Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16234

1 Thursday, 17 February 2005

2 [Open session]

3 [The witness entered court]

4 --- Upon commencing at 9.01 a.m.

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you call

7 the case, please.

8 THE REGISTRAR: [Interpretation] Thank you, Mr. President. Case

9 number IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir

10 Kubura.

11 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar. Could

12 we have the appearances for the Prosecution, please.

13 MR. MUNDIS: Thank you, Mr. President, good morning counsel,

14 Your Honours, and everyone in and around the courtroom. For the

15 Prosecution, Mathias Neuner and Daryl Mundis. We are assisted today by

16 our intern, Lisa Hartog, and our case manager, Andres Vatter.

17 JUDGE ANTONETTI: [Interpretation] Thank you. And could we have

18 the appearances for Defence counsel who are all present.

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

20 morning, Your Honours. On behalf of General Enver Hadzihasanovic, Edina

21 Residovic counsel, Stephane Bourgon co-counsel, and Alexis Demirdjian, our

22 legal assistant.

23 JUDGE ANTONETTI: The other Defence team.

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

25 behalf of Amir Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin

Page 16235

1 Mulalic, our legal assistant.

2 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, Judge Swart has

3 nothing on his screen, although I could lend him my screen. We will

4 continue nevertheless.

5 On behalf of the Chamber, I would like to greet everyone present,

6 members of the Prosecution, Defence counsel, the two accused,

7 General Hadzihasanovic and Mr. Kubura. I would like to greet the witness,

8 the judge, as well as everyone else in and around the courtroom.

9 We will continue with the hearing of this witness today.

10 Yesterday the cross-examination was being conducted and I will now give

11 the floor to the Prosecution since the cross-examination has not yet been

12 completed.

13 Mr. Neuner, I give you the floor.

14 MR. NEUNER: Thank you very much.


16 [Witness answered through interpreter]

17 Cross-examined by Mr. Neuner: [Continued]

18 Q. Good morning, Mr. Ahmetovic. If disputes arose in 1993 about the

19 status of a person under investigation, whether he was a civilian or a

20 soldier at the time of committing the crime, which judge or which Chamber

21 was in a position to make a determination on the status of a suspect or an

22 accused, of status as a civilian or as a member of a military unit?

23 A. The investigative judge or the person filing the criminal report

24 against such a person. It was his duty at the very beginning when filing

25 the criminal report to make the situation clear, to determine whether it

Page 16236

1 was a civilian or a member of the military. This would be done by

2 requiring a certificate from the Ministry of Defence to see whether such

3 an individual had been mobilised as a member of the military and see

4 whether it was perhaps a civilian. This is how his status would be

5 determined.

6 If his status was not determined in the course of the

7 investigation, objections were raised to the situation, to the

8 circumstances, then the Chamber of the regional military court consisting

9 of three Judges would decide on the matter.

10 Q. Thank you. You just mentioned certificates. You mentioned

11 certificates of the Ministry of Defence. Could also 3rd Corps itself or

12 3rd Corps units issue such certificates that the person concerned was a

13 member of its units?

14 A. Naturally. Every military unit had its own records, and when

15 examining the records, having examined the records, they could issue a

16 certificate stating whether someone was a member of their unit or not.

17 But this then concerned only that unit. But the Ministry of Defence had a

18 record about the greatest number of individuals mobilised.

19 Q. What value would such a certificate have in the litigation of the

20 issue whether the person's status -- has the status of a civilian or

21 military person? What value would it have?

22 A. We treated this as evidence, and it was on that basis that we

23 decided on our competence. We decided whether a military court or a

24 civilian court was competent to try such a person. So until doubt was

25 cast on the validity of a certificate, such certificates were accepted

Page 16237

1 because the competent organ or unit had issued the certificate in

2 question.

3 Q. You were yesterday shown a judgement by the Defence, and this is

4 contained in the Defence binder, section 4, tab 2.

5 MR. NEUNER: If I may ask the usher.

6 Q. This is a judgement of the district military court in Zenica

7 dating 3 June 1993. Section 4, the judgement section, in there tab 2.

8 This is a judgement against accused persons from the 303rd Mountain

9 Brigade, and the issue of certificates is mentioned in the section

10 Statement of Reason. On the B/C/S version, that's page 6 of the

11 judgement, the fourth paragraph. In the English version, it's also page 6

12 but the third paragraph, and I'm referring to the first sentence here.

13 Can you find this? The first sentence I'm referring to states,

14 and I quote: "All the accused are undoubtedly members of the RBiH army

15 303rd Zenica Mountain Brigade, which was corroborated by a certificate

16 issued by the command on 3 May 1993."

17 Does this portion of the judgement confirm what you just said a

18 moment ago about the weight of these certificates?

19 A. Yes.

20 Q. Let me move on. If I show you a report about the work

21 accomplished by the Zenica District Military Court from October 1993 until

22 March 1994, would you be in a position to comment on the basis of this

23 document on the work of your own court?

24 A. I could have a look at the document, and I will then answer your

25 question.

Page 16238

1 Q. [Previous translation continues] ... of the Prosecution exhibits,

2 tab 3. It's Exhibit DH275. Document relating to the report on the

3 District Military Court in Zenica, dating 8 March 1994. And on the last

4 page you see it's signed by the president of this court, Mr. Muhamed

5 Colakovic. You had a document signed by him yesterday in front of you. It

6 relates to the period from 1 October 1993 until 28 February 1994, and it

7 states at the beginning of the document: "308 requests for investigations

8 and 258 indictments have been received by the District Military Court."

9 If you look on the first page, on the fifth paragraph, please, it

10 states: "The situation in Zenica municipality as at 28 February 1994."

11 Do you find this, please? Do you find this?

12 A. Yes.

13 Q. Following that there are numerous categories of crimes listed

14 which were either investigated by the Zenica District Military Court or

15 tried. Judge Ahmetovic, I'm asking you to review quickly the categories

16 of crimes listed and tell the Court whether in the period October 1993

17 until the end of February 1994 any war crimes, according to chapter 16 of

18 the SFRY penal code were dealt with by the District Military Court in

19 Zenica.

20 A. I recognise this report only the basis of the heading, the Zenica

21 District Military Court. I can recognise it on the basis of the stamp of

22 the Zenica District Military Court, and on the basis of the sit of my

23 former president, Muhamed Colakovic. I really couldn't comment on these

24 figures contained in this report. I accept them as valid figures.

25 As far as these crimes listed, I believe it only concerns a report

Page 16239

1 to the municipality of Zenica and to the Ministry of Defence, a report

2 that concerns individuals who were mobilised into the ranks of the ABiH

3 through the Ministry of Defence in Zenica municipality. So the Ministry

4 of Defence has records on the number of individuals who abandoned the

5 ranks of the ABiH. This is the crime of leave and desertion from the

6 armed forces referred to in Article 217 of the Criminal Code of the

7 socialist Federative Republic of Yugoslavia. This shows that some

8 individuals who were mobilised wilfully deserted military units, and they

9 were no longer considered as members of the military or as members of the

10 ABiH, and as such that the disposal of the Ministry of Defence -- rather,

11 the ministry of defence in the municipality of Zenica can try to determine

12 their location to mobilise them again.

13 The failure to respond to the call-up and evasion of military

14 service which is Article 214, this is also a familiar article from the

15 criminal law and was frequently invoked in our Court. And this concerns

16 the fact that civilians to whom call-up papers were sent either refused to

17 receive the call-up papers and refused to be mobilised or they received

18 the call-up papers but they failed to report to the military unit they

19 were supposed to report to.

20 Similarly, these individuals had committed a crime and criminal

21 proceedings were instituted against them. And this report was forwarded

22 to the Ministry of Defence in the Zenica municipality in order to inform

23 them of the fact that it was necessary for them to find those individuals

24 again and send them call-up papers again. They were also informed the

25 fact that criminal proceedings had been instituted for the crime

Page 16240

1 committed, and that concerns the other crimes listed as well.

2 As to your question about whether individuals were processed for

3 war crimes, tried for war crimes, I really couldn't say. I don't have the

4 record or the records from the district court before me, but yesterday

5 after the hearing I remembered that towards the end of September or

6 beginning of October 2003, some -- some workers, some employees from The

7 Hague Tribunal scanned the records of the Zenica District Court. I think

8 you have these records, and I think that on the basis of these records you

9 can determine whether any proceedings were instituted for war crimes

10 during that period. It's very difficult for me to answer such a question

11 now, though.

12 Q. Thank you. Based on the document just in front of you, can you

13 maybe have a short look and find out whether in this document there are

14 any investigations or judgements listed in relation to war crimes? This

15 was my only question, whether within this particular document you find any

16 record about it.

17 A. Having had a quick look at this document, I don't see that the

18 Zenica District Military Court instituted any investigations into war

19 crimes. They didn't investigate anyone, members of the military,

20 civilians, members of the ABiH, or members of the HVO or some other

21 military formation, or perhaps members of the Republika Srpska army at the

22 time. So I can't see that the District Court dealt with war crimes during

23 that period of time.

24 Q. Thank you. If you look now at the last page of this document, in

25 the B/C/S version it's the second last paragraph. In the English version

Page 16241

1 it's the last paragraph. The president of the Zenica military court

2 states here, and I quote: "There is also a problem with some ABiH units

3 when this comes to serving summons to their members. They refused to

4 receive them, although the law says that summons for members of the ABiH

5 can only be served through their units. These problems badly affect and

6 slow down the work of this court."

7 Mr. Ahmetovic, having worked in the relevant time period at the

8 District Military Court in Zenica, what is meant exactly here?

9 A. I don't know what the president of my court wanted to say in this

10 sentence at the time, but I think that this is a quote from the Law on

11 Criminal Procedure. I believe that my president was quoting the law from

12 the Law on Criminal Procedure. It's the duty of courts and prosecution --

13 and the prosecution to send call-up papers through commands and their

14 units. We weren't in a position to send such call-up papers to the

15 address of such individuals, so perhaps some colleagues had problems which

16 they mentioned to the president of the court.

17 Believe me, I didn't come across such problems in the course of my

18 work. Military units sent court papers and individuals responded. When

19 they didn't respond, when this wasn't possible, an order was issued to

20 have these people brought in.

21 Q. So with call-up papers you're referring to a summon to appear in a

22 proceeding or as witness for investigation? Please just clarify.

23 A. I was an investigative judge, and the call-up papers I sent were

24 sent to suspects and witnesses in investigation. My colleague, Mladen

25 Veseljak sent summons for a trial, and then there were accused, witnesses,

Page 16242

1 injured parties, and others who participated in the proceedings. So

2 summons were issued.

3 THE INTERPRETER: Interpreter's correction, summons, not call-up

4 papers.

5 THE WITNESS: [Interpretation] -- officially.


7 Q. If you could turn to the Defence finder again. It is section 1

8 this time, tab 5. It's DH1560, a document dated from 28 December 1993. A

9 decision to open investigation into a case involving grave robbery. I

10 think the document is in B/C/S only.

11 A. If I ask you to look at the last page first. It's page 2, I

12 think. Your name and, I think, your initials are mentioned there on the

13 last page. It is correct?

14 A. I remember this document well, and I remember the individuals into

15 whom investigations were opened by virtue of my decision dated the 28th of

16 December, 1993. These aren't my initials here. My full name and surname

17 is contained here, and my signature on a decision whereby I opened an

18 investigation into Osmancevic Alem and Pezer Sefik. As far as I remember,

19 it was believed that they had committed robbery according to the Article

20 153 of the Criminal Code of Bosnia and Herzegovina. This is a document

21 that states that criminal proceedings were instituted against certain

22 individuals.

23 The decision on carrying out an investigation from the

24 investigative judge is the document that institutes proceedings. If you

25 don't have such a document, criminal proceedings can't be instituted

Page 16243

1 against an accused or against a suspect.

2 Q. The second person mentioned under 2 on the first page is Sefik

3 Pezer, and I think it states in the last line of this paragraph relating

4 to the paragraph preceded by number 2 that he was a member of the military

5 police of the 7th Muslim Mountain Brigade since 7 July -- since July 1993.

6 And I believe at the time you wrote this report, Mr. Sefik Pezer was still

7 at large. So he wasn't in the -- in anybody's custody.

8 My question is: Did you subsequently to this document order the

9 arrest of the second suspect at large, Sefik Pezer?

10 A. I don't know if there is an awkward translation or whether you

11 have failed to understand the Law on Criminal Procedure. I can't issue an

12 order for arrest. The investigative judge acts on the basis of a request

13 launch an investigation which is submitted by the prosecutor's office. In

14 this case by the military prosecutor's office in Zenica.

15 As far as I can remember in that request for an investigation, no

16 suggestion had been made to detain this person. If I decided to detain

17 this person, I needed to draft a decision stating that he should be

18 detained and not to issue an order for his arrest.

