1 Monday, 11 January 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.10 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in and around the courtroom. This is case number IT-06-90-T,
9 the Prosecutor versus Gotovina et al.
10 Thank you.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 First of all, the Chamber would like to convey its best wishes to
13 everyone in and around the courtroom. We hope that the technical
14 difficulties with which we started are not exemplary for what will be our
15 future in 2010.
16 After a relatively long break, the Chamber would like to inquire
17 whether there are any procedural matters to be raised with urgency. We
18 are not aware of any. I do not see anyone jumping up. So, therefore, I
19 would like to ask the Markac Defence whether it's ready to call its next
21 MR. MIKULICIC: [Interpretation] We are ready, Your Honour. Our
22 next witness will be Ms. Snjezana Bagic.
23 JUDGE ORIE: Yes. Could the witness be escorted into the
25 [The witness entered court]
1 JUDGE ORIE: Good morning, Ms. Bagic.
2 THE WITNESS: [Interpretation] Good morning.
3 JUDGE ORIE: You can hear me in a language understand?
4 THE WITNESS: [Interpretation] Yes, I can.
5 JUDGE ORIE: Yes. Ms. Bagic, before you give evidence in this
6 Court, the Rules of Procedure and Evidence require that you make a solemn
7 declaration that will you speak the truth, the whole truth, and nothing
8 but the truth.
9 The text is handed out to you by Madam Usher. I would like to
10 invite toy make that solemn declaration.
11 THE WITNESS: [Interpretation] I solemnly declare that I will
12 speak the truth, the whole truth, and nothing but the truth.
13 WITNESS: SNJEZANA BAGIC
14 [Witness answered through interpreter]
15 JUDGE ORIE: Thank you, Ms. Bagic. Please be seated.
16 THE WITNESS: [Interpretation] Thank you.
17 JUDGE ORIE: Ms. Bagic, are you the only one in this courtroom at
18 this moment who is deprived of the best wishes of the Chamber for this
19 year. I -- the Chamber would like to wish you all the best for 2010.
20 You will now be examined by Mr. Mikulicic. Mr. Mikulicic is
21 counsel for Mr. Markac.
22 Mr. Mikulicic, please proceed.
23 MR. MIKULICIC: Thank you, Your Honour.
24 Examination by Mr. Mikulicic:
25 Q. [Interpretation] Good morning, Ms. Bagic.
1 A. Good morning.
2 Q. Can you please give us your full name for the record.
3 A. My name is Snjezana Bagic.
4 Q. Ms. Bagic, given that we both speak the same language, I would
5 just like to remind you that for the benefit of our interpreters we try
6 to speak as slowly as possible and please try and make a pause between my
7 question and your answer. Thereby we shall facilitate the work for both
8 our interpreters and the court reporter.
9 Ms. Bagic --
10 MR. MIKULICIC: [Interpretation] But before that, I would like to
11 kindly ask the Registry to put up the document 3D00957.
12 Q. You're going to see the document which is actually a statement of
13 yours. You remember that in October last year you gave a statement to
14 the Defence team of Mr. Markac. Do you remember that?
15 A. Yes, I do. But only -- yes, now I see the text of my statement
16 on the screen.
17 MR. MIKULICIC: [Interpretation] Can we please go to the last page
18 of the statement, Mr. Registrar.
19 Q. We're going to show you the last page which contains a signature,
20 and I would kindly ask to you identify it.
21 In the right-hand corner, you see a signature. Is that your
23 A. Yes.
24 Q. Ms. Bagic, when you gave this statement and when you answered the
25 questions, did you speak the truth to the best of your recollection and
1 gave correct answers about all the events that were being discussed?
2 A. Yes, I spoke the truth, and I described the events to the best of
3 my recollection.
4 Q. If I were to ask you these same questions today that were asked
5 at the time when you gave your statement, would you give the same
7 A. Yes, I would.
8 Q. Ms. Bagic, during yesterday's proofing for today's testimony
9 after reviewing your statement, you have noticed certain correctness,
10 incorrectness; for example, you noticed that the date is the
11 29th of October, 2009. However, that's the date on which you actually
12 signed the statement, whereas, the interview was conducted on the
13 23rd of October, which you noted in your additional statement.
14 Another amendment was done in paragraph 7 of your statement that
15 you're referring to Article 9 instead that should be Article 2. Were
16 those corrections the ones that you pointed out to us yesterday?
17 A. Yes, these are the these corrections.
18 MR. MIKULICIC: [Interpretation] Could the Registrar please show
19 us the supplemental statement dated the 10th of January of this year,
20 with all these corrections.
21 Q. Ms. Bagic, do you recognise your signature in the lower left
23 JUDGE ORIE: [Previous translation continues] ... do we need the
24 supplemental information sheet? I mean, the two corrections have been
25 put on the record by the answers given --
1 MR. MIKULICIC: [Overlapping speakers] ... in fact now,
2 Your Honour, yes --
3 JUDGE ORIE: So we can do without.
4 MR. MIKULICIC: Okay. I agree.
5 JUDGE ORIE: Yes. Please proceed.
6 MR. MIKULICIC: [Interpretation]
7 Q. Yes --
8 A. I have it now.
9 Q. Apart of these two corrections that we have just mentioned, is
10 there anything else that you would like to change or amend or point out
11 to the Chamber?
12 A. I don't think so.
13 MR. MIKULICIC: [Interpretation] Mr. President, I would like to
14 tender Ms. Bagic's statement into evidence, please.
15 MS. GUSTAFSON: Your Honour, I'm not sure all of the steps have
16 been taken for 92 ter. I may have missed them, but ...
17 JUDGE ORIE: I think before the supplemental information sheet
18 was referred to --
19 MS. GUSTAFSON: I apologise. No objection.
20 JUDGE ORIE: Mr. Registrar.
21 THE REGISTRAR: Your Honours, this document becomes
22 Exhibit D1911, thank you.
23 JUDGE ORIE: And is admitted into evidence.
24 Please proceed.
25 MR. MIKULICIC: [Interpretation] Mr. President, I have prepared a
1 summary of Ms. Bagic's statement. And with your indulgence and after I
2 explained to her the purpose and the importance of this summary, I would
3 like to read it out.
4 Mrs. Snjezana Bagic is a lawyer by profession. At the moment,
5 she is the judge of the court. She graduated from the Faculty of Law in
6 Zagreb in 1983. Throughout her career she was involved in legal affairs
7 in the economy, in the judiciary, and in legislative bodies. For
8 example, she worked as a judge at the county court in Zagreb. She was an
9 advisor at the Ministry of Justice. She was the secretary of the
10 Ministry of Justice; deputy minister; head of the office for the
11 cooperation with the International Criminal Tribunal and the ICJ at
12 The Hague; and also head of the legislative office of the government of
13 the Republic of Croatia.
14 Ms. Bagic personally took part in drafting the bills of numerous
15 laws in the area of the property law, and, subsequently, in the
16 preparation of the government decree and the Law on Temporary Acquisition
17 and Management of specific property which, in fact, limited the rights of
18 the individuals who had left the territory of the Republic of Croatia
19 before, during, and after Operation Storm.
20 The reasons for adopting this regulation were twofold:
21 Primarily, there was a need to accommodate people, a large number of
22 returnees, expelled people and refugees from other parts of Croatia as
23 well as from abroad; and the second reason for passing this regulation
24 was the need for -- provide protection for the abandoned property and to
25 be protected from devastation, which was objectively possible and
1 feasible only by having it temporarily under the jurisdiction --
2 THE INTERPRETER: Interpreter's correction, having it put into
3 use and residential use.
4 MR. MIKULICIC: [Interpretation] This regulation did not -- did
5 not affect property rights. Therefore, we are not talking here about
6 confiscation of property, as was sometimes untruthfully described by
7 people who were not fully familiar with the content of this regulation.
8 The owners of the abandoned properties under this regulation had
9 their property rights limited within the function of ownership, which was
10 in line with the provisions of the constitution of the
11 Republic of Croatia and which later turned out to be a legitimate move
12 through the ruling of the European Court for Human Rights in Strasbourg.
13 This court, through its rulings, established that the restriction
14 of the ownership rights had been done with a legitimate aim and in the
15 interest of providing for the displaced persons, but it made a note that
16 certain flaws were detected on the part of Croatia, which is to provide
17 compensation for those who are unable to use their own property.
18 This was the summary of Ms. Bagic's statement. With your leave,
19 Mr. President, I would now like to move on with my direct examination.
20 JUDGE ORIE: Please do so, Mr. Mikulicic.
21 MR. MIKULICIC: [Interpretation]
22 Q. Ms. Bagic, today you work as a judge at the constitutional court
23 of the Republic of Croatia. In brief, can you please describe to the
24 Chamber and to everyone in this courtroom what is actually the role of
25 the constitutional court within the government structure of the Republic
1 of Croatia, and is this role today different from the one that existed in
2 1996, 1997, and the subsequent years and also before and during the
3 Operation Storm?
4 A. Yes, I am the judge with the constitutional court. I took up
5 this duties on the 7th of December, 2006.
6 This role hasn't changed either during the time of the
7 Operation Storm or today. It is prescribed by the constitution of the
8 Republic of Croatia and is elaborated more in detail on the
9 constitution -- in the constitutional law of Croatia.
10 It is believed that the constitutional court of Croatia has
11 jurisdiction over constitutional courts which have the broadest
12 jurisdiction compared to other European countries. However, I would like
13 to highlight two functions which in my mind are most important. That is,
14 abstract supervision and practical supervision.
15 We are overseeing both the constitutionality of laws and bylaws
16 and enactments and see that they are in line with the constitution.
17 In addition to this abstract supervision, the constitutional
18 court renders rulings on individual cases, whether they be judicial or
19 administrative, but eventually they have to end up before a court,
20 whether such ruling has violated any human or civic rights enshrined in
21 the constitution. So this constitutes a constitutional complaint, and in
22 that complaint the court specifies whether any such right had been
23 violated or not.
24 Q. Thank you for this answer. And this is a prelude to the question
25 that I'm going to ask you later during our conversation.
1 Just another detail in connection with the position of the
2 constitutional court: Is the position of the constitutional court in the
3 system of judicial power part of the judicial power something like a
4 supra appeals court, or is the position of the constitutional court
5 defined differently?
6 A. It's defined differently. The constitutional court considered --
7 [French on English Channel] ... regular court even though it is called a
8 constitutional court. So unfortunately, frequently, even among
9 professionals, this is mixed up.
10 [French on English Channel]
11 MR. MIKULICIC: [Interpretation] Your Honours, we have problems
12 with the interpretation.
13 JUDGE ORIE: Yes. I hear a switch from English to French and
14 from French to English rather frequently on Channel 4.
15 THE INTERPRETER: Apologies from the French booth.
16 JUDGE ORIE: I think matters have been corrected. We can
18 Please proceed, Mr. Mikulicic.
19 MR. MIKULICIC: Thank you, Your Honour.
20 Q. [Interpretation] So, Ms. Bagic, we had some technical problems so
21 I will ask you to repeat your answer from the part when you said that the
22 constitutional court is actually not part of the regular judicial
23 authorities but ...
24 A. The constitutional court is not part of the judiciary
25 authorities. In judiciary practice, it is considered to be an
1 intermediate body or the so-called fourth authority. And why? Because
2 with the power of its constitutional jurisdictions through the decisions
3 which it can make, it can supervise both the judiciary and the --
4 judiciary authorities and the legislative authorities.
5 Q. Ms. Bagic, we will now go back to your career that you were
6 focussed on during the 1990s, during the previous century, when you
7 worked in the Ministry of Justice and held various positions there.
8 We have mentioned in the summary of your statement, and I will
9 ask you to expand on this, that you took part in the preparation of
10 certain draft laws and league regulations. Can you describe to us in
11 brief what procedure this was. How is a law drafted, or a legal
12 regulation, in the Republic of Croatia?
13 A. I will try. I will attempt to be as brief as possible.
14 This is correct. In the Ministry of Justice, I started working
15 there in 1991, and -- in the administration of land and property affairs,
16 and I mainly worked in preparing and drafting regulations that had to do
17 with civil law.
18 If you allow for me a digression: We are talking here about the
19 period of transition in the Republic of Croatia from the moment of its
20 independence which implied the change of the entire social system and the
21 shift from the social property to private property and the democratic
22 system of the Republic of Croatia where the entire legislation needed to
23 be changed at some point. So it was a quite hectic period in the
24 legislation sense. And for jurists and lawyers it was very interesting
25 but also very challenging.
1 As for the preparation of regulations, when a certain regulation
2 or a law is prepared and drafted, as a rule, a body or a ministry within
3 the remit of which work these affairs come, has to draft it. So, for
4 example, the laws that have to do with railways are part of the duty of
5 the Ministry of Transport. And what had to do with legal affairs was the
6 duty of the Ministry of Justice.
7 Within the Ministry of Justice, the part or the department of the
8 Ministry which was in charge was the one whose duty it was generally.
9 For example, the administration for land had to prepare the regulations
10 that had to do with civil law regulations. As the state administration,
11 especially, certain departments did not have a sufficient number of
12 lawyers who could do this; I'm talking in particular about laws which
13 were absolutely new, such as the Law on Property, the Law on
14 Asset Seizure, and so on.
15 We had to establish working groups that were made up of
16 professionals such as professors from the faculty law, or colleagues from
17 Courts, from the bar association, and so on; and then these groups would
18 prepare the draft laws. And finally once the text of such a law was
19 drafted, so that it had the form of a draft law, the Ministry of Justice
20 or another state body would send it to the government of the Republic of
21 Croatia which would then discuss it in its professional bodies. It would
22 harmonise it with other regulations because other ministries could also
23 have some observations. If some regulations related to their remit of
24 work, the constitutional court would also say whether this was in
25 accordance with the constitution and other laws; and after all these
1 discussions and discussions within the government, such a draft law would
2 be adopted and then it would be sent as the proposal of the government to
3 the Croatian parliament for further discussion and eventual possible
5 Now, as for the further procedure of passing laws within the
6 Croatian parliament, as a rule, the discussion related to two readings:
7 First of all, it would be read as draft law; and then finally as a bill,
8 meaning the final proposition of a law. So the specific bodies of the
9 parliament would read it, and then a Plenary Session would also hold a
10 discussion when the MPs would voice their own proposals, and after the
11 end of this discussion they would voted for adoption of a draft law or it
12 would be turned down.
