Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12890

 1                           Monday, 19 July 2010

 2                           [Open session]

 3                           [The accused entered court]

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

 5             JUDGE MOLOTO:  Good morning to everybody in and around the

 6     courtroom.  Could you please call the case, Mr. Registrar.

 7             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 8     everyone in and around the courtroom.  This is case number IT-04-81-T,

 9     the Prosecutor versus Momcilo Perisic.  Thank you.

10             JUDGE MOLOTO:  Thank you so much.  Could we have appearances for

11     the day starting with the Prosecution.

12             MR. THOMAS:  Morning Your Honours, good morning to everybody in

13     and around the courtroom.  Inger de Ru, April Carter, and Barney Thomas

14     for the Prosecution this morning.

15             JUDGE MOLOTO:  Thank you so much, Mr. Thomas.  And for the

16     Defence.

17             MR. GUY-SMITH:  Good morning to all.  Tina Drolec,

18     Oonagh O'Connor, Novak Lukic, Gregor Guy-Smith and Boris Zorko on behalf

19     of Mr. Perisic.  And Mr. Zorko will be leading the witness this morning,

20     Your Honour.

21             JUDGE MOLOTO:  Mr. Zorko.

22             MR. ZORKO: [Interpretation] Thank you, Your Honour.  Our next

23     witness is Mr. Radomir Gojovic.

24                           [The witness entered court]

25             JUDGE MOLOTO:  May the witness please make the declaration.  May

Page 12891

 1     he please make the declaration.

 2             THE WITNESS: [Interpretation] I solemnly declare that I will

 3     speak the truth, the whole truth, and nothing but the truth.

 4                           WITNESS:  RADOMIR GOJOVIC

 5                           [Witness answered through interpreter]

 6             JUDGE MOLOTO:  Thank you very much.  You may be seated, sir.  And

 7     good morning to you.

 8             THE WITNESS: [Interpretation] Good morning.

 9             JUDGE MOLOTO:  Yes, Mr. Zorko.

10                           Examination by Mr. Zorko:

11        Q.   [Interpretation] Good morning, Mr. Gojovic.

12        A.   Good morning.

13        Q.   First of all, for the record, I'd like to ask you to give us your

14     first and last name.

15        A.   I am Radomir Gojovic.

16        Q.   And your date and place of birth?

17        A.   I was born on the 1st of February, 1943, in the village of

18     Sekiraca, the Kursumlija municipality, the Republic of Serbia.

19        Q.   You are not appearing before this court for the first time.  Can

20     you tell us in what trials you testified and when?

21        A.   I testified in the Slobodan Milosevic trial and in the

22     Ojdanic et al trial, all the others incorporated in that indictment.  And

23     in the Djordjevic trial.  I don't know what his first name is.

24     Vlastimir Djordjevic, that's right.

25        Q.   Thank you.  Now, General, although you are not here for the first

Page 12892

 1     time, I am going to tell you of some rules we have to observe during the

 2     proceedings.  And to be efficient in our work, so after my question and

 3     your answer -- or rather after my question, please pause before you give

 4     your answer and you can also look at how your words appear on the screen

 5     in front of you.

 6             General, briefly, I'm going to go through your curriculum vitae

 7     and you will confirm whether what I've read out is correct, once again

 8     for the record.

 9             You graduated from the gymnasium in Sarajevo and then the Faculty

10     of Law in Sarajevo on the 28th of June, 1971; is that right?

11        A.   Yes, that's right.

12        Q.   You did your internship at the military court with the military

13     prosecutor and the Ministry of Justice in Sarajevo.  After taking your

14     bar exam you were the deputy prosecutor in Sarajevo from March 1973 until

15     the 31st of October, 1976; is that right?

16        A.   Yes, that's correct.

17        Q.   From November 1976 up until the 12th of October, 1980, the

18     investigating judge at the military court in Sarajevo; right?

19        A.   Yes.

20        Q.   From the 13th of October, 1980, to the end of 1984, you were the

21     deputy military defender of the military disciplinary court of the

22     command of the 7th Army; right?

23        A.   Yes.

24        Q.   From the 1st of January, 1985, until June 1988 you were a judge,

25     the president of the criminal chamber at the military court in Sarajevo;

Page 12893

 1     right?

 2        A.   Yes.

 3        Q.   From the 1st of July, 1988, until the end of 19 -- or rather,

 4     from the 1st of July, 1988, to the end of 1989 you were the deputy

 5     military prosecutor in Sarajevo; right?

 6        A.   Yes.

 7        Q.   In the meantime, you received your MA from the Faculty of Law in

 8     Belgrade in the chair for criminal law on the 2nd of November, 1989;

 9     right?

10        A.   Yes.

11        Q.   From the 1st of January, 1990, you were the military prosecutor

12     in Sarajevo until the end of June 1992; is that right?

13        A.   Yes.

14        Q.   From the 1st of July, 1992, until the 31st of December, 1993, you

15     were the deputy supreme military prosecutor in Belgrade; correct?

16        A.   Yes.

17        Q.   From the 1st of January, 1994, until the 16th of April, 1999, you

18     were the president of the military court in Belgrade; correct?

19        A.   Yes.

20        Q.   From the 16th of April, 1990, until the 31st of March, 2001, you

21     were the chief of the legal administration in the General Staff of the

22     Army of Yugoslavia in the Ministry of Defence; correct?

23             THE INTERPRETER:  Interpreter's correction:  April 1999.

24             THE WITNESS: [Interpretation] I'd just like to say in the

25     General Staff of the Army of Yugoslavia first and then in the Ministry of

Page 12894

 1     Defence because those were two different institutions.

 2             MR. ZORKO: [Interpretation]

 3        Q.   I see.  Thank you.  Your professional military service ceased on

 4     the 1st of April, 2001 when you reached mandatory retirement conditions?

 5        A.   Yes.

 6        Q.   Therefore, General, in addition to your troop service in the

 7     military education and training which lasted for ten years in the legal

 8     service, first of all in the Yugoslav People's Army and then in the Army

 9     of the Federal Republic of Yugoslavia, you performed all the functions

10     that were required over a 30-year period; correct?

11        A.   Yes, from that review you can see my professional development in

12     the legal military organs, et cetera.

13        Q.   General, in addition to these professional duties that you had,

14     did you have any other functions in the course of your career?

15        A.   Yes, I did.  After I had retired in the General Staff in the

16     Ministry of Defence of the Army of Yugoslavia, a commission was

17     established for co-operation with the International Criminal Tribunal

18     here in The Hague, and I was elected to be the deputy president of the

19     commission.  I accepted that post, so I was the only pensioner, or

20     rather, there were two of us, two of us were retired, all the rest were

21     professional officers from the General Staff and the Ministry of Defence

22     in that commission and the commission numbered some ten member, some

23     eight members.

24        Q.   All right.  Thank you, General.  Now, General, can you briefly

25     explain to us what in the SFRY, and later on in the Federal Republic of

Page 12895

 1     Yugoslavia, the military justice office represented?  What did the

 2     judiciary represent in the sense of its work, its responsibilities and so

 3     on?

 4        A.   Based on the law governing military courts in the Socialist

 5     Federal Republic of Yugoslavia and later on in the Federal Republic of

 6     Yugoslavia, military courts were independent and autonomous institutions

 7     in the system of justice and jurisdiction in the country in addition to

 8     the other regular civilian courts.  And they were in charge of trying

 9     members of the Army of Yugoslavia, or rather the Army of the Socialist

10     Federal Republic of Yugoslavia and certain other individuals outside the

11     army for specific crimes under the law governing military courts.

12             THE INTERPRETER:  Microphone, please.

13             JUDGE MOLOTO:  Microphone Mr. Zorko.

14             MR. ZORKO: [Interpretation] I apologise.

15        Q.   General, in view of the crisis that existed in the beginning of

16     the 1990s in the SFRY, can you explain to us what happened to the

17     existing military judiciary with respect to the crises and its

18     development and the ultimate dissolution of the state?

19        A.   With the escalation of the crisis in the Socialist Federal

20     Republic of Yugoslavia, we saw a violent cessation by certain units,

21     republics; first of all this occurred in Slovenia, and when the decision

22     was taken for the units of the Yugoslav People's Army to withdraw from

23     that territory, this held true for the military courts and military

24     prosecutors too, so the military court and military prosecuted in

25     Ljubljana, because the seat was in Ljubljana, the capital of Slovenia,

Page 12896

 1     ceased to function and this later on was mirrored and happened in Croatia

 2     so that the military court in Croatia, in Zagreb --

 3             JUDGE MOLOTO:  Sorry, sir, we are trying to type what you are

 4     saying and you are talking too fast.  You are leaving the typist behind.

 5     Could you please just slow down so that we are able to keep pace with

 6     you.

 7             THE WITNESS: [Interpretation] Yes, thank you.  I apologise.  Let

 8     me repeat what I just said.

 9             JUDGE MOLOTO:  Please do.

10             THE WITNESS: [Interpretation] After the violent cessation of

11     Slovenia when the decision was made at the level of the SFRY for the

12     units of the Yugoslav People's Army to withdraw from the territory of

13     Slovenia, the work of the military court ceased and it had its seat up

14     until then in Ljubljana.  Furthermore, when the situation in Croatia

15     escalated and when the units of the JNA withdrew from the territory of

16     the Republic of Croatia, the military court and military prosecutor's

17     office ceased functioning in Zagreb, and the military court and military

18     prosecutor's office for the navy, the seat of which was in Split, with a

19     part of the judges and some of the prosecutors, was relocated to the

20     Republic of Montenegro to a small place called Tivat on the shores of the

21     Adriatic coast.  And that is where they continued to work under the new

22     conditions.

23             In 1992, the situation escalated in Bosnia and Herzegovina so

24     that the same thing happened, and from that republic the units of the JNA

25     were withdrawn from the territory, and the military court and military

Page 12897

 1     prosecutor ceased functioning in Sarajevo at the end of May 1992.  And

 2     after that from the military prosecutor's office in Sarajevo I moved to

 3     Belgrade.

 4             After that the military court under these conditions re-organised

 5     themselves, so to speak, and the military court and the military

 6     prosecutor's office continued to operate in Belgrade, as well as those in

 7     Tivat and the military and the military prosecutor's office in Nis.  So

 8     they operated on the territorial principle.  Later on, the military court

 9     moved from Tivat to Podgorica where a military court was set up there

10     that took over the jurisdiction of the military court from Tivat for the

11     territory of Montenegro and part of Serbia.

12             MR. ZORKO: [Interpretation]

13        Q.   Thank you, General.

14             MR. ZORKO: [Interpretation] Could I please have in e-court

15     document of the Prosecution P1187, and at the same time I would kindly

16     ask the usher to give the binder to the witness.  Of course it should

17     first be shown to the Prosecution so that we can continue to work

18     smoothly.

19        Q.   General, the document that we see on our screens is marked with

20     tab 2 in your binder.  That's where you can find it.  General, do you

21     recognise this document?

22        A.   This is the Law on Military Courts published in the

23     "Official Gazette" of the Federal Republic of Yugoslavia in 1995.

24        Q.   Thank you.  Please focus your attention on Article 2 which reads

25     that the military courts in executing their judicial function shall be

Page 12898

 1     independent and autonomous.  Can you please explain in more detail what

 2     this independence and autonomous status of military courts means?

 3        A.   It is very well known in theory that there are three branches in

 4     any state, i.e., the executive branch, the judiciary, and the executive.

