1 Thursday, 24 June 2004

2 [Open session]

3 --- Upon commencing at 9.05 a.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Would the registrar be kind

6 enough to call the case, please.

7 THE REGISTRAR: Yes. Good morning. Case number IT-01-47-T, the

8 Prosecutor versus Enver Hadzihasanovic, and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you. Can we have the

10 appearances for the Prosecution, please.

11 MS. HENRY-BENJAMIN: Good morning, Mr. President; good morning,

12 Your Honours; good morning everybody. Sureta Chana and Tecla

13 Henry-Benjamin and Andres Vatter is the case manager.

14 JUDGE ANTONETTI: [Interpretation] Thank you. And now the

15 appearances for the Defence.

16 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President; good

17 morning, Your Honours. On behalf of General Hadzihasanovic, Edina

18 Residovic counsel, and Muriel Cauvin, legal assistant.

19 JUDGE ANTONETTI: [Interpretation] And the other Defence team.

20 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On

21 behalf of Mr. Kubura, Rodney diction son, Fahrudin Ibrisimovic, and behalf

22 of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin Mulalic

23 legal assistant.

24 JUDGE ANTONETTI: [Interpretation] Thank you. For today's as

25 hearing, the Chamber bids welcome to all those present, especially

1 representatives of the Prosecution, the Defence counsel, the accused and

2 all the staff of this courtroom, and particularly Madam Court Reporter,

3 who is doing a very important job, allowing us to follow what is being

4 said on the basis of the transcript which we see in front of us.

5 I also greet the interpreters.

6 Before we begin with the testimony, I wish to give the floor to

7 the Registrar who wishes to make a statement linked to the transport and

8 travel costs. Thank you, Mr. President.

9 THE REGISTRAR: [Interpretation] Mr. President. Thank you. With

10 your permission, I should like to make a brief statement on behalf of the

11 Registrar with respect to the statement made by Mr. Bourgon during the

12 hearing on the 23rd of June and in connection with the travel of his

13 assistant to Sarajevo.

14 The Registrar considers it important to inform the Chamber, the

15 Trial Chamber, that Mr. Bourgon presented the facts in inexact and

16 incomplete manner. In view of the fact that the statement suggests that

17 the decision of the Registry is unfounded and consequently could be

18 interpreted as calling in question the credibility of the Registrar, the

19 Registrar intends submit to the Trial Chamber in the next few days a

20 detailed memorandum to clarify the facts and to respond to the criticisms

21 made by Mr. Bourgon.

22 Thank you, Mr. President.

23 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar. As

24 Mr. Bourgon is not present, we expect that his colleagues will inform him

25 of the position of the Registrar who will send us a memorandum detailing

1 the mentioned problem.

2 At this stage, we will not dwell on the matter any further, and we

3 will move on to the next stage, and that is the hearing of a witness.

4 Madam Usher, will you please go and fetch the witness.

5 [The witness entered court]

6 JUDGE ANTONETTI: [Interpretation] Good morning. Let me first

7 check that you are hearing in your own language what I am saying. If that

8 is so, please let us know.

9 THE WITNESS: [Interpretation] I can hear and understand you.

10 JUDGE ANTONETTI: [Interpretation] You have been called as a

11 witness by the Prosecution to testify about events that took place in 1993

12 in Bosnia. Before asking you to read the solemn declaration, I need to

13 know your identity. So please give me your first and last name, and date

14 of birth.

15 THE WITNESS: [Interpretation] My name is Vlado Adamovic, born on

16 the 3rd of June, 1959.

17 JUDGE ANTONETTI: [Interpretation] And where were you born? In

18 what town or village?

19 THE WITNESS: [Interpretation] In Zenica, Bosnia and Herzegovina.

20 JUDGE ANTONETTI: [Interpretation] What is your current position?

21 THE WITNESS: [Interpretation] I am a judge of the court of Bosnia

22 and Herzegovina.

23 JUDGE ANTONETTI: [Interpretation] And in 1993, what was your

24 position or occupation?

25 THE WITNESS: [Interpretation] At that time, I was a judge of the

1 district military court in Zenica. So my obligations were to conduct

2 trials.

3 JUDGE ANTONETTI: [Interpretation] Have you testified before in

4 this International Tribunal or in a national court in your own country

5 regarding the events that took place --

6 THE WITNESS: [Interpretation] I beg your pardon. I'm so sorry.

7 JUDGE ANTONETTI: [Interpretation] Don't apologise. It happens to

8 everyone. It happens to me often.

9 Let me repeat my question --

10 THE WITNESS: [Interpretation] Yes, I was cautioned about

11 everything except about my mobile.

12 JUDGE ANTONETTI: [Interpretation] Have you previously testified in

13 an international court or a national court on events that took place in

14 1993, or is this the first time that you have been called to testify?

15 THE WITNESS: [Interpretation] Today is the first time.

16 JUDGE ANTONETTI: [Interpretation] I should like to ask you to read

17 the solemn declaration given to you by Madam Usher.

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

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

20 JUDGE ANTONETTI: [Interpretation] Thank you. You may be seated.

21 THE WITNESS: [Interpretation] Thank you very much.

22 WITNESS: VLADO ADAMOVIC

23 [Witness answered through interpreter]

24 JUDGE ANTONETTI: [Interpretation] Let me provide some information

25 to you, but as I'm talking to a professional, this information will be

1 reduced in scope. As I have already said, you have been called as a

2 witness for the Prosecution, and within the framework of this testimony,

3 you will be answering questions put to you by a representative of the

4 Prosecution. After that, the Defence counsel for the accused, who are to

5 your left, will also have questions for you as part of the

6 cross-examination. We are applying quite a specific procedure here based

7 on common law, and after the questions of the Defence counsel, the

8 Prosecution may also have some additional questions for you.

9 However, the three Judges who are in front of you may, and this

10 comes from the common law procedure, ask you questions at any time which

11 they may consider necessary in the interest of the truth. However, as a

12 rule, the Judges prefer you to finish answering the questions put to you

13 by the parties before putting their questions to you. After the questions

14 of the Judges, the parties may take the floor again to ask you some

15 additional questions.

16 That would be in very general terms how we will proceed. So as

17 not to surprise you, I wish to tell you straight away that though the

18 nature of questions may be identical, there still may be differences when

19 the Defence ask you questions because, according to the rules, the Defence

20 may put questions to you to check your credibility and also in order to

21 inform the Chamber about the political, military, strategic context and

22 any other matters that they may consider to be useful for their defence.

23 If at times the questions may be complex and long, ask the person

24 putting that question to you to rephrase it. It's quite possible that the

25 person questioning you may be carried away and not realise that a question

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1 may cause difficulties for you. So in that case, they will rephrase it.

2 I need to inform you about two other points that I tell all

3 witnesses regardless of who they may be, that by taking the solemn

4 declaration this automatically means that all false testimony is excluded,

5 because false testimony in this Tribunal may be sanctioned quite severely

6 as the maximum penalty may be seven years of imprisonment.

7 The other point is of juridical nature, and that is that our Rules

8 we are governed by envisage that when a witness is answering a question,

9 if the witness feels that by responding to it that reply could be used

10 against him one day, the witness may refuse to answer. This is a

11 well-known principle in Anglo-Saxon law, but also in several continental

12 countries. Should that occur the Chamber has the power to ask the witness

13 opportunity to reply nevertheless, but the Chamber guarantees the witness

14 impunity, and though the words he utters in answer to a question cannot be

15 used against him in the future.

16 This is a bit complicated, but I had to explain it to you. Should

17 you come across any difficulties, please let us know. We are here to help

18 deal with them.

19 According to the schedule, you will be testifying all day. Should

20 that not be long enough, it is quite possible that your testimony may be

21 extended to tomorrow, but I do not wish to prejudice the events. It will

22 all depend on the questions of both parties.

23 So I will now give the floor to the Prosecution for their

24 questions immediately.

25 MS. HENRY-BENJAMIN: Good morning, Mr. President.

1 Examined by Ms. Henry-Benjamin:

2 Q. Good morning, Judge.

3 A. Good morning.

4 Q. The Prosecution has asked you to appear on behalf of the

5 Prosecution in your role as a judge of the district military court, and in

6 light of that I proceed to the testimony of the formation of the court,

7 the rules and duties of the court and the operation generally of the

8 court.

9 So we know that you are a professional, and we know that you are a

10 judge, so I'm not going to go into the details of your qualifications, but

11 could you please indicate to the Trial Chamber when was the district

12 military court established.

13 A. I always have difficulty with dates. I'm sometimes wrong with the

14 year, never mind the month. I think it was in 1992, at the end of 1992,

15 by decision of the Presidency of Bosnia and Herzegovina, which acted, I

16 assume, on behalf of the Assembly of Bosnia and Herzegovina. A special

17 decision was taken, published in the Official Gazette, a decision to form

18 the court and a decision on the appointment of judges.

19 Q. Could you please for the Trial Chamber state the formation of the

20 court, please.

21 A. This was just before the beginning of the war, when the war was

22 just starting. The need arose for specifying the responsibilities of

23 people wearing uniforms and their criminal offences in relation to

24 civilians, but also civilians who may have committed anything which came

25 under chapter 20 of the former penal code of the SFRY known as military

1 offences, so that there was a discussion as to how such courts should be

2 formed. A group of lawyers advocated that these should be military courts

3 only in as far as they would try people in uniform in the first place, but

4 the laws that were governed by those courts were civilian laws. They

5 didn't differ in any respect from the laws that were complied with by

6 civilian courts. And according to the system of subordination and appeals

7 proceedings, the civilian procedure was observed, because with the

8 formation of district military courts, they had responsibilities for the

9 district, but this did not coincide with the administrative structure of

10 the country in the sense of district administrations so that appeals

11 against rulings of district military courts would be filed with the

12 civilian district court, and after that the case, according to the law and

13 under certain circumstances could be taken up by the Supreme

14 Court of Bosnia and Herzegovina as the highest-level judicial

15 institution.

16 When I say that the district military courts did not coincide with

17 the administrative division of the country, this meant that the military

18 courts were responsible for a number of municipalities, and I think that

19 the district military court in Zenica was responsible for six or seven

20 municipalities. I don't know exactly how many. And this did not

21 correspond to the official area of the district in the administrative

22 sense. In some cases it may have coincided, but the idea was for district

23 military courts to be organised in large centres or where the -- the

24 authorities who had control in the area could organise them.

25 Once the decision was taken to form those courts - I think this

1 was in the form of a decree; I really don't remember, but there's written

2 evidence about all of this - a military court was set up not only in

3 Zenica but I think also in Sarajevo, Tuzla, or Tesanj. I don't recall

4 now.

5 After that, a decision was taken as to the legislation that would

6 be applied, and then came the decision on the appointment of judges. At

7 first there were four judges. Later on, the number increased. But

8 simultaneously, the military prosecutor's office was organised as courts

9 were, by definition, criminal courts. So the principle applied meant that

10 the courts should act on the basis of reports by prosecutors so that they

11 needed to be formed as well. At first there was just one prosecutor and

12 his deputy, and later the whole office of the prosecution was developed.

13 I think that would be an explanation in brief.

14 Q. Very good history, and I think you answered some of the questions

15 I was about to ask.

16 Could you tell us in which of the courts you sat? Which district

17 did you sit in?

18 A. Before being elected to the district military court, from the

19 beginning of my career, in fact I worked throughout my active duty at the

20 municipal court in Zenica as an assistant, then as an associate, and then

21 finally as a judge. And just when I was elected to the district military

22 court, I was also elected to the higher regional court. I think that is

23 what it was called at the time as the name kept changing. And the

24 question was who would be the judges of the district military court. In

25 those days there weren't too many people who would accept such an

1 appointment or who were capable of doing it.

2 And then a rather interesting situation arose. I was meant to

3 start working at a regular court, and the president of this court sent me

4 to the military court, so that I only spent about a month or two at the

5 regular court. But there are written documents about that too. And my

6 career was linked mostly to municipal courts where I worked from 1985

7 until I was elected to this court. I think it was 1985.

8 Q. Could you tell us in which district your court sat?

9 A. It was the Zenica district.

10 Q. And what was the composition of the court that sat in Zenica?

11 A. At first I think there were four judges sitting in court, Zahid

12 Kovac, Hidajet Halilovic. I don't know who the third judge was at the

13 beginning, and myself. There were three Bosniaks and one Croat. In those

14 days there was every effort to keep an ethnic balance as far as possible.

15 Later on, some other colleagues joined. There was later a Serb judge who

16 joined, Mladen Veseljak as well, and at the end I think there were seven

17 of us.

18 Q. Could you please for the benefit of the Trial Chamber give us an

19 idea of how the court operated. How did you sit? Did you -- all seven

20 judges sat together or did you sit alone or how did you operate?

21 A. The legislation provided for the functioning of judges in the

22 procedure since the competencies were prescribed by the law. There were

23 some changes with regard to the previous legislation in terms of the

24 enlargement of the authority of individual judges.

25 When the penalty provided for a crime where -- was up to five

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1 years, then there -- there would be individual Judges sitting in the case.

2 If the penalty was higher, then they would -- those crimes would be tried

3 by the so-called smaller councils composed by one professional judge and

4 two lay Judges. If the penalty envisaged by the law was over ten years

5 for the most severe crime, those cases would be tried by the so-called

6 large councils composed of the president of the council who was a

7 professional judge, another professional judge, and three lay Judges. It

8 was by and large the content of the indictment that governed the

9 composition of the council. This was done automatically. This was the

10 professional part of our job. It was well known who would be tried, what

11 based on the law and the internal organisation.

