Page 12954
1 Wednesday, 17 March 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.05 a.m.
5 JUDGE PARKER: Good morning.
6 MR. DJORDJEVIC: [Interpretation] Good morning. Before we begin
7 the further examination of the witness, Your Honour, the Defence wishes
8 to raise an issue concerning D65 ter 280. This is part of the KiM
9 dossier as it's called. We have a number now, so we move that these
10 documents be admitted into evidence. The number is D011-4582.
11 JUDGE PARKER: Thank you.
12 Any objection, Ms. Gopalan?
13 MS. GOPALAN: No, Your Honours.
14 JUDGE PARKER: It will be admitted.
15 MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour.
16 THE REGISTRAR: This will be Exhibit D888, Your Honour.
17 [The witness entered court]
18 JUDGE PARKER: Good morning.
19 THE WITNESS: [Interpretation] Good morning.
20 JUDGE PARKER: I'd remind you the affirmation you made to tell
21 the truth still applies, and Mr. Djordjevic continues his questions.
22 MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour.
23 WITNESS: DANICA MARINKOVIC [Resumed]
24 [Witness answered through interpreter]
25 Examination by Mr. Djordjevic: [Continued]
Page 12955
1 Q. [Interpretation] Good morning, Ms. Marinkovic.
2 A. Good morning.
3 MR. DJORDJEVIC: [Interpretation] Could we now have D007-0440
4 brought up on the screen, please.
5 Q. We'll wait a little bit, and it's tab 34 in your binder. And
6 when this document comes up, I would like you to comment on it, on the
7 most important points in it.
8 We now have the front page of the document. It's an indictment,
9 a very voluminous one, so we will not go through all of it. I will
10 simply ask you whether you are familiar with this indictment; and if so,
11 whether you could comment on it.
12 A. The indictment we now see on the screen KT number 191/94, dated
13 the 7th of April, 1995, is familiar to me. The indictment was filed by
14 the district public prosecutor in Pristina with the district court, and
15 I'm familiar with the indictment because in this case in the proceedings
16 against the persons listed in this indictment I acted as the
17 investigating judge. Based on my investigation the public prosecutor
18 continued criminal proceedings against these persons and filed an
19 indictment. They are accused of the crime of conspiring to engage in
20 hostile activities as prescribed in Article 136, paragraph 2 of the
21 Criminal Code with the purpose of -- of violating the territorial
22 integrity according to Article 116, paragraph 1 and engaging in terrorism
23 under Article 125. I wish to add that I carried out an investigation
24 against 88 persons, and after I had completed my investigation the
25 indictment was filed against 72 persons. The Prosecutor decided not to
Page 12956
1 indict 12 persons because there was insufficient evidence, so that any
2 further criminal proceedings or investigations against these persons were
3 stopped.
4 From this indictment it is evident that these persons are of
5 Albanian ethnicity, and if you look at the counts in the indictment one
6 can establish that they're accused of engaging in the period from 1992 to
7 1994 in November when they were all arrested of creating a hostile
8 association, an illegal MUP, that they had become members of this enemy
9 association, with the aim of engaging in anti-constitutional activities
10 to imperil the constitutional order of Yugoslavia and the territory of
11 Serbia
12 territory of the Republic of Serbia
13 Kosovo from Serbia
14 Q. Thank you. I think this is quite enough.
15 MR. DJORDJEVIC: [Interpretation] I wish to tender this document
16 into evidence, Your Honour.
17 JUDGE PARKER: It will be received.
18 THE REGISTRAR: This will be Exhibit D889, Your Honour.
19 MR. DJORDJEVIC: [Interpretation] Could we now have Defence
20 document D011-4579.
21 Q. In your binder it's number 37. It's not the next document in
22 consecutive order, but I'm sure you'll find it.
23 You can tell us what this is about now, please.
24 A. I'm familiar with this document. This is a copy of the judgement
25 handed down by the district court in Pristina. The Trial Chamber
Page 12957
1 consisted of five judges, two of whom were professional judges, while the
2 remaining three were judge jurors. The Trial Chamber handed down a
3 judgement in connection with the indictment we saw previously against
4 Avdija Mehmedovic and others, all of whom are listed in the preamble of
5 this judgement. The judgement is K number 29/95 and 38/95.
6 In this judgement the accused are found guilty. There were 72
7 people indicted and 69 of them were found guilty of the crime they were
8 indicted for. I won't repeat the articles of the law, and they were
9 sentenced to various lengths of time. And all this is described in the
10 grounds given in the judgement. The judgement also mentions the evidence
11 taken into consideration by the Trial Chamber and the defence put forward
12 by the accused, and the Trial Chamber established that there had been
13 elements of the crime of creating an illegal MUP within the scope of
14 which there were centres of public and state security, that they had
15 established forensic departments, operative systems, that they had
16 conducted illegal on-site investigations in parallel with the proper
17 institutions, that they had arrested persons of Albanian and other
18 ethnicity, and that they had regularly sent reports to their illegal
19 government which was acting abroad, from abroad.
20 As I was the investigating judge in this case, a large number of
21 exhibits were found and their numbers are listed here, the pseudonyms
22 they used, the code books they used. The ultimate goal of their illegal
23 activity was to have part of the territory of the FRY secede from
24 Yugoslavia
25 Q. Thank you. You mentioned the Trial Chamber consisting of five
Page 12958
1 judges, two of whom were professional judges and three judge jurors.
2 Could you briefly explain what this means.
3 A. In view of the crime they were accused of and the sentence
4 prescribed for this crime under the Law on Courts, the composition of the
5 Trial Chamber had to consist of five members, two of whom had to be
6 professional judges and the others were citizens of various professions
7 who were elected as judge jurors in the court.
8 MR. DJORDJEVIC: [Interpretation] Your Honours, I move that this
9 document be admitted into evidence.
10 JUDGE PARKER: Yes.
11 THE REGISTRAR: This would be Exhibit D890, Your Honour.
12 JUDGE PARKER: On what has been shown on the screen we haven't
13 seen the date. Can we learn the date of this judgement?
14 THE WITNESS: [Interpretation] I will tell you on what page the
15 date is to be found.
16 MR. DJORDJEVIC: [Interpretation] It's certainly there somewhere.
17 THE WITNESS: [Interpretation] Well, I will look at the overview I
18 drew up. The date is the 17th of July, 1995.
19 MR. DJORDJEVIC: [Interpretation] It's on page 5 of the B/C/S
20 version, if it can be shown on the screen, please.
21 JUDGE PARKER: That's enough. We don't need to see it. We just
22 need to hear it. Thank you.
23 MR. DJORDJEVIC: [Interpretation] Thank you, Your Honours.
24 The next document is D007-0541.
25 Q. In your binder it's tab 35, Mrs. Marinkovic. Please just comment
Page 12959
1 on it briefly. It was the intention of the Defence to show how
2 proceedings were conducted from the indictment, through the trial, to the
3 final appeal. What do we have here?
4 A. This is the appeal judgement of the Supreme Court of Belgrade.
5 It's K number I726/96 and the date is the 14th of March, 1997. In this
6 judgement the Supreme Court of Serbia decided in the appeal against the
7 judgement we have just seen. Some of the -- some of -- some parts of the
8 appeal were upheld and some sentences were reduced by the Supreme Court.
9 So some bases of appeal were upheld.
10 Q. Can you tell me something about the composition of the Chamber?
11 A. The Chamber consisted of three professional judges. One was the
12 Presiding Judge and the other two or members of the Trial Chamber.
13 Q. Thank you.
14 MR. DJORDJEVIC: [Interpretation] I move that this document be
15 admitted into evidence.
16 JUDGE PARKER: It will be received.
17 THE REGISTRAR: This will be Exhibit D891, Your Honour.
18 MR. DJORDJEVIC: [Interpretation] The next document is D007-0562.
19 Q. In your binder it's number 36. Please go ahead.
20 A. What we see on the screen here is a copy of the judgement with
21 the district court in Pristina handed down in the name of the people.
22 The number is K 37/97. The judgement was handed down on the 11th of
23 July, 1997, and the Trial Chamber consisted of five members, two of whom
24 were professional judges and three judge jurors. I'm familiar with this
25 judgement because in this case I was the investigating judge against the
Page 12960
1 persons indicted here. These persons were charged with the criminal
2 offence of terrorism under Article 125 of the Criminal Code of
3 Yugoslavia
4 In this case where I conducted the investigation, for the first time in
5 the practice of the district court in Pristina the court -- so actually,
6 this was the first time that the criminal offence of terrorism was
7 investigated and tried in the district court. The investigation was
8 conducted against 15 persons, but only three were available, only three
9 could be arrested; and the remainder were at large. So that the
10 investigation was carried out in their absence. An arrest warrant was
11 issued against them, and afterwards when the indictment was filed they
12 were tried in absentia.
13 In this judgement where the accused are found guilty, all 15 of
14 them, all of them are Albanians by ethnicity; and it was proved in the
15 course of the proceedings that that they had created an enemy terrorist
16 organisation, that they had been members of it, that the members of this
17 organisation went for training in Albania, training in the handling of
18 weapons. From Albania
19 and Metohija and then they launched terrorist attacks in a certain
20 time-period from 1993 to 1998. They launched attacks in a co-ordinated
21 manner in various towns and villages on the territory of Kosovo
22 Metohija. Their attacks were aimed at civilians, both Albanians and
23 non-Albanians; against members of the police; against buildings housing
24 police stations. They attacked buildings where refugees were housed;
25 they launched attacks from ambushes, opening fire on vehicles in which
Page 12961
1 there were police officers. Their guilt was proved in the proceedings.
2 A certain number of persons were killed, a certain number were injured.
3 They survived but remained invalids. A certain amount of weapons were
4 found. They attacked buildings by throwing explosive devices and
5 hand-grenades and firing from automatic weapons. And all this was done
6 for political motives. Their aim was to cause fear and panic among the
7 citizens, to force Albanians who did not wish to join the KLA to do so.
8 And a large-scale exodus of Serbs and other non-Albanians began, and
9 their purpose was to endanger the territorial integrity of the FRY, to
10 cut off a part of the territory, create separate state, and later on to
11 join it up with Albania
12 I only wish to add one thing. One of the accused in this group
13 who were found guilty of terrorism is Hashim Thaqi, who was tried in
14 absentia. He was proved to be guilty of terrorism, and he was sentenced
15 to ten years in prison. Now he is the prime minister of the so-called
16 Independent Kosovo.
17 Q. Thank you.
18 MR. DJORDJEVIC: [Interpretation] I seek to tender this into
19 evidence, Your Honours.
20 JUDGE PARKER: Could you assist me, please, with the date of this
21 conduct. The indictment seems to have been July 1997, so the conduct
22 investigated must have been before then. Are you saying that it was
23 found that the KLA existed and was functioning in Kosovo before July
24 1997?
25 THE WITNESS: [Interpretation] Yes. I apologise. Perhaps I can
Page 12962
1 provide an example as a clarification. If you look into the grounds
2 given, you can see that there was a terrorist attack in 1993 at a
3 railroad crossing on the road between Glogovac and Pristina. A police
4 van was moving along that route with the policemen going to Pristina to
5 work.
6 JUDGE PARKER: The point of my question was not whether there was
7 terrorist activity, but whether it was what we know as the Kosovo
8 Liberation Army?
9 THE WITNESS: [Interpretation] It had existed in 1993, the
10 terrorist gang that called itself the Kosovo Liberation Army. However,
11 they were much smaller in numbers at the outset and then they increased
12 their numbers, established units and staffs, et cetera.
13 JUDGE PARKER: Many seem to have taken the view that the Kosovo
14 Liberation Army really came into existence as an entity in February or
15 March 1998. I'm just very curious that you seem to identify it much
16 earlier, even in 1993.
17 THE WITNESS: [Interpretation] What I'm saying that they existed
18 as early as 1993 is because I had conducted investigations into certain
19 cases where the accused spoke about that. When I say that it existed in
20 1993, I have in mind that period during which there was a group of
21 criminals fleeing from the law. They were small in numbers and they did
22 not pronounce openly their existence. However, the band of criminals did
23 term themselves the KLA and started being active in the area of Drenica
24 and Srebrenica. After that they managed to gain membership and continued
25 with the training and activities in the field. If you take a look at the
Page 12963
1 overview I showed here, I included all their terrorist actions in terms
2 of dates, starting with 1993 onwards.
