Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9532

1 Friday, 25 June 2004

2 [Open session]

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

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] I'm going to call Mr. Registrar

6 to call the case, please.

7 THE REGISTRAR: [Interpretation] Mr. President, this is case

8 IT-01-47-T, the Prosecutor against General Hadzihasanovic and Amir

9 Kubura.

10 JUDGE ANTONETTI: [Interpretation] Can we have the appearances for

11 the Prosecution, please.

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

13 Your Honours. Good morning to everyone. For the Prosecution, Sureta

14 Chana, Tecla Henry-Benjamin, and Andres Vatter, case manager.

15 JUDGE ANTONETTI: [Interpretation] Thank you, Ms. Henry-Benjamin.

16 Defence counsel, please.

17 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President,

18 representing General Hadzihasanovic, Edina Residovic, counsel; Stephane

19 Bourgon, co-counsel; and Muriel Cauvin, case manager.

20 JUDGE ANTONETTI: [Interpretation] The other Defence team, please.

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

22 Representing Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and

23 Mr. Mulalic, our legal assistant.

24 JUDGE ANTONETTI: [Interpretation] The Chamber would like to greet

25 everyone present in the courtroom, representatives of the Prosecution,

Page 9533

1 both the Defence teams, the accused, the usher, the representative of the

2 Registry, the interpreters, and all the others present in the courtroom.

3 Today we shall continue with the cross-examination of the witness

4 that we heard yesterday, so we are going to bring the witness into the

5 courtroom.

6 Usher, can you please bring the witness into the courtroom.

7 Thank you.

8 [The witness entered court]

9 JUDGE ANTONETTI: [Interpretation] Good morning, Judge. I would

10 like to make sure that you are receiving the interpretation. A little

11 while ago I was told that there were technical problems. I hope that

12 they are resolved. If you hear me, can you say so.

13 THE WITNESS: [Interpretation] Good morning. Yes, I can hear you.

14 JUDGE ANTONETTI: [Interpretation] Since everything is in place,

15 I'm going to give the floor to the Defence and ask them to continue their

16 cross-examination.

17 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President.


19 [Witness answered through interpreter]

20 Cross-examined by Ms. Residovic: [Continued]

21 Q. [Interpretation] Good morning, Mr. Adamovic.

22 A. Good morning.

23 Q. My next question to you is in relation to the legal assessment of

24 crimes adjudicated by judges. Is it true, Mr. Adamovic, that criminal

25 proceedings before yourself and before all other courts in our country

Page 9534

1 are conducted for a crime and against a person? Is that correct?

2 A. Yes, this is the principle of the objective and subjective

3 connexity.

4 Q. However, the legal evaluation of a crime committed by a

5 perpetrator is given by the judge.

6 A. Yes, this is the final legal assessment.

7 Q. An indication as to which crime could have been committed is

8 given first by the police, then by the prosecution, who issues an order

9 for investigation; however, according to our law, the judge is not bound

10 by the legal evaluation given by those bodies. A judge is independent in

11 his qualification of the crime that was committed. Is that correct?

12 A. Yes, the only distinction being that the criminal report

13 submitted by the police indicates the grounds for suspicion, and this is

14 done after certain evidence is collected. And then more evidence is

15 collected which will corroborate the grounds for suspicion. And when

16 this is done, then the prosecutor instigates proceedings before the

17 court. But the judge is not bound by any of these qualifications.

18 MS. RESIDOVIC: [Interpretation] I'm going to ask the usher to

19 provide the judge with the laws, because I'm going to be referring to

20 some articles and I would like the usher to be -- to give the judge those

21 laws so as -- for him to be able to refresh his memories when I mention

22 some articles of these two laws.

23 Q. What we have been talking about so far - and that is the final

24 qualification of a crime which is given by the Court - is determined by

25 Article 32, 6, paragraph 2 of the Law on Criminal Procedure. Is that

Page 9535

1 correct?

2 A. Yes, it is.

3 Q. Now, I'm going to ask you, Mr. Adamovic, to look at the Penal

4 Code, which was taken over from the -- from the former Yugoslavia. And

5 let's look at Article 142. The title of this article is "War crimes

6 against the civilian population."

7 According to our law, as you can read in the text, the person

8 responsible for this crime is a person who either orders or commits a

9 number of crimes which are described in paragraph 1 of this article; is

10 that correct?

11 A. Yes, it is; who orders or commits.

12 Q. In the description of the crime itself, there are certain actions

13 such as murder, inhumane treatment, the violation of bodily integrity,

14 unlawful incarceration, plunder, and other described actions which can be

15 seen in the body of the text. My question to you is: Is it true,

16 Mr. Adamovic, that these actions as separate crimes have also been

17 envisaged by the Penal Code of Bosnia and Herzegovina? For example,

18 murder, robbery and aggravated robbery, unlawful incarceration, and so on

19 and so forth. And although it would appear, judging from this text, that

20 these are the same actions, we also have crimes which are envisaged by

21 the law of Bosnia and Herzegovina which fully describes some of the

22 actions which are described in this particular article; is that correct?

23 A. Yes, it is. The object of protection is different. In one case,

24 if the object -- if the crime is murder, then the object of protection is

25 human life. And in Article 142, a war crime against civilian population,

Page 9536

1 the protected object is different. The civilian population is being

2 protected from crimes committed during war operations.

3 Q. Thank you very much for your clarification.

4 Yesterday when you were talking about various activities of the

5 court and other bodies of a judiciary and law-enforcement agencies, you

6 were talking about civilian and military bodies alike. Is it true that

7 throughout the war in Bosnia and Herzegovina, and especially in Zenica,

8 the civilian bodies - that is, War Presidencies, the executive committee,

9 the civilian protection, the civilian police - were active all this time

10 and not for a single moment in Zenica was military administration

11 established; and not for a moment military authorities were in control of

12 the civilian organs?

13 A. Yes, that is correct.

14 MS. RESIDOVIC: [Interpretation] Now, with the help of the usher,

15 I would like the witness and all the other participants in the

16 proceedings be distributed a file or a bundle which contain documents

17 that the evidence -- that the Defence found in the archives of the

18 cantonal court in Zenica which partially took over the cases of the

19 district military court in Zenica; that is, those cases which are now

20 under the jurisdiction of the cantonal court. Some of the cases in this

21 file have already been admitted into evidence.

22 There are three tabs here, and in front of every tab you will

23 find the topic that is being discussed and a short description of those

24 documents which can be found in the bundle.

25 Q. Is it true, Mr. Adamovic, that you would regularly or on request

Page 9537












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Page 9538

1 of some bodies provide reports on your work? Is that correct?

2 A. Yes, it is.

3 Q. You submitted a monthly report to the Ministry of Defence which

4 has certain administrative authorities over the court, as you testified

5 yesterday. At the end of the year, you would submit your report to the

6 Supreme Court of Bosnia and Herzegovina, and throughout the year to all

7 those bodies who wanted to learn about the work of the court.

8 A. Yes, this is part of the regular work of the court, reporting,

9 but not subordination. This is proper reporting as to what is being

10 done.

11 Q. Now, can you please look at the document which is under tab 1,

12 number 1. This document was produced by the district court in Zenica.

13 The date is 12 December 1993.

14 If we look at page 2, you will see that Muhamed Colakovic's

15 signature is here. Was he the president of the court during that time?

16 A. Yes. If this is his signature, then yes, he was.

17 Q. The information is addressed to the command of the 2nd Corps;

18 however, I believe that this is a mistake, because you submitted such

19 information to the 3rd Corps. I believe that this might be a typo.

20 A. It doesn't have to be, because yesterday when we were talking

21 about various jurisdictions and in various territories, it could have

22 happened that the corps would cover one part of the territory over which

23 the district military court in Zenica had jurisdiction. So this could be

24 the case of the area being closer to Travnik and Vitez, where the

25 jurisdictions and authorities of the two bodies overlapped. This could

Page 9539

1 have been sent to the command of the 2nd Corps. It could have been sent

2 also to the command of the 3rd Corps and to all the other units which

3 existed in the territory of the court. The court did not change its

4 territorial competencies, whereas the corps changed their territories.

5 Q. Mr. Adamovic, this is a new document, and we can see that this is

6 a short analysis of the results of work for the period from the 1st to

7 the 10th of December, 1993; is that correct?

8 A. Yes, it is.

9 Q. In the fourth paragraph of this analysis, you can see that your

10 court received 432 criminal cases with 860 individuals, that you finished

11 250 cases involving 573 individuals, and that 182 cases are pending

12 involving 236 individuals; is that correct?

13 A. Yes, it is.

14 Q. In the following paragraph, it says that during that period you

15 received 512 requests for investigation for 1.364 individuals, and after

16 that followed the date on how many cases you completed.

17 On page 2, if you look at page 2 of this document, the president

18 of the court informs the addressee that the situation is very difficult

19 and that the court is facing major problems with space and equipment; is

20 that correct?

21 A. Yes, it is.

22 Q. The following paragraph speaks about what you testified about

23 yesterday, that there was lack of paper, lack of forms, and that very

24 often because of the lack of forms and inability to inform the witnesses

25 and the accused, proceedings have to be delayed; is that correct?

Page 9540

1 A. Yes, it is.

2 Q. Can you please look at the document that follows. This document,

3 on the last page again, the signature is by Muhamed Colakovic, and the

4 date of the document is the 8th of April, 1993. It was sent to the

5 Zenica Municipality and the executive board of the municipality, that is,

6 the civilian body of the town of Zenica. Is that correct?

7 A. Yes, it is.

8 Q. This report is also information on the work of the court for a

9 shorter period. And as you can see in paragraph 2, these are reports

10 which are drafted for the period from the 1st of October, 1993, to 25

11 February 1994; is that correct?

12 A. Yes, it is correct.

13 Q. In order to avoid repetition, this report mentions the figures

14 that are relative to your work; is that correct?

15 MS. RESIDOVIC: [Interpretation] My colleague has just told me

16 that the date of this report, as we can see, is the 8th of March, 1994.

17 A. You said October, and I confirmed that without checking the date,

18 but that is the document we're discussing. It says "Strictly

19 confidential, 7/94, dated the 8th of March, 1994."

20 Q. However, in paragraph 2 of this document - in order to be quite

21 precise and to avoid confusion, otherwise it will be of no help to the

22 Trial Chamber - in paragraph 2 it says "According to the monthly reports

23 sent to the Ministry of Defence, in the period from 1 October 1993 until

24 28 February 1994, we received 508 requests for investigations against 749

25 suspects." So this report deals with this brief period, as stated here;

Page 9541

1 is that correct?

2 A. Yes.

3 Q. Please have a look at page 3 of this report, in which you explain

4 a fact, and before we have a look at it in the report, I'd like to ask

5 you about this fact.

6 In addition to the legal qualification of an act, which is the

7 responsibility of a jurisdiction of a court, the court also independently

8 assesses all the circumstances of importance for meting out a sentence.

9 So the court takes into consideration aggravating or mitigating

10 circumstances and determines the appropriate penalty, the appropriate

11 sentence for each individual.

12 A. Yes.

13 Q. Naturally, the prosecutor can appeal, but it is the second -- it

14 is the appeal court that decides this.

15 A. Yes, as everywhere in the world, the judge issues a sentence.

16 Q. If we have a look at this third page, you -- or rather, the court

17 states the reasons for which certain sentences were given, and it states

18 that "The sentences are usually either the minimum for the crimes if the

19 accused have pleaded guilty." The court also states the reasons for this

20 and says it's the result of assessing mitigating circumstances, personal

21 and family circumstances, and they also talk about material conditions

22 which were very difficult and which led to the perpetration of crimes by

23 the accused. Is it true that these are some of the circumstances that a

24 court had to take into consideration when deciding on the sentence?

25 A. According to the Law on Criminal Procedure, there is a so-called

Page 9542

1 idea of mitigating and aggravating circumstances, which has to be -- this

2 has to be taken into consideration when determining the severity of the

3 sentence and the type of sentence.

4 Now when I examine the contents of this report, it is revealing

5 in that one can understand the work of a court, in personal terms and in

6 terms of general prevention at a time of war when the living conditions

7 are affected by war operations. When nothing is as it usually is,

8 certain decisions taken by the courts could have negative connotations,

9 as far as general prevention is concerned. To prevent this from

10 happening, the president of the court quite evidently reported regularly

11 on how the court operated, and in this part, which is purely judicial -

12 and it's not necessary for the court to provide anyone with reports about

13 this, because the judge is only held accountable -- only has to report to

14 the higher court when assessing the facts and circumstances that

15 determine the assessment of the act or that determine the sentence - but

16 I supported such work on the part of Mr. Colakovic, since this person is

17 a very serious and very experienced judge, a very clever person. And

18 knowing that prevention of a general kind could be misinterpreted by the

19 public, he would add to his reports such elements in which he would

20 explain why the court proceeded in a certain manner. This was more for

21 the sake of the public, not so much for the professionals. In such

22 exceptional circumstances, he wanted the public to be aware of why the

23 court would deliver a certain sentence.

24 Q. Thank you, Mr. Adamovic, for these very precise and useful

25 explanations.

Page 9543












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Page 9544

1 Could we, please, now have a look at theme number 2. These are

2 documents that talk about the court's work and about everything that you

3 mentioned when answering questions from my colleague and myself

4 yesterday.

5 From 1 to 5, we have reports from on-site investigations. These

6 are reports concerning situations in which the investigating judge would

7 go to an on-site investigation as requested if there was information that

8 a certain act had been committed and it was necessary to carry out an

9 investigation in order to protect the traces of the act. The documents

10 under 1 to 5 are new documents and they were taken from the cantonal

11 court's archives in Zenica. Could you please have a look at the first

12 document under number 1. This is a report on an on-site investigation

13 which on the 26th of December, 1992 was drafted with regard to an event

14 in which one person died. And you can see that your colleague Safet

15 Najdin [phoen] went to the site.

16 THE INTERPRETER: Your colleague Mladen Veseljak went to the

17 site. Interpreters's correction.

18 MS. RESIDOVIC: [Interpretation]

19 Q. In addition to the fact that this report contains information and

20 the facts that the judge discovered at the site, have a look at page 3.

21 We discussed this yesterday. When present at the site, the judge

22 undertook certain measures.

23 Under 1, it says that he took a bullet from a military officer.

24 He then went to the hospital to see what had happened with the person

25 wounded. An autopsy was ordered - that's stated under 3 - he then

Page 9545

1 ordered a paraffin test to be done and asked for a handgun to be seized,

2 and he also said that someone should be put into custody for three

3 days -- the perpetrator should be put into custody for three days to give

4 the prosecutor time to decide whether he should continue prosecuting this

5 case.

6 Mr. Adamovic, these are the usual acts that a judge, in

7 accordance with his responsibilities, does when present at an on-site

8 investigation; is that correct?

9 A. Yes, if that's possible.

10 Q. On the other hand, this report, as we could see yesterday, is

11 immediately provided to the district military prosecutor, but a copy

12 remains in the court too; is that correct?

13 A. Yes. That's what we said yesterday, and these are the copies

14 that remain in the court, for the reasons that we mentioned yesterday.

15 Q. Under number 2, there's another report on an on-site

16 investigation. It also concerned the death of Hasan Gafulic. You

17 personally went to the site of this event; is that correct?