19 As far as I can remember, this person responded to the summons.

20 He wasn't fleeing. He was accessible. My court could find him, and the

21 state organs of the Republic of Bosnia and Herzegovina could gain access

22 to him. There is no order for arrest. There's only a decision on

23 detention, which is based on the suggestion of the prosecutor's office.

24 It's true that the investigative judge, on the basis of the case

25 file, on the basis of the situation, could state that someone should be

Page 16244

1 detained even if the prosecutor had not made such a suggestion. This

2 could be done if there were legal reasons pursuant to Article 191,

3 paragraph 1, and 191, paragraph 2. Items 1, 2, 3 and 4 on the Law on

4 Criminal Procedure. And this was applied at the time by the Zenica

5 District Military Court.

6 Q. Mr. Pezer himself was a member of the military police. Is this a

7 rare case that, so to speak, a member of the organs who are supposed to

8 enforce law and order did engage in potential criminal conduct, or was it

9 occurring from time to time during your work in late 1993/1994 that you

10 had suspect among the military police?

11 A. Well, I don't think that that was the case only during that

12 period. Even today if you have information that a policeman committed a

13 crime, this will make anyone normal feel that he should have doubts about

14 the work of such a person as a policeman. And on the basis of this

15 information and this investigation, I believe that we should all draw the

16 conclusion, and we can draw this conclusion, we should draw the conclusion

17 that no one at the time was immune to criminal prosecution, even if the

18 person in question was a military policeman of the 7th Muslim Brigade in

19 Zenica. And if he had committed a crime, he should be held accountable.

20 And I must say that I appreciate the fact that the commander of

21 the 7th Muslim tried to deal with their very close associates. This shows

22 how serious the 7th Muslim command was in the sense that they were trying

23 to form or establish a real military unit.

24 As far as I can remember, Mr. Pezer was sentenced to two and a

25 half years in prison in our court, and this is not a light sentence.

Page 16245












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 16246

1 Q. Thank you. I want to move on to criminal reports. You mentioned

2 yesterday several times these criminal reports, and these documents

3 constitute usually the first written description of an incident. And I

4 take it from your words usually these documents are produced before a

5 formal investigation has been started; correct?

6 A. Yes, of course you're right, and I will repeat what I have already

7 said. An investigation or the Prosecution of someone commences once the

8 investigative judge has taken a decision on carrying out an investigation.

9 Everything else is done before of the investigation. You gather evidence

10 on a crime committed. The criminal report, which charges an individual

11 with a certain crime, is part of the factual description of the way in

12 which the crime committed. And it also contains the legal qualification.

13 It states the kind of crime that is concerned, and it refers to the

14 article according to which the individual a charged with a crime.

15 Q. And in fact, these criminal reports, they are the important tool

16 to trigger subsequent investigations?

17 A. It is impossible to qualify this as important or not important.

18 It is simply envisaged as a document pursuant to which the competent

19 prosecutor decides whether to instigate proceedings against somebody or

20 not. In addition to the criminal report, the competent prosecution bodies

21 could also issue a report on the crime. This is a different document

22 based on which the prosecutor also could decide whether to Prosecution

23 doubt the person or not.

24 According to the law, this is provided for, and this just could

25 not be avoided. So it is not the matter of this being important or not.

Page 16247

1 Q. Just to clarify what you just have said, is it possible for a

2 district military prosecutor to request an opening of investigation

3 without a criminal report received?

4 A. According to the provisions of the Law on Criminal Procedure, this

5 situation is envisaged, because it says in the law that every person is

6 authorised to report a crime, and this includes the prosecution. If he

7 receives rumours that a crime has been committed and if he is aware who

8 the perpetrator might be, he can instigate proceedings against that person

9 regardless of the subsequent stage in the proceeding. That is, regardless

10 of whether the criminal report will be filed or not.

11 Q. If you please look in the prosecution bundle at tab 4. This is

12 DH155-2. It's a report by the 3rd Corps Military Police Battalion about

13 criminal reports filed, and this document dates the 28th of March, 1994,

14 so shortly after the document DH275, which you have seen a moment ago.

15 And the subject of this document is the number of criminal reports

16 filed.

17 And it is mentioned on the first page that 377 criminal reports

18 relating to 824 perpetrators have been filed. This is letter A on page 1.

19 And the time period is 14 September 1992 until 1st of March, 1994. So

20 roughly a 17-month time period.

21 Do you find letter A?

22 If I take these 377 criminal reports -- and I'm interested to

23 determine how many criminal reports per month have been filed. So if I

24 take these 377 criminal reports and divide them by 17, I get a figure of

25 22.17, meaning in an average per month 22 criminal reports have been filed

Page 16248

1 by the 3rd Corps Military Police Battalion.

2 Do you find that having worked as an investigative judge that the

3 filing of an average of 22 criminal reports per month by the 3rd Corps

4 military police over a 17-month period constitutes a small, an average, or

5 a great number of criminal reports?

6 A. If you will allow me, this is a document of the battalion of the

7 military police of the 3rd Corps, which was sent to the BiH army 3rd

8 Corps. So this document has nothing whatsoever to do with the District

9 Court of Zenica or me as an investigative judge.

10 As I sit here, I cannot comment upon all of these figures which

11 are listed here. They may be correct. They may not -- they don't have to

12 be correct, but this is not a document that I can comment upon. It is

13 maybe Mr. Mujezinovic who could provide you with a comment because he

14 draft this had document and he had the most insight into those documents.

15 As to whether this is a lot to have the military police battalion

16 filing 22 reports, I don't know. They filed reports on anything that

17 might have happened on the ground where crimes were committed. They

18 reported on all the events, and they processed them.

19 In addition to them, criminal reports could be filed by citizens,

20 by the Ministry of Defence, by military units or the command of the 3rd

21 Corps. Any institution could file such reports, because it was a legal

22 obligation set out by the Law on Criminal Procedure in which it says that

23 whoever found out about a crime was duty-bound to report such a crime.

24 In other words, would I not dwell upon this document any longer.

25 I would like to refer you to Mr. Mujezinovic with regard to this document.

Page 16249

1 Q. I'm just interested in one small section of this document. You

2 stated you prefer not to talk too much in detail about it, but I think

3 this is an abstract or a section which can be generalised. It's under

4 letter C, and it is just mentioned against whom the criminal reports were

5 filed. You find section C?

6 There are six categories of persons against whom the reports were

7 filed, and I'm just listing them: Members of the eye BiH; second, members

8 of the HVO against civilians --

9 MS. RESIDOVIC: [Interpretation] Mr. President. Mr. President.

10 The witness said that he could not comment upon this document, and on our

11 list of witnesses, we have Mr. Mujezinovic who drafted this document. I

12 believe that it would be only fair and appropriate for the Prosecutor to

13 leave these questions for our witness Mujezinovic, who is to come here

14 very shortly.

15 JUDGE ANTONETTI: [Interpretation] The Prosecution, have you heard

16 the remark by the Defence? They believe that the author of this document,

17 who is about to be called, is better placed to comment upon this document,

18 because this witness says that he cannot comment upon this document as

19 regards the figures in the document that you may ask him to comment upon.

20 You may proceed.


22 Q. I turn to my last subject, then. The legal requirements for

23 criminal reports, how they should be drafted. Can you please look at tab

24 number 7 of the Prosecution exhibits. DH115, decree having the force of

25 law on the district military prosecutor's office, dating 13th of August,

Page 16250

1 1992. And in Article 6 of this decree, it states the following:

2 "In discharging the function of criminal prosecution, the district

3 military prosecutor shall cooperate with the authorities obliged under the

4 law to detect and report criminal offences falling under the jurisdiction

5 of military courts for which prosecution is undertaken ex officio."

6 So the authorities obliged under law to detect and report criminal

7 offences. You mentioned already. Is this the military police, the

8 military security also, and civilians? Can you please clarify? What are

9 the authorities obliged under the law to report criminal offences?

10 A. The decree law on military prosecutors' offices that I have before

11 me is a bylaw. Above it is the Law on Criminal Procedure which is very

12 clear when it comes to the criminal prosecution of certain persons.

13 I've already said that according to that law, according to the

14 umbrella law, the highest law on the criminal proceeding -- proceedings,

15 every person, every citizen, every military or civilian institution is

16 obliged to report a crime at the moment they learnt about that crime.

17 Article 6 is of a lesser scope, and it arises from this decree

18 law. However, the Law on Criminal Procedure provides anybody with a much

19 lesser scope for proceedings in this matter.

20 Q. With regard to the filing of criminal reports by the military

21 security, can you please look under tab 8 of your bundle. This is P244.

22 At section 41, and the first sentence. It states here relating to the

23 military security service, and I quote: "On the basis of the

24 information --" okay. Just waiting. Do you have it?

25 I quote again: "On the basis of the information gathered,

Page 16251

1 officers of the military security service in the command of the brigade or

2 a corresponding or higher-ranking office near the military security

3 service shall submit a criminal report to the competent military

4 prosecutor's office in cases when it is necessary to carry out certain

5 investigative actions immediately, an authorised officer of the military

6 security shall immediately inform the competent --"

7 THE INTERPRETER: Please slow down when you're reading. Thank

8 you.


10 Q. I repeat that question again: "In cases when it is necessary to

11 carry out certain investigative actions immediately, an authorised officer

12 of the military security service shall immediately inform the competent

13 military prosecutor and, when necessary, also the investigating judge of

14 the military court."

15 A. I did not manage to find this. You were rather fast. I heard

16 your question, however. This those how military institutions and

17 personnel acted, and this is even a more narrow document. This is --

18 these are rules of the army of Bosnia and Herzegovina where it says that

19 personnel of the military security have to detect the criminal and report

20 to the prosecutor's office. In case they found the perpetrator on the

21 scene, then they had to report that to the military investigative judge or

22 the judge on duty.

23 Q. Thank you. You said you couldn't find section 41. Have you found

24 it now, please? I'm just referring to the third or last -- no, you

25 haven't found it. Section 41 in tab 8. Or Article 41. Have you found it

Page 16252

1 now? Thank you.

2 I'm referring to the last sentence of Article 41 which talks about

3 the requirements of a criminal report. "Together," it states here, and I

4 quote: "Together with the criminal report, objects, sketches,

5 photographs, reports, files on measures and actions undertaken, official

6 notes, statements, and other materials which may be helpful for the

7 successful conduct of the trial are also submitted."

8 The criminal reports which you received in late 1993, early 1994,

9 did they contain the objects mentioned here in section 41?

10 A. Criminal reports were sent to the competent military prosecutor's

11 office in Zenica, and if they decided to prosecute such person or persons,

12 they would submit a request for investigation against such person or

13 persons, and this request, together with all the evidence, would be

14 submitted to me as an investigative judge.

15 In the last sentence of paragraph 41, it says that together with

16 the criminal report, objects, sketches, photographs, reports, files on

17 measures and actions undertaken, official notes, statements and other

18 materials which may be helpful for the successful conduct of the trial are

19 also submitted.

20 This is, I believe, just a copy -- this sentence that I have just

21 read out has been copied from the Law on Criminal Procedure. Everybody,

22 including the military security body, was duty bound to submit to the

23 investigative judge all the evidence that they came across in their effort

24 to detect the crime and the perpetrators thereof. It doesn't necessarily

25 mean that every criminal report had to contain all of these objects,

Page 16253

1 sketches, photos, and so on and so forth. There are places where this is

2 not done. There are situations when this is not done. It all depends on

3 the structure of the crime that was committed.

4 For example, crimes pursuant to Article 217 of the penal code of

5 the Republic of Bosnia and Herzegovina, which is wilful abandonment of a

6 military unit, you don't need any evidence. You don't need a sketch or a

7 photo. However, when it comes to a robbery, to a murder, aggravated

8 robbery, a traffic accident, you have to have photos accompanying your

9 report. You have to have a sketch of the site where the crime happened,

10 and all the other evidence pursuant to which you will be able to tell that

11 a certain person committed a crime.

12 Basically, it all depends on the type of crime. But in a

13 nutshell, I would like to conclude by saying that these items were

14 submitted. They were submitted. They have to be.

15 In addition to that, the question is how cable is the military

16 security body of collecting certain evidence and to which extent they can

17 do that. Sometimes evidence is destroyed before it could be found.

18 Sometimes it is hidden or is not accessible for one reason or another.

19 Therefore, the prosecution bodies are not in a position to deliver that

20 evidence.

21 Q. We looked at the rules for the military security service. I'm

22 asking you now to look at the rules for the military police. This is tab

23 5 of your binder. P328.

24 First of all, if you look at section 67, in the second sentence --

25 A. I apologise. Which paragraph?

Page 16254

1 Q. 67. So in the second -- do you find it?

2 A. Sorry, I can't find it.

3 Q. This is in section 5. It's the page -- the page with the ERN

4 number 02131207. Page 26, I think. Section 5 of the Prosecution bundle.

