1 Thursday, 29 January 2004
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE LIU: Call the case, please, Mr. Court Deputy.
7 THE REGISTRAR: Good morning, Your Honours. This is Case Number
8 IT-02-60-T, the Prosecutor versus Vidoje Blagojevic and Dragan Jokic.
9 JUDGE LIU: Thank you.
10 Good morning, Witness.
11 THE WITNESS: [Interpretation] Good morning.
12 JUDGE LIU: Did you have a good rest last night?
13 THE WITNESS: [Interpretation] Yes.
14 JUDGE LIU: Are you ready to start?
15 THE WITNESS: [Interpretation] Yes.
16 JUDGE LIU: Thank you.
17 Ms. Davis.
18 MS. DAVIS: Thank you, Your Honour.
19 If I could have the assistance of the usher.
20 WITNESS: NOVAK KOVACEVIC [Resumed]
21 [Witness answered through interpreter]
22 Examined by Ms. Davis: [Continued]
23 Q. Good morning, Mr. Kovacevic.
24 MS. DAVIS: If I could have the assistance of the usher. I would
25 like the witness to be shown what has previously been admitted as P380.
1 Q. Mr. Kovacevic, do you recognise this document?
2 A. Yes, I do.
3 Q. And can you tell us what it is.
4 A. These are the guidelines for the criteria for criminal prosecution
5 which were made in 1992 by the military prosecutor's office at the Main
6 Staff of the Republika Srpska Army. And these guideline contain
7 instructions indicating how to proceed that laws on criminal procedure and
8 criminal codes should be complied with and that perpetrators of criminal
9 offenses should be prosecuted in accordance with these laws.
10 Q. And was this document in force and effect throughout the war?
11 A. Yes.
12 Q. So it was in effect in July 1995?
13 A. Yes.
14 Q. If I could have you turn in your version to the page that's marked
15 00760352. And in the English version it would be 008114 -- 4383, excuse
16 me. I would like to direct your attention to the underlined heading
17 that's marked number 3, which appears to begin a section addressing
18 guidelines for -- sorry. I'll let you get to the page.
19 A. Could you please repeat the page number.
20 Q. Yes, certainly. It's 00760352.
21 A. Could you please just tell me what the page is. Perhaps it would
22 be easier that way.
23 Q. Page 11 in the B/C/S version.
24 A. Yes, yes.
25 Q. Again, I would like to direct your attention to the underlined
1 heading that's marked number 3, towards the bottom of the page. And it
2 appears to begin a section addressing guidelines for criminal offenses
3 against humanity and international law, pursuant to chapter 16 of the
4 criminal code. Do you see that?
5 A. Yes.
6 Q. Now, in the B/C/S version there are some blank pages, so you'll
7 have to turn two pages over. If you could read the paragraph that begins
8 at the bottom of that page under heading number 3 and then continuing to
9 page 12. I would like to just give you a moment to look that over.
10 A. Do you mean to start right from the beginning, the legal
11 classification of criminal offenses from this chapter has been adopted
12 from international conventions with some adaptation and closer definition.
13 Q. I don't want you to read it out loud. I just wanted you to read
14 it to yourself and take a moment to review it.
15 A. Fine, yes.
16 Q. And I know you've had an opportunity to see this document when you
17 met with me in my office yesterday. Isn't that right?
18 A. Yes.
19 Q. On page 12 in your version, which is 00760354, the third paragraph
20 down the page refers to some criminal offenses, specific criminal offenses
21 under the criminal code. Do you see those references?
22 A. Yes.
23 Q. And it indicates that the criminal law applied in the territory of
24 the Republika Srpska defines 16 criminal offenses against humanity and
25 international law, including genocide, war crimes against the civilian
1 population, war crimes against the wounded and the sick and against
2 prisoners of war.
3 Are you familiar with the legal references that are mentioned here
4 in this document?
5 A. Yes.
6 Q. And do you agree with this document, that those laws referred to
7 there were in effect in the Republika Srpska in 1995?
8 A. Yes.
9 Q. If you could turn to the page 14 in your version, which is
10 00760358. In the English version, for those who are using that copy, it's
11 00814384. The second and third paragraph on that page -- the first full
12 paragraph and the paragraph following that appear to address obligations
13 of the VRS with respect to violations of the laws that are outlined and
14 described previously in the document.
15 Can you tell the Court what this document indicates about the
16 duties of officers of the VRS with respect to preventing and reporting
17 violations of crimes against humanity and international law.
18 A. It states that if somebody has learned to -- that a criminal
19 offence has been committed, that they are duty-bound to take certain
20 action and to submit criminal reports with the -- to the competent
21 military prosecutor's office.
22 Q. Thank you. We don't need to look at that document anymore.
23 MS. DAVIS: You can -- if I would ask the usher to please provide
24 the witness with the document that has been previously marked as P715 for
25 identification purposes.
1 Q. And I'll ask you also with respect to this document whether it's
2 something that you recognise.
3 A. Yes.
4 Q. Can you tell us what it is.
5 A. This is the criminal code of the former socialist federative
6 republic of Yugoslavia, which was also in force in the Republika Srpska,
7 because until 1992 we did not have our own laws. And then a decision was
8 passed that the criminal code of the Socialist Federative Republic of
9 Yugoslavia and of the former Socialist Republic of Bosnia and Herzegovina,
10 as it was styled, be in force. This is the general part of the criminal
11 code, and we also had the special part of the law, which was the law of
12 the socialist republic of Bosnia and Herzegovina.
13 Q. Okay. So this criminal code, was it in force and effect
14 throughout the war in the Republika Srpska?
15 A. Yes.
16 Q. So it was in effect in the Republika Srpska in July 1995?
17 A. Yes.
18 Q. I would like for you to turn to the page marked 00253459 in the
19 B/C/S version. This would be the first page of the English version. And
20 the page number of the book is 67, if that helps. This page indicates at
21 the top, chapter 16, criminal offenses against humanity and international
22 law. Then it goes on to list various offenses, the first one being
23 Article 141, genocide. Do you see what I'm referring to there?
24 A. Yes.
25 Q. And are these the laws to which the guidelines that we were just
1 looking through were referring?
2 A. Yes. The guidelines referred to the entire criminal procedure,
3 criminal prosecution, and that would mean that this was also included in
5 Q. Thank you. That's all we need from that document.
6 I'd like to ask you a few questions now, having briefly discussed
7 the legal basis for criminal prosecutions during the war. I'd like to ask
8 you a few questions about how the criminal code was enforced as a
9 practical matter. Can you explain to the Trial Chamber how investigations
10 or subsequent prosecutions were initiated in the military court system
11 during the war.
12 A. The competent organ submitted the criminal report to the military
13 prosecutor's office. The military prosecutor's office in turn, when it
14 received the criminal report, had several options. If there wasn't
15 sufficient evidence, they could reject the criminal report. If there was
16 something missing, they could order that additional information be
17 gathered. If the criminal -- if the prosecutor's office deemed that there
18 were grounds for the suspicion, then they could submit the request for the
19 investigation to be conducted, which was conducted by an by an
20 investigative judge of the military court. After the investigation was
21 completed, the entire file was submitted to the prosecutor and the
22 prosecutor again had several options. If the prosecutor deemed that there
23 was sufficient evidence and material for an indictment to be filed, he
24 could do that. If there wasn't enough evidence of the criminal offence,
25 he could order that the investigation be stopped. Or if he deemed that
1 there could be some additional information gathered, he could order the
2 investigation to be re-opened and for additional information to be
3 gathered. That was the procedure.
4 The moment the report was filed with the prosecutor's office, it
5 was given a special number in the logbook. And it had the same reference
6 number throughout the procedure. And then for trial, the trial was
7 conducted before the military court. That would, in brief, be the
9 Q. Thank you. Now, you mentioned after a competent organ submitted a
10 report concerning a potential crime. Who could submit such reports?
11 A. Such reports, since we were dealing with military personnel
12 mostly, they would be filed by unit commanders, security personnel,
13 military police, in fact any military person or any civilian, in fact, if
14 they had information that a criminal offence had been committed could file
15 such a report. And the military prosecutor was bound to act on it. Now,
16 whether he would eventually file the indictment or not, that was up to
17 him. But he had to act on it.
18 Q. Okay. Now, you say that the military prosecutor was bound to act
19 on it in some way, and you've described several different ways that they
20 would proceed from that point after a report was filed. You also
21 mentioned that when the report was filed, the case would be assigned a
22 number in a logbook. Was every report that was filed entered into the
23 logbook that you referred to?
24 A. According to the rules, every criminal report had to be recorded
25 in the logbook. If the military prosecutor failed to do so, that would
1 constitute a breach of the procedure. And then records could be kept of
2 the file at each stage of the procedure. You could follow it through
3 various stages.
4 Q. Okay. So if a formal report was filed by a VRS officer against
5 any VRS personnel, as required by the guidelines we've previously
6 reviewed, whether the charge was one of collaboration with the enemy,
7 desertion, whatever the charge, you would expect that charge to appear in
8 the logbook that you've described. Is that right?
9 A. Yes. If such a charge was made, that would be recorded. And
10 after the prosecutor filed such charges, then again we would have a record
11 of a trial, if any, and judgement, if any. Again, as I said, there would
12 be records all the way through.
13 Q. Okay. When you -- yesterday when we were speaking about your
14 employment history, you mentioned that the military courts were dissolved
15 in May of 2000. Do you know what happened to records from the military
16 courts at that time?
17 A. According to the instructions we received from the Ministry of
18 Defence, all files were transferred to the jurisdiction of certain
19 districts in accordance with the location of the actual perpetration of
20 crime. Pending files were handed over and all the files that have already
21 been adjudicated on were also handed over. So our archives were also
22 handed over. The files of the military Supreme Court were handed over to
23 the Supreme Court. And all the cases before the basic court and basic
24 military prosecutor's office were transferred to civilian courts and
25 prosecutor's office, according to the territorial jurisdiction. So it was
1 either to the district or basic courts and prosecutor's office, depending
2 on the actual gravity of the crime; that was also a criterion.
3 Q. Do you know where records of crimes that were committed in and
4 around Srebrenica, Bratunac, and Zvornik went after the dissolution of the
5 military courts in May 2000?
6 A. After the dissolution of military courts and prosecutor's office,
7 all cases that dealt with war crimes were transferred to the district
8 military -- district prosecutor's offices and courts, because they had
9 subject matter jurisdiction over those crimes. If there were any cases
10 regarding Srebrenica before military prosecutors' offices, they would have
11 been transferred to the district prosecutor's office in Bijeljina or the
12 district court in Bijeljina. But since things were done in accordance
13 with the wrong [as interpreted] rules, they were handed over to the
14 district -- they would have been handed over to the district prosecutor's
15 office in Bijeljina.
16 Q. Now, I'd like to ask you: When you took over as district
17 prosecutor in Bijeljina, in May 2001, were there any pending cases
18 involving war crimes by the VRS against Muslim victims, following the fall
19 of Srebrenica, that were transferred to your district?
20 A. No. There were no such cases, pending or otherwise before the
21 district prosecutor's office or court in Bijeljina.
22 Q. And going -- returning to the position you held before that, when
23 you became a military -- the military prosecutor in April 2000, were there
24 any cases on the dockets of the basic military courts that you supervised
25 at that stage involving war crimes by the VRS against Muslim victims
1 following the fall of Srebrenica?
2 A. No.
3 Q. And finally: During your time as a judge on the Supreme Court,
4 were any cases, appellant cases, brought before that court that involved
5 war crimes by VRS against Muslim victims following the fall of Srebrenica?
6 A. No.
7 MS. DAVIS: If I could have the assistance of the usher. I would
8 like to show the witness -- the document has been marked as P713 for
9 identification purposes.
10 Q. Do you remember seeing this document in my office yesterday?
11 A. Yes.
12 Q. And can you tell me whether you had seen the document at any time
13 before I showed it to you in my office yesterday.
14 A. As far as I can remember, an order was discussed. I don't know
15 whether I had actually seen it or not, but I do know that it was a topic
16 of discussion, an order of this kind.
17 Q. And do you recall whether it was a topic of discussion in 1996,
18 when it was apparently created, or whether it was discussed at some other
19 time, if you recall.
20 A. I don't recall.
21 Q. The document appears to refer to a request by President Karadzic
22 for an investigation into crimes after the fall of Srebrenica. Are you
23 personally aware -- are you personally aware of any investigation of this
24 nature that actually took place in 1996 or in the several years following?
25 A. I am not aware of what had been done as regards those
1 investigations. I know that this was a topic that was talked about, the
2 investigations that would have to be carried out. But as to what had
3 actually been done, I don't know about it, and this was not actually in
4 the scope of my activities.
5 MS. DAVIS: If I could have the assistance of the usher one more
6 time, I'd like to show the witness what has marked for identification as
8 Q. I'll give you just a moment to look that over.
9 Have you ever seen this document before?
10 A. I saw it in your office, but not before that. This is the
11 information from the Minister Kijac, who signed this letter, and it
12 pertains to the Ministry of the Interior.
13 Q. Do you know anything about this report or any related
15 A. No.
16 MS. DAVIS: If the usher could please show the witness a document
17 that has been marked as P712 for identification purposes.
18 If I could just have a moment, Your Honour.
19 [Prosecution counsel confer]
20 MS. DAVIS: Mr. President, this is a document we've marked for
21 identification as P712. I believe part of this document was tendered
22 under seal by the Defence yesterday as 67/3. But as I recall, it was just
23 a part of what here is a larger document. So we'll tender it in a
24 different form.