18 A. Yes.

19 Q. You described what you found at the site, and then you provided

20 detailed information on possible witnesses of that event and you stated

21 what the witnesses told you. You then mentioned the steps taken, the

22 measures taken. You said that the suspect was questioned. You said that

23 was possible in exceptional circumstances. And then you ordered the

24 military police to perform a paraffin test, but no autopsy was performed

25 because the father of that person didn't allow you to do so. Is that

Page 9546

1 correct?

2 A. Yes.

3 Q. And this was also provided to the district military prosecutor.

4 The next document, under 3 - it's again another new document, as

5 I said at the beginning, because all the documents from 1 to 5 are new

6 documents - this is a report on an on-site investigation that your

7 colleague, Mladen Veseljak, carried out at the site. It related to the

8 aggravated theft and attack on military police. The situation is

9 identical as in the previous document.

10 Under number 4, have a look at the report on an on-site

11 investigation dated the 23rd of July, 1993. According to this report,

12 you went to carry out the on-site investigation; is that correct?

13 A. Yes.

14 Q. The situation concerned in this case had to do with accidentally

15 firing from a weapon. The report was drafted on the 23rd of July, 1993,

16 and you ordered the military police to take statements from people who

17 might know something about the event. Is that correct?

18 A. Yes. But I would like to draw your attention - I've just

19 remembered this - to part of my testimony yesterday. If you have a look

20 at page 2 of this report. Have a look at the last paragraph. It says:

21 "Given the immediate -- the vicinity of combat operations, because the

22 scene to have crime is close to the front line, other details could not

23 be provided, as it was necessary to act promptly." This information

24 relates to the fact that it's important to take statements from certain

25 individuals.

Page 9547

1 I would first like to address the Judges and say that in

2 exceptional circumstances under wartime conditions that the judges in the

3 military court in Zenica worked in a manner that was identical to the

4 procedure followed in peacetime. We strove when we were in -- we strove

5 to perform our duties as professionally as possible, whenever this was

6 possible, and with regard to the testimony about the professionalism of

7 people in wartime, you will make your own assessment, but my claim was

8 that whenever the judge was called on to perform its duty, it did so

9 professionally.

10 This report, dated the 23rd of July, 1993 was drafted at the time

11 of combat, as there was fighting which was ongoing and we attempted to

12 obtain evidence that someone had been accidentally killed.

13 Q. On the next page, you can see that you provided these documents

14 to OVP Zenica. That means the district military prosecutor's office in

15 Zenica; is that correct?

16 A. Yes. And VP, which means the military police battalion. It

17 wasn't our duty to provide this to the military police battalion, but the

18 court always attempted to provide everyone with information in case

19 something got lost because of the exceptional circumstances.

20 Q. And in this particular case, this is what you did, because on

21 page 2 it says that you gave the military police certain tasks; is that

22 correct?

23 A. Yes. We provided this for the sake of information, so we wanted

24 to have a full circle, the possibility of finding documents in certain

25 archives at all times.

Page 9548

1 Q. Mr. Adamovic, could we have a look at the document under number 5

2 now. The title of the document is not a report on an on-site

3 investigation, but the title is "An official record." The judge went to

4 the area of the municipality of Vares, though. The judge who went

5 there -- in fact, there were two judges, Armin Zeco and Mladen Veseljak,

6 your colleagues from the district military court; is that correct?

7 A. Yes.

8 Q. From the description of the site, it's possible to see that on

9 the 20th of August, 1993 - that was the date of this -- that's the date

10 of this report - the bodies of some individuals were taken to the village

11 of Dragovici. The traces had been destroyed. The site had been tampered

12 with. And at the site itself it was -- there was a perpetual danger

13 because of sniper activity, so that these judges could not go to carry

14 out an on-site investigation. That's what it says under number 1,

15 "Description of the crime scene"; is that correct?

16 A. Yes.

17 Q. In this case, it involves the death of four Bosniaks. We don't

18 know what the cause of death was. Is that correct?

19 A. Yes. That's what the information on the victims states.

20 Q. On page 3 it also says that the judge took certain measures, the

21 body was examined externally, and then Dr. Faruk Turkic, a pathologist,

22 compiled an external description of the body and that was an integral

23 part of the record. When the court couldn't go to the site because of

24 combat, was this something that could be done? And such reports would

25 again be provided to the military prosecutor; or rather, they could

Page 9549












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Page 9550

1 provide such reports to the military police as well. Is that correct?

2 A. Yes. On the first page, where it says "those present," it says

3 that Zeco, with Judge Veseljak, went on behalf of the military court.

4 This was done when it was essential to carry out many -- to take many

5 steps. In such a case, one judge would help another judge to expedite

6 the procedure. But to the right you can see under "Others" that

7 Mr. Hasagic is mentioned as the high judge. Mr. Mutapcic is mentioned as

8 the deputy public prosecutor. So I can draw the conclusion that when

9 information was received on the case in fact nothing more was known; all

10 that was known was that the bodies were found in the immediate vicinity

11 of the front line, and it seems that the crime was perpetrated against

12 these individuals but we don't know whether member of the army or some

13 civilian committed this act. And when I said that there was full

14 cooperation, when the people involved were normal, this is such a case.

15 Both civilians -- or rather, representatives of civilian court went to

16 the site and representatives of the military court, which was also a

17 civilian court but dealt with people in uniform, and they would decide

18 what action to take on the site.

19 Q. Thank you. We have just had a look at a selection of reports on

20 on-site investigations, but would it be correct to say that after such

21 investigations and after the documents had been provided to the military

22 prosecutor the procedure that was then followed and the action taken by

23 other organs was only done when requested by the authorised military

24 prosecutor?

25 A. Yes, if these steps were taken. So it was always problematic for

Page 9551

1 us - and I've repeated this on many occasions - it was always a problem

2 for us to know what was happening. If we were aware of what had happened

3 and if we received information, this was the procedure that was followed.

4 And the prosecutor would then take certain steps; he would contact the

5 judge. And I wanted people's professionalism to be compared in peacetime

6 and wartime, but you will see that the procedure followed was the same

7 procedure that was followed in peacetime.

8 Q. Let's briefly look at the documents between 16 and 14 [as

9 interpreted], not to see what it says in them but just for me to ask you

10 several questions about the facts as to which body submitted reports --

11 criminal reports to the military prosecution, when this was done, and how

12 this was described. And all these criminal reports that are in the

13 bundle are new documents. The Defence found them in the cantonal court

14 in Zenica during their investigation.

15 MS. RESIDOVIC: [Interpretation] Thank you very much. I'm going

16 to try and help the interpreters. I'm going to make a pause between the

17 answer and the question.

18 Q. Mr. Adamovic, can we just briefly look at the documents. The

19 first document is the criminal report by the military police which was

20 submitted on the 4th of December, 1992. And the event in question, as we

21 can see in the explanation, is the event that happened on the 29th of

22 October, 1992. The police described the event, and the police qualified

23 this as robbery as described in Article 150 in the penal law of Bosnia

24 and Herzegovina; is that correct?

25 A. Yes.

Page 9552

1 Q. The second criminal report was also addressed to the prosecutor,

2 military prosecutor. It was filed by the military police of one of the

3 brigades. There is a short description of the crime. And here again the

4 police qualified this as robbery. Is that correct?

5 A. 148, paragraph 3, yes.

6 Q. In the second part, this is Mirsad Jasarevic, and this was

7 qualified as robbery as per Article 150 of the Penal Code of Bosnia and

8 Herzegovina. So this would be a crime of robbery.

9 A. [No interpretation]

10 Q. After number 8, there is also another criminal report filed by

11 the battalion of the military police dated -- against Latif Delic. The

12 date is 10 June 1993, the crime was committed in May 1993. The police

13 qualified this incident as an aggravated robbery; is that correct?

14 A. Yes, it is. Actually, there was some property taken from an

15 abandoned house.

16 Q. The following document is a criminal report issued by the

17 355 Brigade, and the date is August 1993. Again, the police qualified

18 the incident as illegal trade. Is that correct?

19 You can look at other criminal reports. Some of them were filed

20 by the civilian police, the Security Services Centre, that is.

21 A. We were talking about that yesterday. Both the civilian police

22 and the military police had equal say in filing criminal reports.

23 MS. RESIDOVIC: [Interpretation] My colleagues are warning me that

24 there is no answer to one of my questions, that the answer has not been

25 recorded to my question about a criminal report which was filed in August

Page 9553

1 1993. The police qualified this incident as an illegal trade. My

2 questions was: "Is that correct?" But the answer was not recorded in

3 the transcript.

4 A. We have mentioned a lot of things. I don't know what you were

5 referring to. What criminal report did you refer to in your question?

6 Q. Let me see. This is number 9, the 1st of August, 1993.

7 A. 129, illicit trade. Yes, that is correct.

8 Q. Thank you. Having had a look at all of these criminal reports,

9 would you say that they confirm that the military prosecutor would

10 receive reports mostly from the military bodies, the battalion of the

11 military police or other military bodies, but that there were also cases

12 when the military prosecutor's office also received reports from the

13 civilian police or the CSB? Is that correct?

14 A. Yes, that is correct. There were reports by the military police,

15 the brigade commands, the civilian police. You also file some reports --

16 find some reports filed by citizens. Everybody who wanted to do so or

17 who had had an occasion to do so could file those criminal reports.

18 Q. Can we look at documents from number 15 to number 17. Again,

19 these are new documents that the Defence was able to locate in the

20 archives of the cantonal court in Zenica, which has taken over some of

21 the cases of the military district court in Zenica.

22 Yesterday you were talking about a situation in which there was

23 evidence with the criminal report or the evidence that you as judges

24 submitted to the prosecution from your on-site investigation, and if this

25 evidence was enough to instigate an indictment - and we're talking about

Page 9554

1 crimes for which the punishment envisaged was up to ten years - then the

2 prosecutor could instigate the proceedings without any further

3 investigation.

4 Can you please look at these three documents and confirm that

5 this illustrates what you were talking about yesterday and that this

6 illustrates the legal procedure and the legal -- pertinent legal text.

7 We're talking about 15, 16, and 17, documents numbered 15, 16, and 17.

8 A. This is the so-called shortened proceedings, and a possibility

9 for an immediate address to the court, addressing the court immediately.

10 Q. In all of these three cases, the prosecutor gives its prior

11 qualification of the crime and gives a detailed description of the crime.

12 And it is only this description that the judge is bound by when giving

13 the final qualification of a crime.

14 A. Yes, that is correct.

15 Q. Can you please look at documents from 18 to 20. Number 18 is a

16 document dated 16 February 1993, and 20 is 27 July 1993. And in the

17 first case, this means that the document dated 16 February 1993, this is

18 a decision ordering detention against a person. You, as the

19 investigating judge, issued that order; is that correct?

20 A. Yes, it is. And from the Statement of Reasons, in paragraph 3

21 you can see the reasons for which this was done, mentioning the

22 seriousness of the crime, the consequences of the crime, the need to

23 carry out an investigation. And there's also an indication that the

24 suspect might flee, and this is one of the reasons why detention was

25 ordered against this person.

Page 9555












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Page 9556

1 Why am I saying this? Because even during the war conditions,

2 there was still a need to explain things. And if we were to compare this

3 with the Geneva Convention on fair trial, we could see that there was a

4 lot of comparison to be done between what we did and what is prescribed

5 by the Geneva Conventions.

6 Q. You were talking about it yesterday, and I am showing this

7 document to you to ask you whether this decision was issued after an

8 on-site investigation. There was still no request for investigation.

9 But if you look at the document under number 19, the official record, you

10 will see that the prosecutor, who is the only person in charge for

11 ordering detention, that he did do that, and this was your grounds for

12 issuing this decision; is that correct?

13 A. Yes, it is.

14 Q. Now can we look at documents number 21 to 30. We are going to

15 see how the court worked and how the prosecutor's office worked.

16 These documents show that the prosecutors are the ones who

17 provide the judge and the court with the request for an investigation,

18 and this is followed by the court's decision on the investigation.

19 MS. RESIDOVIC: [Interpretation] Mr. President, all of these

20 documents are new documents, which were found in the cantonal court in

21 Zenica during the investigation carried out by the Defence.

22 Q. The first document bears the date 6 October 1993. It was sent to

23 the district military court, to the investigating judge there. And the

24 request was submitted to the investigating judge for an investigation to

25 be carried out against two persons who have committed certain crimes,

Page 9557

1 which are described in this request and which the prosecutor qualified as

2 the robbery of arms. Is that correct?

3 A. Yes, it is.

4 Q. The document under number 22 is a similar request for an

5 investigation to be carried out. The date is 14 October 1993. Again, it

6 is requested from the investigating judge to carry out an investigation

7 for the crimes which took place in July 1993, when the abandoned houses

8 were looted, the abandoned Croatian houses were looted.

9 And if we look at page 2, the penultimate paragraph which begins

10 with the title "I propose," it is clear that this request was issued

11 based on the criminal reports of the Municipal Staff of Vares, dated 11

12 August 1993. In other words, we may agree that it did take some time for

13 the prosecutor to verify the allegations, and it was only one or two

14 months later that he issued a request for an investigation to be carried

15 out.

16 A. Yes, I believe that this was the reason.

17 Q. The following document is also a request for an investigation

18 which was submitted on the 15th of November, 1993, and the event took

19 place on the 12th of November, 1993, which means that the military police

20 was very efficient in locating and arresting the persons who perpetrated

21 the crime. In this particular case, the investigating judge was able to

22 act already on the following day.

23 A. Yes. But this is the civilian part, the regular court.

24 Q. However, since we were talking about the procedure and the

25 procedure being practically identical?

Page 9558

1 A. Yes.

2 Q. And this is also proof, isn't it, that the person under number 1,

3 a member of the BiH army, that the other persons were not members of the

4 BiH army and that in keeping with Article 9 of the law on military

5 district courts, in such a situation the jurisdiction for the prosecution

6 of both military persons and the civilians lies in the hands of the

7 civilian judges and the civilian prosecutor's offices; is that correct?

8 A. Yes, it is.

9 Q. Thank you very much. I would not propose to go through all of

10 these documents, but based on such requests, can you please look at

11 document number 24. This is a decision to open an investigation. The

12 date is 4th of December, 1992. This was issued by the investigating

13 judge based on the request of the military prosecutor and this decision

14 serves to open an investigation and that during this investigation all

15 the actions proposed by the prosecution will be carried out, and also the

16 actions that the accused and his Defence counsel suggest during the

17 investigation.

18 A. Yes, that is correct.

19 Q. And now, the document under number 25, which is another decision

20 of the investigating judge to open an investigation. The qualification

21 of this crime was murder. This is a decision issued on the 7th of

22 January, 1993; is that correct?

23 A. Yes, it is.

24 Q. The document bearing the date of the 16th of August, 1993 is

25 absolutely identical. Here the person is accused of having committed an

Page 9559

1 aggravated robbery stemming from Article 148 of the Penal Code of Bosnia

2 and Herzegovina.

3 These document, that is, a decision to open an investigation by

4 the investigating judges, is actually the first judiciary qualification

5 of the crime, and the final qualification is issued by the presiding

6 judge or the presiding -- or the panel of judges.

7 A. Yes.

8 Q. Can you please look at the document under number 30. This is a

9 ruling issued by yourself by which the already ongoing investigation is

10 terminated or suspended. Once the judge suspends the investigation, the

11 prosecution may deem that there's not enough evidence, and he may want to

12 suspend the investigation. In this particular case --

13 A. Are we looking at number 30?

14 Q. Yes, number 30, and the date on the document is 25 December 1993.

15 A. I'm afraid that you are not right in your explanation. Here the

16 investigation was suspended for a different reason.

