Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6827

1 Thursday, 29 January 2004

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.02 a.m.

6 JUDGE LIU: Call the case, please, Mr. Court Deputy.

7 THE REGISTRAR: Good morning, Your Honours. This is Case Number

8 IT-02-60-T, the Prosecutor versus Vidoje Blagojevic and Dragan Jokic.

9 JUDGE LIU: Thank you.

10 Good morning, Witness.

11 THE WITNESS: [Interpretation] Good morning.

12 JUDGE LIU: Did you have a good rest last night?

13 THE WITNESS: [Interpretation] Yes.

14 JUDGE LIU: Are you ready to start?

15 THE WITNESS: [Interpretation] Yes.

16 JUDGE LIU: Thank you.

17 Ms. Davis.

18 MS. DAVIS: Thank you, Your Honour.

19 If I could have the assistance of the usher.


21 [Witness answered through interpreter]

22 Examined by Ms. Davis: [Continued]

23 Q. Good morning, Mr. Kovacevic.

24 MS. DAVIS: If I could have the assistance of the usher. I would

25 like the witness to be shown what has previously been admitted as P380.

Page 6828

1 Q. Mr. Kovacevic, do you recognise this document?

2 A. Yes, I do.

3 Q. And can you tell us what it is.

4 A. These are the guidelines for the criteria for criminal prosecution

5 which were made in 1992 by the military prosecutor's office at the Main

6 Staff of the Republika Srpska Army. And these guideline contain

7 instructions indicating how to proceed that laws on criminal procedure and

8 criminal codes should be complied with and that perpetrators of criminal

9 offenses should be prosecuted in accordance with these laws.

10 Q. And was this document in force and effect throughout the war?

11 A. Yes.

12 Q. So it was in effect in July 1995?

13 A. Yes.

14 Q. If I could have you turn in your version to the page that's marked

15 00760352. And in the English version it would be 008114 -- 4383, excuse

16 me. I would like to direct your attention to the underlined heading

17 that's marked number 3, which appears to begin a section addressing

18 guidelines for -- sorry. I'll let you get to the page.

19 A. Could you please repeat the page number.

20 Q. Yes, certainly. It's 00760352.

21 A. Could you please just tell me what the page is. Perhaps it would

22 be easier that way.

23 Q. Page 11 in the B/C/S version.

24 A. Yes, yes.

25 Q. Again, I would like to direct your attention to the underlined

Page 6829

1 heading that's marked number 3, towards the bottom of the page. And it

2 appears to begin a section addressing guidelines for criminal offenses

3 against humanity and international law, pursuant to chapter 16 of the

4 criminal code. Do you see that?

5 A. Yes.

6 Q. Now, in the B/C/S version there are some blank pages, so you'll

7 have to turn two pages over. If you could read the paragraph that begins

8 at the bottom of that page under heading number 3 and then continuing to

9 page 12. I would like to just give you a moment to look that over.

10 A. Do you mean to start right from the beginning, the legal

11 classification of criminal offenses from this chapter has been adopted

12 from international conventions with some adaptation and closer definition.

13 Q. I don't want you to read it out loud. I just wanted you to read

14 it to yourself and take a moment to review it.

15 A. Fine, yes.

16 Q. And I know you've had an opportunity to see this document when you

17 met with me in my office yesterday. Isn't that right?

18 A. Yes.

19 Q. On page 12 in your version, which is 00760354, the third paragraph

20 down the page refers to some criminal offenses, specific criminal offenses

21 under the criminal code. Do you see those references?

22 A. Yes.

23 Q. And it indicates that the criminal law applied in the territory of

24 the Republika Srpska defines 16 criminal offenses against humanity and

25 international law, including genocide, war crimes against the civilian

Page 6830

1 population, war crimes against the wounded and the sick and against

2 prisoners of war.

3 Are you familiar with the legal references that are mentioned here

4 in this document?

5 A. Yes.

6 Q. And do you agree with this document, that those laws referred to

7 there were in effect in the Republika Srpska in 1995?

8 A. Yes.

9 Q. If you could turn to the page 14 in your version, which is

10 00760358. In the English version, for those who are using that copy, it's

11 00814384. The second and third paragraph on that page -- the first full

12 paragraph and the paragraph following that appear to address obligations

13 of the VRS with respect to violations of the laws that are outlined and

14 described previously in the document.

15 Can you tell the Court what this document indicates about the

16 duties of officers of the VRS with respect to preventing and reporting

17 violations of crimes against humanity and international law.

18 A. It states that if somebody has learned to -- that a criminal

19 offence has been committed, that they are duty-bound to take certain

20 action and to submit criminal reports with the -- to the competent

21 military prosecutor's office.

22 Q. Thank you. We don't need to look at that document anymore.

23 MS. DAVIS: You can -- if I would ask the usher to please provide

24 the witness with the document that has been previously marked as P715 for

25 identification purposes.

Page 6831

1 Q. And I'll ask you also with respect to this document whether it's

2 something that you recognise.

3 A. Yes.

4 Q. Can you tell us what it is.

5 A. This is the criminal code of the former socialist federative

6 republic of Yugoslavia, which was also in force in the Republika Srpska,

7 because until 1992 we did not have our own laws. And then a decision was

8 passed that the criminal code of the Socialist Federative Republic of

9 Yugoslavia and of the former Socialist Republic of Bosnia and Herzegovina,

10 as it was styled, be in force. This is the general part of the criminal

11 code, and we also had the special part of the law, which was the law of

12 the socialist republic of Bosnia and Herzegovina.

13 Q. Okay. So this criminal code, was it in force and effect

14 throughout the war in the Republika Srpska?

15 A. Yes.

16 Q. So it was in effect in the Republika Srpska in July 1995?

17 A. Yes.

18 Q. I would like for you to turn to the page marked 00253459 in the

19 B/C/S version. This would be the first page of the English version. And

20 the page number of the book is 67, if that helps. This page indicates at

21 the top, chapter 16, criminal offenses against humanity and international

22 law. Then it goes on to list various offenses, the first one being

23 Article 141, genocide. Do you see what I'm referring to there?

24 A. Yes.

25 Q. And are these the laws to which the guidelines that we were just

Page 6832

1 looking through were referring?

2 A. Yes. The guidelines referred to the entire criminal procedure,

3 criminal prosecution, and that would mean that this was also included in

4 that.

5 Q. Thank you. That's all we need from that document.

6 I'd like to ask you a few questions now, having briefly discussed

7 the legal basis for criminal prosecutions during the war. I'd like to ask

8 you a few questions about how the criminal code was enforced as a

9 practical matter. Can you explain to the Trial Chamber how investigations

10 or subsequent prosecutions were initiated in the military court system

11 during the war.

12 A. The competent organ submitted the criminal report to the military

13 prosecutor's office. The military prosecutor's office in turn, when it

14 received the criminal report, had several options. If there wasn't

15 sufficient evidence, they could reject the criminal report. If there was

16 something missing, they could order that additional information be

17 gathered. If the criminal -- if the prosecutor's office deemed that there

18 were grounds for the suspicion, then they could submit the request for the

19 investigation to be conducted, which was conducted by an by an

20 investigative judge of the military court. After the investigation was

21 completed, the entire file was submitted to the prosecutor and the

22 prosecutor again had several options. If the prosecutor deemed that there

23 was sufficient evidence and material for an indictment to be filed, he

24 could do that. If there wasn't enough evidence of the criminal offence,

25 he could order that the investigation be stopped. Or if he deemed that

Page 6833

1 there could be some additional information gathered, he could order the

2 investigation to be re-opened and for additional information to be

3 gathered. That was the procedure.

4 The moment the report was filed with the prosecutor's office, it

5 was given a special number in the logbook. And it had the same reference

6 number throughout the procedure. And then for trial, the trial was

7 conducted before the military court. That would, in brief, be the

8 procedure.

9 Q. Thank you. Now, you mentioned after a competent organ submitted a

10 report concerning a potential crime. Who could submit such reports?

11 A. Such reports, since we were dealing with military personnel

12 mostly, they would be filed by unit commanders, security personnel,

13 military police, in fact any military person or any civilian, in fact, if

14 they had information that a criminal offence had been committed could file

15 such a report. And the military prosecutor was bound to act on it. Now,

16 whether he would eventually file the indictment or not, that was up to

17 him. But he had to act on it.

18 Q. Okay. Now, you say that the military prosecutor was bound to act

19 on it in some way, and you've described several different ways that they

20 would proceed from that point after a report was filed. You also

21 mentioned that when the report was filed, the case would be assigned a

22 number in a logbook. Was every report that was filed entered into the

23 logbook that you referred to?

24 A. According to the rules, every criminal report had to be recorded

25 in the logbook. If the military prosecutor failed to do so, that would

Page 6834

1 constitute a breach of the procedure. And then records could be kept of

2 the file at each stage of the procedure. You could follow it through

3 various stages.

4 Q. Okay. So if a formal report was filed by a VRS officer against

5 any VRS personnel, as required by the guidelines we've previously

6 reviewed, whether the charge was one of collaboration with the enemy,

7 desertion, whatever the charge, you would expect that charge to appear in

8 the logbook that you've described. Is that right?

9 A. Yes. If such a charge was made, that would be recorded. And

10 after the prosecutor filed such charges, then again we would have a record

11 of a trial, if any, and judgement, if any. Again, as I said, there would

12 be records all the way through.

13 Q. Okay. When you -- yesterday when we were speaking about your

14 employment history, you mentioned that the military courts were dissolved

15 in May of 2000. Do you know what happened to records from the military

16 courts at that time?

17 A. According to the instructions we received from the Ministry of

18 Defence, all files were transferred to the jurisdiction of certain

19 districts in accordance with the location of the actual perpetration of

20 crime. Pending files were handed over and all the files that have already

21 been adjudicated on were also handed over. So our archives were also

22 handed over. The files of the military Supreme Court were handed over to

23 the Supreme Court. And all the cases before the basic court and basic

24 military prosecutor's office were transferred to civilian courts and

25 prosecutor's office, according to the territorial jurisdiction. So it was

Page 6835

1 either to the district or basic courts and prosecutor's office, depending

2 on the actual gravity of the crime; that was also a criterion.

3 Q. Do you know where records of crimes that were committed in and

4 around Srebrenica, Bratunac, and Zvornik went after the dissolution of the

5 military courts in May 2000?

6 A. After the dissolution of military courts and prosecutor's office,

7 all cases that dealt with war crimes were transferred to the district

8 military -- district prosecutor's offices and courts, because they had

9 subject matter jurisdiction over those crimes. If there were any cases

10 regarding Srebrenica before military prosecutors' offices, they would have

11 been transferred to the district prosecutor's office in Bijeljina or the

12 district court in Bijeljina. But since things were done in accordance

13 with the wrong [as interpreted] rules, they were handed over to the

14 district -- they would have been handed over to the district prosecutor's

15 office in Bijeljina.

16 Q. Now, I'd like to ask you: When you took over as district

17 prosecutor in Bijeljina, in May 2001, were there any pending cases

18 involving war crimes by the VRS against Muslim victims, following the fall

19 of Srebrenica, that were transferred to your district?

20 A. No. There were no such cases, pending or otherwise before the

21 district prosecutor's office or court in Bijeljina.

22 Q. And going -- returning to the position you held before that, when

23 you became a military -- the military prosecutor in April 2000, were there

24 any cases on the dockets of the basic military courts that you supervised

25 at that stage involving war crimes by the VRS against Muslim victims

Page 6836

1 following the fall of Srebrenica?

2 A. No.

3 Q. And finally: During your time as a judge on the Supreme Court,

4 were any cases, appellant cases, brought before that court that involved

5 war crimes by VRS against Muslim victims following the fall of Srebrenica?

6 A. No.

7 MS. DAVIS: If I could have the assistance of the usher. I would

8 like to show the witness -- the document has been marked as P713 for

9 identification purposes.

10 Q. Do you remember seeing this document in my office yesterday?

11 A. Yes.

12 Q. And can you tell me whether you had seen the document at any time

13 before I showed it to you in my office yesterday.

14 A. As far as I can remember, an order was discussed. I don't know

15 whether I had actually seen it or not, but I do know that it was a topic

16 of discussion, an order of this kind.

17 Q. And do you recall whether it was a topic of discussion in 1996,

18 when it was apparently created, or whether it was discussed at some other

19 time, if you recall.

20 A. I don't recall.

21 Q. The document appears to refer to a request by President Karadzic

22 for an investigation into crimes after the fall of Srebrenica. Are you

23 personally aware -- are you personally aware of any investigation of this

24 nature that actually took place in 1996 or in the several years following?

25 A. I am not aware of what had been done as regards those

Page 6837

1 investigations. I know that this was a topic that was talked about, the

2 investigations that would have to be carried out. But as to what had

3 actually been done, I don't know about it, and this was not actually in

4 the scope of my activities.

5 MS. DAVIS: If I could have the assistance of the usher one more

6 time, I'd like to show the witness what has marked for identification as

7 P714.

8 Q. I'll give you just a moment to look that over.

9 Have you ever seen this document before?

10 A. I saw it in your office, but not before that. This is the

11 information from the Minister Kijac, who signed this letter, and it

12 pertains to the Ministry of the Interior.

13 Q. Do you know anything about this report or any related

14 investigation?

15 A. No.

16 MS. DAVIS: If the usher could please show the witness a document

17 that has been marked as P712 for identification purposes.

18 If I could just have a moment, Your Honour.

19 [Prosecution counsel confer]

20 MS. DAVIS: Mr. President, this is a document we've marked for

21 identification as P712. I believe part of this document was tendered

22 under seal by the Defence yesterday as 67/3. But as I recall, it was just

23 a part of what here is a larger document. So we'll tender it in a

24 different form.