 5     They are all independent from one another.  Military courts in the

 6     Federal Republic of Yugoslavia were completely independent from the two

 7     remaining branches of government because one of the two branches can have

 8     any influence on the third branch, which is to say judiciary.  So this,

 9     in short, meant that the courts were independent.  As far as autonomous

10     work of the court refers to -- that refers to the judges which means that

11     they carry out their duties completely independently and they operate

12     according to their discretion.  They do not render judgements under

13     anyone's influence or suggestion or proposals.

14        Q.   Thank you, General.  Can you please look now at Article 28.

15             MR. ZORKO: [Interpretation] That's page 3 in B/C/S and page 15 in

16     English.

17        Q.   General, can you see that article?

18        A.   Yes.

19        Q.   I'm not going to read the text of this article.  I would like to

20     ask you about the permanence of tenure?

21        A.   Yes, that is what is provided here under Article 22 when it comes

22     to the position of a judge.  Once a judge is appointed to this post, that

23     is an indefinite appointment which is not limited in time and that is the

24     factor that guarantees his independence by providing him with security in

25     his post.  And it can be fulfilled only under the conditions as provided

Page 12899

 1     under this law.  Unlike some other solutions where judges were appointed

 2     to a four-year tenure and were entitled to be re-elected, here we have a

 3     different situation which was very progressive and modern one, which

 4     granted the Judges a permanent tenure.

 5        Q.   Thank you, General.  Tell us, who is it who appoints the military

 6     judges to their functions?

 7        A.   The military judges and military prosecutors are appointed by the

 8     president of the republic by his decree based on the detailed proposal,

 9     later called detailed opinion, provided by the minister of defence.

10        Q.   General, let us be quite clear.  When we are talking about the

11     appointment of judges now, we are talking about the situation in the FRY;

12     is that correct?

13        A.   Yes, it is.

14        Q.   All right.  Thank you.  General, in Articles 9 and 10 there is

15     mention of jurisdiction of the military courts.  With regard to which

16     criminal offences do we have the jurisdiction afforded to military

17     courts?

18        A.   According to Article 9 of the Law on Military Courts, the

19     military courts try military personnel for all criminal offences

20     committed by them.  These criminal offences are listed in the

21     Criminal Code.  In addition to that, the military courts conduct trials

22     against other individuals as well.  These other individuals include

23     civilians or non-military personnel but for very specific criminal

24     offences, and these specific criminal offences are also included in the

25     Law on Military Courts by granting jurisdiction to the military courts to

Page 12900

 1     try such individuals for such offences.

 2             And it also tries civilians serving or working in the army for

 3     the offences relating to their service.

 4        Q.   Thank you, General.

 5             MR. ZORKO:  [Interpretation] Can we now look at page 2 in B/C/S

 6     and page 5 in English where we have the aforementioned articles.

 7        Q.   General, does this jurisdiction include conducting trials by

 8     military courts in the FRY with respect to the criminal offences against

 9     humanity and international criminal law?

10        A.   Yes, if it involves military personnel, so all the crimes,

11     criminal acts, provided by the criminal law including the acts against

12     the international criminal law.

13        Q.   You said against military personnel, didn't you?  There's

14     probably some distinction there, can you tell us what was the case with

15     civilians, under whose jurisdiction did they fall?

16        A.   Speaking about criminal offences against international criminal

17     law, if they are committed by another individual then a civilian court

18     has jurisdiction, not a military court.

19        Q.   There were also civilian prosecutors in the judiciary of the

20     Federal Republic of Yugoslavia; right?

21        A.   Of course, because without a prosecutor, no court can operate.

22     There is an interface between the two.

23        Q.   Thank you.  General, if a criminal act is committed by a number

24     of co-perpetrators but only a few of them are military personnel, who has

25     the jurisdiction in such cases, a military court or a civilian court?

Page 12901

 1        A.   Article 12 provides that if members of the military and the

 2     civilians commit a criminal act jointly, but this is not a crime that

 3     falls under the jurisdiction of the military court, then, in that

 4     instance, the court that has jurisdiction of the civilian individual has

 5     jurisdiction of the military personnel as well.  So in that case it means

 6     a civilian court will try a member of the military who committed a crime

 7     together with a civilian, provided they did not commit a criminal act

 8     that is enshrined in the Law on the Military courts that we mentioned

 9     earlier.

10             MR. ZORKO:  [Interpretation] Just one correction in the

11     transcript, line 14 -- no, line 15, page 12, it should say exclusive

12     jurisdiction.  That's now all right.  Thank you for this correction.

13        Q.   General, did the law speak about command responsibility in the

14     period that we are discussing as one of the forms of liabilities?

15        A.   In the Criminal Code of the Socialist Federal Republic of

16     Yugoslavia and later on in the criminal judiciary system of the FRY,

17     there is no command responsibility provided as liability with respect to

18     committing a criminal offence, including offences against international

19     criminal law.  There is only -- there's not only direct intent, but a

20     qualified intent which means that there should be a clear intent to

21     commit a certain crime.

22             So the only form of liability is direct intent with additional

23     intention to commit a crime.  Other than that, there was no mention of

24     the so-called command responsibility which is based on objective

25     responsibility.  It would mean that it would suffice that if you have a

Page 12902

 1     commanding officer and someone commits a crime, the commanding officer

 2     should have known or would have known about this felony and thereby

 3     should be held responsible.

 4        Q.   Thank you, General.  Speaking about criminal prosecution in the

 5     FRY, can you tell us whether there were any priorities set out with

 6     regard to criminal prosecution?

 7        A.   In principle, in the work of military prosecutors and prosecutors

 8     in general who are authorised to prosecute individuals for criminal acts,

 9     it goes without saying that his priorities would be to prosecute the

10     perpetrators who committed the most serious crimes.  The same applies to

11     the courts.  That's the principle of how these institutions operate.

12     These cases are given priority because they carry a much more serious

13     social peril and produce more serious consequences, and therefore, they

14     are given priority compared to some lesser crimes or ordinary criminal

15     acts.

16        Q.   Thank you, General.  Speaking about the status of a military

17     personnel, do the military courts have jurisdiction, as well as the

18     Prosecutors, with regard to conducting proceedings against such

19     individuals for acts committed during their professional service, or is

20     there any change under such circumstances with regard to jurisdiction?

21        A.   Awhile ago we spoke about the overall jurisdiction of military

22     courts to try military personnel, so for as long as one is a member of

23     the military, the law provides precisely who is afforded the status of a

24     member of the military.  First of all, these are professional soldiers

25     commissioned and non-commissioned officers, conscripts, reservists,

Page 12903

 1     et cetera.

 2             In life it often happens that someone's status of that nature

 3     ceases to exist within this period.  For example, an officer whose

 4     active-duty service is terminated is no longer a member of the military.

 5     Under some circumstances if a criminal proceedings are instituted, after

 6     the suspension of the status, the jurisdiction of the continued

 7     prosecution comes into question.  In such situations, if this does not

 8     involve criminal acts or other criminal offences that are specifically

 9     under the jurisdiction of military courts, the military courts will

10     relinquish their jurisdiction and will no longer act against such

11     individuals provided the indictment has become legally valid.  If that

12     was the case, it was the military courts who are obliged to bring the

13     proceedings to the end.  If we are talking about the stage of

14     investigation or pre-trial proceedings, the military courts cannot try

15     such individuals and these cases are deferred to civilian prosecutors and

16     civilian courts.

17        Q.   Thank you, General.  Can you explain to us, with respect to

18     proceedings, what it means when an indictment becomes fully valid, comes

19     into force or legally valid?

20        A.   Once the prosecutor raises an indictment and presents it to the

21     court, there is a phase during which the indictment is re-examined by the

22     court.  During that stage of re-examination, that is to say the judge who

23     receives the case first of all checks to see whether the indictment was

24     raised by the competent prosecutor, whether it fulfills all the legal

25     conditions and elements stipulated for an indictment, and whether it is a

Page 12904

 1     crime which is provided for in the indictment for which the prosecutor

 2     states his views.

 3             Now, if all these formal conditions have been met, the president

 4     of the chamber verifies to see whether the court is still responsible or

 5     not, whether it has jurisdiction to see whether the individual has -- is

 6     no longer an employee of the army.

 7             Now, if that is not the case, then the indictment is sent to the

 8     accused and to his defence counsel, and they then have the right to lodge

 9     an appeal and challenge the validity of the indictment, the legality of

10     the indictment, and anything else that it can use to challenge the

11     indictment.

12             Now, once the appeal is received, then a trial chamber made up of

13     three judges decide and rule on the appeal, and if they reject the appeal

14     as unfounded, or if there was no appeal and a time-limit of eight days

15     has expired in which an appeal is to be lodged, then the indictment comes

16     into force legally.  And analogously in this tribunal it's confirmed by a

17     judge, but here it is confirmed by the three judges, if an appeal was

18     lodged, if not, by force of law, it comes into force, it can be acted

19     upon, a trial can be scheduled.

20        Q.   Thank you, General.

21             MR. ZORKO:  [Interpretation] We are now going to move on to

22     another area, or rather, we will go back to document P1187, which is a

23     Prosecution exhibit still on our screens, but can we look at page 7,

24     please, in B/C/S, and page 34 in the English translation.

25        Q.   And, General, I'd like to focus your attention on Article 74.

Page 12905

 1     General, this Article 74 deals with the organisation and work of military

 2     courts during a state of war, and I'd like to hear your comments, or

 3     rather, further explanation of what is stated in this article.

 4        A.   This provision of the law regulates the organisation and work of

 5     the military courts during war.  Once a state of war is proclaimed, an

 6     emergency situation comes into force in which it is necessary to organise

 7     the work of military courts differently to peacetime, that is to say

 8     adjusted to the newly-arisen situation in a state of war.

 9             This provides for the possibility and direct responsibility of

10     having peacetime military courts, which, in the Federal Republic of

11     Yugoslavia, there were three, cease to function.  The supreme military

12     court and supreme military prosecutor in working with the staff of the

13     Supreme Command and courts are established attached to the commands of

14     individual units and there are many more of them.  So military courts are

15     set up attached to the commands of the military districts, so these are

16     territorial military organs in a certain area attached to the commands of

17     the corps, divisions, and armies, command of the air force and

18     anti-air attacks and the navy.

19             So all these units have new courts attached to their commands and

20     parallel to that we have military prosecutors, they follow suit.  So they

21     continue their work under the new conditions and there are many more of

22     them.  The object being that they should be closer and become part of the

23     units involved where they have the conditions of working more

24     efficaciously and prosecuting the perpetrators of crimes more

25     efficiently, the members of those units, to try only the members of those

Page 12906

 1     units.

 2             And the same applies to the supreme military court and military

 3     prosecutor.  They set up their departments, the supreme military court

 4     and supreme military prosecutor sets up their departments attached to the

 5     commands of the armies so that they are in a position to function

 6     effectively and to deal with appeals lodged with first-instance courts.

 7        Q.   Thank you, General.  The military judiciary organs of the Federal

 8     Republic of Yugoslavia, after the dissolution of the Socialist Federal

 9     Republic of Yugoslavia, did they work in peacetime conditions or not?

10        A.   The military courts in the Federal Republic of Yugoslavia, after

11     the disintegration of the Socialist Federal Republic of Yugoslavia, were

12     organised and worked in peacetime conditions.  They functioned right up

13     until the proclamation of a state of war when there was the NATO pact

14     aggression against the Federal Republic of Yugoslavia on the 24th of

15     March, 1999.  And this organisation and war time establishment functioned

16     only while there was a state of war.  Once the state of war ceases, their

17     organisational and work on those principles ceases as well.