17 Q. Yes, I'll come to that. But the general principle is as follows:

18 When the prosecutor informs the investigating judge that there are no

19 further grounds for prosecution, then the proceedings are suspended.

20 A. May I answer? May I answer your question, please?

21 Q. Go ahead.

22 A. Here this is about the right of the judge to suspend the

23 proceedings. There is such a right. And this right is initiated either

24 on the request of the parties or ex officio. In this particular case,

25 87/93 dated 25 December 1993, this is not an investigation but the trial.

Page 9560

1 In deciding on the prosecution's request, the judge established that the

2 person against whom the criminal proceedings were instigated died, and

3 that was the reason why the proceedings were terminated. This is one of

4 the rights and obligations of the court, to terminate proceedings against

5 a deceased.

6 However, irrespective of that, of the document that you are

7 showing me, however, in relation to what you have been saying, you're

8 absolutely right; a judge may terminate any proceedings under certain

9 circumstances and under certain conditions. This is the right of every

10 judge.

11 Q. Perhaps I was a little fast, but you have now clarified

12 everything. The judge's right is to suspend the investigation when the

13 prosecutor abandons the case or if there are other conditions.

14 And secondly, when in the course of the proceedings it is

15 established that the accused has died, because if the prosecutor had

16 decided not to prosecute and the accused was alive, you wouldn't have

17 suspended the proceedings; you would have declared the indictment null

18 and void; is that correct?

19 A. Yes. That's the difference I was pointing to, because a sentence

20 is how a trial is put to an end.

21 Q. Thank you.

22 Could you have a look at documents from 31 to 34 now. These are

23 documents from the 27th of November, 1993, the 20th of December, 1993, a

24 document dated the 14th of September, 1994. Those are the documents.

25 Yesterday when explaining how the courts worked, you said that

Page 9561












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Page 9562

1 after the investigation had been completed, the prosecutor, who was the

2 main person in the proceedings, would decide whether the proceedings

3 should be suspended, because there was no evidence, or whether an

4 indictment would be issued. These are examples of indictments that the

5 court was provided with the military prosecutor after the investigation

6 had been completed; is that correct?

7 A. Yes.

8 Q. In the first case, we can see that the prosecutor accused two

9 persons for an event on the 29th of October, 1992. The indictment was

10 issued on the 27th of November, 1993. This means that to detect the

11 event and investigate it lasted for almost one year, after which the

12 prosecutor collected sufficient evidence to accuse these individuals. Is

13 that correct?

14 A. Yes.

15 Q. Similarly - and this is what we can see from the document - the

16 Prosecutor previously described these acts a -- on the basis of Article

17 160 of the adopted ZKP; is that correct?

18 A. And he qualified them as burglary.

19 Q. The next document is an item -- is an indictment that was issued

20 on the 27th of December, 1993. It was addressed to the district military

21 court. It had to do with an event on the 26th of August, 1993 and it

22 related to the previous legal qualification provided by the prosecutor;

23 is that correct?

24 A. Yes.

25 Q. The next document is also an indictment from the military court.

Page 9563

1 These indictments were just taken as examples of the kind of work you

2 described before the Chamber yesterday. You recognise this indictment as

3 an indictment issued by the district military court in Zenica; is that

4 correct?

5 A. Yes.

6 Q. Thank you. Let's now have a look at the documents from 34 to 53,

7 but by mistake we have a number 36 in the list, whereas we have no such

8 document. We just skipped a number.

9 When you have a look, you will see that these documents are

10 judgements from the district military court in Zenica. And I will only

11 refer to a number of these judgements. Just have a look at them and tell

12 us whether you recognise these as judgements of the district military

13 court. And they perhaps are from the regular court in Zenica.

14 A. On the whole, these are judgements from the district military

15 court in Zenica.

16 Q. If we have a look at the first judgement under number 34 in the

17 list. We can see that it's a judgement dated the 3rd of April, 1993,

18 issued by the Chamber of the district military court, and you were its

19 president; is that correct?

20 A. Yes.

21 Q. From the introduction in the preamble, we can see that the

22 proceedings were on the basis of the indictment KT328/92, dated the 2nd

23 of February, 1993, and we can conclude that the court proceeded very

24 quickly in this case because a judgement was taken two months later, on

25 the 3rd of April, 1993; is that correct?

Page 9564

1 A. Yes.

2 Q. The description of the act shows that the event itself took place

3 on the 13th of December, 1992. This period, from December 1992 up until

4 the 2nd of February, 1993, was the period during which the investigation

5 was conducted. So one could say that the investigation was completed

6 quite rapidly in this case too; is that correct?

7 A. Yes.

8 Q. On page 2, at the bottom it says "by which they committed," and

9 then you have under number 1 "the accused Jasmin Vikovic." These acts

10 described above were described by you as violent behaviour, as the crime

11 of damaging property and the crime of aggravated theft; is that correct?

12 A. Yes.

13 Q. And if we have a look at page 3, you gave all of these

14 individuals a certain prison sentence; is that correct?

15 A. Yes. They were given single prison sentences in the end.

16 Q. Thank you. The next document is also a judgement from your

17 court, dated the 14th of May, 1993. It has to do with an event that took

18 place on the 6th of December, 1992, and your colleague, Muhamed

19 Colakovic --

20 MS. HENRY-BENJAMIN: Mr. President. Mr. President, excuse me,

21 please.

22 Mr. President, the face of the documents speak for themselves,

23 and I really don't want to assist my friend in her case, but the

24 Prosecution has no objections at all if she were to just put in the

25 documents, because all the judgements are basically the same, and I don't

Page 9565

1 think it's necessary for us to go through each and every document,

2 because they will speak for themselves from their face.

3 JUDGE ANTONETTI: [Interpretation] Yes. You could perhaps save

4 time, unless certain documents concern substantial issues and you would

5 like the witness to comment on them. Otherwise, you could speed up,

6 because there is no objection to these very official documents from a

7 military court.

8 MS. RESIDOVIC: [Interpretation] Thank you.

9 Q. Mr. Adamovic, you've heard my colleague's very reasonable

10 suggestion. I think that we could have you have a look at the documents

11 and you could then confirm that these are judgements from the district

12 military court. I think that that is the case for all the documents,

13 apart from one of them.

14 Could you just confirm this. Could we have a look at the

15 judgement under number 45.

16 A. These really are judgements from the district military court in

17 Zenica, which can be seen from the names of the judges, whom I know, and

18 the description of the procedure followed in the military court.

19 I have to tell you of the feelings I have when I see these

20 documents, when I see the dates and the judgements consisting of tens of

21 scores of pages. It really shows how much attention we paid to these

22 matters. One should not forget that there was a war going on and we

23 undertook these activities very professionally.

24 Q. Thank you. I think this is important for the Judges to

25 understand.

Page 9566

1 Have a look at the judgement under number 45, dated the 11th of

2 July, 1995. Have you found the judgement?

3 A. 264.

4 Q. 264/94. You were a judge in this case, and you found a certain

5 individual guilty for -- because on the 12th of June, 1993 in the village

6 of Kakanj this individual seized some property from Croats, and you

7 described this act as the crime of theft; is that correct?

8 A. Yes.

9 Q. He also took a cow, seized a cow.

10 A. That's correct.

11 Q. This judgement also shows that the event that took place on the

12 12th of June, 1993 was an event for which the individual was accused in

13 the indictment KT406/94, the 6th of May, 1994. He was only judged on the

14 11th of July, 1995, which shows that the court, when collecting evidence

15 and conducting its work, encountered many obstacles, many problems. And

16 this has already been mentioned in relation to your predecessor. Is that

17 correct?

18 A. No. On the basis of the contents of this document, you can see

19 that the prosecution case arrived on the 6th of May, 1995, and the

20 judgement was on the 11th of July, 1995.

21 THE INTERPRETER: Interpreter's correction: The date was the 6th

22 of May, 1994.

23 THE WITNESS: [Interpretation] So it was perhaps not possible to

24 gain access to Sikira, but there wasn't an investigation carried out.

25 The prosecutor directly contacted the court. So the event was in 1993,

Page 9567












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Page 9568

1 in mid-1993 -- it took place in mid-1993, and the prosecutor contacted

2 the court in mid-1994. My conclusion would be that the prosecutor held

3 onto the case for about a year, probably because this individual was not

4 available and the court, in fact, when searching for this individual,

5 found it difficult to find him. The case in itself was not a problematic

6 one. That's quite obvious. But if it's a driver - and that's what it

7 says in the information provided - then it is obvious that this is a

8 person who moved around a lot, and we could not gain access to him, if he

9 was a member of the army. So a simple case such as this one was probably

10 difficult for these reasons.

11 MS. RESIDOVIC: [Interpretation]

12 Q. Let's have a look at a similar case. It's under number 46, your

13 colleague Veseljak dealt with it. It's a judgement dated the 15th of

14 August, 1995. One person was accused on the basis of the indictment in

15 this case, so an investigation was conducted. The event took place in

16 July 1993. It was a matter of stealing money from Croats. The judge

17 described this crime as the crime of theft, and the judgement was issued

18 on the 15th of August, 1995. So if we accept your explanation that you

19 provided a minute ago, even in the case of simple crimes, quite a lot of

20 time could pass before a judgement was issued because there were various

21 circumstances which made it impossible for courts to summon the accused,

22 to summon witnesses, et cetera. So is this more proof that there were

23 such situations in wartime conditions?

24 A. Yes. In relation to what we discussed previously and in relation

25 to this case, I attempted to deal with this in various manners. It was

Page 9569

1 always important for us for events to be discovered and to be reported as

2 soon as possible, and once it entered the judicial procedure, then it

3 would be dealt with in a year, in two years, or in three years. The

4 important thing was not to forget the case; it was important for it not

5 to be concealed and it was important to process it in a regular manner.

6 This case shows that there were problems when accusing someone and when

7 putting someone on trial, and this was -- these problems occurred for

8 various reasons. But the important thing was to have this crime

9 reported, to have the crime processed, and to have the person judged.

10 If you have a look at the judgements and the previous judgements,

11 we wanted to ensure that the army did not consider war booty to be

12 something that was quite normal.

13 Q. Thank you. Have a look at -- at the documents under tab 3. It

14 has to do with Susanj. As the investigating judge, would it be correct

15 to say that you were informed that a certain number of bodies were taken

16 to the hospital -- to the morgue of the hospital in the area of Susanj?

17 It's under tab 3. We have some documents under that tab, from 1 to 15.

18 Documents from 1 to 6 have already been admitted into evidence, whereas

19 the other ones are new documents, and they're -- they haven't been --

20 they were taken from the archives of the cantonal court in Zenica.

21 A. What you were saying a minute ago, when you asked me whether I

22 was aware of the fact that a certain number of bodies had been taken to

23 the morgue of the hospital in Zenica, well, that sounded like a quote,

24 because that's something that I used in an official report, under

25 number 2.

Page 9570

1 Q. The date is the 12th of June, 1993. The prosecution number is

2 03403591.

3 A. Yes, that's what I'm talking about.

4 Q. I'd like to discuss all of the events. You were informed, and

5 together with your colleague Hidajet Halilhodzic you went to the morgue

6 to establish the facts of the matter.

7 A. There was also Muris Hadziselimovic, the prosecutor.

8 Q. And your colleague Hidajet Halilhodzic.

9 A. I'm not sure about Hidajet, but this should be found here. I

10 don't think he was there, but if that is what it says, then he was, but I

11 don't think so.

12 Q. We have already discussed about this event. Before this Trial

13 Chamber, I would kindly ask you to look at the documents. The first

14 document is the one sent by the chief of security of the 3rd Corps. The

15 date is 10 June 1993, and this is document number 1.

16 In this document, it says that the military police was present

17 during the identification of the bodies that had been brought to the

18 morgue. The military police went to the site of the event, and the

19 persons who were identified are mentioned. I don't know whether you're

20 familiar with this document. Have you ever seen it before?

21 A. I can't find this.

22 Q. It's under number 1.

23 A. It's very easy for you to say, but I can't find it.

24 Q. Tab 3, numbered 1.

25 A. In my bundle, it's not so easy.

Page 9571

1 Q. You have a big number 3, and after this you will find a theme

2 "Susanj," and then number 1, and under number 1 you will find it, I'm

3 sure.

4 While you are looking--

5 MS. RESIDOVIC: [Interpretation] Mr. President, I have two more

6 questions that I would like to put to the witness, and my colleague

7 Ibrisimovic told me that he would only need 15 minutes. I would need 10

8 more minutes, and if you will allow me, I would like to use the

9 15 minutes that my colleague Ibrisimovic is not going to use, and I'm

10 going to use that time to put my questions to the witness and then my

11 colleague Ibrisimovic will only need 15 minutes. If you will allow me to

12 proceed in this way.

13 Thank you very much.

14 THE WITNESS: [Interpretation] Can somebody assist me with finding

15 this document, please?

16 MS. RESIDOVIC: [Interpretation]

17 Q. Mr. Adamovic, this is a list showing all the documents and if you

18 turn to number 1, this will be the report issued by the security body of

19 the 3rd Corps.

20 My question to you is whether you have ever seen this document

21 before.

22 A. If you are referring to this here, this is totally illegible.

23 That's why I skipped it. I don't know what it says here.

24 Q. Can you please look at number 2. The previous document has

25 already been admitted into evidence as DH258.

Page 9572

1 Under number 2, you can see the cover of a file, KRI 162/93.

2 This is a corps document and this is a typical marking of the document

3 that contains the record on an on-site investigation, the official

4 records by the judges, and so on and so forth; is that correct?

5 A. Yes, it is.

6 Q. The first document speaks about the request issued by the higher

7 public prosecutor sent to Dr. Faruk Turkic, pathologist, to provide the

8 prosecutor's office with information as to whether a postmortem had been

9 carried out.

10 The second document you can find here was a document that was

11 sent to you. Actually, it was you who sent this document to the deputy

12 public prosecutor, Suada Halilagic, following her request, which is the

13 third document under this tab.

14 On the 5th of October, 1993 the deputy prosecutor, Suada

15 Halilagic, requested some additional information from you.

16 A. Yes. This is correspondence between the civilian courts, the

17 military court, because it was not known at the time who would be in

18 charge of the case.

19 Q. The following document is a confirmation that you issued to the

20 father of one of the deceased. The date of the document is 16 July 1993,

21 and you issued this document in order to enable the father to bury the

22 body of his son.

23 A. I remember that it was very important whether the body was in a

24 uniform or not because of the different entitlements which stemmed from

25 that fact. And here it says that the person was who he was and a short

Page 9573

1 description.

2 Q. Can you please look at the following four documents. These are

3 the delivery notes by way of which you deliver the official records that

4 you yourself had compiled. You deliver that note to various bodies. And

5 for the record, the whole set of the records has already been admitted as

6 DH61.

7 At the end, you can find your report to the executive committee

8 of the Zenica Municipality. They were also interested in what had

9 happened, and you provide them with short information on what you had

10 found out.

11 A. Yes. This was a very unusual incident, and everybody was very

12 interested in what happened. And as far as I was concerned, I wanted to

13 inform all the relevant bodies, the law enforcement bodies, and the

14 military bodies. I informed them that the number of bodies in civilian

15 clothes was too big to be justified by war operations.

16 Q. The following document is the official record that we are talking

17 about. This is what you compiled on the 12th of June. Is it correct

18 that the first part of this record, in which you state and describe

19 injuries found on 14 bodies as well as the situation with bodies brought

20 over under 16, 17, and 18, this was all done in the presence of

21 pathologist Turkic and a representative of the military prosecutor's

22 office? Is that correct?

