1 Tuesday, 11 November 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- On resuming at 10.23 a.m.
6 JUDGE ORIE: Good morning to everyone.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-06-90-T, the
10 Prosecutor versus Ante Gotovina, et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 Unfortunately, my absence took 25 minutes more than expected. I
13 do understand that this was perhaps an unpleasant surprise for all those
14 waiting. Apologies for that.
15 Ms. Mahindaratne, are you ready to continue?
16 MS. MAHINDARATNE: Yes, Mr. President.
17 Before I start, Mr. President, I just want to correct the record.
18 At T11450, yesterday in the course of legal submissions, I referred to
19 two records of interviews, tendered by the Defence as D902 and D904. The
20 second document as recorded as "D8904." I just wanted to correct the
22 JUDGE ORIE: The record is hereby corrected.
23 Please proceed.
24 MS. MAHINDARATNE: Thank you, Mr. President.
25 Mr. Registrar, may I have document 6090 on the screen, please.
1 WITNESS: ZELJKO ZGANJER [Resumed]
2 [Witness answered through interpreter]
3 Examination by Ms. Mahindarante: [Continued]
4 Q. Mr. Zganjer, can I ask, while that document is being brought up,
5 if you could turn to paragraph 38 of your supplementary statement.
6 And at paragraph 38, you refer to a document and you say as
7 follows: "I am now shown a copy of a special report dated 27 June 2002
8 sent by military police crime investigation section to me:
9 "According to this report, the military police was investigating
10 suspects in relation to the killings in Varivode and Gosic, which
11 included a suspect; namely, Goran Vunic. The investigation included an
12 intention to obtain details of the weapons allocated to individual
13 members of the units, and also to seize the weapons from a military unit
14 for purposes of ballistic analysis, with bullet casings recovered from
15 the scene of the crime in connection with killings in Gosic. The
16 investigation was prevented from being carried out by the commander of
17 the military police company, Nenad Mrkota. I recall this matter and the
18 material submitted in relation to this.
19 "The investigating military police officer, Simic, will be in a
20 better position to offer more information on this matter. These
21 materials were submitted to me at my request. I believe if this
22 investigation had been carried out as planned, the real perpetrators of
23 this crime may have been brought to trial. As far as I know, Goran Vunic
24 was always mentioned in the capacity of a suspect in relation to this
25 case. I am not aware of him being considered as an informant or a
1 witness in this case."
2 Mr. Zganjer, can you just look at the document on the screen and
3 tell us - and this is, in fact, the document you identified in
4 paragraph 38 - who exactly, and I'd like you to state the exact
5 designation or person who has sent this special report to you.
6 And if you could perhaps look at the top of the document and then
7 at the end, the signature.
8 Let us know when you want the document to be moved to the next
9 page, Mr. Zganjer.
10 A. Before I answer your question, I would like to correct an error
11 in my supplementary statement. 15 January 1995 is mentioned here as the
12 date of my birth, and it is an error. I was born in 1955, not in 1995.
13 Now I am ready to answer your question.
14 Q. [Previous translation continues] ... mistake in the Croatian
15 version of your statement, Mr. Zganjer, because in the English version,
16 which you have signed, it's correct.
17 JUDGE ORIE: Let not spend too much time on that. It is clear to
18 everyone that you were not born in 1995.
19 Please proceed.
20 MS. MAHINDARATNE:
21 Q. Mr. Zganjer, can you answer my question. My question was: Could
22 you please look at this document, look at the top of the document and the
23 signatory, and tell us the exact designation of the person who has sent
24 you this special report.
25 Do you want to see the second page?
1 A. I confirm that I, indeed, received this document that I mentioned
2 in paragraph 38 of my supplementary statement.
3 The document, as far as I remember, and I believe that I remember
4 it well, was personally brought to me by the chief of the department of
5 the crime prevention military police. If you show me the second page of
6 this report, it is possible that I will be able to give you his name very
8 MS. MAHINDARATNE: Mr. Registrar.
9 Q. While we're going to the second page, would you confirm --
10 MS. MAHINDARATNE: If we could go down on that, yes.
11 THE WITNESS: [Interpretation] Yes, yes. It was brought to me
12 personally by Mr. Ante Glaven, the chief of the crime administration of
13 the military police. He brought me the document with the enclosures.
14 MS. MAHINDARATNE:
15 Q. If I -- do you agree with me, Mr. Zganjer, if I mention his full
16 designation as follows: Chief of the military police service department
17 of the military crime police within the administration for intelligence
18 and security or the Ministry of Defence. Is that correct?
19 A. Let me correct you ever so slightly. He was the chief of the
20 administration of the crime prevention military police, Major Ante
21 Glavan. The addition where you mention intelligence and security, that
22 would be a special part of the Ministry of Defence, a special service
23 within the Ministry of Defence.
24 Here, we're talking about the military police; to be more
25 specific, the administration of the crime prevention military police at
1 the time headed by Major Ante Glavan. In other words, this document is
2 not directly connected with the security system of the Ministry of
3 Defence. This document is the product of the work of the crime
4 prevention department, within the military police.
5 Q. That's correct, Mr. Zganjer. I don't disagree with you. I just
6 wanted to point out --
7 MS. MAHINDARATNE: And if we could, Mr. Registrar, go to the
8 first page.
9 Q. Does that unit come within ...
10 MS. MAHINDARATNE: And if we could go to the top of the page.
11 Q. ... come within the administration for intelligence and security
12 of the Ministry of Defence? What I want to know is whether his unit also
13 comes within the larger section of intelligence and security of the
14 Ministry of Defence.
15 A. It says the administration for security and intelligence in the
16 heading of this document --
17 Q. [Previous translation continues] ...
18 A. -- and its letterhead. But as far as I know, in the Ministry of
19 Defence, yes, well --
20 Q. [Previous translation continues] ... that's all right.
21 And if we go to the document itself at paragraph 1, it reads as
22 follows: "Pursuant to your demand ..." --
23 If you could follow the document, Mr. Zganjer, the on the screen:
24 "Pursuant to your demand to undertake all necessary actions from the
25 reference, military police crime department of the military police
1 service, continued with data and documentation collection. So we
2 collected the documentation in connection conduct of members of miliary
3 police company of the 72nd Sibenik Military Police Battalion, during the
4 operation action Varivode conducted in October 1995 by MUP, Ministry of
5 Interior of Republic of Croatia
6 members of the military police upon the request of the county public
7 prosecutor in Zadar, on the occasion of serious crimes committed in Gosic
8 and Varivode."
9 The next paragraph reads: "Documentation ..." --
10 JUDGE ORIE: Ms. Mahindaratne, as you continue to read,
11 apparently you're reading from another translation than ours.
12 Differences are perhaps not that substantial.
13 MS. MAHINDARATNE: I'm sorry Mr. President.
14 JUDGE ORIE: What you're reading is not we see as the
15 translation. So, therefore, I'm wondering whether you are orienting
16 yourself on a different translation than you have uploaded in e-court.
17 MS. MAHINDARATNE: I'm sorry, Mr. President. I have the revised
18 translation it seems, but I will read off the screen --
19 JUDGE ORIE: No, no. The version on the screen is unrevised. So
20 if there is a revised version, I have no problem with you reading. Then,
21 of course, the revised translation should be in uploaded in e-court and
22 not that you are in possession of a revised portion; whereas, you ask us
23 to look at an unrevised version.
24 MS. MAHINDARATNE: I beg your pardon, Mr. President. It was my
25 mistake. I didn't realise what was on e-court was the unrevised portion.
1 I thought it was the --
2 JUDGE ORIE: Thinking about it, when you see it on your screen,
3 it says "unrevised," doesn't it?
4 MS. MAHINDARATNE: That is so, Mr. President. I was just
5 following my hard copy, but I didn't -- I just want to address the
6 witness, so I will go to the unrevised version. Then, later on --
7 JUDGE ORIE: [Overlapping speakers] ... if you say the revised
8 portion is available to you, of course the witness sees the original and,
9 therefore, is not bothered that much by the translation we are looking at
10 and the translation you're reading at this moment.
11 Mr. Misetic was on his feet, but he is not anymore.
12 MR. MISETIC: Well, Your Honour, I have in front of me the
13 unrevised version myself. I'm checking with my case manager to see if we
14 were disclosed the revised translation.
15 MS. MAHINDARATNE: I'll let you know in a minute. I'm just
16 checking with -- the revisions have been going on as we speak,
17 Mr. President, so I don't know at what stage -- this was, you know,
18 printed by me last night. So let me give you an answer in a minute.
19 In the meantime, may I proceed on this with the unrevised
21 JUDGE ORIE: No. I would say, then, please continue on the basis
22 of the revised version because you started reading from that. The
23 witness looks at an original; and then, at a later stage, we will have to
24 check whether there are any substantial difference between the two.
25 Please proceed.
1 MR. MAHINDARATNE: Thank you, Mr. President. My apologies for
3 Q. The next paragraph, Mr. Zganjer, reads: "Documentation collected
4 is related to Goran Vunic who was supposed to be criminally processed due
5 to reasonable doubt that, that at time in question, he was at the
6 locations of the crimes committed in Gosic and Varivode. And pursuant to
7 injunction of the county court in Zadar, he was supposed to be criminally
8 processed. Military court in Split
9 procedures against him, but all the procedures were stopped pursuant to
10 order of the then-Captain Nenad Mrkota, commander of the military police
11 company in Sibenik, now civilian, about which Lieutenant Damir Simic,
12 head of military police crime department of the Military Police Company
13 in Sibenik, mad an Official Note. An interview was conducted with Damir
14 Simic about the circumstances mentioned before, and a record on statement
15 taken was also made."
16 I just want to, before I ask you the question, Mr. Zganjer, take
17 you to a couple of more points on this document.
18 MR. MISETIC: Your Honour, if we're just going through an
19 exercise of reading what is in a document, I think that's improper.
20 JUDGE ORIE: Well, the propriety of reading depends on the
21 question that follows.
22 Therefore, Ms. Mahindaratne, if you would just read to seek
23 confirmation or if you are reading because the witness should be reminded
24 on what in the letter, so as to be able to answer other questions, then,
25 of course, there's nothing wrong. But it should not be an exercise in
1 which you seek either further details or substantially the same as we
2 find in the document already.
3 So if you would please keep in mind when you decide whether or
4 not you decide to continue to read.
5 MS. MAHINDARATNE: No, Mr. President, I just wanted to remind the
6 witness, as well as to place a foundation for my next question. I wasn't
7 going through a reading exercise.
8 JUDGE ORIE: Yes.
9 MS. MAHINDARATNE: And if you could, Mr. Registrar, if you could
10 turn to the next page on the B/C/S.
11 Q. At the paragraph numbered 4, it reads: "According to information
12 collected in the course of the crime investigation, and according to the
13 documentation submitted in the attachment of the special report, it is
14 evidence that Nenad Mrkota had information of certain circumstances in
15 connection to the crimes committed and potential perpetrates. And
16 through his acts, he directly influenced the treatment of the persons
17 during the examination, especially regarding the treatment of Goran
18 Vunic. Thereby, he committed a criminal offence.
19 "Also, there is suspicion that Nenad Mrkota by his acts and
20 instructions influenced or personally committed the crimes of destroying
21 or covering evidence related to the criminal offence committed in Gosic
22 and Varivode."
23 Then there is further details of what has been found out, and
24 there is -- you're reported as to what further steps are being taken with
25 regard to this matter.
1 And paragraph 3, under the section numbered 4, reads: "In
2 accordance with the above mentioned, we believe it is necessary to
3 conduct special measures of control and technical interception of the
4 telephone calls; namely, equipment for technical communication on
5 distance according to Article 180."
6 MS. MAHINDARATNE: And on the English, we have to move to the
7 next page, Mr. Registrar.
8 Mr. Registrar, if we could move to the next one. Yes. Thank
9 you. And if you could go --
10 Q. "Law on Criminal Procedure which should cover the following
11 persons who have information or are in relation to the crimes committed
12 in Gosic and Varivode, and there are persons named there: Civilians
13 Nenad Mrkota, Ivan Mikulandra, Bosko Ramljak, Josip Juras, and military
14 staff Colonel Mihalj Budimir and Colonel Miro Primorac."