13 Fortunately, most often a draft law is adopted, then it's sent
14 back to the government to explain why this would be adopted or not, and
15 then again return it to the parliament in the form of a final bill. And
16 the dead-line for this was six months.
17 Q. Thank you for this explanation. We won't go further into the
18 procedure itself.
19 So it seems to me that you already answered, but let us clarify
20 this once again.
21 The entire procedure which you explained, the procedure about the
22 adoption of a law, seems to be a lengthy one. How long did it last on
24 A. It's difficult to say anything specific considering that this
25 depended not only on the importance and length of the text of the law.
1 However, most often, I would say that, on average, this would last
2 between eight and ten months.
3 Q. However, if, for the functioning of the state, there was a need
4 to regulate a specific area with an urgent procedure in the Croatian
5 structure of power, there is also a different procedure when the
6 government may adopt the so-called decrees.
7 Can you just explain to us in brief what the procedure was in
8 such cases?
9 A. I will try.
10 Yes, the government has the power which is defined by the
11 constitution to adopt decrees which have the power of laws. If you allow
12 me, there is just one difference or let me clarify something. The
13 government regularly has the power to adopt decrees and decree laws.
14 They are regularly adopted for implementation of laws. What are you
15 asking me about now is another kind of decrees; these are the so-called
16 decree laws, and the government may adopt them on the basis of the
17 constitutionally defined power that it has. It's a possibility that is
18 allowed that the government may adopt such decrees and regulate certain
19 areas with such decree laws, except certain issues that have to deal with
20 basic human rights and liberties or the structure of the government
21 bodies more at the state level and the local level.
22 So the government, when passing these decree laws, refers to a --
23 this regulation of the constitution. I think I will -- if I say it's
24 Article 87 of the constitution, I hope I am citing the right one. So the
25 government might regulate issues relating to the Croatian parliament, and
1 one of these issues has to do with the current economic policy.
2 These decree laws, according to the constitution and according to
3 this law, have limited effect, and they cease to be valid after one year,
4 unless the parliament changes it with a law that has identical or similar
5 contents even before the expiry of 12 months. So the government does
6 have the power to pass these regulations which we call decree laws.
7 MR. MIKULICIC: [Interpretation] If we could please see P476.
8 Q. Ms. Bagic, the subject of the -- this is a decree of the
9 Government of the Republic of Croatia, which was adopted at a session on
10 the 31st of August, 1995, and it's a decree on Temporary Takeover and
11 Management of certain property.
12 Do you have any personal knowledge of this decree? And do you
13 know the temporal and logical contexts in which it was adopted?
14 A. Yes, I am familiar with this. Namely, it's always good to recall
15 and here, in connection with what I said, it is mentioned that the decree
16 is passed on the basis of this authority of the government, and it was
17 adopted at the government session on 31st of August, 1995.
18 If you deem it necessary, I can explain the context in more
20 Q. Did you personally take part in drafting the text of this decree?
21 A. Yes, I did. Because, I had previously taken part in the
22 preparations and drafting of a law that had the exact same name. It was
23 the Law on Temporary Takeover and Management of certain property.
24 MR. MIKULICIC: [Interpretation] If, for a second, we could see,
25 D427, please.
1 Q. Ms. Bagic, I will show you now an exhibit which is already in
2 evidence. And this is the draft law which was submitted to the
3 parliament of the Republic of Croatia.
4 MR. MIKULICIC: [Interpretation] So I would ask the Registrar if
5 we could please move to page 3D00-0911; that is, the explanation of the
6 final draft of this law.
7 Q. On the left-hand side of the monitor you can see this explanation
8 of the final bill, which says that the Chamber of Deputies of the
9 Assembly of the Republic of Croatia at its 26th session on the
10 4th of July, 1995, adopted the conclusion accepting the bill on the
11 Temporary Takeover and Management of certain property.
12 If we look at the temporal sequence, then we can see as this was
13 on the 4th of July, 1995, when the Chamber of Deputies adopted this bill,
14 it was probably drafted earlier.
15 Can you remember when exactly this bill on the Temporary Takeover
16 and Management of certain property was submitted to the Croatian
18 A. If I remember correctly, this bill was submitted to the
19 parliament for discussion in the month of June, and it was adopted as a
20 proposal of the Croatian government. It was submitted to the parliament
21 for discussion. And then, depending on its agenda, it discussed it and
22 adopted it at this session held on the 4th of July, 1995.
23 Q. And now the procedure in the parliament which you have described
24 for us would follow. The first reading, second reading, sending it back
25 to the government, and so on and so forth, and a this is a procedure that
1 requires some time, of course.
2 However, in the meantime, what happened was that the
3 government --
4 MR. MIKULICIC: [Interpretation] And we could now return to the
5 previous document. And that is P476.
6 Q. That the government at its session held on the 31st of August,
7 that is to say before the parliament adopted this law, passed a decree on
8 the temporal takeover and manage of property with the same text that was
9 previously submitted to the parliament as a bill.
10 Could you please describe to us now what were the circumstances
11 that actually stimulated the government to react in this manner?
12 A. I will try.
13 If you allow me, I would first go back to the period that
14 preceded the drafting of this bill. Namely, I have already said that at
15 the time I was working in the Ministry of Justice in the administration
16 for property affairs and since the early 1990s I would say since the year
17 1990 onwards when the Republic of Croatia became independent from the
18 former Socialist Federal Republic of Yugoslavia and there were big
19 changes in all the newly established states, the pressures for the
20 population to move out had already begun because the population was
21 moving to the countries of their ethnic origin. Why am I mentioning
22 this? Because in the property administration there were many citizens
23 who would come from Vojvodina - later on also from Bosnia and
24 Herzegovina - particularly from the areas around Banja Luka, who had
25 houses or apartments there, others types of property and which they would
1 exchange with citizens from the Republic of Croatia. And they -- there
2 was an increasing number of these contracts on exchange which could not
3 really be implemented. I can only talked about citizens who did acquire
4 some immovable property in the Republic of Croatia.
5 As I already said, new regulations were being drafted. The newly
6 established countries had not regulated their relations. And the issue
7 was whether the signatures and the taxation that were determined in other
8 countries were now valid or not. There was a need to react to that, and
9 the Ministry of Justice would give its approval in terms of the validity
10 of these documents originating from other countries.
11 And after the Operation Flash in the spring of 1995 in the area
12 of Eastern Slavonia, there were more people who abandoned property. It
13 was not just exchange but people would just leave. The property was
14 abandoned. There was plunder. There was destruction. And really there
15 was an issue how to regulate this area legally in order to protect and
16 preserve the property on the one hand, and on the other, help the
17 citizens who, by selling or buying property or exchanging property,
18 wanted to really exercise their property rights.
19 The situation significantly changed because in the month of
20 August, after the Operation Storm, the -- the quantity of property that
21 was left behind, it was abandoned, whether the citizens left certain
22 areas because they had been temporarily occupied or they now, after the
23 liberation, went to the Federal Republic of Yugoslavia or to
24 Bosnia and Herzegovina the problems really increased. It was clear that
25 the property was abandoned, that things were being stolen, destroyed,
1 plundered; and there was an urgent need to maintain order.
2 I have to emphasise that the local authorities or the competent
3 bodies in these areas were not capable concerning this phenomenon of the
4 abandonment of property to react in a proper manner and protect this
6 This was also connected with another fact that with the increase
7 of people abandoning their properties, the number of other people,
8 refugees, who were left without property arrived in Croatia and we faced
9 the problem of providing accommodation for them.
10 Q. What you told us now, Ms. Bagic, was actually part of my next
11 question, which is: What was actually ratio legis of adopting such a law
12 with the identical wording? For that purpose, will you please look at
13 D8 -- 1823. That's the minutes from the 262nd closed session of the
14 Government of the Republic of Croatia held on the 31st of August, in
15 which members of the government explained the rationale underlining the
16 adoption of this regulation.
17 First of all, let me ask you: Did you attend this government
18 session on the 31st of August, 1995, when this decree was adopted?
19 A. No, I don't remember being there.
20 MR. MIKULICIC: [Interpretation] One moment, Your Honours, please.
21 It seems that we have a technical problem.
22 [Defence counsel confer]
23 MR. MIKULICIC: [Interpretation] It seems that we have some
24 problems with the marking of the documents. Therefore, I would kindly
25 ask the Registry to find the document, 05015. 65 ter -- yes, now we have
1 it on our screens.
2 Can we please move to page 3 in Croatian. That's 0614-2854.
3 Q. Ms. Bagic, I'm going to point out to you to the statement of
4 Mr. Nikica Valentic, who says as follows:
5 "Let's move to item 1, item 1 A and B, before I give the floor to
6 the vice-president Misetic, who had coordinated work on this law -- and
7 I'm talking about the Law on the Temporary Takeover, the second reading,
8 and the draft decree with the identical wording, I would like to draw the
9 government's attention to the fact that this is one of the most important
10 documents that the government is to adopt both from the legal and the
11 factual point of view and with respect to political implications.
12 "As you may have seen, it is actually about the necessity to
13 protect the property which de facto lost its proprietor, the property
14 worth billions, the property which is under no one's protection and which
15 is largely because of that partly burned and robbed, and unless this
16 property is not placed under the protection, it is practically impossible
17 to protect this property in this large area. We are fully aware of
18 possible political implications, and that is why we opted for the
19 solution that we deem to have factual, political, and legal
20 justification. That is why I would like to ask Vice-President Misetic to
21 elaborate on this law and this decree; and maybe I should explain why we
22 decided to come up with the this decree?"
23 "We have analysed the constitutional grounds thoroughly, and we
24 think that this decree does not contravene the constitution. But since
25 we will have a draft law in procedure before the parliament, the
1 parliament may, in its next or in the session after their next session,
2 pass the law, thus abrogating the degree; however, the decree is clearly
3 standing in lieu of the law before the law is passed."
4 After that, Mr. Bosiljko Misetic, the vice-premier at the time,
5 offered the following explanation and he says as follows on the next page
6 that -- this was about the property divided into several categories, and
7 there were also several categories of citizens, and then he lists in the
8 second paragraph the property of the citizens of Croatia who on the
9 18th of August, 1995, that is, the date on the aggression on the Croatia
10 had left Croatia.
11 The second type of property relates to physical and legal
12 persons, citizens of Serbia and Montenegro whose property is located in
14 And the third category refers to the property in the occupied
15 regions which in the Croatian operation for the liberation of these
16 regions their proprieties left Croatia.
17 Bosiljko Misetic went on to say that the purpose of adopting this
18 law is to manage this property in a good way, in order to avoid
19 irreparable damage caused to the property and to provide in -- by
20 properly using and managing this property, ensure that a large number of
21 citizens, primarily Croats, who had been expelled from other parts of
22 Yugoslavia by the Serbs.
23 And on the next page, this is what Mr. Misetic says, line 10 from
24 the top -- seventh line from the top, this is what he says:
25 "The final proposal of the coordinating bodies for internal
1 affairs and of all" --
2 THE INTERPRETER: Interpreters didn't get on their screens the
4 MS. GUSTAFSON: I apologise for interrupting, but the -- at
5 line 17 the sentence wasn't completed when it was read what
6 Mr. Bosiljko Misetic said. It was primarily Croats who had been expelled
7 from other parts of Yugoslavia by the Serbs would benefit from this
8 property is how the sentence ends in English.
9 JUDGE ORIE: Would you agree with that to be the text of that
10 sentence, Mr. Mikulicic?
11 MR. MIKULICIC: Yes. Let me see. The final proposal ...
12 JUDGE ORIE: There also was an issue --
13 MR. MIKULICIC: Yes.
14 JUDGE ORIE: -- with the interpreters not having on their screens
15 the translation, as you may find on page 19, line 22 and 23.
16 MR. MIKULICIC: I agree for the first.
17 JUDGE ORIE: Perhaps you --
18 MR. MIKULICIC: [Overlapping speakers] ... Ms. Gustafson, I could
19 repeat the --
20 JUDGE ORIE: Perhaps you repeat the sentence in its entirety with
21 an accurate switch from one page to another.
22 Please proceed.
23 MR. MIKULICIC: I will do so, Your Honour.
24 Q. [Interpretation] So this part of the text that was not translated
25 reads as follows:
1 "The final proposal of coordination for policy" --
2 THE INTERPRETER: The interpreters don't have that, and we are
3 interpreting as we are hearing the counsel reading.
4 JUDGE ORIE: Yes.
5 MR. MIKULICIC: Well --
6 JUDGE ORIE: The interpreters, they interpret, as they're
7 expected to do, from your reading, Mr. Mikulicic.
8 MR. MIKULICIC: I think it's okay.
9 JUDGE ORIE: Do we now have -- Ms. Gustafson, are you satisfied
10 that we have the ...
11 MS. GUSTAFSON: I put it on the record, I'm happy with that. I'm
12 just not sure where we are now in the document.
13 JUDGE ORIE: Yes.
14 MR. MIKULICIC: We are now just on the Croatian part of the
15 document, on the seventh line on the level -- on the left screen. The
16 sentence begins with the word "Konaci prijedlos." So the final proposal
17 should be in English.