23 A. Yes, it is.

24 Q. The reminder of the official record was compiled by you yourself

25 on your own, once you had received information from the representatives

Page 9574

1 of the civilian protection, Ilijas Tatarovic, who had informed you that

2 some of the bodies had been buried in the territory of Cukle; is that

3 correct?

4 A. Those bodies were identified, and so on and so forth. Yes, this

5 can be found on the last page. Nothing was done here. This is just

6 information that I received from Ilijas Tatarovic, the representative of

7 the civilian protection, just to set up a trail as to what bodies had

8 been buried for the reasons of a possible subsequent quest [as

9 interpreted]. This is just information that will serve to help locate

10 those bodies.

11 Q. On page 4 of the official record, Mr. Adamovic, you stated that

12 you wanted to go to the site but that the military police -- actually,

13 the army that you found on the spot, you had learnt that it wouldn't be

14 safe for you to go to the site and that's why you didn't go there.

15 A. No.

16 Q. The second reason was that the bodies had already been moved,

17 that the traces of the incident had been destroyed; and the third reason

18 was that your possible visit to the site would not facilitate the

19 investigation. These are your conclusions; is that correct?

20 A. No, it is not correct. I was prevented by the army from going to

21 the site. They didn't allow me to go there. Now, why have I always

22 emphasised the way the court worked? Every time we received information,

23 we wanted to carry out our investigation in the most professional way

24 possible. In this particular event -- I remember this event very well

25 because of the huge number of bodies that were involved, especially

Page 9575

1 because it involved a family of one of our former colleagues, a judge,

2 and these are the details that stick in my memory.

3 Q. And you have recorded all that in your official record.

4 A. Just a moment, please. Allow me. So because of the way we

5 worked and because of all the other details that I have just mentioned,

6 the number of bodies, and because of the fact that this involved the

7 relatives of a colleague of mine with whom I used to work, I wanted at

8 any cost to go to the site. We came there. I had police escort. We

9 arrived in two or three vehicles and the soldiers stopped us and told us

10 that it would not be safe for us to go up there. I told them that I

11 would go there irrespective of the fact that it might not be safe. And

12 then one of my escorts explained to the soldier that I was a judge and

13 that I had the right to go wherever I wanted to go, because this soldier

14 denied me the right to go to the site.

15 Then I asked him to inform his command in order to resolve the

16 situation. And after that, I was banned from accessing the area, from

17 going there. And that is why I had to compile such a long official

18 record. On my return, I had to make a note of having been prevented from

19 going there. I don't know what happened, whether the soldier abused his

20 position or whether he had received his orders from the command. I don't

21 know, to this very day. However, I recorded what had happened. Against

22 my will I was banned from going to the site. I did want to go there, and

23 I had to record that.

24 There was another record which shows that we even went to the

25 trenches, where we were within the axis of the enemy fire.

Page 9576

1 Q. Thank you very much. We have already seen two situations: One

2 in which you couldn't complete your investigation due to war operation;

3 and the second, where your colleague, Veseljak, also couldn't do that.

4 However, all that happened you recorded in your official note. And this

5 is your official note, your official record; is that correct?

6 A. Yes. But this is not identical to what I was talking about

7 yesterday. This is a case of me having been prevented from going to the

8 site, and I was not very happy with that. I was very unhappy, actual.

9 Q. After that, Mr. Adamovic, please look at document number 4, this

10 is Defence Exhibit number --

11 JUDGE ANTONETTI: [Interpretation] Yes. You have the floor.

12 MS. RESIDOVIC: [Interpretation] We are being warned,

13 Mr. President, that the time has come for a break.

14 JUDGE ANTONETTI: [Interpretation] Well, it is unfortunate that we

15 have to make a break, but we have to for technical reasons, so we shall

16 make a break until 11.00. Thank you.

17 --- Recess taken at 10.35 a.m.

18 --- On resuming at 11.03 a.m.

19 JUDGE ANTONETTI: [Interpretation] We shall resume, and I give

20 the floor to the Defence.

21 MS. RESIDOVIC: [Interpretation] Thank you very much,

22 Mr. President.

23 Q. Mr. Adamovic, kindly look at document number 5. A little while

24 ago, when I showed you document 3, we saw the correspondence between

25 yourself and the deputy public prosecutor, Mrs. Suada Halilagic, in which

Page 9577

1 you informed her that a submission had been set up that, the president of

2 that commission was Jusuf Halilagic, and that you had compiled a report

3 signed by yourselves.

4 Can you please look at this report. Is this the report that you,

5 as a member of this commission set up pursuant to the order of the

6 3rd Corps Command and at the request of the deputy commander of the

7 Command Staff, compiled?

8 A. This was due to the fact that the situation was exceptional, and

9 I as a judge found myself in that exceptional situation. My escorts had

10 wanted to shoot at the troops in order to secure my passage. I found

11 that completely insane, and I suspended all my further attempts to go to

12 the site. However, through these reports, I informed all the relevant

13 bodies of what had happened.

14 And one day I was invited to attend a meeting. At that meeting,

15 there were these gentlemen present. I was told at that meeting that the

16 information on what had happened was indeed received, that measures would

17 be taken in that respect. I signed that. I was sure that all the

18 information had been forwarded, and this is what it says in this report.

19 So this is my participation in the entire event.

20 Q. In the letter that we saw a little while ago that you sent to

21 your colleague Halilagic, you actually pointed to this report and you

22 stated that Mr. Halilagic from the 3rd Corps, who was the president of

23 that commission, compiled a special report on the order of the deputy

24 commander, Mr. Siber Stjepan. At the moment when you were providing

25 answer to my question, you did not have that document before you, but now

Page 9578

1 you have it, and you recognised your signature on the report that had

2 been compiled.

3 A. What are we talking about now? We were talking about this report

4 or what?

5 Q. Before that, we saw this document KRI.

6 A. What was the number of that, please?

7 Q. The number is 2 in the bundle of documents, and the first

8 document after this report is a request for the pathologist, Dr. Turkic,

9 and the second document is your response to your colleague, Suada

10 Halilagic, the one that you have just recognised.

11 A. In view of the significance of this situation and the fact that a

12 judge had been prevented from carrying out an on-site inspection, this

13 was my next step, in order to be sure that the information to my

14 superiors would indeed be forwarded.

15 Q. Thank you very much. Mr. Adamovic, as of this moment, since all

16 the information - that is, your official note, the official note compiled

17 by the military police, the photos, and the report of the commission -

18 were in the hands of the prosecutor, it was up to the prosecutor to

19 manage the proceedings and issue orders to the competent bodies as to

20 what needs to be done next.

21 A. Yes, this is the normal procedure.

22 Q. I'm now going to ask you to look at the documents from 7 to 15,

23 documents that you probably have not seen before, but they will serve for

24 my following questions: Is this now a customary procedure according to

25 which, if you look at these documents from 7 to 15, for which I'm sure

Page 9579

1 that you have not seen them before, but my question to you is as follows:

2 Is this now a customary procedure and the way the prosecutor acts in his

3 quest for additional information? So the prosecutor is the one who

4 checks all the existing information in order to establish whether the

5 crimes had indeed been committed and who the perpetrators were.

6 A. When we said earlier on that information was forwarded specifying

7 who had to perform certain duties, well, the report shows that the judge

8 was prevented from carrying out the on-site investigation. The army

9 should have investigated why this happened, because that is also a crime,

10 in a certain sense, and they should have reported this to the

11 prosecutor's office that had jurisdiction, and independently of the

12 reasons for which the judge went there. It could have been a matter of

13 abuse, and they should have -- and as far as whether somebody was done

14 within the army in that respect, I know nothing about this, but the

15 district military prosecutor had information on the grounds for suspicion

16 for crimes that were determined on the basis of what the civilian bodies

17 had discovered.

18 According to what you have shown me, it seems that the civilian

19 prosecutor took steps as is customary for a prosecutor, but I would

20 rather see what the military prosecutor did in this respect. But no

21 error was made because the civilian prosecutor on the grounds for

22 suspicion also was in a position to take those steps.

23 Q. Thank you very much.

24 A. But let me finish. However, from the very beginning, it was

25 quite clearly indicated that those bodies had been brought in from a zone

Page 9580

1 of combat and so one would expect that the military prosecutor or the

2 security organs in the corps in question would be the first to take these

3 steps. It would be their responsibility.

4 Q. Thank you for this explanation. I have a few more questions

5 regarding a subject that you discussed with my learned colleague from the

6 Prosecution, and this has to do with the fact that from a large number of

7 citizens you found out that members of their family were taken away and

8 they told you that they suspected that they had been taken to the music

9 school; is that correct?

10 A. Yes.

11 Q. As far as this information from the citizens is concerned, you

12 didn't file a criminal report or make an official record. You referred

13 those people to the military prosecutor.

14 A. The military prosecutor's office and the military court were in

15 the same building but on different floors. The court was on an upper

16 floor and the prosecution was below. So a party would pass by the

17 prosecutor's office when going to the court. It was very easy for us to

18 send the citizen downstairs to see the prosecutor. But the court and the

19 prosecutor's office were aware of the fact that people would arrive.

20 Whether the prosecutor made a report of this or not, I don't know if that

21 was his duty, but this situation was very familiar, so we didn't make a

22 record of this.

23 Sometimes - and I think that this is something you can find in

24 the court archives - on certain occasions someone would make certain

25 records, if a particular detail was emphasised or someone's identity was

Page 9581

1 mentioned, if someone had recognised someone. Then a record of this

2 would be made in the court too, and this was usually done if the

3 information arrived in the afternoon, if there was only an on-duty judge.

4 If someone was waiting in front of the court and the judge was required

5 to come, this would be done. In the course of our working hours, this is

6 a matter we would refer to the prosecutor, et cetera.

7 Q. When you saw these citizens and referred them to the prosecutor's

8 office, the prosecutor, on the basis of the law, had the duty of making a

9 record or of telling the citizens how to file a report on the event.

10 A. The prosecutor has to see all the citizens and take into

11 consideration all reports. Organs have to deal with this.

12 Q. As you just said, if the prosecution accepts or receives a

13 report, it is their duty to act on the report and to refer to certain

14 organs to check these matters, or on the basis of these reports it is the

15 prosecutor's duty to engage in prosecution; is that correct?

16 A. Yes.

17 Q. You also said that on one occasion you went to the music school

18 under the escort of European monitors. You were in the basement while

19 they were visiting the building. You said that you didn't see anyone

20 there but that you subsequently found out that one person that they were

21 searching for had been concealed in the attic. Is that what you said?

22 A. Yes.

23 Q. Did you have any information according to which the European

24 monitors also visited the music school on other occasions and that they

25 didn't find anyone in detention there? Did you have such information?

Page 9582

1 A. I know that they had such authority. As to whether they entered

2 the building or not, I don't know. That was part of their work, and they

3 didn't inform me of it.

4 Q. Mr. Adamovic, would it be correct to say that this fact, the fact

5 that you discovered that someone had been concealed, might indicate that

6 some people in the music school were involved in fairly illegal acts

7 which they concealed from any organs that might want to investigate the

8 situation to determine what the actual situation in the music school was?

9 A. Well, that's a conclusion, and given my role, I don't know to

10 what extent I may draw conclusions. But I told you about an event that

11 happened which related to the search for someone whose last name was

12 Markovic. I remember that fact because he was a forensic expert in the

13 police force, and when we went to carry out on-site investigations, he

14 was a fairly good professional and that is why we remembered him. That's

15 what he was well known for. And that is one of the reasons for which I

16 agreed to go there with these people, because in the hope that they would

17 find something there, they wanted a judge to be present to make a record

18 of everything.

19 As to what went on in that school, to this very day it's a

20 controversial issue for me because I have heard contradictory claims,

21 claims that people were seriously abused in that school and claims that

22 it was a traditional camp in the centre of the town and then there were

23 also claims according to which nothing had happened there. I know that

24 certain people from the music school were dealt with for what had

25 happened in the music school, and I think that these were cases dealt

Page 9583

1 with in some of the courts in Zenica. As to what is true, it's very

2 difficult to say right now.

3 Q. Thank you. And my last question: If you remember, you spoke

4 about a meeting in Hotel Internacional. I'd like to know whether you

5 could specify the date and say which -- who was the president of the

6 court at the time. Was it your colleague Kovac or Colakovic who attended

7 that meeting with you?

8 A. I think it was Colakovic, but I'm not certain about the date.

9 The year was perhaps 1993. I know it was immediately after the arrival

10 of Mr. Hadzihasanovic. Various meetings were held, but I really don't

11 remember the date. I know that I participated in that, and I warned them

12 about the problems of vehicles and the school. That's why I remember

13 attending that event. Then I remember the monitors in white. I know

14 that there were two of them sitting at the table to the left.

15 Mr. Hadzihasanovic was sitting on the opposite side of the table, two or

16 three places away from me. I remember that on the basis of what I could

17 observe. But as to the date, well, I might even be wrong as far as the

18 year is concerned.

19 Q. Thank you, Mr. Adamovic. My colleague has something he would

20 like to say. Just a minute, please.

21 [Defence counsel confer]

22 MS. RESIDOVIC: [Interpretation] Those are all the questions that

23 I wanted to ask you. Thank you for answering them.

24 Mr. President, as far as the documents are concerned, the ones

25 that we would like to tender into evidence, I think it would be best to

Page 9584

1 proceed as we did last time. And if we don't have time today, we could

2 inform you on Monday of the documents that we would like to tender into

3 evidence.

4 JUDGE ANTONETTI: [Interpretation] Very well. That's how we will

5 proceed.

6 Does the other Defence team have any questions for this witness?

7 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President.

8 During the pause, the Defence team for Mr. Kubura agreed that we had no

9 questions for this witness. Thank you.

10 JUDGE ANTONETTI: [Interpretation] Ms. Benjamin, before the Judges

11 ask the witness some questions, are there any other questions you would

12 like to put to this witness?

13 MS. HENRY-BENJAMIN: Mr. President, the Prosecution has no

14 further questions at this time.

15 JUDGE ANTONETTI: [Interpretation] Very well. Well, I will first

16 start to put questions to the witness, and then the other two Judges will

17 also ask the witness some questions.

18 Questioned by the Court:

19 JUDGE ANTONETTI: [Interpretation] Judge, first of all, I would

20 like you to clarify your current position. I think you said that you

21 were a judge at the Supreme Court. Is that the court of annunciation or

22 is it the constitutional court, and when were you appointed to this

23 position?

24 A. The name of the court is the Court of Bosnia and Herzegovina.

25 JUDGE ANTONETTI: [Interpretation] And the competence this court

Page 9585

1 has, does it have ample competence?

2 A. I was just waiting for the interpreters. I am trying to speak a

3 little more slowly for the sake of the interpreters, but I could speak

4 more rapidly.

5 It has supreme competence in the area of Bosnia and Herzegovina

6 as far as interpreting legal provisions are concerned. And to an extent,

7 it has competence for first-level judgements for the most serious crimes,

8 for terrorism, drugs, organised crime, et cetera.

9 It also has an appellate section, and it has a special section

10 for organised crime, and the Chamber members are also judges from foreign

11 countries. We even have French, Portuguese, American, and German judges.