15 Mr. Zganjer, let me first ask you this question: Who is the
16 person who is referred to as Colonel Mihalj Budimir there? Do you know
17 what his position was?
18 A. I know Mr. Mihalj Budimir. Actually, his name rings a bell. I
19 believe that he was, in 1982 and thereafter, the commander of the
20 72nd Battalion of the military police in Split. I know that because from
21 April or May 1992 to May 1993, I was the deputy military prosecutor in
22 Sibenik. I don't know what the case was after 1993, whether he remained
23 in that position and for how long, whether he was still the commander of
24 the 72nd Battalion of the military police in Split. I believe that he
25 was, but I don't know for how long. I wouldn't be able to tell you,
1 because --
2 Q. [Previous translation continues] ...
3 A. -- at the beginning of 1993, or rather, in June 1993, I left the
4 prosecutor's office and became the state attorney in Sibenik.
5 Q. Now, are you able to tell Court as to what the outcome of this
6 investigation was, with regard to the conduct of the 72nd Military Police
7 Battalion, particularly the conduct of Nenad Mrkota, you know, preventing
8 the investigation that was being conducted against Goran Vunic?
9 Was there a final result in that investigation that is reported
10 in this special report to you?
11 A. I received this report, as I have already told you, towards the
12 end of June 2003. I know that I had contacts and exchanges with the
13 officials of the military police and that we spoke primarily about the
14 situation at hand and whether we could, seven years after the incidents
15 in Varivode and Gosic, find the weapons of the 113th Brigade of the
16 Croatian army of its scouting squad; and if we could, whether we could
17 subject the weapons to a ballistic expertise in order to establish
18 whether any of those weapons that had been issued to the members of the
19 113 Brigade, whether they had been used to fire at people in Gosic and
21 I would like to emphasise that in the place where civilians had
22 been killed in Gosic and Varivode, some bullet casings were found; in
23 other words, when I received this special report, our efforts was
24 primarily focussed on the attempts to locate the weapons and to carry out
25 ballistic investigation with a view to establishing, perhaps, that some
1 of these weapons had been used to fire from in Gosic and Varivode.
2 As far as I can remember at this moment, and it was seven years
3 ago, we made several attempts to locate the weapons. Some of the
4 weapons, as far as I can remember, had been conserved. Some of the
5 weapons were found. I was informed that some of the weapons that had
6 been found did undergo ballistic expertise. While I was the county state
7 attorney in Sibenik, I did not receive those ballistic results that had
8 been carried out.
9 I stopped being the county state attorney on the 15th of
10 September, 2002, and moved to Zagreb
11 Q. Mr. Zganjer, just to correct the record, you said that you
12 received this special report towards the end of June 2003. I think you
13 meant to say 2002. I just wanted to correct that on the record.
14 Now was Goran Vunic --
15 A. 2002.
16 Q. Do you know within which unit Goran Vunic was during 1995 at the
17 time that he was being investigated? I'm not talking about the subunit,
18 but, generally, the brigade.
19 MR. MISETIC: I'm going to object to lack of foundation for
20 reasons that will be more clear in cross-examination, Your Honour. But
21 if Ms. Mahindaratne can establish that Mr. Vunic was a subject of an
22 investigation in 1995 and when, I think it would be helpful.
23 MS. MAHINDARATNE: I think I have tendered enough and more
24 documents which shows that Mr. Goran Vunic was being investigated with
25 regard to the killings incident in Gosic. I tendered P970, P971, the
1 document that is on the screen now shows it. I don't know what else
2 Mr. Misetic expects me to tender to establish that Mr. Vunic was being
3 investigated in 1995.
4 MR. MISETIC: There is an attachment, I believe, to this exhibit
5 which Ms. Mahindaratne is going do tender. I withdraw the objection, but
6 I think you will see it more clearly when the attachment is brought
8 JUDGE ORIE: I hope you do not mind that the Chamber, on the
9 basis of the series of numbers, cannot immediately understand. If there
10 would be no foundation, we'll find out.
11 Please proceed, Ms. Mahindaratne.
12 MS. MAHINDARATNE:
13 Q. Mr. Zganjer, my question was: Do you know the brigade in which
14 Mr. Goran Vunic was at the time he was being investigated in 1995.
15 A. I suppose that the Court will allow me to answer the question
16 after the previous exchange.
17 JUDGE ORIE: Yes. If you could tell us the brigade in which
18 Mr. Goran Vunic was in 1995.
19 Please proceed.
20 THE INTERPRETER: Could the microphones please be switched off.
21 THE WITNESS: [Interpretation] As far as I can remember, Mr. Goran
22 Vunic was a member of the 113th Brigade of the Croatian army, and I also
23 remember another very concrete detail with regard to his position. I
24 believe that he was the commander of one of the squads of the scouting
25 company of the 113th Brigade of the Croatian army.
1 MS. MAHINDARATNE:
2 Q. Thank you, Mr. Zganjer.
3 MS. MAHINDARATNE: Mr. President, I tender this document into
5 JUDGE ORIE: I hear of no objections.
6 Mr. Registrar.
7 THE REGISTRAR: Your Honours, this becomes Exhibit P1062.
8 JUDGE ORIE: P1062 is admitted into evidence.
9 MS. MAHINDARATNE: Mr. Registrar, may have I document P970,
11 JUDGE ORIE: Meanwhile, just for the record, I heard of no
13 MS. MAHINDARATNE:
14 Q. Mr. Zganjer, have you seen this document before? Let us know
15 when you want to go on to the next page.
16 A. Please be so kind and show me the next page of the document.
17 I've seen this document before.
18 Q. Was it sent to you with the special report that we looked at
20 A. I believe so.
21 Q. Now, in paragraph 1, the paragraph which is numbered 1, it
22 reads -- this is a note compiled by senior Lieutenant Damir Simic.
23 It reads: "Goran Vunic, son of Ante," and the details are given,
24 "member of the 113th Infantry Brigade, for the following reason, after
25 Operation Storm, on an undetermined day in August 1995, together with two
1 other as of yet unidentified men, he has shot and killed Gojko Lezajic in
2 the courtyard of his house in Gosici. The neighbours have buried the
3 body at the local cemetery, (statements given by Savo Letunica and Milan
5 I read that to you because it is relevant to the next document
6 that I will call up.
7 MS. MAHINDARATNE: If I could have, Mr. Registrar, document
8 number 6091.
9 Q. Now, if I could take to you paragraph 39 of your supplementary
10 statement, Mr. Zganjer. If I could ask you to look at paragraph 39 of
11 your supplementary statement, you say: "I am now shown a copy of letter
12 dated 23 October 1995
13 Zadar-Knin police administration regarding the criminal proceedings in
14 the Varivode, Gosic, Zrmanja case.
15 "In this case, one of the suspects in the killing incident in
16 Gosic of Gojko Lezajic was Goran Vunic. By this letter, the Zadar county
17 public prosecutor has directed the Zadar-Knin police to investigate the
18 matter. I am familiar with this document."
19 Now, was this letter also enclosed with the special report that
20 we looked at earlier on?
21 A. I believe so.
22 Q. And if you look at paragraph 1 of this letter, the
23 paragraph numbered 1, it again says, and I will not -- there is an
24 handwritten note, "Goran Vunic," and then it starts: "Vunic," and there
25 is a blank of a place, "Cista Velika, now a refugee in Vodice (shaven
1 head with a tuft on top of his head resembling a bird's nest) on an
2 undetermined date in August 1995, after Operation Storm, in concert with
3 two other as yet unidentified persons, used fire-arms and killed Gojko
4 Lezajic in the courtyard of his house in Gosic, whom the villagers later
5 buried in the local cemetery (statements of Savo Letunica and Milan
7 Now, in the Croatian version, the name Goran Vunic is handwritten
8 text. Do you know who wrote that there in hand writing?
9 A. I don't know who wrote that by their hand. Perhaps it's the
10 person who signed this request to the Zadar-Knin police administration.
11 It was done in 1995 while the area of Gosici was within the jurisdiction
12 of that state attorney's office, and it was done in 1995 by that state
13 attorney's office.
14 Q. Now, did you have any reason to doubt the authenticity of this
15 document on the basis that Goran Vunic's name is handwritten on this
16 document, when you received it with your -- as an enclosure with the
17 special report we looked at a little while ago?
18 MR. MISETIC: Your Honour, I'm going to object to the question as
19 to what counsel means by "authenticity." Is that authentically that
20 somebody wrote by hand a name, or is she suggesting that the name
21 underneath the blanked-out portion is the same as the name written in
23 JUDGE ORIE: Perhaps the witness could include these observations
24 in his answer. If he says that he has doubts as to the authenticity, to
25 explain to us what he meant; but if he had no doubts, of course --
1 MS. MAHINDARATNE:
2 Q. Mr. Zganjer, could you respond to my question please, and the
3 question was whether you had any doubts as to the authenticity of this
4 document, and you could factor in the issues raised by Mr. Misetic, when
5 you received this document enclosed with the special report that was sent
6 to you. That is a document we looked at a little while ago, dated 27
7 June 2002.
8 A. I have to say that what we have here is an unusual intervention
9 in the text of a memo that the state attorney's office sent to the
10 competent police structure. However, there was no reason for me to doubt
11 that this was Goran Vunic. Why was that? Well, in addition to this
12 document, I received others from which it followed that the military
13 police, in 1995, had a certain amount of suspicion against precisely
14 Goran Vunic.
15 A moment ago, you showed to me a document signed by police
16 officer, Mr. Damir Simic, where, beyond doubt, one of the suspects
17 involved was Goran Vunic. This individual is mentioned in this document
18 as well. The document is dated 23rd of October, 1993; whereas, the one
19 you showed to me a moment ago, signed by Mr. Damir Simic, was dated the
20 25th of October, 1995, if I'm not mistaken. These were two separate
21 documents produced two days apart.
22 Q. Thank you for that answer, Mr. Zganjer.
23 MS. MAHINDARATNE: Mr. President, I move to tender this document
24 into evidence.
25 MR. MISETIC: I object, Your Honour, and I suggest that we MFI
1 the exhibit. The Defence will be in cross-examination showing the
2 witness the original letter, in which the name in point 1 is, in fact,
3 not Goran Vunic that was sent by the county prosecutor' office.
4 We were provided with the original by the state attorney's office
5 in Croatia
6 will be exploring this in cross-examination. I suggest we MFI it and let
7 the Trial Chamber decide how we should deal with the exhibit later.
8 MS. MAHINDARATNE: Mr. President, may I just place on the record,
9 that a comparison of this document and P970, which we looked at a little
10 while ago, I think clearly indicates that the person referred in the two
11 paragraphs are one and the same, because the details are exactly the
13 MR. MISETIC: Your Honour, I have the original document --
14 JUDGE ORIE: Let's see for the time being.
15 Ms. Mahindaratne expresses that she has no doubt as to the
16 authenticity of this document, whatever that may mean. Mr. Misetic says
17 that he has another original, well, still to be considered. There could
18 be even two authenticate documents, the one not exactly the same as the
19 other one. Authenticity, of course, should be interpreted when talking
20 about --
21 MR. MISETIC: Your Honour --
22 JUDGE ORIE: -- context. We'll, for the time being,
23 Ms. Mahindaratne, we'll mark this document for identification. A final
24 decision on admission in view of any authenticity issue raised or any
25 other issue raised will be decided by the Chamber after we have seen all
1 the information the parties want to present to the Court.
2 MR. MISETIC: Yes, Your Honour. Let me just state, for the
3 record, we will, in fact, be going step by step through the investigation
4 up to the point of this letter, and exploring matters --
5 JUDGE ORIE: Yes, yes --
6 MR. MISETIC: -- with the witness.
7 JUDGE ORIE: -- Mr. Misetic, the Chamber will see how you will
9 MR. MISETIC: Okay. Thank you.
10 JUDGE ORIE: Please proceed, Ms. Mahindaratne -- no.
11 First, Mr. Registrar.
12 THE REGISTRAR: Your Honours, this becomes Exhibit number P1063,
13 marked for identification.
14 JUDGE ORIE: Exhibit P1063 keeps that status.
15 Please proceed.
16 MS. MAHINDARATNE: Thank you, Mr. President.
17 Q. Mr. Zganjer, can I take you to paragraph 45 of your supplementary
19 In paragraph 45, and that is quite a lengthy paragraph, I will
20 only read a section that is starting from line 7.