25 JUDGE LIU: Yes.
1 MS. DAVIS: If I could ask the usher to please show the witness
2 page 02146508 of this document.
3 Q. I'll just give you a moment to look that over.
4 MS. DAVIS: The English ERN for the page that the witness is
5 looking at is 03037619.
6 Q. Witness, have you ever seen this order before?
7 A. This is the first time I'm seeing this.
8 Q. And what does it appear to you to be?
9 A. I think this is an order given by Karadzic ordering that a
10 commission be established in order to investigate the matters concerning
11 two corpses that had been found, to have that investigated. And as far as
12 I can see, a commission had been established, because it is mentioned here
13 that there were two people present from the security centre, Vasic,
14 Dragomir, from the Bijeljina centre; and then Marjanovic Radco from the
15 MUP. I assume it was from Bijeljina, too. So therefore, they had been
16 ordered to investigate this, and it says here that it was to be done in
17 Zvornik security centre. They were to investigate this and to compile a
18 written report and inform the president of the republic about this.
19 Q. Can you tell from the face of this document whether this is
20 related to crimes that followed the fall of Srebrenica?
21 A. It's difficult to say now. Obviously they didn't know even then
22 where these two corpses had come from. They were not identified. And
23 then it says here: On the battlefields of previous battles with the
24 Muslim side, I don't know whether this was before the fall of Srebrenica
25 or afterwards, the battlefield in Pilica was mentioned in the municipality
1 of Zvornik.
2 Q. Okay. Do you personally have any information or knowledge of any
3 investigation that followed from this order?
4 A. No. This is this document from 1996. This was carried out by the
5 security centre, so I was not in a position to know about this. I was a
6 judge at the time and I had my cases. I don't know whether they informed
7 the then-prosecutors about this, but I don't know about that.
8 Q. I'd like for you to look at another page of the document now which
9 is -- the B/C/S version is 02146504. And it in English it would be
10 03037616 -- oh, I'm sorry, did I give the wrong page number? Are you
11 looking at a blank page.
12 A. It is a blank page.
13 Q. 6505. Does that help? With respect to this document,
14 Mr. Kovacevic, have you had a chance to look it over?
15 A. This is the first time I see this document. This was compiled by
16 the military prosecutor, Predrag Drinic, and he states, himself, here,
17 that he doesn't know what persons were involved, that this needs to be
18 investigated, that he has been informed, and then it needs to be
19 determined whether this falls under the jurisdiction of civilian courts, a
20 civilian prosecutor or the military one, and that it needs to be
21 determined how these -- how this has arrived here.
22 Q. My only question to you with respect to this document is whether
23 you personally had any knowledge of -- or have any knowledge of whether
24 such a commission was formed and whether an investigation took place.
25 A. No, I do not recall.
1 MS. DAVIS: That's all I need with those documents, thank you.
2 Q. Aside from the documents that you I've had a chance to review just
3 now, did you personally ever become aware during your time working in the
4 military court system during the war of any investigations or prosecutions
5 of war crimes by the VRS against Muslims, following the fall of
7 A. No.
8 Q. Did you ever hear of any charges being filed by VRS commanders or
9 officers against VRS personnel for war crimes against Muslim victims,
10 following the fall of Srebrenica?
11 A. There were no such criminal reports in the office of the military
12 prosecutor, at least I didn't see any when I came there. And there were
13 no such reports filed after the dissolution of the military prosecutor's
14 office. There were no such files filed in Bijeljina. They were not filed
15 by anyone, by no commanders.
16 Q. Now, we've talked about the fact that you're now the chief
17 prosecutor in the Bijeljina district. Is it true that you were visited by
18 representatives of the ICTY in 2001 and asked to locate the logs that
19 you've described and related paperwork in which war crimes committed by
20 VRS personnel in the Bijeljina district would have been recorded?
21 A. Yes.
22 Q. And were you able to find those logbooks?
23 A. [No interpretation].
24 Q. Did you have a chance to review them?
25 A. Yes.
1 Q. Did you find any entries in those logbooks indicating that a
2 charge had been filed by a VRS officer, any VRS officer against other VRS
3 personnel relating to war crimes against Muslims, following the fall of
5 A. No.
6 Q. I'd like to show you some additional records now and ask you to
7 tell the Trial Chamber what you can about them. The first one is marked
8 for identification as P702. Can you tell us what this document appears to
10 A. This is information on the criminal activities in July of 1995 in
11 the basic military prosecutor's office in Bijeljina. So all basic
12 military prosecutor's offices had to report on a monthly basis to the
13 military prosecutor of the army of Republika Srpska on criminal activity
14 on reports that were filed, requests to launch an investigation, and
15 indictments issued for that month so that the military prosecutor would be
16 kept abreast of their work. And I'm not quite sure whether the prosecutor
17 in turn sent that information to the Ministry of Justice, or to the Main
18 Staff, or perhaps to both of those places.
19 Q. Okay. If I could ask you to turn to the page marked 02158324 in
20 the B/C/S version, it should be the second page. In the English version
21 it's also the second page, which is 7477.
22 In your version, Mr. Kovacevic, the last page -- the last
23 paragraph at the bottom of the page, if you could read that over. And for
24 those reading the English version, it's the paragraph before the heading
25 that's II.
1 A. Did you say page 2 or page 1?
2 Q. The page marked 8324. It should be the second page of the
3 document that you've holding, and the last paragraph.
4 A. It's page 1 in my version, 8324.
5 Q. Have you had a chance to read that last paragraph on the page?
6 A. Yes. It says here as it -- crime trends in July of 1995, bearing
7 in mind a numerical situation according to the above figures -- no, I'm
8 sorry. So bearing in mind the figures, we can see that there was a rise
9 in the number of criminal reports filed. And since some reports have been
10 referred to the Drina Corps in view of the expansion of the territorial
11 jurisdiction of the military court in Bijeljina.
12 Q. Now, yesterday we had some discussion about which military court
13 district had jurisdiction over Srebrenica, Bratunac, Zvornik, and the
14 surrounding areas in July 1995. Does this help to refresh your
15 recollection as to which military court district had that jurisdiction?
16 A. That means that the days' [as interpreted] accord and basic
17 military -- basic prosecutor's office in Serbian Sarajevo had already been
18 dissolved and transferred to these authorities. This is the conclusion
19 that I can draw based on this.
20 Q. So is that -- so who then, in your view, based on what you're
21 seeing here had jurisdiction -- which military court district had
22 jurisdiction over Srebrenica, Bratunac, Zvornik, and the surrounding areas
23 in July 1995?
24 A. It seems Bijeljina.
25 Q. If I can ask you to turn to page 8326 in the B/C/S version, and
1 it's 7478 in the English version. If I can direct your attention to the
2 heading marked number 3 that indicates crimes under chapter 16 of the KZ
3 RS. Now, we looked at the criminal code earlier, and I believe you told
4 us that this chapter 16 is crimes against humanity and international law.
5 Is that right?
6 A. Yes.
7 Q. And what does this report for July 1995 tell us regarding whether
8 any charges or investigations, prosecutions, were initiated for war crimes
9 in the Bijeljina district in that month?
10 A. No. It says here that there were no requests to launch an
11 investigation and no indictments were issued for these crimes.
12 MS. DAVIS: The next document I'd like to show the witness is
13 marked for identification as P703.
14 Q. And again, if I can just ask you to tell us what this document
15 appears to be.
16 A. Again, information for the month of August, compiled by the
17 military prosecutor's office in Bijeljina.
18 Q. If you can turn in your version to the page in your version marked
19 02158558. And again, look at the heading marked number 3 for crimes under
20 chapter 16 of the criminal code. What does this report tell us regarding
21 whether any charges, investigations, or prosecutions were initiated for
22 war crimes in the Bijeljina district in August 1995?
23 A. It says here that as far as these crimes under chapter 16 are
24 concerned, that there were 210 requests to launch investigation, all 210
25 against civilian persons. And then it lists the names of certain persons,
1 regarding whom there was a request to launch an investigation, and there's
2 also a description of crimes they might have committed.
3 Q. As you've noticed, the next few paragraphs discuss some specific
4 charges and indictments. Can you take a moment to review those and tell
5 us whether you can discern the ethnicity of the perpetrators of the crimes
6 charged and discussed here.
7 A. Based on their first and last names, it would seem that they are
8 Muslims, or rather, Bosniaks.
9 Q. So in August 1995, there were 210 war crimes charged against --
10 all against civilians. What does that indicate about whether any such
11 charges were filed against VRS personnel in that month?
12 A. It says here regarding whom these requests were filed and there's
13 also a number of such requests.
14 Q. Is there any indication of whether any charges were filed against
15 any soldiers, VRS soldiers?
16 A. No. No.
17 MS. DAVIS: The next document I'd like to show the witness has
18 been marked as P704.
19 Q. And if you could look at page 0215 -- well, first, can you tell us
20 what this document is.
21 A. This is the report on criminal activity for the month of September
22 1995 in the office of the military prosecutor -- basic military prosecutor
23 in Bijeljina.
24 Q. And if you could turn to page 02158599 in your version. In the
25 English version it's 03067466. And once again, I'm going to ask you to do
1 this with each one of a few more documents. If you can look at the
2 heading marked number 3, crimes under chapter 16, and tell us what you can
3 discern about whether any charges, reports, requests for investigations,
4 prosecutions, were executed for war crimes in Bijeljina in September 1995.
5 A. It says here that there were seven requests to launch an
6 investigation, all seven against civilians.
7 Q. And here again --
8 A. And that one indictment was issued. And then it states the name
9 of the person mentioned in the indictment and the number of the
11 Q. And can you discern from the information provided about the one
12 indictment what the ethnicity of the charged individual was?
13 A. Yes. This is a Muslim -- a Bosniak, at least based on the first
14 and last name, that would be my conclusion.
15 Q. Okay. The next document is P706. And if you can take a look at
16 this document, both the cover page and the inside pages, and tell me what
17 this document appears to you to be.
18 A. Again, this is information for October of 1995, and this is the
19 military prosecutor's office in Serbian Sarajevo.
20 Q. Now, looking at the second page of the document, not the cover
21 page, but the first true page of the document, can you tell me what
22 district this document appears to be discussing.
23 A. On page 2 it says that it was sent by the basic military
24 prosecutor's office in Bijeljina. It has their date and their number and
25 the signature of the prosecutor, and it seems that the cover page was a
1 mistake, because this seems to come from the office in Bijeljina. It must
2 be a mistake.
3 Q. Okay. So the substance of the report that's attached to the cover
4 page covers the district of Bijeljina. Is that right?
5 A. Yes.
6 Q. And if you could turn to in your version page 02158571. And in
7 the English version, it's 03067949. Once again, if you could look at the
8 heading entitled number 3 and tell us what the report indicates regarding
9 charges of war crimes in that month.
10 A. It says here that in October there were no requests to launch an
11 investigation and no indictments were issued concerning these crimes.
12 Q. The next document is P707. To save some time, I'll ask you if you
13 agree with me that this seems to be a report for November 1995 from the
14 Bijeljina district.
15 A. Yes.
16 Q. And turning to page 02157793 in your version and 03067936 in the
17 English version. Would you agree with me that this indicates that there
18 were no requests for investigation or prosecutions initiated in November
19 1995 in the Bijeljina district?
20 A. Yes. Yes.
21 Q. The next document is P708. Would you agree with me that this is a
22 report for December 1995, crime trends in the Bijeljina district?
23 A. Yes.
24 Q. And turning to page 02157838 in your version and 03067924 in the
25 English version under heading number 3, would you agree that there appear
1 to be no requests for investigation or indictments, prosecutions, in that
2 month for war crimes?
3 A. Yes.
4 Q. The next document is P710. Would you agree with me that this is a
5 similar report for January 1996?
6 A. Yes.
7 Q. Looking at page 02158036 in your version, can you discern whether
8 any charges, investigations, or prosecutions were initiated for war crimes
9 in that month?
10 A. Yes -- I mean, there weren't any.
11 Q. The last document I'll have you look at is marked for
12 identification as P711. And this is a February 1996 monthly report for
13 Bijeljina. And I'll direct your attention to 02157959 in your version.
14 And can you tell us whether there were any charges, investigations,
15 prosecutions for war crimes in that month.
16 A. It says here that as regards these crimes are concerned, that a
17 request for investigation was filed regarding one person, and also the
18 statement of reasons for the charges are stated here -- it's stated here,
19 and also the very crime itself, that is a crime against civilian
21 Q. And can you identify -- can you discern from the information
22 that's provided here what the ethnicity of the victims of this crime were?
23 A. Well, since this is a member of the HVO, the Croatian Defence
24 Council, that would probably be a Croat.
25 Q. Are you referring now to the perpetrator or the victim?
1 A. Do you mean the perpetrator or the victim? It says here that
2 victims were of Serbian ethnicity. Yes, yes, that's correct. Let me
3 check. Yes, victims were of Serbian ethnicity.
4 Q. Thank you. Now, given the criminal code that we reviewed earlier
5 regarding war crimes and the guidelines that we also saw, does it surprise
6 you that there are no indications in these records of any reports,
7 investigations, or prosecutions of war crimes by VRS personnel against
8 Muslims after the fall of Srebrenica?
9 A. I think that in order to be able to understand the essence of
10 this, I have to say that as far as I was able to observe during the war,
11 criminal reports and investigations and requests for investigations and in
12 some cases even indictments were issued mostly for persons belonging to
13 other ethnic groups, because we were at war. And I have this feeling that
14 the same thing was going on on the other sides, that they did it in a
15 similar way. And I guess that if the people that had fled Srebrenica,
16 they were at the disposal of the organs of the federation probably in
17 Tuzla and so on. I assume that they could -- they were able to get their
18 statements and gather other kinds of evidence.
