998?

3 A. Yes.

4 Q. Well, first of all, how did the information come to you for this

5 on-site investigation to be attempted?

6 A. I got a written document from the attorney of the injured parties

7 from Donje Obrinje. They stated that civilians were killed by the police

8 in Gornje Obrinje and that the corpses were buried there. The attorneys

9 suggested that we carry out an exhumation in order to establish whether

10 that was true; and if so, how many bodies were there and what should be

11 done after that. According to the Law on Criminal Procedure I was

12 authorised to carry out exhumation of bodies. In relation to this, the

13 president of the district court and the district public attorney, together

14 with the representatives of the Institute for Forensic Medicine and the

15 representatives of the OSCE mission who were then in Kosovo and Metohija,

16 they all agreed that this investigation would be carried out on the 10th

17 of December, 1998, as this document states. An on-site investigation team

18 was set up. We all agreed to meet up in front of the Institute for

19 Forensic Medicine in Pristina where pathology experts from Finland arrived

20 headed by Helen Ranta then as stated here the director of the Institute

21 for Forensic Medicine, a group of pathologists, workers from the crime

22 technician operative sections of the Pristina SUP, and a number of

23 uniformed police who were supposed to secure the site and we all started

24 out in a convoy that was headed by OSCE vehicles.

25 When we passed Glogovac and as we were getting close to the

Page 23527

1 village of Gornje Obrinje, on the asphalt road itself the vehicles of the

2 OSCE representatives stopped. Since I did not know the reason why they

3 had stopped I got out of my vehicle and along with an interpreter walked

4 up to Helen Ranta to ask her why it was that they had stopped. She

5 answered me that we could not go any further and that we could not enter

6 Gornje Obrinje because there's a barrier at the entrance to the village

7 and this was a KLA check-point. If we were to move further, they would

8 open fire and there could be a conflict. In response, I asked her why she

9 hadn't told us about that earlier and whether she knew about all of that

10 beforehand too. She said that she did know, but she thought that I would

11 agree to go with them on my own. She did not expect an entire team and

12 uniformed police, who according to the law are duty-bound to secure the

13 investigation site when the investigative judge is carrying out an on-site

14 investigation. They suggested that I go with them on my own in order to

15 carry out the on-site investigation, but that they could not guarantee for

16 my security and safety because if the members of the KLA would see me in

17 the car they might get me out and they could not guarantee my security and

18 they didn't know what would happen to me. Of course it is only natural

19 that I did not agree to go on my own with them under those circumstances,

20 and I said that according to the Law on Criminal Procedure an on-site

21 investigation is carried out by an entire team and forensic experts have

22 to be present when there is an exhumation and uniformed police are

23 duty-bound to secure the site and provide for a normal on-site

24 investigation.

25 Since they did not agree that we could all move along, the entire

Page 23528

1 convoy as we were there, they insisted that I go on my own without the

2 police, which I did not accept. They could not accept to go on their own

3 to carry out this exhumation because that is not allowed under the Law on

4 Criminal Procedure. They could be present and they could follow the work

5 of the on-site investigation team, but they were not authorised to carry

6 out any investigative action on their own.

7 Finally we agreed to go back on that day and to agree subsequently

8 on another date when we would go out to the scene and carry out an

9 exhumation. After that, the family members no longer asked for this

10 procedure to continue and the OSCE members never asked for anything or any

11 of the pathologists from the team, so the case remained unfinished as it

12 were.

13 Q. Thank you. Now if we can move on to another incident, 6D --

14 JUDGE BONOMY: I think if you can find a time to interrupt, Mr. --

15 MR. IVETIC: Oh, I apologise.

16 JUDGE BONOMY: -- Ivetic, just when it's convenient.

17 MR. IVETIC: We might as well now if there's any business the

18 Court needs to finish. We have three minutes --

19 JUDGE BONOMY: There's nothing else we can deal with, but if this

20 is a suitable juncture then we can adjourn now.

21 MR. IVETIC: We can adjourn now because I have two or three

22 questions on the next document which I probably wouldn't finish in three

23 minutes.

24 JUDGE CHOWHAN: Sorry, then this investigation just never took

25 place again because you returned?

Page 23529

1 THE WITNESS: [Interpretation] No, because after that the

2 conditions were aggravated even further. It was risky because

3 Gornje Obrinje was under the command and control of KLA soldiers.

4 JUDGE CHOWHAN: But did that complainant who wanted the bodies to

5 be exhumed ever approach you again?

6 THE WITNESS: [Interpretation] No, no.

7 JUDGE BONOMY: We have to terminate our proceedings for the day at

8 this stage, Mrs. Marinkovic, and have to require you to return, I'm

9 afraid, that will be on Tuesday, and it will be at 9.00 and in Courtroom

10 I. As I am sure you are very well aware, it's vital that you should have

11 no communication with anyone at all about any aspect of the evidence in

12 this case while you remain a witness before us.

13 Now could you please leave the courtroom with the usher and we'll

14 see you at 9.00 on Tuesday.

15 We shall now go briefly into private session.

16 [The witness stands down]

17 [Private session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 23530

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 --- Whereupon the hearing adjourned at 1.44 p.m.,

9 to be reconvened on Tuesday, the 4th day of

10 March, 2008, at 9.00 a.m.