21 MS. MAHINDARATNE: I apologise for that, Mr. President.
22 Q. Starting from line 7 you say -- you refer to the Varivode,
23 Gosici, and Zrmanja case, and you say: "At the completion of the trial,
24 the accused were acquitted of the charges of murder relating to the
25 killings in Varivode and Gosic, and Ivica Petric was convicted of the
1 killing incident in Zrmanja and sentenced to six years in prison."
2 Then you give further details of it, and you say: "However, the
3 Supreme Court set aside the acquittal and sent the case back to the Zadar
4 county court for retrial. Then with the territorial change, the case
5 came within the jurisdiction of the Sibenik county court; and as county
6 state prosecutor, I was responsible for the case.
7 "Having taken over the case, I analysed the evidence and
8 established that there was no reliable evidence to proceed against those
9 accused who had been indicted in the case. I discussed this with the
10 state attorney for Croatia
11 dismiss the case against the five persons who had been indicted. I'm not
12 aware of any other persons being tried for the crimes after that. I
13 believe if the military police officer Simic had been allowed to carry
14 out the investigation, including ballistic investigation in October 1995
15 as planned, the real perpetrators of the crime could have been
17 Now, as a state prosecutor in charge of the case, did you examine
18 all the criminal and investigative files relating to the Varivode, Gosic,
19 Zrmanja cases before you arrived at your conclusion that there was no
20 reliable evidence to proceed against the five persons who had been
21 indicted in the case which was tried?
22 A. The events in Zrmanja, which you referred to in your question,
23 were a case that where a final decision was rendered. I received a file
24 which concerned the killing of civilians in Gosic and Varivode. I assure
25 you that I examined the case file carefully and thoroughly. It was not a
1 small matter to approach the state attorney and tell him that in that
2 case, I did not see any reasonable grounds indicating that the
3 individuals mentioned therein were the perpetrators.
4 I sifted through the matters involved in the case carefully
5 because I was resolute in my intention that charges should be dropped
6 against the person who is were accused of not less than 17 civilians
7 killed in Gosic and Varivode. Seven were killed in Gosic and nine in
8 Varivode. That would be my answer to your question.
9 Q. Thank you for that, Mr. Zganjer.
10 Now, in one of those materials that you examined -- you said that
11 you examined the case files for Varivode and Gosic thoroughly. Now in
12 any one of those materials, was there any reason recorded as to why the
13 investigation against Goran Vunic had been stopped by Nenad Mrkota?
14 A. One matter needs clarification on that score. There was a case
15 file which referred to the cases of Gosic and Varivode, which, once the
16 jurisdiction changed, was transferred from the Zadar county court to the
17 Sibenik county court. I was given a part of the state attorney's case
18 file concerning Gosic and Varivode. I thoroughly examined and studied
19 the evidence contained in the case file.
20 Q. [Previous translation continues] ...
21 A. Goran Vunic, as far as that case file is concerned, and I stress
22 the case file, was not mentioned as a person who would be under suspicion
23 this way or the other. When is it that the name of Goran Vunic
24 ultimately emerges? When I decided to desist the criminal prosecution of
25 those suspects, the following question arose: If, as I was deeply
1 convinced, those persons were not the perpetrators, who was it that
2 killed the 17 individuals?
3 At that point, for a state attorney, the proceedings against
4 those accused ended; however, the pre-trial proceedings commenced of
5 establishing who the perpetrators were. The results of that -- of those
6 particular proceedings, the pre-trial proceedings, led me to learn in
7 2002 that, for certain reasons, the commander of the military police
8 company in Sibenik, Nenad Mrkota, had obstructed the activity of the
9 military police of Damir Simic. It was at that point that the suspicion
10 arose, which made me believe that Goran Vunic could be the possible
11 perpetrator of the events in Gosic and Varivode.
12 Based on the information I can see on the screen here, the
13 authenticity of which is something that the Defence doubts. Goran Vunic
14 became a suspect for the competent state attorney's office back in 1995
15 and I received the case file in 1999, when the change of jurisdiction
16 occurred; and at that point, I took adequate actions and measures aimed
17 at finding, identifying the perpetrators of the act.
18 I don't know if I was clear enough.
19 Q. Yes, you were, Mr. Zganjer?
20 MR. MIKULICIC: [Previous translation continues] ... we have,
21 again, dealing with a translation problem as it regards to the
22 "pre-criminal" proceedings, which has been translated as the "pre-trial."
23 We solved the problem yesterday, but, again, the transcript for today is
24 all the same.
25 JUDGE ORIE: It is on the record.
1 MR. MIKULICIC: Thank you, Your Honour.
2 JUDGE ORIE: Please proceed.
3 MS. MAHINDARATNE:
4 Q. Thank you, Mr. Zganjer, and I have an only a few questions.
5 Yesterday, we discussed about the investigation conducted by
6 members of the Sibenik-Knin crime police into the Grubori incident on
7 your instructions. Now, if I could take to you paragraph 19 of your
8 supplementary statement, you referred to one of the investigators, named
9 Josko Ferara. You say that you went with him, you visited the village of
10 Grubori, in order to get an impression of the area to yourself.
11 Now, also yesterday, you mentioned that you had a meeting and
12 discussions with the investigators; and to be precise, I'll read exactly
13 what you have said.
14 MS. MAHINDARATNE: This is, for the record, at transcript
15 number 11.512.
16 Q. You say: "There is an conversation that I held with the police
17 officers who were involved in the criminal proceedings in this case. I
18 made a note of that conversation on the cover of my case files."
19 I'm referring here to the Grubori investigation, Mr. Zganjer.
20 Now my question is: Did you know the police officers who were
21 conducting the investigation, the investigation initiated by you, in
22 2001? When I say ask you whether you knew them, I'm asking did you know
23 them professionally. I'm not -- not referring to personal contact.
24 A. I'm referring to my supplementary statement at paragraph 19. I
25 knew the police officer Josko Ferara personally, as I did many other
1 police officers from the police administration of Sibenik-Knin. I worked
2 as a state attorney for 24 years, holding various positions in Sibenik;
3 and by virtue of my position, I knew many police officers. It was only
5 If you're asking me about the note that I made in my file --
6 Q. [Previous translation continues] ... you answered my question.
7 Now, you said you have worked with the Sibenik-Knin crime police
8 for a while when you worked as a Sibenik county state prosecutor.
9 Now, do you have any reason to consider that when these officers
10 conducted the interviews, in relation to the witnesses of the Grubori
11 event on your instructions, that they conducted those interviews properly
12 within the -- in accordance with the Croatian law, preserving the rights
13 of those who were being interviewed?
14 A. I believe that the interviews conducted by policemen with persons
15 who had certain knowledge of the events in Grubori were done
16 professionally and properly, in full respect of the dignity and the
17 integrity of citizens.
18 At the time when I was the county state attorney, I had never had
19 occasion to hear that such interviews were conducted in a manner that
20 would be inappropriate or rough.
21 Q. Now, we discussed a number of records of interviews yesterday,
22 and also you have examined a number of records of interviews in -- by
23 your supplementary statement.
24 Do you consider the records of interviews that you looked at and
25 referred to in your supplementary statement, as well as we looked at
1 yesterday, to reflect an accurate record of the interviews?
2 MR. CAYLEY: I'm objecting, Your Honour, at this point, because I
3 really think that this witness cannot possibly answer that question. He
4 wasn't there.
5 MS. MAHINDARATNE: Mr. President, I believe, as a prosecutor,
6 prosecutor, he has a knowledge of the manner and the methods --
7 JUDGE ORIE: Okay. Yes. But that is a different matter because
8 you're now focussing on specific documents. Let me perhaps put a
9 question to the witness.
10 Did you ever have the experience, by receiving complaints or by
11 receiving any other information or through personal observation, did you
12 ever have the experience that what police officers did write down in
13 relation to those interviews was not in accordance with, was not
14 reflecting what the interviewed persons had said?
15 THE WITNESS: [Interpretation] If we are talking about the notes
16 as the result of interviews that the police conducted with citizens who
17 had certain knowledge of the events in Grubori, then I believe that --
18 JUDGE ORIE: [Previous translation continues] ... in general.
19 I'm not focussing at this moment on any reports on Grubori, but I want to
20 know whether in your experience, as a state attorney, whether ever,
21 through your personal observation, through other information, through
22 complaints by whatever means, that you were confronted with the situation
23 where this information or this observation or these complaints raised
24 serious doubts as to whether the police, in their Official Notes, had
25 written down something different from what the interviewed person would
1 have said.
2 THE WITNESS: [Interpretation] I had such experience. There were
3 cases when citizens were summoned by the investigating judge to testify,
4 and they expressed their reservations in respect of what was contained in
5 the notes of the interviews conducted with these persons by police
7 In my career, I oftentimes processed police officers for their
8 abuse of position. I processed such events where the actions of police
9 officers crossed the boundaries of their duty or where force was applied,
10 in violation of the rules governing precisely the situations in which a
11 police officer may use force.
12 JUDGE ORIE: I'm talking about incorrect reflection of the
13 interview, not as a result of force, but just by, well, putting something
14 down on paper which is not in line, is not reflecting what that person
15 had told this police officer.
16 THE WITNESS: [Interpretation] Yes, there were such cases, too.
17 If you will allow me, Your Honour --
18 JUDGE ORIE: [Previous translation continues] ...
19 THE WITNESS: [Interpretation] -- a clarification.
20 How does a police officer in the Republic of Croatia
21 Official Note? He listens to a person, writes down notes in his notebook
22 reflecting what the person says, and then he uses his notes to draft an
23 Official Note.
24 The Official Note is not read out to citizens. That particular
25 citizen will not sign the Official Note either. For that reason, the
1 note is only a piece of information, and it can by no means be a piece of
2 evidence. The procedure of drafting the Official Note, which I've just
3 described, allows the police officer to interpret some parts of the
4 statement he hears from the citizen more freely, and to then put it into
5 an Official Note. That is why, under our system, this note is always
6 regarded as a piece of information and not as a piece of evidence.
7 JUDGE ORIE: You explained in your last answer that there is some
8 latitude in interpreting what a witness said and then put it on paper,
9 and that it is not read back to him.
10 Did you also experience that the police officer did not interpret
11 the words in a different way, but put down on paper something almost
12 entirely different from what the witness said? For example, if the
13 witness would say, "I saw Mr. A or I saw a person driving in a Mercedes,"
14 that the police officer would put down on paper, the witness said that he
15 saw person B and that person B was driving in a Renault, rather than a
17 Did you experience this apparently intentional distortion of what
18 an interviewed person said?
19 THE WITNESS: [Interpretation] Well, there were such cases in my
20 many years of practice, where a person questioned by an investigating
21 judge or a judge during a hearing, would state something that was
22 materially different from what was stated in the note compiled by a
23 police officer. Was the witness stating the truth in his addressing the
24 court or was the truth contained in the Official Note is something that
25 can be debated.
1 However, we, as professionals in Croatia, find the statements
2 stated by the person before an investigating judge or a judge in court as
3 the material statement, and then the Official Note is excluded from --
4 the Official Note is excluded from the file, and it cannot be part of
5 evidence ever, but there were such discrepancies in statements. I'm
6 speaking in general terms and in terms of my experience.
7 JUDGE ORIE: Yes. I do see and hear from you what consequences
8 would be drawn from inconsistent statements given at various moments
9 under the law of evidence.
10 A very specific question: Were there ever cases known to you in
11 which it could be established clearly that the police officer
12 intentionally had written down something quite different from what the
13 interviewed person had said? Let me be clear on this matter.
14 I see the point you make, that a statement given to the police
15 and interviewed or examined on the same matter at a later stage by
16 someone else can show an inconsistency, which, as you rightly observed,
17 raises the issue of when did the person tell the truth. But there is
18 even one question earlier that is whether, at all, it was put on paper
19 what he said, whether the truth or not.
20 Now, is there any case known to you or was there any practice
21 known to you in which police officers would intentionally or with gross
22 violation of their duty to put down on paper what an interviewed person
23 had said, that they nevertheless did write down something quite different
24 from what he said or what he told these police officers?