18        Q.   Thank you, General.

19             MR. ZORKO:  [Interpretation] May we now have pulled up on e-court

20     Exhibit P1188.

21        Q.   General, in your binder it is tab 3.  It is the law governing

22     military prosecutors.  General, before we move on to another area, you

23     said here that the courts, the military courts in the Federal Republic of

24     Yugoslavia functioned in conformity with Article 74 of the 24th of March,

25     1999.  Can you just tell us up until what date did that state exist,

Page 12907

 1     situation exist?

 2        A.   That was during the state of war, and as far as I remember, the

 3     state of war ceased on the 24th of June or 25th of June, 1999, one of

 4     those two days.  I'm not quite sure whether it was the 20th of June or

 5     the 25th of June, 1999.

 6        Q.   Thank you.  General, take look at the Law on Military Prosecutors

 7     and Article 1 in particular in which it states that:

 8             "The military prosecutor is an independent state organ ...," so

 9     could you explain to us the meaning of the concept of independence and

10     autonomy?

11        A.   Analogous to the independence and autonomous of the courts and

12     the process of decision-making, so also the military prosecutor and

13     prosecutors in general are independent and autonomous state organs which

14     prosecute the perpetrators of crimes.  So the prosecutor is completely

15     independent in making his decisions with respect to criminal prosecution.

16     It is the sole organ that has that responsibility and therefore it is

17     quite normal and natural that the prosecutor be independent and

18     autonomous in making his decisions, which, of course, have to conform to

19     the law.

20        Q.   Thank you.  I'd also like us, General, to look at Article 28 of

21     this same law.

22             MR. ZORKO: [Interpretation] So may we have that displayed on

23     e-court, please.  Page 3 of the B/C/S and 11 of the English.

24        Q.   General, it says here that the tenure of the military prosecutor

25     and his deputies shall be permanent.  What does that mean?

Page 12908

 1        A.   That means just as applied to judges, that the function of the

 2     prosecutor and his deputies once appointed to the post is permanent,

 3     which is once again a guarantee of security for the post and the person

 4     forming that function, that is to say that they are able to make their

 5     decisions completely independently and autonomously and that they can

 6     rest assured that that is the condition on which they will perform their

 7     function; that is to say that nobody can replace them outside the

 8     conditions provided for by the law.

 9        Q.   Thank you, General.  Tell us, please, who appoints military

10     prosecutors to that duty?

11        A.   Military prosecutors and deputy military prosecutors, just like

12     judges, are appointed by the president of the republic, and there is a

13     statement of reasons that needs to accompany the appointment, so a

14     statement of reasons by the minister of defence.

15             With your permission, I'd like to explain how this functioned in

16     practice.  There is a legal decision whereby the minister of defence

17     makes a proposal and expounds his reasons, but in practice, as far as

18     judges are concerned and prosecutors and deputy prosecutors, that opinion

19     is compiled by the military prosecutors or presidents of the courts for

20     potential candidates.  And in 99 per cent of the cases, if the members of

21     the court and president of the court propose somebody after holding

22     consultations then that person is appointed, the candidate is appointed

23     because there is no other institution within the army which has such

24     close knowledge about the qualities of a candidate as do colleagues

25     amongst themselves.  So the minister of defence is not the -- somebody

Page 12909

 1     who just takes out a file from his drawer and proposes somebody, but he

 2     takes on board opinions given by the candidate's colleague so that it

 3     wasn't a unilateral act, it required broad consultation for putting

 4     forward and appointing the candidate.

 5        Q.   Thank you, General.  Now, briefly could you describe for us the

 6     responsibilities that the military prosecutor had in the Federal Republic

 7     of Yugoslavia?

 8        A.   The military prosecutor, in simple terms, is in charge of

 9     prosecuting the perpetrators of crimes which come under the remit of the

10     military court, so the affairs of the military court are affairs that the

11     military prosecutor deals with outside that scope not, so they are

12     mutually correlated.  If somebody raises an indictment against an

13     individual who does not fall within that category, then the indictment

14     will be rejected and they cannot take the proceedings any further under

15     the law.

16        Q.   Thank you, General.

17             MR. ZORKO:  [Interpretation] May we now have called up on e-court

18     page 2 of the B/C/S and 4 of the English.

19        Q.   And, General, I'd like to ask you to take a look at Article 9.

20     And in this article it states that the military prosecutor shall take

21     action within the bounds of his subject matter and territorial

22     jurisdiction.  Can you help us to understand those two concepts, subject

23     matter and territorial jurisdiction, what does that actually mean?

24        A.   Subject matter means that the prosecutor or the military court

25     must act within the frameworks of its remit, that is to prosecute the

Page 12910

 1     perpetrators of crimes for which it is responsible.  That is to say it is

 2     their responsibility to prosecute all military personnel committing a

 3     crime, so military personnel, any crimes committed and others for crimes

 4     which under the law they can prosecute.

 5             Now, the territorial jurisdiction is linked to territory, crimes

 6     and perpetrators on territories over which he has actual responsibility.

 7     And that territory is determined by the law governing military courts in

 8     the corresponding article which enumerates --

 9        Q.   General, I apologise but I think you are moving a bit too fast.

10     Could you slow down.

11        A.   Thank you.  The territory over which a specific court has

12     jurisdiction is identical to the one that has the prosecutor, so we are

13     talking about territorial jurisdiction which is also provided by the Law

14     on Military Courts which specifies municipalities as basic units of state

15     organisation.  Each municipality has its territory and its boundaries.

16     In some places, military units and military institutions or installations

17     are located, and if a crime is committed in that specific territory that

18     falls under the subject matter jurisdiction of the prosecutor, then he

19     will prosecute.

20             So territorial jurisdiction is relating to specific territory and

21     subject matter is a general concept which means that he is entitled to

22     prosecute.  That practically means that neither the court nor the

23     prosecutor can act outside the boundaries of their jurisdictions.  They

24     can only do that if a case is delegated to them by the supreme military

25     prosecutor, and in case of courts if that is done by the supreme military

Page 12911

 1     court, but that is done only for practical purposes.

 2        Q.   General, can you please repeat the last sentence because I'm not

 3     sure whether it's been recorded correctly with regard to jurisdiction.

 4        A.   Territorial jurisdiction implies that a military prosecutor or a

 5     military court are entitled to act with regard to criminal offences

 6     committed in the territory that they have jurisdiction over in

 7     geographical terms.  And that is regulated by the Law on Military Courts.

 8     Exceptionally, it can happen that they act outside those boundaries,

 9     territorial boundaries set out by the law, if a case is being deferred to

10     their jurisdiction that does not coincide with their territorial

11     jurisdiction.  The proposal is made by the military prosecutor, supreme

12     military prosecutor, and in case of courts it can be done by the supreme

13     military court.

14             So if we are talking about prosecution, it has to be delegated by

15     the prosecutor and --

16             THE INTERPRETER:  And could the witness please slow down.  These

17     are very complicated and complex matters.  Thank you very much.

18             JUDGE MOLOTO:  Sorry, Mr. Gojovic, can you please slow down once

19     again.  I know that once we get into the subject matter we sort of forget

20     about other things happening and we move a little faster.  Can we please

21     slow down.  The interpreters can't keep up with you.

22             Yes, Mr. Zorko.

23             MR. ZORKO: [Interpretation] Thank you, Your Honours.

24        Q.   General, you started your sentence referring to the prosecutor's

25     office, you said that the case is referred to by, can you finish it.

Page 12912

 1        A.   If the act is under the territorial jurisdiction of the

 2     prosecutor in Belgrade, for example, and for practical and tactical

 3     reasons these proceedings can more easily be done by the prosecutor in

 4     Nis, then the Belgrade prosecutor will defer the case to Nis and he will

 5     also ask the military court to do the same and defer the case to the

 6     military court in Nis.  Then the Supreme Court will pass a decision to

 7     that effect and will pass jurisdiction to the military court in Nis.

 8     Though that is as far as territorial jurisdiction is concerned.  But in

 9     principle, each of those has responsibility for their specific territory

10     but they can exceptionally try cases that are deferred to them from other

11     territories.

12             This same applies to civilian courts.

13        Q.   All right.  Thank you, General.  Concerning professional

14     responsibility, in what way was the system of military prosecutor's

15     office organised, to whom were the prosecutors responsible for their

16     work?

17        A.   Military prosecutor and prosecutors in general within the

18     judicial system of the FRY, the governing principle is the one of

19     subordination.  The first-instance prosecutor is duty-bound to act

20     according to instructions and directions of his superior prosecutor.  In

21     other words, the first-instance military prosecutor is responsible for

22     his work to the supreme military prosecutor, whereas the supreme military

23     prosecutor is responsible for first-instance prosecutor's work and for

24     his own work as well to the president of the republic.

25        Q.   Thank you, General.  Can you please look again at Exhibit P1188,

Page 12913

 1     Article 6, sub-item 1.  In this article it is stipulated that the right

 2     and the duty of a military prosecutor is to prosecute perpetrators of

 3     criminal acts including, but not limited to, to undertake measures with

 4     regard to discovering crimes and -- detecting crimes and discovering

 5     their perpetrators.  Can you please give us a more detailed explanation

 6     about the process of taking these measures and what these measures

 7     actually involve according to the law?

 8        A.   Proceeding from his basic function and jurisdiction of each

 9     prosecutor and including a military prosecutor which is to prosecute

10     perpetrators of specific crimes, in carrying out his duties, there is no

11     problem if the perpetrator's identity is known and if the specific crime

12     has been detected.  Under such circumstances, all the organs who are in

13     charge of conducting their duties at these initial stages will do so.

14     And of course, a prerequisite is for the crime to have been reported.

15             The problem that a prosecutor faces and the law enforcement

16     becomes prominent if the identity of the perpetrator is unknown or if it

17     is known that a criminal act has been committed but there is no solid

18     evidence or even circumstantial or initial evidence to that effect and it

19     is obvious that a criminal offence is such that should be prosecuted

20     ex officio by the prosecutor because there are some minor offences that

21     can be regulated through a civil suit.

22             Under such circumstances, the prosecutor has at his disposal, as

23     it is worded here, a mechanism of undertaking measures, which is rather

24     general.  It is not specified which measures this particularly involves.

25     I agree with that.  However, if you look at other legal provisions not

Page 12914

 1     only from the Law on Military Prosecutor and the Military Courts, but

 2     other laws as well from which these measures can be identified, this

 3     would mean that the prosecutor is entitled to ask certain state organs,

 4     which is primarily the investigating and detecting organs which exist in

 5     the army and in society in general.  In civilian life, that is the organs

 6     of the interior, i.e., the police and the army, this is military police,

 7     security organs, command organs, officers, institutions, work

 8     organisations and other entities.

 9             So from all these entities that might provide relevant facts or

10     information, the prosecutor is authorised to seek this information.  On

11     the other hand, all these organs are also obliged to act pursuant to his

12     request and to provide the information or the facts or the documents that

13     they have and that they possess.  So this is a whole array of measures

14     that the prosecutor can undertake within the scope of his own

15     responsibility.

16        Q.   General, I will interrupt you for a minute.

17             MR. ZORKO: [Interpretation] Your Honours, I think this is a good

18     time to take a break.

19             JUDGE MOLOTO:  Thank you so much.  We'll take a break and come

20     back at quarter to 11.00.  Court adjourned.

21                           --- Recess taken at 10.15 a.m.

22                           --- On resuming at 10.44 a.m.