18 JUDGE ORIE: Yes.
19 MR. MIKULICIC: But I don't -- I cannot see the English text.
20 MS. GUSTAFSON: I think it's at the bottom of page 3 in English.
21 JUDGE ORIE: Yes. Although we do not have the English on our
22 screens at this moment. You may proceed. Your words, as pronounced,
23 have been translated, Mr. Mikulicic. Please proceed.
24 MR. MIKULICIC: [Microphone not activated] It's -- on English text
25 it's on the third page, the fifth line from the bottom which begins with:
1 "Final proposal."
2 Okay we see it now. So it's the fifth line counting from the
3 bottom. Yes, where the cursor is standing now.
4 So should I read it again, Your Honour?
5 JUDGE ORIE: I don't think that there's any need.
6 MR. MIKULICIC: Okay.
7 JUDGE ORIE: Apart from the fact that the document is in evidence
8 and so is the translation.
9 Please proceed.
10 MR. MIKULICIC: Thank you.
11 Q. [Interpretation] I would kindly ask you, given that you took part
12 in the preparation of the law and that you have now seen how the
13 vice-premier at the government session explained the rationale
14 underlining this adoption, according to your understanding and the
15 principles that you were guided by in drafting the law, is this how this
16 procedure was conducted?
17 A. Yes. It seems to me that this corresponds with the procedure,
18 how this was done. And I think that between these two laws there was a
19 decree. Mainly jurists from the ministry, from the faculty of law, and
20 other ministries of the government of Croatia -- of Croatia took part in
21 this, and they had to analyse which of these provisions would be
22 constitutionally accepted and well founded.
23 We were aware that our constitutional, no matter how recent it
24 was, and we were practically learning about private property and what
25 guarantees are attached to it. However, this is not an absolute right.
1 It is subject to certain limitations, but that could only be done by
2 means of a law under the circumstances which, for example, require the
3 protection of the Republic of Croatia.
4 Secondly, when a law or a decree were being drafted, we never
5 discussed seizure of ownership or the right to property in any way
6 whatsoever. But since this was abandoned property and its owners were
7 away, we came up with the idea of a limited use of property. We just
8 then had to find an acceptable legal framework which would incorporate
9 this kind of limited restriction of property rights, in a way by allowing
10 third persons who are also part of the law to temporarily use such
12 MR. MIKULICIC: [Interpretation] I would now ask the Registry to
13 show us Exhibit P476, which is the decree itself.
14 Q. You said, Ms. Bagic, that ownership is a category which is
15 defined by the Croatian laws and that this -- this decree did not
16 derogate or abrogate the ownership but only limit it?
17 A. Yes.
18 Q. I am not sure whether your whole answer was completely
19 interpreted. Can you please repeat what kind of limitation was envisaged
20 by this decree?
21 A. This decree put this property under temporary management. When
22 we are talking about individual property rights, it affected ownership
23 because it allowed for a possibility for this property, pursuant to the
24 decision of competent bodies and commission, to be given to third parties
25 for temporary use. This was a targeted group of people that we are
1 talking about here. These are expellees, refugees, families of the
2 fallen fighters from the homeland war, and other such individuals.
3 I will try, I'm sorry.
4 Q. Let us now look at Article 2 of this decree, paragraph 2, which
6 "From the date this decree comes into force, property situated in
7 the territory of the Republic of Croatia owned by the individuals who
8 left the Republic of Croatia after August 17th, 1990, property in the
9 occupied area of the Republic of Croatia which is situated in the
10 territory of the Federal Republic of Yugoslavia (Serbia and Montenegro)
11 or in the occupied area of the Republic of Bosnia and Herzegovina and
12 which has not been used personally by the owners since the day they
14 So here we see the definition of both the property and the
15 individual relating to it, and it stretches back to the 17th of August,
16 1990, which is the date of the aggression against Croatia which was
17 referred by Mr. Misetic at the government session.
18 In terms of this decree, the term "property" shall mean all
19 movable and non-movable property.
20 From the point of view of legislative solution, can you please
21 explain this?
22 A. The temporary administration as this defines it, included
23 immovable property, meaning houses and land, and also the movable
24 property that belonged to such property, because there were situations
25 when somebody would just come somewhere, enter, take machinery or tools,
1 steal them, misappropriate another person's property, in other words. So
2 the reason, the purpose was that when immovable property was given for
3 use to certain categories of persons who were meant to live there and
4 also make a living, then in order to protect the property to prevent the
5 misappropriation or theft in this way by allowing these people to use it,
6 and this is why the decree covered both immovable and moveable property.
7 Q. Let us now look together on the next page in the Croatian text,
8 Article 4, which envisages the establishing of commissions in
9 municipalities or towns which had concern tasks.
10 Can you tell us anything about the task of these commissions, in
11 terms of this decree or bill which it later became?
12 A. Yes. Namely, the assessment was that the local authorities and
13 the local population would best be able to recognise what property this
14 related to and implement this law so that in towns and municipalities,
15 commissions were set up which primarily had to list the property in
16 question, the property that was covered by this law, and that was to be
17 considered abandoned.
18 In addition to listing the property, establishing what is the
19 property that this law or decree covers, they had additional authority,
20 and that was to give this property for use to categories which are listed
21 in Article 5 - I think I already mentioned this - these were targeted
22 groups, because we are talking about circumstances where we had a refugee
23 crisis at the time in the Republic of Croatia. We had a huge inflow of
24 refugees of returnees who had no accommodation. And this is why this
25 decree and law explicitly related only to these categories of people.
1 All other categories of people could not be covered by the decree or it
2 would be illegal if that was done.
3 Likewise, when the commissions made the decisions to give
4 property for use to these categories, they were also obliged to make an
5 Official Note about the condition of the property at the moment when it
6 was temporarily allowed for use to temporary users.
7 The work of the commissions was directed by the ministry of
8 renewal which had to check if everything was working all right. If there
9 were any problems between various local authorities, if there were any
10 difficulties in the interpretation and the implementation of this decree
11 by certain of these commissions.
12 Q. So we see in Article 4 in the penultimate paragraph that one
13 representative each from the Ministry of Development and Reconstruction,
14 Ministry of Reconstruction, Ministry of the Interior, Minister of Labour
15 and Social Welfare, Ministry of Agriculture and Forestry, Office of the
16 Government of the Republic of Croatia for Expelled Persons and Refugees,
17 the public legal office, the municipal or town government, as well as
18 other representatives, if necessary, would be appointed to the
20 Can you tell us what was the reason because of which the decree
21 envisaged the composition of the commission in this way, why there would
22 be members of the state ministries on the one hand and also
23 representatives of the local community?
24 A. This was done because it seemed necessary at the time, and it
25 seemed to be a pragmatic solution, because on the one hand the
1 representatives of the local community were the ones who best knew the
2 circumstances in their own areas; and on the other hand, the state was
3 about to take over the administration of the property. So if it did so,
4 it also had to take measures to ensure the implementation of all this and
5 the protection of this property. This was also an extraordinary and a
6 complex situation, and it was deemed necessary that all the relevant
7 government bodies, the ministries, should also have their representatives
8 in these commissions.
9 On the one hand, the reason was to protect the interests of the
10 state and the protection of the property by exercising the role of the
11 state; and on the other hand, so that these representatives of the
12 highest body, that is to say the ministries, could implement the decree
13 or law as best as possible in cooperation with the representatives of the
14 local community.
15 Q. You have already said that the property was listed. And in
16 Article 4, in the third paragraph, it is mentioned that the list of
17 property is to be submitted to the ministry of development and
18 reconstruction which would then take care of the property.
19 Ms. Bagic, what was actually the purpose for a ministry to keep
20 the record of the property which was in this way placed under the
21 administration of the state?
22 A. It seemed necessary to centralise the lists and to have unified
23 records in one place so that by such inspection and supervision, all
24 possible disharmony, abuse, and problems could be prevented and so that
25 this could be regularly checked.
1 Q. In Article 5 of this decree, it is mentioned that the commissions
2 referred to make decisions by which they would allow the expelled persons
3 and refugees to use such property and that appeals could be filed with
4 the Ministry of Justice against these decision but which would not stay
5 the execution of the decisions.
6 From your experience, were there any cases when the ministry
7 would decide on these appeals? How frequent was this phenomenon as far
8 as you remember?
9 A. Yes, appeal with the Ministry of Justice was allowed. In my
10 experience, as far as I can remember, there were some complaints or
11 appeals submitted to the Ministry of Justice. However, the number of
12 such complaints was not great, because they were just authorised persons
13 who could submit them, and there weren't too many of such complaints
14 against the decisions.
15 Q. So the Ministry of Justice was the one who decided about these
17 A. Yes.
18 Q. Was there any other form of protection as regards the decision of
19 the Ministry of Justice about the complaint?
20 A. When the decree was implemented and the Law on the Temporary
21 Takeover of Property was implemented, the Law on General Administrative
22 Procedure was also implemented. So if there was a party that was
23 dissatisfied, it could file an appeal to an administrative court and ask
24 for the protection of its rights or try to overturn this decision in
25 front of an administrative -- before an administrative court.
1 Q. This was the so-called court control of administration; is that
3 A. Yes.
4 Q. Let us look now at Article 7.
5 It provides that persons who were given property for possession
6 had to manage it well, protect it from third parties, and had all the
7 authority that would belong to the owner himself or herself, and that
8 they could utilise any income generated by the property for their own
10 Paragraph 2 provides that the persons who have been allocated the
11 property for use could not dispose of the real estate which constitutes a
12 part of the property, that is to say they could not sell it, exchange it,
13 lease, rent, make it available for use by paying or non-paying parties,
14 or incumber it with a mortgage or any other liability, and could not use
15 the vehicles or cattle without the approval of the commission mentioned
16 in Article 4 of this decree.
17 And then, further on, it says that legal contracts which were
18 concluded and that were contrary to this decree were invalid.
19 Can you please comment on what this actually meant in practice
20 and how it was implemented?
21 A. This provision was aimed at reinforcing the protection of the
22 rights of the owners by specifying quite clearly that the person who was
23 allocated the property and who could be using it temporarily could not
24 actually dispose of this property in any way, simply because this person
25 was not the owner.
1 On the other hand, when the person was temporarily using the
2 property and possessed it for a temporary period, then the person was
3 obliged to manage it as well as possible. It was also allowed because
4 these persons had no income whatsoever and we were aware that these were
5 mostly expelled persons and refugees, persons who were unemployed or were
6 receiving social welfare, so if they could generate any income, then they
7 were allowed to use this income for their own needs. And that then,
8 because they were using and possessing this property, they had the right
9 to prevent any attempts to use this property illegally.
10 Q. If it happened anyway that the person who was allocated the
11 property for his or her use sold the property to a third party, what
12 would be the validity of such a contract defining the sale?
13 A. In paragraph 3 of Article 7 it says that any such legal
14 transactions would be considered null and void, so the owner could
15 request that it be determined that such a legal transaction was null and
16 void. It would be considered non-existent, but legal proceedings would
17 have to be initiated in order to determine the fact that this transaction
18 was null and void.
19 Q. Let us look at Article 10 of this decree now. It says that if
20 the owner of the property referred to in paragraph 1 of Article 2 returns
21 to the Republic of Croatia within 30 days of this decree coming into
22 force and seeks restitution, the commission, referred to in Article 4 of
23 this law, shall quash the decision.
24 Can you please explain for us this provision which mentions
25 30 days as a dead-line, and what was the rationale to envisage such a
1 dead-line in the decree?
2 A. The decree envisaged the 30 days dead-line, that is more or less
3 one month, for the owner to return and seek restitution, that is to say
4 the possession and in fact the use of his or her property.
5 One could ask, especially from the perspective we have at this
6 point of time and our later attempts to resolve the issue of property of
7 refugees and expelled persons, whether this dead-line was too short or
8 too long, how realistic was it. At the moment when the decree was
9 drafted, the intention was to resolve the relations as soon as possible.
10 So by setting up this dead-line, we wanted to allow the owners to return
11 as soon as possible and seek the restitution so that people could come
12 into possession of their property as soon as possible, and then the state
13 would know what was the segment of the property that could still be
14 temporarily administered by the state and used by the temporary users.
15 Q. Let us look at Article 11 which says:
16 "Ownership of the movable property referred to in Article 2 of
17 this decree."
18 And if we looked at Article 2, it's described there what this has
19 to do with. It cannot be acquired by appropriation or occupation.
20 Can you please comment on --
21 JUDGE ORIE: Mr. Mikulicic, I'm looking at the clock. We are
22 close to 10.30. You are apparently starting with a new subject. If you
23 would be able to finish that in two or three minutes, fine. If not, then
24 I would suggest that we would leave it until after the break.
25 MR. MIKULICIC: Indeed, Your Honour. I think it's --
1 JUDGE ORIE: Yes.
2 MR. MIKULICIC: -- much more possible to continue after the break
3 with this topic.
4 JUDGE ORIE: Yes. Then apart from that and before having the
5 break, Mr. Mikulicic, reading your summary, I read - and I'm referring to
6 page 6, line 18 and following - it says:
7 "This regulation did not, did not affect property rights.
8 Therefore, we are not talking here about confiscation of property as was
9 sometimes untruthfully described by people who were not fully familiar
10 with the content of this regulation."
11 This is -- where do we find this in the statement which is here
12 summarized? Because I had difficulties in finding any comment of this
13 witness on --
14 MR. MIKULICIC: Your Honour --
15 JUDGE ORIE: -- whether other people described unfruitfully,
16 people not being fully familiar with the content of there regulation.