25 THE WITNESS: [Interpretation] I must admit that I am not aware of
1 a case when a policeman would intentionally and maliciously distort the
2 contents of a person's statement. I believe it will not come as a
3 surprise if I tell you that the suspects' statements would often appear
4 different than the statements that the same persons provided to the
5 police officials. When they came into court, their statement would
6 differ greatly. Those statements would rarely be in collision if the
7 statements were provided to the police and to the court by civilians
8 appearing as witnesses.
9 It is only logical that a person, when appearing before the
10 investigating judge says, "Yes, I said it before the police because they
11 had slapped me a couple of times, so I confessed everything. But now
12 that I'm appearing before you, I have to deny everything that I said
13 before to the police."
14 So when we're talking about the category of suspects, it happens
15 more often that their statements given before the police contradict what
16 they want to say before the judge.
17 When we're talking about civilians providing witness statements,
18 then the controversy happens less often; and if it does, the -- it is of
19 milder character. I don't know if I made myself clear.
20 JUDGE ORIE: Thank you for that answer.
21 Mr. Misetic.
22 MR. MISETIC: I just rise to my feet because I'm puzzled by the
23 position taken by the Prosecution here. We all have an obligation to put
24 our case to the witness. With respect to this witness, when it comes to
25 the Varivode, Gosici incident, I believe the Prosecution is not putting
1 on --
2 JUDGE ORIE: Is it appropriate to discuss the matter in the
3 presence of the witness?
4 Let me try to be very practical at this moment. If it has to be
5 put to the witness, then, of course, he should hear. But if for whatever
6 reason it is not appropriate to put it to the witness, he should not
7 hear --
8 MR. MISETIC: It should be put to him.
9 JUDGE ORIE: Then, of course, it should be put to him at the end
10 of this discussion, but not already through the decision.
11 MR. MISETIC: That's fine, Your Honour. I would still like to
12 make my objection, Your Honour.
13 JUDGE ORIE: I'm not objecting to that.
14 Ms. Mahindaratne, very, practically first of all, how much time
15 would you still need?
16 MS. MAHINDARATNE: Only two more questions, Mr. President.
17 JUDGE ORIE: Two more questions.
18 Then could I ask you, Mr. Zganjer, do you speak and/or understand
20 MS. MAHINDARATNE: Yes, he does, Mr. President.
21 JUDGE ORIE: Yes.
22 Mr. Zganjer, do you speak or understand English?
23 THE WITNESS: [Interpretation] I understand quite a lot; however,
24 if I were asked to say something in English, it would not be as easy.
25 JUDGE ORIE: [Previous translation continues] ... I had not
1 invite to you do so. It's just whether you were able to follow major
2 parts of a brief discussion we might have.
3 Could I ask you to leave the courtroom just for a second, so that
4 the Chamber will listen to what Mr. Misetic wants to say, and then we'd
5 like to see you back soon, for the last two questions.
6 [The witness stands down]
7 MS. MAHINDARATNE: Mr. President --
8 JUDGE ORIE: Yes.
9 MS. MAHINDARATNE: I was about to suggest that I could finish it
10 with one question, and then we could have the discussion, but then --
11 JUDGE ORIE: No. I take it that Mr. Misetic insists on fairness
12 to the witness. That's what we're talking about.
13 MR. MISETIC: Well, it's fairness to the witness, but it is also
14 putting the case -- what is the Prosecution's case. I rise because, on
15 the one hand, they're putting on a case, with respect to the Varivode and
16 Gosic murders, that the accused in that case confessed to the police,
17 which was the basis of why they were tried in the first place,
18 confessions to the police.
19 This witness now has testified that there was no reasonable basis
20 whatsoever for him to continue to pursue these individuals with the
21 confession in the file from these individuals given to the police. Then,
22 with respect to Grubori, Ms. Mahindaratne rises to now get the witness to
23 say that police statements given by people, he has never encountered a
24 situation where they were not credible.
25 It should be put to the witness how he explains, on the one
1 hand, not even pursuing a criminal case with confessions in the file;
2 and, on the other hand, if she wishes to have him say that statements
3 given in the context of the Grubori case, however, or otherwise, were
4 reliable, then how could have testified earlier that there was no
5 reasonable basis to continue to pursue the people who had confessed in
6 the Varivode incident.
7 I think the Prosecution has an obligation to be -- to put their
8 case to the witness; and to the extent there is any inconsistency what
9 the witness has said with respect to how he handled the cases, that
10 should be resolved on their questioning, and not to leave that somehow
11 they want to get Grubori documents in, so the system functioned perfectly
12 with respect to the to the police. With respect to Varivode, it was some
13 conspiracy where the individuals were beaten into providing confessions
14 to the police.
15 Thank you, Mr. President.
16 JUDGE ORIE: Ms. Mahindaratne.
17 MS. MAHINDARATNE: Mr. President, I do not know from where
18 Mr. Misetic got that it was the Prosecution's thesis or the basis that
19 the Varivode suspects were beaten, or the confessions. The entire -- we,
20 the Prosecution, has not led much evidence or it has not been one of the
21 scheduled incidents in this case.
22 The issue about Varivode, Gosici, and Zrmanja came up because
23 with regard to the evidence that was led through Damir Simic, and this
24 witness, about the previous suspects not being properly investigated,
25 that was the issue. Then, in the course of cross-examination of witness
1 Simic, Mr. Misetic tendered an excerpt of a judgement, on the basis that
2 it was an excerpt of a judgement from the Varivode case. He went on
3 record saying that Goran Vunic, in fact, was -- that Goran Vunic
4 testified in the Varivode, Gosici, Zrmanja cases.
5 MR. MISETIC: Transcript reference please, counsel.
6 MS. MAHINDARATNE: Transcript reference would be --
7 MR. MISETIC: Your Honour, I can cut this short. We've gone back
8 and forth on --
9 MS. MAHINDARATNE: I can read transcript from ... [Overlapping
10 speakers] ... T10325 to T10327.
11 MR. MISETIC: Read out what I said.
12 MS. MAHINDARATNE: With your permission --
13 JUDGE ORIE: Yes.
14 I take it you're inviting Ms. Mahindaratne to read out what --
15 MR. MISETIC: Yes. The portion particularly where I said he
16 testified in the Varivode, Gosici cases.
17 JUDGE ORIE: If we could please at least observe in every respect
18 politeness instead of giving orders inviting other parties to do
19 something. If there is any need for any order to do a thing, you may
20 address this Bench, and the Bench will, if that is appropriate, issue an
21 order for one of the parties to do what the other party wishes that part
22 to do.
23 Please proceed.
24 MS. MAHINDARATNE: Mr. President, do you wish me to read this
25 transcript? I have it exactly here.
1 JUDGE ORIE: Well, Mr. Misetic invited you to do so. So if you
2 follow that invitation, then I don't have to express myself on the
4 MS. MAHINDARATNE: Very well, Mr. President.
5 Mr. Misetic's question: "This is now on the screen, sir. This
6 is a judgement concerning the case that you had investigated, and we've
7 translated certain excerpts. In the judgement, you can see that Goran
8 Vunic subsequently became a witness in that case and gave evidence as a
9 witness. Were you aware, subsequent to October 1995, that Goran Vunic
10 became a witness in the case that you had investigated?"
11 "A. No, I wasn't aware of that.
12 Mr. Misetic: "Okay."
13 Then there is a conversation with the Court.
14 "Q. Are you aware whether Goran Vunic at any point became a
15 protected witness in the investigation?"
16 Then I object: "Mr. President, objection. I think the witness
17 has answered this question several times in examination-in-chief and just
19 Then Court rules.
20 Then, again, the question is asked: "Mr. Simic, let me ask you
21 the question again: At any point in time, did you receive any
22 information that Goran Vunic was a protected witness in that case?
23 "A. No, I never received such information."
24 MR. MISETIC: May I respond, Mr. President, briefly.
25 JUDGE ORIE: Yes.
1 MR. MISETIC: I believe Chambers was copied on my e-mail. My
2 position was that he testified in OA Varivode, which was the operative
3 investigation. I have already advised Ms. Mahindaratne, if she felt
4 something was unclear, we could put it on the record.
5 So, to the extent it was unclear, I put it on the record, but it
6 doesn't change the position of why 843 was tendered.
7 Moreover, we are now far afield from what my objection is. It is
8 patently absurd that somehow these questions are being led because of a
9 question I put to him. The issue is that it is the Prosecution's
10 position, from the evidence they first led with Damir Simic, that there
11 was a cover-up in the Varivode case, that she has proceeded now to take
12 Mr. Mrkota, Mr. Budimir, several other people in a public session, and
13 essentially accuse them of a cover-up in the Varivode case, which I think
14 when you see the cross-examination in my position, is that there was no
15 foundation for those allegations.
16 But, more importantly, the issue is they are claiming that there
17 is some sort of a cover-up.
18 This witness had confessions from people in the file that had
19 nothing to do with Mr. Mrkota, Mr. Goran Vunic, Mr. Budimir, et cetera.
20 So the Prosecution has to take a position, either there was a cover-up
21 with Mr. Vunic and Mr. Mrkota in the Varivode case, in which case the
22 confessions in the file were not accurate; or, the confessions in the
23 file were accurate, this witness failed in his responsibility to continue
24 to prosecute the case, and the allegation of a cover-up is either not
25 true or at least is irrelevant to the issue of the fact that the
1 individuals who confessed still should have been prosecuted.
2 However we look at it, we go back to the first issue, which is
3 how do you justify saying the confessions in the Varivode case are not
4 valid, while at the same time saying that every statement given to the
5 police is accurate, or should be generally to be accurate.
6 JUDGE ORIE: Ms. Mahindaratne --
7 MS. MAHINDARATNE: May I respond, Mr. President?
8 JUDGE ORIE: Yes. Mr. Misetic apparently sees inconsistency in
9 your approach of the matter. Now, I leave for a moment my doubts whether
10 there was also an obligation for the Prosecution to put inconsistencies
11 in their approach. Could you, first of all, explain to us what, in your
12 view, on the matter raised by Mr. Misetic, what the position of the
13 Prosecution is.
14 MS. MAHINDARATNE: Mr. President, there is no inconsistency at
15 all. The issue is that Mr. Misetic has confused facts. The witness's
16 testimony is that five persons -- those five persons did not include
17 Goran Vunic of who were indicted. The matter was tried, and they were
18 acquitted, and the case came back for retrial when he examined the entire
20 Now Mr. Misetic is focussing on confessions. This -- only this
21 witness could say what exactly the factors were which made him conclude
22 that there was no reliable evidence to charge those five persons. And
23 based on his examination, he arrived at the conclusion that there was no
24 evidence, reliable evidence, against those five persons, not withstanding
1 I don't think, as being attorneys, we have to, you know, argue
2 that just because there is one confession, that that suffices for an
3 entire -- for a person to be convicted of a crime.
4 Now, what this witness has said was that he examined the entire
5 case material, and he arrived at that conclusion. Then he wondered as to
6 who the real perpetrators were, upon which he initiated a further
7 investigation, and then the Mr. Nenad Mrkota and Goran Vunic material
8 came forward.
9 So I do not see what the contradiction is.
10 JUDGE ORIE: Well, let's not focus on the contradiction.
11 Would it be a suggestion that you put a question to the witness
12 in relation to when he determined that there was no basis to continue
13 that case, whether he specifically considered any confessions which were
14 in that file. If you ask him that, as a very factual question not of a
15 general character, then we will hear what the witness says.
16 It might meet some of Mr. Misetic's concerns and might not be
17 inconsistent with what you just told us. Is that --
18 MS. MAHINDARATNE: Very well, Mr. President, I will do that.
19 JUDGE ORIE: Then you had two questions --
20 MS. MAHINDARATNE: Which means it becomes three, Mr. President.
21 JUDGE ORIE: Yes, I allow you the third one. But the 30 to 40
22 minutes you indicated yesterday, even without my permission, have now
23 grown to one hour and 20 minutes, not all of it used for the examination
24 of the witness, but most of it.
25 Can the witness be brought into the courtroom again.
1 Ms. Mahindaratne, are the other to questions related to this one.
2 MS. MAHINDARATNE: Yes, Mr. President. I will make it just one
3 question, Mr. President.