25 JUDGE LIU: Yes.

Page 6838

1 MS. DAVIS: If I could ask the usher to please show the witness

2 page 02146508 of this document.

3 Q. I'll just give you a moment to look that over.

4 MS. DAVIS: The English ERN for the page that the witness is

5 looking at is 03037619.

6 Q. Witness, have you ever seen this order before?

7 A. This is the first time I'm seeing this.

8 Q. And what does it appear to you to be?

9 A. I think this is an order given by Karadzic ordering that a

10 commission be established in order to investigate the matters concerning

11 two corpses that had been found, to have that investigated. And as far as

12 I can see, a commission had been established, because it is mentioned here

13 that there were two people present from the security centre, Vasic,

14 Dragomir, from the Bijeljina centre; and then Marjanovic Radco from the

15 MUP. I assume it was from Bijeljina, too. So therefore, they had been

16 ordered to investigate this, and it says here that it was to be done in

17 Zvornik security centre. They were to investigate this and to compile a

18 written report and inform the president of the republic about this.

19 Q. Can you tell from the face of this document whether this is

20 related to crimes that followed the fall of Srebrenica?

21 A. It's difficult to say now. Obviously they didn't know even then

22 where these two corpses had come from. They were not identified. And

23 then it says here: On the battlefields of previous battles with the

24 Muslim side, I don't know whether this was before the fall of Srebrenica

25 or afterwards, the battlefield in Pilica was mentioned in the municipality

Page 6839

1 of Zvornik.

2 Q. Okay. Do you personally have any information or knowledge of any

3 investigation that followed from this order?

4 A. No. This is this document from 1996. This was carried out by the

5 security centre, so I was not in a position to know about this. I was a

6 judge at the time and I had my cases. I don't know whether they informed

7 the then-prosecutors about this, but I don't know about that.

8 Q. I'd like for you to look at another page of the document now which

9 is -- the B/C/S version is 02146504. And it in English it would be

10 03037616 -- oh, I'm sorry, did I give the wrong page number? Are you

11 looking at a blank page.

12 A. It is a blank page.

13 Q. 6505. Does that help? With respect to this document,

14 Mr. Kovacevic, have you had a chance to look it over?

15 A. This is the first time I see this document. This was compiled by

16 the military prosecutor, Predrag Drinic, and he states, himself, here,

17 that he doesn't know what persons were involved, that this needs to be

18 investigated, that he has been informed, and then it needs to be

19 determined whether this falls under the jurisdiction of civilian courts, a

20 civilian prosecutor or the military one, and that it needs to be

21 determined how these -- how this has arrived here.

22 Q. My only question to you with respect to this document is whether

23 you personally had any knowledge of -- or have any knowledge of whether

24 such a commission was formed and whether an investigation took place.

25 A. No, I do not recall.

Page 6840

1 MS. DAVIS: That's all I need with those documents, thank you.

2 Q. Aside from the documents that you I've had a chance to review just

3 now, did you personally ever become aware during your time working in the

4 military court system during the war of any investigations or prosecutions

5 of war crimes by the VRS against Muslims, following the fall of

6 Srebrenica?

7 A. No.

8 Q. Did you ever hear of any charges being filed by VRS commanders or

9 officers against VRS personnel for war crimes against Muslim victims,

10 following the fall of Srebrenica?

11 A. There were no such criminal reports in the office of the military

12 prosecutor, at least I didn't see any when I came there. And there were

13 no such reports filed after the dissolution of the military prosecutor's

14 office. There were no such files filed in Bijeljina. They were not filed

15 by anyone, by no commanders.

16 Q. Now, we've talked about the fact that you're now the chief

17 prosecutor in the Bijeljina district. Is it true that you were visited by

18 representatives of the ICTY in 2001 and asked to locate the logs that

19 you've described and related paperwork in which war crimes committed by

20 VRS personnel in the Bijeljina district would have been recorded?

21 A. Yes.

22 Q. And were you able to find those logbooks?

23 A. [No interpretation].

24 Q. Did you have a chance to review them?

25 A. Yes.

Page 6841

1 Q. Did you find any entries in those logbooks indicating that a

2 charge had been filed by a VRS officer, any VRS officer against other VRS

3 personnel relating to war crimes against Muslims, following the fall of

4 Srebrenica?

5 A. No.

6 Q. I'd like to show you some additional records now and ask you to

7 tell the Trial Chamber what you can about them. The first one is marked

8 for identification as P702. Can you tell us what this document appears to

9 be.

10 A. This is information on the criminal activities in July of 1995 in

11 the basic military prosecutor's office in Bijeljina. So all basic

12 military prosecutor's offices had to report on a monthly basis to the

13 military prosecutor of the army of Republika Srpska on criminal activity

14 on reports that were filed, requests to launch an investigation, and

15 indictments issued for that month so that the military prosecutor would be

16 kept abreast of their work. And I'm not quite sure whether the prosecutor

17 in turn sent that information to the Ministry of Justice, or to the Main

18 Staff, or perhaps to both of those places.

19 Q. Okay. If I could ask you to turn to the page marked 02158324 in

20 the B/C/S version, it should be the second page. In the English version

21 it's also the second page, which is 7477.

22 In your version, Mr. Kovacevic, the last page -- the last

23 paragraph at the bottom of the page, if you could read that over. And for

24 those reading the English version, it's the paragraph before the heading

25 that's II.

Page 6842

1 A. Did you say page 2 or page 1?

2 Q. The page marked 8324. It should be the second page of the

3 document that you've holding, and the last paragraph.

4 A. It's page 1 in my version, 8324.

5 Q. Have you had a chance to read that last paragraph on the page?

6 A. Yes. It says here as it -- crime trends in July of 1995, bearing

7 in mind a numerical situation according to the above figures -- no, I'm

8 sorry. So bearing in mind the figures, we can see that there was a rise

9 in the number of criminal reports filed. And since some reports have been

10 referred to the Drina Corps in view of the expansion of the territorial

11 jurisdiction of the military court in Bijeljina.

12 Q. Now, yesterday we had some discussion about which military court

13 district had jurisdiction over Srebrenica, Bratunac, Zvornik, and the

14 surrounding areas in July 1995. Does this help to refresh your

15 recollection as to which military court district had that jurisdiction?

16 A. That means that the days' [as interpreted] accord and basic

17 military -- basic prosecutor's office in Serbian Sarajevo had already been

18 dissolved and transferred to these authorities. This is the conclusion

19 that I can draw based on this.

20 Q. So is that -- so who then, in your view, based on what you're

21 seeing here had jurisdiction -- which military court district had

22 jurisdiction over Srebrenica, Bratunac, Zvornik, and the surrounding areas

23 in July 1995?

24 A. It seems Bijeljina.

25 Q. If I can ask you to turn to page 8326 in the B/C/S version, and

Page 6843

1 it's 7478 in the English version. If I can direct your attention to the

2 heading marked number 3 that indicates crimes under chapter 16 of the KZ

3 RS. Now, we looked at the criminal code earlier, and I believe you told

4 us that this chapter 16 is crimes against humanity and international law.

5 Is that right?

6 A. Yes.

7 Q. And what does this report for July 1995 tell us regarding whether

8 any charges or investigations, prosecutions, were initiated for war crimes

9 in the Bijeljina district in that month?

10 A. No. It says here that there were no requests to launch an

11 investigation and no indictments were issued for these crimes.

12 MS. DAVIS: The next document I'd like to show the witness is

13 marked for identification as P703.

14 Q. And again, if I can just ask you to tell us what this document

15 appears to be.

16 A. Again, information for the month of August, compiled by the

17 military prosecutor's office in Bijeljina.

18 Q. If you can turn in your version to the page in your version marked

19 02158558. And again, look at the heading marked number 3 for crimes under

20 chapter 16 of the criminal code. What does this report tell us regarding

21 whether any charges, investigations, or prosecutions were initiated for

22 war crimes in the Bijeljina district in August 1995?

23 A. It says here that as far as these crimes under chapter 16 are

24 concerned, that there were 210 requests to launch investigation, all 210

25 against civilian persons. And then it lists the names of certain persons,

Page 6844

1 regarding whom there was a request to launch an investigation, and there's

2 also a description of crimes they might have committed.

3 Q. As you've noticed, the next few paragraphs discuss some specific

4 charges and indictments. Can you take a moment to review those and tell

5 us whether you can discern the ethnicity of the perpetrators of the crimes

6 charged and discussed here.

7 A. Based on their first and last names, it would seem that they are

8 Muslims, or rather, Bosniaks.

9 Q. So in August 1995, there were 210 war crimes charged against --

10 all against civilians. What does that indicate about whether any such

11 charges were filed against VRS personnel in that month?

12 A. It says here regarding whom these requests were filed and there's

13 also a number of such requests.

14 Q. Is there any indication of whether any charges were filed against

15 any soldiers, VRS soldiers?

16 A. No. No.

17 MS. DAVIS: The next document I'd like to show the witness has

18 been marked as P704.

19 Q. And if you could look at page 0215 -- well, first, can you tell us

20 what this document is.

21 A. This is the report on criminal activity for the month of September

22 1995 in the office of the military prosecutor -- basic military prosecutor

23 in Bijeljina.

24 Q. And if you could turn to page 02158599 in your version. In the

25 English version it's 03067466. And once again, I'm going to ask you to do

Page 6845

1 this with each one of a few more documents. If you can look at the

2 heading marked number 3, crimes under chapter 16, and tell us what you can

3 discern about whether any charges, reports, requests for investigations,

4 prosecutions, were executed for war crimes in Bijeljina in September 1995.

5 A. It says here that there were seven requests to launch an

6 investigation, all seven against civilians.

7 Q. And here again --

8 A. And that one indictment was issued. And then it states the name

9 of the person mentioned in the indictment and the number of the

10 indictment.

11 Q. And can you discern from the information provided about the one

12 indictment what the ethnicity of the charged individual was?

13 A. Yes. This is a Muslim -- a Bosniak, at least based on the first

14 and last name, that would be my conclusion.

15 Q. Okay. The next document is P706. And if you can take a look at

16 this document, both the cover page and the inside pages, and tell me what

17 this document appears to you to be.

18 A. Again, this is information for October of 1995, and this is the

19 military prosecutor's office in Serbian Sarajevo.

20 Q. Now, looking at the second page of the document, not the cover

21 page, but the first true page of the document, can you tell me what

22 district this document appears to be discussing.

23 A. On page 2 it says that it was sent by the basic military

24 prosecutor's office in Bijeljina. It has their date and their number and

25 the signature of the prosecutor, and it seems that the cover page was a

Page 6846

1 mistake, because this seems to come from the office in Bijeljina. It must

2 be a mistake.

3 Q. Okay. So the substance of the report that's attached to the cover

4 page covers the district of Bijeljina. Is that right?

5 A. Yes.

6 Q. And if you could turn to in your version page 02158571. And in

7 the English version, it's 03067949. Once again, if you could look at the

8 heading entitled number 3 and tell us what the report indicates regarding

9 charges of war crimes in that month.

10 A. It says here that in October there were no requests to launch an

11 investigation and no indictments were issued concerning these crimes.

12 Q. The next document is P707. To save some time, I'll ask you if you

13 agree with me that this seems to be a report for November 1995 from the

14 Bijeljina district.

15 A. Yes.

16 Q. And turning to page 02157793 in your version and 03067936 in the

17 English version. Would you agree with me that this indicates that there

18 were no requests for investigation or prosecutions initiated in November

19 1995 in the Bijeljina district?

20 A. Yes. Yes.

21 Q. The next document is P708. Would you agree with me that this is a

22 report for December 1995, crime trends in the Bijeljina district?

23 A. Yes.

24 Q. And turning to page 02157838 in your version and 03067924 in the

25 English version under heading number 3, would you agree that there appear

Page 6847

1 to be no requests for investigation or indictments, prosecutions, in that

2 month for war crimes?

3 A. Yes.

4 Q. The next document is P710. Would you agree with me that this is a

5 similar report for January 1996?

6 A. Yes.

7 Q. Looking at page 02158036 in your version, can you discern whether

8 any charges, investigations, or prosecutions were initiated for war crimes

9 in that month?

10 A. Yes -- I mean, there weren't any.

11 Q. The last document I'll have you look at is marked for

12 identification as P711. And this is a February 1996 monthly report for

13 Bijeljina. And I'll direct your attention to 02157959 in your version.

14 And can you tell us whether there were any charges, investigations,

15 prosecutions for war crimes in that month.

16 A. It says here that as regards these crimes are concerned, that a

17 request for investigation was filed regarding one person, and also the

18 statement of reasons for the charges are stated here -- it's stated here,

19 and also the very crime itself, that is a crime against civilian

20 population.

21 Q. And can you identify -- can you discern from the information

22 that's provided here what the ethnicity of the victims of this crime were?

23 A. Well, since this is a member of the HVO, the Croatian Defence

24 Council, that would probably be a Croat.

25 Q. Are you referring now to the perpetrator or the victim?

Page 6848

1 A. Do you mean the perpetrator or the victim? It says here that

2 victims were of Serbian ethnicity. Yes, yes, that's correct. Let me

3 check. Yes, victims were of Serbian ethnicity.

4 Q. Thank you. Now, given the criminal code that we reviewed earlier

5 regarding war crimes and the guidelines that we also saw, does it surprise

6 you that there are no indications in these records of any reports,

7 investigations, or prosecutions of war crimes by VRS personnel against

8 Muslims after the fall of Srebrenica?

9 A. I think that in order to be able to understand the essence of

10 this, I have to say that as far as I was able to observe during the war,

11 criminal reports and investigations and requests for investigations and in

12 some cases even indictments were issued mostly for persons belonging to

13 other ethnic groups, because we were at war. And I have this feeling that

14 the same thing was going on on the other sides, that they did it in a

15 similar way. And I guess that if the people that had fled Srebrenica,

16 they were at the disposal of the organs of the federation probably in

17 Tuzla and so on. I assume that they could -- they were able to get their

18 statements and gather other kinds of evidence.

