1 Thursday, 10 March 2005

2 [Open session]

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

4 [The accused entered court]

5 JUDGE AGIUS: Yes. Whenever you're ready to start, would you call

6 the case, please.

7 THE REGISTRAR: Good morning, Your Honours. Case number

8 IT-03-68-T, the Prosecutor versus Naser Oric.

9 JUDGE AGIUS: I thank you, madam.

10 Mr. Oric, are you receiving interpretation in your own language?

11 THE ACCUSED: [Interpretation] Good morning, Your Honours, ladies

12 and gentlemen. Yes, I can hear the translation, thank you.

13 JUDGE AGIUS: Thank you, and good morning to you. You may sit

14 down.

15 Appearances for the Prosecution.

16 MR. WUBBEN: Good morning, Your Honours, and good morning to the

17 Defence team. My name is Jan Wubben, lead counsel for the Prosecution,

18 together with co-counsel, Ms. Patricia Sellers, and our case manager, Ms.

19 Donnica Henry-Frijlink.

20 JUDGE AGIUS: I thank you, and good morning to you and your team.

21 Appearances for Naser Oric.

22 MR. JONES: Thank you. Good morning to everyone. My name is John

23 Jones, co-counsel. I appear on behalf of Naser Oric with Jasmina Cosic,

24 our lead assistant, and Geoff Roberts, our CaseMap manager.

25 JUDGE AGIUS: I thank you, Mr. Jones, and good morning to you and

1 your team.

2 Anything by way of preliminary before we bring in the witness?

3 MR. WUBBEN: Very short, Your Honour. To update you further

4 regarding the schedule of witnesses --

5 JUDGE AGIUS: Yes.

6 MR. WUBBEN: -- we provided a schedule on -- dated the 1st of

7 March, 2005.

8 JUDGE AGIUS: Yes.

9 MR. WUBBEN: Number 39, that witness should be rescheduled as it

10 included a projected date of the 24th of March.

11 JUDGE AGIUS: Yes.

12 MR. WUBBEN: And we would like to provide you and the other

13 parties with a new schedule, and we plan to do that tomorrow.

14 JUDGE AGIUS: Okay. I thank you, Mr. Wubben. The rest stands,

15 doesn't it?

16 MR. WUBBEN: Yes, Your Honour.

17 JUDGE AGIUS: All right, okay. I thank you. So let's get the

18 witness. I take it you're not going to take long, Ms. Sellers?

19 MS. SELLERS: Your Honour, I hope to conclude within a half hour.

20 JUDGE AGIUS: I thank you. I appreciate that.

21 [The witness entered court]

22 JUDGE AGIUS: Good morning, Judge Tankic.

23 THE WITNESS: [Interpretation] Good morning, Your Honours.

24 JUDGE AGIUS: Make yourself comfortable. Take a seat please, and

25 we are going to proceed with your testimony. You don't need to repeat the

1 solemn declaration, and I don't need to explain to you that it still

2 stands, of course. Ms. Sellers.

3 MS. SELLERS: Good morning, Mr. Tankic.

4 Your Honours, prior to proceeding, I just wanted to correct the

5 record. I understand that an ERN number was given yesterday that should

6 be 03615766, and on the record it would have been -- I would have stated

7 erroneously 03615767.

8 JUDGE AGIUS: Yes. You are right. I noticed that yesterday. And

9 I think there was also something wrong in the record when it came to the

10 corresponding page in English, whether it was 14 or 15. But in any case,

11 leave it. I think we know exactly what you were referring to on this

12 point.

13 MS. SELLERS: Thank you. I would now like to draw your attention

14 to document with ERN number 03648890. The document is not in the annex.

15 JUDGE AGIUS: Thank you.

16 WITNESS: IZO TANKIC [Resumed]

17 [Witness answered through interpreter]

18 Examined by Ms. Sellers: [Continued]

19 Q. Mr. Tankic, I would ask you to look at this document, please. Are

20 you familiar with this document, Mr. Tankic?

21 A. Yes.

22 Q. And was this document part of the archives of the High

23 Prosecutor's Office in Tuzla?

24 A. Yes.

25 Q. Did you give the original of this document to the Office of the

1 Prosecutor during proofing and hence a photocopy was made from your

2 original?

3 A. Yes.

4 Q. And did you then sign on the ERN page that concludes in 03648895?

5 Is that your signature?

6 A. These are my numbers and my signature, yes.

7 Q. Thank you. Would you please, then, inform the Trial Chamber, what

8 were the circumstances of the content of the document that we have before

9 us as it relates to the High Court or the district military court.

10 A. These are criminal charges against members of the

11 Bosnia-Herzegovina army from Srebrenica, charges raised by the security

12 station in Srebrenica, so by the civilian police. And the charges were

13 submitted to the higher prosecution in Tuzla in July 1993 for triple

14 murder.

15 Q. I would draw your attention to page 4 of the document in the

16 English translation, please, and the lower part of that page which refers

17 to enclosures or attachments to the document.

18 Mr. Tankic, I would ask you now: Those enclosures that appear to

19 include statements, official notes and other statements, is that normal

20 and proper procedure when conducting an investigation that relates to

21 charges of murder?

22 A. As I said yesterday, this was pretrial procedure carried out by

23 the police, so these are witnesses' statements and evidence, a drawing of

24 the place where the murders were committed, videotape, and so on.

25 Q. Now, was the proper form or venue for this type of investigation

1 and subsequent indictment/prosecution the High Court in Tuzla or the

2 district military court in Tuzla?

3 A. These criminal charges arrived by mistake to the higher

4 prosecution in Tuzla, and given the nature of the perpetrator, they were

5 submitted to the district military prosecution in August 1993.

6 Q. Thank you.

7 MS. SELLERS: Your Honour, I would ask for a P number for this

8 document and have it moved into evidence.

9 JUDGE AGIUS: So we have arrived at P50 ...?

10 THE REGISTRAR: 7, Your Honour, P507.

11 JUDGE AGIUS: So this document is being received -- tendered,

12 received, admitted and marked as Prosecution Exhibit P507.

13 MS. SELLERS: I would now ask that we look at annex page 17. The

14 ERN number would be 03615771. The P number is 505.

15 Q. Mr. Tankic, are you familiar with this document?

16 A. Yes, I am.

17 Q. Would you please tell the Trial Chamber the reason for the content

18 of this document.

19 A. This document is a request by the -- by the district military

20 prosecution to undertake an investigation against a member of the BiH

21 army, sent to the investigating judge of the military court. This is the

22 usual, normal form, where the prosecutor sends the request to the

23 investigating judge to undertake an investigation against a person. The

24 alleged crime here is murder.

25 Q. Mr. Tankic, I would ask you to turn to the last page of that

1 document, and to draw your attention to the paragraph that's preceded by

2 the sub-title "Statement of Reasons".

3 Mr. Tankic, is the reason that this request originated, was it

4 based upon information that came from the public security station in

5 Srebrenica?

6 A. Yes. In this case, also the security station, Srebrenica, filed

7 charges, and the district prosecutor acted accordingly.

8 Q. Does this document, from your knowledge, show that the district

9 prosecutor's office was functioning during the armed conflict and that

10 function included looking at investigative information from Srebrenica?

11 A. Yes, in this case.

12 Q. Your Honour, I would now like to move to another document. It's

13 part of P505 and I understand it is under Page 9 of the annex, ERN number

14 would be 03615762.

15 JUDGE AGIUS: I see the English -- in the English version it

16 starts at the bottom of page 10 and continues on page 11. Correct me if I

17 am wrong.

18 MS. SELLERS: Your Honour, I believe it starts midway through page

19 9 and concludes on page 10.

20 JUDGE AGIUS: That wouldn't correspond with what we have, because

21 on page 9 -- on page 9, if you look at more or less towards the middle of

22 the page, just above the words "the public prosecutor's office

23 Srebrenica", there is slash the page with ERN number 03615761A contains

24 the following and handwritten entries, and an illegible signature, the

25 date and then what as follows:

1 If you go to the next page, as you approach the bottom of the

2 page, about -- just above the last paragraph there, they have slash the

3 next page 03615762A, contains only the letter -- only the date, et cetera.

4 So I'm either missing 5762, which I don't see anywhere.

5 MS. SELLERS: Your Honour, I've been informed that that's a

6 mistake, the ERN number that appears midway through page 9 appears to

7 precede the document, but that the ERN number for that document is found

8 at the bottom of the document in the translation and that would be toward

9 the bottom one-third of page 10.

10 JUDGE AGIUS: Yes. It states next page 03615762A.

11 MS. SELLERS: Yes, Your Honour, we understand that actually the

12 English translation pertains to 03615762, is what is above that number.

13 JUDGE AGIUS: Well, I'll check. Oh, I see. I see. But anyway,

14 let's proceed.

15 MS. SELLERS: Certainly.

16 JUDGE AGIUS: I want to make sure that you know which document you

17 are referring the witness to, because I don't want any confusion. So

18 let's try to sort this out.

19 MS. SELLERS: Your Honour, when we go to the original B/C/S

20 document with the -- for those of us who have a very limited knowledge of

21 the language, when we look at the document, we see that in the upper

22 left-hand corner, about less than one-third, one quarter of the way down

23 the page, there is a series of numbers that appear to be handwritten. If

24 one would then look on page 9 of the annex, we see that that corresponds

25 with that series of handwritten numbers 4.995.

1 JUDGE AGIUS: But that basically means that on page 9 of the

2 English version, at the end towards the end of the first half of that

3 page, where we have the page with ERN number 03615761A, it should be

4 03615762.

5 MS. SELLERS: Yes, Your Honour,.

6 JUDGE AGIUS: I think that's the only --

7 MS. SELLERS: Yes Your Honour, I believe if there's been not a

8 mistake in the translation of the number, the ERN number should be at the

9 bottom of the document.

10 JUDGE AGIUS: No, no. Not even. What's missing is -- that is

11 correct because that refers to 5761A and 5761A indeed has the signature of

12 the witness, I assume, plus the date of 9/9/2004. So what's missing is

13 that between that two line paragraph or statement, and the next part where

14 it says the public prosecutor's office, we should have an insertion there,

15 the page with ERN number 5762 follows and then you start with the public

16 prosecutor, because then 5762 is what we have following on page 9 of the

17 English version.

18 So what we have is, Ms. Sellers, after the word -- the paragraph,

19 the page with ERN number 0361 contains the following handwritten entries

20 and illegible signature and the date 9/9/2004, there should be a new

21 paragraph saying: And the page with ERN number 03615762 contains the

22 following letter, or dispatch or whatever.

23 MS. SELLERS: Yes, Your Honour, I agree. Can we at least --

24 JUDGE AGIUS: Mr. Jones, did you follow me?

25 MR. JONES: Yes, yes, Your Honour. I do follow and in fact if

1 it's of any assistance on page 10 of 22, before the words "I left

2 Srebrenica as a displaced person", that's probably page 03615763 starting.

3 That's at least the note that I've made. So it's the same observation

4 that I believe you had that annotation it would be seen that the next page

5 from the B/C/S follows.

6 JUDGE AGIUS: Yes, exactly. Again you still -- you have missing

7 precisely another statement to the -- similar to the one I have just

8 mentioned, yes. Thank you, Mr. Jones.

9 MS. SELLERS: Thank you, Your Honours, and defence counsel. Do we

10 all see the correct B/C/S and English from which I will now ask the

11 witness?

12 Q. Mr. Tankic, thank you for your patience. I would ask you to look

13 at the document before you, the ERN number ending in 5762 and I would ask

14 you, are you familiar with this document?

15 A. Yes, I am.

16 Q. Would you explain to the Trial Chamber the origin and the reason

17 for the contents of this document.

18 A. This document was drafted by the Srebrenica prosecutor after

19 arriving in Tuzla having been expelled in August, 1995. This was a common

20 way to describe what she left behind in her office in Srebrenica, the sort

21 of situation that prevailed. This was forwarded to the republican

22 prosecutor in Sarajevo to the justice ministry of the Tuzla canton and of

23 the federation as well as to the municipal board of Srebrenica

24 municipality, which at the time was based in Tuzla.

25 Q. Mr. Tankic, if you notice the last paragraph on the first page it

1 starts with the public prosecutor's office in Srebrenica, started its

2 work. I would like to draw your attention to that paragraph. And in

3 particular, the second sentence where it says that the premises where the

4 prosecutor's office used to work, the basic court building Srebrenica were

5 inhabited by refugees who destroyed all the documents of the public

6 prosecutor's office.

7 Mr. Tankic the question I would like to ask you is that, if

8 documents were destroyed from the public prosecutor's office, would those

9 documents relate to documents that were prior to the arrival of the public

10 prosecutor in June 1993?

11 A. Yes. Prior to the arrival, I assume these are prewar documents

12 for the most part, belonging to the former prosecutor.

13 Q. Now, documents in the public prosecutor's office that would

14 pertain to cases that should have been sent to the High Court in Tuzla,

15 where you worked in 1992, would they have been part of the documents

16 possibly destroyed?

17 A. That strikes me as less likely. I assume that the refugees had

18 been on those premises right from the very beginning.

19 Q. Mr. Tankic, I would like to ask that between September 1992 until

20 June 1st 1993 when the Srebrenica public prosecutor arrived, where would

21 have been the proper place for any persons who wanted to convey

22 information to the military district prosecutor's office, where would have

23 been a proper place for them to address themselves?

24 A. The civilian or the military police in Srebrenica and they would

25 then forward this to the civilian prosecutor until as late as September

1 1992.

2 Q. And would that also have been the practice between September 1992

3 until June 1st 1993 when the civilian prosecutor arrived?

4 A. At this time it was possible also to file a report with the

5 civilian prosecutor in Srebrenica.

6 Q. That would be after June 1993?

7 A. Yes. 1st of June, 1993.

8 MS. SELLERS: Your Honour, I would ask that this -- this document

9 is already into evidence. I would like to move to the next one.

10 The next document is part of the annex, 03615764 is the ERN

11 number, and it's page 11 of the annex. It's on the ELMO. It is halfway

12 down page 11.

13 JUDGE AGIUS: So again we have the same story?

14 MS. SELLERS: Yes, Your Honour.

15 JUDGE AGIUS: Page 11, after the paragraph, the short two-line --

16 barely two-line paragraph, the next page 03655763A, we need to insert

17 another paragraph, next page, 03615764. Correct me if I'm wrong.

18 MS. SELLERS: No, Your Honours, I believe you have understood

19 quite clearly our situation. Can follow.

20 JUDGE AGIUS: Can you follow, Mr. Jones, or are you having

21 problems?