4 JUDGE ORIE: Please don't make it too complex.
5 [The witness entered court]
6 JUDGE ORIE: Thank you, Mr. Zganjer, for your patience.
7 MS. MAHINDARATNE: May I proceed, Mr. President.
8 JUDGE ORIE: Yes.
9 MS. MAHINDARATNE:
10 Q. Mr. Zganjer, when you examined the Varivode, Gosic material and
11 arrived at the conclusion that there was no reliable evidence to proceed
12 against the five persons who were indicted in the previous case, did you
13 consider the confessions made by those accused?
14 A. Of course. The confessions were a particular subject of my
15 interest and consideration.
16 Q. Could you just explain to Court very briefly, Mr. Zganjer,
17 because we're running out of time, what were the factors, and if could
18 you say briefly, which made you exclude or reject those confessions as
19 not being true?
20 A. The key reason for which the confessions were not accepted was
21 the fact that what some of the accused had confessed before the
22 investigating judge simply did not match the factual situation on the
23 spot, as it was established in Gosic and Varivode.
24 In other words, the accused in question, who provided their
25 alleged confessions of their act, actually spoke about something that had
1 nothing whatsoever to do with what had actually happened in Gosic and
3 Q. And were those confessions made before -- I'm sorry. I repeat
4 will it: Were those confessions made before the investigating judge or
5 to the police?
6 A. The key element for me was the fact that the confessions were
7 made before the investigating judge, when the accused were first brought
8 in and when the accused were first examined by the investigating judge.
9 Q. Thank you for those answers.
10 My last question to you is: Did you have any reason to doubt
11 that Sibenik-Knin crime police officers, who were investigating the
12 Grubori event, were not reporting the information they were collecting
13 accurately to you, regarding the particular investigation? I'm referring
14 to the Grubori event.
15 JUDGE ORIE: Perhaps a linguistic matter, you asked whether the
16 witness had any reason to doubt that the events were not reported
18 MS. MAHINDARATNE: I am sorry, Mr. President.
19 JUDGE ORIE: I take it that you wanted to say, with any reason to
20 believe that they did not report it correctly or whether you had any
21 doubt as to whether the reporting was in accordance with the information
22 they disposed of?
23 MS. MAHINDARATNE: That is correct, Mr. President. Thank you
24 very much.
25 JUDGE ORIE: Yes.
1 With this clarification, could you please answer the question.
2 THE WITNESS: [Interpretation] There was no reason for me to doubt
3 that after I had instigated criminal investigation procedure, the police
4 officer involved in the investigation would misinform me. I believe that
5 the police officers, at the time, six years after the event, acting on my
6 request, did everything that was objectively possible at that very
8 MS. MAHINDARATNE:
9 Q. Thank you for answering my questions, Mr. Zganjer.
10 MS. MAHINDARATNE: Mr. President, that concludes the
11 examination-in-chief. I apologise for the extra time I took.
12 JUDGE ORIE: Thank you. We will first have a break.
13 Could I verify with the Defence counsel the timing now in
14 relation to what you now from the examination-in-chief.
15 MR. MIKULICIC: Yes, Your Honour. I will be the first one to
16 cross-examine the witness, and I can predict, let's say, four hours.
17 JUDGE ORIE: Four hours.
18 Mr. Misetic, are you the second one or it Mr. Cayley?
19 MR. CAYLEY: Your Honour, it is unlikely that we will have any
20 questions at all, but it really depends on what my learned friend covers.
21 Thank you.
22 JUDGE ORIE: Mr. Misetic.
23 MR. MISETIC: No more than one and a half hours, Your Honour.
24 JUDGE ORIE: Yes. Which makes it five and a half hours.
25 The Chamber will consider the time requested.
1 We'll first have a break, and we'll resume at 20 minutes
2 past 12.00.
3 --- Recess taken at 11.54 a.m.
4 --- On resuming at 12.23 p.m.
5 JUDGE ORIE: Mr. Mikulicic, if in your mind you would reduce the
6 time, then there's a fair chance that it turns out to be less.
7 MR. MIKULICIC: I think it is more or less the usual procedure,
8 Your Honour. I will try to use less time.
9 JUDGE ORIE: You mean you will try not to lose yourself too many
10 matters in the background of the witness and not to repeat yourself. Is
11 that it? If you say that's what I'm going to try again, I will fully
12 adhere to that.
13 MR. MIKULICIC: I will try and do my best, Your Honour.
14 JUDGE ORIE: Please proceed.
15 MR. MIKULICIC: Thank you, Your Honour.
16 MS. MAHINDARATNE: Mr. President, if I could have minuted, I
17 wanted to place on the record that the Prosecution tendered 65 ter 6097
18 through the bar table motion, and the parties have agreed that -- this is
19 the a full judgement of D843, marked for identification. The parties
20 have grade that the full judgement could replace the excerpt that has
21 been tendered.
22 JUDGE ORIE: So --
23 MR. MISETIC: One moment, Your Honour. Let me just check that.
24 JUDGE ORIE: D853, that is the partial --
25 MS. MAHINDARATNE: Excerpt of the judgement tendered in the
1 course of Mr. Simic's testimony.
2 JUDGE ORIE: It would then replaced by the judgment in its
4 MS. MAHINDARATNE: Yes, Mr. President.
5 JUDGE ORIE: Mr. Misetic, more judgement could not harm, could
7 MR. MISETIC: I'm checking to make sure it's the right judgement.
8 One moment, Your Honour.
9 JUDGE ORIE: Yes.
10 Meanwhile, Ms. Mahindaratne, you will provide a list of all the
11 bar table --
12 MS. MAHINDARATNE: Yes, Mr. President. I provided it last
13 night --
14 JUDGE ORIE: Oh, you have provided it last night already. Since
15 Mr. Registrar has replaced by now, we might decide on the matter
16 tomorrow, and first give an opportunity to see whether there are any
17 further objections.
18 Thank you.
19 Mr. Misetic.
20 MR. MISETIC: Yes, Your Honour. We have no objection to
21 replacing it. It is the same judgement. I'm just checking. I believe
22 we are the ones that have upload it since it is a D exhibit; is that
24 JUDGE ORIE: It is a D exhibit. Therefore, it is logical that
25 you would upload it, if you have it available.
1 MR. MISETIC: Yes, I believe it is uploaded. We just have to put
2 in as D843.
3 JUDGE ORIE: Yes. So then can you upload as a -- you can't
4 replace the D843, but Madam Registrar will replace D843 by the judgement
5 in its entirety as will be uploaded under number --
6 MR. MISETIC: 65 ter 6097.
7 JUDGE ORIE: -- 6097. It is not an urgent matter.
8 [Trial Chamber and registrar confer]
9 JUDGE ORIE: Yes. 6097 appears on the list and had provisionally
10 been assigned Exhibit P1077 by Madam Registrar, but this will then be
11 vacated, and we'll find this will then that we need new numbers for that.
12 Yes, that's now on the record.
13 Mr. Mikulicic.
14 MR. MIKULICIC: Thank you, Your Honour.
15 Cross-examination by Mr. Mikulicic:
16 Q. [Interpretation] Good afternoon, Mr. Zganjer. In these
17 proceedings, I represent General Markac, and I will you putting questions
18 to you in that capacity. I will be mindful of the fact that much time
19 has elapsed, and I appeal to you to answer my questions to the best of
20 your recollection. At the same time, please bear in mind that there
21 should be a break between question and answer, in order to enable the
22 interpreters to do their job.
23 Mr. Zganjer, in the state attorney's office previously that was
24 the prosecutor's office, you have spent some 28 years in all, and I will
25 not be wrong if I say that you have a great many experience in the field
1 of the administration of justice. Is that right?
2 A. I believe so.
3 Q. Let me ask you this: Nowadays in the Republic of Croatia
4 justice administration, do there exist special military courts and
5 special military prosecutor's office?
6 A. There are no military courts and military prosecutor's office
7 today within the justice administration system in Croatia.
8 Q. However, in the period covered by the indictment, more precisely
9 I mean the second half of 1995, there existed both military courts and a
10 military prosecutor's office, did there not?
11 A. Yes.
12 Q. These judiciary bodies were set up pursuant to or by virtue of
13 the powers of the president of the Republic and by virtue of the
14 constitution of the Republic of Croatia
15 passed on the organisation work and the scope of work of the judiciary.
16 I will show you the document now.
17 MR. MIKULICIC: [Interpretation] This is 3D01-0576.
18 [In English] Your Honour, what we will see in course of my
19 cross-examination, and that includes this very document, is a partial
20 translation of the document that has been provided by the Defence.
21 Meanwhile, while we are waiting for the official translation that has
22 been demanded a few times ago, I would like to stress that preparing for
23 the cross-examination, I realized a quite important mistake in
24 translation, and I would like to stress upon it; that is, that mistake
25 relates to the translation of the Croatian words "vojni sud," which is
1 "military court."
2 In our wrong translation, that has been translated as "court
3 martial," which is not exactly the very same definition, because
4 according to the Black's Law Dictionary, the court martial is an ad hoc
5 military court under military authority, to try and punish those who
6 violated the code of military justice, and it's not part of the judiciary
8 JUDGE ORIE: I notice that in the statement given by this witness
9 that the term "court martial" has caused a few problems.
10 Although I always prefer to say that you have second thoughts as
11 far as the translation is concerned or not, because finally our
12 translators are the professionals who assist us in doing the job, but, of
13 course, there's no problem whatsoever to share your thinking with them,
14 and each the word "vojni sud" sounds familiar in my ears.
15 Please proceed.
16 MR. MIKULICIC: Thank you, Your Honour. I will try to cover this
17 topic through the cross-examination with the witness.
18 Q. [Interpretation] Mr. Zganjer, you see on the screen the decree on
19 the organisation work and the domain of the judiciary in the case of war.
20 Are you familiar with this decree?
21 A. Yes, I am.
22 Q. Do we agree that this is an extraordinary legal instrument or an
23 emergency legal instrument provoked by the state of war and the war
24 situation in 1991 in the territory of the Republic of Croatia
25 A. Yes, we can fully agree on that. This is something the very
1 title of the decree indicates.
2 Q. Let us turn to Article 2, which stipulates the establishment of
3 the military court. In Article 6, the jurisdiction of the military
4 courts is laid down.
5 Let us turn to the second page of the decree, and look at
6 Article 7 and Article 8.
7 There, it is provided that the district courts should decide
8 appeals against the decisions of military courts, and that, as a last
9 instance, the Supreme Court of the Republic of Croatia
10 appeals from the decisions rendered by military courts.
11 Do you agree, Mr. Zganjer, that it follows from this decree that
12 the supervision of the military court was exercised by the civilian
14 A. I agree.
15 Q. Article 11 of the decree states that the presidents and judges of
16 the military courts shall, by war assignment, be appointed by the
17 minister of defence at the proposal of the minister of justice and
18 administration from among the judges of municipal and district courts.
19 Please tell us something more about this. Where were military
20 judges recruited from, the ones who sat on the newly established military
21 courts in Croatia
22 A. Military courts were manned from the ranks of the judges who, up
23 until the adoption of this decree, served as judges in regular courts;
24 that's to say, in the municipal courts and in the district or county
25 courts in the Republic of Croatia
1 Q. Was there special training or professional advancement organised
2 for the judges who were transferred from civilian courts to the military
3 courts, in view of the application of law and procedure?
4 A. To my knowledge, these judges did not undergo any special
5 training. They continued performing practically the same duties whilst
6 applying the jurisdiction prescribed by this decree.
7 Q. Is it true, then, that the military courts applied the same
8 Criminal Code and same Law on Criminal Procedure that applied by civilian
9 courts? In other words, there did not exist any special regulations
10 governing procedure before military courts.
11 A. That's true. Military courts applied the Law on Criminal
12 Procedure and the Criminal Code. At the time, it was the General
13 Criminal Code of the Republic of Croatia
14 Code of the Republic of Croatia
15 legal provisions as were applied by judges of the regular civilian
17 Q. You mentioned the jurisdiction of military courts. We can speak
18 of a three-fold jurisdiction: Territorial, subject matter jurisdiction,
19 and temporal jurisdiction. Can you tell us something about that?
20 A. The subject matter jurisdiction of military courts transpires
21 from Article 2 of this decree, unless I'm mistaken. As for the
22 territorial jurisdiction, the jurisdiction of military courts was
23 specific insofar as the territorial jurisdiction was defined according to
24 the area covered by a given military district. Let me be quite specific.
25 For instance, the military court in Split covered the area from
1 Zadar all the way to Dubrovnik
2 military courts, that was the only court that had jurisdiction over that.