19 MS. DAVIS: I have no further questions. Thank you.

20 JUDGE LIU: Well, Mr. Karnavas, are you going to start your

21 cross-examination or we have an early break?

22 MR. KARNAVAS: I leave it to the Court's discretion, Your Honour.

23 I can start or we can take an early break.

24 JUDGE LIU: Well, I think we'll have a break and we'll resume at

25 25 minutes to 11.00.

Page 6849

1 --- Recess taken at 10.05 a.m.

2 --- On resuming at 10.36 a.m.

3 JUDGE LIU: Yes, Mr. Karnavas, your cross-examination, please.

4 MR. KARNAVAS: Thank you, Mr. President, Your Honours.

5 Cross-examined by Mr. Karnavas:

6 Q. Good morning, sir.

7 A. Good morning.

8 Q. I hope you can see me with that contraption that's in front of

9 you.

10 I want to pick up with the last question that was posed to you by

11 the Prosecutor, because you indicated that it was your understanding that

12 the others, that is, on the federation side, the Muslims and the Croats

13 were doing the same thing with respect to following up on complaints to

14 the military tribunals. Okay?

15 A. Yes.

16 Q. Are you aware of any investigations or prosecutions against Alija

17 Izetbegovic for the war crimes that he had committed during the war?

18 A. I personally am not aware of them, with the exception of what I

19 have learned from the media or read in the papers. I know that some

20 materials have been submitted to this Tribunal, and among other persons,

21 this material concerned also Alija Izetbegovic.

22 Q. Okay. What about with Naser Oric for some of the atrocities that

23 he was committing on or about from 1992 to 1995, were you aware of any

24 investigations that were done by the military courts on the federation

25 side against Mr. Naser Oric who, as I understand, was openly walking about

Page 6850

1 in Tuzla up until the time he was arrested?

2 A. As far as Naser Oric is concerned, I don't know what the military

3 or other courts in the federation did in this regard. However, I am

4 familiar with this case, as regards the Bijeljina military court and

5 prosecutor's office, because the crimes committed by Naser Oric and his

6 unit were committed in Bijeljina, Srebrenica, and Bratunac. That was the

7 territorial jurisdiction of Bijeljina, and that's why I am aware of that.

8 I am familiar with the file.

9 Q. Okay. But that's on the Serb side, on the RS side. With respect

10 to the federation side, since the question was posed by the Prosecution,

11 are you aware of on the federation side whether the military courts there

12 did any investigations regarding Naser Oric who was openly bragging about

13 some of the atrocities, and we have documentation in the Western press

14 where he's openly bragging about his atrocities?

15 A. I don't know about the federation. I don't know whether they did

16 anything or whether they didn't do anything as regards the Naser Oric

17 case.

18 Q. Now, sir, I want to -- that concludes that portion of that segment

19 of the cross-examination on the point that was brought out by the

20 Prosecutor. So now what I would like to do is talk a little bit about the

21 function of the military courts, as they existed back then. Could you

22 please tell us how they were established, under whose jurisdiction were

23 they and how they were financed.

24 A. For a time, the military courts were attached to the Main Staff.

25 And then after that, they were attached to the Ministry of Defence of the

Page 6851

1 Republika Srpska. Do you mean the funding for the operation of the

2 prosecutor's offices and the courts? If that's what you mean, they came

3 from the Ministry of Defence of Republika Srpska; in other words, from the

4 government.

5 Q. Okay. Now, you indicated that initially they were under the Main

6 Staff or attached to the Main Staff?

7 A. Yes. Attached to the Main Staff of the Army of the Republika

8 Srpska. That was for a brief period of time. And after that, they were

9 under the Ministry of Defence of the Republika Srpska.

10 Q. So it would have been a civilian organ once they came under the

11 Ministry of Defence?

12 A. Well, it was not a civilian organ. They were military organs.

13 Q. Well, that's what I want to get to. Were they controlled by the

14 military, in essence?

15 A. I think they were, since this was the Ministry of Defence. We

16 were attached to the Main Staff only for a very brief period of time. My

17 personal opinion is that in order for people not to be influenced anymore,

18 to prevent the people from working under the pressure of the army or of

19 the Main Staff, that was the reason why the prosecutor's office was

20 reattached to the Ministry of Defence of the national defence, in order to

21 minimise the influence of the Main Staff. That is my assumption because I

22 am not a politician and this is more or less a political issue.

23 Q. But even after they were put under the Ministry of Defence, during

24 this wartime period, from 1992 to 1995, would it be fair to say that the

25 military prosecutor came under a great deal of pressure and influence from

Page 6852

1 the military, and in particular, the Main Staff?

2 A. I don't know about the pressure that was exerted. I know that we

3 as judges were not under any kind of pressure in that period.

4 Q. All right. Well, of course if you don't get any sensitive cases

5 to judge, you're not going to come under any pressure. Right?

6 A. Well, in a wartime situation, all cases are sensitive.

7 Q. Okay. But a case, for instance, that might be lodged against

8 Mladic or Beara or Popovic, the security organs. Would you not say that

9 those are slightly more sensitive and the pressure might be slightly more

10 than if you're investigating some Muslim civilian who is accused of having

11 committed crimes against some Serbs?

12 A. There were no such cases, but had there been such cases, probably

13 a person would pay much more attention and be much more circumspect with

14 dealing with such cases. But that's only my assumption because such cases

15 did not exist; there weren't any.

16 Q. Okay. Now, when you were -- do you know whether those who worked

17 in the military courts, either as judges or prosecutors, held a rank, a

18 military rank?

19 A. Yes. They all had a military rank, because according to the

20 adopted law on the military courts that existed in the former Socialist

21 Federative Republic of Yugoslavia, in order for a person to be a military

22 judge or military prosecutor, automatically that person would be given a

23 certain rank. That was an automatic procedure. For instance, a judge of

24 a basic court, a military court, or a basic military prosecutor had to

25 have at least the rank of a captain. These ranks were given as a

Page 6853

1 formality only. I can explain to you why, if you want me to.

2 Q. Go ahead.

3 A. Because when the war broke out, most of the officers, military

4 judges who were active-duty personnel, left the country and went to the

5 former Yugoslavia, Serbia, and Montenegro, together with the rest of the

6 army, which means that the active-duty servicemen with law degrees and

7 with ranks who were military judges and prosecutors simply did not exist.

8 And then judges of regular courts and regular prosecutors were taken in,

9 and the military judicial system was created. And these people were given

10 appropriate ranks and the functions of military judges and prosecutors in

11 their respective territories.

12 Q. As I understand it, everyone, all citizens, were more or less

13 mobilised from the age of 16 to 60 during that period of time. Correct?

14 A. Yes, that is correct. In May there was the mobilisation; it was

15 declared. And those who failed to respond to the call-up faced criminal

16 sanctions, which were quite severe in a wartime situation.

17 Q. And is it safe for me to assume that those who were serving as

18 judges and prosecutors in these military tribunals, that was part of their

19 active duty, the mobilisation duty?

20 A. Well, you could say that because only one or two people remained

21 who were active-duty servicemen who had been active-duty servicemen before

22 the war and who remained to work in the military judicial system of

23 Republika Srpska. The others were simply mobilised.

24 Q. All right. And just to make sure I understand you, the

25 prosecutor, for instance, did he also have to be on the front line and

Page 6854

1 carry out duties as a soldier, or was he carrying out his duties, his

2 military duties, as the prosecutor, the military prosecutor?

3 A. No. He carried out his military obligations as a military

4 prosecutor. They never went to the front lines, and that went both for

5 military prosecutors and military judges. They worked exclusively in

6 their offices or on crime scenes to carry out on-site investigations, if

7 that was possible at all.

8 Q. All right. Now, given your explanations, with the understanding

9 that the military courts are under the Department of Defence, does it not

10 appear to you that perhaps the military prosecutor and the military courts

11 were essentially part of the military and not part of the civilian

12 government?

13 A. Yes. That was part of the military.

14 Q. Okay. And might that, to some degree, explain the difficulties

15 someone might have, an officer might have, in going to a military organ

16 and then filing a complaint or a report against someone, such as

17 General Mladic or someone such as Colonel Beara, who was the head of the

18 security organ for the Main Staff?

19 A. I did not have such problems and I don't know whether others had.

20 Q. But you didn't have those problems because you were a judge.

21 Correct?

22 A. Yes.

23 Q. So I take it we have the wrong person here in court today if I'm

24 going to pose these sorts of questions?

25 A. Well it's up to you to judge that --

Page 6855

1 JUDGE LIU: Yes, Ms. Davis.

2 MS. DAVIS: I'm not really sure that's a question that the witness

3 can respond to.

4 MR. KARNAVAS: I think he just did. I'll rephrase, I'll

5 rephrase --

6 JUDGE LIU: Well, Mr. Karnavas, I think your question is posed to

7 the Prosecutor rather than the witness.

8 MR. KARNAVAS: Well, I'll rephrase, Your Honour.

9 JUDGE LIU: Yes, please.


11 Q. Certainly, sir, if I wanted to make these sorts of inquiries, pose

12 these questions that I'm posing to you, from your answer it would appear

13 that I would need to have a military prosecutor from that period on the

14 stand and not a judge who served in the military courts. Correct?

15 JUDGE LIU: Yes, Ms. Davis.

16 MS. DAVIS: Again, I'm not sure that this is a question that's

17 appropriate to be directed to this witness. In addition, the questions

18 that Mr. Karnavas is referring to are speculative towards any witness,

19 regardless of whether they were a military prosecutor or a military judge

20 at the time.

21 MR. KARNAVAS: If I may respond, Your Honour --

22 JUDGE LIU: Well, I think Mr. Karnavas has already rephrased this

23 question in a way that is acceptable to this Bench.

24 Witness, you may answer this question.

25 THE WITNESS: [Interpretation] I think that at any rate for this

Page 6856

1 period, a military prosecutor could give you better answers than a judge,

2 as regards the manner of operation of the prosecutor. Of course I can

3 give you answers as regards the manner of operation of a judge.


5 Q. Thank you. Now, the reason I posed that question in the manner

6 and fashion in which I did was because of your answers with respect to how

7 a case developed from report to judgement. And I understand from your

8 testimony elicited from the Prosecutor there, you indicated that reports

9 for investigation would go to a prosecutor and not to a judge. Correct?

10 A. Yes.

11 Q. And in fact, in listening to your very cogent and quite clear

12 answer as how a case developed, this is classic Romano-Germanique process

13 that was being applied at the military tribunal. Correct?

14 A. Yes. The law on criminal procedure is the same for regular

15 courts, for military courts, for military prosecutors, the same law

16 applied to all.

17 Q. Exactly. Now, in listening to your previous answers, one might be

18 left with the impression that perhaps the military tribunal of which the

19 military prosecution was a member of might not necessarily be totally

20 independent. Am I wrong?

21 A. I don't think you are right. I'm sure that there were no

22 direct -- there was no direct pressure. And now whether anyone had any

23 reserves in this respect or not, I would assume that it had to do more

24 with the personality of that person than with anything else.

25 Q. Okay. And of course again, you can only speak from the judge's

Page 6857

1 point of view, not from the prosecutor's point of view. Correct?

2 A. Yes, for that period.

3 Q. Because the prosecutor would be duty-bound to at least follow-up

4 on a report, should one be made to him or to her? You need to answer so

5 we make a record.

6 A. Yes, yes.

7 Q. Thank you. Okay. Now, you were asked a series of questions as to

8 who could initiate a report with the military prosecutor. And you said

9 just about anyone. It could be military; it could be civilian. Correct?

10 A. Yes. Yes. Yes.

11 Q. Now, in preparation to come here and testify, as I understand it,

12 the Office of the Prosecution came to Bijeljina more than on one occasion

13 to speak with you and to speak with Judge Radomir Aleksic. Correct?

14 A. Yes.

15 Q. And Judge Aleksic is the president currently of the court -- of

16 the district court in Bijeljina?

17 A. Yes.

18 Q. Did they by any chance, the Office of the Prosecution, explain to

19 you anything about their case with respect to Srebrenica?

20 A. The investigators that came went through our logbooks looking for

21 some cases, I can't remember now the cases in question, but mostly those

22 dealing with Srebrenica. We talked mostly about that event. Some of the

23 materials that we had from the military judiciary were photocopied, parts

24 of the logbook, some of the materials, documents, that we have now been

25 through. So at no point were the investigators from The Hague prevented

Page 6858

1 from having access to these documents. They could at any point go through

2 any documents they wished and make photocopies. And that is exactly what

3 the president of the district court, Mr. Aleksic, did, although in the

4 actual fact his court did not have any such cases left -- there are no

5 such cases left there.

6 Q. I want to show you what has been marked for identification -- what

7 has been marked as an exhibit and I believe has been already admitted as

8 an exhibit as P687/A. And perhaps you can give us your opinion on this.

9 Have you by any chance, sir, had an opportunity to look at this decision

10 on the appointment of the civilian commissioner for Srebrenica?

11 A. No.

12 Q. Okay. If you could take a moment, sir, and look at it, and in

13 particular I would like you to look at -- I mean, pay a little closer

14 attention to paragraph 4.

15 A. Yes.

16 Q. Okay. Now, in looking at paragraph 4, could you give us an

17 opinion as to whether the civilian commissioner, which would have been

18 Mr. Deronjic at the time, whether he would have been responsible for the

19 civilians from Srebrenica who had gathered in Potocari after the fall of

20 Srebrenica.

21 A. I think that he was responsible. And in fact, this decision

22 imposes this responsibility on him to treat them as war prisoners.

23 Q. All right.

24 A. And it also allows the civilian population to choose where they

25 will live or where they will move to. So this poses an obligation on him.