22 MR. JONES: No, I can follow.

23 JUDGE AGIUS: Okay, thank you.

24 MS. SELLERS:

25 Q. Mr. Tankic, I would ask you to look at this document, please.

1 JUDGE AGIUS: One moment.

2 [Trial Chamber and registrar confer]

3 JUDGE AGIUS: We have a technical problem.

4 [Microphone not activated]

5 JUDGE AGIUS: I'm sorry. We have a technical problem. It

6 shouldn't affect as such the proceedings, but it does affect the

7 transmission of proceedings. It does affect the proceedings only insofar

8 as -- if we try to put something on the ELMO, I think it will not reach

9 us, or something like that. Yes, what's happening is that if a document

10 is put on the ELMO, it does not show up on the monitor, so I can -- we can

11 only proceed with the consent of both of you and of the accused, of

12 course.

13 MS. SELLERS: Your Honour, I would also like to state that we're

14 unable at this time period to put the document in Sanction.

15 MR. JONES: We're happy to follow from hard copy.

16 JUDGE AGIUS: Is the accused happy to follow too?

17 MR. JONES: Yes. I did check with him briefly.

18 JUDGE AGIUS: Okay, thank you. All right. So let's proceed. In

19 the meantime, our men are doing what they can to try and fix the problem.

20 Yes, sorry for the interruption, Ms. Sellers. Please proceed.

21 MS. SELLERS:

22 Q. Mr. Tankic, I would like you to look at this document and please

23 tell the Trial Chamber your knowledge of the contents and the reason for

24 the document.

25 A. This is also a report from the Srebrenica prosecutor submitted to

1 the senior prosecutor in Tuzla upon her arrival in August 1995. She had,

2 in the meantime, been assigned to the basic public prosecutor's office in

3 Srebrenica, and that was why she drafted this report on the situation

4 concerning the public prosecutor's office in Srebrenica at the time she

5 was made to leave Srebrenica amid hostility.

6 Q. Yes, Mr. Tankic, I would draw your attention to the paragraph in

7 which she describes some of the conditions, the physical conditions, of

8 the premises of the prosecutor's office, where it talks about the lack of

9 some basic materials. Did this appear to be rather consistent through the

10 different reports that were forwarded to your offices?

11 A. Yes.

12 Q. I would also ask you to look further down that larger paragraph,

13 and particularly where it begins to say:

14 "Besides the task from its jurisdiction, the public prosecutor's

15 office followed, by order of the Republic, the public prosecutor's office

16 conducted the task of the high public prosecutor's office and the district

17 military prosecutor's office, since the majority of perpetrators were from

18 the RBiH army members."

19 Has this also been something that is consistent within the reports

20 that your office has received from the public prosecutor in Srebrenica?

21 A. Yes. As we said yesterday, all of these reports are consistent

22 with the law.

23 MS. SELLERS: Your Honour, I would like to pass on to the next

24 document.

25 JUDGE AGIUS: Please do.

1 MS. SELLERS: We remain in the annex number 5, ERN number

2 03615758.

3 Q. Mr. Tankic, once again, I would ask you to look at this document

4 and please tell the Trial Chamber its origins or the reasons for its

5 contents. Oh, I'm sorry, it's page 5 of the annex.

6 A. This is another report submitted to the high public prosecutor in

7 Tuzla by the Srebrenica prosecutor while she was still with the basic

8 public prosecutor's office in Tuzla. This report reflects the various

9 types of crimes committed between the 1st of June, 1993, and July 1995.

10 Q. If I could please draw your attention to subheading 2, where a

11 name of Ferid Mehmedovic appears. Within her capacity, would you

12 acknowledge that it appears that the criminal situation described here was

13 referred to the military district court in Tuzla?

14 A. Yes. This case was referred during the war to the district

15 military court in Tuzla. However, the case was never pursued in 1995 and

16 1996. Therefore, the cantonal prosecutor, at least for as long as I was

17 in the position, only completed this case as late as 2002.

18 Q. I would now ask you to look at subheading number 3, Sabit Begic.

19 And is that the same situation where the Srebrenica prosecutor referred or

20 handed the case over to the district military court in Tuzla?

21 A. Yes.

22 Q. Would you please draw your attention to subheading 6, where we

23 have Zuhirjet Omerovic, aka Beli. Is that a similar situation of the

24 Srebrenica prosecutor referring or handing the case over to the district

25 military court in Tuzla?

1 A. Yes. Certain investigative measures were taken later on.

2 Q. I would also draw your attention now, Mr. Tankic, to number 8, the

3 case of Pasan Mujic and ask you once again, did the Srebrenica prosecutor

4 refer or hand that case over to the district military court in Tuzla?

5 A. The same applies as to the previous case. Certain investigative

6 measures were taken. After that, the case was referred to the district

7 military court.

8 Q. And I would now like to draw your attention to the paragraph that

9 commences with "Aside from the above-named acts of murder, there were many

10 criminal reports..." After number 9 and number 10, it appears to be the

11 following paragraph.

12 In that paragraph, it states: "In cases where criminal acts had

13 been committed by members of the army of the Republic of BiH, we carried

14 out certain investigative actions and handed the cases over to the county

15 military court in Tuzla".

16 Would that be a reflection of what occurred in the cases that we

17 have just cited under number 2, 3, 6 and 8, paragraphs in this document?

18 A. Yes. This is precisely what we talked about yesterday, and these

19 eight cases were referred to the district military prosecutor in court.

20 Q. Thank you, Mr. Tankic.

21 MS. SELLERS: Your Honours, at this point I would like to offer up

22 a page of the dictionary, because I understand within the English version,

23 sometimes we have the word "county" mentioned and at times we have the

24 word "district" mentioned as it relates to district military court or

25 county military court. And I would like to submit that this word seems to

1 be slightly interchangeable within B/C/S. Might I hand up those to the

2 Chamber, Defence counsel and to the witness.

3 Your Honour, I understand that your pages are not highlighted?

4 JUDGE AGIUS: No.

5 MS. SELLERS: Yes. I would ask you that, in the first column, if

6 you would go to the bottom, there is a word there, it says "sud," that's

7 how I would pronounce it, and then on the second column, if one would just

8 go slightly below, halfway down, the word that says "okruzni".

9 JUDGE AGIUS: Mm-hm. Yes. And it says "okruzni: district court,

10 county court, circuit court."

11 MS. SELLERS: Yes, Your Honour.

12 JUDGE AGIUS: In other words, Judge, do I take it -- because the

13 Prosecution is submitting to us that in your country, in your language,

14 for district court, county court and circuit court, you use the same word,

15 which is "okruzni"; is that correct? Is that a correct submission?

16 THE WITNESS: [Interpretation] Yes.

17 JUDGE AGIUS: Thank you. Let's give this a number. This will be

18 508.

19 MS. SELLERS: Thank you, Your Honours.

20 MR. JONES: Your Honour, could we just have details as to what

21 dictionary this is from.

22 JUDGE AGIUS: I'm going to ask that, yes.

23 MR. JONES: Thank you.

24 JUDGE AGIUS: I'm going to ask that.

25 For the record now, Ms. Sellers, please, could you tell us where

1 you got this from?

2 MS. SELLERS: Your Honour, I did receive it from a dictionary --

3 [Microphone not activated]

4 MS. SELLERS: -- I'm sorry, a dictionary which within our

5 administrative support. I will have to give you the exact origin after.

6 JUDGE AGIUS: What we would require is basically the front page,

7 the first two or three pages, which show the details of the name of the

8 dictionary, publisher, ISDN number, et cetera.

9 MS. SELLERS: Certainly. We will provide that as soon as

10 possible.

11 JUDGE AGIUS: And you will have them attached to this same page

12 that we have just submitted into evidence.

13 MS. SELLERS: Certainly. Your Honour, might I proceed, then?

14 JUDGE AGIUS: Yes, certainly.

15 MS. SELLERS: Yes. I would now like to have the witness look at

16 the document ERN number 03648870.

17 Q. Mr. Tankic, please look over the document.

18 JUDGE AGIUS: Are we still in the annex or not?

19 MS. SELLERS: No, Your Honour. I believe now that we are back in

20 our new materials.

21 JUDGE AGIUS: Thank you.

22 MS. SELLERS:

23 Q. Mr. Tankic, I would ask you just to look at this document and

24 could you confirm that this is a document that you handed the original to

25 the office of the prosecutor during the proofing session.

1 A. Yes and my signature confirms that.

2 Q. Thank you. Mr. Tankic, looking at this document, would you please

3 tell the Trial Chamber its origin and its reason for having been created.

4 A. Following her arrival from Srebrenica, the prosecutor reported

5 orally on the situation in Srebrenica between 1993 and 1995, the high

6 prosecutor then drew up this report and informed the relevant bodies, such

7 as justice ministry of the republic of the BNH federation, the republic

8 prosecutor and the justice minister of the Tuzla canton.

9 Q. Mr. Tankic, thank you. I would draw your attention to the last

10 sentence in the first paragraph, which says the prosecutor's office was

11 located in the building of the basic court in Srebrenica and beside the

12 judge there was a typist and recording secretary, Beganovic Safet.

13 Is that the municipal building that you testified about yesterday?

14 A. No. In 1995, the prosecutor arrived in this building. Up until

15 that point, the seat had been in the town hall.

16 Q. And is the town hall what you referred to before as the municipal

17 building?

18 A. Between June 1993 and 1995, the prosecutor reports that the

19 prosecutor's office was in the municipal building or town hall and there

20 was just one other department, the prosecution department, that was in the

21 court premises, the court building where it used to be before the war.

22 Q. Mr. Tankic, does this document indicate, limited that it was, that

23 there was some administrative assistance in the form of a typist and a

24 recording secretary?

25 A. There was only one person employed by the prosecutor who was a

1 stenographer and a typist.

2 Q. Yes. I would now draw your attention to the last page of this

3 document and in the English version it would be on page 4 of 4. And it

4 starts after a listing of what appears to be types of crimes.

5 I draw your attention to the sentence that states "an overall of

6 208 perpetrators have been reported out of which 110 were members of the

7 BiH army, 41 criminal reports, 15 minor reports".

8 Did that also appear consistent, that during the time period that

9 the prosecutor in Srebrenica was in office, that a large percentage of

10 reports concerned army members, members of the army?

11 A. It's only logical. Most able-bodied men were members of the army.

12 It was only to be expected that this kind of complaint would be filed very

13 often.

14 Q. Mr. Tankic, lastly I just draw your attention to the last

15 paragraph where the superior of the Srebrenica prosecutor is also

16 confirming that cases pertaining to the army were handed over to the

17 district military prosecutor's office in Tuzla. Is that in keeping with

18 the responsibilities and duties of Ms. Helic to inform her superiors of

19 that outcome?

20 A. By all means, there were always periodical reports on the state of

21 affairs with the prosecutor's office, usually these would be annual

22 reports and this would be one of these.

23 Q. Thank you, Your Honour. I would like to ask for a P number for

24 this document.

25 JUDGE AGIUS: So this document is being tendered and received,

1 marked as Prosecution Exhibit P509. Yes, Mr. Jones.

2 MR. JONES: Yes. It's not really so much as an objection as just

3 clarification that this will become apparent during the course of my

4 cross-examination, there are sections missing from the English

5 translation. It doesn't appear to be a complete version. So I'm

6 wondering if I'm to understand there will be a complete English

7 translation offered at some point and what one sees on page 2 of 4 skips

8 text and there are other pages which haven't been translated.

9 JUDGE AGIUS: Yes, Mr. Jones, certainly it's a very valid

10 question.

11 MS. SELLERS: I'm happy that you brought that up. Since these

12 documents were actually presented to the Office of the Prosecutor within

13 the past two days, we endeavoured to have draft translations of what we

14 thought were very important portions. Now that they have proper ERN

15 numbers, they will be submitted for final translation and certainly those

16 copies will then be distributed and substituted for the draft

17 translations. Anything that appears to have been omitted or emphasized in

18 a different manner, the Prosecution is certainly willing to address with

19 Defence counsel. Our only intent was to try to facilitate that this

20 witness could go forward with at least draft copies of the document.

21 JUDGE AGIUS: Thank you. That's fair enough. Madam Registrar,

22 please make note of this so that later on, when we come to examine the

23 documents one by one, we will remember this and be able to check. Thank

24 you. Ms. Sellers.

25 MS. SELLERS: Yes.

1 Q. Mr. Tankic, I believe you have document 03615757, which is part of

2 the annex and it's page 3 of the annex. Would you please look at that.

3 Mr. Tankic, I would ask you, are you familiar with this document?

4 JUDGE AGIUS: Yes. For the record, now, parties and public ought

5 to know that the communication with the ELMO has been reestablished, so

6 you can actually look at the document on the ELMO, if you press the video

7 evidence. Thank you. And I also thank the technicians for their quick

8 and efficient response. Thank you.

9 MS. SELLERS:

10 Q. Mr. Tankic, I would ask you to look at the first paragraph of that

11 document, midway down -- oh, I'm sorry. I don't believe you answered my

12 previous question when I asked you, Mr. Tankic, are you familiar with the

13 document and what is the origin of this document. Could you please

14 explain that to the Trial Chamber.

15 A. Yes. This is an attachment or a complement to our earlier report.

16 We see that the prosecutor remembered some further details and added this

17 to her previous reports, especially as regards the identity of the

18 perpetrators.

19 Q. I would draw your attention to midway down the first paragraph, a

20 sentence that begins with "I would like to emphasize that not a single

21 report to Srebrenica concerning both civilian and members of the army of

22 the Republic of Bosnia remained unregistered or unprocessed. All reports

23 were dealt with here."

24 To your knowledge, would that mean that the reports that we have

25 been discussing that came from the Srebrenica prosecutor's office were

1 complete with any reports or crimes that had been alleged against members

2 of the Bosnian army?

3 A. The cases that were referred to the district military prosecutor

4 were simply listed according to the names of suspects. All the remaining

5 cases were cases against members of the army, initially filed with the

6 Srebrenica prosecutor and eventually they remained there.

7 Q. Thank you. I would just now like to briefly go to the last

8 document and that will conclude, Your Honours. That is a document found

9 in the annex, page 1 of the annex, the ERN number is 03615756.

10 Mr. Tankic, could you look at this document and please tell the

11 Trial Chamber the origin or the reason for the existence of this document.

12 A. Having received a report from the high public prosecutor in

13 Srebrenica, the high prosecutor in Tuzla forwarded this to the justice

14 ministry in Sarajevo, this information on the situation that prevailed

15 and the cases that were underway in the military prosecutor's office in

16 Srebrenica.

17 Q. And, again, would this be in keeping with the proper procedure

18 that Vildana Helic, your superior, was to follow in her role as senior

19 public prosecutor?

20 A. Yes. She was high prosecutor, and this would have been standard

21 procedure for her.