17 I had difficulties in finding this in the statement of the
19 MR. MIKULICIC: Your Honour, we will come to that topic in my
20 further --
21 JUDGE ORIE: No.
22 MR. MIKULICIC: -- examination.
23 JUDGE ORIE: My question is where do I find it --
24 MR. MIKULICIC: I think literally you cannot find it in the
1 JUDGE ORIE: Where do we find it substantially?
2 MR. MIKULICIC: No, I think you cannot find it. You're right,
3 Your Honour.
4 JUDGE ORIE: Yes. Then you are mixing --
5 MR. MIKULICIC: It was, rather, context.
6 JUDGE ORIE: No, it's not rather context; it's mixing in your own
7 opinion in what is presented as a summary of a witness statement, which
8 is not what this Chamber expects you to do. A summary is a summary of
9 what is found in the witness statement --
10 MR. MIKULICIC: I understand.
11 JUDGE ORIE: -- and not your own comment on matters and your own
12 implicit comment on familiarity from others - we do not know exactly who,
13 and --
14 MR. MIKULICIC: But I will go through that topic in further
16 JUDGE ORIE: That's fine. But my observation is primarily a
17 procedural one.
18 MR. MIKULICIC: I apologise, Your Honour. You are perfectly
20 JUDGE ORIE: We have a break, and we resume at five minutes to
22 --- Recess taken at 10.31 a.m.
23 --- On resuming at 11.05 a.m.
24 JUDGE ORIE: Mr. Mikulicic, you may proceed.
25 If you enter into the area you earlier said you would like to
1 deal with, that is, about whether or not the legislation affected the
2 title of ownership, then I'd first like to verify whether there's any
3 dispute about what this legislation, in formal terms, says about
4 ownership, because it could well be that there's no dispute about certain
6 Please proceed.
7 MR. MIKULICIC: Thank you, Your Honour.
8 Q. [Interpretation] Before the break, we quoted Article 11 of the
9 decree, and I will reiterate it. It states that concerning the movable
10 property from provision 2 of the Article, property rights cannot be
11 enjoyed by virtue of occupation.
12 This is what you were trying to tell us about the abandoned
13 properties where some agricultural machinery was found as well as
14 household appliances.
15 Can you tell us what was the reason to specify this in the
16 decree, that is to say that no property rights could be enjoyed by virtue
17 of occupation of such movable property?
18 A. This provision pertains only to movable property. It has nothing
19 to do with immovable property. Why did the legislature deem it necessary
20 to make this distinction? Because our law about property rights is the
21 basic law which prescribes title of ownership that was in force at the
22 time. It stipulated that that immovable property cannot be considered to
23 change ownership by virtue of occupation.
24 However, no such a provision was found in the law concerning
25 immovable property. Therefore, it was believed to be necessary to
1 prevent such actions as well, in order for anyone to gain anyone's
2 property by virtue of occupation, the property that was given to that
3 particular person to use. That is why this particular provision was
4 inserted into the law.
5 Q. Article 14 of the decree states that there will be a separate
6 law -- shall be issued concerning the ownership of property placed under
7 administration pursuant to the provisions of this decree that has not
8 been restored to its owner.
9 What was the idea behind this provision?
10 A. The decree and the law did not address the issue of ownership in
11 the sense of taking away such property rights, save for the
12 limitations -- save for the issue of use by a third person. Based on our
13 previous experience, when there were swaps of property between those
14 citizens moving among the different countries which came about as a
15 result of the break-up of Yugoslavia, and even from today's standpoint,
16 we believe that it was quite unrealistic that situation could be
17 ascertained within the legal limit of 30 days.
18 In order for the rightful owners to enjoy their rights and to use
19 the properties involved, we wanted to regulate this segment as well by
20 law in order to prescribe a way in which people could make use of such
21 property in cases in which owners wanted to sell their property, change
22 that for another piece of property, or do whatever with it they wished
24 MR. MIKULICIC: [Interpretation] Could we please have D689 next.
25 Q. As we said, this decree came into force when it was published in
1 the Official Gazette and adopted by the government on the
2 31st of August, 1995.
3 Ms. Bagic, you see another document before you, which is a legal
4 analysis of this decree drafted by the Centre for Human Rights of the UN.
5 We can see that this draft was provided by Ms. Maida Pasic. It is dated
6 the 23rd of October, 1995.
7 First of all, I'd like you this [as interpreted]. Did you have
8 occasion to see this document before?
9 A. No.
10 Q. I wanted to direct your attention to certain portions of the
11 document through, some aspects of this legal analysis.
12 MR. MIKULICIC: [Interpretation] Hence, we should go to item 2 at
13 page 3 in the Croatian; and item 2, page 1D40-0501 in the English.
14 Q. In item 2 of this legal analysis, we find the following:
15 "There is no legal basis for putting the property of citizens who
16 are currently outside the territory of Croatia," referring to Article 2
17 of the decree.
18 "Under the temporary governing of the Republic of Croatia, since
19 the decree starts from a wrong supposition that the property in question
20 is deserted. Namely, in order to consider a property deserted, it is
21 necessary that its owner, in a doubtless way, expresses a will that he
22 does not want to keep it anymore."
23 Ms. Bagic, this seems to involve the legal qualification of an
24 abandoned property. Do you agree with this interpretation drafted by the
25 Centre for Human Rights of the UN?
1 A. I do not. Because that type of property, in view of all of us
2 who worked on that law and given the factual situation in that area, it
3 was abandoned. It involved thousands of persons who had left that area
4 to go to some other occupied parts of Croatia or to the FRY or other
5 former Yugoslav republics, perhaps even Bosnia and Herzegovina. That
6 property was vacant and there was no one to take care of it.
7 Q. The issue of qualifying a piece of property as abandoned, is that
8 a legal or a practical issue?
9 A. A definition of an abandoned property can be a legal issue, but
10 it must, as far as I'm concerned, be linked to the factual situation.
11 Certainly, in individual cases, the owner can ask for a different
12 qualification in order to prove that this was not an abandoned piece of
14 Q. Let us go down item 2 in paragraph 4, which states:
15 "It is obvious that the decree, de facto, implements the process
16 of confiscating property in the spirit of revolutionary law. It
17 represents not only the violation of basic legal provisions but also an
18 attempt to implement a chauvinist policy and to legally regulate the
19 ethnic cleansing which had taken place. It is also based on the
20 abandoned "tradition" of the 50-year experience with a general act. All
21 Serbs not currently living in the territory of Croatia are deprived of
22 their report, regardless of the fact that the formal legal question of
23 property is not mentioned."
24 Ms. Bagic, as a person working on the law and decree, do you
25 agree with this legal view?
1 A. I do not. Because when the law and the decree were being worked
2 on, we strove to be as careful as possible about the issue of property
3 and its inalienability. That is to say the category of property and
4 ownership rights should not be brought into question in terms of
5 temporary use by third parties.
6 I don't know whether I am allowed to add something else
7 concerning this topic.
8 Q. Please go ahead.
9 A. The term "confiscation of property" is used in the spirit of
10 revolutionary law, based on the tradition of 50 years' experience.
11 The Republic of Croatia, as a part of the former Yugoslavia, was
12 a state with a Communist regime in force as well as socialism and public
13 ownership. The institute of property confiscation was familiar to us, as
15 Furthermore, in the period of transition in Croatia as well as in
16 many other encounters of central and eastern Europe at the time,
17 legislation was being drafted which would enable return of property once
18 seized. There were 42 different pieces of legislation that was used in
19 the former Yugoslavia to confiscate and take away property. One such law
20 precisely went to property confiscation. Property was taken away from
21 their rightful -- from the rightful owners, becoming publicly owned
23 Q. Which period do you have in mind?
24 A. I apologise if I am being unclear. It was at the time when
25 property was taken away in the former Yugoslavia, right after
1 World War II, starting with 1945 until 1958. It is believed that the
2 procedure of taking away property was completed and its transfer to the
3 public hands was rounded off by that time.
4 Q. Therefore, you mean the period of confiscation when, after
5 World War II, the socialist powers took away property from former owners?
6 A. Yes.
7 Q. Does this decree have anything to do with that type of legal
8 procedure which, at that time, was termed "confiscation"?
9 A. It is my firm belief that it has nothing to do with it. I say so
10 because at the time --
11 JUDGE ORIE: Before we continue, the text you read says what the
12 factual effect is, not what the legal basis for it is. So, therefore, to
13 compare the confiscation legislation as it existed in previous periods to
14 compare with this, where there is not even a suggestion that the
15 ownership has been affected in a formal way doesn't make -- doesn't seem
16 to make much sense, Mr. Mikulicic.
17 MR. MIKULICIC: With all due respect, Your Honour, I was
18 referring to the part of the text which says:
19 "It is obvious that this decree, de facto, implements the
20 confiscation of property in the spirit of revolutionary law."
21 JUDGE ORIE: Yes, de facto.
22 MR. MIKULICIC: Yeah.
23 JUDGE ORIE: Not de jure, but de facto. That's exactly why I
24 said that it might not be of great assistance to this Chamber to compare
25 the legal basis of this piece of legislation with, if I could say, the
1 Communist legislation. Because that's not what is suggested here. It's
2 suggested here that it has a similar effect, that you couldn't enjoy your
3 property anymore. That's at least how I read this comment, especially
4 where it says that even the ownership is not even mentioned.
5 There seems to be - but I'm also looking at you, Ms. Gustafson -
6 is there any dispute about that formally, unlike what happened in the
7 past, that formally the ownership is not directly affected by this piece
8 of legislation?
9 MS. GUSTAFSON: No, Your Honour.
10 JUDGE ORIE: Mr. Misetic.
11 MR. MISETIC: Mr. President, I have a difficult time with the
12 Prosecution saying that there is no dispute on this issue. I believe -
13 and I'm looking at the transcript at the 92 bis ruling, this is at page
14 17615, line 20:
15 "The Chamber relied on at 92 bis that Galbraith also testified
16 about laws on confiscation of property which required those who had left
17 Croatia to return within a short period of time or risk loosing their
19 So there is -- and then if we look at Mr. Galbraith' testimony -
20 this is at page 5129, beginning at line 21 - Mr. Galbraith testified
22 "Croatian actions was to confiscate property of people who did
23 not return in 30 days and then it would be settled. The plan was this
24 would then be settled as part of the overall settlement of claims between
25 Croatia and Yugoslavia in which these Croatian citizens who, in Tudjman's
1 words, were "optanci," their property claims would be settled as part of
2 an overall settlement, which, in effect, would give them nothing."
3 Now that's the Prosecution's case in chief, and we're getting
4 into -- in my opinion, getting into a semantics now about the definition
5 of confiscation. And I think the prosecution's case in chief clearly was
6 that people's -- there was a plan to take people's property. In the
7 context of settlement of claims between Croatia and Yugoslavia, these
8 people would receive no compensation. That was Mr. Galbraith' testimony.
9 Now, de facto, de jure, et cetera, I think it's relevant evidence
10 to show what was the intent of the drafters of the legislation - this
11 witness apparently has knowledge of it - and we can argue later about
12 what is or isn't confiscation, but confiscation was the word used by the
13 Chamber on the 92 bis ruling.
14 JUDGE ORIE: The mere use of the word "confiscation," of course,
15 is not a decisive matter in this respect because I don't think that with
16 Mr. Galbraith we went through all the legal technical aspects of what
17 this legislation was.
18 And when I earlier said de jure, de facto, that might exactly be
19 the issue. And if the witness could tell us something about the intent
20 but then in the full context. I never opposed against exploring that. I
21 was just figuring out whether there's any dispute, whether this
22 legislation, this piece of legislation, in its de jure effect, would
23 have, as a consequence, that the ownership would be lost. Because that
24 seems to be -- not be disputed.
25 And, Ms. Gustafson, may I take it that if you rely on the
1 testimony of Mr. Galbraith about confiscation that it's not in the
2 technical sense but in the end effect the de facto result of what this
3 legislation might have brought about?
4 MS. GUSTAFSON: That's correct, Your Honour.
5 JUDGE ORIE: Thank you.
6 Let's then proceed on this basis.
7 MR. MISETIC: Mr. President, just so -- for the record - and we
8 have consulted about this - we're not sure how can you confiscate
9 property de facto. I mean, either have you a legal ownership right in
10 something and have been -- been given a compensation or denied or you
11 haven't. I don't see how you can de jure not have something confiscated
12 but de facto it has been confiscated.
13 We can say you have been denied use of your property, but that's
14 not confiscation.
15 JUDGE ORIE: And if do you that effectively for a longer period
16 of time, it may not be confiscation in the technical term, but some
17 people could look at this as having the effect of --
18 I mean, what's ownership? What's ownership if you can't enjoy
19 the ownership of something?
20 MR. MISETIC: That is precisely confiscation de jure. You've had
21 your property seized without compensation.
22 JUDGE ORIE: Well, it -- this seems to be a legal debate --
23 becomes a legal debate, and the only thing I was looking at is whether
24 the technical way in which the ownership and the guardianship of matters
25 abandoned or not abandoned or half abandoned by another entity, whether
1 it was understood by the Prosecution and whether there's any dispute
2 about that formal ownership would be affected by that legislation as it
3 was adopted at the time. I'm not talking about the long-term political
4 aims, et cetera, but -- and there seems to be no dispute.
5 MR. MISETIC: Yes. But just so that he with are all on the same
6 page. The Prosecution's case, as far as we understand it, is that
7 property was confiscated. Whether they dispute that title didn't change
8 hands, that may be a different issue. But there is a dispute about
9 whether there was confiscation. As -- using your definition, Mr.
10 President, of seizure of property without compensation for an extended
11 period of time.
12 JUDGE ORIE: Yes. I am -- I was not, at that moment, giving the
13 final legal definition on a matter. It might be that we -- but
14 certainly -- I mean, the issue which seems to be clear, and I asked for
15 the Prosecution's position in relation to this matter in order to avoid
16 unnecessary hearing of evidence.
17 Ms. Gustafson, not to say that the Prosecution has the last word,
18 but anything you would like to add or ...
19 MS. GUSTAFSON: No, Your Honour.
20 JUDGE ORIE: Then, Mr. Mikulicic, may this serve as guidance for
21 your further examination.