5 Okay. You have it.

6 Let me maybe, because we have lost some time, move on to the next

7 page. It's section 69. Here you find the -- a description of what

8 criminal reports should contain. Do you find this section 9? So I'm just

9 stated a few examples. The criminal report should include basic details

10 on the perpetrator, time and place of the commission of the crime,

11 description of the offence. If you read quickly through this, did the

12 criminal reports you received in late 1993, early 1994, did they contain

13 these details, the criminal reports received from the military police?

14 A. Yes.

15 Q. I have only one question left relating to Vares. You testified

16 yesterday about the jurisdiction of the Zenica District Military Court in

17 relation to Vares. I just want to clarify.

18 My question is: Did the Zenica District Military Court have

19 jurisdiction over 3rd Corps units which were present in Vares area in late

20 October and/or early November 1993?

21 A. Yes.

22 Q. Thank you very much.

23 MR. NEUNER: The Prosecution, at this point in time, has no

24 further questions.

25 JUDGE ANTONETTI: [Interpretation] Thank you. Additional questions

Page 16255

1 arising from the cross-examination or new questions authorised by the

2 Chamber? The Defence, you have the floor.

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

4 Re-examined by Ms. Residovic:

5 Q. [Interpretation] Good morning, Mr. Ahmetovic. In response to my

6 learned friend's questions, you said that a number of bodies were obliged

7 to report crimes of which they had learnt or the perpetrators thereof. Is

8 that what you said to my learned friend?

9 A. Yes.

10 Q. The last few questions put to you by my learned friend were

11 relative to the form of a criminal report. Before that, in response to

12 one of the questions, you said that in addition to the criminal report,

13 the competent prosecutor could learn about the crime or the perpetrator in

14 other ways.

15 Could you tell us, please, what other ways did you have in mind,

16 the ways in which the competent prosecutor could be informed about grounds

17 to suspect that a crime had been committed or that there is a person that

18 could be suspected of having committed such a crime?

19 A. Persons who were duty-bound to inform the prosecutor of a certain

20 crime, about which I testified, I said that the prosecutor himself could

21 have heard rumours about a crime having been committed and the person who

22 might have committed it, and based on that rumour, the prosecutor could

23 prosecute that person. This is the most far-fetched way, but there were

24 also other ways that the prosecutor could learn about a crime that may

25 have been committed.

Page 16256

1 This implies that the person who has information about a certain

2 crime is duty-bound to report this crime. The person who does not have

3 any information about a crime is not duty-bound to report anything.

4 Q. All these ways of reporting to the prosecutor about the suspicion

5 that a crime may have been committed, so all these ways, reports, official

6 notes that you have just mentioned, and everything else, are all these

7 legitimate ways to report the existence of such a suspicion to the

8 competent prosecution?

9 A. Yes. This is what is envisaged by the law on criminal procedure,

10 as far as I know.

11 Q. Since you were an investigative judge for a long time and you did

12 not receive the original, the initial criminal report by which the

13 prosecutor was informed directly at the time when the crime was reported,

14 but when you received the -- all of the material from the prosecutor with

15 a request to start an investigation, did you receive all the different

16 forms of reporting, that is criminal reports, official notes? In

17 practice, did all these documents reach you as possible ways of informing

18 the prosecutor in a legal way that the crime may have been committed?

19 A. An excellent question. In my practice, I did not come across any

20 other way of informing the prosecutor of a crime. The only form I

21 encountered was a written criminal report or a -- or a report on the crime

22 that was committed. I have not encountered any other way of informing the

23 prosecutor of a crime.

24 Q. To my learned friend's question about the commission of a crime

25 and role of an investigative judge, you answered that as an investigative

Page 16257












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Page 16258

1 judge who was sometimes on duty, you referred all the material and

2 evidence collected in an investigation you referred to the prosecutor. My

3 question to you is as follows: The investigative judge who collected

4 material and who submit it had to the prosecutor, was he duty-bound to

5 write a criminal report, or whether this material that the judge submitted

6 to the prosecutor, did it constitute ample legal grounds for a prosecutor

7 to start the proceedings?

8 A. Your question is very specific, but I must say that every time the

9 duty judge goes out to investigate, he brings with him members of the team

10 who are always members of the military or civilian police as prosecution

11 bodies, and these prosecution bodies would all continue prosecuting such

12 perpetrators. It was never the judge on duty who did that. The judge on

13 duty would just form a team that he would take to the scene. He would

14 take stock of the scene. He would take an official note or record of the

15 investigation, and he would issue orders to the prosecuting bodies either

16 in written or in oral form, and members of the team were duty-bound, and

17 they always executed those orders, be it the collection of additional

18 evidence, interviewing witnesses, securing the site of crime or similar

19 things.

20 In any case, the prosecution was taken over either by the civilian

21 or the military police, which then filed a criminal report and informed

22 the competent prosecutor thereof. The prosecutor, together with the

23 duty -- judge on duty went to the crime scene. And I don't remember any

24 situation during the war when I didn't have a prosecutor together with me.

25 So if that is the case, nobody had to inform the prosecutor, because the

Page 16259

1 prosecutor was already privy to the information about the crime, and he

2 acted upon that in the way the law prescribed.

3 Q. Given as you have just said that the prosecutor was present at

4 most of those on-site investigations, and you yourself and your colleagues

5 also went to these on-site investigations, once you had provided him with

6 all the material that you had gathered, who -- or, rather, which body was

7 then authorised to request additional measures to be taken either by the

8 court or by the police? Which is the body that was authorised to assess

9 whether the material collected was sufficient in institute proceedings or

10 not?

11 A. After the duty judge had completed everything that had to be done

12 at the on-site investigation, and after the members of the teams had

13 provided written reports or material evidence, he would send to the

14 competent prosecutor a record of the on-site investigation together with

15 all the material evidence, physical evidence, official records, and

16 certain statements. And from that point of time, the duty judge was no

17 longer involved in the case. Up until the time that the competent

18 prosecutor stated whether an individual be criminally prosecuted or not on

19 the basis of that material. The only person who had the authority to

20 decide whether criminal proceedings should be pursued was the prosecutor.

21 Q. My colleague mentioned the rules on military security. Please

22 have a look under section 8 at page 11, item 41. Have you found that?

23 A. Yes.

24 Q. In paragraph 2, it says that if it is necessary to carry out

25 certain investigations immediately, the competent officer from the

Page 16260

1 military security service must inform the competent prosecutor and, if

2 necessary, the judge of the military court.

3 Can you tell me, how many times did you go to on-site

4 investigations in one year, for example?

5 A. It's difficult to say how many times I went to on-site

6 investigations. I know that decisions on appointing me as a duty judge

7 were issued every fifth or seventh week, more or less. On the first week,

8 and then the seventh week. On the first and then the fifth week I was the

9 duty judge. This does not mean that it was always necessary to go to

10 on-site investigations when I was the duty judge, so it's very difficult

11 to say how frequently that happened.

12 Q. Tell me, who informed you of the fact that there was an incident

13 that should be investigated usually?

14 A. I was usually informed by the military police of the 3rd Corps of

15 the ABiH, and very rarely I was informed by members of the civilian

16 police.

17 Q. On the basis of the experience you had, could you tell me whether

18 the security organ or the military police of the 3rd Corps performed its

19 duties according to Article 41, item 2? Did they immediately inform the

20 competent prosecutor or judge?

21 A. Naturally members of the military police battalion, once they were

22 informed of the fact that a crime had been committed, immediately informed

23 the duty judge who would then decide whether it was necessary to go to the

24 on-site investigation or not. And I must say that they were very

25 responsible. The members of the military police battalion were very

Page 16261

1 responsible, especially the criminal inspectors who had to perform those

2 tasks in very difficult conditions. So to the extent it was possible,

3 everything functioned in a satisfactory manner.

4 Q. My learned colleague showed you a report from the military police

5 battalion. Let me just have a look. It's after number 4. DH155/2.

6 Could you just have another look at the report that was shown to you.

7 And my question is: Were individuals prosecuted for the crime

8 committed or for the qualification of the crime?

9 A. Individuals could never be prosecuted for the qualification of the

10 crime. They could only be prosecuted for the crime.

11 JUDGE ANTONETTI: [Interpretation] Just a minute. The Prosecution.

12 MR. NEUNER: I just want to object not to the question itself but

13 to the fact that the question is based on the document DH155/2, because as

14 the witness has pointed out, it's not a document from the Zenica District

15 Military Court. It's from the Military Police Battalion, and the witness

16 who has -- or the person who has signed this document, Zaim Mujezinovic is

17 coming -- is your own witness coming in a few days. Therefore, I think

18 it's more adequate to ask these questions at a later point in time. Thank

19 you.

20 MS. RESIDOVIC: [Interpretation] Thank you very much.

21 JUDGE ANTONETTI: [Interpretation] The Prosecution is making the

22 same objection that you made earlier on. Please continue.

23 MS. RESIDOVIC: [Interpretation]

24 Q. Have a look at document number 3, please.

25 Although the question was quite different from the one put by the

Page 16262

1 prosecutor, but never mind. I accept the fact that my learned friend

2 raised the same objection.

3 Under number 3, you will see document DH275, which is a report

4 from the Zenica Military Court; is that correct?

5 A. Yes.

6 Q. With regard to this document I'll put the same question to you.

7 According to our criminal law, were individuals prosecuted for crime or

8 for the qualification of the crime?

9 A. I've already said that it was just for the crime that they were

10 prosecuted, not for the qualification of the crime.

11 Q. My colleague has shown you this document, DH275, and asked you

12 whether there was an act, a chapter 16. Have a look at the crimes listed,

13 murder, robbery, aggravated robbery, theft, et cetera, other forms of

14 crimes. As a judge, are you aware of the fact that all these acts were

15 described as possible war crimes against the civilian population?

16 A. Naturally. And I think that this is something that we discussed

17 yesterday. Article 142 of the former criminal law of the Socialist

18 Federative Republic of Yugoslavia, and now it's Article 153 of the

19 federation of Bosnia-Herzegovina provides this crime or provided the same

20 description for the crime. All these crimes also constitute the crime of

21 war crime again the civilian population.

22 Q. Tell me whether in the case of all those crimes, the various forms

23 of murder, violent behaviour, et cetera, for all these crimes were members

24 of the ABiH prosecuted?

25 A. Naturally, and this can be seen to a certain extent from the

Page 16263

1 report itself.

2 Q. And the final assessment of those acts, who could provide the

3 final assessment of those acts or the so-called legal qualification of the

4 acts? Who provided the final legal qualification of these crimes?

5 A. I have already answered that question. I did so yesterday. The

6 final legal qualification was provided in the court's judgement.

7 Q. In response to a question from my learned colleague, you mentioned

8 numerous bodies that filed criminal reports with the prosecutor's office.

9 As far as you knew, because you did not work in the prosecutor's office,

10 but tell me on the basis of what you knew, because you were later

11 forwarded the case as an investigative judge, tell me whether other

12 military bodies and other military units, apart from the military police

13 battalion, filed criminal reports against their own members.

14 A. Naturally. In addition to the military police battalion, criminal

15 reports were also filed by the commands of all ABiH units in the 3rd Corps

16 starting from the 303rd Mountain Brigade. This included the 7th Muslim

17 and many other units that were in that area. They would file such

18 criminal reports.

19 Q. My learned colleague also asked you about the attitude of the

20 court towards certificates issued by military units on the membership of

21 certain individuals within those units, and you said that if the court

22 didn't doubt the reliability of such certificates, these certificates were

23 accepted as valid; is that correct?

24 A. Yes.

25 Q. Did the court ever verify whether someone was a member of a

Page 16264

1 certain unit or not, even though no doubt had been cast on the document in

2 question?

3 A. Naturally the court only verified such matters if they did not

4 have information on whether the individual concerned was really a member

5 of the military or not. Very often, someone would decide about whether

6 someone was a military member or not on the basis of his statement, bus

7 there was no time to collect the certificate. In such situations, the

8 investigating judge or the Presiding Judge would decide that the unit

9 referred to by the suspect or the accused would be asked to provide a

10 certificate stating whether the individual was a member of the unit or

11 not.

12 Very often individuals would be on record, but they had been at

13 large for a long time. They weren't, in fact, members of those units.

14 But someone had perhaps forgotten to delete them from the records. In

15 such situations, one would try to locate the individual and then establish

16 whether the individual was a member of the military unit or not. That is

17 to say whether the individual was a member of the military.

18 Q. You have anticipated my following question. With regard to the

19 crimes mentioned by my colleague, you also mentioned the crime of leaving

20 military units or failing to respond to the call-up, and you said that in

21 such cases those individuals who failed to respond to the call-up to join

22 units, or in the case of individuals who had wilfully abandoned units, in

23 such cases they were no longer members of those units and they should be

24 deleted from the record.

25 Do you remember having said that in response to a question put to

Page 16265

1 you by my colleague?