22 Q. Mr. Tankic, my final question to you is that you have testified

23 that people were obligated to report crimes that they knew of. Where does

24 that obligation come from? What is the basis of such an obligation?

25 A. The provisions of the law on criminal procedure, adopted as a

1 republican code.

2 MS. SELLERS: Your Honour, I have no further questions.

3 JUDGE AGIUS: I thank you, Ms. Sellers.

4 Mr. Jones.

5 Cross-examined by Mr. Jones:

6 Q. Good morning, Judge Tankic.

7 A. Good morning.

8 Q. Now, would you agree that Srebrenica was physically, completely

9 cut off from Tuzla from the start of the war until the fall of Srebrenica

10 in July 1995?

11 A. Yes.

12 Q. And isn't it right that Serb lines and minefields lay between

13 Tuzla and Srebrenica?

14 A. I assume so.

15 Q. And if you are aware, wasn't it an extremely perilous journey to

16 travel from Tuzla to Srebrenica?

17 A. Yes.

18 Q. And again, if you're aware, even assuming that someone could make

19 the journey from Tuzla, it would take several days, would it not, to get

20 through all of the Serb lines, if travelling by foot.

21 A. Perhaps.

22 Q. And are you aware that many people lost their lives trying to

23 travel by foot to and from Tuzla and Srebrenica?

24 A. Yes.

25 Q. Now, as far as communications between -- or communications with

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13 English transcripts.

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1 Srebrenica are concerned, I think you've told us that the only way to

2 communicate was by telegrams and by radio. Is that correct?

3 A. Yes. And perhaps some other ways, too.

4 Q. Well, what other ways?

5 A. If you consider the case that we looked at where the civilian

6 police filed a criminal complaint against a member of the army, both the

7 suspect and the case itself arrived in Tuzla without actually using radio

8 or telegrams. But I don't know what method was used.

9 Q. Is that the case of Emir Halilovic?

10 A. Yes.

11 Q. Okay. Well, we'll return to that. Generally speaking, during the

12 war in Tuzla, you knew very little of what was actually going on in

13 Srebrenica; would you agree with that?

14 A. Yes.

15 Q. And your information in Tuzla was based mostly on what you got

16 from the ham radio; would that be true?

17 A. Yes.

18 Q. All right. Now, you were talking about the district military

19 court which was in Tuzla during the war and which was established in

20 September 1992. Now, firstly, that was a completely different entity from

21 the Tuzla High Court, wasn't it?

22 A. Yes.

23 Q. And just for clarification, the Tuzla district military court

24 would have been under the Ministry of Defence, whereas the High Court

25 would be under the Ministry of Justice.

1 A. The courts are supposed to be independent of ministries, either

2 civilian or defence ministry, apart from certain administrative matters.

3 Q. Now, in the system of military justice, during the war in Bosnia

4 and Herzegovina, the military police and the military security service are

5 connected to and work with the military prosecutor.

6 A. Yes.

7 Q. And the military security and its service is known by the acronym

8 SVB, isn't it?

9 A. Yes.

10 Q. Isn't it true that the military prosecutor has jurisdiction to

11 supervise and coordinate the activities of these organs, military police

12 and SVB?

13 A. According to the law, yes.

14 Q. And so it's part of the military prosecutor's job to issue

15 requests to these organs to conduct investigations.

16 A. Not conduct investigations, but some pretrial activities.

17 Q. Thank you. And conversely, it's the jurisdiction of the military

18 prosecutor to receive reports about criminal acts committed by military

19 personnel?

20 A. Yes.

21 Q. And that includes reports about war crimes allegedly committed by

22 military personnel. Sorry, I think your answer wasn't interpreted. Could

23 you repeat your answer?

24 A. Yes.

25 JUDGE AGIUS: I thank you, Mr. Jones.

1 MR. JONES:

2 Q. So is it -- isn't it right that, without a military prosecutor, in

3 other words if that institution is not established, then it's not possible

4 for the organs of the military police and the SVB to function legally.

5 A. They could carry out certain duties, but they obviously could not

6 carry out their duties as regards the prosecution. It wasn't their only

7 task to file criminal charges.

8 Q. Right. But as far as filing criminal charges is concerned, they

9 would be operating in a vacuum, wouldn't they, if there wasn't a military

10 prosecutor to direct them in their pretrial investigations; would you

11 agree with that?

12 A. No.

13 Q. So are you saying that in the absence of a military prosecutor,

14 the military police and the SVB can go about carrying out pretrial

15 investigations and filing criminal reports, even though there's no

16 military prosecutor?

17 A. They could do it all apart from filing criminal reports, as far as

18 there was no prosecutor, if I can explain that. They could secure the

19 evidence, pieces of evidence. They could make reports on the crimes. And

20 this was their duty, according to the law.

21 Q. But it would then stop there?

22 A. At that point, if there was no prosecutor.

23 Q. Right. Well, I don't know if you can help us with this, but I put

24 it to you that the military prosecutor for Srebrenica was not appointed

25 until the 21st of May, 1995, less than two months before the fall of

1 Srebrenica. Is that something you're aware of?

2 A. The military prosecutor in Tuzla had jurisdiction over the

3 territory of Srebrenica.

4 Q. Yes. But you've agreed, haven't you, that Tuzla was physically,

5 completely separated from Srebrenica during that period.

6 A. Yes. Apart from certain exceptions, which we saw yesterday and

7 today as regards referral of certain cases and filing of certain charges.

8 Q. With the usher's assistance, I would like to pass up the first

9 exhibit. It is a document of the district military prosecutor's office in

10 Tuzla, and for the record it's number SU-4895A7795, and it's dated the

11 23rd of May, 1995. I would ask you, Judge Tankic, to have a close look at

12 this document.

13 Can you confirm that, according to this document, the RBH Assembly

14 decided at its session on the 21st of May, 1995, to elect the three people

15 whose names we see, Avdo Majstorovic, Dzemal Becirovic, and Ferid

16 Otojagic, as "judges to the District Military Court in Tuzla, Srebrenica

17 Department," and Resid Sinanovic was appointed at the same session to the

18 post of deputy to the military district prosecutor in Tuzla, Srebrenica

19 department. Do you agree that that's what's set out in that document?

20 A. Yes. In order to resolve the problems that we discussed here

21 yesterday and today.

22 Q. So it's right, isn't it, that before the 21st of May, 1995, there

23 was no one physically in Srebrenica operating in the post of military

24 judges or military prosecutors?

25 A. No. There was nobody else but civilians.

1 Q. Now I would draw your attention to the following words in that

2 document. It's page 1, third and fourth paragraphs. It says: "Please

3 could you provide premises in Srebrenica for the military court department

4 and military prosecutor's office, equipment, typewriters, office supplies,

5 et cetera, and other requirements for their work. I hereby appoint Avdo

6 Majstorovic, president of the military court, Srebrenica department, and

7 he will create conditions suitable for the work of the department in

8 cooperation with the mayor of the municipality and the commander of the

9 division."

10 Do you see that in the original? Have you seen that passage or

11 those passages?

12 A. Yes, I can.

13 Q. Now, would you agree as someone who has worked in the court

14 system, that to coin a phrase, Rome wasn't built in a day, that even if

15 this decision was dated the 23rd of May, 1995, it would actually take a

16 considerable amount of time to find suitable personnel to equip a building

17 and to get everything in order for the work to start?

18 A. Possibly.

19 Q. Would you also agree that it's all the more difficult if it's a

20 town which is under siege, encircled by very hostile forces and facing

21 genocide?

22 A. Yes.

23 MS. SELLERS: Your Honour, I object to the characterisation. I

24 understand what Defence counsel is trying to go to but I would ask that he

25 rephrase that question.

1 JUDGE AGIUS: Yes. I think that's fair enough, Mr. Jones. I'm

2 sure you understand too.

3 MR. JONES: Well, I'm not sure the witness has answered and I'm

4 not sure what --

5 JUDGE AGIUS: He has answered but --

6 MR. JONES: -- what characterisation surely we're not disputing

7 there was a genocide in July 1995 in Srebrenica?

8 JUDGE AGIUS: I don't think that that is in question in this case

9 in any case.

10 MR. JONES: No. So I'm not quite sure how I can rephrase the

11 question.

12 JUDGE AGIUS: Leave it. Let's move. He's answered the question

13 in any case, but --

14 MR. JONES: Point taken, Your Honour.

15 JUDGE AGIUS: Yes, exactly.

16 MR. JONES:

17 Q. In fact, isn't it right that the military court in Srebrenica

18 hadn't even started functioning when Srebrenica fell to Serb forces?

19 A. You are talking about the military court all the time, but here we

20 are not talking about the military court but the department of the higher

21 court in Tuzla.

22 Q. Yes. I'm referring to the department in Srebrenica, if I can put

23 it that way, that department hadn't started properly functioning before

24 Srebrenica fell to the Serbs. Is that something you're aware of or would

25 agree with?

1 A. Given the time when this letter was sent, it is possible because

2 only one and a half months later Srebrenica fell.

3 Q. We've seen from that document that the setting up of the court or

4 the department was to be organized between the civilian and military

5 authorities "in cooperation with mayor of the municipality and the

6 commander of the division".

7 You may be aware that the commander of the division, the 28th

8 division, Naser Oric, had actually left the enclave of Srebrenica in early

9 April 1995, to go to Tuzla. Is that something you're aware of?

10 A. I'm not aware of the time when he left Srebrenica.

11 Q. Okay. I would ask simply to have an exhibit number for this

12 exhibit.

13 JUDGE AGIUS: Yes. We need the sequence, Madam Registrar, please.

14 What number shall we give this document? Next number for the Defence

15 document.

16 THE REGISTRAR: 205, Your Honour.

17 JUDGE AGIUS: D205. So this document -- this did not have an ERN,

18 did it?

19 MR. JONES: No, Your Honour.

20 JUDGE AGIUS: So I think I better give some details -- this

21 document tendered by the Defence being a letter from the president of the

22 military court and district military prosecutor in Tuzla, dated 25th of

23 May, addressed to the chief of Srebrenica municipality, commander of the

24 28th division, Srebrenica, as being tendered, received and marked as

25 Defence Exhibit D205.

1 MR. JONES: Thank you, Your Honour.

2 Q. Now, Judge Tankic, it's true, isn't it, that during the war, the

3 law on regular courts applied on the territory of the republic of

4 Bosnia-Herzegovina?

5 A. Yes.

6 Q. And the law on criminal proceedings of the RBH also applied during

7 the war? Sorry, of the SFRY was adopted for the RBH?

8 A. Yes.

9 Q. And these laws regulated, didn't they, the territorial and

10 subject-matter jurisdiction of the courts of Bosnia-Herzegovina?

11 A. Criminal procedure acts did not regulate subject-matter

12 jurisdiction, but there was a special offer that, whereas territorial

13 jurisdiction is indeed regulated by the Criminal Procedure Act.

14 Q. Thank you. And isn't it right that according to the law on

15 regular courts, only the highest state organs of the republic of

16 Bosnia-Herzegovina could establish -- had jurisdiction to establish a

17 military court or military department, military court department?

18 A. Only -- so the prosecutor's office or a court could have been

19 established only by law.

20 Q. Yes. But isn't it true that it could only be established by the

21 republican bodies in Sarajevo?

22 A. At the time of the war, it was only up to the Presidency of

23 Bosnia-Herzegovina to do that.

24 Q. Thank you. And we saw that I think in Prosecution Exhibit P497

25 which we saw yesterday, it was the statutory order on district military

1 courts and that was signed by the president of the Presidency. We have

2 another exhibit on this subject, with the Usher's assistance, it's a

3 decision on appointing judges to district military courts and just for the

4 record it's decision number 02111900/92, dated 21 December, 1992,

5 published in the official gazette number 24, page 640 on 28th of December,

6 1992. And it's item 575, firstly.

7 There we see appointments to the Tuzla, Zenica and Travnik

8 district military courts. Do you see that? And that's a decision signed

9 by the president of the Presidency. Is that correct?

10 A. Yes, that's correct.

11 Q. And on the same page we have number 574, that's the appointment of

12 military prosecutors and, again, that's an act for which the RBH

13 Presidency is the authorised body, would you agree?

14 A. Yes.

15 Q. So when we consider the situation of Srebrenica in the

16 establishment of a department of Tuzla district military courts, only the

17 RBH Presidency had authority to do that, isn't that right?

18 A. I'm not sure. In the previous document, whereby the department

19 was established, I'm not sure about that. But I'm sure about the court.

20 Q. Right. You're sure that --

21 A. And about the prosecution office.

22 Q. Right. So only the RBH Presidency had the jurisdiction to

23 establish district military court and district military prosecutors?

24 JUDGE AGIUS: I think he's told you as regards the court,

25 establishment of a court, yes. As regards the establishment of a

1 prosecutor, he is not sure. That's how I read his words.

2 MR. JONES:

3 Q. Right. Well, what I understand is that --

4 JUDGE AGIUS: I don't know. I stand to be corrected of course

5 because it wouldn't be the first time I have misunderstood something.

6 THE WITNESS: [Interpretation] Presidency appointed judges and

7 prosecutors, but I'm not sure whose jurisdiction it was to establish court

8 departments. That should have been written in the previous document we

9 saw.

10 MR. JONES:

11 Q. Right. I'll come back to that in a moment. For the meantime I

12 would ask for an exhibit number for that page of the official gazette.

13 Thank you.

14 JUDGE AGIUS: So this will -- first of all, it has ERN number

15 01194983 as being tendered by the Defence and admitted as such and marked

16 as Defence Exhibit D206.

17 THE REGISTRAR: Yes, Your Honour.

18 MR. JONES:

19 Q. Thank you, Your Honour. So would you agree, Judge Tankic, that

20 the authorities in Srebrenica, for example, the Srebrenica War Presidency,

21 if that's a body which you're familiar with, had no authority on their own

22 to elect or appoint military judges or military prosecutors?

23 A. Yes.

24 Q. Sorry, I thought you --

25 JUDGE AGIUS: I think I heard him say "no". But I see "yes" on

1 the transcript.

2 MR. JONES: Yes. Could you clarify please Judge Tankic whether --

3 A. They were not authorised to establish courts. Or if there was,

4 the War Presidency in Srebrenica, they were not authorised to do that.

5 JUDGE AGIUS: All right.

6 MR. JONES:

7 Q. Right. So it follows from that doesn't it, that if they purported

8 to establish such a court, they would have no legal authority?

9 A. Yes.

10 Q. And also, according to the law, if a military commander -- or a

11 military commander would not have any authority to elect or appoint judges

12 and prosecutors to military court, would it?