22 Please proceed.
23 MR. MIKULICIC: Thank you, Your Honour.
24 Q. [Interpretation] Can we now look at item 4 of this document.
25 It's on the next page in both versions, where it reads:
1 "The decree of the government of the Republic of Croatia
2 represents an act of discrimination against the citizens of Croatia since
3 the universal declaration of human rights, (Article 13), and the
4 international covenant of civil and political rights, (Article 12),
5 explicitly foresee that 'everyone has the right to leave any country,
6 including his own, and to return to his or her country.'"
7 Ms. Bagic, in this decree that we have just been commenting upon,
8 can you find any provisions testifying to the existence of discrimination
9 against citizens of Croatia with regard to their return to the country?
10 A. No, I cannot.
11 This decree and the later law did not have that effect. It
12 referred to the property of all citizens whose property was abandoned and
13 not used personally by them, that the law and the decree did not have any
14 discriminatory provision as was confirmed later by a Court in 1997 and
15 also by subsequent case law by -- of the Court for Human Rights, the same
16 was confirmed.
17 Q. Do you therefore agree with this legal view as stipulated in
18 item 4?
19 A. No, I do not agree. I honestly don't understand on what basis
20 they have drawn this conclusion, from which provision.
21 Q. And now, finally, let's look at the conclusion of this legal
22 analysis. It reads in the last paragraph:
23 "Bearing in mind all the above-mentioned, it is obvious that this
24 decree does not regulate the disposal of the -- the legally based
25 disposal of the property but that it is -- it represents a biased act of
1 the state which takes away the property in a way most similar to
2 confiscation. This decree is violating numerous international norms,
3 particularly Article 17, which says that everyone is in entitled to
4 ownership than no one can arbitrarily be deprived of it. In addition,
5 this decree opens the way for discrimination on the basis of national and
6 ethnic background in its purest form. The decree is contrary to the
7 constitution of the Republic of Croatia. Therefore, Croatia is bound to
8 annul the decree immediately."
9 Ms. Bagic, regardless of our previous discussion about the
10 definition of "confiscation," we have here another term which is the
11 seizure of property. How would you comment this decision to seize the
12 property in a legal sense?
13 A. With respect to what you have read to me now, I already said that
14 I cannot understand or find the basis on which the author of this
15 document reached such a conclusion; namely, neither in the preparation
16 nor in the provisions of this decree and the later now nor in their
17 implementation in practice can one conclude that the implementation of
18 this decree, in practice, boiled down to the confiscation of property.
19 I have -- feel the need to underline this once again. This
20 provision does not imply the seizure or the taking away of the right of
21 ownership. What we are dealing here is the limitation of ownership which
22 we thought to be embedded in the law, and the purpose of it was to
23 protect the interests of the Republic of Croatia.
24 We put limitation only on one property right which is the
25 disposal of ownership which he could not exercise. And why? Because, at
1 that time, this property was abandoned; the owner wasn't using it; and
2 there was the need to provide shelter for refugees and other displaced
3 people. As I said, the constitutional court ruled on this in 1997. And
4 later on, the same ruling was passed by the European Court.
5 Q. We'll go back to this topic now. I would like to ask you to look
6 at this part of the conclusion which says that this decree implements the
7 discrimination on the basis of national and ethnic background.
8 Do you see any base for such an opinion?
9 A. No, I don't. Because both the decree and the law speak about
10 property, deserted property not used by the owners personally,
11 irrespective of their ethnicity.
12 Q. Thank you for this answer.
13 MR. MIKULICIC: [Interpretation] Can we please now look at
14 document that we saw before, that's D427.
15 That's a draft or a bill of the law submitted to the parliament
16 of the Republic of Croatia in June on the temporarily taking over and
17 governing of property. And also it contains the rationale for the
18 provisions contained therein.
19 In the Croatian version, can we please look at page 3D00-0911.
20 In the English version that's page 9 in e-court.
21 Q. Here, the proposing party provides the rationale to the
22 parliament for adopting this law, and they speak about the two reasons
23 that were -- that they were driven by. And that is to protect the
24 property from misappropriation, and, on the other hand, there was the
25 need to provide accommodation for returnees in this property. However,
1 towards the bottom of the page in the last paragraph, there is mention of
2 a third reason and I would kindly ask you to listen to this.
3 It is no less important the need to have in the formally occupied
4 territories of the Republic of Croatia revitalise the economy which is
5 impossible without proper professionals.
6 How would you comment this specific reason that is stated here as
7 the basis for adopting this law?
8 A. In addition to these two fundamental reasons that we already
9 discussed, i.e., the protection of the property and providing
10 accommodation to refugees during the crisis, the refugees who had lost
11 their property or their property was damaged, it was clear already at
12 that point that the return of the population to the formally occupied
13 territories and now liberated territories would not be possible without
14 revitalisation of the economy in the area and without creating the
15 conditions for employment.
16 There was no electricity supply; industrial facilities were
17 demolished et cetera. Therefore, there was no encouragements for the
18 citizens to return because there were no jobs secured for them. That is
19 why certain professionals were required to return there in order to get
20 the economy going and thereby secure the return of the population who
21 will be able to provide for themselves by earning for living. This was
22 later introduced by introducing the Law of Social Welfare in 1996.
23 Q. If we now turn to the next page and look at another portion.
24 Here, the second passage and first passage in English reads as follows:
25 "I therefore propose the limitation of ownership rights and
1 placing abandoned property that is not being used personally under
2 administration and giving it to other persons for possession and use in
3 order to preserve it, to secure the subsistence of other persons through
4 its use, and to help the economic and social renewal of the previously
5 occupied and now liberated areas of the Republic of Croatia."
6 And now an it goes on to say:
7 "It is undoubtedly in the interests of Republic of Croatia, so
8 the conditions set out in Article 50, paragraph 2 of the constitution of
9 the Republic of Croatia for the adoption of this law has been fulfilled."
10 Can you just briefly tell us what Article 50, paragraph 2 of the
11 constitution says with regard to the implementation and adoption of this
13 A. Whenever we speak about property rights and the exercise of
14 property rights, a question of the limit and constitutional acceptability
15 of the use of this right is being posed. Article 50, paragraph 2, among
16 other things, allows exceptionally and only under the law can property
17 rights be restricted if it is necessary to protect the interests and
18 security of the Republic of Croatia. The Government of Croatia, and for
19 us, who, as legal experts participated in the drafting of this provision,
20 and I'm talking both about the decree and the law, pursuant to
21 Article 50, paragraph 2, we thought that that was an appropriate
22 constitutional foundation, under the given circumstances when Croatia was
23 in war, when we had a huge number of properties abandoned, that we had so
24 many people who were expelled, we thought that it would be appropriate to
25 limit the ownership rights by invoking Article 50, paragraph 2.
1 MR. MIKULICIC: [Interpretation] For the reference, the
2 constitution of the Republic of Croatia has been admitted into evidence
3 as Exhibit D1779.
4 Can we now move to the next page where this is an explanation for
5 Articles 5, 7, and 9 of the law.
6 Q. In paragraph 3, it says also imposed are limitations with regard
7 to the disposal of this property. This implies those powers that
8 lege lata belong only to the owner of this property. That is why it
9 is -- therefore, all legal transactions entered into by the person to
10 whom the property had been given for use shall be null and void. And
11 pursuant to Article 9, this property may be taken away from that person
12 that had received it temporarily for use, if he acts contrary to the
13 provisions of this law or does not exercise due care.
14 These commissions that included the representatives of local
15 communities, did they supervise or oversee how the people who were
16 granted the use of the abandoned property exercise this right? How did
17 they use it?
18 A. Yes, one of the tasks of the commissions was to supervise within
19 their respective remits whether the temporary owner was using it in
20 accordance with the law. It was their duty to act if they received any
21 report or a claim that the temporary owner was not using the property in
22 accordance with the law.
23 Q. In paragraph 4, commenting on Article 8, it says that this law
24 introduces only administration -- sequestration by the
25 Republic of Croatia of the property, referred to in Article 2 of the law,
1 which means that the owner of that property will not be stripped of his
2 ownership. Article 50, paragraph 1 of the constitution is not applied.
3 However, on the basis of Article 50, paragraph 2 of the constitution, his
4 property right will be restricted. These restrictions on property rights
5 are regulated by Article 8, paragraph 1.
6 MR. MIKULICIC: [Interpretation] Can we now move to the next page
7 which -- where we have the explanation of our paragraph -- of Article 16.
8 It's the bottom of the page in Croatian. That's right. That's item 9.
9 And in English, can we also please move to the next page.
10 Q. Item 9, commenting Article 16. It reads:
11 "Since the issues governed by this law were regulated
12 de lege lata by the decree on the Temporary Takeover and Management of
13 certain property ... adopted by the government of the Republic of Croatia
14 as part of its legislative powers, the decree shall become null and void
15 on the day this law enters into force."
16 Ms. Bagic, this is a procedure, actually, that you described
17 before when we have a law coming into force in lieu of a decree.
18 A. Yes.
19 MR. MIKULICIC: [Interpretation] Could we please see the
20 document D422.
21 Q. This is the Official Gazette of the Republic of Croatia in which
22 laws and other regulations are published and in which this document of
23 the 27th of September, 1995, it was published here. It was the law
24 adopted by the Croatian parliament about the temporary taking over and
25 administration of specified property, and recently we saw the bill.
1 MR. MIKULICIC: [Interpretation] If we could please see Article 11
2 of this law.
3 Q. Which reads:
4 "If the owner of the property, under Article 2, paragraph 1 of
5 this law," that is to say, abandoned property, "returns to the
6 Republic of Croatia and claims this property for his restitution and use
7 within 90 days from the date of entering of this law into force, the
8 commission, under Article 4 of this law, shall reverse the decision under
9 Article 5 of this law."
10 So we can see that the time-limit of 90 days is mentioned here,
11 as compared to the decree which had the time-limit of 30 days.
12 Can you please comment on that?
13 A. The dead-line was expanded from 30 days, as in decree, to
14 90 days, because -- at least that's how it seems to me now from this
15 point in time, because it turned out that it was not realistic that an
16 owner could return within such a short time-span of 30 days and asked a
17 restitution of his or her property. There were objective difficulties
18 because there were great migrations of the population. One could not
19 reach the owner because it was not known where the new address where he
20 or she was residing was. The traffic between the countries was also
21 difficult. So it seemed logical and necessary to extend the dead-line,
22 and this is why, here in Article 11, this time-limit for claiming the
23 restitution of property was extended to 90 days.
24 Q. So this was happening, as we said, on the
25 27th of September, 1995, that is to say, a month after the decree had
1 been adopted.
2 MR. MIKULICIC: [Interpretation] Let us now look at document P475.
3 Q. This is a law, the Law on Amendments to the law that we just had
4 a look at, the Law on the Temporary Takeover and Management of certain
6 The law was amended on the 23rd of January, 1996, that is to say,
7 roughly five months after its adoption. And please, Ms. Bagic, focus on
8 Article 1, paragraph 2, which says, it changes Article 11 of the law in
9 terms of the time limitation and says:
10 "The issue of returning in possession and use of property which
11 is under the ownership of persons from Article 2 of this law will be
12 regulated by the agreement on the normalisation of relations between the
13 Republic of Croatia and the Federal Republic of Yugoslavia."
14 So we can see that the dead-line of 90 days, which was envisaged
15 by the previous law five months earlier, was declared null and void by
16 this provision. And it is mentioned here that this issue would be
17 regulated by the agreement on the future normalisation of relations
18 between the Republic of Croatia and the Federal Republic of Yugoslavia.
19 Could you please comment on this provision of the
20 Law on Amendments?
21 A. During the implementation of this law, it turned out that
22 whatever the dead-line was, that the dead-line was not realistic because
23 there were such objective difficulties that one could not set any
24 dead-line and then request the owner to request the restitution of his or
25 her property. And perhaps the conclusions and impressions were wrong, so
1 it was better to remove the dead-line and allow the owner to request
2 restitution once he returns.
3 That was one of the reasons.
4 Another reason was that the two countries, the
5 Republic of Croatia and the Federal Republic of Yugoslavia, had already
6 been begun negotiations at the time. The relations were being
7 re-established, and the issue of the return of refugees was a matter of
8 interest of any country where they were, including also
9 Bosnia and Herzegovina and not just the Federal Republic of Yugoslavia.
10 It was a regional issue - not to say a regional problem - and only with
11 mutual cooperation it could be resolved, the cooperation between two or
12 later on three countries.
13 Therefore, by this Law on Amendments to the previous law, this
14 dead-line was abolished, and it was provided that the issue would be
15 further regulated by the agreement on the normalisation of relations.
16 Let us now look at this agreement on the normalisation of
17 relations which is included in the document D412.
18 MR. MIKULICIC: [Interpretation] D412.
19 Q. And just to find our bearings in time, the law that abolished the
20 dead-line was passed in late January 1996, and it refers to the adoption
21 of the agreement between the Republic of Croatia and the
22 Federal Republic of Yugoslavia.
23 MR. MIKULICIC: [Interpretation] could we please move further on
24 in this document because the agreement on normalisation that I referred
25 to is an integral part of this document. Unfortunately, I don't have
1 this version in front of me, but ...
2 Just a second, please.
3 Yes. Now we see the right text.
4 Q. This is the agreement on normalisation of relations between the
5 Republic of Croatia and the Federal Republic of Yugoslavia dating from
6 the 23rd of August, 1996.
7 Under Article 7 of this agreement --
8 MR. MIKULICIC: [Interpretation] Could we please have Article 7 on
9 the screen. It is on the next page.
10 Q. It reads:
11 "The contracting parties under -- shall ensure conditions for
12 free and safe return of refugees and displaced persons to their places of
13 residence or other places that they freely choose. The contracting
14 parties shall ensure to these persons the return of their property or a
15 just compensation."