2 A. Naturally.

3 Q. As a judge in the District Military Court, did you ever come

4 across situations in which you noticed that military units did not

5 immediately delete the names of members from their records who had left

6 the units in that way or in some other way?

7 A. Well, I could answer this question in a number of ways. This all

8 depended on the unit concerned. It varied from unit to unit. Some

9 military units were highly organised, and they really took care in the

10 personnel section to establish whether someone was really a member of the

11 unit or not. And there were other units which failed to react in good

12 time. It depended on the character of the people working in the personnel

13 section. It depended on whether such individuals would be deleted from

14 the records in time.

15 So we really did sometimes receive certificates from a unit

16 stating that an individual was a member of the unit and at the same time

17 would have a criminal report stating that the individual had fled from the

18 unit. That was a matter of disorganised records in the unit, and this

19 would subsequently be corrected, naturally.

20 Q. Thank you very much. Given that situation, given what you have

21 just mentioned, tell me whether the military police which detected

22 perpetrators came across similar problems as far as complying with your

23 orders is concerned or issuing summons, et cetera. And this is something

24 that my colleague mentioned and something referred to in one of the

25 reports.

Page 16266

1 A. Yes.

2 Q. In your experience, the work of the military police battalion and

3 military units, while you were a judge at the District Military Court,

4 tell me, did the military police and other military bodies take all the

5 necessary steps to resolve incidents they came across at that period of

6 time and given the conditions that prevailed? Is that how you believe

7 that they acted?

8 A. Yes. I believe that the members of the military police battalion

9 worked day and night insistently in order to detect the identity of the

10 perpetrators of crimes. And this can be seen on the basis of the reports

11 filed, on the basis of the individuals against whom reports were filed.

12 The prosecutor noticed that in one case a report concerned a

13 member of the military police of the 7th Muslim Brigade. There were no

14 exceptions. Anyone who committed a crime was reported.

15 For example, I also had criminal reports against brigade

16 commanders or the deputy brigade commander for security, logistics. There

17 were criminal reports against battalion commanders, against deputy

18 battalion commanders. So there were no exceptions. It was only important

19 to determine whether someone had committed a crime or not, and no one was

20 except from prosecution.

21 Q. You were shown the law on military police, and according to the

22 document you were shown, it states that the military police must arrest

23 and bring in individuals who were found to have committed a crime.

24 Tell me, to what extent did the military police perform those

25 duties when they detected an individual at the scene or when they managed

Page 16267

1 to arrest an individual? Did the military police arrest such an

2 individual and take such an individual to the investigative judge in

3 accordance with the authority they had?

4 A. Naturally.

5 Q. With regard to the responsibilities of members of the ABiH or,

6 rather, of the 3rd Corps that was part of your responsibility, tell me

7 whether you know to what extent the military units in the 3rd Corps had

8 recourse to other measures. For example, disciplinary measures,

9 disciplinary detention in relation to its members in order to discipline

10 the army and prevent offences being committed. Do you have any

11 information about this?

12 A. Yes, I have information about this, and I can provide you with a

13 very positive example. For example, the command of the 303rd Zenica

14 Mountain Brigade filled its disciplinary detention units with its own

15 members, members who were guilty of having committed offences. They were

16 given 60 days -- up to 60 days in detention. So each unit acted in this

17 manner in order to ensure that there was discipline in its units and in

18 order to prevent crimes from being committed, in order to prevent

19 misdemeanors from being committed, naturally.

20 Q. Thank very much you, Judge. Yesterday, my learned colleague asked

21 you about special military courts, and you mentioned the case of the

22 Ilijas Brigade. You said that you had personal information about this

23 example?

24 A. Yes.

25 Q. Would you say that there were similar decisions in other brigades'

Page 16268

1 decisions that you were unfamiliar of, that you weren't aware of?

2 A. Given the fact that there was a decree law which provided for all

3 the unit commands to set up such special military courts, I believe that

4 there may have been such situations in other units. I spoke only about

5 this case that I was aware of.

6 Q. Yesterday, in response to my learned friend's question about

7 interviews and other technicalities, I would like to ask you something

8 else about interviews. An investigative judge, when interviewing a

9 suspect, and then the president of the Chamber when trying such suspect,

10 do they inform the suspect that they have to tell the truth?

11 A. In keeping with the provisions on the Law on Criminal Procedure

12 that that we used, the investigative judge had to do that only with

13 witnesses. A suspect or an accused was entitled to his defence, was

14 entitled to answer questions, or could opt for silence. An accused or a

15 suspect could not be warned about having to tell the truth. This did not

16 exist.

17 Q. If a suspect or an accused did not tell the truth, were they

18 punishable by law for perjury?

19 A. No.

20 Q. Yesterday, my learned friend asked you something about the case of

21 Dusina, and you said that you received that case later on according to the

22 rules of the road, and that the case arrived from the military court in

23 Travnik with a seat in Vitez, which is the body under the control of the

24 HVO, and this arrived in your court via The Hague Tribunal.

25 A. Yes.

Page 16269












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Page 16270

1 Q. When you got hold of this case as an investigative judge, tell me,

2 please, did you obtain all the evidence that the military district

3 prosecutor had in 1993, and did you include all this evidence in the file?

4 A. When we're talking about the Dusina case, I remember that I

5 received this case in 2002, and in this case I found evidence that was

6 collected in the course of 1994 and 1995, when the request for

7 investigation had been filed. In other words, I believe that the security

8 organs collected this evidence in the territory under the control of the

9 HVO subsequently, and those were mostly statements of the persons who were

10 involved immediately and directly in that event.

11 Later on, I learned that these persons had fled to Busovaca,

12 Kiseljak, or Vitez after the events. They were not accessible either to

13 the military security of the 3rd Corps or the judiciary in Zenica or the

14 law enforcement bodies in Zenica. Even if the proceedings had been

15 instituted, these persons were not accessible. All the events, all the

16 evidence of the crime was collected subsequently, in 1994 and 1995, and as

17 far as I can remember, this event took place in January 1993.

18 Q. In January 1993, your colleagues, judges on duty or investigative

19 judges who went to the place where the bodies had been brought to, did

20 they have an opportunity to take statements from the persons who gave

21 their statements subsequently in the territory which was not under the

22 control of the BiH army?

23 A. In -- during that period of time, I was the secretary of the

24 district military prosecutor in Doboj seated in Tesanj. I don't have any

25 immediate information about that. However, through the statements I took

Page 16271

1 later on as an investigative judge in 2002 and 2003, I learned that all

2 the participants in the event, and the victims of that event on that same

3 day, the day before, the day later left the area and went to Busovaca,

4 Vitez, Kiseljak, and other areas under the control of the HVO.

5 My conclusion, thus, was that my colleagues who worked on that

6 case were not in a position to find them, even if they looked for them.

7 Whether they looked for them or not, I don't know. They can testify to

8 that.

9 Q. Can the witness be provided with DH258, 259, DH260, DH26 --

10 JUDGE ANTONETTI: [Interpretation] Just a moment, please. We will

11 do that after the break, because it is half past ten.

12 We will now adjourn, and we will resume at five to eleven.

13 --- Recess taken at 10.29 a.m.

14 --- On resuming at 10.56 a.m.

15 JUDGE ANTONETTI: [Interpretation] We shall now resume, and I will

16 give the floor to the Defence.

17 MS. RESIDOVIC: [Interpretation] Just for the transcript,

18 Mr. President, I would like to repeat the number of the documents that

19 should be given to the witness. I believe that they have already been

20 prepared. Those are DH258, DH259, DH260, DH261, and DH156, document

21 number 3.

22 One of these documents, Mr. President, has been shown to a witness

23 who testified under protective measures, and that is why I would ask

24 questions arising from this document in a private session.

25 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, can we please go

Page 16272

1 into private session.

2 [Private session]

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 16273











11 Pages 16273-16282 redacted. Private session.















Page 16283

1 Mr. Registrar.

2 [Open session]

3 THE REGISTRAR: [Interpretation] We're back in open session,

4 Mr. President.

5 JUDGE ANTONETTI: [Interpretation] Now that we're in open session,

6 I will give the floor to the Defence again.

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

8 concludes my re-examination of the witness.

9 JUDGE ANTONETTI: [Interpretation] Thank you. I will now give the

10 floor to Mr. Kubura's Defence team in case they have additional questions

11 for this witness.

12 MR. IBRISIMOVIC: [Interpretation] Mr. President, we have no

13 further questions for this witness. Thank you.

14 JUDGE ANTONETTI: [Interpretation] The Judges now have some

15 questions they would like to put to the witness. Judge Swart will start

16 putting his questions to the witness first.

17 Questioned by the Court:

18 JUDGE SWART: Witness, I have a few questions to put to you on the

19 basis of what you've said, and most of these questions have to do with

20 existing legislation at the time you were an investigating judge in 1993.

21 Yesterday, you made a distinction between, on the one hand, war

22 crimes and, on the other hand, crimes committed in time of war, and what

23 you said about the distinction corresponds, I believe, with what earlier

24 in this week your former colleague Veseljak also told us. And I

25 understood from your testimony and also the testimony of Veseljak that the

Page 16284

1 category of crimes committed in time of war or when a war is imminent,

2 danger of war is imminent was an important category for you and your

3 colleagues.

4 Now, I've looked at the Criminal Code for Bosnia that we have, and

5 this is DH338 exhibit, but I cannot find a reference to a special category

6 of crimes committed in time of war or in circumstances making it likely

7 that a war is imminent. But this may be due to the fact that our copy of

8 the Criminal Code dates from an earlier time.

9 My first question to you is: Do you know or could you tell us

10 when for the first time a Criminal Code was adopted in Bosnia?

11 A. As far as criminal legislation in Bosnia-Herzegovina is concerned,

12 we should go back to the time when Bosnia and Herzegovina became an

13 independent and sovereign state recognised by a certain number of states

14 in the world and recognised by the United Nations. In 1990 or, rather, in

15 1991, when Bosnia became independent, and on the 1st of March, 1992,

16 Bosnia-Herzegovina officially declared its independence and became an

17 independent state. Immediately after that event, in April 1992 war broke

18 out. Aggression was committed against the state of Bosnia and

19 Herzegovina, and an imminent threat of war was declared, and war was

20 declared in Bosnia and Herzegovina. I think that was in -- at the

21 beginning of June 1992. At the time, the Presidency of Bosnia and

22 Herzegovina, finding itself in such a situation, issued decrees and

23 adopted the laws of the former SFRY. And as of that time, these laws were

24 called the laws of the Republic of Bosnia and Herzegovina, but there is a

25 document or, rather, a decree law in which these laws adopted as the laws

Page 16285

1 of the state of Bosnia and Herzegovina.

2 In that decree, the presidency of Bosnia and Herzegovina also

3 adopted the criminal law and the Law on Criminal Procedure of the Republic

4 of Bosnia and Herzegovina. And as of June or July 1992, this law became

5 the official law of the Republic of Bosnia and Herzegovina, and all

6 regular and military courts in the Republic of Bosnia and Herzegovina

7 acted in accordance with that law.

8 This legislation was in force in the Republic of Bosnia and

9 Herzegovina up until November 1998, when a new Law on Criminal Procedure

10 was adopted and a new criminal law was adopted, but this time it didn't

11 concern the territory of the entire republic of Bosnia and Herzegovina.

12 There was a particular law and a particular law on criminal procedure for

13 the territory of the Federation of Bosnia and Herzegovina. The second

14 such law on the Law on Criminal Procedure and the criminal law -- a

15 different law existed for the territory of the -- Republika Srpska. And

16 the third type of law existed for the Brcko area.

17 Later, when the state court of Bosnia and Herzegovina was formed,

18 I think that was in March 2003, criminal law and the Law on Criminal

19 Procedure was adopted for the territory of Bosnia and Herzegovina as a

20 whole, but the federal law and the law for Republika Srpska and for the

21 Brcko area continued to be valid. They are still valid today. They were

22 valid up until the 1st of August, 2003, which is when a new criminal law

23 and Law on Criminal Procedure was adopted.

24 According to the new criminal law, the Federation of Bosnia and

25 Herzegovina, there were no provisions for war crimes, but such provisions

Page 16286

1 did exist in the state law applied by the state court of Bosnia and

2 Herzegovina. And we have all seen that that court will take over a number

3 of cases from this court, and these cases will be dealt with in Sarajevo.

4 JUDGE SWART: Thank you very much for this thorough overview of

5 developments. So you said that in July 1992, a Bosnian Criminal Code was

6 adopted, inspired maybe by the code of the former Republic of Yugoslavia.

7 Could you confirm that in November 1992, to be precise, on the

8 23rd of November, 1992, there was a decree law introducing a special

9 category of crimes, crimes committed in time of war or imminent danger of

10 war? Is that correct?