3 JUDGE PARKER: Thank you very much.
4 MR. DJORDJEVIC: [Interpretation] Defence will not have any
5 further questions along this line of questions, although it was our
6 original intention to put a question much similar to yours. I would like
7 to thank you for that. I believe this was very useful. Before moving on
8 to the next document I seek to tender this one into evidence.
9 [Trial Chamber confers]
10 JUDGE PARKER: It will be received.
11 THE REGISTRAR: This would be Exhibit D892, Your Honour.
12 MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour.
13 The next document is D007-0356.
14 Q. In your binder, Ms. Marinkovic, it is tab 38. This is another
15 indictment. Please provide us with a brief comment.
16 A. The document we have on the screen is an indictment issued by the
17 district prosecutor. It was submitted against the persons stated
18 therein. There were 21 of them in total, all Albanians. This indictment
19 was raised after an investigation was conducted which was headed by me.
20 The accused were charged with the crime of terrorism. As you can see in
21 the grounds given, this group too created a terrorist association of
22 which they were members. In the territory of Kosovo
23 carried out terrorist attacks against SUP facilities as well as against
24 facilities housing refugees and those under construction. They also
25 attacked buildings and property owned by Albanians. In those attacks, as
Page 12964
1 charged in the indictment, they premeditated -- they were accused of
2 premeditated murder or attempts to murder several people. They caused
3 harm to life and limb of a number of people and caused great material
4 damage. After all the terrorist attacks described in the indictment, the
5 terrorist organisation which called itself the KLA took on the
6 responsibility for those attacks by issuing 29 communiques.
7 Q. Thank you.
8 MR. DJORDJEVIC: [Interpretation] I seek to tender this document
9 into evidence.
10 JUDGE PARKER: It will be received.
11 THE REGISTRAR: This would be Exhibit D893, Your Honour.
12 MR. DJORDJEVIC: [Interpretation] This is another indictment which
13 is D007-0406.
14 Q. In your binder it is tab 39.
15 A. What we can see on the screen is another indictment raised by the
16 district public prosecutor in Pristina after an investigation was carried
17 out headed by myself following a request of the public district
18 prosecutor. The accused were charged with the crime of associating in
19 order to carry out enemy activities, and in particular crimes of
20 terrorism as well as endangering the territorial integrity of the state.
21 I won't go through the article numbers again since we have already
22 mentioned that.
23 As you can see in the left top corner, the KT number is 201/93.
24 This concerns the group which continued its activities after a part of
25 that group had been arrested within the illegal Ministry of National
Page 12965
1 Defence. That group was -- the original group was tried in 1993, and
2 they were pronounced guilty and received prison sentences. This group
3 was detected later. In Pristina they published and distributed an
4 illegal newspaper, given its contents. They advocated the creation of
5 the state of Kosovo. Their plan was to serve the urban area and to
6 establish guerilla units within that area. They were trained in the
7 handling of weapons so as to be ready once the KLA initiated their
8 attacks. They would then use those guerilla units to carry out attacks
9 against citizens in towns.
10 Q. Thank you.
11 MR. DJORDJEVIC: [Interpretation] I seek to tender this document
12 into evidence.
13 JUDGE PARKER: It will be received.
14 THE REGISTRAR: This would be Exhibit D894, Your Honour.
15 MR. DJORDJEVIC: [Interpretation]
16 Q. We will move on to the next topic, which I am inclined to title
17 Racak. This will bring us closer to the close of this
18 examination-in-chief.
19 MR. DJORDJEVIC: [Interpretation] Could we please have D149.
20 Q. In your binder it is tab 40. This is an Official Note. Let's go
21 through it to see what it is, who drafted it, when, why; in brief, the
22 details.
23 A. The Official Note we have on the screen is mine. I put it
24 together as an investigating judge. It is number 14/99. It states that
25 on the 15th of January, 1999, I tried to enter the village of Racak
Page 12966
1 to carry out an on-site investigation concerning a previous terrorist
2 attack which occurred there. I was prevented from completing the
3 investigation because after we had entered the village of Racak
4 opened at us from different types of weapons forcing us to turn back. In
5 this note it is stated that on that day I was informed by the duty
6 service of the Urosevac MUP that there had been a terrorist attack in
7 Racak and that I was supposed to decide whether there should be an
8 on-site investigation or not. Before setting out from Pristina for
9 Stimlje in the police station from which we were supposed to go further
10 afield and eventually reaching Racak, I was visited by the deputy
11 district prosecutor in my office, Mr. Ismet Sufta. He was on duty that
12 day like I was. He agreed with me that we were to go there to conduct
13 that investigation.
14 Once we reached the Stimlje police station, we were awaited there
15 by Mr. Janicijevic, who was the chief of the secretariat. He shared with
16 us the information as to what had happened that morning. He told us that
17 in the early hours of the 15th of January, 1999, there was a clash
18 between the police and members of a terrorist gang in the village of
19 Racak, which was their stronghold including Racak and its surrounding
20 villages. Given that the policemen had already secured the scene to
21 create the preconditions for our on-site investigation, the chief used
22 radio communication to get in touch with them. At a certain point in
23 time, he was informed that there is a lull, that there was no sporadic
24 firing from the hills, and that the team could indeed go to Racak to
25 conduct that on-site investigation.
Page 12967
1 Together with the other members of the team and escorted by the
2 police, I went to the village of Racak
3 there at around 2.00 p.m.
4 that they collected all of the weapons they could find in the nearby
5 hills. All the weapons were put in a single spot. Together with the
6 prosecutor and other team members such as scene of crime officers and the
7 general crime inspector who was there, we saw all the weapons there. I
8 specified the items found in terms of weapons, military uniforms, ammo
9 crates with the ammunition of different calibres. We also found a
10 Browning machine-gun, the calibre of which is 12.7 millimetre and another
11 Browning machine-gun, the calibre of which was 7.9, 36 automatic rifles,
12 two sniper rifles, five hand-held rocket-launchers, 12 mines --
13 THE INTERPRETER: Interpreter's correction: 12 mortar shells.
14 THE WITNESS: [Interpretation] 22 hand-grenades, radio stations,
15 hand-held radios, medical equipment, as well as military equipment
16 bearing KLA insignia. All the weapons were found there and photographed.
17 I ordered the police to load the weapons into the vehicle.
18 After everything was done, we inspected the area, searching for
19 any casualties. However, at that point in time they opened fire on us.
20 The police advised me that it would be a risky thing to proceed for
21 reasons of safety, and they recommended that we turn back. We indeed did
22 so. While returning from Racak one could hear sporadic firing from the
23 nearby villages; however, we managed to reach the Stimlje police station
24 safe and sound. We agreed that the next day, on the 16th, we were to go
25 to Stimlje again and to attempt another on-site investigation.
Page 12968
1 Q. Thank you. This was on the 15th. I will have a number of other
2 questions, one of which will be slightly off on a tangent, but I believe
3 it is rather important. You mentioned the public prosecutor who visited
4 the scene with you that day. I believe his name was Ismet Sufta. Who
5 were the prosecutors during the NATO air campaign with the district
6 prosecutor's office in Pristina, and did they observe the same schedule
7 as the municipal and district courts, or were they organised in a
8 different fashion?
9 A. In the district prosecutor's office there was a single district
10 prosecutor who was the head of the office. He had his deputies, five or
11 six of them. They followed his instructions.
12 Q. Who was the district prosecutor?
13 A. Slavko Stefanovic was the district prosecutor at the time.
14 Q. Do you recall who the deputies were, at least the names of those
15 whom you can remember and whom you worked with?
16 A. Jovica Jovanovic was one, then Miodrag Surla, Dragomir Zivic [as
17 interpreted], Ismet Sufta, Ljiljana Delic, and Radojka Vlahovic.
18 Q. Thank you. Did they all continue working throughout the war, all
19 six of them plus the head of the office?
20 A. The district prosecutor remained in his position as well as Ismet
21 Sufta. For a while Dragan Zivic worked as well. Before that Jovica
22 Jovanovic and Miodrag Surla went to join the military prosecutor's
23 office. They were later joined by Dragan Zivic. Ljiljana and Radojka,
24 the female colleagues, since they had minor children, were not under work
25 obligation and they left Pristina for security reasons with their
Page 12969
1 families.
2 Q. Thank you. I will go back to your Official Note. Upon entering
3 the village of Racak
4 notice any damage caused by any heavy weapons on the 15th of January?
5 A. On that first day, I did not notice any type of damage on the
6 houses which could indicate that there had been shelling or heavy pieces
7 engaged there.
8 Q. Thank you. My next question is as follows: When you went to
9 carry out this on-site investigation, did you notice any fortifications,
10 trenches, dugouts, or anything of that sort? Did you have time to
11 observe anything like that on that day?
12 A. On that day we did not manage to tour the terrain so that apart
13 from the weapons we seized on the site we were not able to observe
14 anything else.
15 Q. During the investigation were there any local people in the
16 village?
17 A. One could see that the village was deserted, that there was no
18 one around. We saw no people or animals. I gained the impression that
19 the population had been moved out.
20 Q. As this is the 15th of January, 1999, just before the NATO
21 air-strikes against the FRY, you said that the police had to inform the
22 international observers in line with the agreement reached. Do you know
23 whether they did so?
24 A. Yes. In Pristina when I was informed by the SUP duty service
25 that an incident had occurred in the village of Racak
Page 12970
1 carry out an investigation, I reminded the duty service that they should
2 immediately inform the headquarters of the OSCE and that they should go
3 to Stimlje, where we would meet up and go to Racak together.
4 Q. But were there any members from the OSCE waiting for you in
5 Stimlje?
6 A. No.
7 Q. You decided that on the next day you would again go on that site,
8 that was the 16th of January. What did you do on that day? Did the same
9 prosecutor go with you? Did the same police officers secure the spot?
10 What happened on the 16th of January, to the best of your recollection
11 and based on this note?
12 A. On the 16th of January, as agreed with the members of my team, we
13 set out from Pristina to Stimlje. This was at around 10.00 or 10.30
14 a.m., and we arrived in Stimlje and first went to the police station
15 there in order to find out whether it was safe to proceed to Racak and
16 whether the police could guarantee our safety while conducting the
17 investigation. When we arrived in Racak, or rather -- no, when we
18 arrived in the Stimlje police station, everything was quiet. As Racak is
19 nearby and we could not hear any shots being fired from afar, I set out
20 with my team escorted by the police to the village of Racak
21 road, however, as soon as we turned off the main road going from Stimlje
22 to Prizren and Urosevac, hardly had we arrived halfway, fire was opened
23 on us from all directions so that we turned back. And on that day we did
24 not manage to get to the village or carry out an investigation.
25 Q. Do you recall anything special about that day, the 16th of
Page 12971
1 January, and Racak?
2 A. On that day, as we did not manage to carry out an on-site
3 investigation, we went back to Stimlje police station and again in
4 agreement with the prosecutor and the other members of the team we
5 decided that on the following day, the 17th of January, we would try
6 again. We then set out towards Pristina from Stimlje and we all went
7 home. In the evening when I switched on my television the first news
8 item I saw showed Mr. Walker -- a picture of him entering the village of
9 Racak with members of the OSCE --
10 Q. I have to interrupt you. You saw this on the 16th?
11 A. Yes, on the 16th in the evening.
12 Q. Yes. Please go on. I apologise for interrupting you.
13 A. I heard Walker
14 was speechless, dumbfounded. Walker had entered Racak before the
15 official and authorised on-site investigation team, which had been
16 prevented from carrying out its work. Walker had entered Racak on his
17 own, without any agreement or consultation with us and made the statement
18 that a massacre had taken place.
19 Q. Thank you. What happened on the 17th of January?
20 A. On the 17th of January, together with the members of the
21 investigation team - and I also invited a forensic expert, Dr. Slavisa
22 Dobricanin, who was the director of the forensic institute in Pristina,
23 and he joined the team, I thought I might need his help in case I was
24 able to carry out an on-site investigation on that day and in case we
25 found any corpses. At the police station in Stimlje, where we arrived in
Page 12972
1 the afternoon, and both on the 16th and the 17th, the duty service had
2 informed the representatives of the OSCE that they should come to Stimlje
3 police station at a certain time if they wanted to join me and the other
4 members of the investigation team and go with us to the village of Racak
5 to carry out the inspection. On the 16th no one from the OSCE was there,
6 but on the 17th when we arrived at the police station in Stimlje,
7 upstairs in the office of the chief members of the OSCE led by Walker
8 deputy, a British General John Drewienkiewicz arrived there. After
9 introductions I told them that if the security conditions were in place
10 we would go to the village of Racak
11 investigation. When the English general, John, heard that he raised his
12 voice and started issuing orders to me. I was surprised by this. I
13 couldn't believe it. I can say here that the only person who ever tried
14 to influence my work or prevent me from carrying out my job as an
15 investigating judge was General Drewienkiewicz, who had no right to do
16 that. He told me angrily that I could not go to Racak, that I could go
17 to Racak only with him and without a police escort, that in Racak there
18 were local people who would be frightened if they saw the police, that
19 they would open fire on the police, and I said to him, "If you say that
20 there are local people there, why would they open fire? Are the local
21 villagers armed or not? If they are armed, are they villagers or are
22 they soldiers?" He was even more irritated by what I said and he said,
23 "You must not go to Racak because if you do there will be more victims.