16 Ms. Bagic, can you please comment on this provision of
17 paragraph 1 of Article 7 of the agreement as compared to the earlier
18 legal solution that had to do with the dead-line, in accordance with the
19 Law on a Temporary Takeover and Management of Property?
20 A. In this paragraph 1 of Article 7, the contracting parties
21 confirmed and they obliged themselves that they would implement the
22 provision of the unalienable right of the owner to take possession of his
23 or her property. That is to say, if the owner returns and wishes to have
24 the property restituted, that this be allowed. And there is an addition
25 which was new as compared to the laws, and that was the right to just
1 compensation. Namely, in accordance with the general principles of
2 international law, the agreement says that if, for whatever reason, it
3 was impossible for the owner to exercise his or her right, that then he
4 certainly had the right to a just compensation.
5 Q. Let us look a bit further down on the next page of this document
6 where, in paragraph -- which is the first on the page, and that's
7 paragraph 5, reads the following:
8 "Each contracting party shall guarantee the same legal protection
9 to the property of physical and legal persons having the citizenship of
10 the other party, that is, being seated in the territory of the other
11 party, as the one enjoyed by its own citizens, that is, its legal
13 And further on, it reads in the next paragraph:
14 "Within six months from the date of entry into force of the
15 present agreement, the contracting parties shall conclude an agreement on
16 compensation for all destroyed, damaged, or lost property. Such
17 agreement shall define the procedures for the realisation of the right to
18 fair compensation, which shall not include court proceedings."
19 It seems, Ms. Bagic, that the agreement also went one step
20 further as compared to the Law on the Temporary Takeover of property,
21 especially in terms of the fair compensation for property that was
22 destroyed and also in terms of the protection of the property of both
23 physical and legal persons.
24 Can you please comment on this, in brief?
25 A. Yes. It did go one step further, and I think that paragraph 5 is
1 quite clear. It guarantees that the treatment of property of physical
2 and legal persons will be equal, equal for everyone regardless of the
3 country from which they are coming.
4 This agreement on the normalisation of relations, and this
5 includes paragraphs 5 and 6, by contrast with the Law on the Takeover of
6 Property which relates to the property of physical persons, provides
7 these guarantees also for the property of legal persons. What I feel the
8 need to emphasise is that in this agreement on the normalisation of
9 relations, the commissions that were set up for the purpose of this met
10 regularly. They dealt with the issues of the property of physical
11 persons, the property of refugees, an exchange of informations with lists
12 of persons, and enabling people to restitute their property.
13 I wanted to mention this because the purpose of the agreement and
14 in particular of Article 6 was more extensive than the decree and law
15 that we were talking until now; namely, the purpose was to conclude an
16 agreement that would also relate to all destroyed, damaged, or lost
17 property and colloquially it was called the agreement on war damage. The
18 fact is that until the agreement was reached -- the agreement was never
19 reached, and the commissions stopped working. One of the reasons could
20 be that later on, as is well known, all the former countries that were
21 formed after the break-up of the Yugoslavia reached the agreement on
22 succession, which regulates under Annex G the issue of this property.
23 Q. Let us look together at the document D425 now. And to give the
24 temporal context, this agreement between the Republic of Croatia and the
25 Federal Republic of Yugoslavia was concluded in August 1996, that is to
1 say, roughly, one year after Operation Storm, and it regulated the issues
2 that we have just discussed.
3 In the meantime, in the Republic of Croatia, certain procedures
4 were initiated, and they had to do with the implementation of the Law on
5 the Temporary Takeover on property. And some of these proceedings ended
6 up before the constitutional court of the Republic of Croatia, and this
7 had to do with the role of the constitutional court which you described
8 to us in your introduction.
9 Now I'm showing you a decision of the constitutional Court dating
10 the 25th of September, 1997, so a year after the agreement was concluded,
11 and this discussion has to do with the Law on Temporary Takeover and
12 Management of certain property.
13 Ms. Bagic, you are familiar with this decision, I suppose?
14 A. Yes, I am.
15 Q. Can you please briefly interpret this decision of the
16 constitutional court and its importance.
17 A. It seems to me that this was an important decision, because it
18 had to do with the complex issue of ownership and the limits that the law
19 allowed on how to limit it. The constitutional court, acting on the
20 proposal of several parties, initiated the procedure to establish the
21 validity of the Law on Temporary Takeover and Management of certain
23 In its decision, the constitutional Court, because these were the
24 proposals --
25 Q. Please excuse me. You mentioned that the procedure was initiated
1 by certain persons, including --
2 A. That was the State Prosecutor of the Republic of Croatia.
3 Q. Can you please tell us what this function is, as this part of
4 your answer was not interpreted.
5 A. Yes, I'm sorry.
6 The state attorney is the institution that most closely relates
7 to the ombudsman function. In some western European countries that have
8 this institution, his task is to protect the rights and interests of the
9 citizens, if he believes that they have been violated or jeopardised by
10 some activities of any authorities.
11 So the constitutional court assessed the constitutionality of the
12 law as a whole and also of some of its particular provisions, and the
13 guiding principle was what the proposing parties mentioned in their
15 While making the decision about the constitutionality of the law
16 as a whole, because that was the primary issue, it took into account
17 primarily the goals and the purpose of this law in the context of the of
18 the relevant provisions of the constitution and also the convention
19 rights, because the European Convention was part of our internal legal
21 So deciding on the constitutionality of the law as a whole,
22 finding that the purpose of this law was temporary management of the
23 property for the sake of its protection in the light of the extraordinary
24 circumstances extant at the time when so much of this property was
25 abandoned, on the one hand; and, on the other hand, that there was a
1 necessity and a need to protect this property on the one hand and also to
2 accommodate a huge number of expelled persons and refugees. The
3 constitutional court established that the law as a whole is not
4 unconstitutional, that is to say that it did not violate the
5 constitutional principles under Article 14 and 50 -- Article 50,
6 paragraph 2 of the Constitution of the Republic of Croatia and also the
7 European Convention, especially Protocol 1 additional to the
8 European Convention which relates to property.
9 If you allow me to say, the constitutional court at the time
10 addressed individual provisions and their constitutionality. The
11 constitutional court itself, in its ruling, underlined that they failed
12 to review these provisions as well because there were some indications
13 that there were isolated cases of the violation or abuse of this law.
14 Therefore, the constitutional court raised the issue of the definition of
15 abandoned property and the limits imposed on the temporary uses, and they
16 reviewed these provisions as well.
17 The constitutional court found out that in light of all the
18 then-prevailing conditions in which these norms were adopted and the
19 reasons underlying this adoption, these provisions were also not contrary
20 to the constitution, and they also met all the requirements from
21 Article 50, paragraph 2 of the constitution.
22 The law -- the constitutional court reviewed this -- these
23 provisions within the time-frame, and they took into account its
24 temporary nature. They said that with the passage of time, if the
25 conditions continued to exist, these provisions might be -- continued to
1 be implemented, there will be a need then for them to be reviewed and
2 revised. However, in their further analysis of other provisions, the
3 constitutional court found that some of them were unconstitutional and it
4 rescinded these provisions. These rescinded provisions are Article 8 of
5 the decree and the law.
6 Article 8 of the law imposed a ban on the owner to dispose of his
7 or her property while it was being temporarily used which means that he
8 was not allowed to sell it or swap it or to do anything with it.
9 Although the law itself, according to the constitutional court,
10 was in line with the constitution, they nevertheless decided that this
11 kind of limitation of the ownership rights while it was temporarily used
12 by somebody else without any compensation is not in line with Article 50,
13 paragraph 1 of the constitution, and this provision was also revoked.
14 Also, Article 9, paragraph 2 of the law, as well as paragraph 4
15 of Article 11, were rescinded, which stipulates that while the property
16 is under temporary management, the temporary user cannot be evicted.
17 Therefore, even when the decision on the use is revoked, he
18 cannot be evicted before he is found an appropriate accommodation. The
19 court found that this kind of procedure was permissible, but preventing
20 the owner to return to its property without setting a time-limit, they
21 found to be unconstitutional, and they also rescinded.
22 Also, Article 11, paragraph 2, which was the amended provision
23 which stipulated that the restitution and the use shall be governed by
24 the agreement between Croatia and the Federal Republic of Yugoslavia, but
25 the court rescinded this, only the portion that referred to the citizens
1 of Croatia who went to live in the Federal Republic of Yugoslavia or
2 Bosnia and Herzegovina, having found that that would constitute
3 discrimination against other citizens. And according to Article 32 of
4 the constitution, all citizens are entitled to chose where they are going
5 to live.
6 That is why the constitutional court found that this was
7 constitutionally permissible, but, nevertheless, it decided to rescind
8 certain provisions from the law.
9 MR. MIKULICIC: [Interpretation] Your Honours, we have a slight
10 problem in the translation of the function that the witness mentioned,
11 that is, the function of the Public State Prosecutor.
12 It was translated as the Public State Prosecutor. However, the
13 witness explained that the public defender function is something like an
14 ombudsman. And it was translated in the same way in the ruling of the
15 constitutional court that you see on the right-hand side of your screens.
16 I am saying this just for the record.
17 Can we now look at document D424, please.
18 Q. So, time-wise, we see that this constitutional court's decision
19 was taken in September. And we see that the Croatian parliament adopted
20 a law on -- to rescind the Law on Temporary Confiscation and Control of
21 certain property.
22 It says that as regards the procedures relating to temporary use
23 and management of property governed by the Law on Temporary Use and
24 Management of Property will -- it will apply a programme of return of
25 refugees and displaced persons.
1 Therefore, this programme of the return basically supercedes this
3 Can you please explain to us the motives that the legislators
4 were driven by in adopting this enactment?
5 A. Well, the intention was to make the whole process of return as
6 effective as possible. That meant that the procedures relating to the
7 return of citizens and the procedures for restitution of property should
8 be governed in -- should be defined in more detail, should become more
9 practical and pragmatical, and should provide a more simple
10 implementation. This will make it more clear for all those who were
11 applying for the protection of their rights under this document.
12 In cooperation with the international community, we decided that
13 we should adopt a document that would not be a law but, rather, a
14 programme, and that would be a better way to accomplish this goal.
15 Q. Thank you.
16 MR. MIKULICIC: [Interpretation] For the record, I would just say
17 that we are going to ask for the certification of this document, because
18 in the English translation in e-court it says that it is the Law on the
19 Temporary Confiscation.
20 Let us now look at document D428, please.
21 Q. The Law on the Temporary Takeover was not in force any longer,
22 and it says that all these procedures will be governed or will be part of
23 the programme of return of refugees and displaced persons. And this
24 programme, we can see now on our screens, as document D428. And it was
25 adopted in June 1998.
1 In item 5, we see that the government has drafted this programme
2 in cooperation with the UN agency and with the support of the OSCE. In
3 other words, the international community.
4 MR. MIKULICIC: [Interpretation] Can we please look at item 10 of
5 this document, which is on page 3 in the Croatian text.
6 I'm sorry, item -- actually, page 4 in Croatian, item 9 in
7 Croatian; and in English, page 4, item 9.
8 Q. The persons with Croatian papers who are owners of property in
9 Republic of Croatia, in whose property other people are temporarily
10 housed, can apply and report to town or municipal housing commissions and
11 file requests for restitution.
12 So this is what it says under item 9.
13 MR. MIKULICIC: [Interpretation] It's page 7 in English.
14 Q. While we are waiting for the English version to see, let us say
15 that we are talking here about people in whose property other people are
16 living; may approach city and municipal housing commissions with requests
17 for restitution of their property; the housing commission shall, within
18 five days, inform the owner in writing about the status of their
19 property; and on the basis of proof of ownership, the housing commission
20 shall, within seven days, make a decision overruling the decision on
21 temporary use and shall request of the temporary occupant to vacate the
23 On the next page we see what happens if the temporary user fails
24 to vacate the property. Then the housing commission shall file a
1 So this is this programme of return with the deadlines stipulated
2 where the burden of the procedure is on the housing commission, including
3 the filing of complaint and filing charges, actually.
4 Why did the government decide to adopt this solution?
5 A. This covers various situations regarding the returnees. The
6 portion that you read refers to the situation that relates to the Law on
7 the Takeover and Temporary Use of Property. It confirms that the owner
8 is at any time free to come and ask for restitution. By setting up these
9 time limits, we wanted to establish a structure for the owner, once he
10 comes back, to re-acquire his property as soon as possible. Unlike some
11 previous solutions provided in the law, this decision that rescinds the
12 decision issued to the temporary users says that, quite clearly, that the
13 temporary user shall vacate the property within a certain period of time.
14 Now the question arises: What happens if the temporary user
15 fails to comply with this request? Then it will be referred to a court
16 of law. The owner is, at all times, allowed to request the temporary
17 user to vacate his property. However, having in mind that we are talking
18 about the property that had been under the temporary administration by
19 the government for the reasons that we explained earlier, it was believed
20 that the state also has an obligation to initiate court proceedings
21 through housing commissions, ensure to vacate the property, and ensure
22 that the rightful owner will gain his ownership or get restitution.
23 Another reason was, dare I say, a pragmatic one, because the
24 owners are people who always need legal assistance, and if they once
25 embark on legal proceedings, it always take a long time.
1 There is also an issue of the jurisdiction of the courts that
2 used to be in the occupied territories. There were either no judges in
3 those courts or there were no land registers there. That did not make it
4 possible for these proceedings to be conducted in an expeditious way.
5 That is why yes thought that housing commissions are better placed to
6 deal with these matters.
7 Q. Just one question more before we break.
8 It says here that the court is going to resort to an abridged
9 proceedings, that the decision will be final, and that the decision will
10 not stay the execution of that decision, that is to say, the restitution
11 of property.