11 A. I didn't have an occasion to see such a decree, but it is possible

12 that exists. I did not have an opportunity to see it as a judge. I

13 applied the Law on Criminal Procedure and the penal code that were in

14 effect at that time and which had been adopted by the Republic of Bosnia

15 and Herzegovina from the former state of Yugoslavia.

16 It is possible that you're referring to the decree law by which

17 the -- there are so many crimes for which the penalties were increased.

18 For example, five years of imprisonment and for the majority of such

19 crimes even death penalty was envisaged.

20 For example, we had a situation during 1993 and 1994. The person

21 who committed an aggravated theft, if it only implies one litre of oil

22 which cost at that time 50 German marks in Bosnia-Herzegovina, for this

23 person to be sentenced to death because the value of the stolen goods was

24 more than 20 German marks. I believe that it was absurd at the time, but

25 that's what the situation was.

Page 16287

1 JUDGE SWART: That may -- that may very well be the decree I

2 meant. I was referring to something that was said -- appeared from the

3 testimony of your colleague -- your former colleague Veseljak, but I

4 haven't seen the decree myself, so I'm just asking.

5 I have another question not related to your testimony but to

6 criminal law in general. Is this also the decree, can you tell us

7 anything about it, on the basis of which the former chapter 16 of the

8 Yugoslavian code on international crimes was made applicable for the

9 Republic of Bosnia?

10 A. There was no such decree. There was only a decree by which the

11 Criminal Code of the former Yugoslavia was adopted as the Criminal Code of

12 the republic of Bosnia and Herzegovina. And in its chapter 16, there were

13 provisions for such crimes. I believe that it was from Article 141

14 onwards, amongst which was the war crime against the civilian population

15 that has been discussed in the course of the -- these two days. There was

16 no special decree by which only these crimes were adopted. There was only

17 a decree on the adoption of the entire laws.

18 JUDGE SWART: Thank you very much, because it is very hard for us

19 to assess what is this legal situation in the legislative field without

20 having all the documents.

21 I would now like to ask you to turn again to an exhibit that has

22 been discussed this morning and yesterday. That is number 3 of the

23 Prosecutor's collection. It is DH275, a report that you have been

24 commenting upon this morning already.

25 A. I have the document before me.

Page 16288

1 JUDGE SWART: Well, this is the report of 8 March 1994, and the

2 Exhibit number is DH275.

3 If you look at the first page, you will note that at a certain

4 point, an overview is given of specific cases. It starts with 27

5 individuals were convicted of the crime of unauthorised leave and

6 desertion from the armed forces, and then you get other categories of

7 crimes and other numbers.

8 What is interesting for me at this moment is that this text says

9 Article 217, 217, and punishable under Article 226 of the Criminal Code of

10 the Socialist Federal Republic of Yugoslavia, so the former code. So

11 could you confirm that Article 26 of the former code of the former

12 Yugoslavia is a provision on crimes in times of war or imminent danger of

13 war? Do you remember that?

14 A. Yes, I remember this very well. This Article 226 is a provision

15 which says that these are the grounds based on which only a military

16 person who commits this crime from Article 217 can be punished only during

17 the war or the imminent state of war. This means that if such a person is

18 prosecuted pursuant to Rule 226 of this code, that the sentence is much

19 more stringent than it would be in the case if the military person were

20 prosecuted for the same crime in the time of peace, because this crime can

21 be committed in the time of peace but also in the time of war and the

22 imminent threat of war.

23 Obviously, the -- it was absolutely justified to believe that it

24 is very much harder to commit such a crime during the war and the

25 consequences are much harsher during the war than in peace. A person

Page 16289

1 abandons his unit in the peacetime, it is easy to find him. There are no

2 consequences. However, if such a person abandons his unit in the times of

3 war that means one rifle less for defence of the country. That's why the

4 punishment is much harsher and that's why the Article 226 applies in these

5 cases.

6 JUDGE SWART: Thank you. I have been looking at a copy of Article

7 226 which I happened to find. Could you also confirm that this provision,

8 Rule 226, as you said, is concerned about so-called crimes against public

9 order. Specific category of crimes running from Article 198 to Article

10 225.

11 A. In practice, I did not have such cases. I didn't have anybody who

12 was prosecuted for this type of crime on these grounds, and I believe that

13 this is not provided for by the law. At least that's what I believe.

14 JUDGE SWART: I'm simply asking whether you remember whether this

15 Article 226 of the code of the former republic was limited to crimes

16 against the public order or had a more wider scope.

17 A. No, I don't remember.

18 JUDGE SWART: Let's go back to the documents if -- you have before

19 it. You see that list starts with a reference to Article 217 and then

20 refers to Article 226 of the Criminal Code of the former Yugoslavia.

21 I'm inclined to think that Article 217 refers to the Bosnian code,

22 and Article 226 to the code of the former Yugoslavia. Is that correct, or

23 am I mistaken?

24 A. I'm sorry. I have to say that you are wrong, although I'm younger

25 and you are much more experienced. This is the same law.

Page 16290

1 JUDGE SWART: But you are the expert and I am an outsider, so I

2 accept what you are saying.

3 Turn, then, to the next category. You see that some individuals

4 were convicted for the crime of failure to respond to call-up and evasion

5 of military service referred to in Article 214 and punishable under,

6 again, Article 226 of the code of the former Yugoslavia. So there are two

7 references to Article 226 of the code of the former Yugoslavia. And if

8 you go down to the next category, other crimes against the armed forces,

9 ten individuals have been convicted of other crimes against the armed

10 forces, there is no reference any more to Article 226, and the same goes

11 for the following categories. Can you follow me in what I'm saying?

12 A. Yes, I can.

13 JUDGE SWART: So could you please explain to me why in the first

14 two categories there is a reference to Article 226 and not in the other

15 categories?

16 A. This is just a legal solution. This Article 226 provides for more

17 stringent punishment for a certain number of crimes, and it says expressly

18 in this article what crimes can be punished more severely if it was

19 committed during the war or the imminent threat of war. The article

20 itself lists the crimes for which there may be more stringent penalties,

21 and only in the cases of these crimes this can be done. This is what the

22 law provides for, and this is what we applied.

23 You have noticed very well that the following article, 214, is in

24 connection with Article 226. These crimes may be committed only by the

25 civilians, because these are persons which -- who were sent the call-up

Page 16291

1 papers, and they refused to receive those call-up papers, or the person

2 went into hiding in order to evade military service. And in this case --

3 in these cases, the military court was allowed to try civilians.

4 JUDGE SWART: Well, thank you. If you look further and you come

5 to murder, for instance. Article 36 of the code of the Republic of Bosnia

6 and Herzegovina. There there is no reference to Article 226 of the code

7 of the former Yugoslavia, although I could imagine that murder can also be

8 committed in time of war, of course. So -- and the same goes for

9 aggravated theft or for manslaughter.

10 So could you please explain me the situation with regard to these

11 three categories?

12 A. This is just the way it was done by the legislator in the former

13 Republic of Yugoslavia who deemed that a certain number of crimes should

14 be treated in one way in a times of peace and in a different way in times

15 of war or imminent threat of war. Why murder, robbery, and aggravated

16 robbery were listed under the category of crimes for -- which are equally

17 treated in the war and in the time -- in the peace, I don't know. You

18 know that murder is the same thing in the times of war as well as in the

19 times of peace. The same goes for the robbery.

20 I've already spoken about the crimes that fall under Article 226

21 of the Criminal Code. It is only up to the legislator to do that, and the

22 judges and prosecutors could not react to that and say that, for example,

23 in the times of war and imminent threat of war the Article 226 could be

24 applied to other crimes because this was simply not envisaged by the law.

25 JUDGE SWART: Now, you said yesterday, and your colleague, your

Page 16292

1 former colleague, Veseljak, said, and I have no doubt to what you were

2 saying, but you both said that a number of crimes committed in time of war

3 could be more severely punished than when committed not in time of war.

4 And your colleague -- your former colleague Veseljak also said this is for

5 instance also the same for cases of aggravated theft.

6 If you look at a documents, on the second page of the B/C/S

7 version you see a reference to Article 148, paragraph 3, of the Bosnian

8 code, and Article 148 is the provision on aggravated threat, isn't it?

9 So I'm looking for a legal provision enabling you as a judge to

10 impose heavier punishment than would be provided -- would be possible in

11 time of peace. And maybe the secret is in paragraph 3 of -- paragraph 3

12 of Article 148.

13 I've been looking to Article 148, but I have only two sections, 1

14 and 2, and number 3 is missing. So can you tell us what the third

15 paragraph of Article 148 contains? Is that a paragraph that increases the

16 punishment, the minimum and the maximum punishment, in time of war or is

17 it something different?

18 A. Unfortunately, I don't have the code before me, and I can't see

19 the article. I believe that paragraph 3 was added subsequently when the

20 existing law was amended. However, this paragraph 3 doesn't mean that

21 this crime was committed during the times of war or imminent threat of

22 war. I believe that it is only about the modus operandi, and this is all

23 it contains. And why you believe that a heavier punishment could be

24 attached to this crime has to do with a decree dated November 1993 by

25 which the Presidency of Bosnia-Herzegovina took a certain group of crimes

Page 16293












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Page 16294

1 and placed it under a group of its own and increased penalties in view of

2 the war and the imminent threat of war.

3 Later on when peace came, these provisions were made null and

4 void. It was only during the war and the imminent threat of war that we

5 had this legal leap in the punishment policy. So it was increased by one

6 step higher.

7 JUDGE SWART: So may I conclude that there was a possibility to

8 punish offences like aggravated threat or murder or manslaughter or other

9 offences maybe with, let's say, a heavier penalty if committed in time of

10 war but on the basis of some piece of legislation that I myself have not

11 seen? Maybe the decree of November 1992 probably.

12 I come to my last question on the -- this document. You said this

13 morning that all these offences, murder, manslaughter, aggravated theft,

14 et cetera, could also be considered to be crimes against the civilian

15 population. And if you're using that expressions you imply may also be

16 considered to be war crimes or other international crimes, because that is

17 the formula used in chapter 16.

18 What do you mean when you say this, all these offences listed here

19 like murder, manslaughter, can also be considered to be crimes against the

20 civilian population? I was not quite able to understand what you meant to

21 say.

22 A. When answering that question put to me by the Defence, I provided

23 a clear answer. I said that if you correctly read the title of the

24 crime -- the text concerning the war crime against the civilian

25 population, you can see exactly in what manner or in what manners such a

Page 16295

1 crime can be committed.

2 Our criminal law treats all these acts as particular crimes which

3 can be prosecuted independently. So it's for the organs of Prosecution to

4 proceed on the basis of the evidence gathered, to proceed on the basis of

5 the material evidence and on the basis statements, and to determine

6 whether crime is murder or a war crime committed against the civilian

7 population.

8 Naturally, it is the court that finally decides about the nature

9 of the crime in its judgement.

10 JUDGE SWART: I understood you as saying in your comment on this

11 document that of course murder could be a crime against a civilian

12 population, manslaughter, theft also, but that you have to look at the

13 facts of the case in order to be able to conclude whether this is really

14 the case, while in this document they are not categorised as such, but

15 there may be a crime against the civilian population hidden behind -- in

16 the case. Is that correct?

17 A. Yes, that's correct. It's possible that a crime -- a war crime

18 against the civilian population may be concealed behind these acts, but

19 it's a matter for the organs of prosecution to decide how to treat a

20 certain situation, whether to treat a certain situation as a war crime or

21 as the crime of murder, aggravated robbery, persecution, or some other

22 crime covered by our criminal law. So it is for those participating in

23 the criminal case, those who have filed the criminal report. It's for the

24 competent prosecutor's office and for the court to decide how they'll

25 treat a given event, whether they will treat it as a war crime or as a

Page 16296

1 crime such as murder or some other crime.

2 JUDGE SWART: Thank you very much for your answers.

3 JUDGE ANTONETTI: [Interpretation] The Judge sitting to my right

4 has a question or two for you.

5 JUDGE RASAOZANANY: [Interpretation] Mr. Judge, you said that the

6 judge wasn't bound by the legal qualification provided by the prosecutor.

7 If in the course of a trial you determine that the offence that an

8 individual is charged with isn't a simple or ordinary crime but it is a

9 war crime and that the penalty is more severe for such a crime, what do

10 you do in such a case?

11 A. I think I have already answered that question when the Defence put

12 a question to me, but I'll repeat what I said.

13 The prosecutor isn't bound to follow the legal qualification of a

14 crime provided by a police when a criminal report was filed. And

15 similarly, the investigative judge is not bound to follow the legal

16 qualification provided by the prosecutor in the request for an

17 investigation. And similarly, the Chamber is not bound by the legal

18 qualification provided by the prosecutor in the indictment. The final

19 decision as to whether a certain act is to be treated as a war crime or as

20 an ordinary crime, the crime of murder or of aggravated robbery, et

21 cetera, the final decision is the Chamber's decision, and they shall state

22 the decision in their judgement.