Page 6859

1 Q. All right. If you could also look --

2 JUDGE LIU: Well, Mr. Karnavas, I wonder if this is the right

3 question to ask this witness, this particular witness, about this

4 question.

5 MR. KARNAVAS: Your Honour --

6 JUDGE LIU: Well, this question could be put to anybody.

7 MR. KARNAVAS: Well, we are dealing with a jurist. We are dealing

8 with someone who was on the military courts at the time. The question was

9 elicited from the Prosecutor whether anyone, including civilians. There

10 is an issue, I believe, as to who is responsible ultimately for these

11 prisoners. I think it is an underlying issue in this case. At the very

12 minimum, it's for impeaching Mr. Deronjic who said he had no

13 responsibility and it wasn't his responsibility for the well-being of

14 those people. And I also would like to point out that Mr. Deronjic had an

15 obligation to file a report as well.

16 Now, I think this is also relevant to the fact that the Prosecutor

17 had stood up - not this one but in another case - has stood up and said

18 that it is absolutely -- they don't have sufficient evidence for

19 Mr. Deronjic with respect to Srebrenica. And I think that this is highly

20 relevant.

21 JUDGE LIU: Well, concerning the obligation to file a report,

22 there may be some relevance here.


24 Q. If you could look at paragraph number 5, sir, and just look at it

25 and read it.

Page 6860

1 A. It says: "Decisions of the civilian commissioner shall be binding

2 upon all civilian authority organs in the Serbian municipality of

3 Srebrenica."

4 Q. Would that include units of MUP?

5 A. Yes.

6 Q. Now, from reading this decision, would Mr. Deronjic be one of

7 those individuals required to file a report with the military prosecutor,

8 given his authority?

9 A. Based on this decision, he was duty-bound to ensure the

10 implementation of this decision. And should he fail to do so, he will be

11 partially liable, or he will be among those liable. And it would be up to

12 the prosecution to determine just how liable he would be.

13 Q. Okay. And from this could you give us a legal opinion, based on

14 your knowledge of the RS law as it applied back then, whether these

15 prisoners, as stated under paragraph 4, were the ultimate responsibility

16 of Mr. Deronjic, or were they the ultimate responsibility of

17 General Mladic.

18 JUDGE LIU: Yes, Ms. Davis.

19 MS. DAVIS: I'm not sure that this witness has enough information

20 with which to respond to this question. He's an appropriate person to

21 pose this question to, but I would object on those grounds.

22 MR. KARNAVAS: All right. Your Honours, if I may be heard for a

23 second, Your Honour.

24 JUDGE LIU: Well -- yes.

25 MR. KARNAVAS: Again, Ms. Davis has had this gentleman in there --

Page 6861

1 on their list for several months. They obviously went through the laws

2 with him. They picked and chose the various laws they wanted to use this

3 gentleman for. He is a jurist. He is a judge. He was a prosecutor at

4 one point, the chief military prosecutor, now he's back to being a

5 civilian prosecutor. Obviously, he would have sufficient knowledge. Now,

6 if he doesn't, the gentleman can simply say, I don't have enough knowledge

7 or information at this point in time, in which case perhaps I could assist

8 him with some documents. And then later on, and then, you know, at a

9 later point he could tell us whether he's able to give us a reasoned

10 opinion.

11 JUDGE LIU: Well, anyway, your question is very difficult for this

12 witness to answer. The question is whether these prisoners were the

13 ultimate responsibility of Mr. Deronjic or were they the ultimate

14 responsibility of General Mladic.

15 MR. KARNAVAS: Correct, Your Honour. Based on this decision

16 placing -- which was from the president of the RS at the time, it's

17 obviously a binding decision, as we all know by now. And it would appear

18 to me, at least from reading it, that this gentleman might be able to shed

19 some light. I mean, we can't -- it can't hurt to hear his opinion,

20 Your Honour.

21 JUDGE LIU: Well, we will see how far we could go, but there is

22 some implications in your question. If Mr. Deronjic has the ultimate

23 responsibility, do you mean that there's no responsibility at all for

24 Mr. Mladic?

25 MR. KARNAVAS: No. I'm not saying that, Your Honour. I'm not

Page 6862

1 saying that at all. My question wasn't that they -- that there's no other

2 shared responsibility, obviously there is. But -- I mean, there is --

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 And that's why I'm asking these sorts of questions. They're based on

9 testimony that was brought up by the Prosecution, which I suspect they're

10 going to be arguing at some point.

11 JUDGE LIU: Well, I've already said we'll see how far we could go

12 concerning this question.

13 MR. KARNAVAS: Thank you, Mr. President.

14 JUDGE LIU: Witness, do you need the Defence counsel to repeat

15 that question?

16 THE WITNESS: [Interpretation] No.

17 JUDGE LIU: So you may answer it.

18 THE WITNESS: [Interpretation] Yes, I will answer. Just as all of

19 you agreed, I will join you in saying that it is a very complex issue, and

20 it's hard to give a yes or no answer. However, I think - and I think a

21 lot of people would agree with me - that this person is responsible, based

22 on this decision. But that doesn't mean that others were not responsible

23 as well, others who could have done something to the people who were

24 prisoners of war at the time, whether these other people were civilians or

25 military servicemen, it doesn't matter. But everybody is partially

Page 6863

1 responsible for prisoners of war. Some people have to provide certain

2 living conditions for them, they have to ensure their security based on

3 various conventions, and then some people are just responsible for

4 ensuring that no harm is done to prisoners of war. Now, whether these

5 other people are generals or just plain guards, I don't think that's

6 relevant.


8 Q. Thank you, sir. Now, in your capacity as the -- as a jurist, as a

9 judge, during the -- those years on the military court and then later on

10 as the chief military prosecutor, did you become acquainted at all with

11 the various legal instruments and instructions that were part of or the

12 body of law forming the VRS?

13 A. I was aware of the majority of that, yes.

14 Q. Now, if I were to pose some questions to you with respect to the

15 security organ, do you think you might be able to assist us on how the

16 security organ functioned, for instance, within the VRS?

17 A. I don't think I could be of much assistance in that regard. At

18 the time I worked in court, and I wasn't really acquainted with security

19 organs at the time.

20 Q. As part of your duty as a judge, I would suspect there were times

21 when you had to analyse documents. Correct?

22 A. Yes.

23 Q. Laws and regulations?

24 A. Yes.

25 Q. Instructions?

Page 6864

1 A. Yes.

2 Q. Now, if I were to show you an instruction that was prepared by

3 Mladic called the Instruction on Management and Command of Security

4 Intelligence Agencies of the Republika Srpska, that has been admitted into

5 evidence as D22, do you think that you might be able to look at it and

6 give us your informed, analytical, legal opinion?

7 JUDGE LIU: Well, Ms. Davis.

8 MS. DAVIS: Well, Your Honour, the witness has already responded

9 that he is not in the position to be of much assistance on issues

10 regarding the security organ and how they functioned within the VRS. Now

11 Mr. Karnavas is asking him if he can analyse a legal document. You know,

12 it's true that the witness is lawyer, but I don't know if we can -- if

13 Mr. Karnavas should be permitted to ask him opinion on every legal issue

14 that has arisen in this case and is likely to arise in this case.

15 JUDGE LIU: Well, Mr. Karnavas, I believe you greatly expanded the

16 scope of the cross-examination. This witness is -- was a prosecutor, a

17 judge. You may ask some questions concerning of the criminal law or the

18 related documents or instructions, but this question is too general and I

19 do not know whether this witness is capable to answer this question -- or

20 even if he answered whether there's any weight in it.

21 MR. KARNAVAS: Well, for the record I wanted to show the gentleman

22 Exhibit D22 and show him various parts. He is a jurist. I thought we

23 might take advantage of his knowledge and expertise, since we have him

24 here. They brought him all the way from Bosnia and Herzegovina. But if

25 the Court wishes for me to move to another topic, I will. But my purpose

Page 6865

1 was to show him one or two paragraphs, but I leave it to the Court's

2 discretion.

3 JUDGE LIU: Please move on.

4 MR. KARNAVAS: Thank you. But I take it that if I were to bring

5 an expert, I would not be denied the opportunity to pose these questions

6 on direct examination.

7 JUDGE LIU: I don't think this witness is testifying as an expert

8 of the legal matters.

9 MR. KARNAVAS: Well, I was under the impression he was a military

10 judge, so everything comes -- everything is in that. But very well,

11 Your Honour.

12 JUDGE LIU: Let's move on.

13 MR. KARNAVAS: Thank you.

14 Q. Now, you were -- you were asked to look at certain portions of the

15 RS law and in particular I believe you were shown earlier on a segment,

16 which is marked for identification purposes as P380, and that was the

17 guidelines were determining criteria for criminal prosecution. Do you

18 recall being -- that was just earlier today.

19 A. Yes.

20 Q. And in particular you were asked to look at one portion, and I

21 thought we might revisit that and maybe you can give us a more expansive

22 answer or a follow-up to what you have already answered.

23 MR. KARNAVAS: So if we could present the gentleman with that

24 exhibit, Madam Usher.

25 Q. And perhaps if you could look at -- perhaps just to re-orient

Page 6866

1 yourself, I'm going to be referring to the section at the end of paragraph

2 13, which I believe is the third paragraph -- I mean, page 13, the last

3 paragraph, and then go on to paragraph -- page 14, paragraphs 1 and 2, but

4 primarily I'm going to be focusing on paragraph 2. So that would be 14.

5 And for the English version, it would be -- I'm primarily interested in

6 paragraph 2 on page 8. And the RN number, or ERN number is 00814384.

7 Page 14, paragraph 2. As you will see, the very last sentence I'm

8 primarily interested in.

9 A. Page 14, paragraph 2?

10 Q. That's what I am told by my colleague, where it talks about the

11 failure -- the consequences for failing to file a report. Okay?

12 A. Yes.

13 Q. Okay. Now, if I can ask you a couple of questions about that, now

14 that you've refreshed your memory. I wanted to just give you some

15 guidance. Now, to your understanding, a failure to report, does that mean

16 if, for instance, the head of the security organ of a brigade is involved

17 in activities which might amount to persecution, that an officer's failure

18 to file such a report, if he should learn of that activity, under the RS

19 law would that officer also be charged with and held accountable for the

20 same crimes of the individual who was actually committing the crimes?

21 A. Well, these instructions say that these people will be prosecuted

22 for some of the crimes.

23 Q. Okay. Well, as I read it it says that they will be held -- it

24 "makes them answerable for these criminal offenses." That's the very last

25 part of the sentence in that paragraph. Does that mean that they're

Page 6867

1 answerable for not filing a report, or does that mean that they themselves

2 will be found guilty of the crimes being committed by the perpetrator.

3 A. I think this means that they will be considered responsible for

4 not preventing it.

5 Q. Assuming they were in a position of preventing it?

6 A. Yes.

7 Q. Well, what if they were to learn of the events after the fact?

8 A. Well, now that depends on the interpretation of it.

9 Q. All right. Well, what does the RS law say about that and where

10 might you point us --

11 A. For example, the law of the RS provides that they can be held

12 responsible for concealing the fact that a crime had been committed.

13 Q. Okay. But not for actually committing the crime?

14 A. Yes, providing that they only learned about it later.

15 Q. Now, I don't want to put you on the spot, because obviously you're

16 not here to take a bar examination. But when you were meeting with the

17 Office of the Prosecution, they came several times to see you, did they

18 ask you to go through the laws of the RS so you and Judge Aleksic could

19 explain the law to them?

20 A. No, they didn't ask any detail explanations.

21 Q. Okay. We can move on to another section. Now, you were shown an

22 order by President Karadzic to do an investigation. Do you recall that?

23 A. Yes.

24 Q. Were you shown that order back in Bijeljina, incidentally?

25 A. No. We couldn't find that order. To tell you the truth, I

Page 6868

1 completely forgot about that order; however, then Mr. Aleksic said that as

2 far as he could remember, there was such an order. And then I recollected

3 that there indeed was, however we could not find it.

4 Q. But in any --

5 A. At the time. I don't know what happened later.

6 Q. Well, obviously at some point the order was found. Correct?

7 A. Yes -- actually, I don't know where it was found, but obviously it

8 exists.

9 Q. All right. Now, prior to coming to The Hague last week, the week

10 before, the week before, the week before, did the Prosecution ever contact

11 you to show you that order?

12 A. No. I was shown that yesterday.

13 Q. Were you ever asked, sir, to perhaps make some inquiries, some

14 investigation, to find out whether that order had actually been carried

15 out, and if not, why not?

16 A. What do you mean? Who asked me to carry out an investigation?

17 Q. I'm asking you whether they ever asked you to see whether this

18 order had actually ever been carried out.

19 A. No.

20 Q. So assuming that -- do you know whether it was carried out?

21 A. No. I've already said that I don't know what was the fate of that

22 order. I don't know -- I don't remember that.

23 Q. Okay. Had you been asked by the Prosecution to look into that

24 matter, do you think you might have been able to at least do an

25 investigation, make some inquiries, to find out whether that order by the

Page 6869

1 president was actually carried out?

2 A. That's quite a lengthy task. Somebody could look for it and find

3 it, go through the archives. Because as you could see, there were several

4 persons whom that order made responsible.

5 Q. All right. Just a couple of last questions. What kind of witness

6 protection programme was available at the RS, say around the period after

7 Srebrenica, should an officer wanted to file a report after learning that

8 someone like Mladic and Beara and Popovic, who we knew was actively

9 engaged in killings, and some of his other security -- members of the

10 security organ and others, what kind of witness protection programme was

11 available to -- in the RS at that time?

12 A. At the time, there was no programme for witness protection, for

13 the simple reason that this concept of witness protection did not exist in

14 our law until the 1st of July, 2003, when this new law on criminal

15 procedure was adopted. Even now it is difficult to implement that system,

16 because we lack the resources. God knows when this will take effect.