13 A. Yes, apart from special military courts.

14 Q. Special military courts are established to deal with breaches of

15 discipline, aren't they?

16 A. No.

17 Q. Isn't there jurisdiction crimes against the ABiH, taking the case

18 of the army of Bosnia-Herzegovina, crimes against the army

19 insubordination, treason, desertion, those sorts of offences?

20 A. Yes. For these criminal offences, for these disciplinary

21 breaches.

22 Q. A different jurisdiction from the jurisdiction of the Tuzla

23 district military court?

24 A. They could try similar criminal offences, but under specific

25 circumstances prescribed by the law.

1 Q. Namely, if those offences constitute disciplinary breaches?

2 A. No, but if they have features of criminal offences.

3 Q. Well, we'll return to that and look at the actual provisions in

4 due course. But sticking with district military courts and departments of

5 those courts, do you agree it would be wrong for a commander to abrogate

6 to himself the power to appoint judges and prosecutors to those courts?

7 JUDGE AGIUS: Which courts, the special courts?

8 MR. JONES: No. The district military court.

9 JUDGE AGIUS: District military courts, okay.

10 A. It was not possible.

11 MR. JONES: I'm moving on to another exhibit, and so perhaps this

12 is a good time for the break.

13 JUDGE AGIUS: Thank you. We will have a 25-minute break, starting

14 from now. Thank you.

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

16 --- On resuming at 11.02 a.m.

17 JUDGE AGIUS: Yes, Mr. Jones.

18 MR. JONES: Yes, thank you, Your Honour. Just to say, I am hoping

19 to finish today, but I've had 48 minutes so far, and I've probably got two

20 hours or so. As I say, I hope we can finish today.

21 JUDGE AGIUS: We will try and do our best.

22 What's the problem?

23 [Technical difficulty]

24 JUDGE AGIUS: Just a moment. This is jinxed. The moment Mr.

25 Jones said he'll do his best to finish today, we have a technical problem.

1 If what you need to say needs to go on the record, there is no

2 point in me asking you to proceed, Ms. Sellers, because all it says, it's

3 reminding me when we took the recess, at what time.

4 What I'd like to know is how much we have to wait, roughly, so

5 that, if we need to stay in the courtroom, we'll stay in the courtroom.

6 If it's going to take longer, obviously each one goes to his own room,

7 including the witness, because ...

8 What they are doing is they are creating a new -- they are

9 dividing the session into two parts.

10 I see a "test", we are having "test", so I presume that we are in

11 a position to proceed? I thank whoever is responsible for having solved

12 this problem. I see that now the transcript of the sitting is divided

13 into two files. This is the second file.

14 Okay, let's proceed. Mr. Jones, I would appreciate it if you

15 would try to do your level best to finish today.

16 Yes, Ms. Somers -- Sellers.

17 MS. SELLERS: Excuse me for interrupting counsel. I just want to

18 say, in the request of the Chamber to have the cover pages of the

19 dictionary and the other pages, that we have been able to provide that for

20 you now and I would like to hand it up.

21 JUDGE AGIUS: Thank you.

22 MS. SELLERS: I would just remind you that this has already been

23 marked Prosecution Exhibit 508, and one would have to attach the pages of

24 the dictionary that were previously handed up to these four pages here.

25 JUDGE AGIUS: Yes. Thank you, Ms. Sellers.

1 Mr. Jones.

2 MR. JONES: Yes, thank you, Your Honour. I will go as quickly as

3 I can, and perhaps we can even have a shorter second break. I don't know,

4 with the agreement of the technicians --

5 JUDGE AGIUS: We will try to do our best.

6 MR. JONES: Yes. May I also -- I presume there will be one clean

7 transcript for the day and not two, just a matter which -- we've now got

8 two transcripts, as you said.

9 JUDGE AGIUS: Yes, but that is technically the easiest thing to

10 do.

11 MR. JONES: Yes.

12 JUDGE AGIUS: I mean, they will then convert it, bring them

13 together --

14 MR. JONES: Perfect.

15 JUDGE AGIUS: -- and we will have one transcript. But for the

16 purpose of the record, I had to state that we have a new, sort of,

17 transcript.

18 MR. JONES: Yes, thank you, Your Honour.

19 Q. Now, Judge Tankic, I'm going to ask you some questions about the

20 special military courts which we were discussing before the break, but if

21 I can preface those questions by asking you the following: When you were

22 shown the chart, this chart yesterday, you may recall, you said: "I have

23 very little knowledge about military structures and military issues."

24 It's correct, isn't it, that you, in fact, never served as a military

25 judge?

1 A. Yes.

2 Q. And so your experience of military structures, military issues, is

3 based on your experience of compulsory service in the JNA; would that be

4 right?

5 A. Yes, as well as the reserve.

6 Q. Right. It's not based on any experience which you had serving in

7 the ABiH?

8 A. Yes.

9 Q. And when did you complete your compulsory military service in the

10 JNA?

11 A. 1983.

12 Q. Okay.

13 MR. JONES: Now, I would ask if the witness could be shown

14 Prosecution Exhibit P323, which is the Decree Law on Special Military

15 Courts. And the ERN -- I don't know if it's necessary to read it, really,

16 for the record, but it's 00630020. And our apologies. This wasn't on our

17 list. It only arose in light of answers which this witness gave this

18 morning, or information which he volunteered this morning.

19 Q. Judge Tankic, I would ask you to look at Article 3 of this decree

20 law. It's on the first page in the -- both in English and B/C/S. Isn't

21 it right that Article 3 sets out the jurisdiction of the court, and it

22 says: "The Court shall try service men for criminal forces committed

23 against the Armed Forces of the Republic of Bosnia-Herzegovina."

24 Article 3, which you see down in the bottom on the right-hand

25 column.

1 A. Yes.

2 Q. And we see the list of crimes, and just to generally characterize

3 them, without going through all of them, would you agree that they're

4 crimes such as failure to comply with an order, opposing orders of a

5 superior, offences such as mutiny, treason, desertion; in other words, all

6 offences against army discipline. Would you agree with that?

7 A. Yes, precisely.

8 Q. Since the jurisdiction of these special military courts is crimes

9 against the armed forces of the republic, the special military court would

10 not have jurisdiction, would it, to try someone for crimes committed

11 against the enemy?

12 A. No.

13 Q. All right. Thank you. I've finished with that exhibit. Now, I'm

14 going back to the Tuzla district military court, and we have a new

15 exhibit, which is a document from the -- from the Tuzla district military

16 court, and it's SU-4895, dated 24 April 1995. And it's a suggestion of

17 the appointment of judges and prosecutors in the department of the

18 military court in Srebrenica.

19 If you could take a moment, Judge Tankic, to read that document.

20 And, in particular, I draw your attention to two sentences on page 2 of

21 both the English and the B/C/S, and it's the sentence towards the end of

22 the paragraph which says: "This court, i.e., the Tuzla district military

23 court, is not able to make any decisions before it receives a request for

24 conduct of an investigation or an indictment from the military

25 prosecutor. Therefore, according to the law, it is not able to cover

1 detentions before receiving the criminal charges, i.e., a request for

2 conduct of an investigation."

3 Now, do you agree with that, that is a correct statement of the

4 law?

5 A. Yes.

6 Q. So in other words, the Tuzla district military court could not

7 authorise the detention of a suspect for any significant period of time

8 unless and until criminal charges were submitted by the military

9 prosecutor. Is that correct?

10 A. No.

11 Q. And without a military prosecutor in Srebrenica, those charges

12 could not be physically submitted by authorities in Srebrenica; do you

13 agree?

14 A. No.

15 Q. No, they could not be --

16 A. For the most part, they couldn't, but it -- in a certain way they

17 could, which you can clearly see if you look at the data.

18 Q. Right. Well, we'll come to that. Dealing with the military

19 prosecutor in Tuzla, would you agree that they weren't in a position to

20 conduct investigations on the ground in Srebrenica because of the physical

21 separation?

22 A. Yes. Just a small correction. An investigating magistrate or

23 judge and not the prosecutor.

24 Q. Okay, thank you. So is it right that the detention in Srebrenica

25 of persons suspected -- of military personnel suspected of serious crimes

1 under the jurisdiction of the Tuzla district military court, could not, in

2 practical terms, be authorised until at least the 24th of April, 1995, the

3 date of this document?

4 A. I'm not sure I understand this, but I'll try to answer. I believe

5 I'll get the context right. The suspect could be detained pursuant to a

6 request by a civilian prosecutor. However, detention could only be

7 extended with the Tuzla military courts, which is precisely what was done

8 in the nine cases that we looked at. If a serious crime has been

9 committed or if the perpetrator was a dangerous person, they had to find a

10 way to isolate this individual from the environment.

11 Q. Right. And if there wasn't -- until there was an extension by the

12 Tuzla military court, how long could a person be held on the authority of

13 the civilian prosecutor?

14 A. Under the law in wartime circumstances, 15 days. Even the police

15 forces were authorised to detain any person for up to three days.

16 Q. And after that, if authorization for continued detention was

17 not received, the person would have to be released under the law; isn't

18 that correct?

19 A. Released from detention, yes.

20 Q. Thank you. I'd ask for this document to be given an exhibit

21 number as well, please?

22 JUDGE AGIUS: So this document will become D207.

23 THE REGISTRAR: Yes, Your Honour.

24 MR. JONES:

25 Q. Thank you.

1 Q. Now, a few questions about the civilian courts and about the

2 jurisdiction of the Tuzla higher court.

3 Now, before the 1st of June 1993, not even a lower court existed

4 in Srebrenica, did it?

5 A. Yes.

6 Q. Sorry, does that mean no lower court did exist prior to the 1st of

7 June 1993, or it didn't?

8 A. No, it didn't prior to the 1st of June 1993.

9 Q. And taking the 1st of June 1993, that is, isn't it, after the

10 demilitarisation of the Srebrenica enclave?

11 A. I think so.

12 Q. Right. You're aware that Srebrenica was declared a safe area and

13 that United Nations was then charged with demilitarising the enclave?

14 A. Yes, I am.

15 Q. I put it to you that that was in April 1993, if you know?

16 A. Yes.

17 Q. Okay. Now, at that point, 1st of June, 1993, with the enclave

18 being demilitarised, isn't it right that the military police stopped

19 functioning and lost jurisdiction to act within the enclave, if you know?

20 A. I don't know what was going on in Srebrenica.

21 Q. But as a matter of law and as a matter of logic, wouldn't it

22 follow that you can't have a military police in a demilitarised zone?

23 MS. SELLERS: Your Honour, if the witness doesn't know the answer

24 to the question, I think even this rephrasing doesn't assist us.

25 JUDGE AGIUS: I think Ms. Sellers has a point here.

1 MR. JONES:

2 Q. Very well. Could the witness be shown P506, Prosecution Exhibit

3 P506. It's the second page is the actual report rather than the cover

4 note and it's 03648882. I draw your attention to the first sentence which

5 I think we've seen already "during 1994, the Srebrenica public

6 prosecutor's office received 144 criminal reports from the public security

7 station and two reports from physical entities".

8 Now, the public security station is the civilian police station,

9 isn't it?

10 A. Yes.

11 Q. So isn't it correct that from the very start of her work, Ms.

12 Akagic was receiving reports only from the civilian police. She didn't

13 receive any from the military police?

14 A. This report would seem to indicate that she did not receive any

15 from the military police.

16 Q. And I put it to you and it may be something that you can help

17 with, or maybe not, but that's because the military police was no longer

18 functioning after demilitarisation. I've made that point already and I...

19 The witness may answer if he chooses to, otherwise I will move on.

20 JUDGE AGIUS: I think you proceed with your next question because

21 that is a statement.

22 MR. JONES:

23 Q. Okay. Sorry. If the witness could now be shown P501. This

24 document refers to the start -- starting of the work of the prosecutor on

25 the 1st of June 1993, and I draw your attention to the third paragraph in

1 the English, in any event, in English it says: "It needs to be pointed

2 out that the procedure ends once the indictment is issued because of the

3 general situation the court conducts, just and investigation. The process

4 of conducting the investigation is being burdened by the lack of experts

5 from many fields who could give their opinion".

6 On the other hand payment system is nonexistent, in other words

7 the value of the stolen goods cannot be expressed in terms of money and

8 therefore correct classification of the crimes cannot be carried out."

9 Now based on that my question is: Do you agree from that that the

10 lower court in Srebrenica could only barely carry out an investigation and

11 that it was impossible to carry out a full investigation because of the

12 general situation, i.e., being under siege and under constant attack?

13 A. I don't know about the reasons, but the prosecutor's report

14 indicates how far criminal proceedings usually got, although people were

15 tried for minor crimes.

16 Q. Yes. Just as far as your knowledge of the situation in Srebrenica

17 was concerned, did you ever go to Srebrenica during the course of the war?

18 A. No.

19 Q. Now, isn't it right that Ms. Akagic opened investigations into

20 serious crimes only when it was as I believe the phrase is in your law and

21 language "dangerous to postpone", in other words, where due to the urgency

22 of the situation, evidence might be lost, if there were not an immediate

23 investigation?

24 A. Yes.

25 Q. And doesn't your law provide that in that situation, even an

1 unauthorized person can conduct an investigation into serious crimes?

2 A. Only persons actually authorised by law.

3 Q. Right. Ms. Akagic was not authorised or did not have jurisdiction

4 over serious crimes, did she, because she was the prosecutor of the lower

5 court?

6 A. No, she didn't, but in urgent situations she had authority to give

7 relevant orders to the police.

8 Q. Now, if the witness could be shown P506. And it's the last

9 paragraph of that exhibit. And stated there: "I would like to point out

10 that the Srebrenica basic court does not act according to the indictment

11 proposals, the first instance public prosecutor's office, accept in some

12 cases of forest theft and illegal seizures of state-owned immoveable

13 property. The basic court is only opening investigations and undertaking

14 certain investigative measures following a request of this prosecutor's

15 office".

16 My question is, isn't it apparent from that that the basic court

17 in Srebrenica was basically not -- not functioning or at least functioning

18 only in the most minimal way during this period?

19 A. The report indicates that in part it was functioning up to the

20 point of trial, with the exception of minor crimes, as we said before.

21 Q. Right. In other words, it was impossible to actually hold trials

22 in Srebrenica?

23 A. This is something I don't know.

24 Q. Now, you were shown earlier today P505 and I won't ask in the

25 interests of time -- I won't ask that to be actually be put before you,

1 but you'll recall that there was reference to the premises where the

2 prosecutor's office was located and that refugees had destroyed all the

3 documentation of the public prosecutor's office.

4 Two questions about that. Firstly, would you agree as someone who

5 spent much of his life working in the court system, that the destruction

6 of documentation of the public prosecutor's office would gravely impede

7 the work of a prosecutor trying to get started, in other words, if

8 regulations and decrees, et cetera, had been destroyed?