24 The 'villagers' will open fire. I will inform my chief Walker and tell
25 him to stop you from doing this."
Page 12973
1 I tried to explain to him that no one could prevent me from going
2 to Racak and carrying out an on-site investigation because that was my
3 duty as an investigating judge. I already knew that there had been an
4 incident in Racak, I had been informed of that officially, and it was my
5 duty to carry out an on-site investigation and establish what had
6 happened on the spot, search for evidence, establish whether there were
7 any casualties, how many, and what they had died of. He became even
8 angrier when he saw how persistent I was, and he threatened me. He said
9 if I entered the village and if innocent villagers got killed, he would
10 report me to the ICTY, and I would be responsible if any more people got
11 killed.
12 There we parted ways. He decided not to go. He withdrew with
13 the other members of his team, and I set out with the members of my team
14 and a police escort to the village of Racak
15 village of Racak we came as far as the entrance to the village. Fire was
16 opened on us again from all directions. Shooting started so we could not
17 turn back, but we did and we were fired at all the way. On that day
18 there was damage to an institution for retarded children, the health care
19 clinic, the police station, and an official vehicle which was parked in
20 the yard of the police station. We did not manage to carry out an
21 on-site investigation on that day.
22 Q. Thank you. We'll pause here. The next exhibit, or rather,
23 document is dated the 18th of January, and I move that it be admitted
24 into evidence.
25 JUDGE PARKER: It will be received.
Page 12974
1 MR. DJORDJEVIC: [Interpretation] I do apologise. I see that it
2 is already a Defence exhibit. My mistake. Thank you. We will proceed.
3 JUDGE PARKER: What is the Defence exhibit number? Is that D149?
4 THE REGISTRAR: D149.
5 MR. DJORDJEVIC: [Interpretation] That's right, Your Honour, yes.
6 JUDGE PARKER: Thank you.
7 MR. DJORDJEVIC: [Interpretation] I apologise once again. The
8 next document is D48.
9 THE INTERPRETER: 148. Interpreter's correction.
10 MR. DJORDJEVIC: [Interpretation]
11 Q. Please go ahead. It's in your binder number 41.
12 A. What we see here on the screen is a record of the on-site
13 investigation. The number is KRI 14/99. I drew up this report
14 concerning the on-site investigation I carried out on the 18th of
15 January, 1999, in the village of Racak
16 village of Racak on the fourth day. The members of the on-site
17 investigation team are listed, and we see here that the investigation
18 commenced at 1400 hours. As on the previous days, I and the members of
19 the investigation team set out from Pristina to Stimlje in a car. When
20 we arrived at Stimlje we first went to the police station there. This
21 was at around noon
22 and we spoke to him, asking him what the situation was on the ground and
23 whether the conditions would be in place for us to go on site. The chief
24 of the branch [as interpreted] police station, Mitic, was in the office
25 with the chief of the secretariat. He was there and he was following
Page 12975
1 what was going on. The chief had a radio station, by means of which he
2 communicated with the policemen who were at Racak.
3 While we were talking there, after about half an hour or 20
4 minutes, General Djordjevic entered the office. We were introduced to
5 him. That was the first time I had met him, and he spoke to the chief of
6 the secretariat to learn whether the conditions were in place and whether
7 the team could go on site and carry out an on-site investigation. The
8 chief of the secretariat, Janicijevic, described the situation to him but
9 I wasn't paying much attention to all the details. After a while, the
10 chief of the secretariat told us that he had been informed from the
11 ground that there was a lull, that it was currently quiet in the village,
12 that we could set out in order to try to carry out an on-site
13 investigation on that day. With my colleague, the prosecutor, and Sasa
14 Dobricanin, the court forensic expert, I left the building of the police
15 station, when I was approached by representatives of the OSCE. They told
16 me they had arrived and that they wanted to go with us if the conditions
17 were in place for carrying out an investigation on that day. These were
18 two Americans and one Italian, and they had an interpreter interpreting
19 from English into Serbian and vice versa. I entered their names into the
20 record.
21 When we were about to set out, everyone entered their own
22 vehicle, and Mitic, the chief of the branch police station, came down and
23 said he would go with us. He said that he had been told to do so by
24 Janicijevic, his chief of secretariat. In view of the fact the situation
25 had been risky and unsafe on the previous days, he was supposed to escort
Page 12976
1 us and provide for our security in case there was any firing or any risk.
2 We set out in a convoy and arrived at Racak. There was no
3 shooting along the way. When we entered the village of Racak
4 vehicles, and started towards the village, one of the police officers who
5 was already there approached me and told me that there were bodies in the
6 mosque. Together with the investigation team, the representatives of the
7 OSCE, so all of us together, we entered the mosque and we all viewed the
8 bodies in the mosque together.
9 In the mosque, as I stated in this report, we saw 40 bodies; 39
10 of whom were men, and one was a woman. The bodies were lined up. They
11 were all dressed. They had shoes which looked like military boots. Some
12 had dark grey, others navy blue military trousers, and they had military
13 belts on those trousers. The forensic technician, acting on my orders,
14 numbered the bodies. They were photographed. Dr. Dobricanin inspected
15 each body visually and immediately stated out loud that there were no
16 traces of any slaughter on those bodies. On one or two bodies there was
17 damage to the head -- injuries to the head, where the forensic experts
18 said these had been caused by birds or animals because the corpses had
19 lain outdoors for a while.
20 After the corpses had been photographed, each body was put into a
21 separate body-bag according to the proper procedure, and they were placed
22 in a refrigerator truck which was immediately sealed in the presence of
23 the OSCE. And this refrigerator truck containing 40 bodies on my orders
24 went immediately to the Forensic Institute in Pristina, there to await
25 further instructions from me as the investigating judge.
Page 12977
1 After this, as it was quiet, there was no shooting, we were not
2 hindered by anyone, we went on to inspect the terrain and see what other
3 evidence we could find. We thought we might find other corpses or
4 perhaps the pit I had seen on television where Walker had shown bodies
5 lying there, saying that allegedly there had been a massacre. When we
6 set out on foot along the hill we immediately came across trenches, and
7 following those trenches we arrived at an abandoned house. When we
8 entered that house we found various objects, which gave us to understand
9 that the KLA headquarters had been located there. We found weapons,
10 uniforms, lists, duty rosters of members of the KLA. In the yard next to
11 the house where the headquarters had been, we found a store of food,
12 large quantities of flour, cigarettes, eggs. We found a kitchen where
13 food was prepared and where there were tables and chairs. It gave us the
14 impression that large numbers of people had eaten there.
15 In the house itself we found mortars for hand-held
16 rocket-launchers, seven rounds of ammunition, a large quantity of
17 bullets, three hand-grenades, trousers, and green vest with hand-grenades
18 and bullets in the pockets as well as propaganda material. Everything
19 that was found in that house was photographed, numbered, labelled,
20 recorded, and I entered all this into my record. And then these items
21 were seized for further investigation and forensic work.
22 When we continued on our way, we followed the trenches which ran
23 from the bottom of the hill to the top on both the right-hand side and
24 left-hand side. In the trenches we found very many spent shell casings
25 or cartridges. We found the tools that had been used to dig these
Page 12978
1 trenches, and we found parts of uniforms here and there. When we reached
2 the top of the hill, which was known as Vis, we found a machine-gun nest.
3 A big room had been dug into the hill which contained a stove which could
4 be used to burn wood. We found wooden beds, military blankets, coats,
5 jackets, and trousers, and all around there was a large quantity of spent
6 cartridges made in China
7 There was a military canvas there as well as a tripod for the
8 machine-gun. It was all included in our note about the on-site
9 investigation, and all the items were taken away to be used as evidence.
10 Throughout the investigation the OSCE observers accompanied us. They did
11 not try to interfere with our work. They only occasionally put
12 questions, and I provided answers with the assistance of their
13 interpreter. Throughout the investigation one of the scene of crime
14 officers was tasked with video recording everything we found. We toured
15 most of that village and the entire village. We did not, however, manage
16 to locate the pit that Walker
17 follow another route going downhill on the other side, trying to find the
18 pit; however, having reached the foot of the hill, we were still unable
19 to find any other casualties or traces of massacre or blood. When we
20 went back to the village centre, we were still walking between the houses
21 when fire was opened at us. I'm not a soldier, but there was firing all
22 around from different types of weapons, I believe. There were bullets
23 zooming about. We were trying to take cover. It was so risky and
24 basically none of us believed we would get out of there alive.
25 We ran downhill any which way we could, and we tried to take
Page 12979
1 shelter in the house together with the OSCE representatives. We,
2 however, did not manage to reach the house because the firing was so
3 strong we had to lie down. We managed to reach our vehicles. We got in
4 and left the village as quickly as possible. The fire continued
5 throughout. At a certain point along our route, we felt that something
6 had struck our vehicle, the vehicle where the forensic expert and I were.
7 The vehicle was lifted off the ground and fell down again. The vehicle
8 was indeed hit, but fortunately enough no one was injured. We managed to
9 reach the police station eventually and tried to calm down. We took our
10 time to recover before eventually leaving Stimlje.
11 Q. Thank you. On that occasion did you encounter any villagers in
12 Racak?
13 A. No.
14 Q. Thank you. Very well.
15 MR. DJORDJEVIC: [Interpretation] For the record, I just wanted to
16 point something out. Page 21, line 25, it is stated there that Mitic was
17 the chief of the branch police station, but he was actually the chief of
18 the police station, not a branch police station. This was clearly a
19 mistake.
20 THE WITNESS: [Interpretation] No, no, no. Mitic was the chief of
21 the police department in Urosevac.
22 MR. DJORDJEVIC: [Interpretation]
23 Q. Thank you very much for your assistance. There seemed to be
24 something wrong.
25 MR. DJORDJEVIC: [Interpretation] Could we next please have
Page 12980
1 D002-0952.
2 Q. In your binder it is tab 42.
3 MR. DJORDJEVIC: [Interpretation] Could we please have that on the
4 screen. My associate is informing me that the number is incorrect.
5 D003-0952. I apologise. It was a slip of the tongue.
6 Q. It is on the screen now. Could you please provide a comment. It
7 is your tab 42.
8 A. We have a list of those identified who had been killed in the
9 village of Racak.
10 Q. Thank you. Do you have anything to tell us regarding this list,
11 something in particular which may be something you observed? First of
12 all, who identified the bodies, and were there any other examinations
13 conducted on those corpses?
14 A. Concerning the 40 corpses we found, since we did not know their
15 identity, I issued an order to the forensic service to identify the
16 bodies by taking finger-prints which were to be used alongside their
17 identity documents and other files to ascertain their identity clearly.
18 Before that, I issued another instruction which was followed upon the
19 very next. It was when we unsealed the refrigerator truck in the
20 presence of OSCE representatives. The bodies were then taken to the
21 forensic medical institute and paraffin glove samples were taken from all
22 the corpses from the mosque in order to establish whether there were any
23 gunpowder traces on their hands. After that, an order was issued to the
24 forensic medical institute to carry out the autopsies of those bodies.
25 The scene of crime service which took the finger-prints managed to
Page 12981
1 identify all of the bodies. We have their first and last names contained
2 in this document as well as their dates of birth. This concerns the 40
3 bodies we identified which had been found in the mosque in Racak.
4 Concerning this list I can tell you that when I testified as a
5 Defence witness in the case against Mr. Milosevic I was shown a list from
6 the indictment. On that list there were 42 names. It was the first time
7 that I learned that another figure is being used, the figure being 45,
8 although I am certain that there were only 40 corpses that we found in
9 the mosque. Later on, with the assistance of the Trial Chamber and the
10 prosecutor, we established what the differences were between the lists.