19 MS. DAVIS: I have no further questions. Thank you.
20 JUDGE LIU: Well, Mr. Karnavas, are you going to start your
21 cross-examination or we have an early break?
22 MR. KARNAVAS: I leave it to the Court's discretion, Your Honour.
23 I can start or we can take an early break.
24 JUDGE LIU: Well, I think we'll have a break and we'll resume at
25 25 minutes to 11.00.
1 --- Recess taken at 10.05 a.m.
2 --- On resuming at 10.36 a.m.
3 JUDGE LIU: Yes, Mr. Karnavas, your cross-examination, please.
4 MR. KARNAVAS: Thank you, Mr. President, Your Honours.
5 Cross-examined by Mr. Karnavas:
6 Q. Good morning, sir.
7 A. Good morning.
8 Q. I hope you can see me with that contraption that's in front of
10 I want to pick up with the last question that was posed to you by
11 the Prosecutor, because you indicated that it was your understanding that
12 the others, that is, on the federation side, the Muslims and the Croats
13 were doing the same thing with respect to following up on complaints to
14 the military tribunals. Okay?
15 A. Yes.
16 Q. Are you aware of any investigations or prosecutions against Alija
17 Izetbegovic for the war crimes that he had committed during the war?
18 A. I personally am not aware of them, with the exception of what I
19 have learned from the media or read in the papers. I know that some
20 materials have been submitted to this Tribunal, and among other persons,
21 this material concerned also Alija Izetbegovic.
22 Q. Okay. What about with Naser Oric for some of the atrocities that
23 he was committing on or about from 1992 to 1995, were you aware of any
24 investigations that were done by the military courts on the federation
25 side against Mr. Naser Oric who, as I understand, was openly walking about
1 in Tuzla up until the time he was arrested?
2 A. As far as Naser Oric is concerned, I don't know what the military
3 or other courts in the federation did in this regard. However, I am
4 familiar with this case, as regards the Bijeljina military court and
5 prosecutor's office, because the crimes committed by Naser Oric and his
6 unit were committed in Bijeljina, Srebrenica, and Bratunac. That was the
7 territorial jurisdiction of Bijeljina, and that's why I am aware of that.
8 I am familiar with the file.
9 Q. Okay. But that's on the Serb side, on the RS side. With respect
10 to the federation side, since the question was posed by the Prosecution,
11 are you aware of on the federation side whether the military courts there
12 did any investigations regarding Naser Oric who was openly bragging about
13 some of the atrocities, and we have documentation in the Western press
14 where he's openly bragging about his atrocities?
15 A. I don't know about the federation. I don't know whether they did
16 anything or whether they didn't do anything as regards the Naser Oric
18 Q. Now, sir, I want to -- that concludes that portion of that segment
19 of the cross-examination on the point that was brought out by the
20 Prosecutor. So now what I would like to do is talk a little bit about the
21 function of the military courts, as they existed back then. Could you
22 please tell us how they were established, under whose jurisdiction were
23 they and how they were financed.
24 A. For a time, the military courts were attached to the Main Staff.
25 And then after that, they were attached to the Ministry of Defence of the
1 Republika Srpska. Do you mean the funding for the operation of the
2 prosecutor's offices and the courts? If that's what you mean, they came
3 from the Ministry of Defence of Republika Srpska; in other words, from the
5 Q. Okay. Now, you indicated that initially they were under the Main
6 Staff or attached to the Main Staff?
7 A. Yes. Attached to the Main Staff of the Army of the Republika
8 Srpska. That was for a brief period of time. And after that, they were
9 under the Ministry of Defence of the Republika Srpska.
10 Q. So it would have been a civilian organ once they came under the
11 Ministry of Defence?
12 A. Well, it was not a civilian organ. They were military organs.
13 Q. Well, that's what I want to get to. Were they controlled by the
14 military, in essence?
15 A. I think they were, since this was the Ministry of Defence. We
16 were attached to the Main Staff only for a very brief period of time. My
17 personal opinion is that in order for people not to be influenced anymore,
18 to prevent the people from working under the pressure of the army or of
19 the Main Staff, that was the reason why the prosecutor's office was
20 reattached to the Ministry of Defence of the national defence, in order to
21 minimise the influence of the Main Staff. That is my assumption because I
22 am not a politician and this is more or less a political issue.
23 Q. But even after they were put under the Ministry of Defence, during
24 this wartime period, from 1992 to 1995, would it be fair to say that the
25 military prosecutor came under a great deal of pressure and influence from
1 the military, and in particular, the Main Staff?
2 A. I don't know about the pressure that was exerted. I know that we
3 as judges were not under any kind of pressure in that period.
4 Q. All right. Well, of course if you don't get any sensitive cases
5 to judge, you're not going to come under any pressure. Right?
6 A. Well, in a wartime situation, all cases are sensitive.
7 Q. Okay. But a case, for instance, that might be lodged against
8 Mladic or Beara or Popovic, the security organs. Would you not say that
9 those are slightly more sensitive and the pressure might be slightly more
10 than if you're investigating some Muslim civilian who is accused of having
11 committed crimes against some Serbs?
12 A. There were no such cases, but had there been such cases, probably
13 a person would pay much more attention and be much more circumspect with
14 dealing with such cases. But that's only my assumption because such cases
15 did not exist; there weren't any.
16 Q. Okay. Now, when you were -- do you know whether those who worked
17 in the military courts, either as judges or prosecutors, held a rank, a
18 military rank?
19 A. Yes. They all had a military rank, because according to the
20 adopted law on the military courts that existed in the former Socialist
21 Federative Republic of Yugoslavia, in order for a person to be a military
22 judge or military prosecutor, automatically that person would be given a
23 certain rank. That was an automatic procedure. For instance, a judge of
24 a basic court, a military court, or a basic military prosecutor had to
25 have at least the rank of a captain. These ranks were given as a
1 formality only. I can explain to you why, if you want me to.
2 Q. Go ahead.
3 A. Because when the war broke out, most of the officers, military
4 judges who were active-duty personnel, left the country and went to the
5 former Yugoslavia, Serbia, and Montenegro, together with the rest of the
6 army, which means that the active-duty servicemen with law degrees and
7 with ranks who were military judges and prosecutors simply did not exist.
8 And then judges of regular courts and regular prosecutors were taken in,
9 and the military judicial system was created. And these people were given
10 appropriate ranks and the functions of military judges and prosecutors in
11 their respective territories.
12 Q. As I understand it, everyone, all citizens, were more or less
13 mobilised from the age of 16 to 60 during that period of time. Correct?
14 A. Yes, that is correct. In May there was the mobilisation; it was
15 declared. And those who failed to respond to the call-up faced criminal
16 sanctions, which were quite severe in a wartime situation.
17 Q. And is it safe for me to assume that those who were serving as
18 judges and prosecutors in these military tribunals, that was part of their
19 active duty, the mobilisation duty?
20 A. Well, you could say that because only one or two people remained
21 who were active-duty servicemen who had been active-duty servicemen before
22 the war and who remained to work in the military judicial system of
23 Republika Srpska. The others were simply mobilised.
24 Q. All right. And just to make sure I understand you, the
25 prosecutor, for instance, did he also have to be on the front line and
1 carry out duties as a soldier, or was he carrying out his duties, his
2 military duties, as the prosecutor, the military prosecutor?
3 A. No. He carried out his military obligations as a military
4 prosecutor. They never went to the front lines, and that went both for
5 military prosecutors and military judges. They worked exclusively in
6 their offices or on crime scenes to carry out on-site investigations, if
7 that was possible at all.
8 Q. All right. Now, given your explanations, with the understanding
9 that the military courts are under the Department of Defence, does it not
10 appear to you that perhaps the military prosecutor and the military courts
11 were essentially part of the military and not part of the civilian
13 A. Yes. That was part of the military.
14 Q. Okay. And might that, to some degree, explain the difficulties
15 someone might have, an officer might have, in going to a military organ
16 and then filing a complaint or a report against someone, such as
17 General Mladic or someone such as Colonel Beara, who was the head of the
18 security organ for the Main Staff?
19 A. I did not have such problems and I don't know whether others had.
20 Q. But you didn't have those problems because you were a judge.
22 A. Yes.
23 Q. So I take it we have the wrong person here in court today if I'm
24 going to pose these sorts of questions?
25 A. Well it's up to you to judge that --
1 JUDGE LIU: Yes, Ms. Davis.
2 MS. DAVIS: I'm not really sure that's a question that the witness
3 can respond to.
4 MR. KARNAVAS: I think he just did. I'll rephrase, I'll
5 rephrase --
6 JUDGE LIU: Well, Mr. Karnavas, I think your question is posed to
7 the Prosecutor rather than the witness.
8 MR. KARNAVAS: Well, I'll rephrase, Your Honour.
9 JUDGE LIU: Yes, please.
10 MR. KARNAVAS:
11 Q. Certainly, sir, if I wanted to make these sorts of inquiries, pose
12 these questions that I'm posing to you, from your answer it would appear
13 that I would need to have a military prosecutor from that period on the
14 stand and not a judge who served in the military courts. Correct?
15 JUDGE LIU: Yes, Ms. Davis.
16 MS. DAVIS: Again, I'm not sure that this is a question that's
17 appropriate to be directed to this witness. In addition, the questions
18 that Mr. Karnavas is referring to are speculative towards any witness,
19 regardless of whether they were a military prosecutor or a military judge
20 at the time.
21 MR. KARNAVAS: If I may respond, Your Honour --
22 JUDGE LIU: Well, I think Mr. Karnavas has already rephrased this
23 question in a way that is acceptable to this Bench.
24 Witness, you may answer this question.
25 THE WITNESS: [Interpretation] I think that at any rate for this
1 period, a military prosecutor could give you better answers than a judge,
2 as regards the manner of operation of the prosecutor. Of course I can
3 give you answers as regards the manner of operation of a judge.
4 MR. KARNAVAS:
5 Q. Thank you. Now, the reason I posed that question in the manner
6 and fashion in which I did was because of your answers with respect to how
7 a case developed from report to judgement. And I understand from your
8 testimony elicited from the Prosecutor there, you indicated that reports
9 for investigation would go to a prosecutor and not to a judge. Correct?
10 A. Yes.
11 Q. And in fact, in listening to your very cogent and quite clear
12 answer as how a case developed, this is classic Romano-Germanique process
13 that was being applied at the military tribunal. Correct?
14 A. Yes. The law on criminal procedure is the same for regular
15 courts, for military courts, for military prosecutors, the same law
16 applied to all.
17 Q. Exactly. Now, in listening to your previous answers, one might be
18 left with the impression that perhaps the military tribunal of which the
19 military prosecution was a member of might not necessarily be totally
20 independent. Am I wrong?
21 A. I don't think you are right. I'm sure that there were no
22 direct -- there was no direct pressure. And now whether anyone had any
23 reserves in this respect or not, I would assume that it had to do more
24 with the personality of that person than with anything else.
25 Q. Okay. And of course again, you can only speak from the judge's
1 point of view, not from the prosecutor's point of view. Correct?
2 A. Yes, for that period.
3 Q. Because the prosecutor would be duty-bound to at least follow-up
4 on a report, should one be made to him or to her? You need to answer so
5 we make a record.
6 A. Yes, yes.
7 Q. Thank you. Okay. Now, you were asked a series of questions as to
8 who could initiate a report with the military prosecutor. And you said
9 just about anyone. It could be military; it could be civilian. Correct?
10 A. Yes. Yes. Yes.
11 Q. Now, in preparation to come here and testify, as I understand it,
12 the Office of the Prosecution came to Bijeljina more than on one occasion
13 to speak with you and to speak with Judge Radomir Aleksic. Correct?
14 A. Yes.
15 Q. And Judge Aleksic is the president currently of the court -- of
16 the district court in Bijeljina?
17 A. Yes.
18 Q. Did they by any chance, the Office of the Prosecution, explain to
19 you anything about their case with respect to Srebrenica?
20 A. The investigators that came went through our logbooks looking for
21 some cases, I can't remember now the cases in question, but mostly those
22 dealing with Srebrenica. We talked mostly about that event. Some of the
23 materials that we had from the military judiciary were photocopied, parts
24 of the logbook, some of the materials, documents, that we have now been
25 through. So at no point were the investigators from The Hague prevented
1 from having access to these documents. They could at any point go through
2 any documents they wished and make photocopies. And that is exactly what
3 the president of the district court, Mr. Aleksic, did, although in the
4 actual fact his court did not have any such cases left -- there are no
5 such cases left there.
6 Q. I want to show you what has been marked for identification -- what
7 has been marked as an exhibit and I believe has been already admitted as
8 an exhibit as P687/A. And perhaps you can give us your opinion on this.
9 Have you by any chance, sir, had an opportunity to look at this decision
10 on the appointment of the civilian commissioner for Srebrenica?
11 A. No.
12 Q. Okay. If you could take a moment, sir, and look at it, and in
13 particular I would like you to look at -- I mean, pay a little closer
14 attention to paragraph 4.
15 A. Yes.
16 Q. Okay. Now, in looking at paragraph 4, could you give us an
17 opinion as to whether the civilian commissioner, which would have been
18 Mr. Deronjic at the time, whether he would have been responsible for the
19 civilians from Srebrenica who had gathered in Potocari after the fall of
21 A. I think that he was responsible. And in fact, this decision
22 imposes this responsibility on him to treat them as war prisoners.
23 Q. All right.
24 A. And it also allows the civilian population to choose where they
25 will live or where they will move to. So this poses an obligation on him.