12 The cases would be distributed randomly. The choice of those

13 Judges was random. It was the registry that distributed the cases across

14 the Judges. There could have been some anomalies. Sometimes one judge

15 would have more cases or more severe cases than others, and in that case

16 the -- there was some intervention or a redistribution. Sometimes it

17 would be the Judges themselves who would decide that during their meeting.

18 The president of the court would have a final say in -- in that in order

19 to provide for the equal distribution of cases among all the Judges.

20 Q. Now, you did indicate to us that the court was established by

21 decree. Now, was there a list of offences over which the court had

22 jurisdiction?

23 A. I believe that this was contained in the decision. Whatever I

24 have said so far, I would like to keep a caveat on it, because I'm sure

25 that this must have been this -- prescribed either in the decision or in a

1 separate document. However, I believe that this was contained in the

2 decision on the establishment of the court.

3 Mostly this concerned the military offences that existed in the

4 previous penal code of the former Yugoslavia. At that time, during the

5 former Yugoslavia, these crimes were not provided for by the laws of the

6 former republics. When I say the former republics, I mean that the new

7 states or parts of the former Yugoslavia, from Macedonia to Slovenia. And

8 the so-called federal penal law as it was referred to by the

9 professionals, I believe that Article 20 prescribed and provided for this

10 type of crimes that this court had jurisdiction over.

11 Q. What about the categories of persons that the court had

12 jurisdiction over? Could you tell us, please?

13 A. Those were members of the army and people wearing a uniform, with

14 the only exception being those who were under obligation to join the army

15 and failed to do that, who evaded their military duty and did not wear

16 uniform. However, this court had jurisdiction over them as well.

17 However, over 90 per cent of the cases involved people in uniform,

18 and this was what qualified them to be tried by this court in the most

19 general terms. In the most general terms, this court could be defined as

20 a court for a uniform peace -- people.

21 In Zenica, the need arose for the establishment of such a court,

22 because at that time the state leadership had its session in Zenica, and I

23 remember that somebody invited me to attend one of those meetings. Not

24 formally, it was more of an informal invitation to anybody who would have

25 an idea or who would know how to do that. A certain number of people

1 gathered, mostly from the legal profession, and I remember that at that

2 meeting I put forth my idea according to which the court should be a

3 civilian court, a civilian court of the nature of the regular court, and

4 that the specific nature of this court should lie in the fact that people

5 in uniform would be aware of the fact that there was a special court for

6 them, for the -- a court that would prosecute and try the army.

7 In those days, the main idea was for the army personnel to

8 understand that there was an organisation, both in civilian and in

9 military terms, which would call to task all the perpetrators of crime.

10 I remember at that meeting I was a bitter opponent of the

11 so-called court martials, because I had realised that some of the

12 participants in this meeting did not make a distinction between court

13 martials and the so-called regular military courts as it were.

14 Later on within the army, some rules were adopted, and those rules

15 provided for what is known internationally as court martials and also

16 providing for the responsibility of commanders. In the BiH army, I

17 believe that this not referred to any ranks below the brigade commanders.

18 It could only apply to lower commanders in exceptional circumstances. I

19 believe that this was the case. And those courts, in extraordinary

20 circumstances, could pass decisions even on capital punishment. However,

21 even within that kind of organisation there was some sense, because in the

22 first instance the case had to be referred to the regular military court,

23 and I remember several cases that were heard by our court where the

24 original, drastic measures which were passed by the military units would

25 be overturned, and in some case people were even found not guilty, and it

1 is at that moment that distinction could be made court martials and the

2 so-called regular military courts.

3 Q. Judge, would I be correct in saying, then, that according to the

4 regulations which formulated the court, the army had no influence

5 whatsoever over this court? Would I be correct?

6 A. No. Yes, yes, you're right. The army did not have any influence

7 whatsoever. At first the jurisdiction of the court stems from the

8 decision of the Presidency, and the subordination provided for the

9 responsibility to be taken up to higher civilian courts. And military

10 courts were not part of the military structure. All they had, the word

11 military in their name, unlike the organisation that was in place in the

12 former JNA. For many officers in the former JNA, this was rather

13 confusing. However, we insisted on something that is mutually exclusive.

14 These courts were to be civilian in their nature, in every

15 respect, but the fact that they would be trying military personnel. They

16 were part of the state structure, part of the organisation of the state

17 authority. There was military authorities, administrative authorities,

18 civilian authorities, and there was a line drawn from the Presidency, the

19 body that passed the decision, down to the district military courts on the

20 ground.

21 And in terms of the professional activities of these courts, those

22 were -- the higher instance courts were civilian courts, appellate

23 civilian courts, and at higher -- and this -- at this instance, these

24 courts had nothing whatsoever to do with the military structure save for

25 the fact that they tried people in uniform, military personnel.

1 Q. Thank you. So the district military court operated independently

2 of the army?

3 A. Yes.

4 MS. HENRY-BENJAMIN: May the witness be shown Prosecution Exhibit

5 325 and 327, please, Mr. President.

6 Q. And if we were to look at Prosecution Exhibit 327 first, Article

7 2. Does that corroborate what you just said to us?

8 A. Yes. "District military court shall be independent in the

9 performance of their judicial function and shall render judgements on the

10 basis of the constitution and laws." This is what Article 2 reads, and

11 this is a Decree Law on District Military Courts. I couldn't remember

12 exactly whether it was a law or a decree law, but I can see now it was a

13 decree law which was passed by the Presidency.

14 Here in Article 7, we can see that --

15 Q. Before we go to Article 7, maybe we should look at Article 6.

16 A. "District military courts shall try cases involving criminal

17 offences committed by military personnel and certain criminal offences

18 committed by other persons as stipulated by the present decree law.

19 District military courts shall carry out certain tasks pertaining to the

20 enforcement of criminal sanctions that have been entrusted to them

21 pursuant to the present decree law."

22 And I believe that I've already stated that. Not in so many

23 words. Maybe I have said it in my own words. It's very difficult to

24 remember the exact wording in the law, but I can always give you a general

25 description.

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1 Q. And the purpose of the exercise was to verify this is where you

2 get your authority from? This is where your authority derived from, from

3 this decree.

4 And if we look at Exhibit P325, I think it proceeds to tell us the

5 system in which -- the way the court operated, where it received its

6 reports. Am I correct?

7 A. The wording used in this decree law is the so-called special

8 military courts. If we go back, when I was talking to the court martials,

9 we could also call them special courts. This word "special" refers to the

10 situations which required for special measures passed by commanders, and I

11 believe that some of the jurisdiction is transferred to the military

12 commanders because of the exceptional circumstances.

13 I believe that court martials cannot act in the situation when

14 there is an immediate threat of war. And this is what is referred to in

15 Article 2 where it says that "the court shall be established by order of

16 the commander of a regiment, brigade, or an officer of a military unit of

17 equivalent or higher rank when they deem that conditions do not exist for

18 conducting criminal proceeding before the competent military court." And

19 the combat situation and security of the military situation required that

20 criminal proceedings be conducted without delay.

21 In order to understand this, you have to imagine a military unit

22 far from a town or any other urbanised area, and you have to imagine that

23 a crime had happened. In order to prosecute a member of that unit, you

24 have to imagine that this would be very difficult because of the

25 extraordinary circumstances which had accumulated and have been described

1 as such in this Article. We are talking about a war situation and a

2 combat situation, and the security of the military unit require an urgency

3 of the proceedings. During a war situation, such courts -- I'm not an

4 expert on military history, so in history such courts were put in place in

5 order to discipline the army, in order to attain the ultimate goal which

6 was general prevention such as has been provided for in the law on courts.

7 In this case, this only applies to the servicemen that may have rebelled

8 against the commander or committed crimes which are against the rules of

9 war, which may have been the abuse of the situation or in which persons in

10 uniforms have committed rapes or other different crimes.

11 In such a situation, the army has to be disciplined, and this is

12 why there was a need to organise such courts, because the final provision

13 here in this article confirms that. It says that a combat situation and

14 security of the military unit require that criminal proceedings be

15 conducted without delay.

16 You can see that it is in -- it is in the interest of the unit

17 that this is done, the unit being the object of protection. And the

18 situation is a combat situation. The object of protection is a unit, and

19 as a result of that, the military -- the court martials were established

20 as an extreme measure. I was very much opposed to using these provisions,

21 because military commanders most often are not very skilled in trying

22 people, especially not in the times of war when a lot of military

23 commanders did not even have the proper military training, let alone any

24 sort of legal training which would enable them to conduct trials and which

25 would enable them to evaluate a situation at hand.

1 We have to respect professionals, and officers who were trained

2 were trained in all aspects of the military profession. However, a war

3 situation calls for other types of knowledge and skills. Those who need

4 to deal with such situations have to have some psychological knowledge.

5 They have to be good leaders. They have to be respected in their midst,

6 and by virtue of their authority they have to be able to deal with such a

7 situation. However, a provision like this provided for only formal

8 protection by virtue of formal authority, although sometimes there was

9 nothing behind the formal authority.

10 The personal authority that was behind that professional

11 authority, if that person was wrong, then there -- this gave room for

12 abuse, and that is why I insisted on being very careful. If such a

13 possibility would be given to people, then -- that this should be at the

14 level of the regiment commander, because I assumed that regiment

15 commanders would indeed be professionals, trade professionals, people who

16 had military training. And some of the military training also assumed

17 that there was some legal training involved in that.

18 Q. Thank you, Judge. I asked the question so you can clarify for the

19 Trial Chamber that that provision in no way meant to underestimate the

20 district military court or in no way meant to be a court along with the

21 district military court. That provision was specifically for --

22 JUDGE ANTONETTI: [Interpretation] I wish to intervene at this

23 stage to remove an ambiguity which, if it is not removed, could complicate

24 the review of this military jurisdiction. I am addressing myself to the

25 witness.

1 You have been shown two documents, one establishing the military

2 Tribunal, and another one creating what you call court-martials. The two

3 texts of the decrees were issued on the same day, but I must check they

4 were not adopt under the same number. The military courts, that is number

5 1275 of the 13th of August, 1992, whereas the text under P325 carries the

6 number 1278.

7 Judge, the text that the Prosecution has shown you, the decree law

8 on special military courts which you call court martials, and those courts

9 were established by order of a commander, and in Zenica it could only have

10 been the commander of the 3rd Corps. Was this special jurisdiction

11 established?

12 THE WITNESS: [Interpretation] I have indicated the distinction

13 between the so-called regular military courts and the so-called special

14 military courts, and it was on purpose that I referred to them as court

15 martials, because in the legal theory, they are better known as court

16 martials, and they're always linked to the army.

17 Everybody who had the rank of a regiment commander or brigade

18 commander could, on the basis of Article 2, establish such a

19 court-martial. I remember that the district military court in Zenica

20 received an appeal or even a whole case - I can't remember any more - from

21 the area of --

22 JUDGE ANTONETTI: [Interpretation] You're not answering my

23 question, which is a very precise one. On the basis of Article 2 of this

24 law, did the command of the 3rd Corps establish this jurisdiction? The

25 answer is yes or no.

1 THE WITNESS: [Interpretation] I was just going to talk about a

2 case which could serve to draw a conclusion that a special military court

3 had indeed been established.

4 I remember a case that came to the military court which would

5 corroborate the statement of the Prosecution that a special court was not

6 a parallel court or -- this was a subordinated court, and an appeal

7 against a decision of such a special court would be filed with the regular

8 court.

9 I believe there was a case in the area of Breza, and that the

10 sentence in that case was even death penalty. I believe that this was

11 done by a commander. I don't know which court that this commander

12 belonged to, because I don't know who did this area belong to. I know

13 that the case arrived at the military court in Zenica. But this should

14 not confuse you. If the military court in Zenica received a case, this

15 doesn't mean that this case had arrived from the 3rd Corps which existed

16 in the area of Zenica. Why? Because there was a special decision

17 according to which a case could have been transferred to the nearest court

18 which was capable of receiving such a case under the circumstances.

19 So it could have happened that this special, or court-martial

20 could have been established within the 1st Corps.

21 JUDGE ANTONETTI: [Interpretation] Judge, my question was very

22 specific. It relied solely on the text that I gave you the references of.

23 In the text you have in front of you, in Article 4 it says that the

24 decision establishing this court-martial, as you call it, there is the

25 name and composition of the court, but as opposed to Judges appointed by

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1 the Presidency, it is the commander who appoints the Judges and the

2 prosecutor.

3 So my question was whether you, in Zenica, were designated in

4 conformity with Article 4 by the commander of the 3rd Corps or did this

5 special court exist? Did it exist or did it not exist, this special

6 military court? It's a very simple question.

7 THE WITNESS: [Interpretation] I have spoken about this case, and

8 this case indicates that the special military court may have been

9 established within a unit in that area, within a brigade or within a

10 regiment, and that a commander did establish a court on behalf of -- I'm

11 now just doing this academic exercise to explain.

12 For example, this commander would say, "On behalf of the 1st

13 Corps, I establish this special court, and I appoint the following

14 commanders as the Judges of this special military court who would try this

15 or that person for this or that crime, because we are unable to reach the

16 regular district court."

17 I remember that there was such a case and that it did arrive at

18 the regular military court, and I know that a commander of a unit had

19 indeed established such a special court. If my memory serves me well, it

20 was in the area of Breza which is some 30 or 40 kilometres away from

21 Sarajevo. I know that the jurisdictions of three corps overlap there of

22 the 2nd, 3rd and the 1st Corps. I know this case may have gone to the

23 military court in Sarajevo or Zenica. And it arrived in Zenica. This

24 case did exist. It must be found in the archives of the court. There may

25 be even -- may have even been more than one. I remember that there were

1 death penalties involved. I was working on that days and I know that I

2 found those people not guilty because the commander in question was

3 nothing but a fool.