11 In the list of 45 there were people who were not found in the mosque at
12 all. We, therefore, corrected the list, bringing it closer to the
13 original list of 40 which I had.
14 Q. Were you familiar with the results of the paraffin glove test
15 concerning the mortal remains that were tested?
16 A. Yes, I received a report concerning that. It was established
17 that 37 corpses contained gunpowder traces. Only three had none.
18 Q. You told me you issued an order to carry out autopsies. Who did
19 that on the mortal remains in question?
20 A. The autopsy of those mortal remains found in the village of Racak
21 was carried out by a Yugoslav team of eminent experts, pathologists, and
22 forensic medical experts. Two Belarus
23 part of the team. They were in Pristina at the time because they were
24 carrying out autopsies of other corpses. Later on a Finnish pathology
25 team joined in. They were not present at the outset. After their
Page 12982
1 arrival from Finland
2 experts who were already working on the corpses agreed.
3 Q. Who headed the Finnish team?
4 A. Helena Ranta.
5 Q. Thank you. Another question before the break. Did you establish
6 the identity of the female found in the mosque in Racak; and if so, could
7 you please tell us who she was? Do you have any information about that?
8 A. The identity of the female corpse was established. Her name was
9 Hanusha Mehmeti [phoen]. My operational information I received from the
10 prosecutor's office indicates that she was the sister of two KLA members.
11 Her father was also a KLA member in Racak.
12 Q. Thank you for your answers.
13 MR. DJORDJEVIC: [Interpretation] I kindly wish to have this
14 document admitted. After the break I will have only a little bit of time
15 left, which I will use well to conclude my examination-in-chief.
16 JUDGE PARKER: The document you want admitted is the list? It
17 will be received.
18 MR. DJORDJEVIC: [Interpretation] Yes, thank you.
19 THE REGISTRAR: This would be Exhibit D895, Your Honour.
20 JUDGE PARKER: We will have the first break now and resume at
21 11.00.
22 --- Recess taken at 10.34 a.m.
23 --- On resuming at 11.02 a.m.
24 JUDGE PARKER: Mr. Djordjevic.
25 MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour.
Page 12983
1 Q. Before we move on to the next document, I wanted to go back to a
2 topic we discussed before briefly only. Ms. Marinkovic, when you entered
3 Racak on the 15th of January the first time and when you came back on the
4 18th -- well, first I asked you about the 15th whether you were able to
5 observe any damage on the houses, and the same question now goes for the
6 18th. Did you observe any damage caused by heavy weapons on the
7 buildings in Racak, and did you notice any other types of destruction
8 such as houses which were burned or things similar to that?
9 A. I didn't see any traces of shelling or of any houses being set
10 ablaze. I didn't notice that on the 15th, on the 16th, the 17th, and the
11 18th.
12 Q. Thank you.
13 MR. DJORDJEVIC: [Interpretation] Could we next please have
14 D003-0959.
15 Q. In your binder it is tab 43. I believe you have already
16 commented on a similar thing during your testimony. I would kindly ask
17 you for your comment now as well.
18 A. This document has to do with the forensic examination of the
19 scene of incident which forms part of the on-site investigation report.
20 This was done following the instructions of the competent judge. It was
21 carried out by a forensic technician of the Urosevac SUP who was present
22 there. He was a member of the on-site investigation team. In this
23 report it is stated what activities were taken by the expert and what
24 instructions they received from the judge. We also have certain
25 photographs showing weapons, although the pictures are not of a very good
Page 12984
1 quality. However, it contains the weapons found at the 15th of January,
2 1999. That is to say the first day when we entered the village of Racak
3 Q. Thank you. I think this is sufficient. Thank you for that.
4 MR. DJORDJEVIC: [Interpretation] I seek to tender this Defence
5 document into evidence.
6 JUDGE PARKER: Ms. Gopalan.
7 MS. GOPALAN: Your Honours, I have not been able to follow this
8 document, since we've only had the cover page. So I'm not clear on what
9 the witness has been commenting on. Are there separate pages behind?
10 JUDGE PARKER: I would assume so, but can you tell us,
11 Mr. Djordjevic, how many pages are in this document?
12 MR. DJORDJEVIC: [Interpretation] Certainly, Your Honour. In the
13 B/C/S there are nine pages, in the English document it is only six pages,
14 probably due to a smaller font.
15 JUDGE PARKER: Are there also photographs and other attachments?
16 MR. DJORDJEVIC: [Interpretation] Yes, the photographs and records
17 from the crime scene by the scene of crime officers. If Ms. Gopalan is
18 still not satisfied, we can go through each and every page.
19 [Trial Chamber confers]
20 MR. DJORDJEVIC: [Interpretation] We can certainly do that.
21 [Trial Chamber confers]
22 JUDGE PARKER: We think it would be useful to quickly view each
23 page of the document. We'll arrange that.
24 MR. DJORDJEVIC: [Interpretation] The Registrar is also confirming
25 that that would be possible. The first page seems to be the same in both
Page 12985
1 languages.
2 JUDGE PARKER: The next page. The next page in the English. Can
3 you keep going.
4 [Trial Chamber and Registrar confer]
5 JUDGE PARKER: It will be received.
6 THE REGISTRAR: This will be -- sorry --
7 MR. DJORDJEVIC: Sorry.
8 THE REGISTRAR: This would be Exhibit D896, Your Honour.
9 JUDGE PARKER: Thank you.
10 MR. DJORDJEVIC: [Interpretation]
11 Q. The next document in your binder is tab 44. It is Defence
12 document D003-0989.
13 MR. DJORDJEVIC: [Interpretation] Could we please have that on the
14 screen.
15 Q. It is a record of damage on the court vehicle, the damage was
16 sustained on the way back.
17 A. This is the cover page of the case file of the Urosevac SUP.
18 Inside the file there are photographs of the vehicle, that the vehicle
19 was damaged on the 18th of January, 1999, when the on-site investigation
20 team was returning from the scene, the vehicle was fired upon. And we
21 see a detailed description of the damage. This is also a report of an
22 examination of the vehicle which forms part of the case file. There's
23 also a report from the scene as well as all the other measures we
24 undertook in Racak between the 15th and the 18th of January, 1999. This
25 particular page has to do with the 18th of January.
Page 12986
1 Q. I presume there are also photographs in the file?
2 A. Yes, there are.
3 MR. DJORDJEVIC: [Interpretation] Could we now show the Court and
4 the Prosecution each page of the B/C/S and English versions of the
5 document plus the photographs. In other words, let's go through this
6 document.
7 JUDGE PARKER: That's underway.
8 MR. DJORDJEVIC: [Interpretation] Your Honours, the Defence moves
9 to have this document admitted into evidence.
10 JUDGE PARKER: It will be received.
11 THE REGISTRAR: This would be Exhibit D897, Your Honour.
12 MR. DJORDJEVIC: [Interpretation] The next document is D003-0951.
13 Q. In your binder it's tab 45, Madam. Could you please comment on
14 this document which we see before us? Could you explain to the Court
15 what sort of document this is, on what occasion it was compiled, who
16 compiled it, and all the other details concerning this document?
17 A. The document we see on the screen is an order issued by the
18 investigating judge to the forensic technicians of the Pristina court,
19 ordering them to do the following: In co-operation with the group of
20 forensic experts who are conducting autopsies on bodies in the institute
21 of forensic medicine in Pristina do a paraffin glove test of each body
22 individually, do gunpowder tests on the body and clothing, perform
23 dactyloscopy to establish the identity of the bodies, to photograph each
24 body separately, conduct the forensic examination of each projectile and
25 other foreign body found in the bodies in order to establish the type of
Page 12987
1 projectile and weapon involved. And under item 2 it says that the above
2 investigative action shall be carried out by authorised forensic
3 technicians of the Pristina SUP.
4 JUDGE PARKER: Do you tender that, Mr. Djordjevic?
5 MR. DJORDJEVIC: [Interpretation] Yes, yes, but in e-court there
6 are some other documents bearing the same number. So can we go through
7 this page by page, as we did in the previous case?
8 JUDGE PARKER: Thank you.
9 MR. DJORDJEVIC: [Interpretation] It seems that the rest is not in
10 e-court, so I do tender this, Your Honour.
11 JUDGE PARKER: Perhaps the judge could help us.
12 We see nothing in this order about autopsies. Now, is there a
13 separate order for those?
14 THE WITNESS: [Interpretation] Yes.
15 JUDGE PARKER: I take it this order was given on the 19th of
16 January, 1999?
17 THE WITNESS: [Interpretation] Yes.
18 JUDGE PARKER: That appears in the B/C/S form but not in the
19 English translation.
20 It appears there is just this page, Mr. Djordjevic. It will be
21 received.
22 THE REGISTRAR: This will be Exhibit D898, Your Honour.
23 MR. DJORDJEVIC: [Interpretation] It seems that this is the only
24 page in e-court. I will have to put the following question then.
25 Q. Was there a special order to conduct autopsies of the bodies
Page 12988
1 found in the village of Racak
2 A. Yes, there was.
3 Q. To whom was the order to conduct autopsies issued?
4 A. It was issued to the commission of forensic experts and
5 pathologists at the level of Yugoslavia
6 of that group, and the members included Dr. Otasevic from Nis; Dr. Dunjic
7 from Belgrade
8 These were all forensic experts, pathologists, and also a two-member team
9 from Belarus
10 order. And the order also states what is to be established in the
11 autopsy of all 40 bodies. At the end of that order it says that a
12 Finnish team of forensic experts would join in the autopsy once they
13 arrive from Finland
14 Q. Thank you. In the course of the investigation did you receive
15 any conclusions from the forensic team?
16 A. After an autopsy was conducted on all 40 bodies, I received a
17 joint conclusion from the forensic experts, which was the same in the
18 case of all three teams, the Yugoslav team, the Belarus team, and the
19 Finnish team. The conclusion was that the cause of death of all the
20 bodies were injuries they sustained from fire-arms, hand-held weapons,
21 and that they had been shot from a distance.
22 Q. Thank you. We'll pause now.
23 MR. DJORDJEVIC: [Interpretation] And in the meantime could we
24 have document D003-0955 on the screen. Yes, this is the document.
25 Q. There was some confusion here. This document is in your binder
Page 12989
1 under the same tab you have just been looking at, 40. This is the
2 general conclusion you have just mentioned. Did these general
3 conclusions ensue after the order you had issued?
4 A. Yes.
5 Q. Please go on.
6 A. In these conclusions it says that it was established that the
7 cause of death in all 40 bodies were projectiles, that all the injuries
8 had been fatal except in the case of six bodies, where there had also
9 been injuries caused by animals after death, post mortem. The wounds
10 were found in various parts and sides of the bodies, had arrived from
11 different directions. And that all the body wounds were accompanied by
12 corresponding rips on the clothing of the dead bodies. Then there is a
13 description of how the team worked, that the autopsies were videotaped
14 with two or three video cameras in the presence of the European community
15 and the Finnish team, that they had been photographed, sketched, and the
16 injuries described in the course of the autopsy.
17 MR. DJORDJEVIC: [Interpretation] Could we have page 2 of this
18 document, please. Thank you.
19 Q. May we go on?
20 A. In these joint conclusions, in item 12 it says that the Finnish
21 team of experts which joined in later on examined all 16 bodies on which
22 autopsies had been performed before their arrival, and after that they
23 continued working together with the other teams on the autopsies that
24 were conducted afterwards. The date here is the 30th of January, 1999
25 and the conclusions were signed by the Yugoslav team of experts and the
Page 12990
1 experts from Belarus
2 Q. Thank you.
3 MR. DJORDJEVIC: [Interpretation] The Defence wishes to tender
4 this document, Your Honour.
5 JUDGE PARKER: It will be received.
6 THE REGISTRAR: This would be Exhibit D899, Your Honour.
7 MR. DJORDJEVIC: [Interpretation] Could we now have D003-0949. I
8 think we have the complete documentation now as regards this topic.
9 Q. What is this?
10 A. What we see on the monitor now is the order I issued to conduct
11 an autopsy of the dead bodies, listing what had to be established and who
12 was to participate in the autopsy. And it states here that the cause of
13 death should be established, the type and nature of the injuries and when
14 they were inflicted for each body individually, defects in the clothing,
15 and whether they were consistent with the injuries on the body for each
16 body individually; on the basis of gunpowder analysis, whether the damage
17 to the clothing contained traces of gunpowder particles or whether the
18 damage to the clothing was caused later. Every projectile and other
19 foreign body was to be photographed and sent to the competent organs to
20 establish what kind of projectile it is. After the autopsy, establish if
21 there are identical items of clothing or footwear and determine the
22 manufacturer.