9 A. I'm not sure I understand the question. If you have a specific

10 case, that would take some reconstructing and it would obviously prove

11 very difficult.

12 Q. Okay, well, let's take a different angle. You said that you

13 assumed that among the destroyed documents there were not cases which had

14 arisen during the war because you said you assumed that refugees had been

15 in that building from the start of the war.

16 Now in fact that is quite an assumption, isn't it, that's not

17 something which you have any knowledge of whatsoever.

18 A. Yes.

19 Q. So if that's wrong, if refugees, let's say, only arrived in March

20 1993, it's possible that they would have destroyed case files from

21 February, January 1993 and from 1992. Do you accept that that is

22 possible?

23 A. Who, destroyed by whom do you mean?

24 Q. Refugees who were in that building, the fact is you don't know

25 what they destroyed, do you?

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1 A. Yes, the prosecutor's report indicates that she, in fact, assumes

2 that those had been destroyed by the refugees.

3 Q. All right. Well it's not stated there as an assumption, but we

4 can move on from that.

5 Now, according to the law on criminal proceedings of the republic

6 of Bosnia-Herzegovina, only higher courts could try the most serious

7 crimes, including murder and war crimes. Would you agree with that?

8 A. Yes.

9 Q. And a lower court could not unilaterally decide to give itself

10 jurisdiction over serious crimes, could it?

11 A. No.

12 Q. It would require a decision of the authorised state organ to

13 empower the lower court to be able to try those crimes, correct?

14 A. Yes.

15 Q. And in fact in Srebrenica, there never existed a higher court with

16 jurisdiction over those crimes, did there, it was merely a transfer of

17 jurisdiction at a certain point?

18 A. Yes.

19 Q. If we could briefly look at P503 again, and that's the document

20 from the higher public prosecutor in Tuzla, dated 5th of January 1994.

21 You saw this yesterday, it's two documents, Tuzla to Sarajevo and

22 Tuzla to Srebrenica. And the date of the first document is the 5th of

23 January 1994. It's clear from that, isn't it, that the public

24 prosecutor's office in Srebrenica requested a transfer of jurisdiction so

25 that it could handle cases which came under the authority of the Tuzla

1 higher court.

2 A. Yes.

3 Q. And that request was taken up by the Tuzla prosecutor's office

4 requesting a decision from the Ministry of Justice and administration in

5 Sarajevo?

6 A. Yes.

7 Q. So it was for the Ministry of Justice in Sarajevo to take that

8 decision?

9 A. Yes.

10 Q. And we saw, from that document, that the reasons for the request

11 is the physical detachment between Srebrenica and Tuzla. And isn't it

12 right --

13 A. Yes.

14 Q. Right. And the prosecutor and president of the Tuzla High Court,

15 who were addressing this letter to the authorities in Sarajevo, explained

16 that it's necessary and urgent because murders and aggravated thefts and

17 other crimes had been carried out in the Srebrenica area. Correct?

18 A. Yes.

19 Q. So isn't it fair to summarise that, from this letter that the

20 lower court and prosecutor in Srebrenica couldn't do anything that deal

21 with misdemeanours unless and until the authorised state institution gave

22 permission for the transfer of jurisdiction?

23 A. That is not correct. The law of criminal procedure provides that

24 they can in fact take certain preinvestigative measures or order detention

25 in urgent cases, but they must, at the same time, inform the relevant

1 prosecutors and the relevant court.

2 Q. Right. Okay. Now, we have another exhibit which is a document

3 from the public prosecutor's office in Tuzla dated 1st of March 1994.

4 This may already be part of P505?

5 JUDGE AGIUS: Don't worry about it. If it is, let's proceed, Mr.

6 Jones. I think let's --

7 MR. JONES: We found it easier -- with the translation.

8 JUDGE AGIUS: Let's take the practical approach and -- thank you.

9 MR. JONES:

10 Q. It is simply to ask you to confirm this, Judge Tankic, that it

11 wasn't in fact until the 1st of March 1994 that the transfer of

12 jurisdiction from the Tuzla higher court to Srebrenica was communicated to

13 the authorities in Srebrenica or to the prosecutor in Srebrenica.

14 A. Yes, that was the day when it was communicated, but the decision

15 was taken in January.

16 Q. And even then, that court, the lower court with this expanded

17 jurisdiction, did not have jurisdiction over military personnel in the

18 army of Bosnia-Herzegovina, did it?

19 A. No. It had no jurisdiction over them.

20 Q. And I would ask for that document to be given an exhibit number,

21 please?

22 JUDGE AGIUS: Yes. That document is being given number, Defence

23 Exhibit D208.

24 THE REGISTRAR: Yes, Your Honour.

25 MR. JONES:

1 Q. Now, you've told us that you didn't in fact go to Srebrenica

2 during the war. It follows from that, doesn't it -- or if you could tell

3 us, you don't know to what extent the public security station in

4 Srebrenica was functional during the war?

5 A. Most of the criminal charges were filed to the prosecutor by that

6 station, so it only follows that it was operational.

7 Q. But the extent to which it was operational is something which is

8 outside your knowledge, isn't it, the extent to which it had investigators

9 or technicians to carry out forensic investigations?

10 A. I'm not aware of that, no.

11 Q. I suggest to you and you may or may not be able to help with this,

12 but that most of the trained and professional people fled Srebrenica at

13 the start of the war and that there were, therefore, very few trained

14 professional policemen and investigators in Srebrenica during the war.

15 A. I know that the basic prosecutor was the only one with bar

16 examination out of all the lawyers there. Judges had no bar examination,

17 although they did graduate from the law school. I'm not aware of the

18 police structure.

19 Q. Did you hear stories in Tuzla of professional people and educated

20 people having left Srebrenica at the start of the war?

21 A. It wasn't true only of Srebrenica, but of the entire

22 Bosnia-Herzegovina.

23 Q. Now I would also suggest and again only if you can help us with

24 this, but that the relevant equipment for carrying out investigations,

25 cameras, audiotapes, et cetera, were not available in Srebrenica. Is that

1 something you're aware of?

2 A. From the reports coming out from the public security centre and

3 from criminal charges that were pressed, we can see that they did attach

4 some drawings and some photo documentation, so I could not entirely agree

5 with your statement.

6 Q. Well, sticking with that drawings, et cetera, those couldn't be

7 sent to Tuzla by radio, could they? Or even by telegram?

8 A. Yes. These were objective reasons which prevented the cases

9 mentioned by the prosecutor to be submitted to the military prosecution.

10 Q. Right. So in other words, when you said "yes", you meant they

11 could not be sent to Tuzla drawings and that sort of thing?

12 A. Yes. It could not communicate by telegrams.

13 Q. Telegram was just for text messages, correct?

14 A. Yes.

15 Q. Now, I want to explore a hypothetical about referring a case to

16 Tuzla with you for a moment. And I want you to put yourself in the

17 position of the Tuzla district military prosecutor. Now, if you were

18 informed by radio that unknown thousands of civilians had stolen Serb

19 property and caused damage to Serb property, would you consider that a

20 serious criminal referral? Or would you consider it perhaps even

21 vexatious, in other words, a waste of your time and resources to receive a

22 complaint of that nature?

23 MS. SELLERS: Your Honour, excuse me, I would just ask that

24 Defence counsel, in formulating this hypothetical, does he clearly mean

25 that the thousands of civilians are under the jurisdiction of the district

1 military court in Tuzla, or is he proffering a hypothetical that is not

2 necessarily in line with the law that we have had testimony about so far?

3 JUDGE AGIUS: I think that is a fair question, Mr. Jones.

4 MR. JONES: Yes. My understanding -- well, I take the point.

5 JUDGE AGIUS: I think you need to --

6 MR. JONES: Yes.

7 Q. Let's remove the referral to the military court, any sort of a

8 referral. If you were a prosecutor, civilian or military, and you

9 received complaints saying that, in Srebrenica, thousands of civilians had

10 committed -- unknown civilians had committed crimes against property,

11 would that be a proper complaint?

12 A. That is a report on the basis of which a prosecutor can commence

13 his work and can address law and order agencies, in view of checking out

14 these allegations.

15 Q. You told us yesterday how complaints would be sent back if they

16 were incomplete. Surely, this would be the sort of complaint which would

17 be sent back as incomplete?

18 A. Yesterday I did not say that complaints were sent back but that

19 they were checked via various organs, such as the police.

20 Q. Wouldn't you agree that certain means and professional people are

21 necessary for the most basic and simple investigations?

22 A. Yes.

23 Q. Are you aware that, in April 1992, when the Serbs occupied

24 Srebrenica, that they took away from the police station, from the public

25 security station, all the equipment necessary for police work? Is that

1 something you're aware of?

2 A. I'm not aware of that.

3 Q. Would you also agree that, in order to conduct any kind of proper

4 investigation, apart from people and equipment, it's also necessary to

5 have regulations so that those carrying out the investigations do so in

6 accordance with the law?

7 A. Yes.

8 MR. JONES: With the usher's assistance, if we could pass up the

9 next exhibit. It's a document from the primary court in Srebrenica, dated

10 10th of December, 1993, number SU-293, and it's information on the

11 operation of the Srebrenica lower court. In fact, it has an ERN 01840660

12 to 01840661.

13 Q. Now, I want to, first of all, draw your attention to the first

14 paragraph: "At the beginning of the war, in April 1992, the Lower Court

15 Public Prosecutor's Office, Misdemeanours Court, and all government organs

16 in Srebrenica ceased to operate".

17 Now, are you aware that when the war started all the judicial and

18 political organs in Srebrenica ceased to operate?

19 A. I truly cannot say that I had no knowledge on the situation in

20 Srebrenica.

21 Q. Okay. Well, let's look at the part of the second paragraph

22 discussing the so-called misdemeanours court in Srebrenica. It says:

23 "Due to the chaotic situation, isolation of the republic, lack of legal

24 regulatory framework, and other reasons, the work of the Misdemeanours

25 Court was symbolic".

1 And then the document discusses the attempts made to deal with the

2 chaotic situation, including the War Presidency issuing a decision that

3 the public security station would carry out investigations, but only with

4 a maximum of six months' imprisonment.

5 My question is: A maximum of six months' imprisonment was the

6 maximum sentence for misdemeanours under the law of Bosnia-Herzegovina?

7 A. The misdemeanour court could also sentence somebody to

8 imprisonment. In peacetime, it was the imprisonment of up to two months.

9 I'm not sure whether the same applied in war circumstances.

10 Q. Okay. Now, I would direct your attention to the bottom paragraph

11 on page 2. In the original, it's the fourth paragraph from the bottom on

12 page 2, starting with the third sentence:

13 "We are not able to conduct appropriate expert analyses due to the

14 shortage of relevant experts on the territory under this court's

15 jurisdiction. Also, we are not able to provide defence counsels for

16 perpetrators of crimes which require mandatory defence."

17 And then further down, the last sentence in the same paragraph:

18 "We received Official Gazettes for 1992 and 1993 only in November 1993 and

19 they are incomplete."

20 The Official Gazette sets out all the decrees, laws and

21 regulations that have been adopted for the functioning of organs in

22 Bosnia-Herzegovina; is that correct?

23 A. Yes.

24 Q. And are you aware that the Official Gazette was only received, or

25 the Official Gazettes were only received in Srebrenica in November 1993

1 and then only in incomplete form?

2 A. I don't know when they received them, but I do know that the court

3 was established on the 1st of June and it had to be established in

4 accordance with the Official Gazette.

5 Q. Finally, I would draw your attention to the last three paragraphs

6 of this document: "Currently, we have problems due to the shortage of

7 appropriate forms and typing paper. Refugees are accommodated in the

8 lower court building and the court archives have been totally destroyed.

9 We are doing the best in the circumstances to protect the rule of law. We

10 would appreciate it if you could send us instructions with regard to

11 extension of detention for criminal offenders and other relevant

12 instructions in light of the specific situation we're experiencing."

13 You are aware, aren't you, that, in general, there were these

14 severe problems in maintaining a judicial system in Srebrenica at this

15 time?

16 A. Yes.

17 MR. JONES: I would ask for an exhibit number, please.

18 JUDGE AGIUS: Yes, this document is being tendered and admitted

19 and recorded as Defence Exhibit D209.

20 THE REGISTRAR: D209, Your Honour.

21 MR. JONES: And with the usher's assistance, we have another

22 exhibit, which is from the command of the 8th Operational Group,

23 Srebrenica, dated the 10th of September, 1994; number 1301476 of 94. The

24 ERN is 01838620.

25 Q. Now, we spoke earlier about special military courts, which we see

1 referred to in the first paragraph of that document. Now, reading the

2 first paragraph of that document, from September 1994, isn't it clear

3 that, in fact, the decree law on special military courts had not even been

4 received by the security organs of the armed forces in Srebrenica?

5 A. Yes, this is what issues from these -- from this letter.

6 Q. And I would ask you to look at the third paragraph as well: "We

7 are requesting information on the responsible institution in cases where a

8 soldier commits an offence outside of his military duty (whether he would

9 be prosecuted for disciplinary liability or would a civilian court be

10 responsible)."

11 And I would ask: Isn't it plain, from this, that in Srebrenica,

12 even in September 1994, the military didn't know who had jurisdiction and

13 authority to conduct proceedings against members of the ABiH?

14 A. We cannot conclude that from this paragraph. This is only the

15 legal question on whether a civilian court has jurisdiction over a person

16 who is not a military person or whether a disciplinary court has

17 jurisdiction over that. You might conclude that, but...

18 Q. The assistant commander for security, Nedzad Bektic, certainly

19 appears, from this, to be confused about who would have jurisdiction in

20 this case, doesn't he?

21 A. Obviously.

22 Q. I would ask for an exhibit number for this document, please?

23 JUDGE AGIUS: Yes. This will be document -- Defence document

24 D210.

25 THE REGISTRAR: Yes, Your Honour.

1 MR. JONES:

2 Q. My apologies to the usher for the constant exhibits but we're

3 nearly through. There is another exhibit which is a document from the

4 primary court in Srebrenica, number SU-594, dated 14 February, 1994.

5 JUDGE AGIUS: Thank you.

6 MR. JONES:

7 Q. Now, this is an urgent communication -- I will ask you to confirm;

8 -- from the president of the Srebrenica lower court, Mr. Mensud Omerovic

9 to the military of justice and administration in Sarajevo.

10 And it refers, does it not, to an earlier memorandum which was

11 sent "detailing several practical problems we've encountered due to the

12 war, the fact that Srebrenica is surrounded and the impossibility of

13 acting in accordance with certain provisions of the ZKP law on criminal

14 procedure".