4 JUDGE SWART: Let me ask you a question, Judge, because I think

5 there is some confusion in the debate on the courts. We have a district

6 military court and the decree has been shown to you, and it says that the

7 district military courts are independent and you are a member of that kind

8 of court. You were a member of that kind of court. Yes?

9 THE WITNESS: [Interpretation] Yes.

10 JUDGE SWART: There is another decree on special military courts,

11 and you spoke about court-martials, and these deal with disciplinary

12 matters which may at the same time constitute specific criminal offences.

13 And the question is then --

14 THE WITNESS: [Interpretation] Yes.

15 JUDGE SWART: The question is then whether these special military

16 courts or court-martials in your terminology have been created, and I

17 think you said yes. Is that right?

18 THE WITNESS: [Interpretation] In one case that I remember and that

19 I have referred to, and I think there are records to support this, yes.

20 JUDGE SWART: [Previous translation continues] ... mine relates to

21 district military courts of which you were a member, one of them, and the

22 decree 250 relates to special military courts or, to speak in your

23 terminology, court-martials. This is the situation I think. Yes?

24 THE WITNESS: [Interpretation] Yes.

25 JUDGE SWART: I see you nodding yes. Okay.

1 THE WITNESS: [Interpretation] Yes, yes.

2 JUDGE ANTONETTI: [Interpretation] I don't think I have got a full

3 answer, but I give you the floor nevertheless. Please continue.

4 THE WITNESS: [Interpretation] I apologise. If there's a technical

5 ability to use a board, I would be glad to draw the structure for you. If

6 there is any technical possibility for me to use a board, a blackboard, I

7 could draw it for you and show it more clearly.

8 JUDGE ANTONETTI: [Interpretation] Unfortunately, we haven't made

9 provision for that, but we'll be coming back to it, I'm sure. So please

10 continue.

11 MS. HENRY-BENJAMIN: Maybe, Mr. President, the witness can put a

12 piece of paper on the ELMO and draw on it. Would you like that, to do it

13 on a piece of paper on the ELMO?

14 A. Yes, I could.

15 MS. HENRY-BENJAMIN: Could he be given a white piece of paper,

16 please.

17 MS. RESIDOVIC: [Interpretation] Mr. President, I would not like to

18 interfere in the examination by my learned friend, but perhaps I have

19 greater familiarity with the law in force. We may be able to provide more

20 light during the cross-examination. So if you feel that that would be

21 appropriate, then in the cross-examination I could go into the matter and

22 save us some time now.

23 JUDGE ANTONETTI: [Interpretation] I was quite sure that you would

24 clarify this problem, but nevertheless, the witness can do a very quick

25 sketch for us to show, that, the jurisdiction that existed at the time.

1 THE WITNESS: [Interpretation] So within this framework of regular

2 civilian courts -- court, there was the Supreme Court at the top. In the

3 middle there were district or higher courts, and at the bottom the

4 municipal courts. That was the civilian courts.

5 In the structure of military courts, this decree, P327, the decree

6 with the force of law on district military courts, related to the

7 organisation of only one type of court, district military courts, and we

8 explained that they tried only military personnel. Appeals from these

9 courts went to the regular court, civilian court, the district civilian

10 court or higher court. And according to the envisaged procedure, they

11 could go on to the Supreme Court. So that was the subordination and

12 connection between the military courts and the civilian courts. That was

13 the situation under regular circumstances.

14 This is the dark side of wartime conditions. Somewhere in the

15 woods outside civilian areas, in extraordinary circumstances, when it is

16 not possible to cross this border because of the distance, because of

17 combat operations, because of inaccessibility of courts, the commanders,

18 the lowest level being brigade commander, can form a special military

19 court or a court-martial, as I called it. He would nominate officers from

20 the army to act as Judges, to be part of a Chamber. They are not the same

21 Judges that were appointed by the Presidency, but are Judges selected by

22 the commander of the brigade, and they pass a decision. And if it is not

23 possible to reach the regular court because of these obstacles, the law

24 prescribes how this decision is carried out. But as soon as there are

25 possibilities for crossing this border, we don't have woods, we don't have

1 excessive distances, we don't have emergency situations, the roads are

2 open, then the case is sent to a regular military court which now reviews

3 the case to see whether the military commanders, as laymen forced to judge

4 on the ground, made a proper decision. That's why these are special

5 courts, extraordinary courts, ad hoc courts. And that is why I put it

6 very roughly that this military commander, who may have been a very good

7 military commander, was a fool when he sentenced this person to death.

8 And he absolutely overdid it.

9 And that is why I was opposed to the formation of such courts,

10 because you need qualified people who know how to act under emergency

11 conditions.

12 When this case is forwarded to a regular military court, again

13 during the process of adjudication, the decision may be appealed and taken

14 to a higher level court.

15 So this line that I draw of -- indicating the emergency situation,

16 enabled the formation of such ad hoc, provisional courts covered by the

17 decree in Exhibit 325, and these are regular courts formed by the

18 Presidency whose cases would be verified by the civilian courts through

19 regular procedure.

20 I really hope that this was of assistance.

21 MS. HENRY-BENJAMIN:

22 Q. Judge, I believe you have assisted us, because I think, and

23 correct me if I'm wrong, that the P325 court, which is the special

24 military court, is only formulated or established when there is an extreme

25 situation. It's not a regular court. Am I right? For the record could

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1 you answer, please?

2 A. Yes. Yes.

3 MS. HENRY-BENJAMIN: Could the documents be removed from the ELMO.

4 Q. Now having covered the formation and the jurisdiction, would you

5 be able now to assist the Trial Chamber as to how the Judges themselves

6 operated? Did you receive complaints? Did you investigate? How did you

7 proceed to run the courts?

8 A. The system was fully taken over from the former civilian system

9 that applied in the former Yugoslavia. Without an indictment there could

10 be no trial, and the investigation would be conducted by the investigating

11 judge, which fully corresponded to the traditional French system. The

12 organ for detection was the police. For the military court it could be

13 both the regular police and the military police. So it was quite

14 unimportant who would provide the information in the process of detection.

15 The law enforcement body was the military prosecutor's office --

16 no. I'm sorry. The body that issued the indictment was the military

17 prosecutor. To make myself quite clear, it was the military prosecutor's

18 office who issued indictments, and the military court would try the case.

19 To prepare an indictment, it was necessary, in most cases, to

20 carry out an investigation. The prosecutor would address the

21 investigating judge with the request to conduct an investigation. The

22 judge would then decide whether there would be an investigation or not,

23 and if an investigation did confirm that there were reasonable grounds to

24 confirm and enough evidence was collected for an indictment, an indictment

25 would be submitted to the court. And then according to the schedule that

1 I mentioned earlier on, this would be assigned either to an individual

2 court or one of the presidents of chambers, be it a small Chamber or a

3 large Chamber, and then the classical continental system of adjudication

4 would be applied.

5 Trials were public. The law did provide for the possibility of

6 excluding the public or closing the proceedings for the public to protect

7 minors or should there be a special interest as provided for by law.

8 Judgements were passed as envisaged by legal procedure. Then

9 there could be appeals as Defence counsel would take an active part in the

10 proceedings regardless of the conditions of war. At least in the Zenica

11 district court, there were no trials without a defence, which meant that

12 human rights were protected, and eventually the higher courts, civilian

13 court therefore, would -- whether it was at the level of a district or a

14 higher level, the Supreme Court, would pass final rulings when they became

15 enforceable.

16 The civilian courts implemented the decisions of the other courts

17 when it came to execution. We would send our rulings for the execution of

18 the judgements to be carried out.

19 What was specific was the involvement of the military police. The

20 civilian courts could engage the civilian police but not the military

21 police. However, we could engage the military police as well, because

22 within the framework of the corps there would be a military police unit,

23 and its duty as to service the court, to provide services to the court.

24 In other words, to carry out decisions of the court in summoning persons,

25 in discovery of persons, or arrest as it is more commonly referred to,

1 although I don't like the term.

2 And the military police would also have the duty, being a police,

3 because that is what they were by definition, to detect perpetrators of

4 criminal offences within the army. Also this was done by the security

5 organs in the army. And this needs some explanation, because their

6 competences overlap.

7 Every police force has the duty of detecting perpetrators and

8 passing on such information to prosecutors' offices. Even if such

9 information were to be forwarded to the court, the court would then

10 forward them to the prosecution, and that is how the circle would

11 function.

12 We didn't have our own police force, but we used the corps police.

13 That police also secured the detention on remand that was used by the

14 district military court. It would bring people to that detention and take

15 them away from detention.

16 Q. Judge, what about the civilians? Were you in position to

17 entertain complaints from ordinary civilians?

18 A. Yes. The military prosecutor's office would receive complaints

19 from whoever may make them. One should make a distinction between the

20 obligation for detection of perpetrators and the person submitting a

21 complaint, or a person would report suspicions that a criminal act had

22 been committed. The police would process this professionally and form a

23 report, a criminal report, that would be sent to the prosecutor's office.

24 However, there were instances of individuals coming to court to report a

25 criminal offence, and then we would send them to the prosecutor's office

1 to receive such complaints, but essentially the procedure would be the

2 same, because then the prosecutor would ask the police to check the thing

3 out posteriori. So it won't be the police who received the report and

4 processed it, but the prosecutor would be the first to receive the

5 information and would ask the prosecutor to check it out. But essentially

6 it ended in the same way, because the prosecutor would verify reported or

7 suspicions of the commission of a criminal offence.

8 Q. Judge, did the judges of the district military court themselves,

9 did they carry out investigations, specifically going into the field on

10 your own? Were the judges allowed to carry out investigations on their

11 own as well?

12 A. That is specifically the duty of investigating judges when they're

13 collecting evidence, having learnt of the commission of a criminal

14 offence. For the evidence to be valid in court, it had to be recorded by

15 the judge in the form of an on-site investigation. So the judge would go

16 out on the scene and make a report on the investigation, recording the

17 evidence that would subsequently be used during the criminal proceedings.

18 By way of an example, in a completely civilian case, there was a

19 traffic accident with several casualties. Several persons were killed.

20 The police informed the investigating judge during working hours. Outside

21 working hours it would be the judge on duty who would have the authority

22 of an investigating judge. He would go to carry out an on-site

23 inspection, collect evidence, take photographs of the scene, make a record

24 of everything found, especially elements that will be decisive for

25 establishing culpability.

1 So this report signed by the judge would be submitted to the

2 prosecutor's office for that office to assess where there are grounds to

3 suspect that a criminal offence had been committed. Now, if the

4 prosecutor finds that no such grounds existed because he -- it is up to

5 him to make the decision, he would not institute proceedings. But if he

6 feels that there are elements, then he would submit a request to the

7 investigating judge to start an investigation. Then the judge would issue

8 a decision on the conduct of an investigation, and he himself would do

9 that investigation pursuant to such a request from the prosecutor.

10 The judge would be bound by the request of the prosecutor and

11 would call the proposed witness, the witnesses proposed by the prosecutor

12 making a record of the evidence, collecting such evidence. But the judge

13 could go a step further. In the interest of the investigation, he could

14 himself call witnesses that he felt could clarify the matter.

15 When His Honour the President at the beginning cautioned me about

16 rights and duties in this Tribunal, I must say that such a procedure has

17 been abandoned in Bosnia and Herzegovina as the one that I've just

18 describe. Our procedure now is identical to what you have, at least

19 according to the explanation the President gave me. We have direct

20 examination, cross-examination, and we have made a combination of the two

21 systems, the Anglo-Saxon and the continental in our regular courts.

22 There's no investigating judge any more, because the investigation is now

23 conducted in Bosnia-Herzegovina by the prosecutor.

24 Q. Thank you, Judge.

25 MS. HENRY-BENJAMIN: Mr. President, I think this may be a

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1 convenient time.

2 JUDGE ANTONETTI: [Interpretation] Yes. It is 10.25. We will have

3 our technical break, and we will resume at five to eleven.

4 --- Recess taken at 10.25 a.m.

5 --- On resuming at 11.00 a.m.

6 JUDGE ANTONETTI: [Interpretation] The examination-in-chief

7 continues. Mrs. Benjamin, you have the floor.

8 MS. HENRY-BENJAMIN: Thank you, Mr. President.

9 Q. Judge, before the break you highlighted a situation with respect

10 to civilian -- civilian case. Could you please give us an example in the

11 case of -- in the military case, please?

12 A. Are you referring to trials involving military personnel? Is that

13 what you want me to tell you?

14 Q. Well, you described for us if -- what happens when a civilian made

15 a complaint to you, and you went into detail telling us what you will do

16 on your own as an investigating judge and whatever. Could you tell us

17 what happened in the case of the military.

18 A. The procedure would be more or less the same, the only difference

19 being that the person reporting the crime would be the person bound by a

20 law to investigate and detect perpetrators.

21 In one of the ways provided for by the law, the police would find

22 out that a crime had been committed or that there was a reasonable ground

23 to suspect that such a crime had been committed, and a criminal report

24 would be prepared and forwarded to the prosecutor's office. After that,

25 the prosecutor would take all the action that would be taken in any other

1 case in which there was reasonable grounds to suspect that a crime had

2 been committed.

3 The only difference in the civilian structure and the police in

4 this respect is in terms of the obligation, because the police is

5 duty-bound to detect perpetrators, and the police cannot turn a blind eye

6 to a crime having been committed. And anything that comes from the

7 citizens in the form of a report or a complaint, or anything that comes

8 from the police, that is based on the policework, has to be processed.

9 The degree of necessity to proceed may differ. However, it is absolutely

10 certain that crimes cannot be covered up. They have to be prosecuted.