23 This order also contains an instruction that technicians of the
24 Pristina SUP should be allowed to conduct a paraffin glove test, a
25 gunpowder analysis both of the body and of the clothing, and to carry out
Page 12991
1 dactyloscopy in order to establish identity.
2 Q. I think this will suffice.
3 MR. DJORDJEVIC: [Interpretation] I wish to tender this document,
4 Your Honour.
5 JUDGE PARKER: It will be received.
6 THE REGISTRAR: This will be Exhibit D900, Your Honour.
7 MR. DJORDJEVIC: [Interpretation]
8 Q. Mrs. Marinkovic, on receipt of this forensic report, was it
9 necessary to carry out any further investigation? Can you tell us what
10 happened after this?
11 A. After I received the written report on the results of the
12 forensic investigations I had ordered, I sent the complete file to the
13 prosecutor of the district court in Pristina for further action. That
14 was my duty under the Law on Criminal Procedure. The complete file was
15 sent to the prosecutor of the district court in Pristina.
16 Q. And that was the end of your investigation in this case?
17 A. I undertook all investigative activities that I as an
18 investigating judge was able to undertake in connection with the events
19 in Racak. Before that, no investigation had been instituted.
20 Q. Thank you.
21 MR. DJORDJEVIC: [Interpretation] Could we now have D61 on the
22 screen, please.
23 Q. Please comment on this document briefly.
24 A. As far as I can see, it was sent to the Ministry of the Interior
25 of Serbia
Page 12992
1 for the contents, I can see that this has to do with an investigation
2 carried out by me as the investigating judge as well as other members of
3 the scene of crime -- on-site investigation. I was supposed to undertake
4 that investigation on the 10th of December, 1998, in the village of
5 Obrinje. Concerning this event, I can tell you that the district court
6 in Pristina received a request from a number of families which lived in
7 Gornje Obrinje. They reported that in Gornje Obrinje some of their
8 family members who had been killed were buried. Following that request,
9 I set a date for the investigation. Concerning the exhumation of the
10 corpses, we also included forensic medical institute experts. We needed
11 their assistance for the exhumations, and Ms. Helena Ranta also headed a
12 Finnish team which came along. We agreed with the Finnish team to go
13 there on the 10th of December early in the morning, escorted by the
14 police. They were in charge of securing the perimeter. We set out from
15 Pristina to Obrinje.
16 On approaching the village of Obrinje
17 Finnish pathologists were stopped. They all got out of the vehicle,
18 together with Ms. Helena Ranta. Not knowing what it was about, I got out
19 of my vehicle and with the assistance of an interpreter I inquired about
20 why they had stopped. Helena Ranta told us that we cannot go any further
21 towards Gornje Obrinje in that composition. She said that there was a
22 barricade at Gornje Obrinje manned by armed KLA members. If they saw the
23 police they would open fire, endangering us. She suggested that I alone
24 accompany them in their vehicle. When I asked who was there to guarantee
25 my safety, she said that she couldn't do that because if they opened fire
Page 12993
1 she could be hit. I put the second question then, telling her that I
2 could not carry out an on-site investigation without my team members and
3 that on-site investigations have to be undertaken by the competent
4 authorities of Serbia
5 police was supposed to be there to secure the scene. She did not want to
6 go on in the presence of the police, and we were unable to reach an
7 agreement on how to proceed and whether there would be an exhumation that
8 day. It was already getting dark, and we noticed that in the surrounding
9 hills since we were down on the road terrorists began appearing and
10 surrendering -- and surrounding us. They wore black uniforms and had
11 weapons. It was only a matter of time when they would open fire.
12 Since we were unable to agree that I alone should accompany them
13 or that they themselves can carry out the on-site investigation without
14 any authority, we agree that we should go back that day to Pristina. We
15 also agreed that we should return to Gornje Obrinje and were supposed to
16 agree on a date. However, after that Helena Ranta did not come back, she
17 never asked for another date. And the families were no longer requesting
18 any investigations. I drafted an Official Note about all that, but it
19 remained in the district court in Pristina. I do not have a copy which I
20 can produce.
21 Q. Thank you.
22 MR. DJORDJEVIC: [Interpretation] Your Honours, I seek to tender
23 this into evidence.
24 JUDGE PARKER: It will be received.
25 [Trial Chamber and Registrar confer]
Page 12994
1 JUDGE PARKER: It's Exhibit D61 already?
2 MR. DJORDJEVIC: Yes, yes, sorry. That's my fault.
3 [Interpretation] The next Defence document is D011-4530.
4 Q. It is your tab 47, Ms. Marinkovic.
5 MR. DJORDJEVIC: [Interpretation] Due to the lack of time, we were
6 unable to secure a translation; however, he we will receive one. This is
7 the first page of the document. Could we please go to page 3. I believe
8 that is a criminal report. Yes, this is the document.
9 Q. Please comment since there was something specific in relation to
10 this document, and can you also refer to the time-period, please.
11 A. What we have on the screen is a copy of the criminal report sent
12 by the Pristina SUP to the district public prosecutor. It was submitted
13 against an unidentified perpetrator charged with the crime of murder
14 contained in Article 47 of the penal code of Serbia. The victim was
15 Bajram Kelmendi and his two sons Kastriot and Kustrima from Pristina.
16 The crime was committed on the 26th of March, 1999, in Pristina, during
17 the period of NATO air-strikes.
18 Q. What else can you tell us about the victims?
19 A. I knew Bajram Kelmendi personally. He was a good attorney in
20 Pristina dealing with criminal cases only. I had a good co-operation, a
21 professional co-operation, with him. Unfortunately, this is what
22 happened to him. Concerning this event on the 26th of March, 1999, as
23 the investigating judge following information I received from the duty
24 service about the whereabouts of the corpses, I attended the crime scene.
25 I drafted a report, the number of which is 84/99. In the report I
Page 12995
1 specify the place where the corpses were found, in the proximity of the
2 Energoinvest company. I described the position of the bodies, the
3 clothes, as well as the 35 spent cartridges on the scene from a
4 7.62-millimetre weapon. This was all taken as evidence. At the on-site
5 investigation scene, he Ejup Golica was also present. He was the
6 victim's brother-in-law. He recognised both Bajram and his two sons. He
7 was able to identify them, following which I ordered the forensic medical
8 institute to conduct autopsies of these three bodies. They were
9 subsequently transferred to the institute. Photographs were taken of the
10 crime scene and sketches made because there was also a scene of crime
11 officer in attendance. I sent a copy of the on-site investigation report
12 to the district public prosecutor for further action. In this case, as
13 the investigating judge, I was in charge of the on-site investigation.
14 Q. Do you know whether the perpetrators were ever discovered?
15 A. As far as I know, they were not, unfortunately.
16 Q. Thank you. The last question put by Defence today has to do with
17 the processing of crimes committed by specifically MUP members. I won't
18 ask you about any army members because you have already explained that
19 this was within the competence of the military court. As of the moment
20 of your appointment as investigating judge in 1994, do you know of any
21 MUP members being processed or prosecuted by the Pristina court? You, as
22 you said, were an investigating judge with that court as of 1994.
23 A. Yes. I know that during that period there were criminal
24 procedures and proceedings instituted against MUP members.
25 Investigations were carried into those cases by myself or my colleagues,
Page 12996
1 although I don't know how many specifically and who the persons involved
2 were since it's been a long time since. However, I know that after the
3 completion of investigations, indictments were issued against those who
4 perpetrators those crimes and that judgements were handed down as well.
5 MR. DJORDJEVIC: [Interpretation] Defence seeks to tender this
6 last document. At the same time we wish to thank the witness for coming
7 here in order to clarify some issues important for Defence. With this I
8 close my examination-in-chief, Your Honours. Of course this should be
9 MFI'd, given that a translation is still pending, as I have already
10 informed you.
11 JUDGE PARKER: The criminal report will be marked for
12 identification.
13 THE REGISTRAR: This would be Exhibit D901, MFI'd, Your Honour.
14 JUDGE PARKER: Thank you.
15 Thank you, Mr. Djordjevic.
16 Ms. Gopalan.
17 Cross-examination by Ms. Gopalan:
18 Q. Good afternoon, Witness.
19 A. Good afternoon.
20 Q. Now, a few moments ago we had some testimony in relation to the
21 incident in Gornje Obrinje. Do you remember that?
22 A. I've already shared with you the things I can remember.
23 Q. That's right. Am I right that in this case, the Gornje Obrinje
24 incident, an on-site investigation was never completed?
25 A. It was not completed because we were prevented from attending the
Page 12997
1 scene.
2 Q. And you also mentioned that the families were no longer
3 requesting any investigations, correct?
4 A. Yes, it is.
5 Q. As an investigating judge, did you have an obligation to complete
6 an investigation even if the family members did not require or request an
7 investigation?
8 A. The investigative measure of on-site investigation in Gornje
9 Obrinje is something I attempted to carry out; however, I was prevented
10 in doing so. Given that Helena Ranta herself told me that there were KLA
11 members there, for objective reasons this could not be completed.
12 Q. Just a few more questions on your role, on your obligations, as
13 an investigating judge. You testified about these obligations in the
14 Milosevic trial. You've already mentioned in this case that you were --
15 you provided testimony in the Milosevic case. As I understand it, an
16 investigating judge, you said, makes no conclusions and as an
17 investigating judge you collect evidence. Is that correct? We can call
18 up the Milosevic testimony if that's necessary to refresh your memory.
19 A. There's no need. What I said is true. As an investigating judge
20 I am not there to make conclusions. I merely collect evidence following
21 a request of the competent district prosecutor or if I deem it to be
22 necessary.
23 Q. So your duty was to observe, record, and collect evidence in a
24 crime scene, and it was the prosecutor who made the decision whether to
25 take the case forward. And I'm reading from your testimony in Milosevic
Page 12998
1 now. Is that correct?
2 A. Yes, it is.
3 Q. Now, I'd like to move to some cases we spoke about earlier today,
4 for example, D892. That's the exhibit number for a case judgement
5 rendered on 11 July 1997
6 MS. GOPALAN: If we could call up that exhibit, please.
7 Q. Do you recall this case?
8 A. Yes, I do.
9 Q. Now, in relation to this case you mentioned today line 8, 7,
10 saying that:
11 "The aim of these defendants was to cause fear and panic among
12 the citizens, to force Albanians who did not wish to join the KLA to do
13 so." And you go on to say that: "The purpose was to endanger the
14 territorial integrity of the FRY and to cut off a part of the territory,
15 create a separate state, and later on to join up with Albania."
16 Now, how did you know this was the aim of the defendants?
17 A. Because the defendants themselves when interviewed during the
18 investigation openly spoke about that. They proudly discussed their idea
19 of creating an independent state.
20 Q. Now, a similar goal was stated by the defendants in the illegal
21 MUP case. Do you remember that case, D890? Do you remember the illegal
22 MUP case? If not I can call up the document.
23 A. I recall the document. Put your question, please --
24 Q. And the question is --
25 A. -- it doesn't need to be on the screen.
Page 12999
1 Q. -- these defendants as well, you said, had the goal of creating a
2 separate state. In this case as well, was this information that was
3 provided to you during the interviews?
4 A. Yes, it was.
5 Q. Now, let's have a look at some other cases that you discussed
6 yesterday. If you remember, you looked at a large number of on-site
7 investigations relating to various crimes. Now, one of which I'm
8 interested in is the case of Dalip Dugoli. I don't intend to call up the
9 exhibit on the screen, but your testimony in relation to this case was
10 that this is a classical example of a terrorist attack on an Albanian
11 civilian. He was attacked because he worked for the agricultural
12 co-operative. Do you remember that case and your testimony in that
13 regard?
14 A. Yes.
15 Q. Now, a number of the documents that we saw yesterday related to
16 attacks due to the victims having been involved in Serb establishment
17 jobs; is that correct?
18 A. Yes.
19 Q. Now, let's have a look at another one, and we will call up the
20 exhibit in this case. It is D860.
21 Now, while the exhibit is being called up, I will remind you that
22 this is the case of Sejdi Muja, a forester from the village of Gradica
23 and he was shot on the 12th of January, 1998, when he left to go to work
24 because he worked in Glogovac for the forestry estate there. Do you
25 remember that?
Page 13000
1 A. Yes.
2 MS. GOPALAN: Could we go to the second page.
3 Q. You also testified that he refused to boycott Serbian government
4 institutions as ordered by the KLA.