17 Q. Okay. Finally, you mentioned this new law that came into effect

18 back in July, which as I understand is quite different from what it used

19 to be, the criminal procedure. Correct?

20 A. Yes, you're absolutely right.

21 Q. Now, since the Dayton Accords, the office of the high

22 representative has been more or less the occupying authority in

23 Bosnia-Herzegovina. Isn't that correct?

24 A. That's what you say.

25 Q. Well, I'm saying it. But isn't it a fact that it is the office of

Page 6870

1 the high representative that imposes law on a routine basis, including

2 this particular law?

3 A. That's not how I would put it.

4 Q. Okay.

5 A. Because officially that's not the case; it's not even considered a

6 protectorate, at least not officially. And as a lawyer and somebody who

7 works there, I am responsible for upholding the law, and I think it's more

8 of a political issue.

9 Q. Okay. But the -- as you well know, since the time that the office

10 of the high representative was created for the purposes of implementing

11 Dayton, they have been engaged, almost on a daily basis, on judicial

12 reform. Correct?

13 A. Yes.

14 Q. And one of the major aspects of the judicial reform was

15 investigating judges and prosecutors, some of whom who are not adequately

16 performing their functions. Correct?

17 A. Yes.

18 Q. And many, as a result of these investigations, have lost their

19 jobs. Correct?

20 A. Yes.

21 Q. And in fact, there have been more than one report indicating that

22 the judiciary during that period back then in 1995, 1996, and so on, the

23 judiciary - when I say "judiciary," I'm also including the prosecution -

24 was rather inconsistent [Realtime transcript read in error "persistent"]

25 in the application of the law?

Page 6871

1 A. I have to admit that you are right in this respect, and the very

2 fact that the high representative had to get involved in that through the

3 judiciary reform speaks to the fact that something had to be done.

4 Because it was quite obvious that the judiciary was not functioning

5 properly. This is not something we can deny, even if we wanted to. Then

6 the whole system was overhauled. The reform is still undergoing. It's

7 not finished yet. Precisely to reduce the influence of the politicians,

8 to have this independent judicial council, which would be free of any

9 influence when it came to appointing and relieving of duty the judges, to

10 keep them totally independent of politicians. And that is obviously why

11 the high representative had to do that, and I think he was justified in

12 doing that. It was obviously necessary, and I have to say that even

13 though it affects me and my colleagues --

14 JUDGE ARGIBAY: Sorry, Mr. Karnavas, to interrupt. Can you take a

15 look at line 6. It says in the transcript, was rather "persistent," and I

16 think you said "inconsistent".

17 MR. KARNAVAS: Yes, I did say "inconsistent". That was -- I was

18 trying to be delicate with the issue.

19 JUDGE ARGIBAY: Yes, I know. But it's very different to say

20 persistent or inconsistent.

21 MR. KARNAVAS: Inconsistent.

22 JUDGE ARGIBAY: Yes, so, just to correct it.

23 MR. KARNAVAS: Thank you, Your Honour.

24 Q. Which brings me back to my initial question: Back in those days

25 in 1995 and all the way up until recently when they did -- when the high

Page 6872

1 representative imposed the law, creating the high judicial and

2 prosecutorial council, but back then specifically, the office of the --

3 the military prosecutor wasn't totally independent and was under certain

4 influences, whether direct or indirect, just as many of the other judges

5 and prosecutors throughout the RS and, might I say, Bosnia and

6 Herzegovina.

7 A. As regards the laws themselves, the emphasis was on the

8 independence of the judges and prosecutors in their work. But you can now

9 look at it from another standpoint, how independent you can be if you have

10 somebody allocate funds to you, appoint you, relieve you of your duty. If

11 somebody has the authority to do all that, but according to the law it --

12 they were supposed to be independent, even at that time.

13 Q. I understand. Thank you very much, and give my regards to

14 President Aleksic when you see him in Bijeljina.

15 JUDGE LIU: Thank you, Mr. Karnavas.

16 Any cross-examination, Mr. Stojanovic?

17 MR. STOJANOVIC: [Interpretation] Yes. I will try to pose a few

18 questions and to elicit answers which would assist us in this trial.

19 Cross-examined by Mr. Stojanovic:

20 Q. [Interpretation] Good morning, Mr. Kovacevic.

21 A. Good morning.

22 Q. Can we begin?

23 A. Yes.

24 Q. There were quite a few questions that pertained to the functioning

25 of the military judicial system in the Republika Srpska in 1995 and later

Page 6873

1 on until the military prosecutor system was dissolved. I think that there

2 were some questions which created quite a confusion, and I will now try to

3 clear that up through my questions and your answers.

4 Do you agree with me that in 1995 and in the time when the

5 military judicial system existed that the continental law system applied?

6 A. Yes.

7 Q. Do you agree with me that the law on criminal procedure that was

8 adopted from the Socialist Federative Republic of Yugoslavia defined two

9 types of jurisdictions: Subject matter and territorial?

10 A. Yes.

11 Q. Could you please tell us what is the subject matter jurisdiction

12 of the military judicial system, of the military judiciary?

13 A. The subject matter jurisdiction of the military jurisdiction --

14 judiciary defined the jurisdiction of the basic military courts, the first

15 instance courts, in other words, and the second instance court which was

16 the supreme military court. The basic military courts adjudicated in all

17 cases in the first instance, whereas the supreme military court

18 adjudicated on the appeals. That was the second instance. Likewise, the

19 military Supreme Court judged the decision -- passed judgements on the

20 appeals, according to another kind of logbook in cases involving detention

21 or the release of detainees from detention. This was also in its

22 jurisdiction. The supreme military court also made decisions about

23 extraordinary legal remedies, the commutation of sentences. It also

24 conducted administrative proceedings, whereas basic military courts in

25 terms of subject matter jurisdiction carried out all other cases, and

Page 6874

1 carried out all other tasks, for instance investigations were carried out

2 by investigative judges and they passed first instance judges. That's the

3 basic military courts.

4 However, if they passed a sentence of 20 years in prison, and of

5 course after the Dayton agreement we no longer had the death penalty, but

6 before that they could also impose the death penalty. Then there was also

7 the third instance which was the Supreme Court of the Republika Srpska.

8 So that would be it as far as the subject matter is concerned.

9 JUDGE LIU: Well, Mr. Stojanovic, we are not in a hurry, so please

10 make a pause after you hear the answer. You give the interpreter a very

11 difficult time. And please advise this witness as well.

12 MR. STOJANOVIC: [Interpretation].

13 Q. Mr. Kovacevic, while we speak the same language and we always have

14 the same problem, could you please pay attention to your monitor in front

15 of you, on the screen in front of you, the black dot will stop moving, and

16 then you can start giving us your answer.

17 A. Fine.

18 Q. If you can speak slowly when you answer, because everything needs

19 to be interpreted into English. Thank you.

20 So we understand that at that time you were a judge of the supreme

21 military court. Is that correct?

22 A. Yes.

23 Q. According to your previous answer, you did not have the

24 opportunity to pass any first instance judgements -- you were not the

25 judge of the basic military court at any time?

Page 6875

1 A. I was for a time, but that was in the period between June and

2 January when I was a judge of the basic military court in Srpsko Sarajevo,

3 where in addition to carrying out investigations I also passed judgements

4 in several cases.

5 Q. In 1995 you dealt with appeals as a judge of the supreme military

6 court?

7 A. Yes.

8 Q. According to the law on criminal procedure, does the subject

9 matter jurisdiction define which cases are to be -- which criminal

10 offenses are to be dealt with by the military court and which are to be

11 dealt with by the civilian court. Is that correct?

12 A. Yes.

13 Q. My next question is: Who was tried by military courts and who was

14 tried by civilian courts when we are talking about perpetrators of

15 criminal offenses?

16 A. The jurisdiction of military courts, subject matter jurisdiction,

17 covered all military personnel who committed a crime, regardless of the

18 nature of the crime, with the exception of -- or rather, in addition to

19 military personnel, the military judiciary had jurisdiction over civilian

20 persons, but only for specific crimes, such as attacks on military

21 facilities, armed insurrection, and so on. So the criminal offenses were

22 clearly specified. Military courts also had jurisdiction to try prisoners

23 of war who commit crimes in their capacity of prisoners of war or who have

24 committed criminal offenses, crimes against humanity and international

25 law.

Page 6876

1 Q. You know how long we dealt with this problem of the definition of

2 a military person, and we really wanted to define the jurisdiction of the

3 military judiciary. But I will now try to deal with it very briefly for

4 the benefit of the Trial Chamber. If a civilian then, a person who has

5 not been mobilised, who does not have the status of a soldier or an

6 officer, commits a violent criminal offence, murder, so we are talking

7 about crimes against a person, is that person going to be tried by a

8 military court or a civilian court?

9 A. If a civilian commits the criminal offenses you just specified,

10 crimes against a person or against life and limb, they will be tried by

11 the regular civilian court.

12 Q. If such a criminal offence is committed by a reserve officer - so

13 I'm not talking about the active-duty servicemen, but a reserve soldier

14 who has been mobilised - who will try this reserve officer for such a

15 crime? Would it be the civilian court or the military court?

16 A. This person would be tried by a military court because as soon as

17 they are -- they come to their units after the call-up, they become

18 military personnel. Now, whether they are in active duty or whether they

19 are in the reserve, it doesn't mean a thing. From that moment on, from

20 the mobilisation onwards, they are considered to be military personnel.

21 Q. Now we have a situation that we have come across in this case. A

22 man is on vacation, on leave. He does not have any military tasks at that

23 time. He is at home, and he becomes a coperpetrator in a crime, he takes

24 part in a crime, we have the name of that person and his post. Who has

25 subject matter jurisdiction over such a person, civilian court or a

Page 6877

1 military court?

2 A. Now, this issue was subject to a lot of debate, but the opinion

3 that prevailed in the end is that if that person was engaged in the units

4 of the VRS, regardless of the fact whether that person was on the front

5 line or on vacation, that a military court had jurisdiction for his trial

6 and not the civilian court, although you can go into theoretical debates.

7 But this was the opinion that prevailed. So we could apply this to the

8 case that you just explained to me. That was the view taken; in other

9 words, that the military court had jurisdiction in such cases. Of course

10 again, I say we can now launch a long theoretical debate about it.

11 Q. Okay. So I will be right in concluding that based on the case law

12 and instructions, the term "military person" includes also persons subject

13 to military obligation, soldiers who do not have their wartime assignment

14 in the unit at that time, yet they have committed a crime in that period.

15 Is that correct?

16 A. Yes. That would be the case, provided that such a person had a

17 military engagement. It is not important now whether that person was on

18 leave, either that he doesn't have a task at that time or whether he has

19 taken annual leave, 10, 15 days, that does not play a role.

20 Q. Precisely, Mr. Kovacevic. Let's now take another example that we

21 had in this case. A person subject to military obligation goes to carry

22 out his military task, and en route to his military wartime military unit

23 he commits a criminal offence. You will agree with me, will you not, that

24 he is again under the jurisdiction of a military court?

25 A. Yes.

Page 6878

1 Q. Thank you. Let us now go back to the status of the civilian

2 police. A civilian police officer commits a crime against a person in

3 1995, so a member of a police station or of the security services centre.

4 Who has subject matter jurisdiction over such persons, to try such

5 persons?

6 A. That would be the regular court, civilian court.

7 Q. So all criminal offenses committed by civilian police come under

8 the jurisdiction of a civilian court?

9 A. Yes, because it would be quite dangerous for them to be tried by

10 military courts, because then you would have a military regime.

11 Q. Thank you. You also spoke about the other kind of jurisdiction,

12 that's the territorial jurisdiction?

13 A. Yes.

14 Q. Now, to speed things up a bit, I will just gloss over this issue

15 of territorial jurisdiction; you correct me if I'm wrong. Military

16 judiciary was organised on the basis of corps, as regards the territorial

17 jurisdiction. Is that correct?

18 A. Yes.

19 Q. The court that had jurisdiction for the 1st and 2nd corps was the

20 military court in Banja Luka. Is that correct?

21 A. Yes.

22 Q. The court that had territorial jurisdiction for the Eastern Bosnia

23 Corps was the military court in Bijeljina. Is that correct?

24 A. Yes.

25 Q. The court that had jurisdiction after the Drina Corps and for the

Page 6879

1 Sarajevo Romanija Corps until its dissolution was the military court in

2 Srpsko Sarajevo. Is that correct?

3 A. Yes.

4 Q. The court that had jurisdiction over the Herzegovina Corps was -

5 during the war - the military court in Bileca?

6 A. Yes, that is correct.

7 Q. As far as we understand, in 1995, let's say in mid-1995, the

8 military court in Srpsko Sarajevo ceased to exist. Is that correct?

9 A. Yes.

10 Q. Am I right if I say that from that time onwards, the territorial

11 jurisdiction for the Drina Corps, for all practical purposes, became

12 divided?

13 A. Yes.

14 Q. Am I correct in saying that the division was based on the

15 territorial principle that followed the organisation of the civilian

16 district courts?

17 A. Yes, more or less. Now, I can't tell you whether it was like

18 that 100 per cent, but that would be the territorial jurisdiction.

19 Q. Let us be more specific. After the dissolution of the military

20 court in Srpsko Sarajevo, according to the territorial jurisdiction, the

21 territory of municipalities, the sociopolitical organisations, that's what

22 we're talking about, Srebrenica, Bratunac, and Zvornik came under the

23 territorial jurisdiction of the military court in Bijeljina?

24 A. Yes.

25 Q. And the municipalities of Vlasenica, Sekovici, Han Pijesak,

Page 6880

1 Skelani, for as long as they existed as a territorial organisation,

2 Visegrad, Rogatica, Sokolac, that all belonged to the Drina Corps were now

3 under the military court in Bileca?