23             JUDGE MOLOTO:  Yes, Mr. Zorko.

24             MR. ZORKO: [Interpretation] Thank you, Your Honour.

25             JUDGE MOLOTO:  I'm trying to find out where we are going with all

Page 12915

 1     this.  I thought we --

 2             MR. ZORKO: [Interpretation] I will soon complete this topic which

 3     had to do with the jurisdiction held by various bodies in terms of

 4     detecting and prosecuting crime.

 5             JUDGE MOLOTO:  Thank you.

 6             MR. ZORKO: [Interpretation] Thank you, Your Honour.

 7        Q.   General, we left off when we were dealing with the responsibility

 8     of the prosecutor and the measures taken by him.  In what way does the

 9     prosecutor gather information about a crime?

10        A.   A moment ago I described the way which he tried to obtain

11     information from relevant state bodies.  In any state where there is a

12     rule of law, and I think that the FRY and even earlier on was a state

13     with a legal system.  The prosecutor would apply to the specialised

14     bodies dealing with the detection and prevention of crime to gather

15     information as well as to any other stated body or agency which would

16     come across relevant information.

17        Q.   Thank you, General.  On the issue of information gathering, can

18     you tell us who has the responsibility to establish that the information

19     gathered is of such a nature as to require prosecution?

20        A.   This is both the right and the obligation of the prosecutor

21     having jurisdiction.  The prosecutor is the one who undertakes

22     prosecution, other bodies are not vested with this right.

23        Q.   Specifically when it comes to the Army of Yugoslavia, did every

24     commanding officer, senior officer, have an obligation to take certain

25     measures where he learns that a criminal act has been committed by

Page 12916

 1     members of his unit and which measures are these?

 2        A.   Any senior or commanding officer, regardless of the level or the

 3     unit he commands, where it so happens that a member of his unit has

 4     committed a crime for which prosecution is initiated ex officio has

 5     certain obligations to meet, specifically he or she needs to take

 6     measures to make sure that the perpetrator of a crime where he is

 7     identified should be taken into custody to prevent him from absconding.

 8     In other words, the commanding officer is even entitled to take him into

 9     custody to detain him, or otherwise to take measures that will ensure

10     that the perpetrator doesn't flee.

11             As for the crime itself, the officer needs to take measures to

12     secure the scene of crime which means that only on-site investigation

13     officers can have access to the crime scene.  He needs to make sure that

14     trace evidence and evidence is preserved and she needs to take steps to

15     gather additional information that may shed light on this event.

16     Finally, he also needs to provide all the up-to-date information to the

17     prosecutor having jurisdiction, and where this isn't possible, to report

18     to the immediately superior command that will in turn inform the

19     prosecution having jurisdiction and the law enforcement organs who will

20     take it up from there and see to their duties.

21        Q.   Thank you.  General, the General Staff of the Army of Yugoslavia,

22     what were it's relations with the military prosecutor's offices and

23     military courts?

24        A.   According to the earlier Law on Military Courts and Military

25     Prosecutor's Office when say I earlier, I mean the one preceding the one

Page 12917

 1     we discussed, since the military prosecutors were supposed to serve the

 2     commands of the armies, whereas the main administration of the General

 3     Staff dealt with the status-related records of those who were employed in

 4     the military judiciary.  A functional relationship between the military

 5     courts and military prosecutor's offices on the one hand and the General

 6     Staff on the other hand did not exist because the military judiciary

 7     acted independently.  Thus, not only did they not have a functional

 8     relationship with the General Staff, but they also didn't have any with

 9     the administrations except for the part where they dealt with procurement

10     from the technical administration.

11        Q.   Thank you, General.

12        A.   Let me just add that once the 1995 law was carried, not even

13     procurement was in the hands of the General Staff.  Rather, it was in the

14     hands of the Ministry of Defence which meant that the military judiciary

15     bodies relied for procurement on the logistics bodies of the Ministry of

16     Defence, so even this link with the General Staff concerning procurement

17     was severed.

18        Q.   You are talking about procurement or supplies.  Can you tell us

19     what sort of supplies these were?

20        A.   In order for the courts and prosecutor's offices as a unit to

21     operate, they needed stationery, office equipment, vehicles, and of

22     course salaries as well.  All these technical matters were within the

23     responsibility of other bodies to deal with for the benefit of the

24     military judiciary which did not have its own departments dealing with

25     this because it would not have been reasonable for them to have them.

Page 12918

 1        Q.   Thank you, General.  General, did the Chief of the General Staff

 2     in the period before the establishment of the Federal Republic of

 3     Yugoslavia and thereafter have the right to initiate -- to launch an

 4     investigation to be conducted on the part of the prosecutor?  And if so,

 5     under which conditions?

 6        A.   When it came to crimes for which prosecutors and military

 7     prosecutors initiated investigation ex officio, the prosecutor will first

 8     of all receive notice of crime, that's to say, the criminal report from

 9     police, military police, security, inspection, control, et cetera.  Only

10     rarely would they receive notice of it from superior officers, rather

11     they would come from these bodies.

12             When it comes to the Chief of the General Staff, which is the

13     highest-ranking position within an army, it was not within his purview to

14     file criminal reports.  It fell upon the lower levels to do so.

15     Generally speaking, under the law and the constitution of a state, every

16     citizen has the obligation to report a crime.  And in addition to this

17     civic obligation, the Chief of the General Staff did not have any

18     additional powers vested with him.  They were not ruled out absolutely,

19     but that they would deal in that case with some other issues, whereas

20     crime fell within the purview of specialised bodies and departments which

21     normally exist within an army for that particular purpose.

22        Q.   Thank you, General.  I would like to move to a different topic

23     now.  As far as the provisions of international law are concerned, did

24     the FRY have a system to implement these provisions, and I mean did it

25     have a legal order to that effect?

Page 12919

 1        A.   The Federal Republic of Yugoslavia, pursuant to its constitution

 2     from 1992, I believe, Article 16 para 2, provided for all treaties which

 3     were ratified in keeping with the constitution and other

 4     internationally-recognised norms, and made them a component part of the

 5     country's legal order.  From that followed that all the Geneva

 6     Conventions and other treaties which the SFRY had ratified and which were

 7     accepted by the FRY, made part and parcel of the legal order of the

 8     country.  This included all the conventions relating to

 9     International Humanitarian Law.

10             Additionally, in addition to the constitution there was the

11     Criminal Code which provided for the crimes punishable under

12     international law and these crimes incurred the maximum sentence

13     envisaged under the FRY legal system.

14        Q.   Thank you, General.  You mentioned the constitution just now.

15     Were there any other legal instruments in the FRY which provided for

16     these very issues?

17        A.   In addition to the constitution, the Law on Defence included a

18     provision whereby any member of the Army of Yugoslavia in the course of

19     combat was duty-bound to adhere to all the rules of -- and laws of war in

20     treating the wounded, the prisoners, and civilians.  This was binding on

21     all the members of the Army of Yugoslavia engaged in combat.

22             In addition to that, the Law on Defence envisaged that members of

23     the army should employ their weapons in combat in accordance with the

24     rules governing the use of weapons, and this of course relates to their

25     use of fire-power against the enemy forces in combat.

Page 12920

 1        Q.   Thank you, General.  In addition to what you've just stated, did

 2     the Army of Yugoslavia, including the General Staff, take any measures to

 3     make sure that the provisions of International Humanitarian Law were

 4     complied with by members of the army?

 5        A.   In the military schools and academies, among other subjects and

 6     courses, there was one which dealt with the application of provisions of

 7     International Humanitarian Law.  All those attending these schools would

 8     hear this course and had to sit the exam on this course and this was a

 9     system of educating them on this matter, among others.

10             I know that in the course of 1995, based on a protocol signed

11     between the Ministry of Defence and the ICRC, certain seminars were

12     organised for members of the VJ at the level of the General Staff where

13     ICRC instructors held seminars for senior officers at certain levels who

14     in turn would train their subordinates.  It was a train-the-trainers

15     course which lasted over just more than two years.  These were sets of

16     seminars and training on the provisions of International Humanitarian Law

17     based on the protocol I referred to.

18             I know of this because at the time I was a lecturer at the

19     military academy on the issue of criminal law.

20        Q.   Thank you, General.  Please turn to your binder, tab 4.

21             MR. ZORKO: [Interpretation] And can we call up in e-court

22     document 01315D.  This is a 65 ter Defence document.

23        Q.   We have the document on our screens.  Do you recognise the

24     document, General?

25        A.   Yes, I'm familiar with the document.  These are rules of conduct

Page 12921

 1     in combat produced by the General Staff of the Army of Yugoslavia,

 2     specifically its first administration.  This was updated and consolidated

 3     material and it was known to be part of combat gear of every soldier, and

 4     he would be given this along with the other gear at the time of his

 5     mobilisation in times of war or imminent threat of war.

 6             Every soldier would be given this brochure that was printed on

 7     waterproof paper and the soldier would be given this brochure along with

 8     the other kit that he would be given.  The brochure related in the

 9     briefest of terms, the rules of engagement and the soldier would always

10     have it to hand, and would also have to familiarise himself with it under

11     the supervision of his superior officer.

12             We had a similar brochure earlier on when every unit, whenever

13     mobilisation plans would be drawn up, would make sure that its soldiers

14     received this brochure.  It's just that this issue was a bit updated and

15     embellished, so to speak.  But it was a standard part of every soldier's

16     kit.

17        Q.   Thank you, General.

18             MR. ZORKO: [Interpretation] I'd like to tender this document into

19     evidence now, please, Your Honours.

20             JUDGE MOLOTO:  Yes, Mr. Thomas.

21             MR. THOMAS:  The only comment I'd make, Your Honour -- I am

22     sorry, Your Honours.  The only comment I would make, Your Honours, is at

23     this point we haven't had evidence on when this was in effect, during

24     what period of time.

25             JUDGE MOLOTO:  Mr. Zorko.

Page 12922

 1             MR. ZORKO: [Interpretation] Thank you.

 2        Q.   General, the document we saw a moment ago, during what period was

 3     it enforced?  When was it applied?  What period of time?

 4        A.   Obviously the Prosecutor wasn't following what I said, so I'll

 5     try and explain.  This is nothing new.  It's nothing new.  It's just a

 6     brief summary taken from the 1949 Geneva Conventions and additional

 7     protocols, dated to 1970, and their short summaries and that is as part

 8     and parcel of every soldiers kit.  And that was true for the 1960s

 9     onwards.  And these specific ones in the material since this specific

10     authentic document, this one was compiled after the seminars that were

11     held that I mentioned earlier on by the international ICRC committee in

12     1995, 1996, 1997.  So that's when this text was adapted and put down on

13     this plastified [as interpreted] paper, waterproof paper.  Previously

14     they didn't have this plastic form but they were nevertheless part and

15     parcel of the kit of every soldier.

16             I know that from my own experience in the 1960s and 1970s.  I had

17     that as part of my kit when we were shown where our equipment was if war

18     should break out.  So this was stored -- the war reserves were stored in

19     the central depot and this was part of the kit.  This particular document

20     dates to 1996 when it was compiled and the text adapted in the technical

21     sense actually, this plastic version, but otherwise it always existed.

22             JUDGE MOLOTO:  Thank you very much, sir.  Now, you say what

23     existed in the 1960s was always there, which would mean that what you had

24     in the 1960s would not have had the -- in it the additional protocols

25     which came after 1960.  You are saying this particular one on the screen

Page 12923

 1     that we are looking at came about around 1995, 1996, 1997, you've given

 2     us those three dates after the International Committee of the Red Crosses

 3     meetings.  Are we to understand then that this document here was not

 4     there during the war, 1992 to 1995, and that also the one before it which

 5     you had from the 1960s didn't have the 1979 protocol?  So, in fact, we

 6     don't have before us anything that was in place during 1990 to 1995?