11 Just by way of example, information that a serious crime has been

12 committed, for example, a murder or a rape or the infliction of grave

13 bodily injury, robbery, or any similar crime has to be processed, and the

14 body that has to process that information is the police and then the

15 police is followed by the prosecutor's office and the final body in that

16 process is a court.

17 Q. Thank you, Judge. Just going back to -- to something that was

18 said earlier on and for clarifications purposes. During your tenure as an

19 investigating judge with the district military court in Zenica in

20 particular, was there ever a situation that you're aware of that the 3rd

21 Corps in that area had to establish a special military court?

22 A. It is very difficult to say that as I sit here. I don't have --

23 didn't have access to information about the situation on the ground. I

24 believe it stems from Article 2 of this decree law that various conditions

25 for that have to be met.

1 I have mentioned a case that I remember well. We have received it

2 at the court. This commander had made an assessment and decided that a

3 special military court had to be established. I stick to my previous

4 statement that he had made a serious mistake and that the crime did not

5 call for a death penalty which was redressed later on. However, since a

6 commander in the army did something like that, I would draw a conclusion

7 that it was not only possible to establish special courts but that this

8 was indeed done.

9 Based on the reports that were available to everybody, we can tell

10 that there was fighting all over Bosnia in inaccessible areas. It is very

11 hard to say whether there was such situations that would prevent units

12 from accessing regular military courts, but this again can be concluded

13 based on regular military reports. And if there is anywhere a remark

14 about the inaccessibility of regular courts, be it the civilian courts or

15 the regular military courts, then it is fair to conclude that there was a

16 need for such special military courts to be established.

17 Q. Thank you, Judge. In the life of the district military court and

18 the one in Zenica in particular, was there any time that the court was

19 attached to the military?

20 A. I have to explain this, because a simple yes would create a wrong

21 or distorted picture. During a certain period of time, the military court

22 could not exist for logistical reasons. This was during the time when

23 there was no food, water, electricity. There were no bare necessities.

24 There was no paper or other things that are indispensable for the work of

25 any court. And since the military had a priority when it came to supplies

1 and things necessary for defence, the army had at its disposition the

2 available resources no matter what the quantities of these resources were.

3 The Presidency, in order to keep military courts in function,

4 passed a decision to incorporate military courts into the army

5 organisation but only in one of the segments. The army was duty-bound to

6 preserve the existence of the military courts. For example, if we needed

7 paper, we would get it from the army. If we needed electricity, we would

8 get it from the army. If we needed food, it had to be provided. Whatever

9 we -- whatever bare necessities we needed, those were to be provided by

10 the army. However, there was never a decision to subordinate military

11 courts to the military organisation. For example, it was never decided

12 that the corps command should be the command of the court. Such a

13 decision was never made. Courts continued to be independent in their

14 work. The only difference being that we turned to the army to supply us

15 with the bare necessities. We didn't turn to the states because it was

16 impossible. It was the army that supplied us with the things necessary

17 for our work, and they did that based on the request issued by the

18 presidents of the courts.

19 Q. And during this time or this period when the courts were allegedly

20 attached to the military, at no time at all, or can you assist us, at no

21 time at all was the independence of the judiciary compromised in any way?

22 A. There were attempts on the part of some military commanders who

23 did not understand that. And for example, a corps commander, just by way

24 of example, he called a judge in order to ask him what sentence should be

25 pronounced in a certain number of cases in order to step up military

1 discipline. This judge refused to give him advice in a very rush way, and

2 at the end of the day it was the judge who was -- who suffered

3 consequences rather than the military commander. However, not even that

4 attempt to influence the judiciary proved to be successful at the end of

5 the day.

6 Q. Thank you. Judge, could we move on to what I think could be

7 specific examples so that the Court could understand clearly how the

8 district military courts operate, and you indicated to us that there were

9 times when you went out into the fields and did your own investigations.

10 Now, my question is this to you: First, before I go to that, where were

11 you physically located, your geographical location? Where were you

12 located?

13 A. Zenica is in Central Bosnia and Herzegovina, some 70 kilometres

14 north of Sarajevo. Zenica is the centre of the Zenica district, a town

15 which had some 120.000 inhabitants before the war. It had a very

16 developed, heavy industry. Since Zenica was the centre of the area, it

17 served as the centre of the court. We had a long tradition of civilian

18 courts in Zenica. There was a civilian district court in Zenica for a

19 number of years before that, and it was only natural that Zenica is the

20 reference point for a number of smaller places around it. Between Doboj

21 and Sarajevo, Zenica is the biggest town. Doboj is further to the north

22 some 60 or 70 kilometres towards the River Sava and further on towards

23 Croatia and Hungary.

24 Q. I get the impression that the court was based in the city, in the

25 town of Zenica. Now, could you tell me --

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1 A. The very centre.

2 Q. Thank you. What -- how close were you to the Zenica Music School?

3 Was your court anywhere near the Zenica Music School?

4 A. It was very near. From the windows of our building, we could see

5 the windows of the music school. The distance between our two buildings

6 was anything between 150 and 300 metres. So we could, from our building,

7 see the music school very clearly.

8 Q. During your tenure, and I speak particularly during the period of

9 the indictment, January 1993 to February 1994, did you as investigation --

10 investigating judge at any time receive any complaints from civilians with

11 respect to the Zenica Music School?

12 A. On several occasions, but never in an official form. People would

13 come to inquire about their relatives, and they would come and ask the

14 courts' assistance with the allegations that their relatives had been

15 taken to the music school according to the information that they had. And

16 such reports, as it were, were heard not only by myself but by other

17 judges of the court and -- and then we would refer such people to the

18 military prosecutor's office to make an official record and describe who

19 they were inquiring about and to make it officially known that these

20 people had been taken by members of the BiH Army.

21 Basically we would refer them to the military prosecutor's office

22 to start formal proceedings. It was not just on one occasion. There were

23 several people who came, and we in the court were not unfamiliar with such

24 cases. We were all familiar with -- with this situation.

25 Q. As a district military judge, your powers appear to be quite wide,

1 and you indicated that there were times -- that's why you were referred to

2 as an investigating judge, that you went out on the field, on the ground.

3 Did you ever - you yourself - investigate or visit the Zenica Music

4 School? Did you ever go there to see what was, you know, happening?

5 A. You couldn't enter the musical school because the army provided

6 security there. I did show interest in going there on several occasions,

7 but I couldn't do it because one needed to have the army's approval.

8 However, an investigating judge has jurisdiction on any case that had been

9 instituted by the prosecutor. If there is no such case, then an

10 investigating judge does not have any jurisdiction. Even if a murder had

11 taken place in the street and if the investigating judge had seen it, he

12 couldn't do anything. He can only address the prosecutor and ask him to

13 start the procedure. And that is why we would refer people who came to

14 complain to the judges about the music school to the prosecutor, and this

15 is where our authorities ended.

16 When I said that I did want to go and visit the music school, you

17 have to be aware of the fact that we were in war and that everybody tried

18 to assist in dealing with certain situations in order to resolve them.

19 And each and every one of us worked on resolving different situations.

20 For example, a person would come to us and say, "A person has been

21 taken to the musical school a minute or two ago," and then we said,

22 "Okay. Let's go there to see what happened." We would go there, but the

23 army wouldn't let us in. Then we would go to the prosecutor and ask him

24 to do something. Now, what the prosecutor did, the judges could not check

25 because the judges only had jurisdiction over the cases that the

1 prosecutor had initiated.

2 Q. Did you at any time felt that it was within your powers or your

3 jurisdiction to raise these complaints or to raise these issues, let's

4 say, with the commander of the 3rd Corps at the time? Did you feel that

5 it was, you know, within your jurisdiction and that you should have? And

6 did you ever raise those issues with the commander of the 3rd Corps?

7 A. I did not have any direct communication with the 3rd Corps

8 Commander. There were no such authorities within the scope of direct

9 subordination or need to shed light on such situations because, first and

10 foremost, it was the military prosecutor who had the duty to shed a light

11 on various situations and the information about the reasonable grounds to

12 suspect that crimes were submitted among the military, and the music

13 school was under the control of the military at that time.

14 I had an opportunity to speak to the corps commander directly.

15 That was Mr. Hadzihasanovic. It was at a meeting, and this meeting was

16 organised by the district authorities with a view to promote cooperation

17 amongst all the bodies that were active in the district in order to

18 prevent these bodies from obstructing each other's work. And I believe

19 that the main problem that we encountered quite a lot of time was lack of

20 coordination between the civilian and military authorities in the same

21 area, and that is why the representatives of all the institutions were

22 asked to attend this meeting which was organised at the International

23 Hotel in Zenica.

24 I remember that the international monitoring mission

25 representatives were present, and these people wore white uniforms. I

1 believe that Ambassador Thebault was in charge at that time, and it was

2 the ambassador and his deputy that co-chaired this meeting together with

3 the president of the district, and I can't remember who it was at the

4 time.

5 And when the court, the military court represented by the

6 president of the court and myself were given the floor, the president

7 explained the need for support to be given to the work of the court, and I

8 was in charge to explain about our professional work and our work on

9 various cases. Then I addressed Mr. Hadzihasanovic directly and warned

10 him about the problem of the music school. I told him that people did

11 come to us to tell us that there was a lot going on in the music school,

12 that people were being taken there and that we had also heard stories

13 about people being beaten in the music school with various wooden bats and

14 other things. And I asked for this to be investigated by the army. And

15 then Mr. Hadzihasanovic told me that he had heard that himself, that he

16 either had investigated the matter or the investigation was under way.

17 And then when I realised that Mr. Hadzihasanovic was aware of the problem,

18 I was satisfied because this was a military facility. And since there was

19 such grave suspicions, I was glad that he was aware of the situation.

20 I -- it was not my intention to investigate what the truth was.

21 My only intention was to point to the problem.

22 The second thing that I pointed out in that conversation was that

23 people came to us very often to complain about their vehicles having been

24 confiscated, especially diesel vehicles. I asked Mr. Hadzihasanovic

25 whether he was aware of the fact that the army had confiscated such a huge

1 number of vehicles, and his answer, I believe, was that the army's

2 entitled to do that because they needed those vehicles.

3 I also told him that I had heard that some units had more vehicles

4 than -- than soldiers. I wanted to dramatise the situation a bit more in

5 order to determine that -- tell him that our limit should be set to this

6 confiscation. My point was that if vehicles had to be confiscated that

7 this should not be done in such a huge excess. Vehicles were needed to

8 transport the wounded or things like that. But if you have information

9 that a unit had 500 soldiers and 600 vehicles in the parking lot, then

10 obviously this is an anomaly.

11 This is something we did not check ourselves because we were not

12 authorised to do that. All we could do was to convey information to the

13 commanders for them to investigate the matter. We received our

14 information from the people who addressed the courts and raised

15 complaints.

16 Some of these cases of confiscation of vehicles were prosecuted by

17 the prosecutor and by the courts, and the final decisions were rendered by

18 the courts and the perpetrators of that crime were punished. This was

19 recorded by the court administration. I don't know whether my

20 conversation with Mr. Hadzihasanovic had any influence on that, but I do

21 sincerely hope that it did.

22 As for the music school, I don't know whether there were any cases

23 that arrived at the court and that had to do with the music school. I

24 only know that on one occasion when I had the opportunity to enter the

25 music school, the same people in white, representatives of the European

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1 Monitoring Mission, were there. They were looking for a man called

2 Markovic, who was a crime technician in the police in Zenica. His

3 relatives had informed them that he was incarcerated in the music school.

4 Why did they come to ask for our assistance? I don't know. I

5 suppose they wanted the help of the investigating judge.

6 I went with a couple of them. They were allowed to enter the

7 music school, and the same was allowed to me as their accompanying person.

8 I was standing at the entrance to the music school, which is a square

9 building with two or three floors and an attic area with a spiral

10 staircase. I was standing at the very entrance. I did not go to inspect

11 the building. When they returned, they told me that they hadn't found

12 anything in the building. And this visit didn't last more than half an

13 hour.

14 I returned to the courtroom. I did not make any official record

15 of that visit. There was no need for me to make an official record.

16 However, one of them came back to me after a month or so and told me that

17 they had found this Markovic, who was in the music school during the first

18 visit. He was in the attic area. Again, I didn't record anything. This

19 was just information that could have been useful for the prosecutor, and I

20 believe that I actually referred this person to the prosecutor's office on

21 that second occasion.

22 So this would be more or less what I know about the music school

23 and the activities that took place there.

24 Q. Thank you, Judge. Article 7 of the decree law of the district

25 military courts, which was Exhibit P327 that was shown to you awhile ago,

1 gave the court jurisdiction, I believe, to try prisoners of war for

2 offences committed as prisoners of war. Could you indicate to the Trial

3 Chamber if you have ever received cases of this nature, if you have ever

4 tried cases of this nature while you were on the bench as an investigating

5 judge?

6 A. May I see that decree once again, please?

7 MS. HENRY-BENJAMIN: Could the witness be shown the Prosecution

8 Exhibit 327, please.

9 Q. It will be page 4.

10 A. [In English] I tried looking at but I don't know those things

11 inside because it's only -- only Article, not what's those things. I

12 don't know.

13 Q. I think it would be on the next page, because in English version

14 Article 11 starts on page 3, but the actual clause itself is on page 4.

15 And it starts with: "District military courts shall try prisoners of

16 war ..."

17 A. Uh-huh.

18 Q. That's Prosecution P327. It's number 11, Article 11.

19 A. [Interpretation] Yes, I've found it. Here it is. Military

20 personnel but may organise other military personnel.