4 A. Yes.

5 Q. Thank you. And now just to simplify things, to have a specific

6 example, who has jurisdiction to try a case involving a person subject to

7 military obligation belonging to a unit in Visegrad or in Vlasenica, the

8 brigades there, commits a criminal offence in the territory of Srebrenica,

9 Bratunac, or Zvornik. Let's go back now to the issue of subject matter

10 jurisdiction.

11 A. Then we have to see the site where the crime was committed. The

12 jurisdiction would fall to Bijeljina. So the jurisdiction was always

13 determined by the location where the crime was committed.

14 Q. Yes. I -- we just have to now make the division between the

15 pre-trial -- pre-criminal proceedings and criminal proceedings, per se.

16 Who actually detected war crimes -- who actually detected crimes in the

17 system of military judiciary? Who was tasked with that?

18 A. That would be the basic organs in this system, and that would be

19 the military police. And at that time, part of the security also dealt

20 with that. As far as I know, it was also in their jurisdiction; in other

21 words, detecting crimes. That would be the basic thing, the basic organs.

22 Q. Am I right to conclude that the military prosecutor's office, in

23 order to detect the perpetrators of a crime and to gather evidence and

24 material facts that would -- that could enable the military prosecutor to

25 file an indictment, would be in something that the military police and the

Page 6881

1 security organs would carry out. They are the organs that the prosecutor

2 will task with finding the appropriate information, which would enable the

3 military prosecutor to initiate proceedings and ultimately perhaps to file

4 an indictment?

5 A. Yes. They would be requested to do so through the commands of

6 appropriate units.

7 Q. Precisely, yes. Everything went through the commands of these

8 units?

9 A. Yes.

10 Q. Can I then turn this issue around? If a unit wanted to file a

11 criminal report against their member -- against its member because they

12 had -- such a member committed a criminal offence, would this criminal

13 report be filed through the command of the unit?

14 A. Yes.

15 Q. Then the conclusion would be correct that if a member of the

16 Zvornik Brigade wanted to file a criminal report against his commanding

17 officer for reasonable suspicion that a crime has been committed, a war

18 crime or a crime against property, the official criminal report should be

19 filed through the brigade command, where it would receive the appropriate

20 official seal, among other things?

21 A. Yes. That was the regular route. But like in the civilian

22 system, you can file a criminal report which does not bear the official

23 seal. But this, what you say, is the regular route.

24 Q. So the regular procedure is such that the criminal report has to

25 go through the brigade command and has to bear the signature of the

Page 6882

1 brigade commander and the appropriate seal?

2 A. Yes, that is correct. But if the military prosecutor receives a

3 criminal report that has come through any route whatsoever, he is obliged

4 to act upon it.

5 Q. In the system of operation of the military prosecutor's office,

6 has it ever happened that the military prosecutor applied to the civilian

7 organs, civilian prosecution organs, in order to obtain information that

8 were relevant for the commission of a crime?

9 A. Yes, this did happen.

10 Q. Was it in cases where the military police and the military

11 security was unable to do so, or did it happen for some other reason that

12 we had these parallel structures. Or to -- let me rephrase that. Why

13 would the military prosecutor ask a civilian police to gather information

14 instead of asking it from the military police, which is the way that the

15 usual procedure was?

16 A. Those were the cases where the prosecutor decided that civilian

17 police had such information and that it was easier for civilian police to

18 gather such material.

19 JUDGE LIU: Well, Mr. Stojanovic, it's time for the break.

20 And we'll resume at 12.30 --

21 MR. McCLOSKEY: Mr. President --

22 JUDGE LIU: Yes.

23 MR. McCLOSKEY: Just for people's schedule, we don't have another

24 witness this afternoon. We're hoping to get that witness tomorrow, but

25 the weather is very bad in the UK, and we'll keep you abreast of those

Page 6883

1 plans.

2 JUDGE LIU: Thank you very much for that information.

3 --- Recess taken at 12.00 p.m.

4 --- On resuming at 12.31 p.m.

5 JUDGE LIU: Yes, Mr. Stojanovic.

6 MR. STOJANOVIC: [Interpretation].

7 Q. Mr. Kovacevic, let us resume where we ended before the break. So

8 we spoke about the fact that upon receiving a criminal complaint, military

9 prosecutor will request military police and military security organs to

10 collect facts on the crime committed, the perpetrator, and any other

11 evidence. Is that right?

12 A. Yes.

13 Q. Now, let us try and illustrate it through a particular situation.

14 Officially or unofficially, as you have stated, a member of the Zvornik

15 Brigade files a criminal complaint with the relevant military prosecutor,

16 which in this case would be the one in Bijeljina, for a war crime

17 committed by somebody -- in fact, committed by members of the military

18 police and security organs of the Zvornik Brigade. What can the military

19 prosecutor do under such circumstances? Who will he ask to gather

20 information on perpetrators? It's an absurd situation.

21 A. The situation is complex, but it all depends on the prosecutor.

22 It depends on his skills and abilities to find a way to prove that this

23 had been committed. It would be similar to saying that in peacetime we

24 cannot prosecute officers of civilian police, and as you know, we do have

25 such cases. And, of course, these cases are complex, they are not typical

Page 6884

1 cases, but they do exist. It doesn't mean that this cannot be done.

2 Q. So for example, a criminal report is filed by a member of the

3 Zvornik Brigade against security organs of the Drina Corps and an officer

4 of the Main Staff of that corps, charging them with a war crime. What

5 would a military prosecutor be able to do under such circumstances? And

6 I'm here referring to the military judiciary.

7 A. I think that I've already answered that question, too. There are

8 various possibilities here. Obviously he would make requests. He doesn't

9 have to address that particular security organ -- that particular military

10 police, because information can be gathered in other ways. It is a more

11 complex situation, but it all depends on the prosecutor, how he will use

12 his skills to resolve the situation. I think it would be absurd to say,

13 Oh my God, if a crime is committed by a member of security, we will forego

14 all other work. We won't file any criminal reports and so on. I don't

15 think that this would be the right approach.

16 Q. Naturally this is not why I was putting this question to you; this

17 was not a trick question. I simply wanted to hear your answer. I wanted

18 you to confirm that it would be very difficult for military prosecutor

19 under those circumstances to identify the perpetrator and gather evidence

20 and facts. Would you agree with me on that?

21 A. I entirely agree with you. The job of the military prosecutor

22 would be made much more difficult under those circumstances. There would

23 be various dangers, various risks, especially in wartime. This makes the

24 situation much more complex than under normal circumstances.

25 Q. And what we precisely wanted to say is that a person filing a

Page 6885

1 criminal report against a member of security organs or military police for

2 being coperpetrators or perpetrators of a crime, in view of what you told

3 us, that there was no witness protection system, there was no protection

4 envisioned for a person filing a criminal report under those

5 circumstances, that would all mean that a person filing a criminal report

6 would be exposed to significant danger. Am I right?

7 A. Well, he probably wouldn't be having a great time. And as to the

8 level of danger, I couldn't say anything about that. Even in peacetime,

9 it is not a holiday to handle a case like that.

10 Q. I said this, that for example if the person filing a criminal

11 report, an officer in that unit used unorthodox ways of filing the report,

12 for example, if he directly contacted the authorities, then it would still

13 be difficult, and especially if he used the official routes, you know, if

14 everything was done in a regular with seals and signatures, with records

15 being taken and so on. Am I right?

16 A. I think that you are right.

17 Q. Thank you. In view of what happened in our trial here, I would

18 now like to draw some parallels with our case here.

19 MR. STOJANOVIC: [Interpretation] And can I please ask the

20 assistance of the usher. I need Exhibit 5702 [as interpreted]. This is

21 the report on criminal activities in July of 1995. Could we please show

22 this to the witness.

23 Q. Mr. Kovacevic, you have seen this document just a while ago.

24 Could we please comment on it. Third page, please --

25 JUDGE ARGIBAY: I think the number is wrong, Mr. Stojanovic. It

Page 6886

1 should be 702, P702, I think.

2 MR. STOJANOVIC: [Interpretation] Yes, precisely so. That's what I

3 said, Your Honour, 702. Perhaps it was an interpretation error. So P702.

4 Q. Mr. Kovacevic, could we please pay attention to page 3 in B/C/S

5 version. The last three digits are 326. Please take a look at paragraph

6 6. It says: "Homicide, crimes against persons." It says there:

7 "VTK463/95," and a request was filed to launch an investigation against

8 Stevanovic, Stanko, son of Tomislav. Born in 1968 in the municipality of

9 Travnik, due to probable cause that he has committed on the 23rd of July,

10 1997, at around 2400 hours in a bar."

11 I don't want to read everything. He, using a fire weapon, wounded

12 Kremenovic, Radoslav, and then fired three bullets into Erdemovic, Drazen,

13 whereby he admitted a crime of attempted murder, aimed against several

14 persons. This is under Article 2, subsection 6, of criminal code. Do you

15 remember anything pertaining to this case?

16 A. No.

17 Q. Did you ever encounter such a case against Stevanovic, Stanko, at

18 the second instance level for a crime committed against Drazen Erdemovic?

19 A. Let me tell you: In almost all second instance chambers -- I was

20 a member of a chamber. There were many cases that we dealt with. This

21 probably was not a case that I worked on. Now, whether any of my

22 colleagues who were in other chambers encountered this case, I couldn't

23 say. But the name of Drazen Erdemovic does ring a bell. I don't know if

24 it was because he was an used here in The Hague or because I had something

25 to do with this case. I really couldn't tell you.

Page 6887

1 Q. All right. Let's try and clarify something. It says here that

2 there is reasonable grounds to believe that on the 23rd of July, 1997, he

3 committed such-and-such crime. And the report here is for July of 1995.

4 So what do you think? Could we conclude that this was a typo, that

5 instead of 1997 it should read 1995?

6 A. Well, this must be an error. I don't know whether it should read

7 "1995" or some other year, but obviously it cannot be 1996 or 1997.

8 Q. Mr. Kovacevic, Drazen Erdemovic testified here, the one who is

9 mentioned in this document, and during his testimony he said that this

10 event or this crime described here as involving Stevanovic, Stanko, is

11 directly linked to his participation in Srebrenica events and that he was

12 implicated in this because he disagreed with the assignments given to him

13 within his unit. This could be a hypothesis. Of course, you said you

14 didn't know anything about the particulars of the case. Now, in view of

15 what he said and in view of what is stated in that criminal report, does

16 that seem plausible to you that this action would be taken against anyone

17 who would try to raise an alarm because of something that had happened?

18 JUDGE LIU: Yes, Ms. Davis.

19 MS. DAVIS: I'm afraid this last part of the question seems to

20 call for speculation a little too much from this witness. He's already

21 stated he doesn't know anything about the case and now the hypothetical is

22 being drawn out even further with reports from counsel of what was said by

23 another witness et cetera. But this witness doesn't know anything about

24 it.

25 JUDGE LIU: Yes, I agree with you.

Page 6888

1 Please move on, Mr. Stojanovic.

2 MR. STOJANOVIC: [Interpretation] Very well, Your Honour. I fully

3 understand the position taken by the Prosecution.

4 Q. Mr. Kovacevic, let me finalise this. We will use another exhibit,

5 P712. So P712, this is the document containing the order of the president

6 of the republic on investigating the events in Pilica. And also it

7 involves the letter sent by Predrag Drinic to the Main Staff of the VRS.

8 Do you remember that document?

9 A. Yes, I do.

10 Q. You also told us that you hadn't seen this document sent by

11 Predrag Drinic to the Main Staff before. Is that right?

12 A. Yes.

13 Q. However, you saw it just now, just recently?

14 A. Yes.

15 Q. Now, let us please see how the pre-trial proceedings and the trial

16 itself look like in practice. According to the president of the republic,

17 a commission was to be established in order to look into events and facts

18 surrounding the two corpses that were found in Pilica, in Zvornik

19 municipality. As the commission was not established on the 26th of March,

20 1996, the military prosecutor requested the Main Staff of the VRS to

21 establish a part of the commission through the security and information

22 department. And these people would conduct investigation on the ground

23 and gather information and facts concerning this event. Is that right?

24 A. Yes.

25 Q. Based on the information that we have available to us, the 10th

Page 6889

1 Sabotage Detachment participated in these events in Pilica. This 10th

2 Sabotage Detachment was under the security and intelligence department.

3 Does it seem bizarre to you that this security and intelligence department

4 is requested to establish a commission which would investigate the crime

5 in which these same people might have participated?

6 A. I think that I've already answered that. It is obvious that this

7 is a very complex route, but it is also obvious that the prosecutor is

8 trying, to the best of his abilities, to resolve and determine what had

9 happened. He believed that this was the best possible route, because the

10 previous commission had done nothing. Now, whether this turned out to be

11 effective or not, I don't know.

12 Q. Will you agree with me that based on the logbook of criminal

13 activity, there obviously was no effect, because as you told us yourself,

14 there were no criminal reports filed nor criminal investigation carried

15 out and there were no indictments issued. Is that right?

16 A. I think that in this case they failed to even determine where

17 these corpses had come from. There were two corpses involved. And yes,

18 that's true, there were no criminal reports filed.

19 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. I have

20 no further questions.

21 JUDGE LIU: Thank you.

22 Any re-direct, Ms. Davis?

23 MS. DAVIS: I do have a brief re-direct.

24 Re-examined by Ms. Davis:

25 Q. Mr. Kovacevic, a few moments ago before the last break, you were

Page 6890

1 asked by Mr. Stojanovic about which court, the civilian court or the

2 military court, would have certain jurisdiction over certain individuals.

3 And you were asked one point about the civilian police officer who may

4 have committed murder or a violent crime and who would have jurisdiction

5 over that individual. I believe your answer was that civilian courts

6 would have jurisdiction.