15 I would ask you also, before I ask you a question about this

16 document, to look at the last sentence of the second paragraph: "The

17 court is unable to appoint defence counsel to defend the accused ex

18 officio because there is not a single attorney in Srebrenica and none of

19 the lawyers here wishes to accept his - that's referring to Nasif

20 Mesanovic, his defence."

21 My question is, would you agree that suspected perpetrators of the

22 most serious crimes still have the right to counsel and a fair trial?

23 A. The court president was obviously not aware of the law, because at

24 this time the defence counsel could be any person, not even a lawyer, any

25 person who could assist a suspect during the criminal procedures. This

1 letter was written before that first information from March about the

2 jurisdiction of the higher court and higher prosecution.

3 Q. Would you consider that would be a safe procedure for guaranteeing

4 a fair trial, to have a nonlawyer person appointed to represent an

5 accused?

6 JUDGE AGIUS: Well I think I can dispense the witness from

7 answering that question.

8 MS. SELLERS: Thank you.

9 JUDGE AGIUS: I think let's move to something else, Mr. Jones.

10 MR. JONES: Very well, Your Honour. I would ask for an exhibit

11 number for that document.

12 JUDGE AGIUS: This will be D211.

13 THE REGISTRAR: Yes, Your Honour.

14 MR. JONES: Now possibly a final exhibit or one of the last ones.

15 This is a special report which we're handing up now, from the intelligence

16 division, army headquarters, dated 13 July 1995 to the chairman of the

17 Presidency of the republic of Bosnia-Herzegovina.

18 The ERN is 01854496 to 01854497.

19 My question first is --

20 JUDGE AGIUS: Why 4497 and not 4499?

21 MR. JONES: Will you bear with me for a moment, Your Honour.

22 JUDGE AGIUS: I see that the English translation stops basically

23 at 4497.

24 MR. JONES: Yes.

25 JUDGE AGIUS: The B/C/S one goes to 4499. If you have no

1 intention of tendering also the last two pages, we can remove them. If

2 you want to keep them there, we keep them there.

3 MR. JONES: Yes. It should be the whole lot. Right to 01854499.

4 Thank you, Your Honour, for pointing that out.

5 Q. Now, firstly, isn't it correct, if you know, that telegraphic and

6 helicopter connections with Tuzla were established only after the

7 demilitarisation of Srebrenica, i.e., after April 1993? First, if you

8 know that.

9 A. I don't know at what time it occurred.

10 Q. Okay. Well turning to this document which is dated 13th of July,

11 1995, firstly, that's clearly written, isn't it, in the midst of the fall

12 of Srebrenica?

13 A. Yes.

14 Q. I want to draw your attention to the passage dealing with

15 helicopter flight to Srebrenica and Zepa, it says: There were 17

16 helicopter overflights and each time a helicopter was shot."

17 Now it would be wrong to suggest, wouldn't it, that there was a

18 regular service by helicopter between Srebrenica and Tuzla at any time

19 between 1992 and 1995?

20 A. Yes.

21 Q. And would you agree, if this is within your competence, that if a

22 helicopter did get shot down over Serb territory, the Serbs could have of

23 course help themselves to whatever documents they found and used them for

24 propaganda purposes?

25 JUDGE AGIUS: I think this is speculation. I mean it's --

1 MS. SELLERS: Thank you, Your Honour.

2 JUDGE AGIUS: How would the witness know that?

3 MR. JONES: Just from living through the war and being in Tuzla,

4 but very well, Your Honour. I would simply ask for a Defence exhibit

5 number for this.

6 JUDGE AGIUS: This will be Defence Exhibit D212.

7 THE REGISTRAR: Yes, Your Honour.

8 JUDGE AGIUS: Thank you.

9 MR. JONES:

10 Q. Now, we've seen cases or at least a case of murder which was

11 referred by the Srebrenica prosecutor to the court in Tuzla. The next

12 document - my apologies, with the usher's assistance - is issued by the

13 8th operational group Srebrenica. It's number 130524, dated 23rd of

14 February 1995. Annexed to the document is an official letter from the

15 lower court in Srebrenica number SU-1395. If you could just take the time

16 to look at that document briefly.

17 Now, can you confirm -- and as I say, take your time -- but that

18 the letter from the lower court is expressing concerns about detaining

19 military personnel while awaiting detention orders from the military

20 district court in Tuzla?

21 A. Yes.

22 Q. And among other complaints, isn't the president of the Srebrenica

23 lower court Mensud Omerovic saying that as a result of the delays in

24 receiving authorization from Tuzla to detain suspects "in consequence,

25 even some responsible individuals believe that the work of the lower court

1 is unlawful". Have you found that passage in the original? Sorry, you

2 have to give a verbal answer, if you see it.

3 A. Yes.

4 Q. It's right isn't it that even a court cannot detain people beyond

5 the period prescribed by law and that under Bosnian law, if it does so,

6 the court itself is acting unlawfully?

7 A. Yes. That's correct.

8 Q. Do you have under Bosnian law a crime of false imprisonment? In

9 other words, I can rephrase it?

10 A. Yes, it exists.

11 Q. Now if you look at the second to last paragraph, you see the

12 following: "As it has been almost three months since our court ordered

13 detention and the district military court has not sent detention orders or

14 orders to end detention to the accused persons, there have been beliefs

15 that the court has been acting unlawfully in exercising laws of its own."

16 My question is, it was, at this time, it was still only the Tuzla

17 district military court which could authorise detention for members of the

18 ABiH suspected of committing serious crimes?

19 A. Yes.

20 Q. And were you aware, when you were in Tuzla, that there were delays

21 of this nature of up to three months during which the Srebrenica lower

22 court awaited a response from the Tuzla district military court?

23 A. Yes.

24 Q. Thank you. And isn't it also clear from this letter that the

25 president of the Srebrenica lower court was so frustrated that he told

1 Tuzla that they would no longer deal with cases under the jurisdiction of

2 the Tuzla district military court, because "this court, due to the lack of

3 support, shall no longer deal with cases which were under the jurisdiction

4 of the district military court, that is, cases against members of the ABiH

5 army regardless of the type of crime they committed and particularly that

6 this court will not order detention in any of the cases. We are informing

7 you of this so that you can take the necessary steps to assume

8 responsibility in the free area of the municipality of Srebrenica."

9 Do you see that passage?

10 A. The president of the courts acted under the law and everything

11 that he states here is in perfect compliance with the legal regulations,

12 or rather, the specific position that he expresses here.

13 Q. Yes. In fact isn't he essentially throwing up his arms and saying

14 that his court will no longer deal with these sorts of cases because of

15 the impossibility of ordering detention of these long periods?

16 A. The military district court in Tuzla has sole jurisdiction of the

17 military persons, so what he concludes here is only too logical.

18 Q. Doesn't it also show, this letter, that in fact the jurisdiction

19 of the Tuzla district military court over crimes in Srebrenica was almost

20 purely theoretical. It wasn't a real effective jurisdiction.

21 A. It was very difficult to exercise that jurisdiction, that much is

22 true.

23 Q. Right.

24 MR. JONES: I would ask for an exhibit number for that document,

25 please.

1 JUDGE AGIUS: That will be 213, D213.

2 THE REGISTRAR: Yes, Your Honour.

3 MR. JONES: Right. We have another document now, which is from

4 the Tuzla district military court, SU-4895, or 48/95, dated 14th April,

5 1995.

6 Q. Now, if you take a moment to read this letter briefly, it's a

7 response, is it not, from the president of the military court in Tuzla to

8 the repeated requests from the president of the Srebrenica lower court to

9 solve some of the problems that we saw.

10 If you could pay attention to the following passage: "It is clear

11 that the matter of solving cases that concern persons in Srebrenica and

12 that come under the jurisdiction of the district military court cannot be

13 resolved satisfactorily despite the efforts by the lower court in

14 Srebrenica and the district military court in Tuzla."

15 So would you agree that this document speaks of an impasse in

16 administering military justice in Srebrenica?

17 A. About the delays of the decisions on detention, line 1.

18 Q. Right. That problem has reached crisis point. Would you agree?

19 A. All problems had reached crisis point already, any way you look at

20 it.

21 Q. This is April 1995 so, would you agree, three months before the

22 fall of Srebrenica?

23 A. Yes.

24 Q. And then we see the solution proposed by the president of the

25 military court in Tuzla: "Therefore, the president of this court has

1 written several times insisting and demanding that the military court

2 department be set up in Srebrenica in accordance with the decision issued

3 by the RBH Presidency. Unfortunately, we still haven't received

4 nominations for the appointment of at least two judges to the military

5 court in Tuzla, Srebrenica department. This is apparently the case

6 because they do not have any graduate lawyers."

7 THE INTERPRETER: Can counsel please slow down when reading.

8 MR. JONES: My apologies. I wonder if the booth has copies of the

9 exhibits, if it's possible to enquire.

10 JUDGE AGIUS: Don't ask me. I think it's --

11 MR. JONES: I will go slower nonetheless.

12 JUDGE AGIUS: It very much depends on whether you provide them

13 with a copy.

14 MR. JONES: Yes, we did. It was just to check. I'll go more

15 slowly.

16 JUDGE AGIUS: All right. Thank you.

17 MR. JONES:

18 Q. Then, can you confirm that the letter goes on to enquire whether

19 certain graduate lawyers are still living in Srebrenica?

20 A. Yes, in order to set up a proposal to appoint judges in that

21 department of the military court.

22 Q. And this proposal to set up a military court department, that,

23 again, is something I think you've confirmed already, but which could only

24 be adopted by the competent republican state organ; correct?

25 A. Yes, the Presidency of the republic. In fact, the Presidency did

1 pass a decision to set that up.

2 Q. Yes. And isn't it right that that's why the president of the

3 Tuzla court is requesting the president of the Srebrenica court to provide

4 information about graduate lawyers so that Tuzla can propose the

5 nomination of those persons by the authorities in Sarajevo?

6 A. Yes.

7 Q. But it's for the Sarajevo authorities to actually appoint them?

8 A. Yes. Yes.

9 MR. JONES: And if we can have an exhibit number for this?

10 JUDGE AGIUS: That will be D214.

11 THE REGISTRAR: Yes, Your Honour.

12 MR. JONES: Thank you, Your Honour.

13 Q. Now, I'm going to ask you some questions about the Emir Halilovic

14 case, which has been discussed already. And for the record, and if it

15 assists, Defence Exhibit D119, War Hospital, refers to that at page 113.

16 I just say that in case that may be of any assistance.

17 We have another exhibit from the district military court in Tuzla,

18 number KI-600/93, dated 20 August 1993. Sorry, forgive me a moment.

19 This is another document on the same case, and it's a decision to

20 conduct an investigation into Emir Halilovic on the basis of suspicion of

21 committing three murders, Slobodan Zekic, Zagorka Zekic, Stojan

22 Krsmanovic. And the decision is signed by an investigative judge of the

23 military district court in Tuzla.

24 I simply want to ask you this about the case of Emir Halilovic.

25 Isn't -- on the distinctive features of that case, that, firstly, he was

1 caught red-handed after the third murder; in other words, he was arrested

2 immediately after he committed the third of the three murders. And

3 secondly, that UNPROFOR cooperated in airlifting Halilovic by helicopter

4 to Tuzla.

5 Would you agree that those are two features of the Emir Halilovic

6 case?

7 A. I'm not sure how he was taken to Tuzla. I simply don't know. I

8 know that he arrived in Tuzla along with the respective criminal

9 complaint, or rather, charges and that was also where he was prosecuted.

10 Q. Are you aware --

11 A. And that was only following the third murder.

12 Q. And are you aware, from having spent the war in Tuzla, perhaps

13 having seen convoys of people arriving from Srebrenica, that people were

14 desperate to leave the enclave?

15 A. I'm afraid I didn't understand the question.

16 Q. Are you aware, from having been in Tuzla during the war, that

17 people from Srebrenica were desperate to leave the enclave and were

18 arriving in Tuzla, crammed into lorries whenever they could?

19 A. Yes.

20 Q. So you agree that it was very rare for UNPROFOR to airlift a

21 Bosniak out of Srebrenica by helicopter?

22 MS. SELLERS: Your Honour, excuse me, if he has knowledge.

23 THE WITNESS: Extremely exceptional.

24 MS. SELLERS: It calls for a bit of speculation on his part.

25 JUDGE AGIUS: He may have knowledge about this. I wouldn't

1 exclude knowledge on the part of the witness of this.

2 MR. JONES: He has answered in the meantime.

3 Could I have an exhibit number for that last exhibit, please?

4 JUDGE AGIUS: That will be D215 [Realtime transcript read in error

5 "D"].

6 THE REGISTRAR: Yes, Your Honour.

7 MR. JONES: Now, if the witness could be shown P507, please, which

8 also deals with Emir Halilovic. This is dated the 28th of July, 1993. In

9 fact -- in fact, my apologies, it's not in fact necessary to show the

10 witness the exhibit. I can ask questions without the aid of the exhibit.

11 My apologies.

12 JUDGE AGIUS: Just for the record, because I notice that on page

13 32, line 1, the exhibit number does not show up in the transcript. I said

14 that will be D215. Thank you.

15 MR. JONES: Thank you, Your Honour.

16 Q. Yes. It was just to ask this, Judge Tankic, about Emir Halilovic.

17 It's correct, isn't it, that he was indeed brought to justice in Tuzla

18 for killing three persons of Serbian nationality?

19 A. Yes

20 Q. Are you aware that, following his conviction, he was subjected to

21 psychiatric assessment and found to have a brain tumour and died shortly

22 after that had been diagnosed?

23 A. Yes.

24 Q. You've also been asked about the case of Pasan Mujic, who

25 attempted to kill his wife and who did kill his mother-in-law. Would you

1 agree that it was possible to deal with him in Tuzla because he had

2 actually reached the free territory of Tuzla after the fall of Srebrenica

3 in July 1995; in other words, that that's why the case was able to

4 progress to the trial stage?

5 A. Yes.

6 Q. Now, I have some questions now about the court archives in

7 Srebrenica and the fall of Srebrenica. If you could be shown P505. And

8 in the B/C/S it's ERN 03615758; in the English, it should be page 5 of

9 22. I say "should be" because it hasn't always been easy to navigate.

10 This is a document from Dzuzida Akagic, dated, I think it is, the

11 3rd of November, 1995, so four months after the fall of Srebrenica. And

12 it states: "Having in mind the unexpected development of the situation in

13 Srebrenica, which is known to everyone, all cases of the basic public

14 office of the prosecutor were left in the building of the basic court in

15 Srebrenica on the second floor."

16 I don't know if you see that. The page is 03615758, at the top

17 right-hand corner. It should be [B/C/S spoken], in the third paragraph,

18 second sentence.