3 In order to rationalise the procedure, the judges from the military court
4 in Split
5 hear cases, although the court which had jurisdiction was the one in
7 Q. Can we take this to be a practical relocation of proceedings to
8 make the conduct of proceedings more practical?
9 A. That's correct.
10 MR. MIKULICIC: [Previous translation continues] ... please, to
11 turn back one page and focus on Article 6.
12 Q. Military courts were authorised to hear cases, as we see in
13 Article 6, perpetrators for crimes if the perpetrators were active
15 So there was no dispute there. If it was established that the
16 perpetrator was a military serviceman, then that person would be tried
17 before a military court. Is that correct?
18 A. Yes, it is, I agree.
19 Q. However, can you recall that regard to the subject matter
20 jurisdiction, still there was some problems because some accused had
21 perpetrated crimes in military uniforms and presented themselves as
22 members of a military unit, although they were not members of any
23 military units, and then the subject matter jurisdiction of a military
24 court would come into question.
25 A. As far as I can remember, while I worked in the military
1 prosecutor's office, there were very few such cases, or at least there
2 are very few in the cases that I dealt with. At this moment, I can't
3 remember any particular case where the subject matter jurisdiction would
4 come into question.
5 We're talking about the years 1992 and 1993, and it would be very
6 much the question of the qualification of the person who appeared before
7 the military court, but that was very seldom in dispute.
8 Q. Let's go back to the subject matter jurisdiction.
9 Military courts were authorised to try civilian persons, were
10 they not, in some very specific and legally prescribed cases? For
11 example, if a civilian committed a crime against a military
12 [indiscernible] or official duty, or if a civilian committed a crime in
13 concert with servicemen so on and so forth. Would you agree with me?
14 A. Yes.
15 MR. MIKULICIC: [Previous translation continues] ... evidence,
16 Your Honour.
17 JUDGE ORIE: Ms. Mahindaratne.
18 MS. MAHINDARATNE: No objection, Mr. President.
19 JUDGE ORIE: Madam Registrar.
20 THE REGISTRAR: Your Honours, that would be Exhibit D906.
21 JUDGE ORIE: D906 is admitted into evidence.
22 MR. MIKULICIC: Thank you, Your Honour.
23 [Interpretation] Given the provisions of Article 11 of the decree
24 that we just saw, I would kindly ask the registry to display document
25 number 3D01-0574.
1 Q. While we're waiting for the document to come up, let me tell you
2 that we're going to see a decision on the assignment of a judge in the
3 military court in Split
4 illustrate the implementation of Article 11 of the decree.
5 We will see that the decision is dated 10 August 1995, and that
6 it was issued by the then-minister of defence, Gojko Susak, pursuant to
7 the Article 11 of the decree that we just saw, and upon the proposal by
8 the minister of justice of the Republic of Croatia
9 The judges of the military court in Split were reassigned and
10 became judges of the municipal court in Split, and the subject of this
11 decision or solution is the postings and appeal of the war postings of
12 the judges.
13 Could you please explain to the Judges what this is about?
14 A. This is about the matter that you have just explained. This is a
15 solution on the postings and appeal of the war postings of the judges. I
16 received an almost identical decision when I was appointed with a
17 decision of the deputy judge of the military court, and this was decided
18 by the then-minister of defence, Gojko Susak, upon a proposal by the
19 minister of justice.
20 This was our war assignment in the statement of war or
21 immediate -- an immediate threat of war, and this assignment was carried
22 out pursuant to the decree.
23 Q. Thank you for your answer.
24 MR. MIKULICIC: [Previous translation continues] ... Your Honour.
25 JUDGE ORIE: It doesn't appear on the transcript that you wanted
1 to tender this document, Mr. Mikulicic.
2 MR. MIKULICIC: Yes.
3 MS. MAHINDARATNE: No objection, Mr. President.
4 JUDGE ORIE: Thank you.
5 Madam Registrar.
6 THE REGISTRAR: Your Honours, that would be Exhibit D907.
7 JUDGE ORIE: D907 is admitted into evidence.
8 MR. MIKULICIC: Thank you, Your Honour.
9 [Interpretation] May the Court please produce 3D01-0580.
10 Q. We will shortly see a document which is the Law on Courts issued
11 in 1994?
12 MR. MIKULICIC: [Previous translation continues] ... mistake in
13 typing the document, where it says that it is from 6th of January 1984.
14 It has to be 1994, as it properly has been written in the English
16 Q. [Interpretation] This is the Law on Courts and I would like to
17 draw your attention to Articles 5 and 6, which we will shortly see on the
18 following page.
19 MR. MIKULICIC: [Previous translation continues] ... see the
20 second page, please.
21 Q. [Interpretation] It says in these Articles that courts will try
22 cases based on the constitution and the laws, as well as the
23 international laws that are part of rule of law of the Republic of
25 Article 6 strictly forbids any influence on judicial decisions.
1 Article 13 mentions the courts that are envisaged by the law as existing
2 in the Republic of Croatia
3 established as per Article 14 for a certain number of cases. Article 18
4 speaks about the jurisdiction of the aforementioned military courts.
5 This document, i.e., the Law on Courts, regulates the matters of
6 military courts at the time that we're talking about, which is in the
7 year 1995; would you agree Mr., Zganjer?
8 A. Yes, I would, of course.
9 MR. MIKULICIC: [Previous translation continues] ... into
10 evidence, Your Honour.
11 JUDGE ORIE: Ms. Mahindaratne.
12 MS. MAHINDARATNE: No objection, Mr. President.
13 JUDGE ORIE: Madam Registrar.
14 THE REGISTRAR: Your Honours, that would be Exhibit number D908.
15 JUDGE ORIE: D908 is admitted into evidence.
16 MR. MIKULICIC: Thank you, Your Honour.
17 JUDGE ORIE: Mr. Mikulicic, earlier, when you quoted from where
18 the judges would be recruited, you read and you quoted "municipal and
19 county courts."
20 MR. MIKULICIC: Yes.
21 JUDGE ORIE: That is not what the text we had on the screen at
22 the time said. So I wondered whether that was a follow-up situation that
23 perhaps, at a later stage, that included county courts as well; and since
24 we have now in Article 14 again municipal courts and county courts, I'm
25 just seeking --
1 MR. MIKULICIC: Yes, Your Honour. I quoted this from Article 11
2 of the decree from 1991, where it stated that: "From among the judges of
3 municipal courts ..."
4 JUDGE ORIE: Yes. But you read "county courts" as well.
5 MR. MIKULICIC: Yes. It is written in the original; and by our
6 mistake, that hasn't been translated. I apologise again, and we will
7 have the proper translation as soon as we receive it from the official
8 translating services.
9 JUDGE ORIE: Thank you, and apologies for getting back to it so
11 MR. MIKULICIC: You have a very sharp eye, I must say.
12 JUDGE ORIE: Please proceed.
13 MR. MIKULICIC: Thank you, Your Honour.
14 Q. [Interpretation] However, within the military organisation,
15 Mr. Zganjer, there was a certain structure that processed perpetrators of
16 disciplinary offences committed by members of the military; wouldn't that
17 be the case?
18 A. Yes, it would, you're correct.
19 Q. Those were military disciplinary courts as we used to call them.
20 A. Yes, and also military disciplinary prosecutor's offices.
21 Q. The position and definition of those bodies was something that
22 relied exclusively on the military structure.
23 A. Yes, I believe so. I believe that the bodies were established
24 sometime in 1995 or 1996, but I may be mistaken.
25 Q. However, the military disciplinary courts did not have
1 jurisdiction to process perpetrators of crimes. Is that correct?
2 A. Yes.
3 Q. They were not under the control of the civilian authorities, were
5 A. No, they were not.
6 Q. Can you say something about the following situation: Let's say,
7 for example, that a soldier or a military serviceman who were to be
8 processed for a crime, and if a sentence was passed for that crime, would
9 disciplinary proceedings be carried out before a military disciplinary
10 court despite the fact that that person is already being tried for a
12 A. I believe that proceedings before a military courts for a crime
13 in a certain way enveloped any possible military disciplinary
14 responsibility of a serviceman. In concrete terms, this would mean, if
15 I'm not mistaken, if a person was found guilty and sentenced for a crime,
16 then this would have enveloped that same person's responsibility for a
17 possible disciplinary offence. In the category of crimes, a crime is the
18 highest form of a punishable act and, therefore, it is higher in the
19 hierarchy than a disciplinary offence.
20 Q. Let's try and explain that on a rather simple example.
21 A soldier or a serviceman gets drunk in a local pub and causes
22 disturbance; and, by that, he commits a disciplinary offence under the
23 jurisdiction of a disciplinary military court. However, let's go one
24 step further. That same person, a drunken soldier, during his
25 misbehaviour uses a fire-arm and kills a person. Criminal proceedings
1 are thus instigated against that person before a military court. Will
2 that person be prosecuted for a disciplinary offence and for a crime, or
3 whether he would only be processed for a crime?
4 A. It will be only for a crime, either for a murder or an attempted
5 murder, and that the decision of the military court, if we're talking
6 about that time, will envelope or consume the same person's military
7 disciplinary responsibility.
8 If you will allow me, I would like to say something else. If the
9 military court were to find that person guilty of a crime -- of murder or
10 attempted murder, I allow myself to assume that that person would be
11 dishonourably discharged from the armed forces of the Republic of Croatia
12 as well.
13 Q. I thank you for this explanation.
14 In your interview to the investigators of the OTP, you said that
15 the military courts were not involved in the proceedings for war crimes.
16 Is that correct?
17 A. Yes.
18 Q. Why?
19 A. That's how it was prescribed by the regulations that were in
20 effect at that time in the Republic of Croatia
21 into the assumptions as to why this existed in the law, and I don't think
22 it would be of any use to the Court.
23 Q. Let me ask you this, Mr. Zganjer: Regular courts were the ones
24 trying cases of war crimes. Is that correct?
25 A. Yes.
1 Q. Is it correct that in the Croatian criminal law that was in
2 effect at the time, the definition of a war crime was, to a certain
3 extent, different than in the Statute of this court or in the current
4 legislations of the Republic of Croatia
5 A. Yes. At the relevant time, the compositions of the provisions of
6 the criminal legislation that covered war crimes was completely different
7 than it is today, and it also differed greatly from what has been
8 envisaged by the documents of this Tribunal.
9 Q. I am particularly underlining the term "command responsibility."
10 Could you please tell us how was this term "command
11 responsibility" defined in the then-Croatian legislation, and how could
12 one be processed for crimes on the basis of this institute of command
14 A. According to the criminal legislation of the Republic of Croatia
15 that was in effect at the time, persons who could be tried for war crimes
16 were those who ordered a war crime to be committed and law defined the
17 acts of war crime in more specific terms. So it would be the person who
18 ordered a war crime, as well as the person who committed or carried out
19 the order to commit a war crime.
20 So that would be that. The person giving order and the person
21 carrying out the order, one or more of then.
22 Q. We know that there were several trials ongoing and against
23 persons accused of war crimes, especially persons of Serb ethnicity, and
24 those proceedings were mostly carried in absentia, if you will agree with
1 A. I fully agree with you, especially so in the period between 1991
2 and 1995 or 1996. Of course, the majority of these persons of Serb
3 ethnicity, due to the undisputable existence of an armed conflict, were
4 out of reach of the Croatian authorities at the time.
5 Q. Therefore, the proceedings were held and the culpable person, the
6 culprit, was sentenced, but he was out of reach.
7 Now, how did the Law on Criminal Procedure regulate the situation
8 where a person is found and arrested and becomes available to the justice
9 administration? How was the trial in absentia regulated?
10 A. If the individual tried who was tried in absentia is found and
11 arrested and taken into custody and forwarded to the serving of the
12 sentence, it was sufficient for that individual to file a request for a
13 retrial and to just write one sentence as a statement of reasons for its
14 -- for his claim, just to write that "I was tried in absentia and I would
15 now wish to be retried." That would be enough for the court to ask for a
16 retrial to be tried by a new panel.
17 Q. In other words, the sentence passed previously was invalidated
18 and a retrial held where a different decision would be rendered at the
19 end of it.