12 Similarly, there is a special section formed for dealing with cases for

13 which there are reasonable grounds that war crimes were committed. And

14 that part of the section should be taking over some of the cases from

15 this Tribunal. I am a member of that court and I've been a member of

16 that court for a year and a half, and I'm working as a judge in a certain

17 case.

18 Yesterday I said that we contested two systems, and the judge is

19 now controlling the investigation carried out by the prosecution. The

20 name of this judge is the judge for the previous case, and the judge who

21 confirms the indictment and listens to testimony and decides on

22 objections is called the judge for preliminary processes. So I dealt

23 with this for a year and a half on my own. But everything that has

24 entered into the Court of Bosnia and Herzegovina from when it started

25 operating until about 15 days ago, I dealt with these matters. I also

Page 9586

1 dealt with the preliminary procedure.

2 JUDGE ANTONETTI: [Interpretation] Very well. Could you tell me

3 when you were appointed to this position in this court.

4 A. I think when I was appointed it was January --

5 JUDGE ANTONETTI: [Interpretation] You mean --

6 A. I think it was January 2003. And as soon as I was appointed, I

7 started dealing with these matters, after the first session when the

8 judges were assigned. I must say that I have difficulty remembering

9 dates but there is a written record of all of this. I think it was in

10 January 2003.

11 JUDGE ANTONETTI: [Interpretation] Yesterday, in response to a

12 question put to you by the Defence, we found out - and this is something

13 that we didn't know - that the accused, before they were transferred to

14 The Hague, were presented to you. Within what legal context did you act?

15 A. At the time, I was the judge of the Supreme Court of the

16 Federation.

17 JUDGE ANTONETTI: [Interpretation] And the Supreme Court of the

18 Federation had the competence to take measures that involved transferring

19 accused?

20 A. Yes, that's quite right. Because in this organisation in the

21 state structure, you have the BH Federation, you have Republika Srpska.

22 These are the two components. Each entity has its own Supreme Court. I

23 was a member of the Federation Supreme Court, and the people who on the

24 basis of indictments -- international indictments from the Tribunal were

25 deprived of their freedom in the territory of the Federation were taken

Page 9587

1 to the Supreme Court so that proceedings to deliver them to the Tribunal

2 could be carried out. So at the time, I was a judge who had to deal with

3 such cases.

4 JUDGE ANTONETTI: [Interpretation] Very well. We'll go back to

5 the period of the year 1993. And we have a document in evidence, the

6 document number is 419. According to this document, the judges who were

7 members of the military court were Mr. Kovac, who was the president from

8 the 1st of September, 1992 to the 14th of June, 1993. You yourself are

9 mentioned as a judge from the 1st of September, 1992 until the 31st of

10 July, 1996. Apparently Mr. Kovac was no longer the president from the

11 14th of June, 1993. Who replaced him?

12 A. Decisions were taken by the Presidency about these matters, and

13 Mr. Muhamed Colakovic replaced him.

14 JUDGE ANTONETTI: [Interpretation] He was replaced by Mr. Muhamed

15 Colakovic, who was a judge from the 1st of January, 1993. Mr. Colakovic

16 replaced Mr. Kovac, then; is that correct?

17 A. Yes.

18 JUDGE ANTONETTI: [Interpretation] You yourself - and this is what

19 we have understood from your answers - you were the investigating judge

20 or the judge who was responsible for investigations, but you were also

21 the president of a Chamber that had to put on trial individuals who were

22 being prosecuted. Because the Defence has shown us judgements according

23 to which you were the president of the Chamber, and we saw that Mr. Kovac

24 was the predecessor. Would you confirm that?

25 A. In fact, in that court, I did everything that a judge could do,

Page 9588

1 because circumstances were such that I had a lot of experience in the

2 judicial system from before and I was familiar with all the proceedings.

3 I had already participated in all the stages of proceedings. So it was

4 very easy for me to do any sort of work.

5 JUDGE ANTONETTI: [Interpretation] And why weren't you appointed

6 as the president to replace Mr. Kovac?

7 A. Well, when we first discussed about establishing the court, a

8 document was sent to Sarajevo according to which I would be the president

9 of the court. But when we received a document -- a document was returned

10 and the decision was not such. At the time, they stated that my name was

11 the wrong kind of name for that area, given my nationality. That's what

12 my colleague said and people close to me. I assume that that was the

13 case in 1993. So there was a certain amount of suspicion, a lack of

14 trust.

15 JUDGE ANTONETTI: [Interpretation] To clarify something, you

16 mentioned your ethnic -- the ethnic group you belong to. What is your

17 ethnicity?

18 A. I am a Croat.

19 JUDGE ANTONETTI: [Interpretation] In response to numerous and

20 varied questions put to you by the Defence, you said that you were an

21 independent judge, but that's obvious if one is a judge. But the Trial

22 Chamber would like to know who was above you in reality. Which ministry

23 was above you? And you received a salary. But who paid you?

24 A. At first -- I really need to explain this. At first there was a

25 lot of ignorance in terms of the organisation. The former officers of

Page 9589

1 the JNA were used to having military courts within the military system,

2 and they advocated the situation in which the military would be totally

3 separated and have their own courts.

4 There was a meeting in Zenica attended by the late

5 President Izetbegovic that I have already mentioned, and I happened to be

6 there at the time. And in Zenica the initial conversations and

7 negotiations about the establishment of those courts started. It was a

8 very informal meeting at which it was decided that the military courts

9 should use civilian laws, that they shouldn't be part of the military

10 structures, and this all would serve to protect human rights and uphold

11 conventions; that we should not mix court-martials with regular courts,

12 that we should not allow commanders to manipulate with formal authorities

13 [as interpreted]; that we should not allow people who lacked skills and

14 education to try cases. It was wartime and the inner circle of people

15 know that.

16 President Izetbegovic said, "Okay, whatever has been said, why

17 don't you put it on paper." And I do have that paper that was sent

18 through unofficial channels to Sarajevo, all that has been said so far.

19 And later on --

20 JUDGE ANTONETTI: [Interpretation] Your superior ministry was the

21 Ministry of Defence, the Ministry of Justice, or the President of the

22 Republic of Bosnia-Herzegovina? Who signed your salary slips, that is?

23 A. At first, because of the lack of organisation, there was nothing

24 on my salary payslip because we did not receive any salaries.

25 JUDGE ANTONETTI: [Interpretation] But once you did start

Page 9590

1 receiving salaries, who signed your payslip?

2 A. It was the Ministry of Defence at first and later on the Ministry

3 of Justice, and so on and so forth. And these things changed within the

4 state structure.

5 JUDGE ANTONETTI: [Interpretation] And the Ministry of Defence was

6 paying your salary until then?

7 A. I believe that the Prosecutor mentioned that yesterday. I don't

8 know. In any case, we wanted to be part of the Ministry of Justice, that

9 irrespective of the fact that we were called military courts we wanted to

10 be a part of the civilian structure. It was wartime. Information

11 circulated very slowly, and as the state was being organised, this was

12 shifted from one ministry to another. At the end of the day it was

13 decided that anybody who could pay us should pay us, as long as they

14 could provide us for us and allow us to exist as a court.

15 JUDGE ANTONETTI: [Interpretation] The administrative personnel,

16 the Registry, the secretary of the court, were they civilians, were they

17 people delegated by the Ministry of Defence? And who was paying their

18 salaries, the administrative staff of the court?

19 A. The entire court was paid in the same way. And the personnel

20 that was employed was the personnel of the civilian courts, where there

21 was less work at the time, and they were well versed with the job.

22 In any case, one has to understand that we were established by

23 the Presidency, that our ultimate responsibility was towards the

24 Presidency, and in the carriage of justice we were responsible to the

25 appellate courts. The Presidency issued all sorts of decisions to assign

Page 9591

1 us to various ministries, depending on the available resources or the

2 current organisation of the administration of the state.

3 JUDGE ANTONETTI: [Interpretation] Can we, then, conclude that

4 since there were administrative problems, and whenever there are

5 administrative problems, lack of personnel, telephone lines were not

6 working, there was no paper, the president of the court would turn to the

7 Presidency rather than to various ministers, the Minister of Defence or

8 the Minister of Justice or what have you?

9 A. Yes. That would have been a logical thing to do. However, it

10 was impossible to directly communicate to the Presidency, so we had to

11 turn to various ministries to resolve the matter at hand. Sometimes it

12 would be the Minister of Defence, sometimes it would be the Minister of

13 Justice.

14 JUDGE ANTONETTI: [Interpretation] In your response, you said that

15 you were situated in a building where there was also a civilian court,

16 and you also told us that the prosecutor's office was in the same

17 building on a lower floor and that you were above them. The civilian

18 prosecutor's office was in the same building, on the same floor as the

19 military prosecutor's office?

20 A. The building where we were situated was the former building of

21 the so-called Court of the Associated Labour. It was a very specific

22 court which dealt with all the cases stemming from work relations and

23 employment. That court stopped functioning, and since the building

24 belonged to the state, we were located in that building. And from the

25 moment we entered the building, that is, the military institutions,

Page 9592

1 civilian institutions were no longer there. On the first floor was the

2 prosecutor's office, and on the second floor was the court and the

3 courtrooms.

4 The civilian district court was in a different building. On the

5 first floor of that building was the district court, and on the second

6 floor was the civilian prosecutor's office.

7 JUDGE ANTONETTI: [Interpretation] In your building, where you had

8 your offices on the second floor and the prosecutor's office was on the

9 first floor, in that building was there a place or a sign on which one

10 could read that these offices belonged to the prosecutor's office? And

11 was there a soldier on duty who was on guard in front of those offices?

12 A. Yes. Whatever you have just said is correct. There was a flag

13 which was put up according to law. There was an inscription. There was

14 a sign in two languages, in two scripts, saying that this was a district

15 military court. And the whole building was guarded by the military

16 police.

17 JUDGE ANTONETTI: [Interpretation] As you climbed to your floor,

18 you must have come across the prosecutor. Or when he wanted to see you,

19 he would climb to your floor? How did that -- how was that organised?

20 A. During the long winter afternoon when there was no heating, we

21 would all meet in one room which was heated to a certain extent, and

22 that's how we managed to survive. And at those moments we'd forget who

23 the prosecutor was and who the judge was. We left that for the courtroom

24 situation.

25 JUDGE ANTONETTI: [Interpretation] So when you found yourselves in

Page 9593

1 that room where you came for heating, did you discuss your job? Did you

2 exchange information and experiences and ideas? Did you talk about the

3 problems? Is that true?

4 A. Yes, that was always the case and there was always an opportunity

5 to discuss all that.

6 JUDGE ANTONETTI: [Interpretation] I'm going to come back to that

7 when I come back to the issue of the dead bodies.

8 I have another topic that I would like to discuss with you, and

9 that is the duration of detention. You have already replied to similar

10 questions, but can you be more precise and tell us what was the law on a

11 civilian person who was detained or kept in custody. What was the status

12 of such a person? Was the military in a position to guard a civilian who

13 was in custody and for how long before the judiciary, either the civilian

14 or the military, were informed about that? So what would be the answer

15 to this very precise question?

16 I would like to know: A civilian who was arrested, for how long

17 the police could keep that person in custody.

18 A. We are talking hours here. 24 hours, 48 hours, or 72 hours. Not

19 more than three days, in any case. I'm talking about the prosecutor, the

20 police, and the judge altogether could keep that person for no longer

21 than three days.

22 JUDGE ANTONETTI: [Interpretation] A civilian, according what you

23 have told us, who was arrested could be kept for a maximum of 1993 days,

24 and then he had to be turned over to the judge, who was a civilian judge

25 or military judge? Are you saying yes?

Page 9594

1 A. Yes. Yes.

2 JUDGE ANTONETTI: [Interpretation] And if a person after three

3 days was not turned to the judge, what was the situation, the legal

4 situation of that person who was not turned to a judge?

5 A. If that person was in custody, then his status was illegal.

6 JUDGE ANTONETTI: [Interpretation] A civilian judge or a military

7 judge, with regard to the personal or public freedom, did he have a role

8 to play? And if a judge would learn that a person was illegally kept in

9 custody, what would a judge do in 1993?

10 A. A judge could not do anything. It was the prosecutor who could

11 have instigated proceedings against that person who kept somebody in

12 custody illegally, save for one situation: If the persons were detained

13 or kept in custody, the president of the court or the investigating judge

14 could make rounds of the detention unit in order to control the

15 conditions of the detention. And if they came across a person who was

16 illegally detained, then they could issue an order for this person to be

17 immediately released, and this was the only case when this was possible.

18 JUDGE ANTONETTI: [Interpretation] As far as the person -- place

19 which was considered an official detention unit in Zenica, was there an

20 official prison in Zenica?

21 A. Yes, there was a civilian detention unit and one part of that

22 civilian detention unit was used by the military court for the detention

23 of the military.

24 JUDGE ANTONETTI: [Interpretation] In lieu of the civilian police

25 that belonged to the MUP, was there a place where the military police

Page 9595

1 could detain persons for up to three days?

2 A. Yes.

3 JUDGE ANTONETTI: [Interpretation] To your knowledge, the military

4 police, which was attached to the 3rd Corps, could they be controlled by

5 the military prosecutor with regard to the detention of prisoners before

6 the judge could intervene?

7 A. The prosecutor and the judge knew that this place was official

8 detention unit, just like you can tell me now that this is the official

9 courtroom of the Tribunal. And if I come to you convinced of that fact,

10 I will go away from here in the belief that you only had one official

11 courtroom. But you, on the other hand, may be using other rooms that you

12 never showed to me. The prosecutor and the judge went by what was said

13 to them, that those were officially the detention units.

14 JUDGE ANTONETTI: [Interpretation] The building where you worked,

15 well, how far was it from the music school? What was the distance

16 between the two buildings?

17 A. I said yesterday 150 to 300 metres. One building could be seen

18 from the other. There is just one square, the central city square,

19 between these two buildings.

20 JUDGE ANTONETTI: [Interpretation] Very well, then. As you were

21 walking to your workplace, did you have to pass by the music school or in

22 front of it?

23 A. Yes.

24 JUDGE ANTONETTI: [Interpretation] Was the music school guarded by

25 anybody, or could anybody walk into it easily?

Page 9596

1 A. There were always guards in front of the music school, and the

2 citizens did not like that school, and even if somebody had shown

3 inclination to enter it, they would not want to enter it because of all

4 the rumours and stories.

5 JUDGE ANTONETTI: [Interpretation] You said that there were

6 rumours about the music school. What rumours were those and stories?

7 A. I've already told you that the whole city was rife with rumours

8 about the music school, the music school being a detention camp.

9 JUDGE ANTONETTI: [Interpretation] You are saying that there were

10 rumours about the music school being a detention unit. When you were

11 drinking coffee with the prosecutor, did you talk about that issue?

12 A. On several occasions -- and it was not always the same person,

13 because the chief prosecutor was not always the same -- on several

14 occasions the judges would ask the prosecutor whether they had ever dealt

15 with the issue of this music school, and the answer would be that

16 something was being done or something had been done, but I know that

17 there were cases pending before the court at the time.

18 JUDGE ANTONETTI: [Interpretation] They would say, "We're working

19 on it," but they didn't do anything, as a matter of fact; is that true?

20 A. Whether anything was done or not, I don't know. But the answer

21 was always, "Something is being done. We're working on it."

22 JUDGE ANTONETTI: [Interpretation] Did you ever receive

23 information from the families of the alleged detainee that their

24 relatives were detained in the music school when you were acting as a

25 judge? Did you ever receive such information?