21 I think that there were a couple of cases that came under this

22 Article. I would need to know the contents of the reference to 114, 118,

23 119. I really can't remember what the contents of those Articles were.

24 Former -- you said "Prisoner of war who had committed a criminal

25 offence as prisoners of war"; is that right?

1 Q. Yes. In fact, the English version reads: "District military

2 courts shall try prisoners of war for criminal offences they have

3 committed as prisoners of war and for crimes against humanity in

4 international law." It's pretty wide.

5 A. So someone would have to enjoy the status of a prisoner of war and

6 to commit a criminal offence as such, as a prisoner of war. We had such a

7 case in the court. I think there was a wounding of a person who had been

8 a prisoner of war but who had committed a criminal offence. He had

9 wounded somebody or something like that. I can't remember exactly, but it

10 could be found.

11 Q. Okay. Then we move on to Article 12, which gave the court

12 jurisdiction under the provisions of the Geneva Conventions. And could

13 you tell us if you, during your tenure, would have received matters of

14 that nature? Would the court have dealt with matters of that nature as

15 far as you know? And the English version says: "District military courts

16 shall adjudicate in all criminal matters involving persons taking part in

17 an armed conflict who are subject to the jurisdiction of the court under

18 the provisions of the Geneva Convention of 12th August 1949 and their

19 additional Protocols."

20 Would you be able to assist us if -- if cases of this nature came

21 before the --

22 A. This is a general provision reminding the domestic legislation to

23 adjust its system of organisation of courts and their competencies to the

24 provisions of the Geneva Conventions. So the laws passed at that time

25 mostly implied taking over former material and procedural laws from the

1 former Yugoslavia, and they were in accordance with the Geneva Conventions

2 with respect to so-called military courts. So the courts taken over were

3 fully in compliance and supported the Geneva Conventions.

4 So the military courts, according to the decree establishing them,

5 had the competence to try military personnel and the rest as envisaged by

6 these articles in regular procedure where human rights are guaranteed,

7 recognition of status of prisoners of war, participation in an enemy army,

8 though who was a criminal offence. So the status of a person depended on

9 the war situation, whether somebody was a civilian or a military man,

10 whether he was a member of a hostile army, which was a criminal offence as

11 such. So the procedure did support the Geneva Conventions.

12 Q. Specifically in relation to the ABiH, do you recall receiving

13 cases of this nature at all? Do you recall if the court ever had to deal

14 with cases of this nature, specifically in relation to the ABiH?

15 A. The BH army should be seen here as someone providing information.

16 There was a state of war. There were parts of the territory where the

17 exclusive competence was -- or power was in the hands of the army because

18 of combat operations. So where combat operations were ongoing or a

19 situation directly linked to a war situation, the civil organisation

20 ceases to function. It becomes a theatre of war. It becomes something

21 linked to activities in wartime. The court and the prosecutor can never

22 find out what was happening on the ground unless the army itself reports

23 about it.

24 Can you imagine a situation of war operations somewhere in the

25 area between Sarajevo and Zenica, in the hills, where armies are

1 confronted? Who can have any information about things happening there?

2 Only the army or possibly a civilian who happened to be in the area, who

3 managed to flee or who survived the fighting, et cetera. But as opposed

4 to those civilians who might bring some information, the military had

5 within its ranks the military police. It had commands. It had a chain of

6 command. So it was the duty of commanders to report superior commands

7 about any extraordinary developments even during wartime. And it was the

8 duty of the police to process this in a certain way and to pass on such

9 information to the military prosecutor.

10 There were cases which the military prosecutor forwarded to the

11 court, and I learned from that that the military prosecutor must have

12 received information from the army that certain criminal offences had been

13 committed. We, in the court, will never find out whether everything that

14 was committed was actually reported, because there's no way of finding

15 out. Only the army can know that. The army could have organised these

16 special courts or court martials, and then from that file which would

17 reach the military court when the circumstances permitted, that the army

18 had court-martialed somebody or, for instance, they would say during

19 combat operations 50 people were killed. Those 50 people were killed due

20 to combat operations, because the weapons are imprecise and the shells

21 killed some civilians. But it is quite permissible and possible and

22 obligatory should, outside of war operations or during war operations,

23 there were violations of the law and conventions, that is crimes were

24 committed, then such acts would be separately referred to in such a report

25 and forwarded to the military prosecutor for processing, because a war

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1 crime cannot be justified by combat operations. Not just war crimes but

2 an ordinary criminal offence.

3 So if there was a killing that occurred within the context of war

4 operations and was not directly linked to the war operations and it was

5 committed by a member of the army, that, too, should have been reported.

6 Shall we say during a battle in a headquarters two officers start

7 quarreling and one of them kills the other. This cannot be justified by

8 war operations. There is grounds to suspect that this was murder that

9 emanated -- that occurred as a result of their dispute.

10 So the important thing was to have a report, and the prosecutor

11 would judge whether such an act should be processed or not, whether

12 proceedings should be instituted or not.

13 We had reports from the army which referred to criminal offences

14 on the front line. There may have been four, five, or even ten judgements

15 of accidental murders or killings during guard duty or cleaning of

16 weapons. Even judges would go out very close to the front line. I

17 remember a location that we went to where the opposing unit was literally

18 50 metres away from the trench where we were conducting an investigation,

19 because all the troops were on guard in a sense. There was a front line,

20 one army against another. They were in trenches. And an accidental

21 killing occurred. A soldier stepped on his weapon, his rifle. And the

22 commander called us in to record it so that there would be a record of it,

23 and then one day the prosecutor could judge whether that was that criminal

24 offend or not.

25 I know of this case being processed, and I know that this young

1 man was condemned for murder out of negligence, or manslaughter out of

2 negligence.

3 So this information was information that we could receive only

4 from the army and from no other.

5 Q. Thank you, Judge. Judge, in your practice in Zenica, are you

6 familiar with the term "Mujahedins"?

7 A. Yes.

8 Q. And could you, for the benefit of the Trial Chamber, tell us,

9 first of all, were the Mujahedins prevalent in the Zenica area?

10 A. There could be some linguistic imprecision. They were not

11 prevalent in relation to the population but in relation to the army, but

12 that they could frequently be seen in Zenica, that is true.

13 Q. And your court, was it ever privy to reports with respect to the

14 Mujahedins?

15 A. There was a case when the commander of the Turkish battalion,

16 within the framework of SFOR, reported to the prosecutor and the court

17 requesting that a judge go and see the barracks where the Mujahedin were

18 temporarily accommodated because shooting could be heard from the

19 barracks. Several vehicles were on fire. Obviously a conflict had

20 occurred amongst the members of the unit.

21 And I remember that one of my colleagues from the court went

22 there, but I don't think that he could do anything because entry would not

23 be allowed to that unit. I think he drew up a report about it. And from

24 the prosecutor, I haven't -- at least I never saw a single case being

25 instituted against a person that you called a Mujahedin. I do not

1 remember us putting on trial any such person.

2 Q. If you had to describe the Mujahedins in one word or briefly, how

3 would you describe them?

4 A. They were described as foreign nationals who had come to assist in

5 the struggle of Bosnia and Herzegovina on the side of the Army of Bosnia

6 and Herzegovina. They had a typical specific appearance. They were

7 easily recognisable, as usually on their heads they wore turbans or

8 scarves. They usually wore long beards. They were dressed mostly in

9 military uniforms or partly in military uniforms, and they moved around in

10 smaller or larger groups. Actually, they moved around town as if no one

11 had any power over them.

12 It was awkward, uncomfortable for the citizens to see them. They

13 would drive vehicles without registration plates and so on. Anyway, they

14 were easily recognisable, and everyone could know that they were indeed

15 foreign nationals. And we citizens heard that they had come from various

16 countries with the aim to fight.

17 There were a couple of unpleasant situations linked to them in

18 town because of the religious convictions of the members of those units or

19 that unit, because on a number of -- a couple of occasions in town, let us

20 say that they tried to enforce their own rules. And they would remove

21 young women from the streets, or women who in their view were

22 inappropriately dressed. They would destroy shops or coffee bars serving

23 alcohol, but this somehow came to an end.

24 Q. Thank you, Judge. And finally, would you say that you were happy

25 with the way the district military court operated? Would you say that you

1 were happy? I mean, were you happy with the prosecutors sending,

2 forwarding cases to you? The way the system operated, were you happy with

3 it?

4 A. I can't say who, but I think it had to do with the council of

5 Europe or the European Union that once carried out an analysis of the work

6 of military courts, and I think there is a document somewhere to that

7 effect. And the district military court in Zenica was given very high

8 marks.

9 We had various judgements. Some were extremely unpopular in those

10 days from the standpoint of public opinion, and there is no doubt that

11 this court did function like a civilian court and that it acted on all

12 cases that were submitted to us. So the quality of the work of the court

13 cannot be called in question therefore. But the court cannot work unless

14 it is provided with an indictment by the prosecutor or unless the police

15 reports on a perpetrator.

16 I do not know to this day whether the military court in Zenica

17 really did process everything that it should have processed.

18 Q. Thank you, Judge.

19 MS. HENRY-BENJAMIN: Mr. President, this concludes the

20 examination-in-chief. Thank you.

21 JUDGE ANTONETTI: [Interpretation] Very well. I turn now to the

22 Defence for their questions and cross-examination.

23 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President. After

24 some minor technical problems with my papers, I will begin my

25 cross-examination.

1 Cross-examined by Ms. Residovic:

2 Q. [Interpretation] Good day, Mr. Adamovic.

3 A. Good day to you.

4 Q. I am Edina Residovic, and we know each other for some time, but

5 for the record let me introduce myself once again. I am representing

6 Enver Hadzihasanovic, and as His Honour the President of the Trial Chamber

7 has already told you, I will have some questions to you relating to your

8 testimony as well as some other questions which may be of significance for

9 the defence of my client.

10 Is it true, Mr. Adamovic, that you were a judge of the Supreme

11 Court at the time when General Enver Hadzihasanovic was handed the

12 indictment, and he gave a statement to you saying that he wanted to come

13 to this court immediately so that you didn't have to engage in the

14 indictment procedure? Is that right?

15 A. A yes and no answer would not be right. It is true that I was

16 judge of the Supreme Court, but the rest of what you said is not right,

17 and I need to say the following: When I was judge of the Supreme Court,

18 three senior officers were brought in in a manner that I found

19 unacceptable. According to our legislation, there's no such thing as a

20 voluntary surrender. Those persons were taken into custody without them

21 being asked whether they would surrender voluntarily as that doesn't exist

22 according to domestic law. I claimed at the time that through the

23 constitution of Bosnia and Herzegovina which we could directly apply the

24 Tribunal Statute because from the book published by Zagreb Professor

25 Krapac, I had learned some things about the Tribunal, and I knew that

1 voluntary surrender and admission of guilt is very important when it comes

2 to the determination of sanctions. For this reason, I wanted to give the

3 persons brought in the chance to have equal access to the Tribunal as all

4 the others that are being indicted. And then I informed them of their

5 rights, even though our legislation does not envisage this.

6 And it seems that I was in an absolute minority in the Supreme

7 Court in this respect, and I objected, and I asked that the president

8 authorise one judge. She authorised me, and then I ruled that

9 General Hadzihasanovic, General Alagic, and General Kubura be freed of

10 their cuffs and then they became free men. And he then I asked them, "Do

11 you wish to voluntarily go to the Tribunal? Even though you were brought

12 in, I will order your release; but I want to know what your decision will

13 be," and all three said if they had asked us, we would have reported

14 voluntarily. Then they wrote that down, and I considered this to be

15 voluntary surrender.

16 Q. You have now explained it in detail. I didn't think Their Honours

17 needed such details, but nevertheless, my question led up to the following

18 question, that together with their Defence counsel, you escorted them to

19 the airport as free men; is that right? After that I, as their Defence

20 attorney, and you as the judge, never discussed this case again, did we?

21 A. No.

22 Q. Thank you. You told us that you were judge of the district

23 military court in Zenica, and is it true that the jurisdiction of the

24 court before the war and during the war and today was always determined by

25 law or by decree with the force of law? Is that right?

1 A. Yes.

2 Q. You also said that the decree was issued by the Presidency of

3 Bosnia and Herzegovina in August 1992, whereby it set up district military

4 courts as part of the judicial system of Bosnia and Herzegovina.

5 A. Yes.

6 Q. You also said, and let me repeat, that in accordance with the

7 constitution of Bosnia and Herzegovina in times of war, the Presidency of

8 Bosnia and Herzegovina, in expanded form, acts as the Assembly which is

9 unable to meet and issues laws and other Assembly acts in the form of

10 decrees with the force of law. Is that right?

11 A. Yes.

12 Q. In the same composition, the Presidency of Bosnia-Herzegovina

13 performs other duties such as appointment of judges and other officials of

14 the republic; is that correct?

15 A. You're reading it, so I suppose it must be correct. It's very

16 difficult for me to follow what you're saying. However, the logic of the

17 matter tells me that this would be correct.

18 Q. It was the Assembly of Bosnia and Herzegovina which appointed

19 judges of district and higher courts, and it was the Presidency acting as

20 the Assembly that appointed you as a judge of the district court in

21 Zenica; is that correct?

22 A. Yes, it is.

23 Q. I'm going to ask the usher to provide the witness with the

24 Prosecution Exhibits 357 and 3 -- 327 and 325.

25 A. I have 327.

1 Q. Then 325, please. Before we look at the law together, would it be

2 correct that in Bosnia Herzegovina, as is the case of the majority of

3 civilised countries in the world, a law is required to establish a court.