5 Now, how did you learn this, Witness, that this was the reason he
6 was attacked?
7 A. In connection with this and other cases, where Albanian civilians
8 were the victims of terrorist attacks because they worked in government
9 institutions, I and everybody else engaged in this job came across this
10 in the course of our work on individual cases or through operative
11 information passed on to me by the prosecutor. And also in the course of
12 investigations conducted against other persons who spoke about being
13 subjected to pressure, forced to join the KLA terrorist gang, who spoke
14 about being victims. This was one such case because before this he had
15 reported more than once to the Glogovac SUP that he had been threatened
16 followed, and he asked for protection.
17 Q. But that is information that would not be reflected in your
18 on-site report?
19 A. Correct. This is not reflected because it is not something that
20 has to enter the record of the on-site investigation, which has to
21 contain only things immediately observed on site and does not include
22 operative information gained before or after the on-site investigation.
23 Q. Now, from this document we see that the victim wasn't alone. He
24 was with his neighbour, Selim Dibrani. That's in the second paragraph.
25 And it reads:
Page 13001
1 "On the morning of the day in question at about 0850 hours, the
2 deceased and his neighbour Selim Dibrani set off to work in the direction
3 of the village of Glogovac
4 Now, Selim Dibrani also worked in the Serb forest institute as
5 did the victim, correct?
6 A. I don't know where you found this piece of information.
7 Q. It's in the second paragraph, first line.
8 A. As far as I can see, it doesn't say here that he was also
9 employed in the Serb forest institute, only that he was a neighbour of
10 his and that they set out together.
11 Q. Does it not say in the B/C/S translation "set off to work"?
12 A. Yes, but it doesn't say where this person was employed. I only
13 knew that the deceased worked for the forest company.
14 Q. So you have no information on where Mr. Selim Dibrani worked?
15 A. No.
16 Q. Okay. We'll move on to another topic. Ma'am, one of the first
17 documents we looked at today was to do with the illegal MUP case. You've
18 already mentioned it during this cross-examination. I don't think we
19 need to go through the indictment and the judgement. I have some
20 questions about this case. Now, as I understand it, a first-instance
21 judgement was passed and this judgement was then confirmed on appeal,
22 correct?
23 A. No, that's not correct. I didn't say that because the judgement
24 was changed, not confirmed. It's not the same thing. The
25 second-instance court in Serbia
Page 13002
1 defence counsel of the accused were well founded because they were
2 appealing against the length of the sentence. So the trial judgement was
3 changed in that the sentences were either reduced or increased, the
4 sentences handed down in the trial judgement.
5 Q. Now, Mrs. Marinkovic, in the Milutinovic [sic] case when you were
6 asked this question you said that:
7 "After my investigation an indictment was issued, a
8 first-instance judgement was passed. The Supreme Court of Serbia
9 confirmed the judgement."
10 Now, at the moment you're saying that that is not entirely
11 correct and what you have said now is a more accurate representation of
12 what happened?
13 A. Well, tell me what you're interested in particularly in this
14 respect.
15 Q. Please answer the question. I asked whether what you have said
16 now is more accurate than what you had said in the Milosevic case?
17 A. What I said today is correct --
18 Q. Thank you, ma'am.
19 A. In the Milosevic case I don't know how it was entered in the
20 transcript because I could not have said the sentence had been confirmed,
21 as the second-instance judgement relating to these persons was in
22 evidence. So it may -- I may have misspoken or it may have been
23 misinterpreted, but I couldn't have said that it was confirmed.
24 Q. Thank you, ma'am. And in that case, in the Milosevic case, you
25 also said:
Page 13003
1 "I stand by my cases and my work."
2 Is that still your position, that you stand by your cases and
3 your work?
4 A. Yes.
5 Q. Now, let's have a look at some documents in relation --
6 JUDGE PARKER: I notice that page 49, line 5 we were dealing with
7 the Milutinovic case, and we seem by line 16 to have moved to the
8 Milosevic case. Were you meaning each of them?
9 MS. GOPALAN: I misspoke, Your Honours, in line 49 -- page 49,
10 line 5. I should have said "Milosevic."
11 JUDGE PARKER: Thank you.
12 MS. GOPALAN: My apologies.
13 JUDGE PARKER: Mr. Djordjevic.
14 MR. DJORDJEVIC: [Interpretation] That was one thing, Your Honour,
15 but secondly, may he we have a reference for what was put to the witness.
16 May we see what the witness actually said. Was this a misinterpretation
17 or what happened, as we do have the appeal judgement in evidence.
18 JUDGE PARKER: You have the page, Ms. Gopalan?
19 MS. GOPALAN: Yes, I do, Your Honours. It's page 223, and the 65
20 ter number is 3115.
21 JUDGE PARKER: Thank you. Please carry on.
22 MS. GOPALAN:
23 Q. Now, going back to the illegal MUP case, have you heard of an
24 organisation called the Human Rights Watch, Witness?
25 A. At that time I hadn't heard of it.
Page 13004
1 Q. But now you are aware? You know of an organisation called
2 Human Rights Watch?
3 A. Yes.
4 Q. Let's have a look at a report that they have prepared, and that's
5 65 ter 6089. And while the document is being brought up, Witness, would
6 you say that this case involving the Albanian policemen, this illegal MUP
7 case, was professionally handled by all the parties involved?
8 A. When you say "all the parties involved," who precisely are you
9 referring to, please?
10 Q. I'll be more precise. By the prosecutors, the judges, that's
11 whom I had in mind.
12 A. Yes, both the court and the prosecutors.
13 Q. Now, let's have a look at the report on your screen. We have a
14 past partial translation of the relevant section in the B/C/S, whereas
15 the English version is a complete version. Now, if you can see in the
16 cover page this is a Human Rights Watch report. It's entitled: "Serbia
17 and Montenegro
18 and it's dated December 1996. You have that on your screen, don't you,
19 Witness?
20 A. Yes.
21 Q. And I'd like to now go to page 21 of the English and the next
22 page of the B/C/S, please. And I'm going to read out a portion and get
23 your comments. Now, it's a section headed: "The Case of the Former
24 Albanian Policemen." And I'll read this out.
25 "In November and December 1994, 134 [sic] ethnic Albanians were
Page 13005
1 arrested for forming a parallel Albanian police force. All of them were
2 formerly Yugoslav policemen and were active in the police trade union."
3 Witness, this is the case that we have been talking about,
4 correct, the illegal MUP case?
5 A. I don't know. It says here 136 Albanians. I didn't investigate
6 that number. Whether these are different ones or the same ones, I had 88
7 Albanians under investigation suspected of creating an illegal MUP.
8 Q. Now, apart from the number itself, which you say is not accurate,
9 is the case the same case?
10 A. I don't see that this is a case here. This is simply a report by
11 this organisation --
12 Q. That's right. This --
13 A. -- I don't see what this is about.
14 Q. This organisation is reporting about the indictment and the
15 judgement in relation to the illegal MUP case that we saw. Now, I'm
16 going to take you in further detail in terms of what they say, but at the
17 moment based on this information you would agree with me that this report
18 relates to the same case, correct?
19 A. No.
20 Q. Why not?
21 A. Because the numbers do not correspond, names are not mentioned,
22 so I cannot comment on something I know nothing about. I don't know on
23 what basis this report was drawn up, no source of information is listed
24 here, so that I as a practicing judge am not able to comment on this.
25 Q. Very well, ma'am. Now, let me ask you the question another way.
Page 13006
1 Were you aware of any other cases involving ethnic Albanians being
2 arrested for forming a parallel Albanian police force in December 1994
3 and judgement being issued in 1995?
4 A. There may have been in other district courts on the territory of
5 Kosovo and Metohija, but I'm not aware of what the number of such cases
6 was.
7 Q. So you don't know. Now let's move on, and perhaps we could deal
8 with some of the questions raised. Let's go to the next page in the
9 English, and I'm interested in the section, the paragraph that begins
10 with "Fazli Balaj."
11 Now, I'll read this out to you:
12 "Fazli Balaj defended 12 of the former policemen, all of whom
13 were arrested between November 24th and December 7th, 1994. He was
14 allowed contact with some of his clients after six days. He told
15 Human Rights Watch about one particular case of torture and the judge's
16 response ..."
17 Now, before we go any further, Fazli Balaj, do you know him?
18 A. No, I don't, but there is someone called Fazli Baljaj.
19 Q. Did you know someone called Fazli B aljaj?
20 A. Yes.
21 Q. And it appears that he was a defence lawyer, and he defended 12
22 of these former policemen who were involved in the illegal MUP case,
23 correct?
24 A. He was a judge of the district court in Pristina. After 1992 he
25 left the court of his own initiative, became a lawyer. He was a defence
Page 13007
1 lawyer, but whether he defended 12 or one defendant, I don't know.
2 Q. So he was a defence lawyer, and the report states that he was
3 involved in defending some of the policemen. Now, I'm going to continue
4 reading.
5 "He told Human Rights Watch about one particular case of torture
6 and the judge's response.
7 "'I went inside (the prison) to visit my client, Isak Aliu. He
8 came to the corridor to meet me. When he came I saw that he was black
9 and blue. I asked him to get undressed and I could he see that he had
10 been beaten all over.
11 'At that moment, the jail door opened and the investigating
12 judge, Danica Marinkovic, came in. I said to her, 'look what they did to
13 my client.' She said, 'well, colleague, I am not a doctor. Address me
14 in writing.'"
15 Now, having read out the section, do you recall this encounter
16 with Mr. Balaj in a prison?
17 A. Madam prosecutor, I have to disappoint you. This is not correct.
18 I never went to the district prison. That was not my duty, nor is this
19 incident described in the report correctly -- correctly described. It
20 didn't take place.
21 Q. Did you see or have this encounter with Mr. Balaj anywhere else
22 if not in the district prison?
23 A. If Fazli Balaj was the defence counsel for one of the accused I
24 interviewed, he would have been present at the interview in my office.
25 That is the only occasion on which we might have met. He would have been
Page 13008
1 present at the interview. The public prosecutor and an Albanian/Serbian
2 interpreter would also have been present. So if he had anything to state
3 for the record, he would have been able to do so on that occasion. That
4 was his right as defence counsel and it was never denied him.
5 Q. And so your evidence then is that you don't recall ever having
6 told Mr. Balaj to put his complaints about Isak Aliu in writing; is that
7 what you're saying?
8 A. Well, now you're turning your question round, Madam Prosecutor.
9 You asked me one thing a moment ago; now you're asking me something else.
10 Please be precise in your questions so my answers can be precise.
11 Q. Will you please answer the question, Witness.
12 A. Could you repeat your question, please.
13 Q. Is it your evidence that you don't recall ever having told
14 Mr. Balaj to put his complaints about Isak Aliu in writing?
15 A. I told you this was not correct. I did not meet him in the place
16 or in the manner described here. We had no such encounter, so I couldn't
17 have said anything to him.
18 Q. Now, did you receive any complaints about the treatment of any
19 prisoners who had been detained as a result of your investigations, had
20 been detained in prison?
21 A. When you say "complaints," what sort of complaints, about what?
22 Q. Mistreatment, beatings, for example.
23 A. There couldn't have been any complaints about such things because
24 there never was any beating or mistreatment. I don't know who might have
25 done such things.
Page 13009
1 Q. Very well.
2 MS. GOPALAN: Now, Your Honours, I will ask this exhibit to be
3 marked for identification, since I'm planning on returning to it shortly.
4 JUDGE PARKER: Mr. Djordjevic.
5 MR. DJORDJEVIC: To the best of my understanding, the witness did
6 not testify to the contents of this document in any part of it, so I
7 doubt that we can make use of it, even as marked for identification.
8 JUDGE PARKER: While it's marked for identification, the Chamber
9 won't make use of it, Mr. Djordjevic. But one of the purposes of marking
10 it for identification is that foreshadowed by Ms. Gopalan, that is, she
11 intends to return to the document for some other purpose, and the
12 question of marking it, is simply to be sure we're dealing with the same
13 document. So it will be marked for identification.
14 THE REGISTRAR: This would be Exhibit P1558, marked for
15 identification, Your Honour.
16 MS. GOPALAN: I'd like to call up 65 ter 3096, please.
17 Q. I'll give you a moment to look at the document, Witness. Now,
18 you can see that this is a document bearing the stamp of the Institute of
19 Forensic Science in Pristina, correct?
20 A. Yes, I see that this is the document of the Institute of Forensic
21 Science in Pristina.
22 Q. And it is dated the 22nd of December, and it is addressed to you
23 as the investigating judge, correct?