1 Q. All right. If you could also look --
2 JUDGE LIU: Well, Mr. Karnavas, I wonder if this is the right
3 question to ask this witness, this particular witness, about this
5 MR. KARNAVAS: Your Honour --
6 JUDGE LIU: Well, this question could be put to anybody.
7 MR. KARNAVAS: Well, we are dealing with a jurist. We are dealing
8 with someone who was on the military courts at the time. The question was
9 elicited from the Prosecutor whether anyone, including civilians. There
10 is an issue, I believe, as to who is responsible ultimately for these
11 prisoners. I think it is an underlying issue in this case. At the very
12 minimum, it's for impeaching Mr. Deronjic who said he had no
13 responsibility and it wasn't his responsibility for the well-being of
14 those people. And I also would like to point out that Mr. Deronjic had an
15 obligation to file a report as well.
16 Now, I think this is also relevant to the fact that the Prosecutor
17 had stood up - not this one but in another case - has stood up and said
18 that it is absolutely -- they don't have sufficient evidence for
19 Mr. Deronjic with respect to Srebrenica. And I think that this is highly
21 JUDGE LIU: Well, concerning the obligation to file a report,
22 there may be some relevance here.
23 MR. KARNAVAS:
24 Q. If you could look at paragraph number 5, sir, and just look at it
25 and read it.
1 A. It says: "Decisions of the civilian commissioner shall be binding
2 upon all civilian authority organs in the Serbian municipality of
4 Q. Would that include units of MUP?
5 A. Yes.
6 Q. Now, from reading this decision, would Mr. Deronjic be one of
7 those individuals required to file a report with the military prosecutor,
8 given his authority?
9 A. Based on this decision, he was duty-bound to ensure the
10 implementation of this decision. And should he fail to do so, he will be
11 partially liable, or he will be among those liable. And it would be up to
12 the prosecution to determine just how liable he would be.
13 Q. Okay. And from this could you give us a legal opinion, based on
14 your knowledge of the RS law as it applied back then, whether these
15 prisoners, as stated under paragraph 4, were the ultimate responsibility
16 of Mr. Deronjic, or were they the ultimate responsibility of
17 General Mladic.
18 JUDGE LIU: Yes, Ms. Davis.
19 MS. DAVIS: I'm not sure that this witness has enough information
20 with which to respond to this question. He's an appropriate person to
21 pose this question to, but I would object on those grounds.
22 MR. KARNAVAS: All right. Your Honours, if I may be heard for a
23 second, Your Honour.
24 JUDGE LIU: Well -- yes.
25 MR. KARNAVAS: Again, Ms. Davis has had this gentleman in there --
1 on their list for several months. They obviously went through the laws
2 with him. They picked and chose the various laws they wanted to use this
3 gentleman for. He is a jurist. He is a judge. He was a prosecutor at
4 one point, the chief military prosecutor, now he's back to being a
5 civilian prosecutor. Obviously, he would have sufficient knowledge. Now,
6 if he doesn't, the gentleman can simply say, I don't have enough knowledge
7 or information at this point in time, in which case perhaps I could assist
8 him with some documents. And then later on, and then, you know, at a
9 later point he could tell us whether he's able to give us a reasoned
11 JUDGE LIU: Well, anyway, your question is very difficult for this
12 witness to answer. The question is whether these prisoners were the
13 ultimate responsibility of Mr. Deronjic or were they the ultimate
14 responsibility of General Mladic.
15 MR. KARNAVAS: Correct, Your Honour. Based on this decision
16 placing -- which was from the president of the RS at the time, it's
17 obviously a binding decision, as we all know by now. And it would appear
18 to me, at least from reading it, that this gentleman might be able to shed
19 some light. I mean, we can't -- it can't hurt to hear his opinion,
20 Your Honour.
21 JUDGE LIU: Well, we will see how far we could go, but there is
22 some implications in your question. If Mr. Deronjic has the ultimate
23 responsibility, do you mean that there's no responsibility at all for
24 Mr. Mladic?
25 MR. KARNAVAS: No. I'm not saying that, Your Honour. I'm not
1 saying that at all. My question wasn't that they -- that there's no other
2 shared responsibility, obviously there is. But -- I mean, there is --
8 And that's why I'm asking these sorts of questions. They're based on
9 testimony that was brought up by the Prosecution, which I suspect they're
10 going to be arguing at some point.
11 JUDGE LIU: Well, I've already said we'll see how far we could go
12 concerning this question.
13 MR. KARNAVAS: Thank you, Mr. President.
14 JUDGE LIU: Witness, do you need the Defence counsel to repeat
15 that question?
16 THE WITNESS: [Interpretation] No.
17 JUDGE LIU: So you may answer it.
18 THE WITNESS: [Interpretation] Yes, I will answer. Just as all of
19 you agreed, I will join you in saying that it is a very complex issue, and
20 it's hard to give a yes or no answer. However, I think - and I think a
21 lot of people would agree with me - that this person is responsible, based
22 on this decision. But that doesn't mean that others were not responsible
23 as well, others who could have done something to the people who were
24 prisoners of war at the time, whether these other people were civilians or
25 military servicemen, it doesn't matter. But everybody is partially
1 responsible for prisoners of war. Some people have to provide certain
2 living conditions for them, they have to ensure their security based on
3 various conventions, and then some people are just responsible for
4 ensuring that no harm is done to prisoners of war. Now, whether these
5 other people are generals or just plain guards, I don't think that's
7 MR. KARNAVAS:
8 Q. Thank you, sir. Now, in your capacity as the -- as a jurist, as a
9 judge, during the -- those years on the military court and then later on
10 as the chief military prosecutor, did you become acquainted at all with
11 the various legal instruments and instructions that were part of or the
12 body of law forming the VRS?
13 A. I was aware of the majority of that, yes.
14 Q. Now, if I were to pose some questions to you with respect to the
15 security organ, do you think you might be able to assist us on how the
16 security organ functioned, for instance, within the VRS?
17 A. I don't think I could be of much assistance in that regard. At
18 the time I worked in court, and I wasn't really acquainted with security
19 organs at the time.
20 Q. As part of your duty as a judge, I would suspect there were times
21 when you had to analyse documents. Correct?
22 A. Yes.
23 Q. Laws and regulations?
24 A. Yes.
25 Q. Instructions?
1 A. Yes.
2 Q. Now, if I were to show you an instruction that was prepared by
3 Mladic called the Instruction on Management and Command of Security
4 Intelligence Agencies of the Republika Srpska, that has been admitted into
5 evidence as D22, do you think that you might be able to look at it and
6 give us your informed, analytical, legal opinion?
7 JUDGE LIU: Well, Ms. Davis.
8 MS. DAVIS: Well, Your Honour, the witness has already responded
9 that he is not in the position to be of much assistance on issues
10 regarding the security organ and how they functioned within the VRS. Now
11 Mr. Karnavas is asking him if he can analyse a legal document. You know,
12 it's true that the witness is lawyer, but I don't know if we can -- if
13 Mr. Karnavas should be permitted to ask him opinion on every legal issue
14 that has arisen in this case and is likely to arise in this case.
15 JUDGE LIU: Well, Mr. Karnavas, I believe you greatly expanded the
16 scope of the cross-examination. This witness is -- was a prosecutor, a
17 judge. You may ask some questions concerning of the criminal law or the
18 related documents or instructions, but this question is too general and I
19 do not know whether this witness is capable to answer this question -- or
20 even if he answered whether there's any weight in it.
21 MR. KARNAVAS: Well, for the record I wanted to show the gentleman
22 Exhibit D22 and show him various parts. He is a jurist. I thought we
23 might take advantage of his knowledge and expertise, since we have him
24 here. They brought him all the way from Bosnia and Herzegovina. But if
25 the Court wishes for me to move to another topic, I will. But my purpose
1 was to show him one or two paragraphs, but I leave it to the Court's
3 JUDGE LIU: Please move on.
4 MR. KARNAVAS: Thank you. But I take it that if I were to bring
5 an expert, I would not be denied the opportunity to pose these questions
6 on direct examination.
7 JUDGE LIU: I don't think this witness is testifying as an expert
8 of the legal matters.
9 MR. KARNAVAS: Well, I was under the impression he was a military
10 judge, so everything comes -- everything is in that. But very well,
11 Your Honour.
12 JUDGE LIU: Let's move on.
13 MR. KARNAVAS: Thank you.
14 Q. Now, you were -- you were asked to look at certain portions of the
15 RS law and in particular I believe you were shown earlier on a segment,
16 which is marked for identification purposes as P380, and that was the
17 guidelines were determining criteria for criminal prosecution. Do you
18 recall being -- that was just earlier today.
19 A. Yes.
20 Q. And in particular you were asked to look at one portion, and I
21 thought we might revisit that and maybe you can give us a more expansive
22 answer or a follow-up to what you have already answered.
23 MR. KARNAVAS: So if we could present the gentleman with that
24 exhibit, Madam Usher.
25 Q. And perhaps if you could look at -- perhaps just to re-orient
1 yourself, I'm going to be referring to the section at the end of paragraph
2 13, which I believe is the third paragraph -- I mean, page 13, the last
3 paragraph, and then go on to paragraph -- page 14, paragraphs 1 and 2, but
4 primarily I'm going to be focusing on paragraph 2. So that would be 14.
5 And for the English version, it would be -- I'm primarily interested in
6 paragraph 2 on page 8. And the RN number, or ERN number is 00814384.
7 Page 14, paragraph 2. As you will see, the very last sentence I'm
8 primarily interested in.
9 A. Page 14, paragraph 2?
10 Q. That's what I am told by my colleague, where it talks about the
11 failure -- the consequences for failing to file a report. Okay?
12 A. Yes.
13 Q. Okay. Now, if I can ask you a couple of questions about that, now
14 that you've refreshed your memory. I wanted to just give you some
15 guidance. Now, to your understanding, a failure to report, does that mean
16 if, for instance, the head of the security organ of a brigade is involved
17 in activities which might amount to persecution, that an officer's failure
18 to file such a report, if he should learn of that activity, under the RS
19 law would that officer also be charged with and held accountable for the
20 same crimes of the individual who was actually committing the crimes?
21 A. Well, these instructions say that these people will be prosecuted
22 for some of the crimes.
23 Q. Okay. Well, as I read it it says that they will be held -- it
24 "makes them answerable for these criminal offenses." That's the very last
25 part of the sentence in that paragraph. Does that mean that they're
1 answerable for not filing a report, or does that mean that they themselves
2 will be found guilty of the crimes being committed by the perpetrator.
3 A. I think this means that they will be considered responsible for
4 not preventing it.
5 Q. Assuming they were in a position of preventing it?
6 A. Yes.
7 Q. Well, what if they were to learn of the events after the fact?
8 A. Well, now that depends on the interpretation of it.
9 Q. All right. Well, what does the RS law say about that and where
10 might you point us --
11 A. For example, the law of the RS provides that they can be held
12 responsible for concealing the fact that a crime had been committed.
13 Q. Okay. But not for actually committing the crime?
14 A. Yes, providing that they only learned about it later.
15 Q. Now, I don't want to put you on the spot, because obviously you're
16 not here to take a bar examination. But when you were meeting with the
17 Office of the Prosecution, they came several times to see you, did they
18 ask you to go through the laws of the RS so you and Judge Aleksic could
19 explain the law to them?
20 A. No, they didn't ask any detail explanations.
21 Q. Okay. We can move on to another section. Now, you were shown an
22 order by President Karadzic to do an investigation. Do you recall that?
23 A. Yes.
24 Q. Were you shown that order back in Bijeljina, incidentally?
25 A. No. We couldn't find that order. To tell you the truth, I
1 completely forgot about that order; however, then Mr. Aleksic said that as
2 far as he could remember, there was such an order. And then I recollected
3 that there indeed was, however we could not find it.
4 Q. But in any --
5 A. At the time. I don't know what happened later.
6 Q. Well, obviously at some point the order was found. Correct?
7 A. Yes -- actually, I don't know where it was found, but obviously it
9 Q. All right. Now, prior to coming to The Hague last week, the week
10 before, the week before, the week before, did the Prosecution ever contact
11 you to show you that order?
12 A. No. I was shown that yesterday.
13 Q. Were you ever asked, sir, to perhaps make some inquiries, some
14 investigation, to find out whether that order had actually been carried
15 out, and if not, why not?
16 A. What do you mean? Who asked me to carry out an investigation?
17 Q. I'm asking you whether they ever asked you to see whether this
18 order had actually ever been carried out.
19 A. No.
20 Q. So assuming that -- do you know whether it was carried out?
21 A. No. I've already said that I don't know what was the fate of that
22 order. I don't know -- I don't remember that.
23 Q. Okay. Had you been asked by the Prosecution to look into that
24 matter, do you think you might have been able to at least do an
25 investigation, make some inquiries, to find out whether that order by the
1 president was actually carried out?
2 A. That's quite a lengthy task. Somebody could look for it and find
3 it, go through the archives. Because as you could see, there were several
4 persons whom that order made responsible.
5 Q. All right. Just a couple of last questions. What kind of witness
6 protection programme was available at the RS, say around the period after
7 Srebrenica, should an officer wanted to file a report after learning that
8 someone like Mladic and Beara and Popovic, who we knew was actively
9 engaged in killings, and some of his other security -- members of the
10 security organ and others, what kind of witness protection programme was
11 available to -- in the RS at that time?
12 A. At the time, there was no programme for witness protection, for
13 the simple reason that this concept of witness protection did not exist in
14 our law until the 1st of July, 2003, when this new law on criminal
15 procedure was adopted. Even now it is difficult to implement that system,
16 because we lack the resources. God knows when this will take effect.