Page 9597

1 A. Both in my private capacity as well as in my professional

2 capacity I received this information, and now I'm saying "in my private

3 capacity"; why am I saying that? I didn't want to answer that, but you

4 asked me, and it was my ethnic background that put me in that position.

5 Very few people of other ethnic backgrounds were in high positions, when

6 we are talking about this segment of life. So Croats would come to me.

7 They would either come to the president of the local political party or

8 to the local priest or to myself, and they would come to us because of

9 our ethnic background. I have to say that publicly: because they

10 believed they could easily convey information to us and that they would

11 receive some sort of answer.

12 I remember having asked an elderly gentleman why he didn't go to

13 the police, and he told me, "Well, they will never believe me, because

14 I'm not a Bosniak." Obviously, again we are talking rumours and stories.

15 What the truth of the matter was, I wouldn't be able to tell you.

16 However, the truth of the matter is that people did come to me. And when

17 that happened in the court or even outside, when they would come across

18 me somewhere on the street -- the prosecutor heard all this information,

19 and not only the prosecutor. You see, from the way I worked, I alerted

20 everybody. I could alert the army and the civilian prosecutor and

21 everybody else. And the local priest did the same. The head of the

22 local Croatian party also did the same, because those were the people

23 that the Croats addressed most about those things. This was another

24 result of the war.

25 JUDGE ANTONETTI: [Interpretation] Mr. Kovac, the tribunal's

Page 9598

1 president, the court's president, or the person who replaced him, usually

2 when one is the president of a court one encounters the civilian

3 authorities, the political authorities and the military authorities. Did

4 the president of the court meet the 3rd Corps commander? As far as you

5 know, did such a meeting ever take place?

6 A. I have to make a distinction between these two persons. I didn't

7 have any successful cooperation with President Kovac and I said so openly

8 on a number of occasions, because he wasn't a criminal judge. That

9 wasn't his vocation. He wasn't familiar with the basics of such work.

10 And I believe that he led the court in an erroneous manner, gave it too

11 much official authority, because he didn't have any knowledge of the

12 proceedings.

13 Mr. Colakovic is a different kettle of fish. He's a

14 professional criminal judge, and as opposed to President Kovac, he didn't

15 take any decisions on his own without us knowing where the president was

16 going, who he had contact with, et cetera, et cetera, because this other

17 person did everything on his own, on an independent basis, and we knew

18 nothing about this. President Colakovic was a gentleman, so to speak.

19 He assembled the judges. We discussed what we should do, and he

20 implemented these things. He was, so to speak, in the real sense of the

21 term, primus inter pares, first among equals, and he knew that we had

22 contact with the civilian and military organs, and once these organs

23 decided to organise various kinds of meet, he would have contact with

24 them, and on other occasions he would have contact with them when he

25 wanted to discuss a court problem and wanted to resolve the problem. And

Page 9599

1 this can be seen from the written documents. And there are far more such

2 documents from the period when Mr. Colakovic was in charge of the court.

3 At the time, I was his deputy.

4 JUDGE ANTONETTI: [Interpretation] But did he meet the 3rd Corps

5 commander? Did he see him, and was he able to inform him of the concerns

6 that you and your colleagues had?

7 A. Yes. There were such occasions when court presidents would meet

8 corps commanders.

9 JUDGE ANTONETTI: [Interpretation] But you don't know what was

10 said.

11 A. When I was there as the deputy of the president, well, then I

12 know what was said. But as for the more frequent meetings that I didn't

13 attend, I don't know what was said. But President Colakovic would inform

14 all the judges. He would tell them that something would be dealt with

15 for the court, that we'd receive documents, humanitarian parcels, et

16 cetera, et cetera.

17 JUDGE ANTONETTI: [Interpretation] As the court was a military

18 one, were there any lawyers there to defend the accused? And how many

19 lawyers were there in the local bar?

20 A. At the time, not many. I don't think there were more than 50

21 active lawyers at the time. But whenever the law stated that the accused

22 or a suspect should have Defence counsel, we contacted counsel. From the

23 judgements you saw, you can see how seriously this was approached,

24 because it's fair to say that not a single judgement from 1993 is

25 different from judgements from 1989 or 1999. The approach was completely

Page 9600

1 professional. Naturally, there were experienced judges, capable judges.

2 If you find any errors, then these were errors committed by young judges,

3 judges who didn't have much experience and given the war they happened to

4 be there. The senior judges worked very professionally.

5 JUDGE ANTONETTI: [Interpretation] You said that you belonged to

6 an ethnic group of Croats. Were there lawyers who also belonged to the

7 Croat ethnic group?

8 A. Yes. There were lawyers of all nationalities.

9 JUDGE ANTONETTI: [Interpretation] As far as you know, the

10 families of those who were detained must have had access to lawyers. I

11 assume that was the case.

12 A. Yes.

13 JUDGE ANTONETTI: [Interpretation] As far as you know, did these

14 lawyers try to take the people responsible in the military to task?

15 A. Yes. There were such activities. I know this from the records.

16 If we're talking about lawyers and nationalities, this all comes down to

17 the personality of the person concerned. A normal person would do his

18 job. But if the person wasn't a normal person - not crazy but just not

19 normal - then he would emphasise a person part of his life, because that

20 was what was important at the time. In my opinion, the most successful

21 lawyer when defending someone of another nationality was perhaps a lawyer

22 who was a Bosniak, a professional who did his job and wasn't interested

23 in the nationality of a given person. He just did what he had to do; he

24 did his job.

25 Nationality was a subject that was manipulated very often in the

Page 9601

1 course of the war. People were protected for these reasons, were

2 promoted for these reasons. There was suspicion for these reasons. And

3 this wasn't dangerous when it concerned people who didn't have any

4 official authority. But when people in authority acted this way, then

5 it's completely senseless.

6 The fact that President Colakovic was a good man is that he

7 appointed me as the deputy president in the court. He didn't have to do

8 that.

9 JUDGE ANTONETTI: [Interpretation] Very well. We will now deal

10 with a far more legal issue, which concerns the prosecutor referring a

11 case to the judges.

12 The Defence tried to get some explanations about this from you,

13 and I must say that I'm not quite clear about this matter yet. I would

14 like to know -- you'll see my question is very precise: When the

15 Prosecution files a motion for a judge to deal with a violation -- we've

16 been shown a number of documents and we can see that the prosecutor makes

17 a request and it's his obligation to provide a legal description of the

18 act that could be considered to be a violation. Once this document has

19 been drafted, we understand that an investigating judge is designated

20 and he carries out his work and then the trial starts. So my question is

21 as follows: At the last stage, at the trial stage, do the judges have

22 the power to change the description of the act concerned?

23 Let's take an example. Let's take an act described as a simple

24 theft by the prosecutor and the judge believes that in fact it's more

25 than just a theft; it might be described as a crime or even as a war

Page 9602

1 crime. In such a case, is it possible for the judge to provide an exact

2 legal description of the act if the judge sees the affair in rem? What

3 could you tell me about this? The Defence tried to obtain a response. I

4 don't think they did.

5 I would like to know whether you, who were involved in judging

6 cases, had the possibility of saying that the events that were described

7 in a certain manner were in fact events or acts that should be described

8 in a different manner. Were you in a position, did you have the

9 possibility of changing the legal description of the act concerned?

10 As you can see, the question is very precise, and the answer

11 should be either yes or no.

12 A. In answer, well, there is not a single lawyer who could answer

13 just yes or no without this being ambiguous. The answer is yes, but

14 that's not quite correct. Why? Because the judges had the right to

15 change the legal qualification of an act, because the traditional

16 accusatory principle would be applied. A trial would be initiated as the

17 request of the prosecutor. The judge wasn't bound or isn't bound by the

18 legal qualification. If the legal qualification is murder, this is

19 something the judges are informed of. The judge is bound by the factual

20 description, by the objective description that has to do with person

21 against whom an indictment has been issued. So we're talking about the

22 subject of an objective element with regard to the description of the

23 event and the factual description of the event mentioned in the

24 indictments.

25 We could say, "No, this is a crime but it is not the crime of

Page 9603

1 murder. It is the crime of serious bodily harm, inflicting serious

2 bodily harm which resulted in death." So the perpetrator didn't intend

3 to kill the person but intended to inflict serious bodily harm; but the

4 result of the act was death. And then on the basis of the seriousness of

5 the act - and this was determined on the basis of the sentence - it was

6 possible for the judges that if the prosecution qualified an act as

7 murder and the judges thought it was something different, we could say

8 that it wasn't murder, it was something else. But the judges could not,

9 as a result of the fact that they were bound by the factual description,

10 say that a murder was a war crime or they couldn't say that a slight or

11 serious crime was murder. This is something that we would return to the

12 prosecution and we would request that the prosecution make a correct or

13 appropriate request. We couldn't try people for war crimes until people

14 had been accused of such crimes. So these are crimes that couldn't be

15 changed into war crimes.

16 JUDGE ANTONETTI: [Interpretation] I am going to be more precise.

17 Let's imagine that someone is prosecuted a soldier who allegedly

18 committed the crime of a theft in a house in village X. When you have a

19 look at the documents - and I'll quote on the basis of my memory - if he

20 was pursued according to Rule 150, you would condemn him pursuant to

21 Article 150, and it was with interest that I noted that there were some

22 decisions in which such conduct was punished by two to four months in

23 prison. I won't comment on this, but let's imagine that you interpret

24 Article 142 and you say that this is a theft which could come under

25 Article 142. My question is quite simple: At such a stage, in such a

Page 9604

1 situation, can the judge say that it is Article 142 that is applicable

2 and not Article 150, and thus provide a different qualification of the

3 facts in technical terms? So this is a question of a purely technical

4 nature.

5 A. We're talking about the amendment of the charges that the court

6 may do. The court must respect the charges. They can't change the

7 charges so that it significantly affects the contents of the charges as

8 specified by the prosecutor. In the documents that we had, the ones that

9 you mentioned, reference would be made to a theft at the time of a war or

10 of an aggravated theft from Croatian or Serbian houses, and then they

11 would keep repeating, theft from Serbian house, Croatian houses, Serbian

12 houses. When you go over to the other side, then they would keep

13 repeating, "theft from a Bosniak house," et cetera. I remember

14 conversations in which we asked, "Why don't you accuse them for something

15 else? These aren't thefts. The army thought they could take anything

16 they wanted as war booty." But this wasn't the opinion that was

17 prevalent. The opinion was that they should prosecute individuals and

18 prove what could be proven.

19 Such indictments were the indictments that would arrive at the

20 court. The court was bound by what the prosecution had said and they

21 could only make changes that went -- that made crimes less serious. But

22 the court couldn't do anything. On the basis of the records, we could

23 see many things but the only possibility was to refer matters back to the

24 prosecution or to judge on the basis of a given indictment. The only

25 possibility we had was to change serious charges into less serious

Page 9605

1 charges but not to do the reverse.

2 JUDGE ANTONETTI: [Interpretation] Yesterday I asked you a

3 question. I asked you about court-martials; I asked you whether such

4 establishments had been established in Zenica. You said no, not as far

5 as you knew. You said you weren't aware of this. Did you know that the

6 Minister of Defence addressed to all the commanders of corps an order

7 requesting that they establish such court-martials? Were you aware of

8 this? And requesting that they be established immediately.

9 A. No.

10 JUDGE ANTONETTI: [Interpretation] You weren't aware of this. You

11 never knew anything about this?

12 A. No. It's possible that I may have heard something like that, but

13 I always had my own opinion of this. Court-martials ad hoc courts [as

14 interpreted], and it would have been logical for me, for the Minister of

15 Defence to say that the corps commander should make preparations so that

16 ad hoc courts could be established immediately. Perhaps they could make

17 documents saying if such-and-such a situation arises, then we will have

18 such-and-such an ad hoc court. But such courts are formed when certain

19 situations arrive, and there must be exceptional circumstances. If this

20 was ordered by the minister, then it is my belief that they could have

21 only drafted a document to prepare for some such thing, and that would be

22 reasonable. In the field, when the situation is very urgent, you should

23 be able to have a document stating that it's necessary to form an ad hoc

24 court. We know the names of the officers. We know who is responsible.

25 And then you would just be able to establish such a court. Not actually

Page 9606

1 form a court; it wouldn't be necessary to issue a decision, an order, et

2 cetera, et cetera. This would have been prepared in advance. If this is

3 what the minister was thinking about, this is quite logical, reasonable,

4 and acceptable. But if the ministers thought that they should just

5 create courts out of nothing, then that is not very understandable.

6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could the

7 witness a document which isn't contested 287. But could you show me the

8 document first.

9 [Trial Chamber and registrar confer]

10 JUDGE ANTONETTI: [Interpretation] P287. Can you please show --

11 no, that is not it. 287, I said, and this is 286. And can you please

12 show me the document in B/C/S.

13 Can you please show the document to the witness.

14 Witness, I want to show you a document, and can you please put

15 the English version on the ELMO. This is a document which was signed by

16 Mr. Alagic, and the reference is made to the decree that we have

17 mentioned. And it says here that "The special military courts shall be

18 operating within the 312th Motorised Brigade and the 17th Krajina

19 Mountain Brigade." What can you tell us about this document? As you

20 read this document, what can you tell us about it?

21 A. This is actually a regular. It serves as a preparatory document

22 for extraordinary and exceptional situations. The order reads: "A

23 special military court should be established in the following brigades."

24 I believe that the order was issued by the corps commander. And the very

25 important thing is that it emphasises the ad hoc and prosecutorial nature

Page 9607

1 of these courts. It says here that "The special military courts shall

2 operate in accordance with the legally effective decree on special

3 military courts. The commanders of the brigades shall be in charge of

4 implementing this order."

5 General Alagic, in my view, was providing for a good organisation

6 of his units by ordering brigade commanders to prepare all the necessary

7 papers that would be used in case a court-martial should start

8 functioning ad hoc. You have to know who the commander of the brigade

9 is. You have to know who will be the officers of the courts. And when

10 the situation arises, you needn't do anything else but pull out the

11 papers and base your decision on those papers. I believe this is good,

12 although things can be done even without that.

13 JUDGE ANTONETTI: [Interpretation] I'm going to address another

14 issue, because I would like to give the Defence and the other Judges time

15 for questions. We have now -- we have seen a document where you are

16 quoted as a member of the commission. You were accompanied by the

17 military police officers. Can you please tell me: What places did you

18 visit with the military police as a judge? I would like you to clarify

19 the situation for me. In answering a question put to you by the Defence,

20 you already clarified some things, but I would like to be absolutely sure

21 that I understand.

22 The military police was made aware of a crime a had been

23 committed. Did they telephone you, a judge, to tell you, "We are going

24 to visit the site. Can you come with us"? Is this what happened in that

25 case?

Page 9608

1 A. An on-site investigation in order to secure evidence implied that

2 a judge had to be present. It was the military police that informed the

3 judge to accompany them to the site where he would be able to secure

4 evidence. The police did their job; we, on the other hand, did our job.

5 If something happened and the police had to call the judge - for

6 example, at the detention that they were manning on our behalfs [as

7 interpreted] or something that stemmed from the rights of the detainees,

8 or an on-site inspection - then the police would call the judges. There

9 were also the other situations: When we needed the police to secure a

10 site or to bring somebody in, then the judges would issue orders to the

11 military police, and that was the correlation that we had -- the

12 coordination that we had.