24 A. Yes. I see that it's addressed to me, and I see that it says
25 that upon the request of that court, Kio number 161/94 from the 22nd of
Page 13010
1 December, 1994
2 that my letter was sent, and the person was Isak Aliu.
3 Q. Does this name, Isak Aliu, ring a bell?
4 A. No, I've just read it here now.
5 Q. He was also the person mentioned in the Human Rights Watch report
6 that we just saw.
7 MS. GOPALAN: Now, could we go to page 2 in English and page 1 of
8 the B/C/S, please.
9 Q. Now, before we go into the details, Witness, do you recall
10 receiving this report?
11 A. I can't recall it now, but if it's addressed to me I must have
12 received it. So it certainly must be in the case file because it's an
13 official document.
14 Q. And let's have a look at the opinion section of the report. I
15 believe it's at the bottom of the page in the B/C/S and it reads:
16 "The injuries described under items 2, 3, and 4 of the report are
17 haematomas, and under item 5 of the report there is an excoriation. They
18 were all inflicted by a heavy blow from a blunt heavy mechanic implement,
19 and individually and together they are qualified as a minor injury."
20 Ma'am, you've said that you do not recall receiving this report
21 specifically, but do you remember receiving these types of reports, i.e.,
22 reports of medical examination that had such conclusions, conclusions
23 involving injuries inflicted during custody?
24 A. Well, you know what, it does say here that this is a minor
25 injury, but it doesn't say here who the injuries were inflicted by and
Page 13011
1 where, so that your conclusion that these injuries were inflicted in
2 custody is premature. I received such reports because in the course of
3 an investigation anyone who was in detention and who applied to have a
4 medical examination for any reason whatsoever was sent for a medical
5 examination because that was their right, and I was regularly sent
6 reports from the doctors involved, and depending on the severity of the
7 health complaint further measures were taken for the treatment of these
8 detainees. So I carried out my job in that respect. There may have been
9 such reports, such as the one we see here. But as an investigating
10 judge, when I get a report of this kind it's up to me to inform the
11 prosecutor and the defence counsel. If they consider that there are
12 elements of a crime here and that they know who the perpetrator is, they
13 have the right to submit a criminal report against the perpetrator. The
14 prosecutor and the defence counsel are the parties who can proceed based
15 on this information.
16 Q. So your testimony then is that it wasn't within your competence
17 to further investigate that this was a matter for the prosecutor and
18 defence counsel?
19 A. The prosecutor and defence counsel are authorised to proceed if
20 they believe there are any steps necessary in that direction as part of
21 criminal proceedings. It was up to me only to acquaint them with this.
22 MS. GOPALAN: Your Honours, I believe it's time for the break.
23 JUDGE PARKER: It is indeed. We will have the second break now,
24 and we will resume at 1.00.
25 --- Recess taken at 12.34 p.m.
Page 13012
1 --- On resuming at 1.03 p.m.
2 JUDGE PARKER: Ms. Gopalan.
3 MS. GOPALAN:
4 Q. Witness, when we left off we were looking at the medical
5 examination report of Isak Aliu --
6 MS. GOPALAN: Which I'd like to tender into evidence,
7 Your Honours.
8 JUDGE PARKER: It will be received.
9 MS. GOPALAN: And could I call up -- I'm sorry.
10 THE REGISTRAR: Excuse me, this will be Exhibit P1559,
11 Your Honour.
12 MS. GOPALAN: And could I call up D889, please. I'm not sure if
13 this is the correct document. D889. I'm after the indictment dated 7th
14 of April, 1995. Yes, that's right. And if we could go to item 27,
15 please.
16 Q. Ma'am, this is the case of the illegal MUP that we were
17 discussing during your testimony this morning. Do you remember? We
18 looked at this document. And if we could go to item 27 in the English as
19 well, we see that item 27 relates to an Isak Aliu. Now, ma'am, it is
20 Isak Aliu's medical report that we've been looking at, correct, that we
21 just saw before the break?
22 A. Yes.
23 Q. And I'll also point out some other indictees while we have this
24 document up on the screen.
25 MS. GOPALAN: If we could go to page 1, please. Page 1, item 1.
Page 13013
1 Q. I'm just going to make a note of some of these names, since we're
2 going to come back to them after this. In item 1 we have Avdija
3 Mehmedovic, item 7 we have Bljerim Oloni, item 10 on the same page we
4 have Murata Sahiti, item 13 --
5 MS. GOPALAN: Sorry, the English page needs to be moved as well.
6 Thank you.
7 Q. Item 13 we have Ramadan Ferizi.
8 MS. GOPALAN: And if we could now move to item 21 --
9 Q. Who is Alidem Bejtulah. And the next page for items 38 Tahir
10 Caka.
11 MS. GOPALAN: And could we also see finally 32, please, for Bruti
12 Sali [phoen].
13 Q. Ma'am, does this refresh your memory on the illegal MUP case?
14 MS. GOPALAN: Let me just see if it's Bruti Sali. I'm not able
15 to locate the last name at the moment, but I can provide that information
16 later.
17 Q. Now, I've listed a number of individuals who were indicted in
18 this case, and I have with me medical reports, reports of medical
19 examinations of these individuals that are similar to the ones that -- to
20 the one that we saw for Isak Aliu. The conclusions stated in these
21 reports are similar, if not identical, to what the report on Isak Aliu
22 said. Now, let's call up one of these reports, 03105, just as an
23 example. And just for the record Bruti Sali is item 39 in the
24 indictment. That was the person who was missing.
25 Ma'am, I'm not going to go through these reports individually,
Page 13014
1 but as mentioned, I have eight other reports that bear the same
2 conclusion, which is injuries sustained. Now, it would appear based on
3 this document and the other medical reports that these indictees suffered
4 certain injuries during their detention, correct?
5 A. It is not correct. They did suffer injuries, but we can't see
6 when and what they were caused by. So as not to dwell on the findings
7 too long, the answer is the same that I have given concerning the first
8 one, Aliu or something. The same answer applies to all of them.
9 Secondly, so as to inform the Trial Chamber, once I have
10 interviewed an accused if detention is pronounced, they're held in the
11 district court building in Pristina. They have no contact with anyone
12 else. No one could injure them there. Also, concerning any visits in
13 the prison, they can only be visited by counsel or by family members on a
14 certain date and time. Rules are strictly observed. Concerning their
15 situation and their complaints of certain types of treatment by those
16 employed in the district prison, there is a judge tasked by the president
17 of the court, who is under an obligation to visit the prison once a week,
18 to visit each and every person detained and hear any complaints if there
19 are any. All that is recorded and checked.
20 Q. Very well, ma'am. Now, before I move on to the next document, I
21 would like to tender into evidence the other medical reports relating to
22 the indictees that I just referred to in the indictment. Would it be
23 sufficient for me to read out the 65 ter numbers for these documents?
24 JUDGE PARKER: Mr. Djordjevic.
25 MR. DJORDJEVIC: [Interpretation] Neither Defence nor the Chamber
Page 13015
1 have seen these documents before; therefore, I don't believe -- I believe
2 that we should at least be shown these documents if they are being
3 tendered now to verify whether they actually refer to the persons
4 mentioned. I simply cannot take this blank statement that all of them
5 were injured while in detention. We need to be acquainted with that,
6 some basis should be lain for that, so that we may pose additional
7 questions or objective we deem necessary.
8 JUDGE PARKER: It seems to be required that you go through each,
9 at least to identify the name. Would you proceed, Ms. Gopalan, or would
10 you prefer to do that at a later stage of your examination?
11 MS. GOPALAN: I would prefer to do that at a later stage,
12 Your Honours.
13 JUDGE PARKER: Very well.
14 MS. GOPALAN: Particularly because these were exhibits that were
15 referred to in the Milutinovic case as well. So in any event, I would
16 have been asking for their admission right at the end. So I will move on
17 and I will do it at a later stage.
18 JUDGE PARKER: Did you mean Milutinovic or Milosevic?
19 MS. GOPALAN: Milutinovic.
20 JUDGE PARKER: Thank you.
21 MS. GOPALAN:
22 Q. Still keeping with this issue of Isak Aliu and the injuries that
23 he suffered, could we go to a statement, and this is a statement of Fazli
24 Balaj, so the defence counsel that we've just been discussing, and it's
25 06083. Now, ma'am, this is a statement that Mr. Balaj gave to this
Page 13016
1 Tribunal, an investigator in this Tribunal, and it has been read back to
2 him and he has stated that it's correct. And I also represent to you
3 that he has initialled or signed each page. And I think it's only fair
4 that you have the opportunity to comment on what he says about him.
5 MS. GOPALAN: If we could please go to paragraph 7 of the
6 statement. If we could scroll up the page, please, I'll start with the
7 first paragraph.
8 Q. Now, this is Mr. Balaj's statement in relation to the detention
9 of Isak Aliu. And he says:
10 "During the first three days of their detention, my clients were
11 not permitted" --
12 A. Apologies. I don't see it in Serbian.
13 Q. The statement is not available in Serbian, Witness. I'm not
14 showing -- I do not propose to show you the whole statement. I will read
15 out the relevant portions and ask that you comment. And I'll start
16 again.
17 "During the first three days of their detention, my clients were
18 not permitted any contact with an attorney. Neither the police nor Judge
19 Danica Marinkovic would give me any information about their whereabouts."
20 Now, what Mr. Balaj is saying here that information wasn't
21 provided about the clients' whereabouts, is that true?
22 A. Before answering I must say that I cannot comment selectively on
23 the statement. I don't know what it is about in its entirety. As for
24 the single part you read out, all I can say that it is not true.
25 Q. I'll read you out another part, and it's at the bottom -- yes.
Page 13017
1 And that's paragraph 7. It reads:
2 "Upon my request, Judge Danica Marinkovic eventually sent a
3 request to the forensic medical department for an examination of Isak
4 Aliu." I believe that is the document that we saw, the medical exam was
5 a result of this request. Now I'll continue reading. "However, Judge
6 Marinkovic waited until the 22nd of December, 1994, nearly a month of
7 Isak Aliu's arrest to make this request. By this time, some of Isak
8 Aliu's injuries had begun to heal. Today I have reviewed the medical
9 certificate describing the results of Isak Aliu's examination dated the
10 22nd of December, 1994. It describes injuries to Isak Aliu's hands,
11 back, hip, and right knee. The certificate would be sent to Judge
12 Marinkovic for inclusion in her case file. After Isak Aliu received this
13 examination and this certificate was produced, Judge Danica Marinkovic
14 took no action to prevent further mistreatment of Isak Aliu or to
15 prosecute those responsible for torturing him."
16 That's the end of the paragraph. My question to you, Witness,
17 is: Did you delay the request for the medical exam to nearly a month
18 after Mr. Aliu's arrest, by which time his injuries had begun to heal?
19 A. This is not true. Everything in this paragraph is untrue,
20 especially because there is no additional evidence or orders or Official
21 Notes accompanied to this statement. Alongside his statement, Mr. Aliu
22 should have forwarded the relevant documents.
23 Q. We'll deal with that in a moment. The last sentence:
24 "After Isak Aliu received his examination and the certificate was
25 produced, Judge Danica Marinkovic took no action to prevent further
Page 13018
1 mistreatment of Isak Aliu or to prosecute those responsible for ...
2 him."
3 Now, you said that everything in this paragraph is untrue. This
4 last sentence, that you "took no further action to prevent further
5 mistreatment of Isak Aliu or to prosecute those responsible for torturing
6 him," is that also untrue, that you -- so you took steps?
7 A. Firstly, it is not true that there was any mistreatment or
8 torture in the prison. That is not true. Secondly, concerning any
9 medical findings for Isak Aliu, such as the one you have shown me at the
10 beginning, I have provided an answer, and I stand by it.
11 Q. Very well.
12 MS. GOPALAN: Your Honours, I'll ask this statement to be marked
13 for identification, as I will be returning to it later as well.
14 JUDGE PARKER: It will be marked.
15 THE REGISTRAR: This will be Exhibit P1560, marked for
16 identification, Your Honour.