23 The evidence in the course of the trial is assessed, and it's in

24 the course of the trial that the Chamber will decide whether to treat a

25 given act as a war crime or as an ordinary crime.

Page 16297

1 I should also like to point out that in times of war and when

2 there is an imminent threat of war, there was almost no difference in

3 prescribed sentences for war crimes and for other crimes. Even the death

4 penalty could be handed down for these crimes.

5 JUDGE RASAOZANANY: [Interpretation] What I would like to know is

6 the following: If establish that a war crime has been committed, do you

7 continue to consider yourself as competent or do you declare yourself to

8 be incompetent in the matter, not responsible for the matter?

9 A. The District Military Courts were competent to try cases of war

10 crimes in all situations. If they established that a war crime had been

11 committed, the District Military Court would try such cases. And I think

12 there's a report from the OTP of this Tribunal. And in the document that

13 I had before me yesterday, I think two or three judgements of the District

14 Military Court in Zenica mentioned, which concerned war crimes against the

15 civilian population. So the judges at that court did not avoid handing

16 down judgements for the most serious forms of such crimes. But that was

17 only when they were convinced of the fact that the individual had, in

18 fact, committed such a crime on the basis of the documents and the

19 evidence provided.

20 JUDGE RASAOZANANY: [Interpretation] Were there any cases where war

21 crimes were disqualified and treated as simple crimes while you were a

22 judge in Zenica?

23 A. As far as I can remember, the report that I drafted together with

24 the president of my court, I believe that the District Military Court in

25 Zenica in the course of its work had two or three judgements that

Page 16298

1 concerned war crimes. This concerned situations in the Batkovic camp in

2 Milena and the second situation concerned the territory of Vitez or

3 Busovaca, I think. And the third territory was in Zavidovici, but I'm not

4 sure. I'm not a hundred per cent sure about that, but I think there were

5 only two or three such judgements. But there is a precise record of this

6 in that document.

7 JUDGE RASAOZANANY: [Interpretation] Thank you.

8 JUDGE ANTONETTI: [Interpretation] As far as I am concerned, I

9 would like to go back to this legal question, because you have been asked

10 questions about the concept of a war crime.

11 Could you tell us how you define a war crime given that you have

12 said that in 2002 you were at the Cantonal Court and you were in charge of

13 investigating war crimes. So it appears that you are a real expert

14 because that's the work that you do. So could you tell us what was the

15 distinction that you made between ordinary crimes and war crimes when you

16 occupied your post from the year 2002? Could you explain to us what the

17 distinction was that you made at the time, and perhaps even now. Because

18 as you know, every offence has certain constitutive elements, and could

19 you provide us with some explanations.

20 A. I must tell you that while I was an investigative judge in the

21 regional court in Zenica, I never carried out investigations into war

22 crimes, into crimes under chapter 16 of that law. And when investigating

23 other crimes, I never found out that a war crime had been committed in any

24 sense, whereas in -- whereas from 2000 to 2003, I really did work as an

25 investigative judge. I was involved in war crimes.

Page 16299

1 However, there was an obstacle for investigative judges in the

2 period 2000 to 2003. There was a certain lack of independence when it

3 came to decision-making, because there were the Roman rules of the road

4 signed in February 1998 by Bosnia and Herzegovina, and all the signatories

5 of that agreement had stated that they would abide by those rules when it

6 came to processing war crimes that fell under chapter 16.

7 All the three signatories with regard to all the crimes that had

8 been treated as war crimes, all the three parties that had signed the

9 agreement had to provide, together with all the evidence -- they had to

10 provide the evidence to the OTP, and the OTP at The Hague Tribunal would

11 review all the material, all the evidence, and once the OTP states that

12 the crime is in fact a war crime, we are bound to respect such a decision,

13 and we could not react in any other way and say that the crime in question

14 was not a war crime. We had to accept and we still accept to this day the

15 fact that a war crime was committed.

16 The other case concerned Mr. Rizvic. The prosecutor's office in

17 Vitez treated the crime as a war crime. But when they submitted this case

18 file to the OTP, the Prosecutor established that a war crime had not been

19 committed but only the crime of ordinary murder. So it's quite possible

20 to move from the category of war crimes to the category ordinary crimes.

21 But similarly, an ordinary crime can be re-qualified as a war crime. It

22 all depends on the evidence gathered.

23 JUDGE ANTONETTI: [Interpretation] Very well. You haven't answered

24 my question, though, which was very precise. You're telling me that given

25 the rules of the road, it was the OTP at this Tribunal who would determine

Page 16300

1 whether a war crime had been committed or not. This seems to imply that

2 it's the Prosecutor of this Tribunal who determines what a war crime is.

3 And we could infer from what you have said that in fact you were bound by

4 such decisions.

5 You mentioned another case, the local prosecutor, with regard to

6 the Rizvic case, had to deal with a crime which he had qualified or which

7 might have been qualified as a war crime, but this was not pursued as a

8 war crime. I must say that I still feel that I haven't understood you

9 completely and I have to put to you another question as a result.

10 The Judge to my right asked you something about competence a few

11 minutes ago. When an investigative judge has a case before him, he first

12 has to determine whether in fact he is competent. Could you provide me

13 with any further clarifications? Is it the role of the judge, of the

14 investigative judge, to first determine whether he is legally competent to

15 investigate a given case?

16 A. Naturally the investigative judge, just like the Chamber later on

17 has to ensure whether he is competent to deal with certain criminal cases.

18 He has to determine whether he has such competence.

19 JUDGE ANTONETTI: [Interpretation] In October 1993, you were an

20 investigative judge. Let's imagine the following scenario: The

21 prosecutor refers a case to you, and reference is made to Article 142 of

22 the former Criminal Code of Yugoslavia. Would you have been competent?

23 Would you have been able to investigate the case?

24 A. Yes.

25 JUDGE ANTONETTI: [Interpretation] If the prosecutor had referred

Page 16301

1 to Article 142, you would have been competent.

2 Could you please have a look at the following document, and

3 perhaps this will enable you to provide us with further information. Have

4 a look at Prosecutor's document under tab 1, P327, which is a decree law

5 on district military courts. Have a look at Article 7, please, which

6 apparently defines the competence or defines jurisdiction. This decree

7 law was published in the Gazette dated the 13th of August, 1992.

8 In the English version, which is the translation of the B/C/S text

9 you have, 00609199, there is a list of offences. I see Article 114, 118,

10 119, 121, 122, 123, 124, 125, 126, 127, 128, 129, 135, 136, and then 201

11 to 239. With Article 142.

12 JUDGE ANTONETTI: [Interpretation] In This decree there is no

13 Article 142. Although if you read it, if you read provision 7, it states

14 the district military courts try civilians. Military personnel is not

15 mentioned. It is implied that the district military court is competent

16 district military court is competent for all the crimes envisaged by the

17 law. As for the civilian persons, the military court is only competent to

18 try those crimes which were envisaged in paragraph 102 of this decree on

19 the establishment of the district military courts.

20 JUDGE ANTONETTI: [Interpretation] Very well. So you're saying

21 that this Article 7 gives authority to the military court to judge and

22 hand down sentences to civilians who committed crimes and as far as the

23 Article 142 is concerned, if a crime has been committed by a military

24 person, it would be in your jurisdiction. It would be your competence.

25 Very well, then.

Page 16302

1 Let's imagine -- I am not referring to any particular case, but

2 let's imagine that there's a case X that you were referred, and the

3 prosecutor qualified the crime as a normal, ordinary crime, as a result of

4 his investigation. And you, as an investigative judge, you read the

5 documents, you inform yourself of the circumstances, and you realise that

6 it was actually a war crime that is based on Article 142 and not on any

7 other article. What would you do in such a hypothetical case? What would

8 you do?

9 A. If that is the situation, my duty as an investigative judge would

10 be to call the suspect and establish whether he is a civilian or a

11 military, and that's how I will determine my substantive competence and

12 see whether I can be in charge of the procedure if the suspect is a

13 civilian. This would determine my decision.

14 However, in your hypothetical situation, if I determine that the

15 suspect is a military person who had committed a crime, then it would be

16 the military court that would be in charge. I will take a statement from

17 this suspect, and then I will issue a decision on the investigation of a

18 war crime, because based on the material submitted to me by the prosecutor

19 and based on the suspect's statements, I can conclude, as you say, that

20 the crime involved is a war crime rather than a simple murder. So the law

21 does allow the investigative judge a possibility to channel his

22 investigation towards a different type of crime.

23 JUDGE ANTONETTI: [Interpretation] So if you channel this

24 investigation towards a different crime, that is a crime of war, would the

25 prosecutor be obliged to follow that or would he not be obliged to follow

Page 16303

1 your ruling?

2 A. Once I issue a ruling on the investigation, all the interested

3 parties in the procedure can appeal that decision, both the prosecutor and

4 the Defence. If they are unhappy about the situation, they will file an

5 appeal, and a final decision on the appeal will be brought by a

6 three-member panel of judges of my court.

7 JUDGE ANTONETTI: [Interpretation] If a case is referred to the

8 Tribunal with the -- under the qualification of a common law procedure and

9 the procedure before the Tribunal shows that in reality the case

10 constitutes not an ordinary crime but a crime of war, a war crime, what

11 can the Tribunal then do, according to you?

12 A. I believe that I've already explained what an investigative judge

13 can do. Now, as for the panel and what the panel can do, I believe that

14 this is a question that you should have put to my colleague Veseljak who

15 was here before me, because I did not take part in procedures. But there

16 is a legal possibility given to the panel, which is to review all the

17 facts and hand down the judgement and the judgement can be even for a war

18 crime if they establish that indeed a war crime has been committed.

19 JUDGE ANTONETTI: [Interpretation] Can you please look at document

20 under tab 6, DH54. This is the Official Gazette on the procedure. And go

21 to -- go to page 97 in English, and in your language, in your version,

22 this is Article 348, and see what the sentences are. 348.

23 A. I apologise. You have to tell me what number it is among the

24 Defence exhibits.

25 JUDGE ANTONETTI: [Interpretation] This is tab 6, and documents --

Page 16304

1 document was provided to you by the Prosecution, but the exhibit was

2 originally provided for by the Defence. In your language you have a copy

3 of all these articles.

4 Article 348 is -- is on page 191 of this document. Look at the

5 Prosecution exhibits, Prosecution exhibits, to avoid any confusion. At

6 tab 6 you will find this document, and in your language the page is 191.

7 The pages are numbered. Have you found it?

8 A. I apologise. I thought you wanted me to look through the Defence

9 exhibits.

10 JUDGE ANTONETTI: [Interpretation] Can you please read Article 348,

11 number 1 and number 2. Can you read in your language.

12 A. "Types of verdicts, Article 348. The verdict shall reject the

13 charge, acquit the defendant of the charge or declare him guilty. If the

14 charge covers several criminal acts, the verdict shall declare for each of

15 them whether the charge is rejected or whether the defendant is acquitted

16 of the charge or declared guilty".

17 This Article 348 that I've just read out in its title says "types

18 of verdicts." Above that you have the types of verdicts that the court

19 may hand down after the trial to any individual, and the verdict may be --

20 and the verdict of rejecting the charge is mentioned in Article 349, and

21 the situations are listed in which the charges are rejected. The

22 acquittal can be found in some subsequent article. I don't know which

23 one. And there is also a verdict of proclaiming the individual guilty if

24 that is the finding of the court.

25 JUDGE ANTONETTI: [Interpretation] Can you please read Article 349.

Page 16305












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Page 16306

1 A. "The court shall pronounce a verdict reject being the charge in

2 the following cases: If the court didn't have competent jurisdiction with

3 respect to subject matter to pronounce the verdict."

4 JUDGE ANTONETTI: [Interpretation] This article, let us suppose

5 that the court has a case which is qualified as a simple crime, and if the

6 court believes that it was a war crime, at that moment will they be able

7 to hand down a competent decision? And would they have the last say

8 because they are a competent court, which is provided for by Article 349?

9 A. In practice, such situations are not common, but they are not

10 impossible. There were such situations. I have already said that the

11 court, throughout the entire proceedings, has to be vigilant of its

12 competence, both substantive and territorial competence. And when the

13 court finds that it is not competent to try a certain case and if the

14 trial is ongoing when the hearings are under way, in such a situation the

15 court will hand down a judgement by which the charges are rejected, which

16 doesn't mean that the case is closed.

17 This court did not hand down the judgement on the substance of the

18 case but only on its competence. And after that, this case is referred to

19 the competent court which will continue the proceedings as the competent,

20 the substantially -- are the court with substantive competence.

21 JUDGE ANTONETTI: [Interpretation] Let's move on to the case

22 Hakanovic, and this was provided to you among the Defence exhibits. As

23 far as we could understand from your words, in the year 2002, you were in

24 charge to investigate this file. When did you complete that? When did

25 you complete this case?