17 Q. Okay. Finally, you mentioned this new law that came into effect
18 back in July, which as I understand is quite different from what it used
19 to be, the criminal procedure. Correct?
20 A. Yes, you're absolutely right.
21 Q. Now, since the Dayton Accords, the office of the high
22 representative has been more or less the occupying authority in
23 Bosnia-Herzegovina. Isn't that correct?
24 A. That's what you say.
25 Q. Well, I'm saying it. But isn't it a fact that it is the office of
1 the high representative that imposes law on a routine basis, including
2 this particular law?
3 A. That's not how I would put it.
4 Q. Okay.
5 A. Because officially that's not the case; it's not even considered a
6 protectorate, at least not officially. And as a lawyer and somebody who
7 works there, I am responsible for upholding the law, and I think it's more
8 of a political issue.
9 Q. Okay. But the -- as you well know, since the time that the office
10 of the high representative was created for the purposes of implementing
11 Dayton, they have been engaged, almost on a daily basis, on judicial
12 reform. Correct?
13 A. Yes.
14 Q. And one of the major aspects of the judicial reform was
15 investigating judges and prosecutors, some of whom who are not adequately
16 performing their functions. Correct?
17 A. Yes.
18 Q. And many, as a result of these investigations, have lost their
19 jobs. Correct?
20 A. Yes.
21 Q. And in fact, there have been more than one report indicating that
22 the judiciary during that period back then in 1995, 1996, and so on, the
23 judiciary - when I say "judiciary," I'm also including the prosecution -
24 was rather inconsistent [Realtime transcript read in error "persistent"]
25 in the application of the law?
1 A. I have to admit that you are right in this respect, and the very
2 fact that the high representative had to get involved in that through the
3 judiciary reform speaks to the fact that something had to be done.
4 Because it was quite obvious that the judiciary was not functioning
5 properly. This is not something we can deny, even if we wanted to. Then
6 the whole system was overhauled. The reform is still undergoing. It's
7 not finished yet. Precisely to reduce the influence of the politicians,
8 to have this independent judicial council, which would be free of any
9 influence when it came to appointing and relieving of duty the judges, to
10 keep them totally independent of politicians. And that is obviously why
11 the high representative had to do that, and I think he was justified in
12 doing that. It was obviously necessary, and I have to say that even
13 though it affects me and my colleagues --
14 JUDGE ARGIBAY: Sorry, Mr. Karnavas, to interrupt. Can you take a
15 look at line 6. It says in the transcript, was rather "persistent," and I
16 think you said "inconsistent".
17 MR. KARNAVAS: Yes, I did say "inconsistent". That was -- I was
18 trying to be delicate with the issue.
19 JUDGE ARGIBAY: Yes, I know. But it's very different to say
20 persistent or inconsistent.
21 MR. KARNAVAS: Inconsistent.
22 JUDGE ARGIBAY: Yes, so, just to correct it.
23 MR. KARNAVAS: Thank you, Your Honour.
24 Q. Which brings me back to my initial question: Back in those days
25 in 1995 and all the way up until recently when they did -- when the high
1 representative imposed the law, creating the high judicial and
2 prosecutorial council, but back then specifically, the office of the --
3 the military prosecutor wasn't totally independent and was under certain
4 influences, whether direct or indirect, just as many of the other judges
5 and prosecutors throughout the RS and, might I say, Bosnia and
7 A. As regards the laws themselves, the emphasis was on the
8 independence of the judges and prosecutors in their work. But you can now
9 look at it from another standpoint, how independent you can be if you have
10 somebody allocate funds to you, appoint you, relieve you of your duty. If
11 somebody has the authority to do all that, but according to the law it --
12 they were supposed to be independent, even at that time.
13 Q. I understand. Thank you very much, and give my regards to
14 President Aleksic when you see him in Bijeljina.
15 JUDGE LIU: Thank you, Mr. Karnavas.
16 Any cross-examination, Mr. Stojanovic?
17 MR. STOJANOVIC: [Interpretation] Yes. I will try to pose a few
18 questions and to elicit answers which would assist us in this trial.
19 Cross-examined by Mr. Stojanovic:
20 Q. [Interpretation] Good morning, Mr. Kovacevic.
21 A. Good morning.
22 Q. Can we begin?
23 A. Yes.
24 Q. There were quite a few questions that pertained to the functioning
25 of the military judicial system in the Republika Srpska in 1995 and later
1 on until the military prosecutor system was dissolved. I think that there
2 were some questions which created quite a confusion, and I will now try to
3 clear that up through my questions and your answers.
4 Do you agree with me that in 1995 and in the time when the
5 military judicial system existed that the continental law system applied?
6 A. Yes.
7 Q. Do you agree with me that the law on criminal procedure that was
8 adopted from the Socialist Federative Republic of Yugoslavia defined two
9 types of jurisdictions: Subject matter and territorial?
10 A. Yes.
11 Q. Could you please tell us what is the subject matter jurisdiction
12 of the military judicial system, of the military judiciary?
13 A. The subject matter jurisdiction of the military jurisdiction --
14 judiciary defined the jurisdiction of the basic military courts, the first
15 instance courts, in other words, and the second instance court which was
16 the supreme military court. The basic military courts adjudicated in all
17 cases in the first instance, whereas the supreme military court
18 adjudicated on the appeals. That was the second instance. Likewise, the
19 military Supreme Court judged the decision -- passed judgements on the
20 appeals, according to another kind of logbook in cases involving detention
21 or the release of detainees from detention. This was also in its
22 jurisdiction. The supreme military court also made decisions about
23 extraordinary legal remedies, the commutation of sentences. It also
24 conducted administrative proceedings, whereas basic military courts in
25 terms of subject matter jurisdiction carried out all other cases, and
1 carried out all other tasks, for instance investigations were carried out
2 by investigative judges and they passed first instance judges. That's the
3 basic military courts.
4 However, if they passed a sentence of 20 years in prison, and of
5 course after the Dayton agreement we no longer had the death penalty, but
6 before that they could also impose the death penalty. Then there was also
7 the third instance which was the Supreme Court of the Republika Srpska.
8 So that would be it as far as the subject matter is concerned.
9 JUDGE LIU: Well, Mr. Stojanovic, we are not in a hurry, so please
10 make a pause after you hear the answer. You give the interpreter a very
11 difficult time. And please advise this witness as well.
12 MR. STOJANOVIC: [Interpretation].
13 Q. Mr. Kovacevic, while we speak the same language and we always have
14 the same problem, could you please pay attention to your monitor in front
15 of you, on the screen in front of you, the black dot will stop moving, and
16 then you can start giving us your answer.
17 A. Fine.
18 Q. If you can speak slowly when you answer, because everything needs
19 to be interpreted into English. Thank you.
20 So we understand that at that time you were a judge of the supreme
21 military court. Is that correct?
22 A. Yes.
23 Q. According to your previous answer, you did not have the
24 opportunity to pass any first instance judgements -- you were not the
25 judge of the basic military court at any time?
1 A. I was for a time, but that was in the period between June and
2 January when I was a judge of the basic military court in Srpsko Sarajevo,
3 where in addition to carrying out investigations I also passed judgements
4 in several cases.
5 Q. In 1995 you dealt with appeals as a judge of the supreme military
7 A. Yes.
8 Q. According to the law on criminal procedure, does the subject
9 matter jurisdiction define which cases are to be -- which criminal
10 offenses are to be dealt with by the military court and which are to be
11 dealt with by the civilian court. Is that correct?
12 A. Yes.
13 Q. My next question is: Who was tried by military courts and who was
14 tried by civilian courts when we are talking about perpetrators of
15 criminal offenses?
16 A. The jurisdiction of military courts, subject matter jurisdiction,
17 covered all military personnel who committed a crime, regardless of the
18 nature of the crime, with the exception of -- or rather, in addition to
19 military personnel, the military judiciary had jurisdiction over civilian
20 persons, but only for specific crimes, such as attacks on military
21 facilities, armed insurrection, and so on. So the criminal offenses were
22 clearly specified. Military courts also had jurisdiction to try prisoners
23 of war who commit crimes in their capacity of prisoners of war or who have
24 committed criminal offenses, crimes against humanity and international
1 Q. You know how long we dealt with this problem of the definition of
2 a military person, and we really wanted to define the jurisdiction of the
3 military judiciary. But I will now try to deal with it very briefly for
4 the benefit of the Trial Chamber. If a civilian then, a person who has
5 not been mobilised, who does not have the status of a soldier or an
6 officer, commits a violent criminal offence, murder, so we are talking
7 about crimes against a person, is that person going to be tried by a
8 military court or a civilian court?
9 A. If a civilian commits the criminal offenses you just specified,
10 crimes against a person or against life and limb, they will be tried by
11 the regular civilian court.
12 Q. If such a criminal offence is committed by a reserve officer - so
13 I'm not talking about the active-duty servicemen, but a reserve soldier
14 who has been mobilised - who will try this reserve officer for such a
15 crime? Would it be the civilian court or the military court?
16 A. This person would be tried by a military court because as soon as
17 they are -- they come to their units after the call-up, they become
18 military personnel. Now, whether they are in active duty or whether they
19 are in the reserve, it doesn't mean a thing. From that moment on, from
20 the mobilisation onwards, they are considered to be military personnel.
21 Q. Now we have a situation that we have come across in this case. A
22 man is on vacation, on leave. He does not have any military tasks at that
23 time. He is at home, and he becomes a coperpetrator in a crime, he takes
24 part in a crime, we have the name of that person and his post. Who has
25 subject matter jurisdiction over such a person, civilian court or a
1 military court?
2 A. Now, this issue was subject to a lot of debate, but the opinion
3 that prevailed in the end is that if that person was engaged in the units
4 of the VRS, regardless of the fact whether that person was on the front
5 line or on vacation, that a military court had jurisdiction for his trial
6 and not the civilian court, although you can go into theoretical debates.
7 But this was the opinion that prevailed. So we could apply this to the
8 case that you just explained to me. That was the view taken; in other
9 words, that the military court had jurisdiction in such cases. Of course
10 again, I say we can now launch a long theoretical debate about it.
11 Q. Okay. So I will be right in concluding that based on the case law
12 and instructions, the term "military person" includes also persons subject
13 to military obligation, soldiers who do not have their wartime assignment
14 in the unit at that time, yet they have committed a crime in that period.
15 Is that correct?
16 A. Yes. That would be the case, provided that such a person had a
17 military engagement. It is not important now whether that person was on
18 leave, either that he doesn't have a task at that time or whether he has
19 taken annual leave, 10, 15 days, that does not play a role.
20 Q. Precisely, Mr. Kovacevic. Let's now take another example that we
21 had in this case. A person subject to military obligation goes to carry
22 out his military task, and en route to his military wartime military unit
23 he commits a criminal offence. You will agree with me, will you not, that
24 he is again under the jurisdiction of a military court?
25 A. Yes.
1 Q. Thank you. Let us now go back to the status of the civilian
2 police. A civilian police officer commits a crime against a person in
3 1995, so a member of a police station or of the security services centre.
4 Who has subject matter jurisdiction over such persons, to try such
6 A. That would be the regular court, civilian court.
7 Q. So all criminal offenses committed by civilian police come under
8 the jurisdiction of a civilian court?
9 A. Yes, because it would be quite dangerous for them to be tried by
10 military courts, because then you would have a military regime.
11 Q. Thank you. You also spoke about the other kind of jurisdiction,
12 that's the territorial jurisdiction?
13 A. Yes.
14 Q. Now, to speed things up a bit, I will just gloss over this issue
15 of territorial jurisdiction; you correct me if I'm wrong. Military
16 judiciary was organised on the basis of corps, as regards the territorial
17 jurisdiction. Is that correct?
18 A. Yes.
19 Q. The court that had jurisdiction for the 1st and 2nd corps was the
20 military court in Banja Luka. Is that correct?
21 A. Yes.
22 Q. The court that had territorial jurisdiction for the Eastern Bosnia
23 Corps was the military court in Bijeljina. Is that correct?
24 A. Yes.
25 Q. The court that had jurisdiction after the Drina Corps and for the
1 Sarajevo Romanija Corps until its dissolution was the military court in
2 Srpsko Sarajevo. Is that correct?
3 A. Yes.
4 Q. The court that had jurisdiction over the Herzegovina Corps was -
5 during the war - the military court in Bileca?
6 A. Yes, that is correct.
7 Q. As far as we understand, in 1995, let's say in mid-1995, the
8 military court in Srpsko Sarajevo ceased to exist. Is that correct?
9 A. Yes.
10 Q. Am I right if I say that from that time onwards, the territorial
11 jurisdiction for the Drina Corps, for all practical purposes, became
13 A. Yes.
14 Q. Am I correct in saying that the division was based on the
15 territorial principle that followed the organisation of the civilian
16 district courts?
17 A. Yes, more or less. Now, I can't tell you whether it was like
18 that 100 per cent, but that would be the territorial jurisdiction.
19 Q. Let us be more specific. After the dissolution of the military
20 court in Srpsko Sarajevo, according to the territorial jurisdiction, the
21 territory of municipalities, the sociopolitical organisations, that's what
22 we're talking about, Srebrenica, Bratunac, and Zvornik came under the
23 territorial jurisdiction of the military court in Bijeljina?
24 A. Yes.
25 Q. And the municipalities of Vlasenica, Sekovici, Han Pijesak,
1 Skelani, for as long as they existed as a territorial organisation,
2 Visegrad, Rogatica, Sokolac, that all belonged to the Drina Corps were now
3 under the military court in Bileca?