4 Is that correct?

5 A. Yes, we've already said that.

6 Q. A little while ago we spoke about their jurisdiction and

7 competencies being provided for by the law. You also told us that, but

8 the law also provides for their composition as well as the manner in which

9 these courts will act; is that correct?

10 A. Yes, it is. In this case it was the decree law that provided for

11 that.

12 Q. This decree law replaced the law during the war and there was an

13 obligation on the part of the state to adopt and ratify all of these

14 decree laws at the first -- at the first opportunity; is that correct?

15 A. Yes, that is correct. I just wanted to be precise for the

16 transcript, because it says here that this is a decree law; that is, a

17 decree with the effect of a law.

18 Q. It is beyond dispute that laws are required to establish courts

19 and their competencies. You have told us then that this law provided for

20 the independence of this court which should adjudicate only based on the

21 constitution and laws.

22 A. Yes.

23 Q. I with like to remind you of some of the provisions of this law.

24 Can you please look at Article 6 of this decree law on military courts.

25 Is it correct that district military courts tried cases involving

1 criminal offences committed by military personnel and certain criminal

2 offences committed by other persons? Is that correct?

3 A. Yes.

4 Q. That means that district military courts, in terms of their

5 competencies, differed from regular courts; is that correct?

6 A. Yes.

7 Q. In order to clarify the situation, one needs to say that regular

8 courts existed throughout the war. Is that correct?

9 A. Yes, it is.

10 Q. Their competency was based on the seriousness of the crimes that

11 were committed?

12 A. You're referring to which courts.

13 Q. I'm referring to the regular courts.

14 A. Yes.

15 Q. Basic regular courts were tried in cases where the prescribed

16 punishment was up to ten years and higher courts were competent in the

17 cases of crimes for which the punishment envisaged was over ten years.

18 A. Yes.

19 Q. Military courts were in charge of all the crimes regardless of the

20 punishment that was envisaged by the law because there was there was no

21 such thing as basic military courts; is that correct?

22 A. Yes.

23 Q. The second thing that I wish to clarify with you in terms of our

24 legal system is as follows: Is it true that before the war and during the

25 war, in addition to regular courts which were part of the judiciary system

1 within the scope of the state administration, there are also courts which

2 were called misdemeanour courts and which, as a matter of fact, tried

3 persons who were involved in minor disciplinary offences or minor crimes

4 with regard to those that were tried by other courts? Is that correct?

5 A. Yes.

6 Q. When the district military court was being established according

7 to this decree law dated August 1992, the first court to be established

8 was the court in Zenica. Its competencies should have covered the

9 jurisdiction of the regular court. That means the entire area which would

10 later on be covered by the entire 3rd -- by the 3rd Corps. This was in

11 August 1992.

12 However, because of the size of this area, in November of the same

13 year a new decree law was passed establishing the court in Travnik. Is

14 that correct?

15 A. I've already said that I'm not sure that the administrative

16 division corresponded. That means that I'm not sure whether there was an

17 overlapping between the corps and the courts that were supposed to cover

18 the area of those corps. I believe that there were some areas on the

19 margins of the district which were called free areas. For example,

20 something that should have been under the jurisdiction of Sarajevo was put

21 under the jurisdiction of Zenica. So those things did not fully coincide

22 on the ground. But it was spelled out that, for example, the district 4

23 for the area of Zenica, Maglaj and Tesanj, I don't want to be mistake in

24 that but you can find it written somewhere, and it's hard to say when this

25 corresponded with the -- with the control of the 3rd or 2nd Corps and

1 whether it corresponded with the administrative division. The competence

2 of this court was envisaged for certain municipalities. Sometimes it

3 corresponded; sometimes it didn't.

4 Q. My question and my -- I may not have been precise in putting it to

5 you, is whether you're aware of the fact that as of the 1st of January

6 1993 the district military court in Travnik was open for the area that was

7 provided for the law, or by the law?

8 A. Yes, I'm aware of that.

9 Q. Are you aware of the fact, Mr. Adamovic, that during the year 1993

10 in some places and especially in Travnik, a parallel judicial bodies were

11 established by the bodies of the Croatian council of Herceg-Bosna? For

12 example, in Travnik there was an HVO court which -- whose headquarters

13 were moved in June to Vitez.

14 A. I don't know whether there was parallel jurisdiction. I know that

15 they were, they existed, and they were active. I heard that those courts

16 were active, indeed.

17 Q. When we were talking about geographical competency of the district

18 court, would you agree with me that west to Zenica the separation of the

19 geographic competence between the district court in Zenica and the

20 district court in Travnik was actually the border between the municipality

21 of Travnik and the municipality of Zenica? Some were behind Ovnak. Would

22 that be correct?

23 A. Yes, I believe so. I believe that would be the case. I don't

24 know exactly where that border is but I believe that you're right.

25 Q. Based on the legal provisions and regulations in the area where

1 you were a judge in the territory of Zenica, there were also regular

2 courts and -- and special misdemeanour courts; is that correct?

3 A. Yes.

4 Q. We've already said that military courts tried military personnel

5 irrespective of the envisaged punishment. Would it be true that in the

6 territory where you acted as a judge in addition to the higher instance

7 regular court there are also basic courts in Zenica, in Travnik, in

8 Zavidovici, Kakanj, Visoko, and in Bugojno?

9 A. I believe that all these courts existed.

10 Q. In the statement that you gave to the OTP, and you have repeated

11 it on your testimony, you said that military courts tried military

12 personnel and civilian courts tried civilians. And this is in a nutshell

13 what can be said about the jurisdiction of these courts.

14 A. Yes, in a very, very broad outlines that would be correct.

15 However --

16 Q. However, the proceedings before the regular courts was conducting

17 in accordance with the law of the former Yugoslavia which was adopted by

18 Bosnia and Herzegovina and applied as its own law?

19 A. Yes. This is what we call the civilian law, which applied to both

20 civilian and military courts to the same extent.

21 Q. Your military court also applied the penal code which was applied

22 before the regular courts as well, and this penal code consisted of the

23 penal code of the former Yugoslavia which was adopted by Bosnia and

24 Herzegovina and the penal code of Bosnia and Herzegovina which had been in

25 force before the war and during the war; is that correct?

1 A. Yes.

2 Q. You as judges had a legal possibility which was prescribed by the

3 law to do your job in accordance with the constitution and the laws; is

4 that correct?

5 A. Yes, in the segment which involved trials.

6 Q. You've also told us that there were some minor changes in the Law

7 on Criminal Procedure, and you mentioned the fact that unlike in the past

8 when an indictment could be issued only for the crimes for which the

9 punishment prescribed was up to three years, this changed and that in the

10 war this was increased to five years.

11 A. The responsibility of the judges was to a certain extent enlarged,

12 as well as their obligations. More trust was placed in the courts because

13 of the circumstances.

14 Q. In substantive law, a major change happened in November 1992 when

15 the sanctions were increased for crimes committed during the war.

16 A. Yes. Especially this refers to crimes involving property, and the

17 envisaged punishments were stepped up.

18 Q. The town of Sarajevo was encircled and it was very difficult to

19 communicate with the parts of the state in the town. In Zenica, there was

20 a branch of the Supreme Court of Bosnia and Herzegovina which enabled you

21 to speed up appeal procedures against the decisions of your court.

22 A. Yes. I believe that there was such a branch of the Supreme Court

23 in Tuzla. Those were judges of the district court who had special power

24 to act as Supreme Court judges in a particular case.

25 Q. We're talking about the law on military courts, and you have told

1 us something about the -- the obligations to -- that the army had at the

2 end of 1993 and 1994 to supply us -- to supply you with materiel. Is it

3 true that in keeping with this law the military district court, in

4 administrative sense rather than in the functional sense, at the beginning

5 was -- it was tied with the Ministry of Defence, which is supposed to

6 provide it with materiel? At the end of 1993, it was tied to the Ministry

7 of Justice; is that correct?

8 A. Yes. There were some changes in terms of who would be supplying

9 the courts with the necessities. The essence of the fact was that

10 somebody was always in charge of supplying the court with the essence in

11 order to enable its work.

12 Q. As you have already told us, between the decisions of your court

13 and the decisions of regular courts, there was no difference because all

14 the appeals against the decisions of your court and the regular courts

15 were filed with the Supreme Court of Bosnia and Herzegovina.

16 A. Yes, but the appeals court for us was the regular court with

17 civilian judges, and it was the civilian judges, if -- we were also

18 civilian judges, but we were working as military court judges. I want to

19 avoid any confusion in terminology.

20 Those civilian judges were more clever than us, because they were

21 civilian judges and they were higher court -- higher instance court

22 judges, and the intention was for the civilian courts to be superior to

23 military courts. For both those courts, the Supreme Court was the top of

24 the pyramid, the Supreme Court.

25 Q. Within the judicial system of Bosnia and Herzegovina, military

1 courts were established together with military prosecutors' offices.

2 Those military prosecutors' offices were not subordinated to army unlike

3 the situation was in the JNA. Is that correct?

4 A. Yes.

5 Q. You have spoken about that in greater detail. The military

6 prosecutor's office kept the same authorities that were previously

7 provided for by the Law on Criminal Procedure, and those were to instigate

8 criminal proceedings, to issue indictments, and other authorities. Were

9 those the authorities of the military district prosecutor of Zenica?

10 A. There were -- there was much more than that, but yes.

11 Q. As you've told us, there were other authorities, but you have

12 already told us that the military prosecutor was responsible and had its

13 duties in the stage of the elucidation of crimes and the initial

14 instigation of proceedings, and this was done based on the criminal report

15 or on the information that the crime was committed; is that correct?

16 A. Yes.

17 Q. As you've already told us, the military police and the other

18 bodies of the BiH Army were the ones who filed most reports to the

19 prosecutor's office, but those who filed those reports could also be

20 civilians, citizens; is that correct?

21 A. Yes, it is. And I apologise. We mentioned another context. You

22 have mentioned a number of things, but they were -- there was also

23 information from the court itself. If people turned to the court first,

24 then the court would tell them to go to the prosecutor as the right

25 address to file their complaints with.

1 Q. This is also regulated by the law. Is it correct? I can provide

2 you with a copy of the law. In Article 148, it is provided that state

3 bodies, courts, and companies are duty-bound to file such reports and

4 citizens may do so if they wish to do so. Is that correct?

5 A. Yes, it is.

6 Q. When information was not sufficient for the prosecutor to

7 instigate proceedings, he was duty-bound by the law to collect additional

8 information on the crime and the perpetrator which is regulated by Article

9 150, paragraph III of this law. Is that correct?

10 A. Yes. The police is the body in charge of elucidating crimes, and

11 the prosecutor is in charge of collecting information that would

12 corroborate that there is reasonable grounds to suspect that the crime had

13 been committed, which is the grounds to instigate the proceedings and

14 issue an indictment.

15 Q. I will go back to the question that was put to you by my learned

16 friend about the existence of the district military court and special

17 military courts and other judiciary bodies which were dealing with the

18 criminal responsibility of the military personnel.

19 The same rule applies here as in any other court, that the

20 establishment of any court, be it a regular military court or a special

21 military court, which you referred to as a court-martial, or a

22 disciplinary court is always founded in the law; is that correct?

23 A. Yes. Yes. This should be the case. It should always stem from

24 law.

25 Q. The law also has to establish the jurisdiction of such courts, of

1 any such court, and the procedure provided for before such courts; is that

2 correct?

3 A. Yes.

4 Q. Can you please look at Exhibit P325, which will remind us of the

5 basic principles that we as lawyers certainly agree on.

6 In Article 2 that you have already commented upon, and you have

7 told us when these courts are established. According to this Article 2

8 would it be correct that these are not regular permanent courts but,

9 rather, ad hoc courts which may be established pursuant to the order

10 issued by a brigade commander under conditions provided for by this law?

11 A. Yes. This is what I said.

12 Q. Unlike the district military courts and regular courts which are

13 permanent bodies, these are nothing but ad hoc courts which are

14 established under circumstances provided for by law and for actions

15 provided for by law.

16 A. Yes, that's correct.

17 Q. Please, can we look at Article 3, the bullet points on page 322.

18 There are several bullet points here. Would it be correct that these

19 bullet points actually speak about the actual competencies of this court?

20 That is, they mention the actions or acts committed by servicemen for

21 which a court-martial may be established and for which a commander may

22 order a drastic penalty such as the death penalty. In other words, only

23 these acts are the ones that the court marshall can be competent for; is

24 that correct?

25 A. Yes, it is.

1 Q. So this court will only adjudicate in the cases of abandoning the

2 line, violations of duty, when it is necessary for the unit to act in

3 order to save the lives of its members or to save the territory. In such

4 cases, the commander could establish such an ad hoc or special court; is

5 that correct?

6 A. It is very difficult for me to say whether this is the case or

7 not, because at the very beginning you mentioned discipline. It is true

8 that we are talking here about disciplinary responsibility, and it is

9 pointed out that the command had to be obeyed in order to -- for the unit

10 to achieve its goal. But there is something here that has nothing to do

11 with discipline. For example, eviction or teaming up with the enemy's

12 side. This constitutes opposition to the unit which is contrary to the

13 activities of this unit. In general terms it can be said that this is

14 done in order to preserve the situation. That is what it is, to give

15 prevalence to the unit that is punishing its member for the disruption of

16 the unity of this unit or putting this unit in jeopardy.

17 Q. However, we will agree that this law expressis verbis as

18 enumerated all those situations that may be adjudicated by this court and

19 its competencies may not be extended to some other acts which are not

20 envisaged by this law.

21 A. The regiment commander or the brigade commander referred to in

22 Article 2, in order to organise such a court, must have something like

23 that, but because of everything that is said in bullet point 2 of Article

24 2, the commander is duty-bound to issue such an order pursuant to a

25 previously obtained consent of his superior commander.