20 A. You are quite right. You are fully right.
21 JUDGE ORIE: The question was where a different decision would be
22 rendered at the end of it. What do I have to understand --
23 MR. MIKULICIC: Or a different decision should be stated.
24 JUDGE ORIE: Was invalidated. Yes, a different decision would
25 invalidate the earlier decision.
1 MR. MIKULICIC: Yes.
2 JUDGE ORIE: But was it always a different decision, or could it
3 be the same decision?
4 MR. MIKULICIC: The same.
5 JUDGE ORIE: So, therefore --
6 MR. MIKULICIC: It depends on the results of the --
7 JUDGE ORIE: Yes. Therefore, the question puzzled me.
8 You've heard what I asked. Would you agree with what was said,
9 that the retrial could result in a different decision or in a same
11 THE WITNESS: [Interpretation] I agree. During a retrial, the
12 earlier verdict could be upheld; however, a retrial, where the individual
13 tried would be present, could result in a different decision and in a
14 different verdict where the person can be acquitted.
15 MR. MIKULICIC:
16 Q. [Interpretation] Thank you for your answer.
17 We said that under the extraordinary war circumstances, the
18 military court system was introduced. By the logic of things, what the
19 civilian police did in respect of the civilian judiciary, that's what the
20 military police did in relation to the military judiciary. Is that
22 A. Yes, I agree.
23 Q. In fact, as you put it, the military police was created from
24 scratch in 1991 and became gradually trained. Can you confirm that?
25 A. That's true and it's a fact, as simple as that.
1 Q. You also said that it would be fortunate if a civilian police
2 officer was transferred to the military police because, thus, the fellow
3 military policemen could benefit from his knowledge and experience.
4 A. That's correct, and I fully stand by what I said.
5 Q. Thus, for instance, I don't know if you're aware this, the chief
6 of the military police, Mr. Mate Lausic, was formerly a policeman who had
7 spent a great deal of his career in the civilian police. Can you confirm
9 A. Yes, I can confirm that.
10 Q. At the start of the war in the territory of the Republic of
12 considerable extent engaged in combat. Is that right?
13 A. Yes. They were part of the body of the armed forces of the
14 Republic of Croatia
15 Q. In time, the civilian police increasingly withdrew from that
16 particular function and turned to the function which it normally performs
17 in peacetime. Is that right?
18 A. Yes.
19 Q. As far as the military police concerned, there existed special
20 anti-terrorist units which also had combat assignments within the
21 military police system. Are aware of this?
22 A. I do allow for the fact and concede the fact that this system
23 existed within the military police structure.
24 Q. Thank you. Let us now try to reconstruct the proceedings which
25 was touched upon on several occasions during your examination-in-chief.
1 I should like to approach this matter more systematically.
2 What sort of procedure follows once the police has received a
3 report or an account that a crime was supposedly committed, that there
4 were suspicions. For instance, there's a phone ringing in the police
5 station, and the person at the other end of the line says that there's a
6 body found there that could be the result of murder. What is the police
7 duty-bound to do in such a case?
8 A. Once such a report has been received, the policemen working in
9 the operative centre of the police administration will attempt to
10 collect, gather certain information from the individuals who can provide
11 that information, where the body is, in which area. That particular
12 operative centre officer will make a note of the information, whereupon
13 he will notify the duty officer within the crime police force thereof.
14 The crime police will then inform the duty state attorney and the
15 duty investigating judge of the report. The investigating judge will
16 learn from that particular police officer what the case involved; and, on
17 the basis of that, he will decide whether to attend the scene or whether
18 to leave the scene of crime investigation down to the police.
19 This sort of experience indicates that in all of more serious
20 cases, as was the one that we took as a case in point, the investigating
21 judge always attended the scene and personally conducted the crime of
22 scene investigation. Always in such cases, the duty state attorney would
23 attend the scene together with the duty investigating judge. That would
24 be the procedure, roughly, upon receipt of such a report.
25 Q. Thank you. We need to clarify further the procedure.
1 You said that the investigating judge would attend the scene to
2 examine the crime of scene, together with the duty state attorney. Would
3 the investigating judge, where there was a suspected murder involved,
4 make sure that the scene of crime investigation team included other
5 individuals who had specialist knowledge in the field?
6 A. A member of the team who had to, without fail, attend and take
7 part in such an examination of the scene crime, were members of the
8 forensic team of the police administration; in other words, persons who
9 were specially trained to collect all the valuable trace evidence that
10 can be obtained at a scene, in order to subject the evidence to the
11 appropriate forensic analysis and examination, expertise.
12 It was not unusual for a physician or a coroner to attend the
13 scene as well, in order to ascertain the fact the death. With a cursory
14 external examination of the body, he would indicate the mechanism or the
15 manner of death. He would be able to tell if the person died of natural
16 or violent causes.
17 Q. However, a final decision on the mechanism and cause of injury or
18 death could be made, in the case of death, once a post-mortem is done.
19 Is that right?
20 A. You're quite right.
21 Q. Who was the person authorised to order that an autopsy be
23 A. Under the Croatian law, only the investigating judge could do
25 Q. You said that members of the crime of scene investigation team
1 had to be, and they would be asked for by the investigating judge,
2 members of the forensic team, who would then collect the evidence
3 necessary for possible further prosecution.
4 Who was responsible to secure the trace evidence and the scene,
5 once such a report has been received, to make sure that no contamination
6 of the evidence takes place before the arrival of the forensic team?
7 A. The police officer who answered the phone and received the
8 information that a dead body was found somewhere would, even before
9 conveying that information to the duty officer of the crime police, order
10 the police patrol in charge of that particular area to urgently go to the
11 crime scene, to secure it, to cordon it off, to make sure that it was
12 barred to anyone, all it, of course, it make sure that the trace evidence
13 remains preserved.
14 Q. In your practice, did you have the experience of attending a
15 crime scene with your associates that had not been secured by members of
16 the general duty police?
17 A. Very rarely, very rarely. Because by the nature of things,
18 before the arrival of the duty investigating judge and duty state
19 attorney, there would always be the police already there, securing the
21 However, in my many years of practice, I am aware of the cases,
22 admittedly not that many, where the duty judge and state attorney would
23 be there before the police themselves.
24 Q. But these were exceptions, were they not?
25 A. Yes, they were exceptions.
1 Q. Thank you for these answers.
2 To your recollection, how many investigating judges were there,
3 in all, in the Sibenik area and in the Zadar area at the time?
4 A. The Sibenik investigating centre, as far as I remember, during
5 the war - in other words, between 1992 and 1995 - there were three to
6 four investigating judges, I believe. I can't speak about Zadar.
7 Q. You mentioned the investigating centre or the investigation
8 centre. Can you briefly explain for the benefit of the Trial Chamber
9 what sort of an organisation is that?
10 A. The investigation centre was, in organisational terms, a part of
11 the county or district court, employing investigating judges in charge of
12 acting in the cases we've just referred to, as well as in charge of the
13 investigation carried out against a person or more persons who are
14 suspected perpetrators of an act.
15 I stress that primarily these were judges who were within the
16 court system assigned to the duties of investigating judges.
17 Q. These would primarily or exclusively be the judges of the county
18 courts, or rather, district courts at the time. Is that correct?
19 A. Yes, that's correct. They were judges of the county or district
20 courts who conducted investigations, both in the cases that came under
21 the jurisdiction of the county or district court and of the municipal
22 court. In other words, this work was focussed in the -- or concentrated
23 in the investigative branch of the court.
24 Q. In order for the judges to be able to be assigned to a county
25 court, they had to have a certain degree of professional experience.
1 A. Yes, that's right.
2 Q. And the power of the president of the court was such that he was
3 able to assign judges to various divisions, be it investigations, trials,
4 or appeals. Is that right?
5 A. That's right.
6 Q. Could you please explain the relationship between a judge - in
7 this case, an investigating judge - and a public prosecutor or a state
8 attorney? What was their relationship? If we're looking at a hierarchy,
9 would judges be under the jurisdiction or the state attorney which used
10 to be public prosecutor.
11 A. An investigating judge, as a judge, was obviously independent and
12 acted on his or her own, and he was under no jurisdiction or authority of
13 the state attorney.
14 During an on-site investigation, he was the one who called the
15 shots, to put it that way. Everything that was done at the scene could
16 only be done on the order of an investigating judge.
17 The task or the function of the public prosecutor who attended
18 the on-site inspection was to provide suggestions or proposals to the
19 judge as to what would be good to do at that particular moment, but the
20 final decision was in the hands of the investigating judge.
21 Q. On the other hand, a prosecutor, i.e., the state attorney, had
22 certain authorities or powers over the police. Could you explain that
24 A. Once the on-site inspection was finished, the investigating judge
25 would submit his record on the on-site inspection to the state attorney.
1 From then on, the proceedings would be channelled towards the detection
2 of the perpetrator of the given crime, towards collecting evidence; and
3 this was a matter of a coordinator -- a coordinating activity involving
4 the public prosecutor and the police.
5 In this stage of pre-criminal proceedings, the judge did not have
6 any say, i.e., did not get involved in this stage.
7 Q. You have also mentioned the record on the on-site inspection
8 which, by its nature, would be a document that would be used in the
9 future proceedings, in terms of establishing the situation that was found
10 on site.
11 In probative terms, this record was a valid document and could be
12 used as evidence in the future trial. Is that correct?
13 A. Yes, it is. It was a very valuable piece of evidence in a future
15 Q. In a situation when the investigating judge handed over the
16 on-site inspection to the police, and when he would not be present in
17 person together with the public prosecutor during the on-site
18 investigation, it would be the police that made a note of the inspection.
19 A. Yes.
20 Q. If we're talking about the probative value on the record of the
21 onsite inspection made by the police, would it be the same as the one
22 made by the judge?
23 A. Yes. The probative value would still be the same.
24 Q. Thank you very much for your answers so far.
25 When we're talking about the investigating centre and the
1 function of the investigating judge, the investigating centre was
2 operating around the clock. Is that correct? There was always somebody
3 on duty.
4 A. Yes. I can testify to the way how it was organised in Sibenik.
5 For example, in Sibenik, the duty service lasted for seven days, so one
6 judge would be on duty for seven days together with a prosecutor. But it
7 depended on the amount of work and the intensity of the criminal
8 activity, which differs from one territory to another, from one region to
9 another. It is certain that a lot more is happening in Zagreb than what
10 is happening in Sibenik. Given the size of the city, it goes without
11 saying that the two are different.
12 Q. Of course. In a way, you have answered my next question, and the
13 question would be whether the -- a representative of the state attorney's
14 office would be on duty together with the judge, and you have already
15 told us that that was the case.
16 An investigating judge on his part and a prosecutor on his part
17 also had to make their entries in the so-called duty log-book. Could you
18 tell us something about that log-book, how it was established and what
19 was entered in the log-book by the two people on duty?
20 A. I can give you more details in answering this question if I speak
21 about the tasks of the state attorney.
22 A state attorney, who was on duty together with an investigating
23 judge and who would go to the scene of crime and attend an on-site
24 inspection, when he returned to his office, he had to make his short
25 comments in the so-called duty log-book. He had to say where he went,
1 when he went there, he had to leave a written trace of his on-site
2 inspection. The final document was the investigating judge's note on the
3 on-site inspection that was carried out.
4 Q. We have already mentioned a case where, for example, a body was
5 found, an on-site inspection was carried out, and the investigating judge
6 attending the on-site inspection would order the body to be taken to the
7 morgue -- to a morgue for autopsy.
8 Are you aware of a case when a judge would not be involved in an
9 on-site inspection involving a dead body, and what would the procedure?
10 I'm here referring to the "asanacija" or the clean-up of the terrain.
11 A. An investigating judge would have to go to the site if he
12 received a report on a dead body; however, this procedure called
13 "asanacija" or clean-up is somewhat different. I'm not an expert, and I
14 can't really talk about that. But as an informed layperson, I may be
15 able to provide some suggestions as to the procedure called "asanacija."
16 This clean-up or "asanacija" is carried out in the following way:
17 Dead bodies are removed from a certain area in order to preserve those
18 bodies in their integral form and prevent them from being mutilated by
19 animals and prevent any spreading of diseases of course.
20 However, this procedure, "asanacija" or clean-up, basically
21 boiled down to a somewhat shorter piece of information as to where the
22 body was found, and the further procedure with the body was to record the
23 position of the body by a photo or a video-clip. But in that, one would
24 record that part of the body or the characteristics of the body that
25 might be used for the identification of the body on the part of their
1 next of kin.