7 My question to you is: If a civilian police officer had been

8 working with the military in a criminal operation, who would have had

9 jurisdiction over that civilian police officer?

10 A. As far as the jurisdiction is concerned, there are some provisions

11 that say that if a crime is committed simultaneously, both by a military

12 person and a civilian person, so the same crime but committed together by

13 them, in that case, the military court would have jurisdiction. However,

14 this is an exception. Because the policeman at the time the crime is

15 committed is a civilian, even though he's wearing a uniform. However, if

16 the crime is committed in the company of a military serviceman, then the

17 military court would have jurisdiction.

18 Q. Okay. Does it follow then that a civilian police officer who's

19 working under the command of a military unit with other military officers

20 or soldiers in a criminal operation would also fall under the jurisdiction

21 of a military court?

22 A. Yes. Yes. Providing they committed the crime together. However,

23 if the policeman commits a crime on his own, alone, then the civilian

24 regular court would be in charge of it. So they have to be also linked by

25 the crime as well.

Page 6891

1 Q. Okay. The last thing that I wanted to address with you is just to

2 clarify something that I think has become unnecessarily confusing. In

3 order to do that, I'd like for you to be shown again Exhibit P702. And if

4 you can look at the first page of the report -- of the actual report, not

5 the cover page, the last paragraph on the page is the one that I directed

6 you towards during my direct examination. We discussed this earlier, that

7 there was a mention in this report of the fact that the jurisdiction of

8 the military court in Bijeljina had been expanded and now incorporated

9 some region covered by the Drina Corps. Is that right? Have I summarised

10 that correctly from before?

11 A. Yes.

12 Q. And I believe you indicated to us that when that division of the

13 Drina Corps region had happened, that some of those -- some of the Drina

14 Corps geographic area, for lack of a better term, had gone to the

15 Bijeljina court and some to another court. Is that right?

16 A. Yes.

17 Q. And the areas of Srebrenica, Bratunac, and Zvornik you have

18 clarified for us a number of times now, came under the Bijeljina

19 jurisdiction, after that expansion of the military court jurisdiction in

20 Bijeljina. Correct?

21 A. Certainly.

22 Q. Now, this report of course was produced in July 1995. So I take

23 it we can assume from this that the expansion of the area of jurisdiction

24 of the military court in Bijeljina happened prior to July 1995?

25 A. Yes.

Page 6892

1 Q. Now, the reason I wanted to clarify this with you is I wanted to

2 ask you if you remembered when we were meeting the other day that you were

3 shown some monthly reports, not only from the Bijeljina district but also

4 from the Sarajevo district. Do you recall that?

5 A. Yes.

6 Q. And do you recall that the monthly reports that you were shown

7 were for the months July 1995 through December 1995?

8 A. Yes.

9 Q. And you reviewed those reports, and you didn't find any

10 investigations into war crimes -- reports or investigations or

11 prosecutions into war crimes in those monthly reports either. Is that

12 right?

13 A. Yes.

14 Q. Okay. So based on those monthly reports, it seems that the Srpsko

15 Sarajevo military court district was still in existence through 1995, but

16 would you agree with me that the expansion of the jurisdiction of the

17 military court in Bijeljina happened before July 1995?

18 A. I've already discussed this. I cannot remember the exact date,

19 but if you allow me. I don't think that is of vital importance here.

20 What's important is that subject matter jurisdiction was given to

21 Bijeljina.

22 Q. Okay.

23 MS. DAVIS: I have no further questions.

24 JUDGE LIU: Thank you.

25 Any questions from Judges? It seems to me there's no questions.

Page 6893

1 Well, at this stage are there any documents to tender, Ms. Davis?

2 MS. DAVIS: We do have a number of documents, Your Honour. P380

3 has already been admitted into evidence. So we'll begin with P702, P703,

4 P704, P706, P707, P708, P710, P711, P712 under seal, P713, P714, and P715.

5 JUDGE LIU: Thank you.

6 Any objections? Mr. Karnavas?

7 MR. KARNAVAS: No objections, Your Honour.

8 JUDGE LIU: Thank you.

9 Mr. Stojanovic?

10 MR. STOJANOVIC: [Interpretation] No objections, Your Honour. But

11 perhaps I could remind that one of these exhibits has been admitted

12 yesterday as the Defence exhibit. It was given a D67/3 identification

13 number.

14 JUDGE LIU: Yes.

15 So those documents tendered by the Prosecution are admitted into

16 evidence.

17 Are there documents to tender by the Defence counsel through this

18 witness? Mr. Karnavas?

19 MR. KARNAVAS: No, Your Honour.

20 JUDGE LIU: Thank you.

21 Mr. Stojanovic?

22 MR. STOJANOVIC: [Interpretation] No, Your Honour.

23 JUDGE LIU: Thank you.

24 Mr. Blagojevic?

25 THE INTERPRETER: Microphone, please.

Page 6894

1 MR. McCLOSKEY: Excuse me, Mr. President, just if Mr. Blagojevic

2 is going to go into more personal information about Defence counsel, I

3 would prefer not be present for the Prosecution to hear that. I just --

4 it's getting a little inappropriate at this point. I don't know what he's

5 going to say, but I'm not really sure we should be here when he goes into

6 those sorts of areas. I know it's impossible to predict, but ...

7 JUDGE LIU: Yes, Mr. Blagojevic, would you please tell me what is

8 the main subject of your intervention. What are you going to talk about?

9 THE ACCUSED BLAGOJEVIC: [Interpretation] Your Honour, it's going

10 to be quite simple. I simply wanted to ask, and I'm going to ask the

11 Prosecution, to be quite specific about the actual article and paragraph

12 in the law indicating that the military courts have jurisdiction over

13 police officers in the specific case presented by the witness and when

14 such a situation occurred in practice for a civilian police officer, a

15 member of the civilian police. So I want the exact law of the Republika

16 Srpska with the exact article and paragraph in order to corroborate this,

17 in order not to have the situation in which this situation would act as

18 the legislator, the ultimate legislator.

19 JUDGE LIU: Well, Mr. Blagojevic, I think this issue has been

20 brought up and discussed during the direct and cross-examination with this

21 witness. This witness has answered this question so far as to his own

22 knowledge. The Prosecution actually is not a witness in this case. And

23 after this sitting, we'll go over the transcript to see how this witness

24 answered that question. Of course your question has already been

25 registered in the transcript.

Page 6895

1 At the same time, I would like to remind you - as I did before

2 many times - if you have some questions or if you have some problems with

3 the Prosecution or with the witness, please put it down on a piece of

4 paper and the guard will send it to your counsel, as Mr. Jokic did in this

5 case.

6 Well, thank you, Witness, for coming to The Hague to give your

7 testimony. We hope you have a pleasant journey back home. The usher will

8 show you out of the room. You may go now.

9 [The witness withdrew]

10 JUDGE LIU: Well, since we have a little time left for this

11 morning's sitting, there's several procedural matters that I would like to

12 deal with, making the best use of the time left. The first question I

13 would like to address to the Prosecution about the two remaining witnesses

14 we discussed the other day. Could you please give us a kind of indication

15 how soon or when are you expecting them to testify.

16 MR. McCLOSKEY: That is still a little unclear, though it is our

17 intention to have them here no later in a month, hopefully in about three

18 weeks. Three, three and a half weeks is what the time frame that we think

19 would be reasonable enough to be able to give the government a chance to

20 get passports, find them, serve them, and get arrangements made. If it

21 can be any sooner, we'll try that as well. And -- but we certainly don't

22 want it to go beyond a month. If it can be done, it should be able to be

23 done in a month, I think.

24 JUDGE LIU: Thank you.

25 Could I ask Defence counsel for Mr. Blagojevic that from yesterday

Page 6896

1 or the other day's statement you made in this courtroom, could we

2 understand that you will allow the Bench to hear this witness while you

3 are preparing or submitting your 98 bis motions. If there is some new

4 evidence appearing in their testimony, the Bench will give you permission

5 to file some attachments or addendum to your motion.

6 MR. KARNAVAS: Thank you, Mr. President. I was hoping that you

7 would not have interpreted my explanation in that fashion, but I can see

8 where the Court is going. What I was hoping is that we would be working

9 on that 98 bis motion. We do -- we take it very, very seriously. We have

10 a very large volume of material to go through. And in light of the

11 Prosecution's dilemma, given that we are being somewhat magnanimous at

12 this point, I thought that we would enjoy a certain degree of flexibility

13 on the part of -- from the Trial Chamber in perhaps allowing us some

14 additional time to really get in -- a very serious motion in. We think

15 that the two weeks that's allotted is slightly -- it's tight. It's very

16 tight. With this new information, we don't know.

17 So we -- obviously we hope to have it in or about the time the

18 Prosecution will have its witnesses. I mean, we can have it earlier if

19 the Court orders us to do so, but we were kind of hoping for that sort of

20 flexibility, so to speak. And I certainly don't want to file a motion

21 prior to hearing these witnesses, because then it allows the Prosecutor --

22 I don't want to say it unfair, but perhaps an advantage that they normally

23 would not enjoy. And I'm sure that Mr. McCloskey would not try to take

24 advantage of the situation, but nonetheless I think that as a good

25 Prosecutor if he's going to avail himself to the information that I put

Page 6897

1 before him.

2 So that's why I would wish to have the opportunity to have that

3 information -- to have the witnesses first testify and then us filing the

4 motion. Because the only other alternative would be for us to file it

5 under seal, wait until that testimony, and then have it released to the

6 Prosecutor, so they don't have any unfair advantage as a result of having

7 our motion prior to putting on these witnesses. Because it may generate a

8 certain line of questioning that they normally would not have or another

9 request for additional witnesses.

10 So in any event, I think if the Prosecution has made already

11 efforts to get those folks over here, which I am sure they have, I see no

12 reason why they can't be here in an additional week's time from what you

13 had anticipated us having for filing that motion. So in a round about way

14 what I'm saying, Mr. President, I'm trying to take advantage of the

15 situation as well.

16 JUDGE LIU: Well, I understand your position.

17 Mr. Stojanovic, what's your view on that issue?

18 MR. STOJANOVIC: [Interpretation] Quite frankly, I believe that the

19 two witnesses have no specific relevance to -- for the indictment against

20 Dragan Jokic. I know that what one of the witnesses will be saying, as

21 explained by the Prosecution. And as for the testimony of the other

22 witness who is, if I understand it correctly, belongs to the Bratunac

23 Brigade, I don't know about that. But I am willing to believe that they

24 do not have anything to do with Dragan Jokic.

25 We are now between co-counsels from Mrs. Sinatra to Mr. Lukic, and

Page 6898

1 we have been working on this since yesterday, scanning all the documents.

2 And we are working on our 98 bis motion. We believe that we will be able

3 to file it by the 20th of February -- 28th of February. We know the

4 importance of this filing. And if the Prosecution would be able to bring

5 the witnesses, the two witnesses, within the next two or maybe three

6 weeks, as the Prosecutor said, that would mean that the witnesses would be

7 here sometime in mid-February. Because the Prosecution will be presenting

8 its case throughout the next week, and I would like to propose the

9 Prosecution and Mr. Karnavas for professional reasons, I would like to --

10 the deadline for us to start from that time, the 15-day deadline. Because

11 then, instead of the deadline being the 20th, we would have the deadline

12 of the end of the month for that filing. We believe that it really would

13 be fair and that would also play into the hand of the Prosecution, because

14 the Prosecution would then be able to extend its time period in which it

15 can present its case, which is what they applied for.

16 But at any rate, Mr. Jokic's Defence, in light of the fact that

17 the testimonies will not have any bearing on Mr. Jokic, will be ready to

18 present this motion as requested. Thank you.

19 JUDGE LIU: Thank you very much for your cooperation.

20 Well, I understand that the position of the -- of Mr. Karnavas,

21 because your 98 bis motion should be filed only after we hear all the

22 Prosecution's witnesses. And I hope if we could hear those two witnesses

23 sometime in the middle or later February, the Defence counsel should file

24 their 98 bis motion the next day after we hear those two witnesses.

25 Is that fair enough?

Page 6899

1 MR. KARNAVAS: Well, Your Honour, I was thinking more like three

2 or -- three to five days after. I mean, the next day, where I hear them,

3 I have to process the information, I may need to rework the motion a

4 little bit. So it's not a matter of -- because one of the witnesses, and

5 I assume that the Prosecution's motion for this additional time is a

6 serious one because one of them happens to be the driver for

7 Mr. Blagojevic, otherwise they would -- they certainly would take him off

8 the list. So I can only suspect that the Prosecution thinks that these

9 witnesses are relevant to their case in-chief. So I think a three-day

10 deadline, although cutting it close, I would prefer five, to be honest

11 with you. But I will settle for three. But one is cutting it too close,

12 Mr. President.

13 JUDGE LIU: I believe the main body of your motion has already

14 been prepared.

15 MR. KARNAVAS: Well, I thank you, Mr. President, for the

16 confidence that you have in me. But I think three days would be a

17 reasonable amount of time.

18 JUDGE LIU: Yes.

19 MR. KARNAVAS: I've come down from five to three, I'm meeting you

20 half way. From one -- between one and five is three.

21 JUDGE LIU: Well, you know I'm not good at bargaining.

22 MR. KARNAVAS: I've noticed.

23 JUDGE LIU: But three days seems to me is reasonable.

24 MR. KARNAVAS: Thank you, Mr. President.

25 JUDGE LIU: So the three-day extension is extended.

Page 6900

1 But at the same time, I would like to remind the parties that the

2 practiced direction on the length of the briefs and motions provides that

3 the motions should not exceed ten pages. In the previous case, there are

4 very lengthy motions on that, some of them even more than 100 pages, which

5 is a great burden to the Chamber. Of course we understand that this case

6 is a very complicated case involving a lot of evidence in it. So if the

7 Defence teams would like to ask for an extension of the pages, I hope you

8 could consider it and inform us orally sometime next week. But you have

9 to remember that the request of extension of the pages should be

10 reasonable.