 7             THE WITNESS: [Interpretation] I'll explain this once again.  The

 8     document with these contents --

 9             JUDGE MOLOTO:  Your explanation I understood, sir.  I understand

10     the contents, yes.  However, in 1960, the 1979 additional protocols were

11     not there and you say you had them all the time going on, and then after

12     the 1995, 1996, 1997 seminars, you had these, which now include the

13     protocols.  But these only came into effect within the FRY, as I say you

14     gave us three dates, 1995, 1996, 1997.  I'm saying to you, based on that

15     explanation of yours, are we to understand that the document before us

16     was non-existent in this the period 1990 to 1995?  Please don't go back

17     to explain what you explained.  I understood you perfectly well.  Just

18     answer my question.  The document before us was not there during 1990 to

19     1995?  You can say yes, you can say no, you can say you don't know.

20             THE WITNESS: [Interpretation] I apologise, Mr. President, but I'm

21     not sure you understood me.  With the adoption of the additional

22     protocols, they were incorporated into a similar document which existed

23     and was prepared for each and every soldier within its war reserve kit.

24     This specific plastic version on plasticified paper was compiled, let's

25     say in 1997, so it was plasticified in 1997.  But the contents existed

Page 12924

 1     before that, it existed in 1992 and 1993, but in a different form.

 2             JUDGE MOLOTO:  Okay.  Can I repeat my question.  Not withstanding

 3     what I have just said, are we to understand that this plasticised form

 4     was non-existent in the period 1990 to 1995 because this plasticised form

 5     came in 1997 now that you have zoned it into one year?  So the document

 6     you are seeing here is not the document which gave us the contents that

 7     were there between 1990 and 1995?  They may have been there but this was

 8     not it.

 9             THE INTERPRETER:  Could the witness be closer to the microphones,

10     please.

11             JUDGE MOLOTO:  He hasn't started speaking yet, but can you get

12     closer to the microphone, please, because the interpreters can't hear

13     you.

14             THE WITNESS: [Interpretation] In this particular form, so this

15     specific document dates to 1997.  Let's choose 1997, say 1997, and that's

16     not being challenged.  In this form and this edition and we can see that

17     it's the General Staff of the Army of Yugoslavia.  Before that they were

18     similar, with similar contents.

19             JUDGE MOLOTO:  Okay.  I think I've asked my question.

20     Mr. Thomas, you had objected.  Do you persist in your objection?

21             THE INTERPRETER:  Microphone, please.

22             MR. THOMAS:  The answers have taken care of my objection,

23     Your Honour.  Thank you.

24             JUDGE MOLOTO:  Thank you so much.

25             You may proceed, Mr. Zorko.

Page 12925

 1             MR. ZORKO: [Interpretation] Thank you, Your Honour.  I will stand

 2     by my proposal to tender this document into evidence.

 3             JUDGE MOLOTO:  I beg your pardon.  Yes, it is admitted into

 4     evidence.  May it please be given an exhibit number.

 5             THE REGISTRAR:  Your Honours, this document shall be assigned

 6     Exhibit D422.  Thank you.

 7             JUDGE MOLOTO:  Thank you.

 8             MR. ZORKO: [Interpretation]

 9        Q.   General, let's move and to another area.  I would like you to

10     explain to us what military discipline entails and means.

11        A.   That subject is regulated by rules and provisions, the law

12     governing military discipline, first and foremost, and I'll try and

13     interpret it, what the regulations are.  When we say military discipline,

14     we mean exact full and timely execution of military duties and other

15     duties in the Army of Yugoslavia, in keeping with existing rules of

16     service and other generally accepted norms and moral norms too.  So that

17     would in a nutshell be what military discipline means.

18        Q.   Thank you, General.  Are there violations of military discipline,

19     and in what way do the norms regulate violations of military discipline?

20        A.   The law governing the Army of Yugoslavia and laws governing

21     military discipline regulate this in normative terms, what is implied

22     under violation of military discipline, that is defined under those laws.

23     And those norms provide for two types of infraction or violation which

24     are legally qualified as breaches of military discipline, disciplinary

25     mistakes or disciplinary infractions, violations.

Page 12926

 1             Disciplinary mistakes are less serious infractions of military

 2     discipline, a minor offence, and disciplinary violations are major

 3     offences against the laws governing military discipline.  So we have

 4     minor and major violations, or offences.  And any major offences are

 5     qualified under the law as crimes and so the meritorious decision is made

 6     by the prosecutor or court responsible when this has become -- when it's

 7     a major offence and constitutes the comitance of a crime.

 8        Q.   You mentioned in your answer a criminal offence.  You mentioned

 9     that term.  Now, if an act which is perpetrated comes under the heading

10     of disciplinary responsibility and criminal responsibility or liability,

11     was it possible, according to the provisions in place, to conduct a

12     parallel proceedings against an individual, disciplinary and criminal

13     proceedings for the perpetrator of that kind of offence?

14        A.   We have two situations there and I'll answer your direct question

15     first.  As an exception for the same acts committed of the perpetrator if

16     he violates military discipline, if in committing those acts both a

17     criminal act was committed and -- well, for the same act committed, a

18     criminal proceedings can be undertaken by the prosecutor or the court and

19     the responsible organ in the army, the military authority can also

20     consider the act as being a disciplinary offence and then pass a sentence

21     for disciplinary offences independently of the criminal proceedings

22     launched.  That's an exception of the rule.  And that exception is to be

23     invoked only if specific military interests demand that such proceedings

24     be taken.

25             Now, what do we mean by specific military interests?  That is

Page 12927

 1     evaluated from one case to the other depending on the concrete situation

 2     and that evaluation and assessment is made by the superior officer in

 3     charge of those particular proceedings.

 4        Q.   [Microphone not activated]

 5             THE INTERPRETER:  Microphone, please.

 6             JUDGE MOLOTO:  Microphone, Mr. Zorko.

 7             MR. ZORKO: [Interpretation] Thank you, Your Honour.

 8        Q.   You mentioned that you were talking about the exception to the

 9     rule.  You also mentioned specific military interests, interests of the

10     service.  In what way does the superior officer in charge of unleashing

11     proceedings determine when specific or special interests are involved for

12     a particular member of the Army of Yugoslavia to be prosecuted for

13     infraction of discipline?

14        A.   Since it is a matter that the superior officer has to judge and

15     assess, and the conclusion he reaches must serve a practical purpose,

16     determining that it is really in the interests of the military service as

17     such, so specific special interests involved, an understandable

18     explanation may be given about what this looked like -- looks like in

19     practice.  A practical example is in order here.  Mostly the superior

20     officers, although these were exceptions and having worked in the army

21     for many years, I know that they were indeed exceptions, it occurred very

22     rarely, but anyway, the superior officers had to decide.

23             The superior officer consults the prosecutor who under takes

24     prosecution proceedings and if in consultations with him he deems it

25     necessary that in the criminal proceedings, or rather, if he feels that

Page 12928

 1     the court cannot be expected to pass a sentence over two years

 2     imprisonment but below the two-year threshold and if a sentence of more

 3     than two years is expected, then if it is meted out on a army employee,

 4     on a soldier, then he is released from service.

 5             Now, if a judgement of that kind is not expected and it is deemed

 6     that the person committing the offence should no longer be a member of

 7     the army, then disciplinary proceedings are undertaken for disciplinary

 8     offences, and one of the sentences open to the military disciplinary

 9     court is the termination of service or stripping a soldier of his rank.

10             So those then are the cases which would lead the superior officer

11     to decide to conduct parallel proceedings.  So if in the criminal

12     proceedings a major offence has been committed and that it is obvious

13     that a greater sentence would be given, then it's counter-productive to

14     conduct disciplinary proceedings for disciplinary offences because the

15     person would be dismissed from the army anyway.

16        Q.   Thank you, General.  Just one thing to see if this has been

17     recorded properly.  You said if that was purposeful?

18        A.   No, I said that wouldn't serve any purpose.  That would be

19     counter-productive, that's what I said.  That would involve work that

20     would be futile and without any ultimate effect because the objective can

21     be achieved in a more appropriate manner.

22        Q.   General, if I understand you properly, you said that the

23     objective is going to be achieved in a different manner.  Tell me this:

24     Is there any primacy or precedence when we talk about two types of

25     proceedings to establish somebody's liability, that is to say either the

Page 12929

 1     disciplinary or criminal liability?

 2        A.   The prosecutor initiates proceedings within his purview

 3     completely independently, and there is no question of his relinquishing

 4     this to be dealt with in disciplinary procedure if the crime was serious.

 5     That would be anachronous and that would be contrary to the law.  So he

 6     can't do that in any way.  It is now up to the officer to decide whether

 7     he will leave this up to the prosecutor to decide and where the prospect

 8     of a higher sentence is evident, there is no need to launch disciplinary

 9     proceedings for such acts that would qualify him as a dishonourable

10     member of the army.

11             So this refers to only particular criminal offences, not all of

12     them, and in that particular case, precedence is given to criminal

13     proceedings irrespective of the fact that the officer thinks that the

14     person involved deserves to be discharged from service, but on the other

15     hand one cannot expect that he would be punished properly through

16     criminal proceedings and he would go on with this process.  This may

17     happen for some minor offences when no criminal proceedings are launched

18     at all which are of lesser importance and which would be conducive to the

19     prosecutor rejecting the charges.  It depends on the decision of the

20     military court.  The officer initiating the proceedings cannot be sure

21     what the outcome and what the decision of the court would be.

22        Q.   General, what happens with disciplinary responsibility in the

23     event of a VJ member's service being terminated?  I'm talking about

24     jurisdiction for conducting disciplinary proceedings.  Are we talking

25     about the same organs or is there any shift in the jurisdiction?  I am

Page 12930

 1     sorry.  First of all, tell us who are the competent organs to initiate

 2     disciplinary proceedings before you answer my question?

 3        A.   The decision to launch disciplinary investigation about

 4     disciplinary violation is taken by an officer of the rank of the regiment

 5     commander and higher.  Lower-ranking officers are not entitled to do

 6     that.  A decision to place a soldier, a member of the military, before

 7     the disciplinary court is up to senior officers or direct superiors.  So

 8     after the investigation which is phase one, the next phase is to take a

 9     decision that someone is going face disciplinary court.  Only after that

10     the disciplinary prosecutor can issue a bill of indictment.  So we have a

11     very strictly-prescribed procedure in these events.

12        Q.   Thank you.  Let me just go back to my initial question.  What

13     happens with persons with regard to disciplinary proceedings whose

14     service has been terminated?

15        A.   In such instances, if the disciplinary proceedings are still

16     pending while the person is still member of the military, once his

17     service is terminated, the proceedings are terminated as well, because

18     the proceedings can only be conducted for as long as the perpetrator

19     retains his status of professional serviceman.  Once this status is

20     terminated, the proceedings are also terminated and he could not be

21     prosecuted any further, which is quite appropriate and natural.

22        Q.   Was there any possibility under the law for military disciplinary

23     organ of the VJ to conduct disciplinary proceedings for violation of

24     military discipline committed by a person serving in the Army of

25     Republika Srpska or the Serbian Army of Krajina?

Page 12931

 1        A.   In order to consider disciplinary responsibility for any member

 2     of the army is something to be done by his superior officer.  That means

 3     that no VJ officers had legal authority for that, and, therefore, he

 4     could not deliberate any instance of violation of military discipline on

 5     members of the Army of Republika Srpska or the Serbian Army of Krajina

 6     relating to his service in these two armies.