1 For example, a regiment commander says five people have crossed

2 over to the other side. I've managed to capture them. This has a bad

3 influence on the unit. Those are well-known fighters. They might

4 influence other people. I want to establish a court martial. I do not

5 have access to the regular court. I want to punishment -- punish them.

6 And then if his superior is general, he will address the general and ask

7 for his permission to establish the court martial. And if everything is

8 correct in his allegations, then the general will issue such an order. If

9 the general does not agree to the establishment of the court martial, the

10 court martial must not be established.

11 I beg your pardon. I'm professionally deformed, I must say.

12 Q. So when we were talking about special military courts, we knew

13 quite clearly that these were quite separate courts which were within the

14 framework of the Army of Bosnia and Herzegovina and whose entire

15 jurisdiction is specified by the law that we are just looking at. Is that

16 right?

17 A. Yes.

18 Q. Is it true that in the army, as in civilian life, there are minor

19 offences which are not dealt by by regular courts, regular military

20 courts, if they're not criminal offences, nor are they the type of

21 offences that are dealt with by special military courts, but these minor

22 infractions are dealt by military disciplinary courts.

23 A. That relates to the army structure that has to do to the rules of

24 service, the chain of command, et cetera. That is all provided for within

25 the framework of the structure of the army and the chain of command.

1 Q. Will you please look at Prosecution Exhibit 325. Page 333.

2 Articles 44, 45, 46, 47, and onwards. These are provisions of the rules

3 on military discipline which was adopted in accordance with the decree

4 with the force of law on service in the Army of Bosnia-Herzegovina. And

5 is it true that these provisions in Article 45 envisaged the formation of

6 military disciplinary courts?

7 A. Yes. This confirms what I just said. This is a separate book of

8 rules with respect to military discipline, and it applied within the army,

9 and it had to do with the structure of the army.

10 Q. And in Article 46, it says that these courts were earlier formed

11 by district defence ministries and later by army corps. So if we wish to

12 round-off the structure of courts that could try military personnel, they

13 would be district military courts for all offences committed by military

14 personnel. Then a special military court, which is an ad hoc court for

15 exceptional circumstances, and a discipline court that was formed within

16 the army for minor infractions of military discipline.

17 It is time for the break perhaps now, so I could continue after

18 the break, Mr. President.

19 A. If I -- I don't know whether I have any say in the matter, but I

20 would like to have a break, if possible, now.

21 JUDGE ANTONETTI: [Interpretation] It is 12.30, and we will resume

22 about five to 1.00.

23 --- Recess taken at 12.30 p.m.

24 --- On resuming at 12.59 p.m.

25 JUDGE ANTONETTI: [Interpretation] Before giving the floor to the

1 Defence, let us look at our calculations to see how much more time would

2 you need for your questions, Madam?

3 MS. RESIDOVIC: [Interpretation] Mr. President, I have completed

4 one-third of my questions, which means that I would need a total of two

5 hours, and I have spent about 45 minutes of those two hours.

6 JUDGE ANTONETTI: [Interpretation] Very well. So we won't finish

7 today.

8 And the other Defence team, how much time will they need?

9 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. If we

10 have any questions, we will need only a short period of time, maybe a few

11 minutes.

12 JUDGE ANTONETTI: [Interpretation] As the Judges will certainly

13 have questions, and you certainly expected it, the hearing will be

14 continued tomorrow, but this could cause a problem with the investigator

15 that -- who has been planned. Perhaps we could begin with the

16 investigator tomorrow and then continue on Monday.

17 Mrs. Benjamin, could you help us?

18 MS. HENRY-BENJAMIN: Mr. President, the investigator is an

19 internal witness. He is here all the time, and we do not anticipate that

20 we have anybody for Monday. So maybe we could finish with the judge

21 and -- so that he can go, and we can do the investigator Monday.

22 JUDGE ANTONETTI: [Interpretation] Yes, indeed. I think that would

23 be a good idea. As the investigator is available, as he is here, there

24 should be no problem in hearing him on Monday.

25 So I give you the floor again, Madam.

1 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President.

2 Q. Mr. Adamovic, before the break we were discussing the main

3 jurisdiction of the court of which you were a judge, the district military

4 court. However, the law in many other cases also provides for exceptions.

5 So this law, too, provided for exceptions when the military court does not

6 try military personnel or, rather, when the military court can try

7 civilians. So I should like to ask you to look at Exhibit P327 and

8 Article 9 to begin with. It is page 319 of the decree.

9 Is it true that the law envisages, and this did occur in practice

10 because the courts acted absolutely in line with the law, that when a

11 serviceman and a civilian committed an offence as co-perpetrators or as

12 accessories, then a regular court has the jurisdiction to try the

13 civilian, but that court shall also try the serviceperson as well.

14 A. That is what it says.

15 Q. This was an exception according to which regular courts would try

16 a military personnel, so that in Zenica during the war, there was

17 situations in addition to district military courts, basic courts would try

18 military men for lighter offences and for more serious offences higher

19 civilian courts when such situations occurred as envisaged by this

20 article?

21 A. I think so.

22 Q. Now let us look together at Article 7, when the military court,

23 which mainly tries military men, can also try civilians.

24 Is it true that in this Article there's a specific indication of

25 when the military court can try civilians? Let us start from the last

1 paragraph.

2 In this last paragraph, it is indicated when your court could try

3 civilians who had the position of employees in the army and who had

4 committed a criminal offence in the course of their duty.

5 I don't know whether you had any such cases in your practice

6 during the war.

7 A. It's possible, but I don't remember.

8 Q. However, in Article 7, paragraph one, there is a list of the

9 offences from the law taken over from the SFRY, and I would like to ask

10 the to show the judge this law, for him to look at it, that is to show the

11 witness this book.

12 A. Thank you.

13 Q. I just wish to ask you, is it true that those were offences under

14 Article 114, which is attack on the constitutional order? Then 118, 119,

15 121? These were criminal offences jeopardising independence, preventing

16 the struggle against the enemy, service in an enemy army. And then

17 Article 122, assisting the enemy. And then Article 123, undermining

18 military and defensive ability, Article 124, armed rebellion, Article 125,

19 terrorism against a military facility, then sabotage and espionage against

20 a military facility, disclosing a state secret if it was a military

21 secret, then violations of territorial integrity, enemy activities, and

22 all the criminal offences that you yourself referred to under chapter 20

23 and related directly to the army, dodging service, non-response to

24 mobilisation, calls, et cetera. Are those the criminal offences for which

25 the district military court, if an indictment had been issued, would also

1 try civilians? That is, would the military court also try civilians on

2 these charges?

3 A. Yes.

4 Q. In the court, you probably conducted investigations against a

5 number of persons, a large number of persons, for armed rebellion, and

6 these proceedings were later halted; is that right?

7 A. Could you please repeat that question?

8 Q. The court received a request for an investigation to be conducted

9 against persons who were disarmed members of the HVO, and the request was

10 that they be tried for armed rebellion.

11 A. Yes.

12 Q. As they were not members of the army, having been disarmed, they

13 would have to be considered civilians. And pursuant to this article, you

14 had the authority to put them on trial.

15 A. Yes.

16 Q. I think that brings me to the end of questions linked to the

17 competencies of the military court of which you were a judge and pursuant

18 to this decree on the formation of that court.

19 MS. RESIDOVIC: [Interpretation] Mr. President, in view of the fact

20 that I would now like to ask the witness several questions which have to

21 do with certain responsibilities of judges in accordance with the Law on

22 Criminal Procedure and on one occasion you said that it would be a good

23 idea for one of the parties to provide you a translation of the whole law

24 and the Defence has found in the library of this Tribunal a translation of

25 this law, and I would like to give you a copy. As for the other parties,

1 I will provide them only with some of the extracts about which I will be

2 asking this witness.

3 Also, as the Judge has already said, the Judge did not rule only

4 on the basis of the former SFRY but also on the basis of the law of Bosnia

5 and Herzegovina. We also have a translation of that law. So if

6 Your Honours consider that might be of assistance, we are not tendering it

7 into evidence, but we feel it might be of assistance to the Trial Chamber.

8 JUDGE ANTONETTI: [Interpretation] Madam Benjamin, no objection?

9 MS. HENRY-BENJAMIN: [Previous translation continues] ...

10 JUDGE ANTONETTI: [Interpretation] But the Defence could also ask

11 for these documents to be tendered into evidence.

12 MS. RESIDOVIC: [Interpretation] We have a copy in English for each

13 of the judges, for the Registry, and one for the Prosecution, and only

14 extracts in Bosnian for the other parties in the proceedings and for the

15 witness, because of course I won't be asking him about all the provisions

16 of that law but only a few.

17 At the same time, perhaps it would be a good idea for me to give

18 the judge the whole text of the law, as this is a component part of his

19 everyday activities, and I am sure he will find his way around it quite

20 easily.

21 JUDGE ANTONETTI: [Interpretation] Especially as he must know this

22 document by heart.

23 MS. RESIDOVIC: [Interpretation] Your Honour, we were taught that

24 we should learn it by heart, but the book itself would always be in the

25 courtroom and we would have to look it up.

1 THE WITNESS: [Interpretation] Even today our judges, older judges,

2 don't like to see younger judges without holding the book in their hands.

3 MS. RESIDOVIC: [Interpretation]

4 Q. Well, thank you. Let us not deviate too much from the subject

5 matter at hand.

6 So is it true that this Law on Criminal Procedure was in force in

7 Bosnia and Herzegovina with quite insignificant amendments throughout the

8 war while you were a judge of the district court?

9 A. Yes. That is the law that was taken over from the SFRY and was in

10 force. That is the Law on Criminal Procedure.

11 Q. This law regulates the competences of the Prosecution, the interim

12 affairs bodies, the judges, and defence counsels, so of all the parties in

13 the proceedings?

14 A. Yes.

15 Q. Could we now discuss what you referred to at one point, that is

16 the military police.

17 MS. RESIDOVIC: [Interpretation] Mr. President, this extract that I

18 have just provided relates to the Law on Criminal Procedure and not to a

19 second section, that is, the criminal law of Bosnia-Herzegovina, because I

20 won't have any questions about that law. But I just took advantage of the

21 opportunity to hand to you the translation of that law as well.

22 Q. We referred earlier on to the obligations of persons to submit

23 criminal reports, and I would like to ask you to look at the provisions of

24 Article 149, 150, and 151. I'm sorry, 148, 149, 150, and 151.

25 Are these provisions regulating questions as to who files a

1 criminal report and how that criminal report is dealt with?

2 A. Yes.

3 Q. Article 151 actually specifies the powers of the internal affairs

4 organs, and as you have already said, the military police and the military

5 security service had the authority before court which regular police

6 forces have in regular courts; is that right?

7 A. Yes.

8 Q. Unfortunately, the interpreters are asking me whether we have an

9 English translation, but we don't, I'm afraid. I'm sorry. I apologise,

10 Mr. President. I do have my copy of this law, so my legal assistant will

11 carry it to the interpreters in their booth.

12 So is it true, Mr. Adamovic, that organs of internal affairs or

13 security organs and the military police ex officio had to take certain

14 measures to make sure that the perpetrator is found and evidence secured?

15 A. Yes.

16 Q. In that capacity, those organs had the powers to call in certain

17 persons to give them information they were interested in, and without any

18 special procedure, that they could detain those persons up to 24 hours?

19 Is that right?

20 A. Yes.

21 Q. Those statements which the military or civilian police took from

22 these people could not be used in evidence, and the trial judge could

23 never see them?

24 A. Exceptionally he could. You remember the rules that said

25 exceptionally some documents could be used from prior proceedings.

1 Q. The police or, rather, security organ, be they civilian or

2 military, in accordance with this law, could, if there were suspicions

3 that a certain person had committed a criminal offence, they could take

4 him into custody and hold them in detention up to three days.

5 After that, if they felt that that person should remain in

6 detention, they had to inform the prosecutor and the court and ask that

7 the judge pass a decision determining the duration of the detention.

8 A. This was detention on remand, but later on the detention was

9 counted as a period of serving sentence. So it is police detention, on

10 the basis of police authority, and later on the judge would rule on

11 detention to ensure the presence of the suspect.

12 Q. If there were any suspicions that some civilians had also

13 committed criminal offences coming under the competence of the military

14 court as envisaged by Article 7, which we saw a moment ago, they could

15 call in civilians to take information from them or to keep them in custody

16 for three days?

17 A. Yes. And they could ask for the assistance of the regular police.

18 I don't know how it came about, but I think it was a positive development

19 that the civilian and the military police would inform each other, and if

20 there were combined perpetrators, civilian and military, the two forces

21 would cooperate and exchange information.

22 Q. So you are a witness of the practice of assistance, mutual

23 assistance between the civilian and the military police so that they could

24 detect the perpetrators of offences without harming the interests of the

25 public.

1 As you yourself said, this was a positive development, but it

2 would also be quite lawful if the military police and military authorities

3 would take statements from persons that they suspected had committed an

4 offence under Article 7.

5 A. Yes. But I also added what was noted in practice. There was even

6 more mutual coordination than that, of course, when people were sensible

7 and willing.

8 Q. You explained to my learned friend in some detail the role the

9 judges had in criminal proceedings, and you said that courts would first

10 engage in investigations on the basis of a request of the military

11 prosecutor for a particular person to be investigated for a specific

12 offence, and after that trial proceedings would be instituted once the

13 prosecutor submitted charges to the court, or the indictment; is that

14 right?