4 A. Yes.
5 Q. Thank you. And now just to simplify things, to have a specific
6 example, who has jurisdiction to try a case involving a person subject to
7 military obligation belonging to a unit in Visegrad or in Vlasenica, the
8 brigades there, commits a criminal offence in the territory of Srebrenica,
9 Bratunac, or Zvornik. Let's go back now to the issue of subject matter
11 A. Then we have to see the site where the crime was committed. The
12 jurisdiction would fall to Bijeljina. So the jurisdiction was always
13 determined by the location where the crime was committed.
14 Q. Yes. I -- we just have to now make the division between the
15 pre-trial -- pre-criminal proceedings and criminal proceedings, per se.
16 Who actually detected war crimes -- who actually detected crimes in the
17 system of military judiciary? Who was tasked with that?
18 A. That would be the basic organs in this system, and that would be
19 the military police. And at that time, part of the security also dealt
20 with that. As far as I know, it was also in their jurisdiction; in other
21 words, detecting crimes. That would be the basic thing, the basic organs.
22 Q. Am I right to conclude that the military prosecutor's office, in
23 order to detect the perpetrators of a crime and to gather evidence and
24 material facts that would -- that could enable the military prosecutor to
25 file an indictment, would be in something that the military police and the
1 security organs would carry out. They are the organs that the prosecutor
2 will task with finding the appropriate information, which would enable the
3 military prosecutor to initiate proceedings and ultimately perhaps to file
4 an indictment?
5 A. Yes. They would be requested to do so through the commands of
6 appropriate units.
7 Q. Precisely, yes. Everything went through the commands of these
9 A. Yes.
10 Q. Can I then turn this issue around? If a unit wanted to file a
11 criminal report against their member -- against its member because they
12 had -- such a member committed a criminal offence, would this criminal
13 report be filed through the command of the unit?
14 A. Yes.
15 Q. Then the conclusion would be correct that if a member of the
16 Zvornik Brigade wanted to file a criminal report against his commanding
17 officer for reasonable suspicion that a crime has been committed, a war
18 crime or a crime against property, the official criminal report should be
19 filed through the brigade command, where it would receive the appropriate
20 official seal, among other things?
21 A. Yes. That was the regular route. But like in the civilian
22 system, you can file a criminal report which does not bear the official
23 seal. But this, what you say, is the regular route.
24 Q. So the regular procedure is such that the criminal report has to
25 go through the brigade command and has to bear the signature of the
1 brigade commander and the appropriate seal?
2 A. Yes, that is correct. But if the military prosecutor receives a
3 criminal report that has come through any route whatsoever, he is obliged
4 to act upon it.
5 Q. In the system of operation of the military prosecutor's office,
6 has it ever happened that the military prosecutor applied to the civilian
7 organs, civilian prosecution organs, in order to obtain information that
8 were relevant for the commission of a crime?
9 A. Yes, this did happen.
10 Q. Was it in cases where the military police and the military
11 security was unable to do so, or did it happen for some other reason that
12 we had these parallel structures. Or to -- let me rephrase that. Why
13 would the military prosecutor ask a civilian police to gather information
14 instead of asking it from the military police, which is the way that the
15 usual procedure was?
16 A. Those were the cases where the prosecutor decided that civilian
17 police had such information and that it was easier for civilian police to
18 gather such material.
19 JUDGE LIU: Well, Mr. Stojanovic, it's time for the break.
20 And we'll resume at 12.30 --
21 MR. McCLOSKEY: Mr. President --
22 JUDGE LIU: Yes.
23 MR. McCLOSKEY: Just for people's schedule, we don't have another
24 witness this afternoon. We're hoping to get that witness tomorrow, but
25 the weather is very bad in the UK, and we'll keep you abreast of those
2 JUDGE LIU: Thank you very much for that information.
3 --- Recess taken at 12.00 p.m.
4 --- On resuming at 12.31 p.m.
5 JUDGE LIU: Yes, Mr. Stojanovic.
6 MR. STOJANOVIC: [Interpretation].
7 Q. Mr. Kovacevic, let us resume where we ended before the break. So
8 we spoke about the fact that upon receiving a criminal complaint, military
9 prosecutor will request military police and military security organs to
10 collect facts on the crime committed, the perpetrator, and any other
11 evidence. Is that right?
12 A. Yes.
13 Q. Now, let us try and illustrate it through a particular situation.
14 Officially or unofficially, as you have stated, a member of the Zvornik
15 Brigade files a criminal complaint with the relevant military prosecutor,
16 which in this case would be the one in Bijeljina, for a war crime
17 committed by somebody -- in fact, committed by members of the military
18 police and security organs of the Zvornik Brigade. What can the military
19 prosecutor do under such circumstances? Who will he ask to gather
20 information on perpetrators? It's an absurd situation.
21 A. The situation is complex, but it all depends on the prosecutor.
22 It depends on his skills and abilities to find a way to prove that this
23 had been committed. It would be similar to saying that in peacetime we
24 cannot prosecute officers of civilian police, and as you know, we do have
25 such cases. And, of course, these cases are complex, they are not typical
1 cases, but they do exist. It doesn't mean that this cannot be done.
2 Q. So for example, a criminal report is filed by a member of the
3 Zvornik Brigade against security organs of the Drina Corps and an officer
4 of the Main Staff of that corps, charging them with a war crime. What
5 would a military prosecutor be able to do under such circumstances? And
6 I'm here referring to the military judiciary.
7 A. I think that I've already answered that question, too. There are
8 various possibilities here. Obviously he would make requests. He doesn't
9 have to address that particular security organ -- that particular military
10 police, because information can be gathered in other ways. It is a more
11 complex situation, but it all depends on the prosecutor, how he will use
12 his skills to resolve the situation. I think it would be absurd to say,
13 Oh my God, if a crime is committed by a member of security, we will forego
14 all other work. We won't file any criminal reports and so on. I don't
15 think that this would be the right approach.
16 Q. Naturally this is not why I was putting this question to you; this
17 was not a trick question. I simply wanted to hear your answer. I wanted
18 you to confirm that it would be very difficult for military prosecutor
19 under those circumstances to identify the perpetrator and gather evidence
20 and facts. Would you agree with me on that?
21 A. I entirely agree with you. The job of the military prosecutor
22 would be made much more difficult under those circumstances. There would
23 be various dangers, various risks, especially in wartime. This makes the
24 situation much more complex than under normal circumstances.
25 Q. And what we precisely wanted to say is that a person filing a
1 criminal report against a member of security organs or military police for
2 being coperpetrators or perpetrators of a crime, in view of what you told
3 us, that there was no witness protection system, there was no protection
4 envisioned for a person filing a criminal report under those
5 circumstances, that would all mean that a person filing a criminal report
6 would be exposed to significant danger. Am I right?
7 A. Well, he probably wouldn't be having a great time. And as to the
8 level of danger, I couldn't say anything about that. Even in peacetime,
9 it is not a holiday to handle a case like that.
10 Q. I said this, that for example if the person filing a criminal
11 report, an officer in that unit used unorthodox ways of filing the report,
12 for example, if he directly contacted the authorities, then it would still
13 be difficult, and especially if he used the official routes, you know, if
14 everything was done in a regular with seals and signatures, with records
15 being taken and so on. Am I right?
16 A. I think that you are right.
17 Q. Thank you. In view of what happened in our trial here, I would
18 now like to draw some parallels with our case here.
19 MR. STOJANOVIC: [Interpretation] And can I please ask the
20 assistance of the usher. I need Exhibit 5702 [as interpreted]. This is
21 the report on criminal activities in July of 1995. Could we please show
22 this to the witness.
23 Q. Mr. Kovacevic, you have seen this document just a while ago.
24 Could we please comment on it. Third page, please --
25 JUDGE ARGIBAY: I think the number is wrong, Mr. Stojanovic. It
1 should be 702, P702, I think.
2 MR. STOJANOVIC: [Interpretation] Yes, precisely so. That's what I
3 said, Your Honour, 702. Perhaps it was an interpretation error. So P702.
4 Q. Mr. Kovacevic, could we please pay attention to page 3 in B/C/S
5 version. The last three digits are 326. Please take a look at paragraph
6 6. It says: "Homicide, crimes against persons." It says there:
7 "VTK463/95," and a request was filed to launch an investigation against
8 Stevanovic, Stanko, son of Tomislav. Born in 1968 in the municipality of
9 Travnik, due to probable cause that he has committed on the 23rd of July,
10 1997, at around 2400 hours in a bar."
11 I don't want to read everything. He, using a fire weapon, wounded
12 Kremenovic, Radoslav, and then fired three bullets into Erdemovic, Drazen,
13 whereby he admitted a crime of attempted murder, aimed against several
14 persons. This is under Article 2, subsection 6, of criminal code. Do you
15 remember anything pertaining to this case?
16 A. No.
17 Q. Did you ever encounter such a case against Stevanovic, Stanko, at
18 the second instance level for a crime committed against Drazen Erdemovic?
19 A. Let me tell you: In almost all second instance chambers -- I was
20 a member of a chamber. There were many cases that we dealt with. This
21 probably was not a case that I worked on. Now, whether any of my
22 colleagues who were in other chambers encountered this case, I couldn't
23 say. But the name of Drazen Erdemovic does ring a bell. I don't know if
24 it was because he was an used here in The Hague or because I had something
25 to do with this case. I really couldn't tell you.
1 Q. All right. Let's try and clarify something. It says here that
2 there is reasonable grounds to believe that on the 23rd of July, 1997, he
3 committed such-and-such crime. And the report here is for July of 1995.
4 So what do you think? Could we conclude that this was a typo, that
5 instead of 1997 it should read 1995?
6 A. Well, this must be an error. I don't know whether it should read
7 "1995" or some other year, but obviously it cannot be 1996 or 1997.
8 Q. Mr. Kovacevic, Drazen Erdemovic testified here, the one who is
9 mentioned in this document, and during his testimony he said that this
10 event or this crime described here as involving Stevanovic, Stanko, is
11 directly linked to his participation in Srebrenica events and that he was
12 implicated in this because he disagreed with the assignments given to him
13 within his unit. This could be a hypothesis. Of course, you said you
14 didn't know anything about the particulars of the case. Now, in view of
15 what he said and in view of what is stated in that criminal report, does
16 that seem plausible to you that this action would be taken against anyone
17 who would try to raise an alarm because of something that had happened?
18 JUDGE LIU: Yes, Ms. Davis.
19 MS. DAVIS: I'm afraid this last part of the question seems to
20 call for speculation a little too much from this witness. He's already
21 stated he doesn't know anything about the case and now the hypothetical is
22 being drawn out even further with reports from counsel of what was said by
23 another witness et cetera. But this witness doesn't know anything about
25 JUDGE LIU: Yes, I agree with you.
1 Please move on, Mr. Stojanovic.
2 MR. STOJANOVIC: [Interpretation] Very well, Your Honour. I fully
3 understand the position taken by the Prosecution.
4 Q. Mr. Kovacevic, let me finalise this. We will use another exhibit,
5 P712. So P712, this is the document containing the order of the president
6 of the republic on investigating the events in Pilica. And also it
7 involves the letter sent by Predrag Drinic to the Main Staff of the VRS.
8 Do you remember that document?
9 A. Yes, I do.
10 Q. You also told us that you hadn't seen this document sent by
11 Predrag Drinic to the Main Staff before. Is that right?
12 A. Yes.
13 Q. However, you saw it just now, just recently?
14 A. Yes.
15 Q. Now, let us please see how the pre-trial proceedings and the trial
16 itself look like in practice. According to the president of the republic,
17 a commission was to be established in order to look into events and facts
18 surrounding the two corpses that were found in Pilica, in Zvornik
19 municipality. As the commission was not established on the 26th of March,
20 1996, the military prosecutor requested the Main Staff of the VRS to
21 establish a part of the commission through the security and information
22 department. And these people would conduct investigation on the ground
23 and gather information and facts concerning this event. Is that right?
24 A. Yes.
25 Q. Based on the information that we have available to us, the 10th
1 Sabotage Detachment participated in these events in Pilica. This 10th
2 Sabotage Detachment was under the security and intelligence department.
3 Does it seem bizarre to you that this security and intelligence department
4 is requested to establish a commission which would investigate the crime
5 in which these same people might have participated?
6 A. I think that I've already answered that. It is obvious that this
7 is a very complex route, but it is also obvious that the prosecutor is
8 trying, to the best of his abilities, to resolve and determine what had
9 happened. He believed that this was the best possible route, because the
10 previous commission had done nothing. Now, whether this turned out to be
11 effective or not, I don't know.
12 Q. Will you agree with me that based on the logbook of criminal
13 activity, there obviously was no effect, because as you told us yourself,
14 there were no criminal reports filed nor criminal investigation carried
15 out and there were no indictments issued. Is that right?
16 A. I think that in this case they failed to even determine where
17 these corpses had come from. There were two corpses involved. And yes,
18 that's true, there were no criminal reports filed.
19 MR. STOJANOVIC: [Interpretation] Thank you, Your Honours. I have
20 no further questions.
21 JUDGE LIU: Thank you.
22 Any re-direct, Ms. Davis?
23 MS. DAVIS: I do have a brief re-direct.
24 Re-examined by Ms. Davis:
25 Q. Mr. Kovacevic, a few moments ago before the last break, you were
1 asked by Mr. Stojanovic about which court, the civilian court or the
2 military court, would have certain jurisdiction over certain individuals.
3 And you were asked one point about the civilian police officer who may
4 have committed murder or a violent crime and who would have jurisdiction
5 over that individual. I believe your answer was that civilian courts
6 would have jurisdiction.