 7        Q.   Thank you, General.  General, are you aware that in the period

 8     following the break-up of the Socialist Federal Republic of Yugoslavia

 9     there existed military judicial system in the Republic of Serbian Krajina

10     and Republika Srpska?

11        A.   I know that both in the VRS and in the Army of the Serbian

12     Republic of Krajina there existed military judiciary.  Some of the judges

13     of this court I knew personally, and with some of them I had some

14     informal contacts during their term of office in their respective courts.

15        Q.   Thank you, General.  Can you tell us what kind of relationship

16     was there between the military judiciary in Republika Srpska and the

17     Serbian Republic of Krajina compared to the one that existed in the FRY?

18        A.   The courts of the Yugoslav Army did not maintain any functional

19     relationship with the above-mentioned courts.  When I mentioned a minute

20     ago that I personally knew some people from before because there were

21     very few people working in military judiciary, these people remained

22     there, but those were my private and personal contact that I had with

23     them, and we occasionally consulted on some professional issues.  That

24     was all.

25        Q.   General, can you please look at tab 5 in your binder.

Page 12932

 1             MR. ZORKO: [Interpretation] And can we please have in e-court

 2     D106.

 3        Q.   General, what kind of document is this?

 4        A.   As I can see from the title itself, it is called guide-lines for

 5     determining the criteria for criminal prosecution, and on top we have the

 6     Main Staff of the Army of Republika Srpska, and beneath the military

 7     prosecutor's office at the Main Staff of the army, and these guide-lines

 8     are indeed set out in a very professional and expert manner because I had

 9     an opportunity to go through them during proofing.  This was not

10     something that existed at the time.  That was a novel approach because

11     such guide-lines had not existed in the Yugoslav Army, either in terms of

12     norms or factually, but since I had worked as a military prosecutor in

13     Sarajevo, I know that guide-lines of this nature existed directing the

14     work of the military prosecutor's office and were issued by the

15     Commander-in-Chief at the time, that is Josip Bros Tito, who issued a

16     similar document containing guide-lines for military prosecutors, but

17     they mainly referred to the area of his responsibility provided under the

18     law and other rules.  Probably the people in the Main Staff of the VRS

19     somehow came across these guide-lines because part of the military

20     prosecutor archives had remained in Sarajevo and they used these old ones

21     to write these new guide-lines in a rather fair and proper manner.

22             According to these guide-lines, the prosecutor is, as the

23     politicians would put it, encouraged to criminally prosecuted all members

24     of the army who had committed certain crimes including those of

25     International Humanitarian Law, so that gave sort of a carte blanche to

Page 12933

 1     the prosecutor stating that he would not be hindered in any way

 2     whatsoever in his duties.

 3        Q.   Thank you, General.  You already answered a number of questions

 4     that I had intended to ask you with regard to this document.

 5             MR. ZORKO: [Interpretation] Could we please now look at another

 6     document which is 65 ter Defence document 00001D.

 7        Q.   General, you should have this document that you can see on your

 8     screen now, you should have it in the binder as well.  If I'm not wrong,

 9     that would be tab number 6.

10        A.   Yes, that's right.

11        Q.   General, this is an order issued by the commander of the

12     Sarajevo-Romanija Corps.  I would kindly ask you to briefly comment on

13     this document.  Or let's be more efficient, I would like to point out to

14     you a specific portion of this document, that is to say where this

15     captain is sentenced to a disciplinary measure to serve a prison

16     sentence?

17        A.   Yes, I understand what you are asking me.  This is indeed an

18     order issued by the Sarajevo Corps or Romanija Corps pursuant to

19     Article 79 of the Law on Army of Republika Srpska.  The captain is

20     sentenced to a prison term, as a disciplinary measure, of 20 days.  This

21     indicates that this law really provides for the possibility of an officer

22     to send servicemen to prison for a disciplinary violation which had not

23     been the case before because pursuant to basic constitutional principles,

24     it was only a disciplinary court or regular court that could send someone

25     to prison.  Here we see that this was given as an exclusive right to an

Page 12934

 1     individual, an officer, and I would say that this was contrary to the

 2     constitution.  Probably their constitution provided for this procedure,

 3     but if not, probably this was done due to practical reasons because the

 4     army was at the time involved in combat operations because this decision

 5     taken by the officer to imprison someone deviates from the basic

 6     principle of sentencing persons to prison only by courts.  Here we have

 7     this as a discretionary right of an individual and this shows the

 8     difference between the norms that are applied here and the norms

 9     applicable in the law on the VJ.

10        Q.   General, if I've understood you correctly, a disciplinary measure

11     was -- well, not a disciplinary measure, a punishment, there's a

12     difference in terminology there.  So this type of punishment was not

13     provided for disciplinary offences committed by the members of the Army

14     of Yugoslavia.  Could you explain that distinction to us.

15        A.   I just indicated that according to the law governing the Army of

16     Yugoslavia, a prison sentence of up to 20 days can be given but this is

17     the military disciplinary court.  That is the maximum sentence that

18     disciplinary military courts can issue for disciplinary offences.  But

19     for a military officer, he cannot be give an prison sentence, a sentence

20     of detention, military detention.  It's only the military disciplinary

21     court that can do that for disciplinary offences and that's a big

22     difference.

23        Q.   Thank you, General.

24             MR. ZORKO: [Interpretation] I would like to tender this document

25     so that it be given a number.

Page 12935

 1             JUDGE MOLOTO:  Yes, Mr. Thomas.

 2             MR. THOMAS:  Before we do, sir, I wonder if we could just scroll

 3     down a moment in the English version.  I wonder, sir, if we could just

 4     get some clarification on who the signatory is to that document.

 5             JUDGE MOLOTO:  Yes, Mr. Zorko.

 6             MR. ZORKO: [Interpretation] Thank you, Your Honour.

 7        Q.   General, can you recognise the signature?  Who signed this

 8     document?

 9        A.   It says Commander Major-General Dragomir Milosevic.  He was the

10     commander of the Sarajevo-Romanija Corps, so most probably that officer

11     was given the legal possibility of issuing a disciplinary sentence.

12             MR. ZORKO: [Interpretation] Your Honours, I note an error in the

13     English translation it says Dragutin in English, whereas in the B/C/S

14     version it is Dragomir, so my learned friend was quite right to ask the

15     question because there's a difference in the two names in the two

16     versions, the B/C/S and the English version.  There's mistake in the

17     English version.  So not Dragutin.

18             JUDGE MOLOTO:  Thank you, Mr. Zorko.  Yes, Mr. Thomas, are you

19     happy?

20             MR. THOMAS:  On that basis it can be admitted, sir.  Thank you.

21             JUDGE MOLOTO:  It is so admitted.  May it please be given an

22     exhibit number.

23             THE REGISTRAR:  Your Honours, this document shall be given

24     Exhibit D423.  Thank you.

25             JUDGE MOLOTO:  Thank you.

Page 12936

 1             MR. ZORKO: [Interpretation]

 2        Q.   General, would you now take a look at document -- it's is 65 ter

 3     Defence document in your binder.  It should be tab 8.  Tab 8?

 4             MR. ZORKO: [Interpretation] And may we have called up in e-court

 5     00013D.

 6        Q.   General, do you see this document?

 7        A.   Yes, I do.

 8        Q.   What is being regulated by this document, General?

 9        A.   It says in the heading that pursuant to Amendment 3 of the

10     constitution of the Serbian republic, and then "Official Gazette" of the

11     Serbian people in Bosnia and Herzegovina, number 692 and Article 1 of the

12     law on amendments to the constitutional law on the implementation of the

13     constitution of the Serbian Republic, "Official Gazette" of the Serbian

14     people of Bosnia and Herzegovina, number 6-92, the Presidency of the

15     Serbian republic issues the following decree on appointing judges,

16     jurors, military prosecutors, and deputy military prosecutors.  And then

17     under number 1, the following persons are appointed to the supreme

18     military court in Sarajevo:  Vidoje Ijacic, judge to the military court

19     in Sarajevo;  Damjan Kaurinovic, judge; Delimir [phoen] Jakic, judge to

20     the military court in Bijeljina; Ljubomir Kitic, judge to the military

21     court in Bileca, et cetera.

22        Q.   General, I'll interrupt you there, we don't need to have all the

23     names read out.  I'm just going to ask you the following question:  From

24     this document we see that to the Supreme Military Court in Sarajevo just

25     one person is being appointed, just one person; right?

Page 12937

 1        A.   That is right.  But this is probably an amendment.  Perhaps the

 2     court has other judges as well, but this judge is being additionally

 3     appointed so that the court should have the full number of members and

 4     then we have the judge-jurors, and military prosecutors and deputies, so

 5     judges are appointed by decree of the Presidency of the Serbian republic

 6     which is how it should be legally and adapted to the system on the SFRY

 7     on the appointment of judges and prosecutors.  Now, all these of the

 8     [indiscernible] that succeed and then set up their own legal system and

 9     judiciary, they based their new laws on the previous laws of the

10     Socialist Federal Republic of Yugoslavia which is quite in order because

11     everything was in order in that system for that particular system to

12     function.

13             MR. ZORKO: [Interpretation] I'd like to tender this document in

14     evidence, please.

15             JUDGE MOLOTO:  The document is admitted into evidence.  May it

16     please be given an exhibit number.

17             THE REGISTRAR:  Your Honours, this document shall be assigned

18     Exhibit D424.  Thank you.

19             JUDGE MOLOTO:  Thank you, Mr. Registrar.

20             Yes, Mr. Zorko.

21             MR. ZORKO: [Interpretation] Thank you, Your Honour.

22        Q.   Now, General, take a look at the next document in your binder.

23             MR. ZORKO: [Interpretation] And may we have it called up in

24     e-court.  It is document 00014D.

25        Q.   General, can you briefly tell us what this document is, what does

Page 12938

 1     it regulate, and I'd like to focus your attention on the statement of

 2     reasons given in the document.

 3        A.   Well, in the briefest terms we see that this is a decision taken

 4     by the authority in the Ministry of Defence of the Army of Republika

 5     Srpska, whereby certain persons are taken into service and they are the

 6     individuals that were appointed by decree, the one we saw a moment ago,

 7     as judges, judge-jurors, prosecutors and so on.  We see that at the

 8     bottom it says that military courts were established and the following

 9     persons admitted.  They were all lawyers, I assume, having passed their

10     bar exam and holding the ranks of reserve officers, which tells us that

11     they adhered to the previous SFRY legal provisions whereby judges of

12     military courts and military prosecutors and their deputies, only people

13     can be appointed who have graduated from the Faculty of Law and have

14     passed their bar exam and have a rank.  If you do not have a rank, you

15     cannot be a judge.  Here I see that all these persons have reserve

16     officer ranks because when they did their military service they attended

17     the reserve officers school and graduated from that school and therefore

18     were given reserve officer ranks and were now being appointed for judges.

19     Looking at their dates of birth, probably they had all previously been

20     working in some of the regular courts of Bosnia-Herzegovina as judges or

21     prosecutors.  And this leads us to conclude that under those conditions

22     too, care was taken that only capable people with the necessary

23     educational background and experience were appointed to these posts.

24        Q.   Thank you, General.  Would you look at paragraph 1 in the

25     statement of reasons.