2 After the "asanacija" or the clean-up of the body, that body was
3 buried in a certain place, and a record was made of the fact where the
4 body was found in a certain place and, finally, where it would be buried.
5 That would be the long and short of this pre-record called "asanacija."
6 Q. Can we agree that the procedure called "asanacija" is much
7 different from the procedure called an on-site inspection that you have
8 described for us?
9 A. Yes. We are talking about two completely different procedures.
10 Q. Can we also agree that "asanacija" was carried out within the
11 structure of the Ministry of Interior and that the judiciary did not get
12 involved in this procedure?
13 A. I can only speak about the experiences I had in Sibenik. I
14 suppose my learned friend, when you're talking about "asanacija" and
15 you're asking me about it, you probably referring to the events that
16 followed a lawyer.
17 Q. Yes. This is what I meant, and I apologise if I was not clear
19 A. In the Territorial Defence of Sibenik and in the territory under
20 the jurisdiction of the Sibenik judiciary, there were procedures of
21 "asanacija." An investigating judge was not on site in every such case.
22 However, when he received a report from the police that a body was
23 discovered during an "asanacija," he would issue an order for these
24 bodies, before they were buried, to be autopsied in the Sibenik hospital
25 by a forensic pathologist, so as to establish, by the external
1 examination of the body, the time of death, the cause of death, and the
2 mechanism of the onset of any injuries.
3 I know that this was done by the investigating judge in Sibenik,
4 that the bodies were brought to the morgue, and that the forensic
5 pathologist did carry out an external examination of the bodies. There
6 is a written trace to that effect both in the investigating office of --
7 the office of the investigating judge in Sibenik, as well as in the
8 Sibenik hospital.
9 Q. I suppose that you cannot speak with any certainty about the
10 territory under the jurisdiction of the Zadar county court?
11 A. Of course, I can't tell you anything very precise about the
12 territory under the jurisdiction of the Zadar court, but what I can tell
13 you, because it is a fact, in territorial terms, the area of Zadar and
14 Knin county was much larger than the territory of the Sibenik county.
15 We're talking about the time following the military and police operation
17 The territory of the Zadar and Knin county was much larger than
18 the territory of the Sibenik county, and I believe that this fact had a
19 major impact on the procedure of "asanacija" in that area.
20 Q. This answer of yours brings us to the topic of issues that
21 existed at the time, and I'm primarily referring to the events that
22 followed Oluja in 1995, in the month of August, September, October,
23 November, and December. This was a large territory, and you've already
24 told us what the number of judges there was. In any case, there was a
25 shortage of staff that could adequately respond to every report and act
1 in keeping with legal and technical requirements.
2 Could you agree with me on that?
3 A. Yes, of course I can.
4 Q. For example, if a duty investigating judge received a report that
5 there was a suspicion death in the territory of a village and he went to
6 carry out an on-site inspection, and, at the same time, a report was
7 received that maybe half an hour or an hour later a similar thing had
8 happened in a different village a bit further from the first one, how is
9 that conflicted situation involved? Obviously, an investigating judge
10 could not be in the two places at the same time.
11 A. In the only way possible: The investigating judge would be
12 involved in an on-site inspection where he found himself at the moment
13 when the report was received, and he would leave the "asanacija" or the
14 on-site inspection to the police officials in the place for which he
15 received the subsequent report, the report on a dead body, because
16 objectively he could not be in two different places at the same time.
17 Very often, these two places would be at a very long distance from each
19 Q. And this was not something that was not very common at that time?
20 A. Yes, I agree with that.
21 Q. During your interview with the investigators of the OTP of this
22 Tribunal, you also spoke about the technical elements of criminal
23 proceedings. You mentioned DNA
24 modern world, the two are in common use.
25 Let's go back to the year 1995. What are your recollections with
1 regard to the technical compatibilities of the then-police force and the
2 investigating judges when it came to the scientific methods that you were
3 used then and comparing them with the modern methods used today?
4 A. Most of us in 1995 were aware of the DNA analysis; however, in
5 everyday police work, that methodology of the collection of valuable and
6 unquestionable evidence was not used. It was only a bit later that we
7 could employ trained people and all the necessary technology.
8 Today, as a result of that, the Croatian DNA centre - let me call
9 it that way because I don't know its proper name - is housed in the
10 hospital in Zadar. It is one of the most respectable DNA centres in the
11 territory of Balkan and wider area. But at the same time, the DNA
12 analysis was not in use in the police proceedings when it came to the
13 collection of valuable traces and evidence.
14 Q. There's another problem that you touched upon in your interview
15 with the OTP, which was the problem of a large number of unregistered
16 weaponry present at the time.
17 Can you tell us briefly what the problem involved?
18 A. This was a malignant problem at the time, a problem that the
19 Republic of Croatia
20 resolve it.
21 From the start of the homeland war, as our armed forces were in
22 the making, there must have been oversights and errors made in the
23 process of issuing individuals with weapons and making sure that they are
24 returned. As the war neared its end, as Croatia was liberated, members
25 of the public were also able to get hold of weapons. At the time, there
1 was a high fluctuation of weapons that changed hands. It was a serious
2 problem then and is a serious problem now in the Republic of Croatia
3 Q. Thank you. What I have in mind - and I'm perhaps suggesting the
4 answer there - is that at one scene of an incident, bullet casings were
5 found. Would it be possible to apply certain procedures to find out what
6 sort of weapon the bullets were fired from?
7 A. Yes. The best solution would have been for the bullet casings to
8 be immediately collected from the scene when the body was found, because
9 what happened in the meantime with the casings remaining there? They
10 were exposed to the natural extremities, they rusted, and once they were
11 found three, four, five, years later, their reliability would be highly
12 questionable in terms of a ballistic examination to determine which rifle
13 they were fired from.
14 JUDGE ORIE: Can I intervene for one second.
15 Apparently, Mr. Mikulicic, you're raising the issue that if there
16 is an lot of weaponry around which is not registered, that it might be
17 rather difficult to find a weapon for inspection, whether it matches with
18 the bullet casings found. That is clear even without putting a question
19 to the witness. I mean, if there is it no proper registration, it is
20 difficult. Even without the proper registration, it is also difficult,
21 unless you have all the characterize of each weapon stored in a central
22 system, which was not the case.
23 Of course, we earlier heard about that if you know that there is
24 a limited number of people in a certain area where it's registered what
25 weaponry they have used, that at least you have a limited number of
1 weapons that you could use to see whether they match.
2 That's all clear. So, apparently, you wanted to raise this
3 issue. That's at least how I understand your question. And from my
4 observations now, it may be clear to you that you don't have to go
5 through every step with the Bench of trained and professional Judges.
6 Apart from that, the matter has been raised several times already in this
8 Now, the witness starts answering on a totally different subject;
9 that is, that if the bullet casings are exposed to whether conditions,
10 then the quality may diminish. You just let the witness go explaining a
11 matter which was totally not what you apparently were seeking.
12 So, therefore, if you would keep better control over, first of
13 all, what we need to know and what is not yet there in evidence and what
14 is not yet therefore, I would say often, obvious, if you would focus on
15 that first.
16 Then, second, if the witness goes in a totally different
17 direction, if you would stop him for a second and say, "Well, I was not
18 talking about the quality of the material found, but I was talking about
19 a different thing," then we would certainly proceed more quickly.
20 I'm looking at the clock. I have one or two additional questions
21 for the witness.
22 Mr. Zganjer, in one question, you were asked about the
23 relationship between the state attorney and the investigating judge.
24 Could an investigating judge become active without a state attorney
25 triggering, initiating this activity?
1 Was the investigating judge dependent on the initiative taken by
2 the state attorney?
3 THE WITNESS: [Interpretation] The investigating judge becomes
4 fully involved from the point when the state attorney files an
5 investigating request before him against a person in respect of which
6 there are reasons to suspect that the person involved committed a crime.
7 This was a stage in the proceedings; and under the Croatian law,
8 that is what is properly termed "the investigation."
9 In the pre-criminal proceedings, the activities aimed at
10 identifying the perpetrator of a crime and gathering high-quality
11 evidence lay exclusively within the purview of the police and the
12 investigating judge. In this stage, the investigating judge decides upon
13 certain investigating actions that may constitute an encroachment upon
14 the rights of the citizens.
15 In other words, in the pre-criminal proceedings or in the
16 pre-criminal stage of the proceedings, only the investigating judge can
17 allow that somebody's home is searched, with a view to ensuring that the
18 police and the state attorney may find helpful evidence in this
19 particular residence.
20 JUDGE ORIE: Now, you explained for what activities an
21 investigating judge was needed. What I'd like to know is: Could an
22 investigating judge, on his own initiative or on the initiative of the
23 police, but without the intervention of the state attorney, for example,
24 during crime scene investigation; or was he dependent the initiative
25 taken by the state attorney?
1 THE WITNESS: [Interpretation] If an investigation has been
2 launched and it is led by the investigating judge and there was no
3 on-site inspection, the investigating judge can carry this out on his own
4 autonomous decision.
5 In the pre-criminal stage of the proceedings, the investigating
6 judge decides whether to carry out an on-site investigation or whether to
7 get involved in an on-site inspection, if the police informs him that a
8 body has been found in a certain location. It is then that the judge
9 makes a decision, goes to the site, and he is then the person who is
10 immediately involved in the investigation by carrying out, by leading an
11 on-site inspection.
12 However, I would like to add something to your question, if I
13 may. In the pre-criminal stage of the proceedings, the issue of the
14 detection of a perpetrator and collection of quality evidence is not a
15 primary interest of the investigating judge. It is primarily the
16 interests of the police and the state attorney who gives his quality
17 contribution in this stage of the procedure. This stage of the procedure
18 is not of special interest of the investigating judge. He expects other
19 bodies to submit to him all the quality evidence and the request to
20 instigate criminal proceedings against a certain person.
21 JUDGE ORIE: Yes. But I do understand that in the pre-criminal
22 investigations, that the activity of the investigating judge can be
23 triggered merely by being informed by the police. If you would disagree,
24 I would like to hear.
25 Mr. Mikulicic, I have another matter. You warned us -- but
1 perhaps I should first pay proper attention to whether the witness
2 disagrees or not. I should give him an opportunity to explain or
4 If you'd like to think it over, my question, then we would come
5 back to it tomorrow, Mr. Zganjer. We are a bit under time pressure.
6 THE WITNESS: [Interpretation] I would agree with you, Honourable
7 Judge, that, in the pre-criminal stage of the proceedings, an
8 investigating judge make decisions on going to the site of the crime upon
9 having received a police report that something extraordinary had happened
10 in a certain place.
11 JUDGE ORIE: Yes. Thank you.
12 Mr. Mikulicic, one issue. On P906 -- no, I should say D906, you
13 warned us -- that is the decree on the organisation and the work and the
14 domain of the judiciary in case of war. You warned us about translation
16 Now, looking at D908 which is the Law on --
17 MR. MIKULICIC: [Overlapping speakers] ... situation is concerning
18 all the documents.
19 JUDGE ORIE: Okay. Then that is it understood, because I noticed
20 that court martials are found there as well.
21 MR. MIKULICIC: [Overlapping speakers] ... mistake of the
23 JUDGE ORIE: Yes. Could you also perhaps have this translation,
24 for example, in D908, I noticed that the heading just above Article 13
25 says, in translation, it says "structure"; whereas, from what I can see,
1 it refers to structure of the judiciary or structure of the courts, so an
2 incomplete translation there, so could you ask for a very precise review
3 of the whole of the translation.
4 MR. MIKULICIC: I will do so, Your Honour, and we are expecting
5 the official translation within a short period of time which I could not
7 JUDGE ORIE: Yes. Then we adjourn for the day.
8 Mr. Zganjer, I would like to instruct you again that you should
9 not speak with anyone about the testimony, whether given already or still
10 to be given, and we'd like to see you back tomorrow morning at 9.00 in
11 the same courtroom.
12 We adjourn until Wednesday, the 12th of November, 9.00,
13 Courtroom I.
14 --- Whereupon the hearing adjourned at 1.53 p.m.
15 to be reconvened on Wednesday, the 12th day of
16 November, 2008, at 9.00 a.m.