7 My question to you is: If a civilian police officer had been
8 working with the military in a criminal operation, who would have had
9 jurisdiction over that civilian police officer?
10 A. As far as the jurisdiction is concerned, there are some provisions
11 that say that if a crime is committed simultaneously, both by a military
12 person and a civilian person, so the same crime but committed together by
13 them, in that case, the military court would have jurisdiction. However,
14 this is an exception. Because the policeman at the time the crime is
15 committed is a civilian, even though he's wearing a uniform. However, if
16 the crime is committed in the company of a military serviceman, then the
17 military court would have jurisdiction.
18 Q. Okay. Does it follow then that a civilian police officer who's
19 working under the command of a military unit with other military officers
20 or soldiers in a criminal operation would also fall under the jurisdiction
21 of a military court?
22 A. Yes. Yes. Providing they committed the crime together. However,
23 if the policeman commits a crime on his own, alone, then the civilian
24 regular court would be in charge of it. So they have to be also linked by
25 the crime as well.
1 Q. Okay. The last thing that I wanted to address with you is just to
2 clarify something that I think has become unnecessarily confusing. In
3 order to do that, I'd like for you to be shown again Exhibit P702. And if
4 you can look at the first page of the report -- of the actual report, not
5 the cover page, the last paragraph on the page is the one that I directed
6 you towards during my direct examination. We discussed this earlier, that
7 there was a mention in this report of the fact that the jurisdiction of
8 the military court in Bijeljina had been expanded and now incorporated
9 some region covered by the Drina Corps. Is that right? Have I summarised
10 that correctly from before?
11 A. Yes.
12 Q. And I believe you indicated to us that when that division of the
13 Drina Corps region had happened, that some of those -- some of the Drina
14 Corps geographic area, for lack of a better term, had gone to the
15 Bijeljina court and some to another court. Is that right?
16 A. Yes.
17 Q. And the areas of Srebrenica, Bratunac, and Zvornik you have
18 clarified for us a number of times now, came under the Bijeljina
19 jurisdiction, after that expansion of the military court jurisdiction in
20 Bijeljina. Correct?
21 A. Certainly.
22 Q. Now, this report of course was produced in July 1995. So I take
23 it we can assume from this that the expansion of the area of jurisdiction
24 of the military court in Bijeljina happened prior to July 1995?
25 A. Yes.
1 Q. Now, the reason I wanted to clarify this with you is I wanted to
2 ask you if you remembered when we were meeting the other day that you were
3 shown some monthly reports, not only from the Bijeljina district but also
4 from the Sarajevo district. Do you recall that?
5 A. Yes.
6 Q. And do you recall that the monthly reports that you were shown
7 were for the months July 1995 through December 1995?
8 A. Yes.
9 Q. And you reviewed those reports, and you didn't find any
10 investigations into war crimes -- reports or investigations or
11 prosecutions into war crimes in those monthly reports either. Is that
13 A. Yes.
14 Q. Okay. So based on those monthly reports, it seems that the Srpsko
15 Sarajevo military court district was still in existence through 1995, but
16 would you agree with me that the expansion of the jurisdiction of the
17 military court in Bijeljina happened before July 1995?
18 A. I've already discussed this. I cannot remember the exact date,
19 but if you allow me. I don't think that is of vital importance here.
20 What's important is that subject matter jurisdiction was given to
22 Q. Okay.
23 MS. DAVIS: I have no further questions.
24 JUDGE LIU: Thank you.
25 Any questions from Judges? It seems to me there's no questions.
1 Well, at this stage are there any documents to tender, Ms. Davis?
2 MS. DAVIS: We do have a number of documents, Your Honour. P380
3 has already been admitted into evidence. So we'll begin with P702, P703,
4 P704, P706, P707, P708, P710, P711, P712 under seal, P713, P714, and P715.
5 JUDGE LIU: Thank you.
6 Any objections? Mr. Karnavas?
7 MR. KARNAVAS: No objections, Your Honour.
8 JUDGE LIU: Thank you.
9 Mr. Stojanovic?
10 MR. STOJANOVIC: [Interpretation] No objections, Your Honour. But
11 perhaps I could remind that one of these exhibits has been admitted
12 yesterday as the Defence exhibit. It was given a D67/3 identification
14 JUDGE LIU: Yes.
15 So those documents tendered by the Prosecution are admitted into
17 Are there documents to tender by the Defence counsel through this
18 witness? Mr. Karnavas?
19 MR. KARNAVAS: No, Your Honour.
20 JUDGE LIU: Thank you.
21 Mr. Stojanovic?
22 MR. STOJANOVIC: [Interpretation] No, Your Honour.
23 JUDGE LIU: Thank you.
24 Mr. Blagojevic?
25 THE INTERPRETER: Microphone, please.
1 MR. McCLOSKEY: Excuse me, Mr. President, just if Mr. Blagojevic
2 is going to go into more personal information about Defence counsel, I
3 would prefer not be present for the Prosecution to hear that. I just --
4 it's getting a little inappropriate at this point. I don't know what he's
5 going to say, but I'm not really sure we should be here when he goes into
6 those sorts of areas. I know it's impossible to predict, but ...
7 JUDGE LIU: Yes, Mr. Blagojevic, would you please tell me what is
8 the main subject of your intervention. What are you going to talk about?
9 THE ACCUSED BLAGOJEVIC: [Interpretation] Your Honour, it's going
10 to be quite simple. I simply wanted to ask, and I'm going to ask the
11 Prosecution, to be quite specific about the actual article and paragraph
12 in the law indicating that the military courts have jurisdiction over
13 police officers in the specific case presented by the witness and when
14 such a situation occurred in practice for a civilian police officer, a
15 member of the civilian police. So I want the exact law of the Republika
16 Srpska with the exact article and paragraph in order to corroborate this,
17 in order not to have the situation in which this situation would act as
18 the legislator, the ultimate legislator.
19 JUDGE LIU: Well, Mr. Blagojevic, I think this issue has been
20 brought up and discussed during the direct and cross-examination with this
21 witness. This witness has answered this question so far as to his own
22 knowledge. The Prosecution actually is not a witness in this case. And
23 after this sitting, we'll go over the transcript to see how this witness
24 answered that question. Of course your question has already been
25 registered in the transcript.
1 At the same time, I would like to remind you - as I did before
2 many times - if you have some questions or if you have some problems with
3 the Prosecution or with the witness, please put it down on a piece of
4 paper and the guard will send it to your counsel, as Mr. Jokic did in this
6 Well, thank you, Witness, for coming to The Hague to give your
7 testimony. We hope you have a pleasant journey back home. The usher will
8 show you out of the room. You may go now.
9 [The witness withdrew]
10 JUDGE LIU: Well, since we have a little time left for this
11 morning's sitting, there's several procedural matters that I would like to
12 deal with, making the best use of the time left. The first question I
13 would like to address to the Prosecution about the two remaining witnesses
14 we discussed the other day. Could you please give us a kind of indication
15 how soon or when are you expecting them to testify.
16 MR. McCLOSKEY: That is still a little unclear, though it is our
17 intention to have them here no later in a month, hopefully in about three
18 weeks. Three, three and a half weeks is what the time frame that we think
19 would be reasonable enough to be able to give the government a chance to
20 get passports, find them, serve them, and get arrangements made. If it
21 can be any sooner, we'll try that as well. And -- but we certainly don't
22 want it to go beyond a month. If it can be done, it should be able to be
23 done in a month, I think.
24 JUDGE LIU: Thank you.
25 Could I ask Defence counsel for Mr. Blagojevic that from yesterday
1 or the other day's statement you made in this courtroom, could we
2 understand that you will allow the Bench to hear this witness while you
3 are preparing or submitting your 98 bis motions. If there is some new
4 evidence appearing in their testimony, the Bench will give you permission
5 to file some attachments or addendum to your motion.
6 MR. KARNAVAS: Thank you, Mr. President. I was hoping that you
7 would not have interpreted my explanation in that fashion, but I can see
8 where the Court is going. What I was hoping is that we would be working
9 on that 98 bis motion. We do -- we take it very, very seriously. We have
10 a very large volume of material to go through. And in light of the
11 Prosecution's dilemma, given that we are being somewhat magnanimous at
12 this point, I thought that we would enjoy a certain degree of flexibility
13 on the part of -- from the Trial Chamber in perhaps allowing us some
14 additional time to really get in -- a very serious motion in. We think
15 that the two weeks that's allotted is slightly -- it's tight. It's very
16 tight. With this new information, we don't know.
17 So we -- obviously we hope to have it in or about the time the
18 Prosecution will have its witnesses. I mean, we can have it earlier if
19 the Court orders us to do so, but we were kind of hoping for that sort of
20 flexibility, so to speak. And I certainly don't want to file a motion
21 prior to hearing these witnesses, because then it allows the Prosecutor --
22 I don't want to say it unfair, but perhaps an advantage that they normally
23 would not enjoy. And I'm sure that Mr. McCloskey would not try to take
24 advantage of the situation, but nonetheless I think that as a good
25 Prosecutor if he's going to avail himself to the information that I put
1 before him.
2 So that's why I would wish to have the opportunity to have that
3 information -- to have the witnesses first testify and then us filing the
4 motion. Because the only other alternative would be for us to file it
5 under seal, wait until that testimony, and then have it released to the
6 Prosecutor, so they don't have any unfair advantage as a result of having
7 our motion prior to putting on these witnesses. Because it may generate a
8 certain line of questioning that they normally would not have or another
9 request for additional witnesses.
10 So in any event, I think if the Prosecution has made already
11 efforts to get those folks over here, which I am sure they have, I see no
12 reason why they can't be here in an additional week's time from what you
13 had anticipated us having for filing that motion. So in a round about way
14 what I'm saying, Mr. President, I'm trying to take advantage of the
15 situation as well.
16 JUDGE LIU: Well, I understand your position.
17 Mr. Stojanovic, what's your view on that issue?
18 MR. STOJANOVIC: [Interpretation] Quite frankly, I believe that the
19 two witnesses have no specific relevance to -- for the indictment against
20 Dragan Jokic. I know that what one of the witnesses will be saying, as
21 explained by the Prosecution. And as for the testimony of the other
22 witness who is, if I understand it correctly, belongs to the Bratunac
23 Brigade, I don't know about that. But I am willing to believe that they
24 do not have anything to do with Dragan Jokic.
25 We are now between co-counsels from Mrs. Sinatra to Mr. Lukic, and
1 we have been working on this since yesterday, scanning all the documents.
2 And we are working on our 98 bis motion. We believe that we will be able
3 to file it by the 20th of February -- 28th of February. We know the
4 importance of this filing. And if the Prosecution would be able to bring
5 the witnesses, the two witnesses, within the next two or maybe three
6 weeks, as the Prosecutor said, that would mean that the witnesses would be
7 here sometime in mid-February. Because the Prosecution will be presenting
8 its case throughout the next week, and I would like to propose the
9 Prosecution and Mr. Karnavas for professional reasons, I would like to --
10 the deadline for us to start from that time, the 15-day deadline. Because
11 then, instead of the deadline being the 20th, we would have the deadline
12 of the end of the month for that filing. We believe that it really would
13 be fair and that would also play into the hand of the Prosecution, because
14 the Prosecution would then be able to extend its time period in which it
15 can present its case, which is what they applied for.
16 But at any rate, Mr. Jokic's Defence, in light of the fact that
17 the testimonies will not have any bearing on Mr. Jokic, will be ready to
18 present this motion as requested. Thank you.
19 JUDGE LIU: Thank you very much for your cooperation.
20 Well, I understand that the position of the -- of Mr. Karnavas,
21 because your 98 bis motion should be filed only after we hear all the
22 Prosecution's witnesses. And I hope if we could hear those two witnesses
23 sometime in the middle or later February, the Defence counsel should file
24 their 98 bis motion the next day after we hear those two witnesses.
25 Is that fair enough?
1 MR. KARNAVAS: Well, Your Honour, I was thinking more like three
2 or -- three to five days after. I mean, the next day, where I hear them,
3 I have to process the information, I may need to rework the motion a
4 little bit. So it's not a matter of -- because one of the witnesses, and
5 I assume that the Prosecution's motion for this additional time is a
6 serious one because one of them happens to be the driver for
7 Mr. Blagojevic, otherwise they would -- they certainly would take him off
8 the list. So I can only suspect that the Prosecution thinks that these
9 witnesses are relevant to their case in-chief. So I think a three-day
10 deadline, although cutting it close, I would prefer five, to be honest
11 with you. But I will settle for three. But one is cutting it too close,
12 Mr. President.
13 JUDGE LIU: I believe the main body of your motion has already
14 been prepared.
15 MR. KARNAVAS: Well, I thank you, Mr. President, for the
16 confidence that you have in me. But I think three days would be a
17 reasonable amount of time.
18 JUDGE LIU: Yes.
19 MR. KARNAVAS: I've come down from five to three, I'm meeting you
20 half way. From one -- between one and five is three.