Page 16307

1 A. If I understand the translation well, the word was Harkanovic, but

2 I believe that you said Hakanovic, Edin Hakanovic, in the Dusina case.

3 I've already mentioned that I'm familiar with this case. I received it in

4 the year 2002, and I can say that in that case we acted in keeping with

5 the provisions of the rules of the road. The complete case was looked at

6 by The Hague Tribunal and Hakanovic's case was classified as category A.

7 All the other persons were classified as category B.

8 I don't know whether I should explain that, but I believe that it

9 would be good for me to say that the case Hakanovic is in category A

10 because the Prosecutor of this Tribunal, when reviewing the collected

11 evidence, concluded that based on this evidence, there is ample evidence

12 to conclude that this gentleman committed a war crime against the civilian

13 population as described in the request for the investigation.

14 As for the other reported persons, I believe that there is some

15 ten or 15 of them, I'm not sure, the Prosecutor found that based on the

16 evidence it may not be concluded that these people committed the crimes

17 they are charged with and that's why he committed them under category B.

18 In other words, the local judiciary do not have the competence to process

19 such persons for war crimes or any other crimes that are provided for by

20 chapter 16.

21 JUDGE ANTONETTI: [Interpretation] So this Edin Hakanovic who is

22 also a category A case he was tried or is his trial pending as far as you

23 know? What information do you have about the status of these proceedings?

24 Can you provide us with details?

25 A. First of all, I have to apologise to you. I did not provide you

Page 16308

1 with a complete answer. You have already asked me whether this case is

2 completed.

3 I, as the investigative judge, completed this case in the course

4 of 2003 before the new law on criminal proceedings in the Federation of

5 Bosnia and Herzegovina came into effect. The cantonal prosecutor's office

6 in Zenica issued an indictment against Mr. Hakanovic. This indictment has

7 legal effect, and it -- the trial has been ongoing for over a here in the

8 cantonal court of Zenica. In other words, the trial is still ongoing.

9 The sentence has not been handed down, the person has not been acquitted

10 or proclaimed guilty. This is something we should still see happen.

11 JUDGE ANTONETTI: [Interpretation] If I understand you well, this

12 person is being tried. And is he at large? Has he been provisionally

13 released or has he been detained? Is he in detention?

14 A. Mr. Hakanovic, who is the subject of these proceedings is at

15 large. He has been removed from all his positions but he responds to the

16 calls of the court regularly and in that respect their no hindrances to

17 the conduct ever this trail.

18 JUDGE ANTONETTI: [Interpretation] It is now half past twelve. We

19 are going to take a break to allow you to take a short rest, and after

20 that I'm going to give the floor to the -- both parties to put their

21 questions arising from the Judges' questions.

22 We're going to resume at about five to one.

23 --- Recess taken at 12.29 p.m.

24 --- On resuming at 12.57 p.m.

25 JUDGE ANTONETTI: [Interpretation] We'll now resume, and I give the

Page 16309

1 floor to the Prosecution to put additional questions based on the Judges'

2 questions.

3 Further cross-examination by Mr. Neuner:

4 Q. Good afternoon. I want to start with the decree which enabled

5 heavier punishments for ordinary crimes. Can you please confirm that

6 this decree was issued in November 1993?

7 A. I can't say for sure, but I think that that is the decree in

8 question.

9 Q. And at the time when it came in force, certain crimes had been

10 committed, certainly, but weren't fully investigated.

11 MR. NEUNER: I see my learned friend.

12 JUDGE ANTONETTI: [Interpretation] I'll give the floor to the

13 Defence.

14 MS. RESIDOVIC: [Interpretation] Mr. President, I don't know

15 whether my learned colleague has made a mistake or wanted to say something

16 else. Judge Swart referred to the decree of 1992, which the witness has

17 already confirmed, and now my colleague mentioned a decree from 1993. I

18 don't know whether that was a mistake or perhaps the Prosecutor is aware

19 of the existence of some other decree.

20 JUDGE ANTONETTI: [Interpretation] Very well. Could the

21 Prosecution clarify this issue that concerns the dates of the decree.

22 MR. NEUNER: That was my intention, because in the transcript

23 which covered the conversation -- or the questions by Judge Swart, it was

24 sometimes 1992 and sometimes 1993.

25 Q. Can I just ask you to clarify: Were there two decrees relating to

Page 16310

1 the increasing of punishments, one in 1992 and a second one, a subsequent

2 one, in 1993?

3 A. No. There was just the decree from 1992, and I believe that 1993

4 has been mentioned because of my arrival at the court. But there was only

5 one decree, that is certain, the decree of November 1992. I've already

6 said that. I don't know whether it was issued in November. But in any

7 event, it's the decree of 1992.

8 Q. Thank you for clarifying. Can you please look again at DH275.

9 This is in the Prosecution exhibits, tab number 3.

10 Judge Swart asked you something about the categories of crimes

11 listed here, which were dealt with by the District Military Court in

12 Zenica from October 1993 until March 1994. If you look, please, again at

13 the categories.

14 The Prosecution noted that -- noticed that there are many of these

15 categories relating to crimes against the army. I'm referring to

16 unauthorised leave and desertion. I'm referring to failure to respond to

17 call-ups. I'm referring to crimes against the armed forces mentioned.

18 I'm referring to abuse of office or abuse of powers.

19 If you look back now on the period 1993/1994, can you confirm by

20 looking at this document that a significant number of individuals were

21 investigated or tried relating to crimes against the army by the Zenica

22 District Military Court?

23 A. Yes. As I have already said, I believe that this document, this

24 report, is correct, and it was drafted on the basis of the evidence, the

25 records of the district military court in Zenica. In fact, the vast

Page 16311

1 majority of crimes were crimes against the armed forces committed by the

2 military and in certain cases by civilians, too, and this is something we

3 have already discussed.

4 Q. I want to talk now about the rules of the road procedure or

5 agreement you mentioned. Do you agree with me that the role of the Office

6 of the Prosecutor in the rules of the road agreement is only an advisory

7 role?

8 A. On the one hand, yes, it is an advisory role. But on the other

9 hand, given the way in which we interpret this on the basis of Bosnian

10 Herzegovinian law, all the signatories of the rules of the road strictly

11 adhere to these rules. And if the OTP from the International Tribunal

12 categorised a certain event as fully under category B, and if there's no

13 evidence to charge such an individual with such a crime, we respect such a

14 decision. If it's a crime that comes under category A, this decision is a

15 decision that we consider to be binding.

16 Q. I understand that you're talking about your perspective, but isn't

17 the procedure established by the rules of the road simply that the local

18 authorities are submitting case files to the Office of the Prosecutor here

19 at the ICTY, and the OTP doesn't make their own investigations based on

20 this submitted evidence but simply analyses what has been put together by

21 the local authorities?

22 A. Yes, quite right. What you say is quite correct. I at no point

23 said that the ICTY OTP investigated these cases. On the contrary. The

24 Prosecutor only examines the material provided, and it's on the basis of

25 that material alone that an assessment is made as to whether there are

Page 16312

1 grounds to prosecute a certain individual or not. The Prosecutor does not

2 conduct investigations of his own.

3 Q. So the test for the Prosecutor in determining whether the file

4 contains a war crime or contains not a war crime is simply one of

5 sufficiency of evidence, isn't it?

6 A. Naturally.

7 Q. In other words, when a war crime -- a potential war crimes file is

8 submitted to the Office of the Prosecutor, you mentioned the example of a

9 war crime of murder, the OTP would simply look whether the evidence

10 submitted is sufficient to prove a war crime. And I'm referring here to

11 not only the murder as such but the war crime of murder, whether, for

12 example, there's sufficient evidence of an armed conflict or sufficient

13 evidence of a nexus between the act and the armed conflict. So this is

14 the only -- these are the only elements the OTP at the Tribunal would look

15 for is, is there sufficient evidence for these elements, isn't it?

16 A. As I have said, the ICTY OTP acts on evidence collected by the

17 local judicial authorities and provided by the local judicial

18 authorities. That is the only material that they're provided with. And I

19 must say that the war crime of murder doesn't exist anywhere. There is a

20 certain manner in which the crime of murder can be committed, but there is

21 no such particular crime. Murder as a particular war crime does not

22 exist, I never said that.

23 Q. If the Prosecutor at the ICTY comes then based on the sufficiency

24 of the submitted evidence to the conclusion that the evidence is

25 insufficient to prove the war crime, the Prosecutor would simply issue a

Page 16313

1 letter to the local authorities, and this letter would contain reference

2 to the following effect: "The evidence is insufficient by international

3 standards to provide reasonable grounds that person X submitted serious

4 violations of international humanitarian law." And in addition to this,

5 the Prosecutor of the OTP would simply say if there is evidence that there

6 is no serious violation of international law but enough for a murder, the

7 Office of the Prosecutor would simply mention that there is a possibility

8 that this submitted incident can be indicted by the local authorities for

9 an ordinary murder, isn't it?

10 A. Yes. Your interpretation is quite correct. That is in fact the

11 content of the letter in which the Prosecutor informs the local judicial

12 authorities of the information he found in the case.

13 And finally, regardless of the fact that the ICTY Prosecutor might

14 establish that there is no evidence that a certain crime has been

15 committed, this does not mean that the Prosecutor in Bosnia and

16 Herzegovina has to halt the proceedings. He can continue to gather new

17 evidence that might serve to prove that such a crime had been committed,

18 but that is the competence of the local judicial authorities. It's not

19 the competence of this Prosecutor's office.

20 MR. NEUNER: Mr. President, I want to turn to my final question

21 relating to Dusina, which was mentioned several times.

22 Q. You talked also about the availability of evidence. You talked

23 about the investigations by the HVO. Were you aware that survivors of

24 Croatian origin or Bosnian Croat origin, survivors of the incident in

25 Dusina, were, among others, held at this Zenica KP Dom shortly after the

Page 16314

1 events in question so that they were available for the investigative

2 authorities of the RBiH for questioning?

3 A. I agree with what you have just said. However, with regard to the

4 facts that you have just mentioned, I only found about these facts after I

5 had launched an investigation into Mr. Hakanovic. I found out about it

6 through the statements of the injured parties, some of whom said that

7 certain individuals had been taken to Zenica, and they had imprisoned in

8 the KP Dom. But at the time, I will repeat what I already said, I wasn't

9 there. I was in Tesanj, and I don't know what actually happened at that

10 time.

11 Q. Thank you very much.

12 MR. NEUNER: The Prosecution has no further questions.

13 JUDGE ANTONETTI: [Interpretation] Thank you. Does Defence counsel

14 have any questions to put to the witness that arise from the Judges'

15 questions?

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

17 Mr. President, in order to clarify certain questions raised by all three

18 Judges, could we show the witness a document? And I would be grateful if

19 we could place the document on the ELMO. Could we show in document in

20 order to clarify some of the questions that the Judges have put to the

21 witness.

22 JUDGE ANTONETTI: [Interpretation] Very well. The Prosecution is

23 on its feet. Could you tell us what sort of document you want to show to

24 the witness? I believe I can guess, but I'd prefer you to tell me.

25 MS. RESIDOVIC: [Interpretation] I apologise. These official

Page 16315

1 Gazettes from the -- from Bosnia-Herzegovina, and Judge Swart and you

2 yourself, Mr. President, put some questions about this document to the

3 witness. I don't think that showing this document to the witness should

4 be a problem. And the Prosecution also raised such a question.

5 JUDGE ANTONETTI: [Interpretation] Yes. This would answer

6 Prosecution question.

7 Further examined by Ms. Residovic:

8 Q. Judge Ahmetovic, could you please look at the document that you

9 can now seen on your screen. I believe you can see the document on the

10 monitor.

11 JUDGE ANTONETTI: [Interpretation] Could the Defence assist us and

12 mention the number of the page on which Article 112 appears. Since we

13 don't understand the B/C/S language, we might have a problem. Or perhaps

14 the witness could read out the title of this article.

15 MS. RESIDOVIC: [Interpretation] Yes. I would just like the

16 witness to read out this decree law. Could he read the title out, and I

17 will then put my question to him.

18 Q. The number of the Official Gazette, the date of the Official

19 Gazette, and the name of the decree that was adopted at a time of war. So

20 could the witness please read out the title of the Official Gazette, when

21 was it issued, and could you read out the decree law on the application of

22 the Law on Criminal Procedures in a time of war and imminent threat of

23 war.

24 A. I don't know whether what you have on your monitor is the same

25 thing that I have on my monitor. I'll have a look at the document itself

Page 16316

1 because I can't see it on the screen.

2 MS. RESIDOVIC: [Interpretation] Could the document be moved so

3 that the Judges can see the document that you will be reading out. Yes,

4 that's the document. Could you please read it out. We can't see it now

5 yet again. A minute ago we could see it.

6 THE WITNESS: [Interpretation] I can tell you what I can see here.

7 This is the Official Gazette number 6 dated the 15th of June, 1992, and

8 you can see this in the upper left-hand corner. The number is 1174/92.