12 Is that consistent with what you said about the role of the
14 A. Yes, because that was both in the interests of the government and
15 of the owner, for him to get restitution as soon as possible. And for
16 that purpose, certain provisions have been transferred and allowed to be
17 conducted in a speedy way and that any appeal will not stay the execution
18 of this decision.
19 MR. MIKULICIC: [Previous translation continues] ...
20 JUDGE ORIE: Mr. Mikulicic, your last words, I couldn't hear them
21 because translation was still continuing. So, therefore, I missed you --
22 but I take it that you wanted to suggest to have a break now.
23 MR. MIKULICIC: That's right, Your Honour.
24 JUDGE ORIE: Yes. We will have a break, and we will resume at
25 ten minutes to 1.00.
1 --- Recess taken at 12.31 p.m.
2 --- On resuming at 12.54 p.m.
3 JUDGE ORIE: Mr. Mikulicic, you may proceed.
4 MR. MIKULICIC: Thank you, Your Honour.
5 Q. Ms. Bagic, in your testimony, on several occasions, you mentioned
6 the Court for Human Rights, the European Court in Strasbourg.
7 Briefly, in relation to Croatian legislation, can you tell us
8 what procedure needs to be followed for someone to be able to apply to
9 the court for Human Rights in Strasbourg?
10 A. For someone to apply or complain to the court in Strasbourg, in
11 individual cases, all domestic legal means must have been exhausted.
12 That is to say, all regular legal remedies must have been exhausted in
14 After a first-instance court decision, an appeal must be
15 submitted, and a request for revision must be made after a
16 second-instance decision to the constitutional court --
17 THE INTERPRETER: Interpreter's correction.
18 THE WITNESS: [Interpretation] -- to the supreme court in Croatia
19 as the highest court instance.
20 Such a person also needs to invoke protection before the
21 constitutional court in Croatia, after which, a complaint can be made to
22 the European Court for Human Rights.
23 MR. MIKULICIC: [Interpretation] Could we please go to the 65 ter
24 document 3D00180.
25 Q. I will show you a decision by the Court for Human Rights in the
1 case Kunic versus Croatia.
2 First of all, are you familiar with this decision of the
3 European Court?
4 A. Yes, I am.
5 Q. Could we go through the -- through a part of this decision
7 MR. MIKULICIC: [Interpretation] In paragraph 64 in the electronic
8 version; it is page 12 in the English. And in the Croatian version it is
9 3D00-1185, paragraph 64.
10 Q. The title of that paragraph is:
11 "The Court's Assessment."
12 In paragraph 65 -- sorry, let's start with paragraph 64. It is
13 states therein that:
14 "In the court's view, there has indisputably been an interference
15 with the applicant's right to property as his house was allocated for use
16 to another person and he was unable to use it for a prolonged period of
18 The Law on Temporary Taking Over of Property was enforced in this
20 In item 65 it is stated:
21 "The court further notes that the applicant was not deprived of
22 his title. Therefore, the interference complained of constituted a
23 control of use of property within the meaning of second paragraph of
24 Article 1 of Protocol I."
25 In paragraph 66 it is stated, and I will ask for your comment:
1 "The court considers that it does not have to decide whether the
2 very fact of giving the applicant's house to a third person was justified
3 under Article 1 of Protocol I to the convention. Even assuming so, the
4 situation became significantly different once the applicant instituted
5 the relevant proceedings for repossession of his house, thereby making it
6 clear that he needed it for himself and his family. In those
7 proceedings, the domestic authorities recognised the applicant's right to
8 repossession, issued an order ordering the temporary tenant to move out,
9 hence instituting the procedure for returning the property. It only
10 needs to be established whether this practice was contrary to Article 1."
11 It is clear from this quotation that the European Court for Human
12 Rights itself believed that it was not in dispute, that by virtue of the
13 decision of Croatian government the rightful owner was not denied his
14 property rights. This tallies with what you are already said.
15 Can you provide any further comments?
16 A. Indeed, it corresponds to what we have been discussing so far.
17 It seems to me that it also invokes the position of the constitutional
18 court in their decision of 1997, which I mentioned previously. The
19 constitutional court did not find the law to be unconstitutional,
20 although it revoked certain of its provisions because they did not meet
21 the standards of limitation of property rights as envisage the under the
23 In this individual case, this was further elaborated in some
24 decisions of the European Court for Human Rights, including this one. I
25 believe it is clearly stated that this was no case of taking away
1 property rights in the sense of Protocol I, Article 1. The legitimate
2 goal of the governmental action was within the law. However, a new
3 moment is introduced by the European Court and that is the question
4 whether the realisation of such a procedure met the high standards it had
5 to. This was a natural evolution which evolved from the law through the
6 implementation of the programme and onwards. And in individuals cases,
7 it needed further monitoring.
8 Some of those cases were brought before the European Court. This
9 new standard is set in a number of decisions including this one. It is a
10 question of whether, in individual cases, because of the prolonged period
11 during which the property in question was not being returned, whether
12 such instances were against Article 1, Protocol I.
13 Q. It is the decision of the 11th of January, 2007?
14 JUDGE ORIE: Ms. Gustafson.
15 MS. GUSTAFSON: I'm -- I apologise for the interruption. I
16 just -- I should have objected earlier, but I didn't get a chance before
17 the witness began her answer.
18 The question was:
19 "It is clear from this quotation that the European Court for
20 Human Rights itself believes that it was not in dispute that by virtue of
21 the decision of the Croatian government the rightful owner was not denied
22 his property rights."
23 And I just want to put on record that I don't believe that's a
24 fair characterisation of what the Court was saying here.
25 Thank you.
1 JUDGE ORIE: Well, the Court says that the applicant was not
2 deprived of his title. That's what --
3 MS. GUSTAFSON: [Overlapping speakers] ... title, yes --
4 JUDGE ORIE: [Overlapping speakers] ... even without -- yes,
5 even without any further explanation of the witness, this Court is --
6 this Chamber is able to read the text in its original version and ...
7 Now, I nevertheless have one question to put in relation to the
8 interpretation, apart from whether or not it is for the witness to -- to
9 interpret the decisions of the European Court of Human Rights. But since
10 she has done so, I'm trying to seek some clarification.
11 Ms. Bagic, I read part of your answer:
12 "The legitimate goal of the governmental action was within the
13 law," you said.
14 What governmental action did you have in mind there? Was that
15 adopting the law, or did you have in mind temporarily depriving this
16 applicant from the -- from enjoying his property?
17 Which did you have in mind when you said "The legitimate goal of
18 the governmental action was within the law"?
19 THE WITNESS: [Interpretation] Your Honour, I apologise, but I was
20 not aware of having used "the legitimate goal of governmental action."
21 It may be do to interpretation in different languages.
22 In any case, what I had in mind, the legitimate goal, were the
23 regulations put in force by the Croatian government. That is to say, the
24 Law on Temporarily Taking Away Property and its return.
25 Those documents and such regulations were legitimate. They were
1 implemented with a legitimate goal in mind.
2 JUDGE ORIE: Yes. Where do we find that in this decision? I'm
3 not saying that it's to be found nowhere, But where do we find it in this
4 decision; can you please tell us?
5 Do you have a copy?
6 THE WITNESS: [Interpretation] I do. It is before me. I have a
7 copy of this decision.
8 It is not stated in the decision itself. It can be found in
9 another decision, and I felt free to expand and interpret. I believe it
10 is in the Radanovic case decision.
11 JUDGE ORIE: Could then, please, the Radanovic decision be put on
12 the screen so that we find it in there. I'm just trying to find out
13 what's the basis of --
14 MR. MIKULICIC: Yes, Your Honour, that was my next step. I will
15 just try to -- I will just try to produce the Saratlic decision where the
16 legitimate goal was mentioned.
17 JUDGE ORIE: Mr. -- if the witness tells us that the goal is
18 found in the Radanovic decision and if then in your next comment you say
19 in what decision it is to be found, then that is not exactly what we
20 expect you to do. The Saratlic decision is not the decision the witness
21 mentioned, is it? She talked about the Radanovic decision, which is a
22 different one.
23 MR. MIKULICIC: Yes. Yes, Your Honour, I'm aware of this, but I
24 had the impression that the witness says, "I believe it is in Radanovic
25 case," so I simply believed that the witness was not sure whether this
1 was really in Radanovic.
2 JUDGE ORIE: Yes, and then you were in a position to tell her
3 that it is in another decision.
4 MR. MIKULICIC: [Overlapping speakers] ... I'm sorry if I
5 interfere in an inappropriate way, but that was my next exhibit.
6 JUDGE ORIE: Please proceed.
7 MR. MIKULICIC: Thank you, Your Honour. But before I proceed, I
8 would like to enter this document into the evidence.
9 MS. GUSTAFSON: No objection.
10 JUDGE ORIE: Do we need case law of international courts into ...
11 I mean, once I read it in the statement of the witness, the first thing I
12 did is to look in HUDOC where to find it, although I must admit that I
13 have difficulties in finding some of these decisions. Although not this
14 one. This is easily accessible on the Internet, that is, Kunic versus
16 MR. MIKULICIC: Yes.
17 JUDGE ORIE: So therefore, I am ...
18 [Trial Chamber confers]
19 JUDGE ORIE: The Chamber considers that there's no need to have
20 this case law, if easily accessible through the normal search engines of
21 the European Court on Human Rights to have it in evidence.
22 MR. MIKULICIC: Yes, Your Honour.
23 [Interpretation] Can we go to 3D00182 next, please. It is the
24 decision of the Saratlic case of the European Court in Strasbourg. This
25 decision is dated the 24th of October, 2006. In the English, can we go
1 to page 6, paragraph 2, please. In the Croatian version, the first
2 paragraph on the last page.
3 Q. It is stated as follows:
4 "As to the conduct of the administrative authorities in ensuring
5 the repossession of the house in question to the applicant, the Court
6 observes, firstly, that the State had a legitimate interest in housing
7 displaced persons in the property left behind by persons who left Croatia
8 during the war. Furthermore, the system which allows such persons to
9 remain in the occupied property before they have been provided with
10 adequate housing is not in itself in contradiction with the guarantees
11 contained in Article 1 of Protocol 1, providing that it ensures
12 sufficient safeguards for the protection of the applicant's property
14 Ms. Bagic, this part of the Court's decision is before you.
15 Could you please comment on it, to the extent you are familiar with this
17 A. In this specific case before me, that is to say, the Saratlic
18 case, it seems to me, although I only have this excerpt before me, that
19 it involved an applicant which -- or who submitted no official
20 applications for the repossession of the property involved or to be
21 compensated for the use of that house. The European Court basically
22 found his application to be unfounded. The Court also specified what it
23 did in the paragraph you just read out concerning the housing of
24 displaced persons in the property of those who had left the
25 Republic of Croatia.
1 Q. Let us go to the next case, which is the Kostic case. We have
2 another decision of the European Court --
3 JUDGE ORIE: Can we, perhaps, Mr. Mikulicic, first ask the
4 witness to explain why the case was dismissed.
5 THE WITNESS: [Interpretation] This case was dismissed because the
6 applicant, I believe, had previously sold his property, although he was
7 using it. He sold it through another person whom he gave a letter of
8 appointment or authorised --
9 THE INTERPRETER: Interpreter's correction: Power of attorney.
10 THE WITNESS: [Interpretation] -- and that person concluded the
11 contract on his behalf. However, that could not be proven. The person
12 authorised to sell the house when the seizure procedure was instituted,
13 stating that there were no bases for any further proceedings in that
15 In my view, the European Court for Human Rights in the particular
16 circumstances believed that this could not be in violation of Protocol 1,
17 Article 1, and the property rights specified therein.
18 JUDGE ORIE: Would you agree with me that it was mainly the
19 failure to seek the enforcement order to be carried out, an enforcement
20 order that was there, and the failure of the applicant to seek
21 compensation which finally resulted in a decision that the application
22 was manifestly ill-founded, rather than to have any substantial decision
23 on any action or activity of the Croatian government?
24 THE WITNESS: [Interpretation] It seems to me, if I be allowed to
25 interpret this decision, that the European Court did not deem it
1 necessary to assess the activities of the Croatian government in this
2 specific case but only in terms of the length of the procedure for the
3 seizure, and it deemed that it lasted an appropriate time, that it did
4 not last too long. And apart from that, it did not assess the activities
5 of the Croatian authorities, precisely because previously in this
6 specific case, the applicant had possession of his property and had sold
7 it. So this is why I suppose he did not ask for compensation.
8 JUDGE ORIE: Yes, that was a disputed matter, whether he had
9 given his consent to apparently a signed document.
10 But let's proceed, Mr. Mikulicic.
11 MR. MIKULICIC: [Interpretation] Could we please have 3D00200.
12 That is the decision of the Court in Strasbourg.
13 JUDGE ORIE: By the way, this decision is not easily accessible
14 through the HUDOC system because it -- even if you give the number of the
15 case, it gives no response. Therefore it might be a good idea to have
16 this one in evidence, although, exceptionally, because usually case law
17 which is accessible to the parties should not be tendered or admitted
18 into evidence.
19 But the decision of Saratlic versus Croatia, Mr. Registrar,
20 the --
21 THE REGISTRAR: Your Honours, the document under 65 ter 3D182
22 will be admitted into evidence as Exhibit D1912. Thank you.
23 JUDGE ORIE: D1912 is admitted into evidence.
24 MR. MIKULICIC: Thank you, Your Honour.
25 [Interpretation] Let us look at the decision in the case
1 Kostic versus the Republic of Croatia. And if we could please see page 6
2 in the English version. It seems to me I don't even have the Croatian
4 Q. And here it reads, in the second paragraph reads -- sorry, the
5 third paragraph is the one I find interesting.
6 It reads as follows. I will quote in English:
7 [In English] "... that the applicant had a final judgement
8 confirming his ownership of the house in question, and ordering the
9 eviction of the temporary occupants."