19 Do you agree, firstly, that that phrase, "the unexpected

20 development of the situation in Srebrenica," refers to the fall of

21 Srebrenica in July 1995?

22 A. Yes.

23 Q. And would you understand, from this, or did you understand when

24 you read this document, that as a result of the sudden, unexpected fall of

25 Srebrenica, the prosecutor and judges had to flee and that they left all

1 the court files behind?

2 A. Yes.

3 Q. So you don't exclude the possibility, do you, when you say that

4 -- well, you don't exclude the possibility, do you, that there were cases

5 in Srebrenica which were never pursued or transferred to Tuzla precisely

6 because of the fall of Srebrenica and the loss of the archives?

7 A. Yes. I can't exclude that possibility, no.

8 Q. Now, I refer you to 03615764 of the same exhibit, and in English,

9 it should be page 10 of 22. It's halfway down the page in the B/C/S,

10 where it says [B/C/S spoken]. It has the date 7/7/93, I believe.

11 JUDGE AGIUS: In English?

12 MR. JONES: It should be page 10.

13 JUDGE AGIUS: Page 10.

14 MR. JONES:

15 Q. So in English, it's: "The public prosecutor's office, Srebrenica,

16 was working until 7/7/1995 when an offence on Srebrenica started and when

17 we had to leave Srebrenica as displaced persons on 13/7/1995. As a result

18 of an unexpected situation, the following documentation of the public

19 prosecutor's office had remained in Srebrenica."

20 Do you see that, Judge Tankic?

21 A. Yes.

22 Q. And then it says to round and one square seals, and then, "about

23 33 case files from 1993."

24 According to that, then, isn't it correct that 33 case files

25 dating from 1993 remained in Srebrenica when it fell to the Serbs?

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13 English transcripts.

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1 A. Yes.

2 Q. And you don't know, do you, whether those concerned serious crimes

3 within the jurisdiction of the higher court or less serious crimes?

4 A. I know, based on the report, about the types of crimes committed

5 in 1993, because the crimes, the actual crimes, we're enumerated, most of

6 them being minor crimes and not serious crimes.

7 Q. Well, I'd like to pursue that with you a little. You said that

8 war crimes cases weren't referred to Tuzla. But isn't it correct that

9 some of the murders which were referred - and I will take the example of

10 Emir Halilovic, which involved -- one of the murders involved killing a

11 Serb who was in the hospital in Srebrenica - could have been qualified as

12 war crimes, arguably, but may have simply been characterized as ordinary

13 crimes by the prosecutor. Would you accept that?

14 MS. SELLERS: Your Honour, I --

15 JUDGE AGIUS: I don't think I can allow that question, Mr. Jones.

16 That's not for the witness to decide.

17 MR. JONES: So be it, Your Honour.

18 I would ask the witness to be shown Exhibit P501, though, please.

19 Q. If you can look at that exhibit and the lines which are numbered 2

20 and 3. I'm hoping you can help us with this. I'll wait until you have it

21 in front of you.

22 Lines 2 and 3 refer to Articles 147 and 148 of the RBiH Criminal

23 Code; correct?

24 A. Yes.

25 Q. Now if the RBiH code is the same as the SFRY code, Article 147 is

1 in fact marauding, Article 148 is making use of forbidden means of

2 warfare, this is according to P496, which are in the section criminal acts

3 against humanity and international law. So I wonder if you can help us

4 with an explanation of why you say that none of the crimes which were

5 referred were actually war crimes.

6 A. Simply because all these are crimes described in the Criminal Code

7 of the republic of BNH, but these crimes are not provided for there, but

8 rather in the special provisions of the Criminal Code of the SFRY, which

9 was then adopted as a republican law.

10 Q. Right. So under republican law, which articles referred to war

11 crimes?

12 A. None.

13 Q. Does that mean that war crimes were not criminalised under

14 republican law?

15 A. Yes, but in the Criminal Code that was adopted from the SFRY.

16 Q. Right. Well, I won't pursue that. Now you were asked a number of

17 questions yesterday about Dzuzida Akagic and her competence and

18 professionalism and how she dealt with the situation in Srebrenica. So I

19 take it you consider that she could be trusted to do her job as prosecutor

20 in Srebrenica within the limits of what she had?

21 A. Precisely.

22 Q. You admit, do you not, that is just one person and not a

23 judiciary, as you referred to her yesterday? For the record, that was

24 page 61, line 1. That was one person doing the job of prosecutor;

25 correct?

1 A. Yes.

2 Q. And the steps which she took to have the jurisdiction of the High

3 Court transferred to her, that wasn't some innovation of hers, but a step

4 which the law contemplates, isn't it?

5 A. Yes.

6 Q. And she would have known that because she was a trained lawyer;

7 would you agree?

8 A. Yes.

9 Q. Your Honour, I wonder -- I know it's a bit early but I wonder if I

10 could take the break there. It's simply that I need to --

11 JUDGE AGIUS: Two minutes more and we have the break in any case.

12 MR. JONES: Is it normally 12:30? In that case could I have the

13 break now.

14 JUDGE AGIUS: Certainly.

15 MR. JONES: And -- not much longer.

16 JUDGE AGIUS: Not much longer. So we will have a 25-minute

17 break. Thank you.

18 --- Recess taken at 12.30 p.m.

19 --- On resuming at 1.02 p.m.

20 JUDGE AGIUS: So, one moment Mr. Jones until your client sits down

21 and has hid headphones on. All right, you may proceed. Thank you.

22 MR. JONES:

23 Q. Yes, thank you. Now, Judge Tankic, just a few more questions.

24 You spoke yesterday about the persons and organs which could report to the

25 military prosecutor, talking about the district military prosecutor. Now

1 do you agree that the military police or the security organ in a unit, the

2 SVB, could refer a case directly to the district military Prosecutor

3 without necessarily going through the unit commander?

4 A. Yes, I think they could.

5 Q. So, for example, an assistant commander for security in a brigade

6 could refer a case to the military prosecutor without necessarily getting

7 the approval of the brigade commander?

8 JUDGE AGIUS: I wouldn't like you to guess your answer. I mean,

9 if you know it, you know it. If you don't know it, just say so, please,

10 because this is an important question.

11 THE WITNESS: [Interpretation] The commander is superior to these

12 units, so he would have a role there, but I'm not sure about the military

13 structure. I can't be precise in my answer.

14 MR. JONES:

15 Q. In fact you told us that the military prosecutor could receive

16 information from any source? Would that be correct?

17 A. Yes.

18 Q. Now, I don't know if this is a helpful parallel or not, but I

19 would like to read you a provision from the ICTY Statute referring to the

20 powers of the prosecutor of this Tribunal and it's Article 18.1 of the

21 Statute and it says, "The Prosecutor shall initiate investigations ex

22 officio or on the basis of information obtained from any source".

23 So would you agree that that is a power similar to the one you

24 mentioned, namely, a prosecutor can obtain information from anyone?

25 A. Yes, it is similar, but according to the formal law, we had the

1 entire list of organs and persons and any citizen could file complaints so

2 we are not talking about investigations. We are only talking about

3 complaints being submitted to the prosecutor.

4 Q. And essentially that is just a matter of common sense, isn't it,

5 that a prosecutor can receive information from any source?

6 A. Yes, this is according to the law.

7 Q. Now as far as you're awareness of cases in the nature of cases

8 dealt with by the Srebrenica lower court is concerned, isn't your

9 knowledge about those cases limited in the following respects and I'll go

10 through them. Firstly, that you wouldn't know about court files which

11 were left in Srebrenica when it fell to the Serbs?

12 A. [No audible response].

13 JUDGE AGIUS: I saw you nodding, but the interpreters need to hear

14 your voice, near need to hear your answer. So please, if it is "da",

15 say "da", if it's not, say not.

16 THE WITNESS: [Interpretation] I couldn't know about those cases,

17 no.

18 MR. JONES:

19 Q. If the witness could be, please be shown Exhibit P509 that's dated

20 the 13th of November, 1995. I will just start reading the English any

21 way. It says: "Criminal cases -- it refers to criminal cases that the

22 basic public prosecutor's office in Srebrenica was dealing with until

23 first of June 1993 were not handed over to the prosecutor and it is

24 assumed they have been destroyed."

25 So isn't it right also there may be criminal cases from before 1st

1 of June 1993 which may have been destroyed from Srebrenica?

2 A. What you just quoted is a report of the higher prosecutor made

3 according to the reports from the prosecutor in Srebrenica.

4 Q. Yes. And the higher prosecutor, there's the assumption there that

5 cases might have been destroyed which dealt with the pre 1st of June 1993

6 period, doesn't she?

7 A. I think this was a competent report of the prosecutor in

8 Srebrenica. She was pretty precise when, in her report about the work in

9 1993, she said that there was -- that she found no ongoing case when she

10 took her position.

11 Q. So I'm not sure if you're seeing the bit which I'm referring to.

12 As I say, in English it says, "It's referring to criminal cases that the

13 basic public prosecutor's office in Srebrenica was dealing with until 1993

14 were not handed over to the prosecutor and it is assumed that they have

15 been destroyed". So that was really my question: Isn't it right that

16 there may have been criminal cases, the files of which were destroyed?

17 A. Yes, this follows from the report.

18 Q. Right. And you can keep that document with you because I'm going

19 to turn to another section of it. But isn't your knowledge of cases which

20 were sent to Tuzla also limited by the fact that you only reviewed the

21 reports. You didn't actually go through the archives and look at each

22 case file and so if there was any -- any case which did not appear in the

23 reports, then you wouldn't know about it.

24 A. Yes.

25 Q. And as regarding the cases you've mentioned and this is just one

1 more question on the Emir Halilovic case, can you confirm that Stojan

2 Kersmanovic is the victim of a third murder was actually a Serb who was

3 captured in Srebrenica and then was killed in the hospital?

4 A. Yes, that third murder occurred in the hospital. I can't remember

5 the name of the victim. I know that the first two murders were members of

6 the Zekic family. I'm not sure about the name and surname of the third

7 victim.

8 Q. But are you aware that the third victim was a Serb who had been

9 captured and then taken to the hospital because he was injured?

10 A. I only know that this was a Serb in the hospital.

11 Q. Now, staying with P509 for a moment, the date is the 13th of

12 November 1995, so obviously after the fall of Srebrenica. Do you agree it

13 was only after the fall and when Ms. Akagic was physically in Tuzla that

14 it was possible to receive such detailed information about what had been

15 going on in Srebrenica, that was the first time -- first time detailed

16 information was received?

17 A. These information were provided by the prosecutor, Dzuzida Akagic,

18 to the higher prosecutor, and she also reported orally about the situation

19 in the basic prosecution office in Srebrenica.

20 Q. Right. Once she was physically present in Tuzla, Ms. Akagic?

21 A. Yes.

22 MR. JONES: Now, Your Honours, as I mentioned earlier, there is a

23 passage in this document which is only in the original but which I would

24 like to get into the record. Since it is fairly lengthy, I don't propose

25 that I try and read it. I wonder if I could ask the witness to read the

1 passage, and then we will have the interpretation and it is all on the

2 record.

3 JUDGE AGIUS: Do you have any objection to that, Ms. Sellers?

4 MS. SELLERS: No, Your Honour, there is no objection.

5 JUDGE AGIUS: Let's proceed that way then, Mr. Jones.

6 MR. JONES: Thank you, Your Honour.

7 JUDGE AGIUS: Of course, the witness needs to know --

8 MR. JONES: Yes, I will direct him.

9 JUDGE AGIUS: Yes, exactly.

10 MR. JONES:

11 Q. Thank you in advance for your cooperation, Judge Tankic. If you

12 would read the passage, it's on the first page and it's the last paragraph

13 and it's the third sentence which starts: [B/C/S spoken]. If you could

14 read from there just down to the end of that page, that would be very

15 helpful, and slowly, if possible, so it can be interpreted.

16 A. "Due to the problems in acting in criminal cases falling under the

17 jurisdiction of higher prosecution and district military prosecution,

18 following the request by this prosecutor's office, the Ministry of Justice

19 of the Republic of Bosnia-Herzegovina authorised Dzuzida Akagic, starting

20 in January 1994, to carry out the duty of the High Public Prosecutor in

21 criminal cases that fall under the jurisdiction of that prosecutor's

22 office.

23 "After the information by the district military court sent to the

24 lower court in Srebrenica, numbered SU-127/94, dated 13th May 1994, this

25 prosecutor's office and the public prosecutor's office of the republic

1 submitted this prosecutor's office instructions on how to act in cases of

2 most serious criminal offences falling under the jurisdiction of the

3 district military prosecution to act in accordance with the Article 48 of

4 the Criminal Proceedings Act."

5 Q. Thank you very much. Thank you very much, indeed.

6 MR. JONES: I'm going to -- sorry, thank you. I'm going to pass

7 up a new exhibit, which is a copy of Article 48 of the Criminal Procedure

8 Code so that we can see what that's about. For the record, it is [B/C/S/

9 spoken] third amended edition, and we have a first copy of the cover page.

10 Q. Now, Judge Tankic, if you could look at Article 48 of the Criminal

11 Procedure Code, I will read the translation in English, which we have.

12 It's an untranslation, it's our translation: "When there is the danger of

13 delay, a public prosecutor lacking jurisdiction shall also undertake

14 actions in the proceeding, but he or she must immediately inform the

15 competent public prosecutor about it."

16 Now, we've just seen in that document mention of Article 48, and

17 it's a document from the Tuzla prosecutor, Vildana Helic. Isn't it right

18 that, by referring to Article 48 there, it's clear that in Tuzla she still

19 considers that Ms. Akagic was not the authorised person to conduct

20 investigations and that therefore she could only function in accordance

21 with Article 48?

22 A. But only when it came to military persons.

23 Q. Because she wasn't authorised otherwise to act -- to exercise

24 jurisdiction over military persons?

25 A. Yes.

1 Q. Thank you.

2 MR. JONES: I have no further questions. I would ask for that

3 document to be given an exhibit number.

4 JUDGE AGIUS: That will be P216.

5 THE REGISTRAR: Thank you, Your Honour.

6 MR. JONES: Yes. D216.

7 JUDGE AGIUS: D. I thank you, Mr. Jones. Correct, it is D, "D"

8 for David, D216.

9 MR. JONES: Yes. Thank you very much.

10 JUDGE AGIUS: I thank you, Mr. Jones.

11 Ms. Sellers, is there re-examination?

12 MS. SELLERS: Yes, Your Honour, there will be a couple of points

13 for re-examination.

14 JUDGE AGIUS: Yes. Please go ahead and allow some time for us to

15 put some questions too, please.