17 MS. GOPALAN: Could I call up 6076, please.
18 Q. Now, Mrs. Marinkovic, we're moving on to 1995, the medical
19 reports we saw for the end of 1994. Now, in your previous answer you
20 mentioned relevant documents that Mr. Aliu should have forwarded. This
21 would seem to be a relevant document. It is -- the date of delivery is
22 the 27th of February, 1995, and it is addressed to you,
23 Danica Marinkovic, correct?
24 A. Yes. The complaint we see was sent to me.
25 Q. And the English translation, the first paragraph, refers to
Page 13019
1 certain accused. And we see that the name Isak Aliu is mentioned. Do
2 you see that? So it's the same individual we've been discussing?
3 A. Yes, I he see him. He is the first one on the list.
4 Q. So this letter based on the dates would have been sent after you
5 received the reports on the medical examination we just saw, correct?
6 A. I don't understand.
7 JUDGE PARKER: Mr. Djordjevic.
8 MR. DJORDJEVIC: [Interpretation] I'm not convinced that the
9 English document is the right document, judging by the contents and
10 layout. It says here "submission of defence counsel." That would be the
11 exact translation of the Serbian version, whereas in the English we have
12 "complaint of the defending lawyer." First of all, we need to establish
13 whether the establish translation reflects the original. The case number
14 is the same, but it says "Cno" and in the Serbian it says "Kio." I'm
15 definitely not convinced that this is the same document and on the face
16 of it, it doesn't look like it. Thank you.
17 JUDGE PARKER: Is this a Tribunal translation, Ms. Gopalan?
18 MS. GOPALAN: Let me check that, Your Honours.
19 [Prosecution counsel confer]
20 MS. GOPALAN: Your Honours, on whether it is a Tribunal
21 translation, we are obtaining that information at the moment. But we can
22 see from the document that this is a partial translation of the B/C/S.
23 And as I understand it, it is the underlined portions in the B/C/S that
24 have been translated to the English. And therefore, whatever I will be
25 referring to in the English is available in B/C/S.
Page 13020
1 JUDGE PARKER: Mr. Djordjevic, if you find there is some material
2 translation error in those parts of the document that are put to the
3 witness, you may raise those as it occurs.
4 Otherwise, please carry on, Ms. Gopalan.
5 MS. GOPALAN: Thank you, Your Honours.
6 Q. Now, Mrs. Marinkovic, you said that --
7 MR. DJORDJEVIC: [Interpretation] By your leave, Your Honours, I
8 must say that there seem to be significant differences between the
9 copies. It says here "from paragraph 3 onwards ..." The B/C/S seems to
10 be translated correctly, but the top part seems to be completely
11 unrelated to the original. It is indeed not a complaint. It is a
12 submission by defence counsel. That's number one. Number two, what I
13 saw seems to be all right, but what follows is unclear. The only thing I
14 was able to identify is the beginning of the third paragraph, which more
15 or less could be considered a valid translation. However, all this I
16 believe is insufficient to be of any use to the Chamber. "Complaint" and
17 "submission" carry a different meaning. I have no problem against
18 marking this for identification, but I would kindly seek that the entire
19 document be translated, otherwise it shouldn't be admitted.
20 JUDGE PARKER: We will determine that in due course.
21 If you would carry on, please, Ms. Gopalan.
22 MS. GOPALAN:
23 Q. Ma'am, you said that this was a document that you received
24 based -- this was a complaint we see was sent to me, so you say it was
25 sent to you, and the heading reads: "Complaint or submission of the
Page 13021
1 defending lawyer." And the next line says: "This is the fifth complaint
2 I have lodged in this instance." And I'm going to read to you the
3 details:
4 "On the 24th of February, 1995, I visited my defendants in the
5 district jail. I informed them of the conversation I had with you in
6 your office and about your refusal to examine the accused once again as
7 you examined them once.
8 "However, the accused Isak Aliu told me that on 17, 21, and 22nd
9 February he was taken out of the premises of the jail and sent for
10 interrogation to the state security premises in Pristina. On 22nd
11 February 1995 he was subjected to physical torture."
12 Before I continue reading, do you recall this visit you had from
13 Mr. Balaj - I believe this is a document that he prepared, we can see
14 that in the last page - in relation to conducting further medical
15 examinations of his clients?
16 A. What I he see here in the Serbian, it says "submission of the
17 defence counsel," so it's not a complaint, it's a submission. And I will
18 read, or rather, I have read the contents of this now --
19 Q. Ma'am, I --
20 A. -- I cannot remember that Balaj --
21 Q. I'm sorry, please continue.
22 A. That he discussed this topic in my office. The only thing I can
23 say is that in the third paragraph what he says here is in no way correct
24 because Isak Aliu, after a decision had been issued on the conduct of
25 investigations against him, could not have had a conversation with anyone
Page 13022
1 nor could he have been taken away from the premises of the district
2 detention unit in Pristina. So none of this can be true. There was no
3 torture of the accused while the investigation was ongoing. This is not
4 permissible nor is anyone authorised to do any such thing. So this is
5 impossible.
6 Q. So, ma'am, you don't remember Mr. Balaj having made such a
7 request to you, to prevent torture, because there was no torture while
8 the investigation was ongoing; is that your evidence?
9 A. What I'm saying is that there was no torture or mistreatment.
10 This submission may have been made if there is the court stamp on it
11 saying it had been received. I do know, however, that there was no
12 torture or mistreatment that such things could not have happened. This
13 submission I would have placed in the file, but there was nothing I could
14 do, no action I could take, because he was not telling the truth. He is
15 a defence lawyer so he has to write some things, he has to take some sort
16 of action, so that's his right. I cannot prohibit him from writing
17 whatever he likes.
18 Q. So your testimony then is that Mr. Balaj just made this up, these
19 allegations?
20 A. I didn't say he made it up, but it's untrue.
21 Q. Very well.
22 MS. GOPALAN: Your Honours, I'd like to tender this document into
23 evidence and call up another document.
24 JUDGE PARKER: The witness doesn't recall this document, as I
25 understand her evidence.
Page 13023
1 MS. GOPALAN: That's correct, Your Honours, but it is related
2 to -- for other testimony that has been provided. And she did say that
3 the complaint we see was sent to me. So it is a document that is
4 addressed to her.
5 JUDGE PARKER: And there also appears to be the seal of the
6 court.
7 MS. GOPALAN: Yes, Your Honours. I don't think she disputes the
8 authenticity of the document either.
9 JUDGE PARKER: Mr. Djordjevic.
10 MR. DJORDJEVIC: [Interpretation] I move that the Court mark this
11 document for identification at the present and that the entire document
12 be translated. It's true that the witness could not testify to the
13 contents of the document at all.
14 JUDGE PARKER: Anything further, Ms. Gopalan?
15 MS. GOPALAN: Your Honours, she did testify that "this submission
16 I would have placed in the file," so not only does she say that it was a
17 complaint that was sent to her, she accepts that it would have been the
18 type of document that she was placed in the file -- that she would have
19 placed in the file, yes.
20 THE WITNESS: [Interpretation] I didn't say that. That's not
21 correct. I apologise to the Chamber. I said that this was the usual
22 sort of submission and that submissions of this kind were in case files,
23 but I'm not saying that this particular document is one I received and
24 placed in the case file. I don't remember that, but what is contained
25 here about torture and mistreatment is not correct.
Page 13024
1 JUDGE PARKER: In view of the seal of the court, the Chamber will
2 receive the document as an exhibit. If it appears to become material,
3 the Chamber may order that the whole of the document be translated. At
4 the moment that is not justified on what we have heard. It will be
5 received.
6 THE REGISTRAR: This would be Exhibit P1561, Your Honours.
7 MS. GOPALAN:
8 Q. Let's have a look at another document, Witness. This is 65 ter
9 06078. This is another document, also from Mr. Balaj. And we see in
10 number 2 it says:
11 "Examining magistrate of the Pristina district court."
12 That would be you, correct?
13 A. I don't see whether this document was received in the court. The
14 content is similar to the content of the previous document.
15 MS. GOPALAN: Could we go to the second page of the B/C/S,
16 please.
17 Q. We see in English it says "imprint of official seal."
18 MS. GOPALAN: Is there another page in the B/C/S? Yes.
19 Q. Right at the bottom, is that the official seal of the district
20 court and the date of delivery?
21 A. Yes, I see the official seal of the court at the bottom of the
22 document, but I don't know whether it was handed to me and the contents
23 are not familiar to me now that I see the first page.
24 Q. Well, the contents are similar to the other document that we just
25 saw. It is a continuing complaint about the treatment of Isak Aliu. And
Page 13025
1 a number of recipients are listed in addition to yourself. And you say
2 that although you are listed as a recipient, this is not a document that
3 you are familiar with?
4 A. No, I'm not familiar with it. Nowhere do I see that it was
5 handed to me personally or that I received it.
6 Q. Now, in this document we see somewhat more detail in relation to
7 Isak Aliu's complaint, and could we go to page 1 of the English and page
8 1 of the B/C/S. This document names two individuals, state security
9 officers, Rajko Dodera you see at the bottom of the B/C/S and perhaps --
10 yes, and same in the bottom of the English, state security officer Rajko
11 Dodera, and it also names another state security officer from Ferizaj,
12 that's on the next page, who says - it's in the English second paragraph
13 - state security officer from Ferizaj, Zelenovic, has beaten him most.
14 Now, ma'am, if you were to receive such information identifying
15 members of the state security as having been involved in beating an
16 individual in custody, what would you do?
17 A. I didn't receive this, a submission listing particular persons.
18 This submission should have been sent to the district public prosecutor
19 who was authorised to examine and establish whether what is stated in the
20 submission is correct. I don't know either of the two people mentioned
21 here, but Rajko Dodera is mentioned because a terrorist attack against
22 him was launched, a hand-grenade was thrown on his house where he lived
23 in Urosevac, and we mentioned this case yesterday. It's one of the
24 exhibits in this case. So everything stated here was something that the
25 district public prosecutor should have investigated, not I as the
Page 13026
1 district judge.
2 Q. Now, ma'am, initially when we saw this document you said, I see
3 the official seal of the court at the bottom of the document, but I don't
4 know whether it was handed to me. And now having looked at it further
5 you say that, "I didn't receive it." That's in line 17, page 72. What
6 is it, ma'am?
7 A. This submission was not handed to me as the investigating judge.
8 It must have been handed to the president of the court, who forwarded it
9 to the district prosecutor. It didn't arrive in my office, and I see the
10 contents are similar to the contents of the previous document. So the
11 defence counsel might have thought he had to address it to me as well.
12 It does have the stamp of the court, but it was received in the clerk's
13 office and then it would have been forwarded to the appropriate persons.
14 Q. Ma'am, during the course of this afternoon we've seen a number of
15 documents relating to the treatment of Isak Aliu in custody that were
16 addressed to you, and in relation to all of these documents your
17 testimony is that you do not recall receiving them. Is that your
18 position?
19 A. If you're asking me whether what is mentioned here actually
20 happened to Isak, then it's not correct because neither he nor any of the
21 other accused who were in prison experienced anything like this. As for
22 the submissions, I did not receive this last one, I don't recall the
23 contents, so that none of this is familiar to me.
24 MS. GOPALAN: Your Honours.
25 JUDGE PARKER: Mr. Djordjevic.
Page 13027
1 MR. DJORDJEVIC: [Interpretation] I have to point out the
2 translation into English. It has nothing to do with the original B/C/S.
3 In the second paragraph of the English version it says on the 22nd of
4 February he was beaten with truncheons on his back and arms, whereas it
5 says here that on the 22nd he was taken to the state security station.
6 And then again I see Pristina and a date, and usually CLSS says here that
7 there is a stamp, but I don't see that on the translation. And then in
8 the translation it says "complaint," whereas in the original it says
9 "submission." So I really have a problem with these translations of
10 these documents which I see here.
11 [Trial Chamber confers]
12 JUDGE PARKER: I'm afraid we have run over time and we cannot
13 continue. We must therefore continue with this tomorrow when we sit.
14 When we continue tomorrow, one possible way of dealing with
15 Mr. Djordjevic's concern is to have the witness read the document, and it
16 will then be translated in the course of the hearing. And that will be
17 an instant translation which may not be as precise as a considered one,
18 but it will have the advantage that we will be able to determine whether
19 there is any material difference between what is said in the document in
20 B/C/S and what is offered in the English translation. So we will adjourn
21 on that basis and come back to the document tomorrow.
22 I'm afraid we must adjourn now because the court is used for
23 other purposes, and we are listed tomorrow afternoon at 2.15, when we
24 will continue.
25 --- Whereupon the hearing adjourned at 1.50 p.m.
Page 13028
1 to be reconvened on Thursday, the 18th
2 day of March, 2010, at 2.15 p.m.
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