13 I apologise. I apologise. The police was a service.

14 JUDGE ANTONETTI: [Interpretation] In view of the relationship

15 that you have just described, this relationship was between the military

16 police and the prosecutor and then the prosecutor would inform or would

17 estimate that there were elements for bringing a person before the court

18 or would they ask the judge to conduct an investigation? Is that what

19 happened?

20 A. Once a judge went to the site, it was the judge's task to record

21 everything and to secure evidence in order to provide for the future

22 admissibility of evidence. All that was collected on the ground, a judge

23 would give to the prosecutor, who would then decide whether he would

24 proceed with the case. A prosecutor would take over everything, and the

25 judge would go back to the court.

Page 9609

1 JUDGE ANTONETTI: [Interpretation] So it was the prosecutor who

2 would decide whether to proceed.

3 I'm addressing the issue of Susanj, and the Defence has presented

4 you with a number of documents. I would like to be clear on what

5 happened there. We have seen a number of documents produced by the

6 Defence, and those documents show that you were a member of the

7 commission that was sent, and your name is there. Can you confirm that

8 you were indeed a member of the commission that was sent to investigate

9 the facts concerning the persons who had been killed or murdered or who

10 had died?

11 A. I had a double or dual role there. One role was as judge who was

12 prevented from going to the site of the crime; and my other role was as a

13 member of that commission. The commission was --

14 JUDGE ANTONETTI: [Interpretation] Very well, then. I have to

15 interrupt you because we are pressed for time. What was the legal nature

16 of that commission? What was the legal foundation for the establishment

17 of this commission that was in charge of investigating this crime? What

18 was the legal foundation for this commission?

19 A. This commission was not in charge of the investigation.

20 General Siber, who was the superior officer to the generals and corps

21 commanders from the area, received information that the judge had been

22 prevented from going there. And then he issued an order for a commission

23 to be established consisting of civilians and soldiers in order to

24 clarify what had happened and what would be done next.

25 As a member of this commission, I stated that I had been

Page 9610

1 prevented from going to the site. I submitted a paper. I requested for

2 the information to be submitted to the superior bodies. So this

3 commission was put in place in order to find out for General Siber who

4 had made a mistake, because the judge had informed him that he was

5 prevented from doing his job properly. And this commission never carried

6 out any further investigation.

7 Now, what the army and the prosecution did after that, I don't

8 know. My duties stopped with the document that I drafted. I only

9 knew -- I only understood that General Siber was concerned with

10 everything being properly documented.

11 JUDGE ANTONETTI: [Interpretation] In your capacity as a judge who

12 acted in this matter, and to the extent the prosecutor was informed, it

13 was up to him to proceed with the case, and your role was -- at one point

14 was stopped.

15 A. It was the obligation of the army and the prosecutor to

16 investigate who was it, who had prevented the judge from performing his

17 duty, and it was up to the prosecutor to investigate whether a crime had

18 indeed been committed on that site. And the judge's duties stopped,

19 there and then, according to the law. It was all in accordance with the

20 law.

21 Please don't be confused by the activity of General Siber.

22 JUDGE ANTONETTI: [Interpretation] I note here that when you were

23 compiling your report, you indicated who -- you indicated a reference

24 which was 162/93. And I also note that the prosecutor in his documents

25 did not take over this number, 162/93, but he used different numbers,

Page 9611

1 which was 63 or 93 or 94. The number KRI, is it for the prosecutor and

2 does it respond to the same case, or is there a different numeration used

3 by the judges and by the prosecutor?

4 A. The judges used the annotation "KRI" for special actions, and the

5 prosecutor had a different way of marking his documents and their

6 numbers also incorporate letters KT or KTR, so the numbers did not have

7 to correspond.

8 JUDGE ANTONETTI: [Interpretation] My question was: Before you

9 had informed the prosecutor, was he already informed of what had

10 happened? Was he abreast of the situation in your view?

11 A. He could have been abreast of the situation, but it would have

12 been a customary procedure for the judge to inform him through an

13 official record, which meant that the prosecutor needed to do something.

14 JUDGE ANTONETTI: [Interpretation] But you have also told us that

15 among the victims, there was a relative of your former colleague, a

16 judge.

17 A. Yes. He himself could have gone to the prosecutor and reported

18 the incident as a citizen, even before the judge was sent to the site.

19 JUDGE ANTONETTI: [Interpretation] You told the prosecutor that

20 there was this relationship, a family relationship that you were aware

21 of.

22 A. The prosecutor, like myself, knew Mr. Bozo Markovic, a former

23 judge of the municipal court in Zenica, from before the war. After that

24 he was a defence lawyer, and after that he moved to Croatia and now is a

25 notary public. This man is a member of our profession. The prosecutor

Page 9612

1 knew it; the judges knew that; the defence lawyers knew who he was

2 because he was a well-known name in the town. Like everybody knows Judge

3 Adamovic, everybody knew this particular person whose relative was

4 involved in the case. For example, Mrs. Residovic is not an unknown name

5 in Bosnia and Herzegovina. Everybody is familiar with the name of

6 Maitre Residovic in Bosnia and Herzegovina.

7 JUDGE ANTONETTI: [Microphone not activated]

8 THE INTERPRETER: Microphone for the Presiding Judge, please.

9 Microphone for the Presiding Judge.

10 --- Recess taken at 12.28 p.m.

11 --- On resuming at 12.57 p.m.

12 JUDGE ANTONETTI: [Interpretation] We resume, and the Judges need

13 another 15 minutes or so. I hope that the Defence is not going to take

14 too much time for their additional questions.

15 Now I give the floor to Judge Swart.

16 JUDGE SWART: Witness, before you came here, I had a lot of

17 questions on criminal procedure in Bosnia and Herzegovina at the time you

18 were an investigating judge, notably on public prosecutors, on

19 investigating judges, their relationships, et cetera. But now, after two

20 days, most of these questions have been answered. And also, we got a

21 copy of the Code of Criminal Procedure from the Defence. So I'm very

22 grateful for your having dispelled so many questions, answered so many

23 questions.

24 I still have some questions, and I also want to check with you

25 whether I have understood you properly, because I know that nothing is

Page 9613

1 more easy than to make mistakes in the law of other legal systems than

2 your own.

3 My first question is, in 1993 you were an investigating judge in

4 Zenica. Were you in that capacity for the whole period of 1993 or was it

5 part of the period?

6 A. Throughout that entire year, from the moment the court was

7 established to the moment this court stopped existing, I was a judge of

8 that court.

9 JUDGE SWART: And did you remain a investigating judge in the

10 beginning of 1994?

11 A. As a matter of fact, I was in charge of all the duties. If an

12 investigation was a priority at the moment, then it was my legal

13 obligation to do it. And while I was doing that, I was not assigned to

14 the court duty. However, most often I was in the courtroom acting as the

15 president of a chamber and it was very rarely that I adjudicated cases as

16 an individual judge.

17 JUDGE SWART: Thank you. Were you the only investigating judge

18 at that period, or were there more persons?

19 A. According to our internal organisation, every year duties were

20 assigned as to who would be an investigating judge, who would be the

21 president of a chamber, who would deal with appeals. And that's how

22 things were done normally.

23 Having said that, in wartimes, in exceptional circumstances, we

24 did what we could and what we lay our hands on, and my main duty was not

25 to be an investigating judge. I was in the courtroom.

Page 9614

1 JUDGE SWART: If I may interrupt you for a moment. My question

2 was simply: Were you the only investigating judge in that period or were

3 there other persons who did the same thing?

4 A. There could have been more than one investigating judge.

5 JUDGE SWART: Thank you. In a document that was submitted to you

6 this morning by the Defence, a note written by you on the 12th of June,

7 you name yourself a duty judge. Is that something different from an

8 investigating judge, or is this the same kind of thing? The same kind of

9 person, I should say.

10 A. It is an investigating judge which is on duty out of the regular

11 courtroom hours.

12 JUDGE SWART: So basically it is a investigating judge. I wanted

13 to make that sure. Yes.

14 A. Yes.

15 JUDGE SWART: Now, you talked about Article 156 of the Code of

16 Criminal Procedure that was in force at the time, and this enables you as

17 an investigating judge to take immediate action in urgent situations

18 without a request from the prosecutor and without you having decided on

19 that request. I take it that normally you would use your powers based on

20 that that article pursuant to a request of the local police; is that

21 correct?

22 A. I would like to have the text of the law before me in order to

23 avoid confusion. I can see here it, so can I have somebody's assistance

24 with handing it to me.

25 Thank you very much.

Page 9615

1 All the urgent actions can be done by any judge who works in the

2 area, regardless of their territorial competencies, if there is a risk in

3 delay. The police themselves would say that. For example, you go to the

4 site and you can see an iceberg melting and you want to preserve it in

5 evidence. You want to take a photo of that iceberg while it is still

6 there or you want to move it to a cooler place. This is the urgency that

7 I'm talking about.

8 JUDGE SWART: I understand that perfectly, Witness, that this is

9 the urgency. But I take it that normally the police would phone you and

10 say, "There is an urgent situation and please come to take measures."

11 A. The judge was either at the court or at home. He could only

12 receive information from those whose duty it was to provide information,

13 and the police had such a duty. You know, it's quite possible that

14 something happened in the street nearby but if the judge didn't receive

15 such information from the police, he was not in a position to take any

16 measures of any kind.

17 JUDGE SWART: That is the point of my question. You exclude

18 civilians, and that is what I wanted to know. Yeah.

19 Well, I have a number of questions, and I will shorten them a

20 little bit, on procedures with regard to the death of persons. If a

21 person dies, in all legal systems in the world this has to be officially

22 recorded. And finally, this goes to the civilian authorities, which take

23 a number of measures as the consequence of a death of a person. Now, my

24 questions relate to who is informing the civilian authorities.

25 Let me give an example: A doctor in my own country may draft up

Page 9616

1 a death certificate and send it to the civilian authorities stating the

2 name of the person, the time, the cause of the death, all that. And that

3 would be an official procedure. What would be the case in

4 Bosnia-Herzegovina? What authorities would write these certificates and

5 send them to the civilian authorities? Make it short, please, because of

6 the time.

7 A. No one can be buried before the person is officially declared to

8 be dead. When someone is brought to a hospital, the doctors write out a

9 certificate. The doctors have to establish that death occurred, and at

10 the same time they fill in a form that shows that perhaps the death was

11 the result of violent action. In such cases, they must inform the

12 police, and the police must take steps to discover whether that is in

13 fact the case or not.

14 In our country, whenever information is received about a body

15 that has been found, the police is immediately called. That is how one

16 proceeds usually. Then the police makes a record, they discuss the

17 matter with the doctor, and this is how one proceeds.

18 JUDGE SWART: So this does not automatically involve an

19 investigating judge or other judge? It depends.

20 A. No. If the doctor says that there are no visible wounds,

21 et cetera, et cetera, well, these are the sort of questions that an

22 investigating judge would also ask, so it's not necessary. But the

23 police is not quite sure about the doctor's opinion or if they themselves

24 observed certain traces, in such cases they might say that the

25 investigating judge should participate in the matter, and the prosecutor

Page 9617

1 on the basis of the record drafted by the investigating judge can take

2 further steps.

3 It might also be possible for the prosecutor to be directly

4 contacted, and he would then turn to the court if traces had been found.

5 JUDGE SWART: I understand that a doctor would distinguish

6 between normal causes of death and abnormal causes of death, and if the

7 abnormal cause seems to have a criminal background, he would send it to

8 the police or to prosecutors or so.

9 What I want to know also in this regard is what was the situation

10 with regard to people who died on the battlefield, because you have no

11 ordinary situation there. Who would ensure that these deaths were

12 properly registered, taken care of?

13 A. Doctors who dealt with the case history would deal with this, but

14 in the field only the army - through the military police, the security

15 unit, the medical unit - only they could deal with this and draw certain

16 conclusions and then compile reports and forward the reports. One

17 couldn't expect prosecutors and judges to be in the field when there was

18 ongoing combat. But I'm glad that you saw the records that we made very

19 near the front lines because some commanders in that area, in the area of

20 combat, would calm the situation down so that we could record the cases

21 of death so that families could know that someone died, et cetera,

22 et cetera. This depended on the commanders there. On the whole, we

23 expected to receive information from the army, and it was the army's duty

24 to provide us with such information.

25 JUDGE SWART: Thank you. Now, in some cases, as we have seen,

Page 9618

1 the dead are not known, so to speak; they have an unknown identity, and

2 then you have a procedure for identifying the dead persons.

3 An example is given by your report on the 12th of June that you

4 have seen this morning, that you had on your table. It starts with an

5 identification of some dead people, and in the presence of witnesses who

6 say who these persons are.

7 Procedures for identifying dead persons do not necessarily imply,

8 I suppose, the presence of an investigating judge; or am I mistaken?

9 A. If it is related to the procedure, then yes. If it isn't related

10 to the criminal proceedings, then no. I think that is the case

11 everywhere. But the judge must guarantee the identity of the person --

12 or rather, he will keep a record that a person he has identified has

13 such-and-such characteristics and will confirm that this is the person

14 confirmed. I think on the record it said that a close family member, a

15 relative, was present; that means that the person can be identified, and

16 in such a stage identifying the body just provides the probability that

17 this is in fact the case, this is the identity of the person. And then

18 we continue to deal with this if a trial is initiated. All this is on

19 the basis of reasonable grounds for suspicion.

20 JUDGE SWART: That already answers many of my questions. I come

21 now to your report of the 12th of June on a number of dead people who

22 have been found in areas of combat operations in the Susanj sector. You

23 remember the report, I suppose?

24 Now, what strikes me is that you go to the hospital in Zenica for

25 the purpose of identification. You identify a number of bodies with the

Page 9619

1 help of family. And the next step in your report is to establish the

2 cause of death of those persons. And it appears that, to summarise what

3 you write, most people have died because of shot wounds. And then at the

4 end, on the last page of your report, you say that it is necessary to

5 take new measures; there must be an investigation in the field.

6 If you want to have this report, it might be given to you. It's

7 DH259, if you'd like to look at it.

8 A. I think it's in this binder here.

9 Under 3 or 2?

10 JUDGE SWART: It is in your binder, but I don't quite know the

11 number.

12 A. Yes, I've found it -- no.

13 I've found it.

14 JUDGE SWART: So you will see the first pages are concerned with

15 identification. Then you also make a description of the same persons.

16 You establish the cause of death. And then at the last page there are

17 some remarks on what has to be done now. You say, among other things:

18 "An investigation on the spot must be carried out."

19 Later on you say: "An investigating judge should be enabled to

20 go to the area as soon as possible."

21 When you wrote those sentences on the last page, I take it this

22 was a matter of criminal procedure for you, criminal investigation.

23 A. I apologise. I didn't hear the last question because there was a

24 mistake.

25 JUDGE SWART: When you wrote on the last pages of your report, of

Page 9620

1 your official note that an investigation on the spot should be carried

2 out and that an investigating judge should go to the area as soon as

3 possible, then I take it you saw the whole matter as a criminal

4 investigation.

5 A. Yes. I thought that these were the essential actions that should

6 be taken, essential steps that should be taken, and that it shouldn't be

7 delayed, because the bodies that were brought to me, according to what

8 the doctors had said, had been left there and the army left. No one

9 provided information of any kind about anything.