Page 12939

 1             MR. ZORKO: [Interpretation] Next page, please, for the English.

 2        Q.   And may we have your comments to the paragraph.

 3        A.   Here in the statement it says decision by the Presidency number

 4     such and such of the 31st of May, 1992, so already at that time a

 5     decision was taken to establish military courts.  So the 31st of May,

 6     1992 is the date there, the military court in Sarajevo ceased functioning

 7     sometime in mid-May 1995.  I left Sarajevo and went to Belgrade on the

 8     28th of May, 1992, so three days later, the military courts were

 9     established of the Army of Republika Srpska.  I just made it this

10     digression to show you that they acted very speedily.

11        Q.   Thank you, General.

12             MR. ZORKO: [Interpretation] Your Honours, I think it's time for

13     the break, and before we take a break I'd like to tender this document

14     into evidence and that it be given an exhibit number.

15             JUDGE MOLOTO:  It is admitted.  May it please be given a number.

16             THE REGISTRAR:  Your Honours, this document shall be assigned

17     Exhibit D425.

18             JUDGE MOLOTO:  Thank you so much.  Indeed you are right,

19     Mr. Zorko, we'll take a break and come back at half past.  Court

20     adjourned.

21                           --- Recess taken at 11.59 a.m.

22                           --- On resuming at 12.29 p.m.

23             JUDGE MOLOTO:  Yes, Mr. Zorko.

24             MR. ZORKO: [Interpretation] Thank you, Your Honour.

25             Can we call up in e-court 65 ter Defence document 00052D.

Page 12940

 1        Q.   General, the document will be appearing on your screen shortly,

 2     and you also have it in your binder.  We can see that the document issued

 3     by the Sarajevo-Romanija Corps command is here, and I'm interested in the

 4     term "extraordinary military court" which is in English just below, or a

 5     "special military court" which is specifically referred to in Article 9.

 6     Can you tell us what this is about when an extraordinary or special

 7     military court is referred to in this order?

 8        A.   I can see in the heading that it says:

 9             "In view of the fact that the president of Republika Srpska has

10     declared a state of war in the area of responsibility of

11     Sarajevo-Romanija Corps, I hereby order, among other things, that all

12     units are to set up this court."

13             Well, this is in fact an old term renamed.  Probably since a

14     state of war was declared a possibility was provided for extraordinary or

15     special military courts to be set up.  It follows from this document that

16     a military officer, senior military officer is vested with setting up

17     such a court within his unit to deal with specific issues.  This is

18     something that existed for a very short time after World War II up until

19     the 1950s, and at that time there was the possibility of court marshals

20     to be set up and they would use the summary procedure.  This possibility

21     was not used at any time afterwards in the SFRY.  We can see here that it

22     says that it's a special military court that a commanding officer will

23     set up on an ad hoc basis for the purposes related to his unit.  It can

24     have -- and in fact it can be expedited this procedure.  We have this

25     term extraordinary military courts abroad, for instance in the American

Page 12941

 1     armed forces where an officer at a certain level may set up an

 2     extraordinary military court, and of course such courts will not be

 3     composed of professional judges or lawyers but rather members of a

 4     particular unit.  This is in fact a rather nonsensical institution that

 5     was provided for within the military system.  I don't see whether it can

 6     have a purpose really rather than allowing the commander to take a

 7     decision on certain matters on the spot.

 8        Q.   Thank you, General.

 9             MR. ZORKO: [Interpretation] I tender this document into evidence.

10             JUDGE MOLOTO:  It's admitted.  May it please be given an exhibit

11     number.

12             THE REGISTRAR:  Your Honours, this document shall be assigned

13     Exhibit D426.  Thank you.

14             MR. ZORKO: [Interpretation] Can we call up document 00737D.

15        Q.   General, I don't know if you can see the document.

16        A.   Can you give me reference for the binder, please.

17        Q.   This should be tab 9.

18        A.   It is not.

19        Q.   Very well.

20        A.   It's tab 13.

21        Q.   Yes, apologies, that's right.  General, can we have your brief

22     comments on the text below the word "I hereby order," or specifically

23     below item 1.

24        A.   Yes, I can see that this is the order dated 15 August 1995 of the

25     Main Staff of the Army of Republika Srpska.  I hereby order, mobilise two

Page 12942

 1     lawyers to each unit of the rank of a regiment brigade, through municipal

 2     departments through the Ministry of Defence, and assign them to organs

 3     for moral guidance, religious and legal afars.  The dead-line is 20

 4     August 1995:

 5             "The mobilised lawyers shall carry out professional tasks related

 6     to the work of extraordinary military courts and shall conduct all

 7     disciplinary procedures instigated by commanders of regiments brigades

 8     against responsible persons."

 9             So we can see in view of the document we looked at earlier on

10     that the commander of the Main Staff decided after all that lawyers

11     should be recruited to provide professional assistance in the work of

12     extraordinary courts; in other words, to say assist those who will be

13     assigned to such extraordinary military courts and furnish them with

14     expertise, which is in legal terms proper and I think also something to

15     be wished for.

16        Q.   [Microphone not activated]

17             JUDGE MOLOTO:  Microphone for you, Mr. Zorko.

18             MR. ZORKO: [Interpretation] My apologies, Your Honour.

19        Q.   We will no longer dwell on this document, General.

20             MR. ZORKO: [Interpretation] I tender the document into evidence.

21             JUDGE MOLOTO:  The document is admitted into evidence.  May it

22     please be given an exhibit number.

23             THE REGISTRAR:  Your Honour, this document shall be assigned

24     Exhibit D427.  Thank you.

25             MR. ZORKO: [Interpretation]

Page 12943

 1        Q.   General, please take a look at the document behind tab 14 in your

 2     binder.

 3             MR. ZORKO: [Interpretation] And in e-court, can we call up 65 ter

 4     Defence document 00063D.

 5        Q.   General, have look at the document, please, and give us your

 6     comments on the nature of the document, what it stands for.

 7        A.   This is a criminal report, in other words, a document which lies

 8     at the basis of the initiation of criminal proceedings.

 9        Q.   I will stop you there --

10             JUDGE MOLOTO:  Mr. Thomas is on his feet.

11             MR. THOMAS:  I am sorry, Your Honour, I didn't have anything on

12     my screen, but I see that it's just coming.

13             MR. ZORKO: [Interpretation] That is precisely what I wanted to

14     say.

15        Q.   General, please wait for the document to appear on the screen so

16     that everyone can follow.  We have the document on our screens now,

17     General.

18        A.   The criminal report was submitted to the military prosecutor's

19     office in Bijeljina, which is in Republika Srpska, against Vaso Vujicic,

20     lieutenant of military post 7572 Sarajevo, or rather, Han Pijesak.  What

21     is interesting in the professional sense is that Colonel Velibor Jeremic

22     invokes Article 148 para 1 of the criminal procedure law, and this is

23     properly invoked because this is the Law on Criminal Procedure that was

24     taken over from the former Yugoslavia and it is precisely the relevant

25     article.

Page 12944

 1             What is also interesting is that he invokes Article 217 of the

 2     Criminal Code of Republika Srpska which was normally a piece of

 3     legislation which was subordinate to that of the SFRY.  It was now

 4     renamed Criminal Code of Republika Srpska.  And this is something that

 5     the prosecutor's office in Bijeljina can invoke for these criminal

 6     offences.  And it does cover all the requirements and vests the

 7     prosecutor with powers to initiate criminal proceedings.  That's all that

 8     I can say that might be interesting in relation to the criminal report

 9     here.

10        Q.   Thank you, General.

11             MR. ZORKO: [Interpretation] Can I tender the document into

12     evidence.

13             JUDGE MOLOTO:  The document is admitted into evidence.  May it

14     please be given an exhibit number.

15             THE REGISTRAR:  Your Honours, this document shall be assigned

16     Exhibit D428.  Thank you.

17             JUDGE MOLOTO:  Thank you.

18             MR. ZORKO: [Interpretation] Thank you.

19             JUDGE MOLOTO:  Yes, Mr. Zorko.

20             MR. ZORKO: [Interpretation] Thank you, Your Honour.

21        Q.   General, look at the next document in your binder, which should

22     be behind tab 14.

23             MR. ZORKO: [Interpretation] And can we call up P822.

24        Q.   Can you see the document, General?

25        A.   Yes.

Page 12945

 1        Q.   General, what sort of proceedings does this involve, procedurally

 2     speaking?

 3        A.   This is a lawsuit initiated before the second municipal court in

 4     Belgrade for indemnities, plaintiff Dragomir Milosevic, and the second

 5     municipal court in Belgrade rendered a decision settling the matter, and

 6     this is a lawsuit for indemnities of and -- of non-material damages.

 7        Q.   When we are talking about lawsuits, when a prosecutor is heard,

 8     in what capacity would he be heard then?  Is there a role for him to

 9     play?

10        A.   In lawsuits, there is a peculiar situation where the plaintiff

11     may in the evidentiary procedure be heard as a party to the lawsuit, so

12     the difference between him being heard in this capacity and the capacity

13     of being heard as a witness, there's a difference because he is here a

14     party to the lawsuit and not just merely witness.

15        Q.   What does this procedural difference consist of when you hear

16     someone in the capacity of a party to the proceedings or if you hear him

17     as a witness?

18        A.   Well, this does not happen that often.

19        Q.   Very well, General.  Let me rephrase.

20        A.   No, no, I was merely waiting for the interpretation to catch up.

21        Q.   I apologise.  Go ahead with your answer.

22        A.   This happens only seldomly when the case that is made for a

23     lawsuit is not backed sufficiently, it can be additionally supported by

24     the evidence of -- given by the plaintiff where he would give his -- put

25     his case orally, give his submissions, and clarify matters.  Since he is

Page 12946

 1     not being heard as a witness, he is not under the obligation to tell the

 2     truth in presenting his case under the law.  He may even stay silent on

 3     some matters, and this is typical of this situation where the plaintiff

 4     filing a lawsuit withheld certain information, but the situation was

 5     accepted as such and a judgement rendered.

 6             So the prosecutor was heard here as a party trying to shed light

 7     on certain matters and not as a witness.  The prosecutor, or rather, the

 8     plaintiff.

 9        Q.   General, tell us what sort of consequences would befall a witness

10     giving false testimony before a court of law?

11        A.   When a witness is heard in whatever the proceedings, be it a

12     lawsuit or criminal proceedings, if he gives false testimony, he may be

13     prosecuted for that.  However, if we compare this with the hearing of a

14     plaintiff as a party to proceedings and if we compare that with the

15     witness being heard in criminal proceedings, especially in light of the

16     legislation in Serbia today, he need not speak on matters which may

17     incriminate him, or which may expose him to shame, disgrace, or even

18     great material damage.  Even in such circumstances, the witness need not

19     give full testimony, whereas in all the other circumstances, he has to

20     give full testimony and tell the truth.  So that's the basic difference

21     between a witness being heard and a party to the proceedings being heard.

22        Q.   Thank you, General.  We are now going to move to another topic.

23     Can you please look at the next document in your binder?

24             MR. ZORKO: [Interpretation] And in e-court, can I kindly have

25     65 ter document 01147D.  That's a Defence document.