15 However, is it also correct -- can you look at Article 156 in the

16 penal code to remind ourselves. Is it true that the laws regulated such

17 situations in which the investigating judge, upon receiving information

18 that a crime had been committed and this information he could receive

19 primarily from the military police or from anybody else for that matter,

20 such a judge could carry out some investigation even before the prosecutor

21 officially requested for the investigation to be carried out?

22 A. The way you worded your question is before the Prosecution asks

23 for the investigation. In Article 156 it refers to the activities of the

24 investigating judge who has the actual competency to examine the request

25 of the prosecutor as well as of the judge who is not actually competent

1 but is rather a lower instance court judge who by virtue of the matter

2 could not try such a case let alone be investigative judge. So such a

3 judge can carry out certain actions in order to obtain evidence which

4 could not be otherwise obtained because of the delay. And this is what it

5 says here.

6 These actions whose postponement would be risky even before a

7 decision to conduct an inquiry, but the competent public prosecutor must

8 be informed of everything that is done. Evidence has to be provided, and

9 this exception relates to that particular situation.

10 Q. This is exactly what I was going to ask you. These are the cases

11 that you explained about in response to my learned friend's question. For

12 example, there is a fire, a murder, or burglary, and in order for evidence

13 to be obtained, an investigative judge is sent to the spot and take action

14 which are provided for in the law; is that correct?

15 As a rule, the competent prosecution had to be present as well as

16 the military or civilian police. However, irrespective of that, the judge

17 was duty-bound to inform the military prosecution of all the actions that

18 he had undertaken; is that correct?

19 A. Yes, but you have to bear in mind that the judges were not the

20 ones to instigate procedures. They could obtain evidence, because the one

21 who instigates proceedings cannot guarantee the validity of evidence.

22 Before the trial to provide for the validity, the judge was sent to the

23 spot to obtain evidence.

24 Q. However, irrespective of the fact that you as a judge would

25 forward the record and the evidence to the prosecutor, the court has kept

1 a copy of that record and a KRI number was given to such record?

2 A. Yes. This was a paper trail that corroborated what the judges

3 have done, and this was also a way to control the processing of such a

4 case. For example, if the aggrieved party in this case is in a position

5 to re-examine the -- the previous case and its existence, and if it is

6 discovered that this case has been misplaced or misused by the prosecutor,

7 such an aggrieved party had always at his disposal the archives of the

8 court to verify that.

9 Q. During an on-site investigation, if the judge found on the spot

10 the eyewitnesses of the event, the judge would take their statements,

11 their brief statements. The judge would also record their personal data

12 so as to enable the prosecutor to access these witnesses in the future.

13 A. Yes. You're referring to Article 156. As a matter of fact, it is

14 Article 238 where it says that the on-site inspection is carried out when

15 the immediate knowledge is necessary. From this it stems that in order to

16 provide the evidence for the court, the investigating judge has to be sent

17 to the spot.

18 In Article 156, this authority is also given to the judges who do

19 not have competencies and the ultimate goal is to obtain evidence in order

20 to instigate proceedings.

21 Q. So you would also obtain information about eye witnesses. You

22 would record that?

23 A. Yes. There was even a possibility provided to us to carry out

24 interviews, because here also the postponement or delay was dangerous.

25 For example, somebody may have been injured, and the injury may have been

1 lethal. So this person had to be interviewed immediately.

2 Q. It seems that we are too fast. On the spot of the crime, the

3 judge could also order somebody to be remanded in custody if the suspect

4 was found on the spot.

5 A. Yes. This was done by the police on the request of the authorised

6 judge who had grounds to believe that a crime was committed. However, the

7 authorities of the judge in remanding somebody in custody was relative to

8 the time given to the prosecutor to instigate proceedings.

9 In general terms, one may say that the judge may have ordered

10 somebody to be remanded in custody.

11 Q. In addition to that, the judge could also issue an order to other

12 bodies to carry out certain investigative actions. For example,

13 exhumation, paraffin glove expertise or any other investigative procedure

14 leading to obtaining evidence for a future procedure?

15 A. These special investigative procedures which are specified in the

16 new law on are not similar to the ones that were provided for before are

17 relative to the on-site inspection. The requirement to carry out an

18 on-site inspection call for the activity of the judge.

19 The things that you have now mentioned are part of the regular

20 procedure, subsequent procedure. However, if a perpetrator or a suspect

21 was found on the spot with a pistol in his hand, every judge would order

22 for this person to be subject to a paraffin glove test in order to see

23 whether there are any traces of gunpowder on the hand of the person. You

24 have to know that such traces remain on the skin for only a limited period

25 of time.

1 Q. The fact that a judge was on the spot and in 99 per cent the

2 prosecutor as well, and it is the judge that's admitted the complete

3 documentation to the prosecutor, everything else that happened in the

4 proceedings was carried out on the order of the prosecutor?

5 A. Yes, with the prior court's approval.

6 Q. Thank you. And now a few questions about problems in detection,

7 prosecution, and adjudication. You were telling us about very hard

8 conditions of your work. You didn't have paper or any other resources.

9 In general terms, could you maybe confirm that during 1993 and 1994, all

10 the bodies and law enforcement agencies in Zenica faced huge problems

11 which made the performance of your duties extremely difficult.

12 A. War always brings extreme conditions, and all the bodies worked in

13 extreme conditions.

14 Q. In addition to the problem of resources, you as a judge faced

15 another major problem, and that was a huge number of refugees and a major

16 fluctuation of people in the area. So it was very difficult for you to

17 establish the identity and the place of residence for -- of certain

18 suspects or witnesses to your future case; is that correct?

19 A. Yes. This was just one of the problems that we faced in the

20 processing of war crimes and crimes in general.

21 Q. In addition to that, as you have already told us, the problems

22 arose from the war situation itself, because not far from Zenica combat

23 operations were taking place, and there were front lines in the vicinity,

24 especially during 1993, facing the Army of Republika Srpska and the

25 Croatian Defence Council; is that correct?

1 A. Yes.

2 Q. You also faced the fact that a number of crimes were perpetrated

3 during the night by unknown perpetrators. Very often the military police

4 and the security organs complained about extremely -- extremely huge

5 problems in obtaining evidence as to who was it who perpetrated certain

6 crimes; is that correct?

7 A. There's no rule about when crimes are committed. They can be

8 committed in the morning, in the afternoon, or during the night. The

9 general complaint was that the conditions of work are aggravated by the

10 war situation. Everything that is normal in peacetime and that can be

11 done very fast in peacetime starting with establishing communication,

12 transportation to the spot of the crime in the wartime is slowed down or

13 totally impossible because of the conditions of war.

14 However, it would also happen that we would be informed that

15 something was absolutely impossible and then we would go to the police and

16 find the police officers playing cards. And then their commander would

17 order them to go somewhere. Sometimes they just couldn't be bothered.

18 They didn't want to go to the spot of crime.

19 Q. In addition to that, in your role as a judge you encountered

20 situations when people would carry arms illegally. There were people who

21 also wore uniforms, and they were not members of the army. There was also

22 false identification by persons who wanted to enter other people's

23 apartments; is that correct?

24 A. Yes. We had such things in our judicial practice. However, in

25 everyday life, we have to bear in mind who was it who was in charge of

1 that. The given place dealt quite successfully with such cases. However,

2 everybody who wore a uniform would also carry arms. Who was it who

3 checked who these people were? We couldn't know it.

4 I can just tell you that when you came across a person in uniform

5 carrying arms, an average person would immediately think that that person

6 was a soldier. And it was only the army or the army police, the military

7 police, who could check that. It was very difficult to spot a civilian

8 with the arms, and the civilian police would react immediately.

9 The information that you have just mentioned is the information

10 that can be found in the court documents. People would inform us about

11 people who carried illegal weapons and were not soldiers, people who

12 falsely impersonated people and said they were who they were not to break

13 into people's apartment.

14 Q. Is it true, Mr. Adamovic, that the investigations were encumbered

15 with, and that is the fact that a significant number of people, especially

16 from the vicinity of Zenica and Zenica itself would go to the areas under

17 the control of the Croatian Defence Council, and these areas were banned

18 to the military police, the military prosecutors, or you as judges, so

19 none of you could go there and carry out your investigations; is that

20 correct?

21 A. The crime can cross all the borders, even during the war. It has

22 always been the case in every country in the world. Now, one would have

23 to analyse to what extent this happened in Bosnia and Herzegovina. There

24 were cases of people fleeing to the enemy territory, of course.

25 Q. Very often it was sometimes impossible to carry out an interview

1 with the victims, because those people would also leave to the areas that

2 were under the control of the HVO, and you as a judge did not have the

3 means to summon them and to hear them before the -- before the court at

4 that time.

5 A. Well, if I answered that, then I would have to quote some of my

6 cases. I don't remember in any of my cases that I was unable to hear

7 people. There was always a possibility for you to look for somebody who

8 had crossed to the other side. But this applied less to the victims and

9 more to the criminals, irrespective of their ethnic background. Those

10 criminals would flee to the territory where they were sure they would not

11 be arrested. There were a few places the on the border where criminals

12 could always cross the border and do their business. A normal citizen

13 would not be able to do that. They were not in a position to do that.

14 And these were the places where the largest abuse of uniform and weapons

15 took place.

16 Q. Is it true, Mr. Adamovic, that the military police, although it

17 did have information that something had taken place, sometimes could not

18 get hold of enough evidence or enough information that this was indeed a

19 crime rather than an accident, and that in such a situation the military

20 police did not have enough grounds to file a criminal report. In that

21 case, they would hold on to the file until the moment they have more

22 evidence, enough evidence for submission of that report to the prosecutor.

23 Was that the situation in Zenica?

24 A. I don't know what the military police did in those -- in that

25 respect. I didn't cooperate with the military police in that respect. I

1 know that every time a judge was called to the site after a certain time

2 the judge would ask to see what was done in respect of the orders that

3 stemmed from their on-site investigation. And in one way or another, we

4 kept control or finalised our work.

5 In cases, as the one that you have mentioned, it is very possible

6 that a certain number of cases or files were encumbered with the

7 difficulty in obtaining evidence due to the accumulated degree which would

8 be sufficient for a criminal report. However, the relationship with the

9 prosecutor and the police should have been such so as to not extend that

10 beyond any deadlines.

11 The prosecutor also had to have and exert some control and check

12 why some cases were stalled. If this hadn't been done, this would open

13 room for abuse, because, for example, imagine a situation where a

14 prosecutor called the military police to ask what was going on the

15 military police says, "Well, we haven't got enough evidence." If that was

16 indeed the case, then the -- an order should be -- should have been given

17 for -- for other means to be employed to obtain evidence.

18 If the police, on the other hand, for example, said to the

19 prosecution, "We went to the ground. We didn't find anybody," then this

20 was abuse of position.

21 In some cases you did file a criminal report against the military

22 police for abuse of their position in the army, and this was recorded. We

23 did that because we had noticed that the members of the army actually

24 sabotaged our work or provided us with false information, or we did that

25 in order to preserve the authority of the court in a crisis situation. We

1 wanted to so them that they couldn't behave in that way?

2 THE INTERPRETER: Could there be pauses between questions and

3 answers, please.

4 THE WITNESS: [Interpretation] Allow me to finish what I was

5 saying. Everything was possible. Everything was prescribed by law. All

6 the services existed, and I'm claiming seriously that everything depended

7 on how much people were ready to do, whether they were tricking or

8 cheating each other, whether they were serious or not. There was the

9 system. There was the police to detect. There was the prosecutor to

10 prosecute. There was the court to try. Whether any of these segments

11 should have acted properly and did not do so can be seen in the various

12 stages of the proceedings.

13 You enter the court. You look at the files. All have been

14 recorded, and you see for which no judgements were made. In the case of

15 the prosecutor, one has to see whether all the criminal reports he

16 received he passed on to the court in the form of a request for an

17 investigation or by issuing an indictment, or did he close the case

18 feeling that there was no grounds for continuing the proceedings. Again

19 there must be a record of this.

20 Then there's also the police. One has to look at the complaints

21 of citizens and things that are public knowledge, whether this has been

22 recorded in the police. And then you will see what each of these segments

23 did and what they didn't do.

24 MS. RESIDOVIC: [Interpretation]

25 Q. Thank you for your lengthy answer. I'm sure he know, like I do,

1 that there is a figure of crime, that is the crime rate.

2 A. And I'm not talking about that. I'm talking about to what extent

3 each entity worked seriously.

4 Q. Under wartime conditions, this crime rate is greater, and it is

5 more difficult to get hold of data than in peacetime.

6 A. It was to be expected that the crime rate should go up drastically

7 because of wartime conditions, but strangely enough, and I was explaining

8 this at a professional rally, the crime rate did not increase in Bosnia

9 and Herzegovina to the extent expected. I don't know what the explanation

10 is, but it does not correspond to similar figures in other countries at

11 war.

12 Q. Let us move on to another matter. I'll be coming back to this

13 question later using some figures, but is it true, Mr. Adamovic --

14 JUDGE ANTONETTI: [Interpretation] I am looking at the clock, and

15 we will continue tomorrow.

16 So, Judge Adamovic, you must not have any contact with anyone from

17 now until tomorrow. You are a witness of the court now. You don't belong

18 to any party. So please be back here tomorrow for the hearing, which will

19 begin at 9.00 a.m. And I think that during the day we will finish your

20 testimony by 13.45 at the latest.

21 If there is no other matter on the agenda, the hearing is

22 adjourned, and I invite you all to be back here tomorrow at 9.00 a.m.

23 I shall give back to the registrar two exhibits that he gave me

24 which have been registered, and I wish to return them to him. Thank you.

25 --- Whereupon the hearing adjourned at 1.45, to be

1 reconvened on Friday, the 25th day of June, 2004, at

2 9.00 a.m.

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