10 And I don't want to burden you with this, but we then searched

11 for information. We tried to find out who had brought them there, from

12 which area, and then we drew certain conclusions as to the area from

13 which they had been brought to us from. Then Mr. Markovic came and said,

14 "It's my relative." He said who the person was. And then when I saw

15 that there were open traces of gunshot wounds, I wanted to check to see

16 whether this really happened in that military zone or whether it had to

17 do with something else. I went to Susanj, and the army prevented me from

18 passing through. I returned, compiled this note, and said, "As soon as

19 possible the judge should be enabled to go to the site. There are a lot

20 of bodies. Don't touch anything. We have to ensure that the procedure

21 is followed because I suspect that a crime has been committed." And that

22 is what has been noted here.

23 JUDGE SWART: I understand you here. But this is not very

24 obvious from the report itself. I thought when I read the report, I said

25 to myself, this could be persons killed during a combat action. There's

Page 9621

1 nothing to indicate in your report itself that there was a different time

2 or place indicating that these were not persons killed during a combat.

3 So you had some extra information, I take it, that is not necessarily

4 included in your report for thinking this was a criminal matter.

5 A. [No audible response]

6 JUDGE SWART: You seemed to nod to me, but could you speak out

7 what you answer it is, in fact, for the record.

8 A. Well, I think this is contained in the record. There were shots

9 that left traces of gunpowder on the bodies, and this indicates that they

10 were shot at from close range. The first thing that the judge would

11 think about -- the first question a judge would ask is which soldier

12 would shoot as civilians from close range? So then we have reasonable

13 grounds to suspect that a crime has been committed. And as this was the

14 case for a number of individuals, I wanted to check whether this really

15 occurred in a zone of combat action. Then I was told that there was

16 still fighting there, and I said it didn't matter. We have often gone in

17 the field when the fighting was ongoing. I said I wanted to see this for

18 myself. And then my escort and the troops quarrelled and wanted to shoot

19 at each other, and then I returned, drafted this report, this note, and

20 raised the issue. I informed the prosecutor, the military commander, et

21 cetera. That's my duty. And then General Siber reacted -- not at that

22 exact point in time, but a day or two or three later, General Siber

23 asked, "What happened? We've got to form an investigation, ask what's

24 happened, et cetera. It must be possible for the judges to perform their

25 duties."

Page 9622

1 JUDGE SWART: I may have missed the close range on your report.

2 But on the other hand, I also remark that some of these dead persons have

3 camouflage uniforms and others have hand grenades, so that was the

4 background of my question.

5 Let's now go to another situation in which there also have been

6 written official notes. We have received these documents and I am not

7 quite sure what to think of them. I want them to show to you, because it

8 is a situation somewhat similar in your report.

9 I would like the witness to be shown the documents P332, P333,

10 P334, and P341. Do you have them?

11 A. [In English] Somebody must show me.

12 JUDGE SWART: No, they are not in the binder, I must say. I'm

13 sorry. I'll give it to you for the sake of time.

14 I have some copies, if the usher ...

15 A. [Interpretation] With regard to your earlier claim about the

16 grenades that they carried and the fact that there was no information

17 about how they were killed, have a look at page 2, where it says that

18 they made a record of "An entry and exit wound in the area of the head

19 and the ribcage. Most of them weren't in uniform." I'm reading this

20 now. This all shows that there were civilians that had been shot and

21 killed from close range. And they even say that one, two, or three of

22 them had parts of military uniforms. In fact, I described the situation

23 as I had found it.

24 JUDGE SWART: Now, if you look at these four documents, you will

25 see that they are concerned with a situation that is in some respects

Page 9623

1 similar to the situation in your report, and in other ways dissimilar.

2 There is a covering note saying that a number of bodies have been

3 brought to the Zenica hospital, the same unit where you saw the other

4 bodies. They were brought there to be put through the identification

5 process. That letter doesn't say who brought them. We don't know that

6 from the letter itself.

7 And then there are four annexes, two official notes, a paraffin

8 test, and a photo record. The photo record is not in the possession of

9 the Court, so we don't know what the photos contain.

10 All these letters carry as their head, on top of it the "CSB."

11 And I take it, but just to make sure, I ask you this. This was the

12 civilian police, isn't it, CSB?

13 A. The Security Services Centre. Yes, CSB, the Security Services

14 Centre. This is the abbreviation.

15 Do you have the judge's record about this? Was a judge called

16 out at all?

17 JUDGE SWART: This is one of my questions. If you look at the

18 document -- where is it -- 333, then you see that an official note has

19 been written in the presence of judges and a prosecutor of the Zenica

20 district military court.

21 A. Yes. One should find this note and get hold of it from the

22 court. This shows that the judge was present. If there is such a note,

23 then the judge was present; if not, then judge wasn't present and someone

24 wrote this off the top of their head.

25 JUDGE SWART: Do you by any chance remember whether you were

Page 9624

1 aware of this yourself or ...?

2 A. Many bodies were brought to the hospital. We always insisted on

3 being informed. Perhaps I was present. That's a possibility, because on

4 a number of occasions I went to identify bodies, and the conclusion was

5 made and a record of the fact that they had been brought in was made.

6 But I can't remember this. At the moment, it's possible. But as far as

7 the paraffin test is concerned, this is the judge's skill. We asked the

8 paraffin test to be made on the bodies so that we would have sure proof

9 as to whether these people were involved in fighting or not. If they

10 were involved in shooting, then that was something that happened in the

11 conflict; if they weren't involved in shooting and they were still in

12 civilian clothes, then we had reasonable grounds to believe that a crime

13 had been perpetrated or that they had died violently as a result of a

14 combat action.

15 JUDGE SWART: If you look at the paraffin test - and I resume the

16 results for you, this is 341 - you'll see that the paraffin test is

17 positive for most of the dead persons, and this indicates that they have

18 been using fire weapons. You don't need to check it. I just say this to

19 inform you.

20 There's also the fact that judges of the district military court

21 have been invited to be present at the identification. And this, I take

22 it, suggests a military context; otherwise you would approach the normal

23 criminal court, wouldn't you?

24 A. In any case, they had to address somebody. If the prosecutor of

25 the military prosecutor's office and the judge of the military court were

Page 9625

1 present, then it is to be assumed that the event was related to war

2 operations or had something to do with war activities. When you were

3 talking about the paraffin test being positive, can you please read the

4 remark as well. It says here that "This method is not conclusive." This

5 is just an indicator, because even a simple urination will reveal the

6 same traces. We use this just as the starting point for our subsequent

7 activities. We would hear all the stories, and we would put a mosaic

8 together to see what really happened.

9 JUDGE SWART: I realise very well that this is only an

10 indication. But if most of the persons have these traces, then -- and if

11 you see that the judges of the military court are being approached in

12 this matter, then you may think of a military background of the cause of

13 death.

14 My question to you is: If you look at these documents, you see

15 an identification procedure involving a judge and a prosecutor from the

16 military district court, you see another note in which some civilians

17 identify some of the bodies, you see a paraffin test being performed. Is

18 this something -- this is my question, but maybe it's difficult for you

19 to find an answer. But is this a criminal investigation or not? Or

20 can't you be sure?

21 A. I can't be sure. I know that something would have been done

22 based on this, within the scope of a further proceedings. This is just

23 identification data and basic indications. The next step that I would

24 take was to verify which units were present in that particular area,

25 whether there were any war operations preceding the event, whether

Page 9626

1 firearms were indeed used. These tests are kept for 24 hours, which

2 means that you may have a prisoner of war after the fighting that was

3 going on for two hours; you can kill him eight hours later and you will

4 end up with the same traces. The judges were very cautious in their

5 proceedings.

6 JUDGE SWART: May I interrupt you and summarise your position by

7 saying this is not in itself already a criminal investigation but the

8 results of this identification process would justify sending the material

9 to a public prosecutor? Is that right?

10 A. [No audible response]

11 JUDGE SWART: Now, my last question on the matter is the

12 following --

13 A. Yes.

14 JUDGE SWART: I'm sorry. The last question is the following: If

15 you look again at page -- at the Exhibit P332, the general covering

16 letter, I take it all these documents were sent to the district military

17 court; is that right? Can I read this in the head of the letter?

18 A. Yes.

19 JUDGE SWART: It says on the left-hand side: "District military

20 court Zenica." Would these documents automatically arrive at the desk of

21 the public prosecutor there?

22 A. They should have, because there is a remark saying that these

23 documents were indeed delivered. But you should verify and check in the

24 court whether the documents indeed were received. Anything can be put on

25 a piece of paper, but you need to check in the court whether the court

Page 9627

1 indeed received these documents on that date. And if this indeed arrived

2 in the court, then according to the normal procedure a judge who received

3 this would send this to the prosecutor, and then prosecutor, once he

4 collected all the documents from the police, from the judge, he would

5 make an evaluation of the whole case. The data saying that bodies had

6 been found does not mean anything on its own. A conclusion had to be

7 drawn from all the available documents.

8 JUDGE SWART: Okay. You're now going far beyond my question. I

9 just wanted to verify whether it arrived at the prosecutor's desk, but

10 you derived that from the original, where it says in handwriting

11 "19/1/02"? Is that the reason why you assumed they had been received?

12 What else makes you think they had been received?

13 A. There is no proof that they were received. There is just a

14 police number and an indication that the documents were indeed sent to

15 the court. You have to go to the archives of the court to check whether

16 a document was received bearing that number and that date.

17 JUDGE SWART: Okay. These were my questions. Thank you very

18 much, Witness.

19 THE WITNESS: [Interpretation] Thank you.

20 JUDGE ANTONETTI: [Interpretation] Defence, additional questions?

21 We have very little time left.

22 MS. RESIDOVIC: [Interpretation] Mr. President, I have a couple of

23 questions for the judge. My first question is relative to your report.

24 Further cross-examination by Ms. Residovic:

25 Q. [Interpretation] Is it true, Mr. Adamovic, that the civilian body

Page 9628

1 of authorities, the civilian body whose name is civilian protection and

2 which is part of the civilian authorities, once the combat in the theatre

3 of war is over, they would go to the ground in order to do what we call

4 the clean-up of the ground, or Asanacija, which means that they would

5 collect all the bodies of the soldiers who were killed during the combat?

6 Is it true that once the combat operations were over on the front line

7 the civilian body called civilian protection will go to that ground and

8 carry out the clean-up of that terrain? Are you familiar with that?

9 A. This largely depends on the organisation. The army can do that

10 as well.

11 Q. In this specific case.

12 A. In the specific case.

13 Q. In this specific case, according to the report, page 4, it says

14 here that "Representatives of the civilian protection collected bodies in

15 the absence of a judge and that's why an on-site investigation could not

16 be done."

17 A. Yes, it had been agreed between the army and the civilian

18 authorities that the army would move on and that the civilian protection

19 would clean up the terrain. What they forgot to mention is that they had

20 forgotten to call a judge or a prosecutor or the police in order for them

21 to see whether there is any proof of violent deaths which had nothing to

22 do with the combat operations.

23 Q. Thank you very much. My next question is relative to a question

24 put to you by Honourable Judge Swart. He asked you about these documents

25 relative to the identification of the bodies in January. Our

Page 9629

1 investigators have inspected the archives of the cantonal court. I can

2 confirm to you, although that may not be relevant, that all of these

3 documents can be found in the cantonal court in Zenica.

4 My question to you is as follows: Is it true that it was not

5 only the wish of the judge to forward all the documents to the prosecutor

6 but that this is an obligation provided for in Article 150 according to

7 which anything received by the judge which points to a crime, the judge

8 cannot retain such a document but has to forward it to the prosecutor

9 immediately for the prosecutor to institute proceedings?

10 A. Article 150 talks about the criminal report, but it may also be

11 the case that the judge receives something that is not relevant at all.

12 In that case, a judge will employ his common reasoning and see what to do

13 with such papers. Generally speaking, the judges will forward everything

14 to the prosecutors because the prosecutors are in charge of prosecution,

15 at the same time retaining copies of all the documents. The judges are

16 not the ones who will evaluate documents. It will be the prosecutor who

17 will do that.

18 Q. And finally, after everything is submitted to the prosecutor, the

19 dominus litus - that is, the master of further proceedings in the

20 criminal procedure - is the prosecutor and all the others will act on his

21 request or on his order; is that correct?

22 A. Yes, during the prosecution. However, if human rights are

23 violated, then a request has to be put to the judge for any further

24 proceedings.

25 MS. RESIDOVIC: [Interpretation] Thank you very much. I have no

Page 9630

1 further questions.

2 JUDGE ANTONETTI: [Interpretation] Thank you very much. The other

3 Defence team, do they have any questions?

4 MR. IBRISIMOVIC: [Interpretation] Thank you, Your Honour, we

5 don't have any questions.

6 JUDGE ANTONETTI: [Interpretation] Mrs. Benjamin, do you have any

7 additional question for this witness?

8 MS. HENRY-BENJAMIN: The Prosecution has no questions,

9 Mr. President.

10 JUDGE ANTONETTI: [Microphone not activated]

11 THE INTERPRETER: Microphone for the Presiding Judge, please.

12 JUDGE ANTONETTI: [Interpretation] For a moment I was afraid that

13 you would have to spend the weekend in The Hague; however, owing to the

14 expediency of all the parties, this will not be the case. We would like

15 to wish you a happy journey back home, and we wish you a lot of success

16 in your future career as a judge. I'm going to ask Mr. Usher to

17 accompany you out of the courtroom.

18 THE WITNESS: [Interpretation] Thank you.

19 [The witness withdrew]

20 JUDGE ANTONETTI: [Interpretation] Mrs. Benjamin, next week's

21 schedule. You have the floor. Inform us, please.

22 MS. HENRY-BENJAMIN: Mr. President, Your Honours, I'm happy to

23 inform the Court that we have a full list scheduled for next week.

24 Monday, the 28th of June is the internal witness, investigator Peter

25 Hackshaw.

Page 9631

1 On Tuesday, the 29th, this witness was earlier scheduled to be a

2 videolink witness, but I'm happy to inform the Court that he has now

3 recovered fully and will be -- he'll be here live. That's Vinko Zrno.

4 On Wednesday, the 30th of June, this is one of the witnesses that

5 Mr. Mundis has just completed proofing and that's one of the 3rd Corps

6 people with the orders.

7 Thursday, the 1st of July, we expect to have the witness -- the

8 other videolink witness, and I'm yet to receive further information on

9 that because of the nature of the witness I cannot communicate with him

10 directly. And on Friday, we have the second witness with respect to the

11 insider, so to speak, Muradit Mekic, and that takes care of the week.

12 JUDGE ANTONETTI: [Interpretation] It seems that all the witnesses

13 who were scheduled will be heard next week. We are approaching the 1st

14 of July, the end of the Prosecution case; am I right in thinking that?

15 MS. HENRY-BENJAMIN: Yes and no. Yes, in the sense that all

16 witnesses will be finished with. But I think the Chamber had alerted the

17 Prosecution that there was some tidying up to do with documents and so we

18 couldn't really close before that was done. Mr. Mundis, who is more

19 familiar with that aspect, will be here on Monday and he'll be able to

20 give the Court further guidance and say.

21 JUDGE ANTONETTI: [Interpretation] Thank you.

22 As far as the Defence is concerned, we still have a couple of minutes.

23 Are there any points you wish to raise at this moment? There is nothing.

24 Mrs. Benjamin, is there anything you wish to raise at this point?

25 MS. HENRY-BENJAMIN: No, Mr. President, nothing.

Page 9632

1 JUDGE ANTONETTI: [Interpretation] We will therefore adjourn until

2 Monday at quarter past 2.00.

3 --- Whereupon the hearing adjourned at 1.47 p.m.,

4 to be reconvened on Monday, the 28th day of

5 June, 2004, at 2.15 p.m.