9 It's a decision of the president of the Presidency of Bosnia-Herzegovina.

10 Is that what you are referring to? Or perhaps I'm mistaken. Perhaps that

11 is not the document. I apologise.

12 MS. RESIDOVIC: [Interpretation]

13 Q. I apologise too. I don't have the document before me so I can't

14 guide you. Could you please look at the other page of the Gazette.

15 A. This is Official Gazette number 6/92. The date is the 15th of

16 June.

17 Q. The decree is under number 119. Could you put the document a

18 little up. It's the decree under number 119.

19 A. Yes, I can see the decree under number 119. It is a decree law on

20 application of the criminal law of the Republic of Bosnia and Herzegovina,

21 and the criminal law of the Socialist Federative Republic of Yugoslavia,

22 which was adopted as a republican law at a time of imminent threat of war

23 or at a time of war.

24 Q. Judge, could you please have a look at Article 2, and in

25 particular Articles 3, 4, 5, 6, and 7. Could you have a brief look at

Page 16317












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 16318

1 these articles and then answer the question. Is this the first law in

2 which the penalties adopted were made more severe in Bosnia and

3 Herzegovina in 1992?

4 A. Article 2 says that the trial, when handing down a sentence,

5 can -- it -- to a perpetrator of a crime can make the individual -- can

6 give the individual a work obligation.

7 Q. Could you please read out Article 7.

8 A. [In English] Okay. [Interpretation] "For crimes against official

9 and other duties for which according to the law a sentence of at least

10 five years has been prescribed, the perpetrator shall be punished with a

11 prison sentence of at least five years or with the death penalty. And if

12 according to the law a prison sentence of at least three years is

13 prescribed, the perpetrator shall be given a sentence of between three and

14 15 years."

15 Q. Could you please now have a look at the Official Gazette number 21

16 dated November 1992. It's on page 571. Page 571. Official Gazette

17 number 21. Could you turn it right around. Could you please read out the

18 title of this decree, and could you tell the Chamber the exact number of

19 the Official Gazette, the date when the Gazette was issued, and the title

20 of the decree that you are looking at right now.

21 A. Yes. This is Official Gazette of the Republic of Bosnia and

22 Herzegovina, number 21, dated the 23rd of November, 1992, issued on

23 Monday, and the decree is number 503. Its title is "A decree law on the

24 amendments of the decree law on applying the criminal law of the Republic

25 of Bosnia and Herzegovina and the criminal law of the Socialist Federative

Page 16319

1 Republic of Yugoslavia which was adopted as a republican law at a time of

2 an imminent threat of war or at a time of war."

3 Q. Please have a look at item 10 on the other page, and could you

4 read it out, please.

5 A. "A prison sentence of at least three years or the death penalty

6 shall be handed down for the perpetrators of the following crimes," and

7 then we have a list. "Aggravated theft and theft, Article 151, paragraph

8 2 of the criminal law of the Republic of Bosnia and Herzegovina. If the

9 aggravated theft or robbery was committed in abandoned or damaged

10 buildings, flats, or other abandoned or damaged premises, or during a

11 curfew, or if the aggravated theft or theft was perpetrated by a member of

12 the military."

13 And then "Serious cases of theft Article 148 of the criminal law

14 of the Republic of Bosnia and Herzegovina. If the theft was committed in

15 abandoned or damaged buildings, flats, or other abandoned or damaged

16 premises, or if the crime was committed when a curfew was

17 enforced or if a member of the police committed the crime." And then it

18 says: "Seizing motor vehicles [Article 153 of the RBiH criminal law].

19 If at least three motor vehicles were seized or seized by a member of the

20 military or a person who falsely identified himself as a member of the

21 military."

22 Q. Are these two decree laws the decrees you have mentioned in your

23 testimony which during the war and at times of the imminent threat of war

24 were applied on a number of thefts and other crimes and provided for the

25 penalty -- the death penalty, the same as is provided for war crimes?

Page 16320

1 A. Yes. These are the decrees in question.

2 Q. The Judges have asked you about your evaluation. When you do

3 that, whether you evaluate something is an ordinary crime or a war crime,

4 and you talked about your authorities as an investigative judge and later

5 on as a member of the panel of judges, and you have confirmed all this,

6 can you tell me now, what is it that a judge cannot change? What is a

7 judge bound by? Is he bound by the factual description or the

8 qualification that is given to this factual description, or is there any

9 other restriction in the work of a judge?

10 A. The restriction that exists for the investigating judge or the

11 panel that has a final say in determining the legal qualification is the

12 institute called Reformatio in Pelus. That is the ban to requalify the

13 act for the worst, at the detriment of the perpetrator with regard to what

14 was given as initial qualification. If the judge finds out that the crime

15 was even worse than previously thought, he cannot requalify that crime

16 without the prior consent of the prosecutor.

17 Q. If the facts point to the fact that the crime was even worse than

18 initially thought, can he describe -- can he change the factual

19 description without changing the qualification?

20 A. No.

21 Q. Can you please look at the Prosecutor's Exhibit that the

22 Presiding Judge has referred to. This is after number 6. Number 211, I

23 believe it was. I apologise. The page is 191.

24 If I understood you well, the court was bound by the facts

25 provided to them by the prosecutor. Could the court sentence another

Page 16321

1 person or did it have to be the person identified by the prosecutor?

2 A. Only for the person that was indicted. All the enactments

3 starting with the criminal report and the order to start criminal

4 proceedings have to contain the ID of the person who is tried. So this is

5 channeled strictly towards one person.

6 Q. You have already answered my question and the question was whether

7 it is the crime or the name of the crime that is being prosecuted.

8 I'm going to ask you whether the court may find the person not

9 guilty for the description of the crime, for the facts, or is he only

10 found guilty for the qualification which is Article 106, Article 142? The

11 person that has been indicted, what can he be found not guilty for, the

12 actions committed by that person or the qualification of that action

13 allegedly committed by him?

14 A. The person is found not guilty or the crime that he is charged

15 with, which means that there is -- it hasn't been established based on the

16 evidence that he committed the crime.

17 Q. You're talking about the action.

18 A. Yes, the action that he is charged with.

19 Q. When once the person is found not guilty of a crime, be it a

20 murder, and when this decision becomes legally binding, is there any other

21 court that can retry that person for the same acts under a different name

22 or a different qualification?

23 A. No. We're talking about the so-called res judicata, the thing

24 that has been adjudicated and the sentence has been handed down. There

25 could be a retrial for the same crime if the prosecutor obtains some new

Page 16322

1 evidence based on which he can prove that the crime was committed.

2 However, this is an exceptional situation.

3 Q. Can you please look at Article 346 of the code on criminal

4 procedure on the page that the Presiding Judge has already pointed you to?

5 These are the pages 190 and 191. Can you please read this article? It is

6 not long. Article 346?

7 A. "The verdict may pertain solely to the person accused and solely

8 to the criminal act which is the subject of the charge contained in the

9 indictment filed originally or as amended or expanded during the main

10 trial. The court shall not be bound by the recommendations of the

11 prosecutor concerning his legal qualification of the act." And we have

12 already discussed that.

13 Q. You have just answered my question. Is this the article, the

14 legal provision that speaks of the competences and restrictions of the

15 court when handing down their judgements?

16 A. Yes, it is.

17 Q. Below Article 346 there is a comment which results from the

18 jurisprudence. Can you please read the fourth paragraph of this comment?

19 Can you please read from the moment when the indictment is issued and so

20 on and so forth?

21 A. "From the moment the indictment is issued until the moment the

22 judgement is handed down, the court is not bound by the legal

23 qualification of the act that has been proposed by the prosecutor. The

24 court may establish that the act in question is more serious or than

25 proposed if that arises from the factual description in the indictment."

Page 16323

1 Q. Judge, whatever our law provided for and whatever our

2 jurisprudence provided for, is it expressed in this comment on the law on

3 criminal proceedings?

4 A. Of course, and we have already been over that ground.

5 Q. Thank you very much. With regard to the questions put to you by

6 the President of the Chamber, can you please look at document number 1 in

7 the Prosecutor's bundle. This is the decree law on district military

8 courts.

9 The Presiding Judge drew your attention to Article 7, and you said

10 that these were crimes for which civilian persons may be tried before this

11 court. You also added that the military personnel could be tried for any

12 crime before these courts. Did I understand you well?

13 A. Yes.

14 Q. Can you please read Article 6 of this decree law. It is on page

15 2. Do you have this decree?

16 A. Yes, I do. "District military courts shall try cases involving

17 criminal offences committed by military personnel and certain criminal

18 offences committed by other persons as stipulated by the present decree

19 law."

20 Q. Thank you. Is this provision of paragraph 1, Article 6, the

21 confirmation of what you have testified about, which is that military

22 courts try military personnel regardless of the crimes that has been

23 committed?

24 A. Yes. We have already said that.

25 Q. Judge, when it comes to the qualifications on a certain act by the

Page 16324

1 investigative judge or a panel of judges or the Supreme Court that has to

2 look at the qualifications ex officio and see whether the law has been

3 applied properly, is there any military body, the 3rd Corps, its units, or

4 its military police that may influence that part of the judge's work?

5 A. I believe that I've already answered that question several times.

6 Nobody, not the military police, not the command of the 3rd Corps had or

7 could have any influence on the decisions of the Military District Court

8 in Zenica.

9 Q. The Presiding Judge last asked you about the provisions of Article

10 3 -- just a moment. 349, especially paragraph 1, item 1 of this article,

11 describing the situation in which the court may reject the indictment when

12 the court establishes that it is not competent to try such a case.

13 You've already explained that. However, when we look at the

14 provisions of the law on military courts, would you say that the Trial

15 Chamber would be competent to try murders or war crimes committed by the

16 military personnel?

17 A. Yes.

18 Q. If during the course of trial the Trial Chamber established that

19 this murder or this war crime were not committed by the military person

20 but that it was, rather, committed by a civilian who was never a member of

21 the army, what would the court do in that case?

22 A. At the moment when this is established, Article 349, paragraph 1,

23 item 1, will be applied. A judgement will be handed down, and by that

24 judgement an indictment will be rejected. Once this judgement becomes --

25 comes into effect, the whole case will be referred to the territorially

Page 16325

1 competent civilian court, which will continue trying this person according

2 to the Law on Criminal Procedure.

3 Q. If I have understood you well, different qualification of a

4 certain act that is being prosecuted by the prosecutor would not have

5 anything to do with the competency of the court to reject the indictment.

6 It would only be the issue of its real competence, of its substantive

7 competence.

8 A. Yes, that is correct.

9 Q. When you evaluate whether certain act represents a crime or not in

10 the way this has been qualified in special provisions on war crimes, would

11 you then say that, for example, a theft, when somebody steals other

12 persons' property, would you as a judge take into account all the

13 circumstances in order to arrive at a decision on the nature of the crime?

14 Did you find it important to take into account the number of crimes, the

15 modus operandi, the attempt by the perpetrator and everything else that

16 was necessary to help you evaluate in every case whether an act

17 constituted one or the other act of crime?

18 A. Yes, precisely so. All the facts and all the circumstances had to

19 be taken into account, and only then was the judge able to decide whether

20 the act was one criminal act or another. And I think we have already

21 explained that a number of times.

22 Q. Finally, once you've valuated certain circumstances that will

23 result in the judge's opinion on the name or qualification of the crime,

24 and once you evaluated the motives, the intents, the plans, did the 3rd

25 Corps, the military police, or unit have any influence on that?

Page 16326

1 A. No, no, and no.

2 MS. RESIDOVIC: [Interpretation] I have no further questions,

3 Your Honour.

4 JUDGE ANTONETTI: [Interpretation] The other Defence team, any

5 re-examination?

6 MR. IBRISIMOVIC: [Interpretation] No additional questions,

7 Your Honour. Thank you.

8 JUDGE ANTONETTI: [Interpretation] Judge, your testimony is now

9 finished. You have testified over the course of two days. You have

10 answered all the questions that have been put to you by the Defence, by

11 the Prosecution, and by the judges.

12 On behalf of the Chamber, I would like to thank you for having

13 come to The Hague to testify. I'm also expressing my best wishes for a

14 happy journey back home and also the best wishes for your current

15 profession as a judge.

16 I'm going to ask the usher to accompany you out of the courtroom.

17 THE WITNESS: [Interpretation] I would like to thank all of you as

18 well.

19 [The witness withdrew]

20 JUDGE ANTONETTI: [Interpretation] We are now going to move into

21 private session, Mr. Usher.

22 [Private session]

23 (redacted)

24 (redacted)

25 (redacted)

Page 16327











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Page 16328











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Page 16329











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11 Page 16330 redacted. Private session.















Page 16331

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 --- Whereupon the hearing adjourned at 1.50 p.m.

14 To be reconvened on Friday, the 18th day of

15 February, 2005, at 9.00 a.m.