16 MS. SELLERS: Certainly.

17 JUDGE AGIUS: And then the judge can go home.

18 MS. SELLERS: Yes.

19 Re-examined by Ms. Sellers:

20 Q. Judge Tankic, I will just ask a couple of questions. Would it be

21 your opinion that, in August of 1992, if war crimes were to have been

22 committed, that there would have been an obligation, therefore, to report

23 such war crimes via any mechanism to the High Court in Tuzla who retained

24 jurisdiction at that point?

25 A. The high prosecutor in Tuzla should have been informed.

1 Q. And would it also be your testimony that if one were unaware that

2 the district military court in Tuzla had been enacted and was functioning,

3 that that person would continue to report any war crimes that might have

4 been committed in the months of September or December or January to the

5 high prosecutor's office in Tuzla?

6 A. Yes.

7 Q. Therefore, could one conclude that there would never be a

8 jurisdictional lacuna or gap, particularly in the nature of crimes such as

9 war crimes 141, 142, 143, 144, under the criminal statute, when it came to

10 at least reporting these crimes and eventually prosecuting them?

11 MR. JONES: Sorry, I do object to that question as being, A,

12 leading and, B, trying to elicit opinion evidence by someone who isn't an

13 expert.

14 MS. SELLERS: Let me rephrase the question.

15 JUDGE AGIUS: Yes, Ms. Sellers.

16 MS. SELLERS:

17 Q. Judge Tankic, was there a jurisdictional gap, meaning therefore

18 lack of jurisdiction, during a certain time period as it pertained to war

19 crimes under the Penal Code?

20 A. No.

21 Q. Was the territory of Srebrenica, therefore, always covered by some

22 legal court and prosecutor's office that had jurisdiction over war crimes?

23 A. Yes, apart from the objective difficulties.

24 Q. Now, exactly addressing some of those objective difficulties, the

25 ability to convey information, would you see that as being different from

1 the ability to ensure that a court proceeding, such as a trial, took

2 place?

3 A. If there was blockade, they could only try to secure evidence and

4 other things at the time and wait for a more favourable moment to report

5 that.

6 Q. And would those have been reasonable, reasonable means and steps

7 to take in the absence of more -- a more facilitated manner of

8 communication, when war crimes are --

9 MR. JONES: Again, that's asking for opinion evidence, whether

10 it's reasonable or not. I don't think this witness is in a position to

11 answer that sort of question.

12 JUDGE AGIUS: Objection sustained.

13 MS. SELLERS:

14 Q. Judge Tankic, as a judge, would proper steps have been to at least

15 attempt to secure the crime scene, secure evidence, and secure the person

16 before a prosecutor could take further steps of initiating an

17 investigation?

18 A. Yes, this is in accordance with the law.

19 Q. Judge Tankic, prior to the establishment of the public

20 prosecutor's office in Srebrenica in 1993, in June of 1993, would it,

21 therefore, have been appropriate for any organ or any person who was aware

22 that war crimes had been committed to keep paperwork, either in their own

23 office or to convey them directly to the district military prosecutor?

24 MR. JONES: I'm sorry, I don't want to be objecting the whole

25 time, but all of these questions are both leading and seeking to elicit

1 evidence. If he's being asked -- if Judge Tankic is being asked what did

2 the law provide, then that's fine. If he's being asked something which he

3 has experience of, then that's fine. But it seems to be going to a string

4 of questions, saying what would reasonable steps be. And apart from

5 anything else, it is usurping Your Honours' function, with respect, as to

6 what reasonable steps should be taken by someone in any given situation.

7 JUDGE AGIUS: Mr. Jones, I thank you for your observation, and you

8 notice -- you must have noticed that I upheld your previous objection, but

9 this is somewhat different. This question, it's not a question of

10 reasonableness, but it's a question of a legal assessment that the witness

11 is being asked to make, I assume, on the basis of the law.

12 MR. JONES: Well, other words are being substituted, "proper" and

13 "appropriate" for "reasonable", but none of the questions are actually

14 asking, What did the law provide? And so this witness is going to give

15 his evidence -- give opinion evidence about what would be reasonable steps

16 for someone to take, and I don't see that he is qualified as an expert to

17 give that evidence.

18 JUDGE AGIUS: He's not being asked as an expert. He's being asked

19 as a prosecutor at the time and a judge, also at the time, around about

20 that time, whether this was a legal practice or not, you know.

21 MR. JONES: Provided he's sticking with what the law provides I

22 don't have any objection.

23 JUDGE AGIUS: Yes. That's why I'm not upholding your objection,

24 because otherwise I would have upheld that just as I did with the previous

25 one. But here it is not a question of making an assessment as to whether

1 it is reasonable or not. It's a question of whether this would be legal

2 or whether it will be outside the parameters of the law.

3 MR. JONES: So be it, Your Honour.

4 JUDGE AGIUS: Thank you, Mr. Jones. Do you want to repeat the

5 question, Ms. Sellers, because by now we have lost the transcript.

6 MS. SELLERS: Certainly, Your Honour, I would just like to see the

7 transcript again.

8 Q. Judge Tankic, I asked you would it be the proper steps, under what

9 would be legal and proper steps therefore to secure the crime scene,

10 secure the evidence and secure the person if they had known that war

11 crimes had been committed before a prosecutor could take further steps at

12 the initiating of an investigation?

13 MS. SELLERS: I'm sorry, Your Honour. I understand now that it's

14 the subsequent question, if I could just state that. It's Judge Tankic,

15 prior to the establishment of the public prosecutor's office in Srebrenica

16 in 1993, in June of 1993, would it therefore have been appropriate for any

17 organ or any person who is aware that war crimes had been committed to

18 keep paperwork either in their own office or to convey them directly to

19 the district military prosecutor's office.

20 JUDGE AGIUS: And by -- and by appropriate, please understand

21 legally permissible or lawful, and don't go beyond that.

22 THE WITNESS: [Interpretation] We must distinguish between a

23 complaint on the one hand and evidence on the other. Anyone could have

24 filed a complaint. As for securing any evidence, only authorised

25 personnel would have been authorised to do that sort of thing; the

1 civilian police, the military police, bodies of law enforcement.

2 MS. SELLERS:

3 Q. And Judge Tankic, even though it appears that prolonged detention

4 was problematic in Srebrenica, did that obviate the obligation of

5 commanders or persons in positions of responsibility from at least

6 detaining someone for 15 days if they had committed war crimes?

7 A. As concerns detention, if you look at the law on criminal

8 procedure, only an investigating magistrate can order detention, or later

9 a trial chamber may as well order detention, but that is at a later stage.

10 Under the military rules, I believe it's slightly different, but I don't

11 have any specific knowledge of that that would enable me to answer your

12 question. I do know, however, that under the law on criminal procedure,

13 that was adopted, a commander was under an obligation to secure all

14 evidence to detain the perpetrator, to secure the crime scene until a

15 prosecutor was informed. This is an explicit obligation under the law.

16 Q. Yes. Judge Tankic, right now I'm -- Your Honour, as Defence

17 counsel, I draw your attention to Prosecution Exhibit P497. Similar to

18 what Defence counsel did, I will read out the pertinent part in order to

19 save a bit of time. This has already been entered as an exhibit.

20 I would like to draw attention to Article 27, that says: "The

21 military commander or the military unit institution is obliged to inform

22 immediately the district military prosecutor or supreme commander about

23 the information referred to in paragraph 1". Paragraph 1 talks about the

24 commander of the unit and securing a person who committed criminal acts

25 for which official prosecution is foreseen.

1 Judge Tankic, would you agree that in the absence of being able to

2 directly inform the district military prosecutor that the military

3 commander then had the option of informing the supreme commander according

4 to the statutory order on district military courts?

5 A. Yes.

6 Q. I would also, within the same document, like to draw your

7 attention to Article 29. At the end of Article 29, it says that: "If the

8 military commander or the authorised official person is not able to do

9 so", referring to detention, "he is immediately", latest within 8 hours,

10 "obliged to inform an examining magistrate of the district military court

11 or the nearest military unit or institution which shall take the prisoner

12 to the examined magistrate of the district military court". And Judge

13 Tankic, my question: Is it foreseen within the law, these exceptional

14 circumstances or alternative circumstances in terms of detention for

15 military commanders?

16 A. Yes.

17 Q. Your Honour, I have just a few questions left. I would like

18 Prosecution Exhibit P46 to be placed on Sanctions. I believe that we can

19 look at it from there.

20 MR. JONES: I don't believe I referred to P46 in my

21 cross-examination. I wonder if this arises from cross-examination.

22 JUDGE AGIUS: I don't know what the question is going to be and

23 what prompts Ms. Sellers to refer to P46. I haven't got a clue, as yet.

24 MS. SELLERS: Your Honour, I can certainly make a proffer of

25 evidence. Defence counsel did spend quite a bit of time on the lack of

1 knowledge, within the enclave of Srebrenica, concerning the district

2 military court, the non-arrival of gazettes or of information.

3 JUDGE AGIUS: So let's cut it short. What do you purport to prove

4 by reference to P46?

5 MS. SELLERS: My reference to P46 I would like to show that

6 certainly not only was the existence of a district military court known,

7 security organs knew it and they were -- they have produced documents.

8 JUDGE AGIUS: Okay.

9 MR. JONES: But they refer to the military High Court in that

10 document, that's --

11 JUDGE AGIUS: I don't know. I haven't seen the document. Let's

12 see -- let's see what the question is, Mr. Jones. I think it does arise

13 out of your cross-examination, but at least to -- I would say to a large

14 extent I would say. Let's proceed. Is the document on Sanction or...

15 MS. SELLERS: It is. Mr. Tankic, I would ask you to look at

16 document P46, which you have seen before, and, once again, I would ask:

17 Do you consider the last sentence in this document to be reference to the

18 district military court or referred to a military institution that was

19 capable of taking crimes alleged to have been committed by certain

20 persons.

21 MR. JONES: Now that I've heard the question, I do object because

22 he was asked that exact question in examination-in-chief and again it's

23 the same problem here is written military High Court and he is being asked

24 to

25 -- he is being asked for the second time to say that that is the Tuzla

1 district military court when he doesn't know. He's not the author.

2 JUDGE AGIUS: Yes, I think that was covered during your

3 examination-in-chief, with documents -- other documents that used exactly

4 the same terminology.

5 MS. SELLERS: Yes, Your Honour.

6 JUDGE AGIUS: So let's skip to the next question, please.

7 MS. SELLERS:

8 Q. Then the next question, Your Honour, would consider the third

9 murder in the hospital that could have fallen under, according to Defence,

10 an article that pertained to war crimes.

11 I ask you, Judge Tankic, therefore would you -- assuming that this

12 crime did fall under war crimes, would you therefore be in a position to

13 state that authorities in Srebrenica were aware of the existence that war

14 crimes could be tried?

15 JUDGE AGIUS: Don't answer that question, Judge. Next question,

16 Ms. Sellers. I didn't allow -- I didn't allow Mr. Jones to proceed with

17 that line of questioning when it came -- when it came to that matter. So

18 why take it up as if I hadn't --

19 MS. SELLERS: Then, Your Honour, my final question.

20 JUDGE AGIUS: -- taken any steps.

21 MS. SELLERS: My final question is: Judge Tankic, would you agree

22 that any manner of bringing a complaint of the district military office or

23 conveying information, would not be dependent, legally, on the extent of

24 functioning of a district military office once it had jurisdiction?

25 A. I'm afraid I didn't understand the question.

1 Q. Judge Tankic, is the legal obligation to report criminal

2 information to the district military court based upon or dependent upon

3 the extent of that court's functioning?

4 MR. JONES: That's under Bosnian law -- I hope, otherwise, Your

5 Honour, he's being asked questions about the ultimate issue which Your

6 Honours will have to decide.

7 JUDGE AGIUS: Correct, Mr. Jones.

8 MS. SELLERS: Let's say under the statutory law from Bosnia that

9 we have seen and the law within the gazette.

10 JUDGE AGIUS: You would be opening a Pandora's box because the

11 next question I would ask -- would the principle of impossibility apply

12 under Bosnian law. Come on, let's leave it at that Ms. Sellers. Please,

13 because you can't expect that much from the witness -- but not too much.

14 MS. SELLERS: Okay, certainly. I'll withdraw that.

15 JUDGE AGIUS: So do you have any -- and do you have any. Yes,

16 Judge, we have almost finished. Our practice here is that the Bench, if

17 there are some questions for you, will do that, will -- Judge Brydensholt

18 has got a question for you. Thank you.

19 Questioned by the Court:

20 JUDGE BRYDENSHOLT: I understand that according to the laws which

21 were in Bosnia-Herzegovina in 1992, 1993, it was right for everybody to

22 submit a complaint, a report to the prosecution office. But I think you

23 also said that it was an obligation, it was not only something which

24 everybody would have the power to do, but it was even an obligation. Is

25 that rightly understood?

1 THE WITNESS: [Interpretation] Precisely.

2 JUDGE BRYDENSHOLT: And among those institutions which were under

3 such an obligation, I think you mentioned also a hospital as a public

4 institution. So if a hospital would see that a person had been violated

5 seriously, they would be under an obligation to report that, is that

6 rightly understood?

7 THE WITNESS: [Interpretation] Yes.

8 JUDGE BRYDENSHOLT: Thank you. I have no further questions.

9 JUDGE AGIUS: Yes, I don't have any questions either, Judge, which

10 means that we have come to an end, to the end of your testimony. Judge

11 Tankic, I would like to thank you on my own behalf, on behalf of Judge

12 Brydensholt and on behalf of Judge Eser but also on behalf of the Tribunal

13 for having been so kind as to come over and give testimony in this case

14 against Naser Oric.

15 You will soon be escorted out of the courtroom by our usher, who

16 will ensure together with the rest of the stuff that you receive all of

17 the attention and the assistance you require to enable your return back

18 home at the earliest possible -- at the earliest possible.

19 On my own behalf, but also on behalf of everyone present here in

20 this courtroom, I should also like to wish you a safe journey back home.

21 I thank you.

22 THE WITNESS: [Interpretation] Thank you very much, Your Honours.

23 JUDGE AGIUS: We will resume on Monday and that is in the

24 afternoon.

25 MR. JONES: Yes.

1 JUDGE AGIUS: Yes, Mr. Jones.

2 MR. JONES: I was just going to say that on that occasion I should

3 be joined by my lead counsel, but I think it is one of those occasions

4 when those of Islamic faith say "inshallah".

5 JUDGE AGIUS: Okay, thank you.

6 --- Whereupon the hearing adjourned at 1.40 p.m., to

7 be reconvened on Monday, the 14th day of March,

8 2005, at 2.15 p.m.

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