11 Well, since we are approaching to the end of the Prosecution's

12 case, I believe that the preparations of the Defence case also should be

13 taken into consideration. According to our previous decision, the

14 preliminary list of witnesses for the Defence case should be submitted on

15 the 8th of March, 2004, a pre-Defence conference scheduled on the 17th of

16 March, 2004. And the start of Mr. Blagojevic's case will be on the 19th

17 March, 2004.

18 As for the list of the witnesses, I would like to remind the

19 Defence team to the Rule 65 ter (G)(i) on these particular issues. I hope

20 the Defence could give us some sort of summary of the facts on which its

21 witnesses will testify. Also specify the category of the witnesses, for

22 instance, the expert, military, human personnel. And also indicate the

23 points of the indictments as to which each witness will testify. Of

24 course we would like to know the final total numbers of the witnesses. If

25 there are any witnesses that the Defence counsel would like to introduce

Page 6901

1 through 92 bis or videolink witnesses, we would like to be informed

2 earlier so that the necessary preparations could be underway.

3 We also hope the Defence counsel could estimate the length of the

4 time required for each witness as well as the total time estimated for the

5 presentation of the Defence case. If there is a request for subpoenas, a

6 motion should be filed a month in advance. And time should be given as

7 well in respect of requests for safe conduct, if there is any.

8 Regarding the 92 bis motion, a 14-day notice must be given to the

9 opposing party, and that time is further needed once it is granted for the

10 Registrar to assign a presiding officer. And I hope that the parties

11 could meet in order to determine for which document the Prosecution may

12 raise objections to its authenticity. And we also would like to ask the

13 Defence team sometime later to indicate to the Bench whether their clients

14 would like to make a statement under Rule 94 bis.

15 Well, these are all the matters I would like to say at this stage.

16 Are there any other issues that the parties would like to bring to the

17 attention of this Bench?

18 Yes, Mr. McCloskey.

19 MR. McCLOSKEY: Yes, Mr. President, on that subject that you were

20 mentioning, as I think we all know, under 67(B) the reciprocal -- excuse

21 me 67(C), the reciprocal discovery section. And both sides have invoked

22 reciprocal discovery, and under the rule it says that the Prosecution

23 should be allowed to review and inspect any materials the Defence expects

24 to use as evidence. We have not made any time frame at this point and

25 have not tried to suggest a time frame. But I think as we're coming to

Page 6902

1 their case, an appropriate time frame for that should be made. And so I

2 would suggest as soon as possible so that we can be properly prepared for

3 cross-examination of the Defence witnesses.

4 JUDGE LIU: Yes. I think after the 6th of February the parties

5 should meet to discuss this matter. And I'll instruct the Senior Legal

6 Officer to hold a 65 ter meeting with the parties. During that meeting,

7 if you or the parties have any issues to raise, you may raise it first

8 there. Of course the Bench will be ready to assist the two parties,

9 especially the Defence team to present their case; although the Defence

10 has no obligation to present the evidence.

11 MR. McCLOSKEY: If I could just ask one question, Your Honour. On

12 that point, if the Defence is planning to put on an alibi Defence, they do

13 have an obligation - as I know the Court is aware - and I believe it's

14 long past the deadline for that. So can I now assume that there will not

15 be an alibi defence an either part.

16 JUDGE LIU: Well, I think that's too early. I think the --

17 especially in the Jokic case, I think their case will still be at least

18 two months later than that.

19 Is that my understanding that Mr. Karnavas will present his case

20 first?

21 MR. KARNAVAS: That's correct, Your Honour. I will be presenting

22 it, though I probably would venture to say that it's going to be slightly

23 longer than the two months that you have in mind.

24 JUDGE LIU: Yes.

25 MR. McCLOSKEY: Mr. President, the Rule regarding alibis, Rule 67,

Page 6903

1 and it begins with 67(A) and says as early as reasonably practicable in

2 any event prior to the commencement of the trial." And then point ii,

3 "The Defence shall notify the Prosecutor of its intent to offer: (a) the

4 defence of alibi."

5 So all I was saying that is since we're well into the trial and

6 the Defence has not offered any defence of alibi, I think it would be fair

7 for the Prosecutor to know, and in fact, and in law, that there will be no

8 alibi defence.

9 JUDGE LIU: Well, as early as possible does not set a specific

10 date on that. In my previous case, in some situations it's one month

11 before they are presenting their case. Do you think one month will be

12 enough for you?

13 MR. McCLOSKEY: Mr. President, it says "before the trial". We

14 have already been in and are relying on the fact that there would be no

15 alibi defence. I have had bad luck with this in my former life where

16 there is a similar requirement, and I would just -- we have been relying

17 on the firmness of this Rule. If that is being changed by the Court, we

18 would certainly like to know about it, because it is a rather significant

19 issue. And I see Mr. Blagojevic has raised his hand as well.

20 JUDGE LIU: Let me first hear Mr. Karnavas on this issue -- no,

21 Mr. Blagojevic, please wait.

22 MR. KARNAVAS: Well, first of all, Your Honour, with respect to

23 alibi, and I can understand the Prosecutor's concern, normally that issue

24 where it comes from the jurisdiction that he practices, the main concern

25 is to allow the Prosecutor enough time to investigate the alibi witness or

Page 6904

1 witnesses. So that's the whole purpose of that particular Rule. In this

2 case the Prosecution is still putting on its case. They just indicated

3 that they're going to be introducing some witnesses, one of whom was the

4 driver for Mr. Blagojevic, who at least with respect to one particular day

5 or part of a day, will testify to, I assume, the whereabouts of Mr.

6 Blagojevic.

7 I think by this point in time, the Prosecution is well aware of

8 the theory of our particular defence and of what we have been maintaining

9 the entire time. So that's as far as I am prepared to go at this point in

10 time.

11 Now, when we do have our witness list, we will give it to the

12 Prosecutor, we will give a summary as to what they will be saying, they

13 will have sufficient time to investigate the backgrounds and to meet with

14 these people if they so desire. But I think at this point in time, that

15 is as prepared as I am to answer this question, particularly given that

16 Mr. McCloskey has not given me any forewarning that he wanted to have a

17 discussion on this particular issue. But I can assure Mr. McCloskey that

18 the Defence, at least with respect to Mr. Blagojevic, does not intend to

19 engage in any, you know guerilla warfare as far as, you know, in trying to

20 sabotage them or trying to, you know, hide the evidence from them. That's

21 not my practice, it has never been, it won't be here.

22 JUDGE LIU: Mr. Stojanovic, could I hear you on this aspect.

23 MR. STOJANOVIC: [Interpretation] Your Honour, I think the view of

24 the Defence regarding each of the counts of the indictment are quite

25 clear. They have been expressed in our pre-trial brief. We specified

Page 6905

1 quite clearly why we deem Mr. Dragan Jokic to be not guilty on any count

2 of the indictment. We state that Dragan Jokic did not exist [as

3 interpreted] and that he was not in the area. We think it is now too

4 early for us to take a stand, in light of the Rule 67, and I think that at

5 the time when we start presenting our case, which will be in less than --

6 it won't be taking place even in four months, we will have quite enough

7 time from the 8th of March [as interpreted], when we will be giving the

8 list of witnesses with the summaries of their statements and indicating

9 what -- why we're calling the witnesses to prove what. I believe that the

10 Prosecution will be informed at all times of our intentions. In the three

11 years that all of us have been involved in this case, the Prosecution and

12 the Defence, I think that we are quite familiar with the case of the

13 Prosecution, and the Prosecution is well aware of the case that the

14 Defence is going to present.

15 JUDGE LIU: Yes, Mr. McCloskey.

16 MR. McCLOSKEY: Mr. President, this is getting to be a very

17 serious matter. That sounded to me like an alibi defence. This is the

18 first time I've anything that sounded like an alibi defence. He said his

19 person wasn't there at the time. Now, the law is as clear as clear can

20 be, that once -- that they have a duty to tell us about alibi defences

21 prior to the trial. I did not bring a motion because I believe that they

22 were honourable men, and now I'm hearing right before our case that he is

23 going to give an alibi. It's not just that.

24 Once they do tell us they have an alibi they shall: "Specify the

25 place or places at which the accused claims to be present at the time of

Page 6906

1 the alleged crimes and the names and addresses of witnesses and other

2 evidence upon which the accused intends to rely to establish the alibi --

3 THE INTERPRETER: Counsel, please slow down when reading.

4 MR. McCLOSKEY: Having failed to present us with this defence at

5 this time, there is very strong grounds to not allow them to put on that

6 defence at all, which I'm not going to push that, that's not my style.

7 But I would like, and I would -- we can file a motion if you feel

8 necessary, I would like and would request that the Court order them to

9 provide -- to obey the law that is laid down as clear as a bell and tell

10 us if they have an alibi or not. And then if they do, as it seems that

11 Mr. Stojanovic does, then meet the details of that as soon as possible.

12 Mr. Karnavas has not said whether he has an alibi or not. If he wants to

13 stand up and say that his client was in and around the Bratunac Brigade

14 headquarters on the 11th or 12th, 13th, then we don't have a problem. But

15 if he's got an alibi, we need to hear about it, and the law says we have

16 that right to hear about it. And this is not some new law. This is a

17 very serious matter and I would hope we can get a very clear ruling on

18 this point.

19 JUDGE LIU: Well, I believe there is very limited time for us to

20 go around the debate concerning the issue of the reciprocal disclosure as

21 well as the meaning of the alibi at this stage. So I hope that we could

22 find another time, maybe through a 65 ter meeting, to discuss this matter

23 between the parties first, otherwise we'll stay here for the whole day on

24 this issue.

25 Mr. Stojanovic, if you insist, I give you one minute, very

Page 6907

1 concise, because we will have another opportunity to bring up this

2 subject.

3 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. I will

4 make maximum use of it. I never, ever -- did not say what the Prosecution

5 just said. I do not mean to use any illicit means in my defence. The

6 issue of alibi is -- remains open. We have a different definition of

7 alibi. If my client is charged with conducting the operation in Orahovac

8 on the 14th and if another document indicates that he was in the Zvornik

9 Brigade command, then it is quite clear what I'm trying to prove. Because

10 a man cannot physically be present at two places. So the issue of alibi

11 has already been breached -- or broached, I'm sorry. Our defence is quite

12 clear. We have given a written -- handwritten document a few days ago.

13 What we want to establish right from the beginning is the exact position

14 of Dragan Jokic. We don't want to go into that now, but I want to assure

15 the Prosecutor that I will never use any illicit, illicit means and I

16 assure you that I intend to go on in that way.

17 JUDGE LIU: Thank you.

18 Well, Mr. Blagojevic.

19 THE ACCUSED BLAGOJEVIC: [Interpretation] Your Honour, I just want

20 to give my clear view on the future of this trial. I have nobody to

21 prepare my case with, the defence case, and I want to state that quite

22 clearly. If this situation continues, I will enter that stage unprepared.

23 I don't want to do that because my situation is quite complex as it is. I

24 would like to have as few problems as possible. Thank you, Your Honours.

25 JUDGE LIU: Well, you've raised this issue many times before. I

Page 6908

1 don't think it's necessary for you to raise it whenever you have a chance

2 to take the floor. And this Bench has already explained to you the

3 decisions by the Appeals Chamber. I will not spend one more word on this

4 very issue.

5 Well, if there is nothing else -- yes, Mr. McCloskey.

6 MR. McCLOSKEY: I just wanted to give you an update on our

7 situation with witnesses. We have one more witness. Last heard she's

8 sitting on an airplane unable to take off but if -- from the UK because of

9 weather. But we hope she will get here today and we'll put her on

10 tomorrow. And if I hear of any further problems, I will let the Court and

11 counsel know as soon as I hear.

12 JUDGE LIU: Thank you very much.

13 Mr. Karnavas.

14 MR. KARNAVAS: Just a couple of brief matters. First of all, I'm

15 told by Ms. Tomanovic that apparently when the translation -- in the

16 translation March was translated into May, but the deadlines were March --

17 I mean, May as opposed to March. So just to make sure that Mr. Blagojevic

18 and Mr. Jokic know that it's March and not May. I think it was March 8th

19 and it was translated into May 8th.

20 Secondly, I had brought up the issue of a previous witness that

21 was -- the Prosecution suggested be brought into court under 92 bis. I

22 did alert the Prosecution. I did alert someone from Chambers in court a

23 few days ago. And I just want to go on the record. This is with respect

24 to Ms. Ibrahimafendic. And I was given a week or so to file a motion.

25 That deadline was on Monday. Prior to Monday, I had an opportunity to go

Page 6909

1 back and re-read a couple of times the testimony given by that witness,

2 taking into consideration Your Honour's comments from the Bench. And in

3 light of re-reading the testimony in the previous case and in light of

4 Your Honour's remarks and in keeping in mind the Prosecutor's remarks as

5 well, I came to the conclusion that this witness -- that I need not file a

6 motion and that I would withdraw my initial -- my earlier request. And

7 therefore, I concur with the Court's opinion that this witness can come in

8 through 92 bis, as suggested by the Prosecution. So I just wanted to go

9 on record with that and also alert the Court that it wasn't a lapse of

10 diligence for not filing that motion in a timely fashion.

11 JUDGE LIU: Thank you very much for your cooperation.

12 And we'll resume tomorrow morning, if possible, at 9.00 in

13 Courtroom II. The hearing for today is adjourned.

14 --- Whereupon the hearing adjourned

15 at 1.43 p.m., to be reconvened on Friday,

16 the 30th day of January, 2004, at 9.00 a.m.