21 JUDGE LIU: Well, you know I'm not good at bargaining.
22 MR. KARNAVAS: I've noticed.
23 JUDGE LIU: But three days seems to me is reasonable.
24 MR. KARNAVAS: Thank you, Mr. President.
25 JUDGE LIU: So the three-day extension is extended.
1 But at the same time, I would like to remind the parties that the
2 practiced direction on the length of the briefs and motions provides that
3 the motions should not exceed ten pages. In the previous case, there are
4 very lengthy motions on that, some of them even more than 100 pages, which
5 is a great burden to the Chamber. Of course we understand that this case
6 is a very complicated case involving a lot of evidence in it. So if the
7 Defence teams would like to ask for an extension of the pages, I hope you
8 could consider it and inform us orally sometime next week. But you have
9 to remember that the request of extension of the pages should be
11 Well, since we are approaching to the end of the Prosecution's
12 case, I believe that the preparations of the Defence case also should be
13 taken into consideration. According to our previous decision, the
14 preliminary list of witnesses for the Defence case should be submitted on
15 the 8th of March, 2004, a pre-Defence conference scheduled on the 17th of
16 March, 2004. And the start of Mr. Blagojevic's case will be on the 19th
17 March, 2004.
18 As for the list of the witnesses, I would like to remind the
19 Defence team to the Rule 65 ter (G)(i) on these particular issues. I hope
20 the Defence could give us some sort of summary of the facts on which its
21 witnesses will testify. Also specify the category of the witnesses, for
22 instance, the expert, military, human personnel. And also indicate the
23 points of the indictments as to which each witness will testify. Of
24 course we would like to know the final total numbers of the witnesses. If
25 there are any witnesses that the Defence counsel would like to introduce
1 through 92 bis or videolink witnesses, we would like to be informed
2 earlier so that the necessary preparations could be underway.
3 We also hope the Defence counsel could estimate the length of the
4 time required for each witness as well as the total time estimated for the
5 presentation of the Defence case. If there is a request for subpoenas, a
6 motion should be filed a month in advance. And time should be given as
7 well in respect of requests for safe conduct, if there is any.
8 Regarding the 92 bis motion, a 14-day notice must be given to the
9 opposing party, and that time is further needed once it is granted for the
10 Registrar to assign a presiding officer. And I hope that the parties
11 could meet in order to determine for which document the Prosecution may
12 raise objections to its authenticity. And we also would like to ask the
13 Defence team sometime later to indicate to the Bench whether their clients
14 would like to make a statement under Rule 94 bis.
15 Well, these are all the matters I would like to say at this stage.
16 Are there any other issues that the parties would like to bring to the
17 attention of this Bench?
18 Yes, Mr. McCloskey.
19 MR. McCLOSKEY: Yes, Mr. President, on that subject that you were
20 mentioning, as I think we all know, under 67(B) the reciprocal -- excuse
21 me 67(C), the reciprocal discovery section. And both sides have invoked
22 reciprocal discovery, and under the rule it says that the Prosecution
23 should be allowed to review and inspect any materials the Defence expects
24 to use as evidence. We have not made any time frame at this point and
25 have not tried to suggest a time frame. But I think as we're coming to
1 their case, an appropriate time frame for that should be made. And so I
2 would suggest as soon as possible so that we can be properly prepared for
3 cross-examination of the Defence witnesses.
4 JUDGE LIU: Yes. I think after the 6th of February the parties
5 should meet to discuss this matter. And I'll instruct the Senior Legal
6 Officer to hold a 65 ter meeting with the parties. During that meeting,
7 if you or the parties have any issues to raise, you may raise it first
8 there. Of course the Bench will be ready to assist the two parties,
9 especially the Defence team to present their case; although the Defence
10 has no obligation to present the evidence.
11 MR. McCLOSKEY: If I could just ask one question, Your Honour. On
12 that point, if the Defence is planning to put on an alibi Defence, they do
13 have an obligation - as I know the Court is aware - and I believe it's
14 long past the deadline for that. So can I now assume that there will not
15 be an alibi defence an either part.
16 JUDGE LIU: Well, I think that's too early. I think the --
17 especially in the Jokic case, I think their case will still be at least
18 two months later than that.
19 Is that my understanding that Mr. Karnavas will present his case
21 MR. KARNAVAS: That's correct, Your Honour. I will be presenting
22 it, though I probably would venture to say that it's going to be slightly
23 longer than the two months that you have in mind.
24 JUDGE LIU: Yes.
25 MR. McCLOSKEY: Mr. President, the Rule regarding alibis, Rule 67,
1 and it begins with 67(A) and says as early as reasonably practicable in
2 any event prior to the commencement of the trial." And then point ii,
3 "The Defence shall notify the Prosecutor of its intent to offer: (a) the
4 defence of alibi."
5 So all I was saying that is since we're well into the trial and
6 the Defence has not offered any defence of alibi, I think it would be fair
7 for the Prosecutor to know, and in fact, and in law, that there will be no
8 alibi defence.
9 JUDGE LIU: Well, as early as possible does not set a specific
10 date on that. In my previous case, in some situations it's one month
11 before they are presenting their case. Do you think one month will be
12 enough for you?
13 MR. McCLOSKEY: Mr. President, it says "before the trial". We
14 have already been in and are relying on the fact that there would be no
15 alibi defence. I have had bad luck with this in my former life where
16 there is a similar requirement, and I would just -- we have been relying
17 on the firmness of this Rule. If that is being changed by the Court, we
18 would certainly like to know about it, because it is a rather significant
19 issue. And I see Mr. Blagojevic has raised his hand as well.
20 JUDGE LIU: Let me first hear Mr. Karnavas on this issue -- no,
21 Mr. Blagojevic, please wait.
22 MR. KARNAVAS: Well, first of all, Your Honour, with respect to
23 alibi, and I can understand the Prosecutor's concern, normally that issue
24 where it comes from the jurisdiction that he practices, the main concern
25 is to allow the Prosecutor enough time to investigate the alibi witness or
1 witnesses. So that's the whole purpose of that particular Rule. In this
2 case the Prosecution is still putting on its case. They just indicated
3 that they're going to be introducing some witnesses, one of whom was the
4 driver for Mr. Blagojevic, who at least with respect to one particular day
5 or part of a day, will testify to, I assume, the whereabouts of Mr.
7 I think by this point in time, the Prosecution is well aware of
8 the theory of our particular defence and of what we have been maintaining
9 the entire time. So that's as far as I am prepared to go at this point in
11 Now, when we do have our witness list, we will give it to the
12 Prosecutor, we will give a summary as to what they will be saying, they
13 will have sufficient time to investigate the backgrounds and to meet with
14 these people if they so desire. But I think at this point in time, that
15 is as prepared as I am to answer this question, particularly given that
16 Mr. McCloskey has not given me any forewarning that he wanted to have a
17 discussion on this particular issue. But I can assure Mr. McCloskey that
18 the Defence, at least with respect to Mr. Blagojevic, does not intend to
19 engage in any, you know guerilla warfare as far as, you know, in trying to
20 sabotage them or trying to, you know, hide the evidence from them. That's
21 not my practice, it has never been, it won't be here.
22 JUDGE LIU: Mr. Stojanovic, could I hear you on this aspect.
23 MR. STOJANOVIC: [Interpretation] Your Honour, I think the view of
24 the Defence regarding each of the counts of the indictment are quite
25 clear. They have been expressed in our pre-trial brief. We specified
1 quite clearly why we deem Mr. Dragan Jokic to be not guilty on any count
2 of the indictment. We state that Dragan Jokic did not exist [as
3 interpreted] and that he was not in the area. We think it is now too
4 early for us to take a stand, in light of the Rule 67, and I think that at
5 the time when we start presenting our case, which will be in less than --
6 it won't be taking place even in four months, we will have quite enough
7 time from the 8th of March [as interpreted], when we will be giving the
8 list of witnesses with the summaries of their statements and indicating
9 what -- why we're calling the witnesses to prove what. I believe that the
10 Prosecution will be informed at all times of our intentions. In the three
11 years that all of us have been involved in this case, the Prosecution and
12 the Defence, I think that we are quite familiar with the case of the
13 Prosecution, and the Prosecution is well aware of the case that the
14 Defence is going to present.
15 JUDGE LIU: Yes, Mr. McCloskey.
16 MR. McCLOSKEY: Mr. President, this is getting to be a very
17 serious matter. That sounded to me like an alibi defence. This is the
18 first time I've anything that sounded like an alibi defence. He said his
19 person wasn't there at the time. Now, the law is as clear as clear can
20 be, that once -- that they have a duty to tell us about alibi defences
21 prior to the trial. I did not bring a motion because I believe that they
22 were honourable men, and now I'm hearing right before our case that he is
23 going to give an alibi. It's not just that.
24 Once they do tell us they have an alibi they shall: "Specify the
25 place or places at which the accused claims to be present at the time of
1 the alleged crimes and the names and addresses of witnesses and other
2 evidence upon which the accused intends to rely to establish the alibi --
3 THE INTERPRETER: Counsel, please slow down when reading.
4 MR. McCLOSKEY: Having failed to present us with this defence at
5 this time, there is very strong grounds to not allow them to put on that
6 defence at all, which I'm not going to push that, that's not my style.
7 But I would like, and I would -- we can file a motion if you feel
8 necessary, I would like and would request that the Court order them to
9 provide -- to obey the law that is laid down as clear as a bell and tell
10 us if they have an alibi or not. And then if they do, as it seems that
11 Mr. Stojanovic does, then meet the details of that as soon as possible.
12 Mr. Karnavas has not said whether he has an alibi or not. If he wants to
13 stand up and say that his client was in and around the Bratunac Brigade
14 headquarters on the 11th or 12th, 13th, then we don't have a problem. But
15 if he's got an alibi, we need to hear about it, and the law says we have
16 that right to hear about it. And this is not some new law. This is a
17 very serious matter and I would hope we can get a very clear ruling on
18 this point.
19 JUDGE LIU: Well, I believe there is very limited time for us to
20 go around the debate concerning the issue of the reciprocal disclosure as
21 well as the meaning of the alibi at this stage. So I hope that we could
22 find another time, maybe through a 65 ter meeting, to discuss this matter
23 between the parties first, otherwise we'll stay here for the whole day on
24 this issue.
25 Mr. Stojanovic, if you insist, I give you one minute, very
1 concise, because we will have another opportunity to bring up this
3 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. I will
4 make maximum use of it. I never, ever -- did not say what the Prosecution
5 just said. I do not mean to use any illicit means in my defence. The
6 issue of alibi is -- remains open. We have a different definition of
7 alibi. If my client is charged with conducting the operation in Orahovac
8 on the 14th and if another document indicates that he was in the Zvornik
9 Brigade command, then it is quite clear what I'm trying to prove. Because
10 a man cannot physically be present at two places. So the issue of alibi
11 has already been breached -- or broached, I'm sorry. Our defence is quite
12 clear. We have given a written -- handwritten document a few days ago.
13 What we want to establish right from the beginning is the exact position
14 of Dragan Jokic. We don't want to go into that now, but I want to assure
15 the Prosecutor that I will never use any illicit, illicit means and I
16 assure you that I intend to go on in that way.
17 JUDGE LIU: Thank you.
18 Well, Mr. Blagojevic.
19 THE ACCUSED BLAGOJEVIC: [Interpretation] Your Honour, I just want
20 to give my clear view on the future of this trial. I have nobody to
21 prepare my case with, the defence case, and I want to state that quite
22 clearly. If this situation continues, I will enter that stage unprepared.
23 I don't want to do that because my situation is quite complex as it is. I
24 would like to have as few problems as possible. Thank you, Your Honours.
25 JUDGE LIU: Well, you've raised this issue many times before. I
1 don't think it's necessary for you to raise it whenever you have a chance
2 to take the floor. And this Bench has already explained to you the
3 decisions by the Appeals Chamber. I will not spend one more word on this
4 very issue.
5 Well, if there is nothing else -- yes, Mr. McCloskey.
6 MR. McCLOSKEY: I just wanted to give you an update on our
7 situation with witnesses. We have one more witness. Last heard she's
8 sitting on an airplane unable to take off but if -- from the UK because of
9 weather. But we hope she will get here today and we'll put her on
10 tomorrow. And if I hear of any further problems, I will let the Court and
11 counsel know as soon as I hear.
12 JUDGE LIU: Thank you very much.
13 Mr. Karnavas.
14 MR. KARNAVAS: Just a couple of brief matters. First of all, I'm
15 told by Ms. Tomanovic that apparently when the translation -- in the
16 translation March was translated into May, but the deadlines were March --
17 I mean, May as opposed to March. So just to make sure that Mr. Blagojevic
18 and Mr. Jokic know that it's March and not May. I think it was March 8th
19 and it was translated into May 8th.
20 Secondly, I had brought up the issue of a previous witness that
21 was -- the Prosecution suggested be brought into court under 92 bis. I
22 did alert the Prosecution. I did alert someone from Chambers in court a
23 few days ago. And I just want to go on the record. This is with respect
24 to Ms. Ibrahimafendic. And I was given a week or so to file a motion.
25 That deadline was on Monday. Prior to Monday, I had an opportunity to go
1 back and re-read a couple of times the testimony given by that witness,
2 taking into consideration Your Honour's comments from the Bench. And in
3 light of re-reading the testimony in the previous case and in light of
4 Your Honour's remarks and in keeping in mind the Prosecutor's remarks as
5 well, I came to the conclusion that this witness -- that I need not file a
6 motion and that I would withdraw my initial -- my earlier request. And
7 therefore, I concur with the Court's opinion that this witness can come in
8 through 92 bis, as suggested by the Prosecution. So I just wanted to go
9 on record with that and also alert the Court that it wasn't a lapse of
10 diligence for not filing that motion in a timely fashion.
11 JUDGE LIU: Thank you very much for your cooperation.
12 And we'll resume tomorrow morning, if possible, at 9.00 in
13 Courtroom II. The hearing for today is adjourned.
14 --- Whereupon the hearing adjourned
15 at 1.43 p.m., to be reconvened on Friday,
16 the 30th day of January, 2004, at 9.00 a.m.