Page 12947

 1        Q.   General, do you recognise this document?

 2        A.   Yes, although this is a poor photocopy, but I do recognise it.

 3     This is a document issued by the military court in Belgrade.  The trial

 4     chamber issued this ruling.  I presided over this chamber as the

 5     president of the court.  This is a rejection of the request by the ICTY

 6     to hand over Milan Mrksic with Sljivancanin and Miroslav Radic to the

 7     Court in The Hague.

 8             THE INTERPRETER:  Microphone, please, for the counsel.

 9             JUDGE MOLOTO:  Microphone, Mr. Zorko.

10             MR. ZORKO: [Interpretation] Thank you, Your Honour, once again.

11        Q.   General, could you look at page 2, I'm going to ask you for the

12     reasons for you delivering such a ruling.  Paragraph 1 on page 2 in B/C/S

13     and should be the same page in English as well.  Yes, that's right.  So

14     look at paragraph 1 on this page.  Can you please comment on it?

15        A.   Of course.  When the trial chamber deliberated on this request,

16     it conducted a certain procedure, and in the course of that procedure the

17     essential thing was to establish the number of facts, that is whether

18     those were citizens of the FRY.  Since we established that all the three

19     persons were indeed citizens of the FRY, according to Article 17, para 3

20     of the constitution, does not allow extradition of citizens of the FRY to

21     another state, and the same is provided by the Law on Criminal Procedure

22     which stipulates that a request by any foreign court can be complied with

23     only in case of foreign citizens and not the citizens of the state that

24     received the request.  So based on these provisions, the chamber rejected

25     the ICTY's request for extradition of the three above-named individuals.

Page 12948

 1             This ruling was sent ex officio to the supreme military court for

 2     reconsideration and the supreme military court confirmed the ruling, and

 3     subsequently it was acted in accordance with the constitution of the then

 4     FRY.

 5        Q.   Thank you, General.

 6             MR. ZORKO: [Interpretation] Your Honours, I thought you were

 7     going to ask a question.  If not -- thank you.  I'd like to tender this

 8     document into evidence.

 9             JUDGE MOLOTO:  The document is admitted.  May it please be given

10     an exhibit number.

11             THE REGISTRAR:  Your Honours, this document shall be assigned

12     Exhibit D429.  Thank you.

13             JUDGE MOLOTO:  Thank you.

14             MR. ZORKO: [Interpretation]

15        Q.   General, can you please look at document 01148D, 65 ter Defence

16     document.  Can you please just tell us -- but let's wait a minute for the

17     document to appear on the screens.

18             General, is this the decision of the supreme military court that

19     you just mentioned?

20        A.   Yes, that's the decision of the supreme military court confirming

21     the ruling of the military court in Belgrade which rendered this ruling

22     final at this stage.

23        Q.   Thank you, General.

24             MR. ZORKO: [Interpretation] I would also like to tender this

25     document into evidence.

Page 12949

 1             JUDGE MOLOTO:  It is admitted.  May it please be given an exhibit

 2     number.

 3             THE REGISTRAR:  Your Honours, this document shall be assigned

 4     Exhibit D430.  Thank you.

 5             JUDGE MOLOTO:  Thank you.

 6             MR. ZORKO: [Interpretation]

 7        Q.   General, can you please look at the next document in your binder.

 8             MR. ZORKO: [Interpretation] And in e-court, can we please have

 9     document 01313D.

10        Q.   General, what is this document about?

11        A.   This is the Law on Co-operation of the Federal Republic of

12     Yugoslavia with the International Tribunal for the Prosecution of Persons

13     Responsible for Serious Violations of International Humanitarian Law

14     Committed Since 1991.

15        Q.   Can you tell us the date of this "Official Gazette," when this

16     law was published?

17        A.   This law was adopted in April 2000.  I can't see the date here

18     and it was published in the "Official Gazette" on the 11th of April,

19     2002.  It was adopted by the federal Assembly and this law regulates

20     co-operation and it provides for a legal possibility for extradition of

21     perpetrators of serious violation of International Humanitarian Law

22     committed in the territory of the former Yugoslavia.  Pursuant to this

23     law there was legal basis sufficient for extradition of the perpetrators

24     as requested by this Tribunal, and it was acted upon accordingly.  Before

25     that is there was no legal possibility to effect this.  No court was

Page 12950

 1     allowed to break the law in such a way.

 2        Q.   General, can we please just confirming according to line 18 it

 3     says that the law was adopted in April 2000?

 4        A.   No, in April 2002.

 5             MR. ZORKO: [Interpretation] I would like to tender this document

 6     into evidence, Your Honours.

 7             JUDGE MOLOTO:  It is admitted.  May it please be given an exhibit

 8     number.

 9             THE REGISTRAR:  Your Honours, this document shall be assigned

10     Exhibit D431.  Thank you.

11             JUDGE MOLOTO:  Thank you.

12             MR. ZORKO: [Interpretation]

13        Q.   General, can you please look at the next document in your binder.

14             MR. ZORKO: [Interpretation] And in e-court can we please have

15     01314D?

16        Q.   General, I would just like to hear a brief comment of yours on

17     this next document.  Could you just please wait for the document to

18     appear on the screens.  Can you tell us briefly what the document is

19     about?

20        A.   Here we see the law on the amendment to the Law on Co-operation

21     of the Federal Republic of Yugoslavia with the ICTY, et cetera.  The

22     point of this law was that in the meantime, the Federal Republic of

23     Yugoslavia and its order were re-organised and subsequently became a

24     state community of Serbia and Montenegro.  Based on that, certain

25     terminology and certain terms had to be changed and certain organs such

Page 12951

 1     as council of ministers, et cetera, had to be remained.  So only these

 2     changes and amendments were effected in the language of the actually

 3     previous law.  There were no other substantial changes.

 4        Q.   Thank you, General.  We are now going to move to a different

 5     subject.

 6             MR. ZORKO: [Interpretation] Can we please have in e-court

 7     Prosecution Exhibit number -- I am sorry, before that I would like to

 8     tender this document into evidence.

 9             JUDGE MOLOTO:  It is admitted.  May it please be given an exhibit

10     number.

11             THE REGISTRAR:  Your Honours, this document shall be assigned

12     Exhibit D432.  Thank you.

13             JUDGE MOLOTO:  Thank you.

14             MR. ZORKO: [Interpretation] Thank you, Your Honour.  Can we

15     please have on e-court document P1747.  I believe that we have the wrong

16     translation, that it does not correspond to the original.  Thank you.

17        Q.   So, General, we see what kind of document this is.  Can you

18     please tell us what can you see from this document?

19        A.   This is a diploma issued by the national defence school in

20     Belgrade, which is an integral part of the Yugoslav Army.  It is in the

21     name of Vinko Pandurevic.  And further on it says that he finished -- or

22     rather, attended the national defence school in 1997 and 1998, that his

23     grade was 9.40, which is excellent, and we see in the bottom, the

24     signature and the stamp of the national defence school.  The diploma was

25     issued on the 28th of January, 1999.

Page 12952

 1             MR. ZORKO: [Interpretation]  All right.  Can we please now have

 2     in e-court P2093.  And we can remove the current document from our

 3     screens.

 4        Q.   And I would kindly ask you, General, to look at the next document

 5     that you have in your binder.  Can you tell us, please, what kind of

 6     document can with see here?

 7        A.   This is a bill of indictment issued by the military disciplinary

 8     prosecutor to the military disciplinary court of the General Staff of the

 9     Yugoslav Army against Vinko Pandurevic for a specific disciplinary

10     violation pursuant to the Law on the Yugoslav Army and the violation was

11     that in the course of resolving his housing problems in Belgrade and

12     while submitting an application to be given a flat with an indefinite

13     term of lease, did not mention, or failed to mention the fact that

14     previously he had been given a flat in Mali Zvornik and that he had

15     actually bought this flat and later on sold it.

16             This disqualifies him as someone who is entitled to apply for a

17     new flat because on the 5th of May, 1998, he concluded a contract which

18     is a period while he was attending the school of national defence.

19        Q.   Thank you, General.  From this document, can you tell us when

20     this violation was committed and on the basis of what are you drawing

21     such a conclusion?

22        A.   According to the statement of reasons in this below entitlement

23     the violation was committed on the date on which he concluded the

24     contract on the lease of the flat, because at that time he failed to

25     mention the fact that he already had a flat assigned to him on the 5th of

Page 12953

 1     May, 1998.

 2        Q.   Thank you, General.  Can you tell us who this offence was

 3     committed against or to whose disadvantage was this offence committed?

 4        A.   The flat was assigned by the flat administration for housing of

 5     the General Staff of the Army of Yugoslavia on the basis of the request

 6     and attending documentation, so the injured party and the consequences of

 7     this disciplinary offence was the housing administration or the person

 8     whose flat this was to lease out, which is the Army of Yugoslavia.  And

 9     this was a serious offence of military discipline which stipulated that

10     all provisions and norms governing military service must be abided by.

11        Q.   Now, we see that this bill of indictment was sent by the

12     competent authority, which is in this case the General Staff of the Army

13     of Yugoslavia.  I apologise, it's the military disciplinary court and

14     prosecutor.  What I want to ask you specifically is this:  Who had the

15     authority to launch these disciplinary proceedings and what gave that

16     person the authority to do so?

17        A.   Well, we have to go back to the previous piece of information in

18     order to clarify that and look at the diploma that was issued to

19     Pandurevic because from that diploma we can see that he attended the

20     school of national defence and had completed that course.  And that was

21     attached to the General Staff.  The school is within the General Staff of

22     the Army of Yugoslavia and as a student there he committed this

23     disciplinary offence.

24             So in order to launch an investigation and initiate these

25     proceedings, it was the chief of the national defence school whose job it

Page 12954

 1     was to launch the investigation and that the officer who was superior in

 2     the national defence school to make the decision to place it under the

 3     authority of the military disciplinary court.  So that came before this

 4     bill of indictment which was compiled on the basis of the previous

 5     proposals.  So during the time he committed the offence, he was attending

 6     the school.

 7             Those who attending the national defence school, regardless of

 8     which unit they came from, it was the chief of the school who was in

 9     charge and who had the authority to take disciplinary measures and

10     proceedings in the Army of Yugoslavia, and that was true for all the

11     people attending the military schools and their courses regardless of

12     which unit or army they came from.  So that's what I can say linked to

13     the school and the service.

14             MR. ZORKO: [Interpretation] Thank you, Your Honour.  Thank you,

15     General.  I have no further questions for this witness.

16             JUDGE MOLOTO:  Thank you, Mr. Zorko.

17             Mr. Thomas.

18             MR. THOMAS:  Your Honours, thank you.  Yes, I will have some

19     cross-examination but I wonder if we can adjourn early today and

20     reconvene tomorrow.  I think I can significantly shorten my proposed

21     cross-examination of General Gojovic, and I understand that he is the

22     only witness listed for this week.

23             JUDGE MOLOTO:  Is that the reason you want to adjourn?

24             MR. THOMAS:  Simply to re-organisation some thing, Your Honours.

25     I think if I have the opportunity to do that I can do this a lot quicker.

Page 12955

 1             JUDGE MOLOTO:  We'll take an adjournment to tomorrow.  But before

 2     we give the time, let me just say to you, Mr. Gojovic, that you have

 3     testified here before, you know that when once you have taken the

 4     witness-stand you may not talk to anybody about the case until you are

 5     excused from further testifying.  So I'll ask you to make sure that you

 6     don't speak to anybody about the case, in particular the Defence counsel.

 7     The case stands adjourned to tomorrow morning at 9.00 in the same

 8     courtroom.

 9                           [Trial Chamber confers]

10             JUDGE MOLOTO:  So we stand adjourned to tomorrow morning, 9.00 in

11     this same courtroom.  Thank you so much.

12                           --- Whereupon the hearing adjourned at 1.17 p.m.

13                           to be reconvened on Tuesday, the 20th day of July,

14                           2010, at 9.00 a.m.