10 MR. MIKULICIC: [Interpretation] Can we please move on to the next
11 page. That's page 7, which reads -- and this is the decision of the
12 Court. It is the fifth paragraph from the bottom of the page up.
13 Q. [In English] "The Court notes that the Programme for Return
14 equally applies to all persons who return to Croatia, irrespective of
15 their ethnic origin, and that there is no indication that the applicant
16 was discriminated against in any respect."
17 [Interpretation] Ms. Bagic, what I'm interested in here is how
18 you understand the part of the decision in which the Court concludes that
19 the Programme for Return was not discriminatory in terms of ethnic
21 Could you please, to the best of your knowledge and recollection,
22 comment on this section of the position of the Court in Strasbourg?
23 A. I will try to tell you how I understand this part of the decision
24 of the European Court.
25 As one can see, it relates to the application of the Programme
1 for the Return of Refugees and Displaced Persons. This programme
2 elaborated in detail, in a number of items, various situations relating
3 to the return of refugees and expelled persons and also the fact whether
4 they had or did not have the documents testifying to their Croatian
5 citizenship; what was the procedure for them to obtain such documents, if
6 they did not have them; and also, as regards whether they had any
7 property in Croatia, whether it was vacant or temporarily occupied.
8 It can be concluded that the Court refers to the fact that the
9 applicant in his application to the European Court believed and claimed
10 that in the application of the programme there was discrimination against
11 him because of his ethnic origin. And the Court established that the
12 programme applied equally to all persons returning to Croatia, so the
13 procedure was the same for everyone, regardless of their ethnic origin.
14 That is to say, what they were by ethnicity.
15 Q. When we started our discussion today, Ms. Bagic, you told us what
16 your positions were in the state administration, specifically in the
17 Ministry of Justice, especially in the difficult time when we had
18 practically a state of war in Croatia.
19 During your work in the state administration and the
20 Ministry of Justice, did you ever receive an order or participate in a
21 discussion or were present during a discussion which, in any way, one
22 ethnic community in the Republic of Croatia or members of an ethnic
23 community or a religious community would be discriminated in any way
24 whatsoever? Did you ever, in any discussions relating to the adoption of
25 decrees and laws, take into account such goals, or were those goals in
1 any way suggested to you?
2 A. During my work in the ministry and when I participated in the
3 work of various Working Groups and delegations as part of my duties and
4 the positions I had in the Ministry, I did not take part nor was I
5 directed by a goal that would discriminate citizens on the basis of their
6 ethnicity nor did we ever receive such orders myself or any of the
7 colleagues that worked with me as part of these Working Groups.
8 Q. Thank you for your answers.
9 MR. MIKULICIC: [Previous translation continues] ... my
11 JUDGE ORIE: Thank you.
12 Mr. Mikulicic, when you refer to the -- I think you said
13 judgement in the Kostic case; is that correct?
14 MR. MIKULICIC: Maybe my word was "decision," but that's --
15 JUDGE ORIE: [Overlapping speakers] ... yes. Because there was --
16 yes, let me just check. Because we should clearly distinguish between
17 the decision on admissibility in this case, which he apparently refer to
18 in the judgement in this case which was a judgement in which a friendly
19 settlement was put on paper. And that, of course, was limited to the
20 portion which was declared admissible.
21 I'm looking at the other Defence teams, whether there's any
23 MR. CAYLEY: We don't have any questions for this witness,
24 Your Honour. Thank you.
25 JUDGE ORIE: No questions from the Cermak Defence.
1 Gotovina Defence?
2 MR. MISETIC: No questions.
3 JUDGE ORIE: No questions.
4 Ms. Gustafson, are you ready to start your cross-examination?
5 MS. GUSTAFSON: Yes, Your Honour.
6 JUDGE ORIE: Then please proceed.
7 Cross-examination by Ms. Gustafson:
8 Q. Good afternoon, Ms. Bagic.
9 A. Good afternoon. Good afternoon.
10 Q. I'd like to start just by asking you some preliminary questions
11 about your preparation to testify in this case.
12 Before coming here today to testify, have you seen any of this
13 trial or have you followed any of the proceedings in this trial?
14 A. No, I did not particularly follow the proceedings, except for
15 what was broadcast or published in the media.
16 Q. And you've explained that the date of your interview with the
17 Markac Defence was the 23rd of October, 2009. When did you first receive
18 communications from the Markac Defence about testifying in this case, or
19 providing a statement?
20 A. Mr. Markac's Defence first contacted me by phone and asked me and
21 proposed that I be a Defence witness in connection with the Law on the
22 Temporary Takeover and Management of Property. I accepted this in
23 principle, because I believed that whoever knows anything about certain
24 topics has a duty to testify about that. And after that, we met for the
25 first time at Mr. Mikulicic's office on the said day - that was the
1 23rd of October - in order to draft my statement.
2 Q. And other than the telephone call, the 23rd of October meeting,
3 and the meeting I understand you had yesterday with the Markac Defence,
4 have you had any other communications with them about any of the -- any
5 matters of substance in this case?
6 A. No, there were no other contacts, except that after we met on the
7 23rd at Mr. Mikulicic's office, when we talked in more detail what would
8 be the subject of my testimony and we agreed about the draft of my
9 statement, as far as I remember, I think I had to rush and I had no more
10 time, so after that, Mr. Rendulic came to my office in the constitutional
11 court. I think it was on the 29th of October. And the idea was for me
12 to review my statement, to check the dates, and the specific Articles,
13 possible incorrect use of terms, and for me to sign it.
14 Q. And do you know how the Markac Defence learned that you were
15 involved in drafting the property law? You explained that they raised it
16 with you.
17 A. I don't know exactly, and I didn't ask them that. But it was no
18 secret, considering that for years before I moved to the constitutional
19 court, I worked for the Ministry of Justice and the government
20 administration, so it was known what sort of work I had been doing. I
21 was also a member of the parliament committees. And as the deputy
22 minister, I was also a member of various commissions and groups that
23 dealt with this kind of problems. So I suppose that this motivated the
24 Defence to get in touch with me.
25 Q. Thank you. And were you ever informed about the nature or
1 contents of the testimony of any other witness in this case?
2 A. No.
3 Q. Thank you. Now I'd like do move on and ask you some questions
4 about your role in the Ministry of Justice at the time of the events in
6 Can you explain to the Court, please, more specifically what your
7 duties were in the Ministry of Justice, specifically in 1995, in the
8 latter half of 1995? What -- what exactly was your function in terms of
9 your day-to-day duties?
10 A. I will try.
11 Since 1995, around mid-1995, around the 20th -- at some point in
12 June in 1995, I was appointed the secretary of the Ministry of Justice.
13 So in the first half of 1995, I worked in the administration for property
14 law. I was an assistant of the manager of this administration at the
15 time, or the chief. And then in June 1995, I was appointed secretary of
16 the Ministry of Justice. And in 1997, in March of that year, I was
17 appointed deputy minister of justice.
18 In the administration for property law as the assistant chief, I
19 reviewed the files that were produced by my colleagues who were also
20 working in this administration. I was also a member of the
21 Working Groups, which drafted and prepared regulations relating to the
22 area of property law; for example, these were the Law on Property, the
23 Law on Land Registry, the Law on Compensation for property that was
24 seized -- I apologise. The Law on the Compensation for property seized
25 under the Yugoslav Communist regime. Also the Law on Asset Seizure and
1 the law on -- the Law on Media, and let me not enumerate any further.
2 I also went to the sessions of the government of the Republic of
3 Croatia, and I participated in the work of the professional bodies.
4 These were the so-called coordinations of the government. They harmonise
5 the documents prepared by various ministries within the remit of their
6 work before these documents are submitted to the government. I was also
7 a member of certain commissions. For example, for settling the relations
8 with the church and also the -- setting relations with --
9 Q. I apologise, Ms. Bagic, perhaps I can direct your attention a
10 little more specifically.
11 You mentioned attending sessions of the government and you were
12 shown one session of the government that you said you didn't think you
13 attended. How often did you attend government sessions?
14 A. If you allow me, I would like to clarify that.
15 I said that I did not -- or actually I didn't say that I attended
16 the sessions of the government, but, rather, the meetings of professional
17 bodies of the government that worked on dove-tailing the documents
18 prepared by various ministries in order for them to be submitted later to
19 the government.
20 The period of time that I'm talking about, that is, when I was
21 the assistant head of the property law department, by virtue of my post,
22 I could not have attended the sessions of the government. I could only
23 do that when I became deputy minister. And I became deputy minister in
24 March of 1997.
25 Q. So while you were secretary of the Ministry of Justice between
1 1995 and 1997 you did not attend any government sessions; is that right?
2 A. Are you asking me for the period in which I was the deputy
3 minister of justice?
4 Q. No, I'm asking you to confirm that I understand your testimony
5 correctly. That while you were secretary of the Ministry of Justice
6 between 1995 and 1997, that you did not attend any government sessions.
7 Is that a correct understanding?
8 A. While I was the ministry secretary, no, I didn't attend the
9 sessions of the government.
10 Q. And as secretary of the Ministry of Justice, who did you report
12 A. To the minister of justice.
13 Q. And how frequent were your contacts with the minister? And if
14 could you briefly describe what kinds of contacts you had with him when
15 you were the secretary of the Ministry of Justice.
16 A. Our contacts were as if and when necessary. We had normal
17 communication, we discussed and agreed who was going where or not going
18 somewhere. The minister would ask me to come to his office for giving me
19 instructions to prepare something or if I wanted to tell him something.
20 It is difficult to say anything about the frequency of our
21 meetings. Sometimes it happened that we didn't see each other for two
22 days, and then we would meet and spend two or three hours together.
23 Q. Did you meet with him and have -- or have communications with him
24 about the substance of the property law that you have been -- the Law on
25 Temporary Takeover that was discussed in your testimony?
1 Just to be clear, that would be Minister Miroslav Separovic at
2 the time.
3 A. I suppose that we did. The minister was not officially a member
4 of the group who worked on it, but I suppose - I cannot remember at the
5 moment - but that was the usual procedure with every law, that when a law
6 is nearly finished, we could contact the minister; brief him on the
7 content of the law; ask for his suggestions; if he had any regarding
8 amendment; and that was done, because, when he went to the government or
9 to the parliament, he would, before that, summon all of us to furnish him
10 with all the details so that he can prepare his expose either at the
11 government or before the parliament.
12 Q. And in terms of the Law on the Temporary Takeover of Property,
13 you can't remember specifically at this time what the procedure was in
14 terms of Minister Separovic's involvement?
15 A. The procedure that involved the participation of the minister in
16 the preparation of the law was always the same or similar.
17 In other words, the minister was someone who, at the final stage,
18 on behalf of the Ministry, and the member of the government, goes before
19 the government to explain the details of the law. If he manages to get
20 the endorsement by the government, then this same minister would present
21 it and defend it before the parliament on behalf of the government.
22 Q. Okay. And you mentioned a Working Group that was involved in
23 preparing the Law on the Temporary Takeover of Property. Were all those
24 people from the Ministry of Justice, or were there people from outside
25 the Ministry involved in drafting that law in your Working Group?
1 A. Also involved were other people as well.
2 This law was done by a group of lawyers from the
3 Ministry of Justice, the Department for Property Law. However, also
4 involved in this process were our colleagues from the
5 Department of Legislature. We probably also contacted people from the
6 judiciary, that is, from the public prosecutor's office as it was called
7 at the time, and probably some colleagues from the Ministry for
8 Public Works and Reconstruction, which was directly responsible for
9 providing accommodation of refugees and displaced persons.
10 Q. Was that the Ministry that was known at the time as the
11 Ministry for Reconstruction and Development; is that right?
12 A. I suppose so. The ministries changed names very often, so I
13 cannot say with any degree of certainty how it was called at the time.
14 Q. And aside from your contacts with Minister Separovic, did you
15 have any other direct communications with any other government ministers
16 during the time you were the secretary to the Ministry of Justice? And
17 I'm concerned particularly with the period in 1995.
18 A. I didn't have any -- any specific contacts with any minister or
19 anyone from the government. It may happen that the Ministry would
20 convene a meeting or it could happen that I accompanied the minister at a
21 meeting with another Ministry where other ministers would also be
22 present. But any specific contacts between them and myself, I cannot
24 JUDGE ORIE: Ms. Gustafson, I'm looking at the clock.
25 Would this be a suitable moment?
1 MS. GUSTAFSON: Yes, Your Honour.
2 JUDGE ORIE: Yes. Then before we adjourn, Mr. Mikulicic, when I
3 said that the Saratlic decision was not easily accessible, it was my
4 mistake, because in the search engine you will have to specifically
5 include decisions from the Court, apart from seeking for judgements.
6 And, therefore, I suggest to you that in line with the general
7 rule that easily accessible case law is not admitted into evidence, that
8 we vacate D1912 and advise everyone not to leave out the decisions of the
9 European Court of Human Rights.
10 And for the transcriber, the HUDOC system is H-U-D-O-C, which is
11 the database from the European Court of Human Rights, easily accessible
12 through the Internet.
13 Any objections, Mr. Mikulicic?
14 MR. MIKULICIC: No objections. It's all right with me,
15 Your Honour.
16 JUDGE ORIE: Then D1912 is vacated.
17 Ms. Bagic, we'll adjourn for the day. We would like to see you
18 back tomorrow morning, the 12th of January at 9.00 in this same
19 Courtroom. And I would like to instruct you that you should not speak to
20 anyone about your testimony, whether that is testimony you've given
21 already today or testimony still to be given tomorrow.
22 We adjourn until the 12th of January, 9.00.
23 --- Whereupon the hearing adjourned at 1.46 p.m.,
24 to be reconvened on Tuesday, the 12th day of
25 January, 2010, at 9.00 a.m.